Not a moment too soon

OLC finally has a leader.
OLC stands for Office of Legal Counsel, an arm of the U.S. Department of Justice responsible for giving Executive Branch officials legal opinions on contemplated action. (photo credit) It's an acronym that IntLawGrrls readers will recall for at least 2 reasons:
► Out of this office came the some of the most notorious documents of the George W. Bush Administration, the so-called torture memos, which purported to construct a legal cover for the harshest methods of interrogation and detention.
► Even before his own inauguration, then-President-elect Barack Obama nominated Indiana Law Professor Dawn Johnsen, whose Bush-era critiques of the torture memos included an IntlawGrrls guest post. But her confirmation battle was nasty, brutish, and long. It ended with Dawn's withdrawal from consideration in April 2010.
At a Northwestern Law symposium in May, Dawn urged the confirmation of her successor nominee, Virginia Seitz (below left). (photo credit) The Sidley & Austin partner had been nominated the 1st week of this year, but her confirmation process too seemed stalled. In a vein similar to an op-ed she'd written the year before, Dawn stressed the importance of the work of OLC. Among the issues on which the office gave advice, she noted, were military targeting and others related to the laws of war.
Dawn's comments proved prescient in the middle of this month: The New York Times reported that the administration's top lawyers had divided on whether U.S. military involvement in Libya constitutes "hostilities" that require congressional approval pursuant to the War Powers Act.
Many commentators have pondered the personalities in that debate, mulled who took what side. (See, for example, Yale Law Professor Bruce Ackerman's criticism. State Department Legal Adviser Harold Hongju Koh testified on the matter before a Senate committee yesterday.)
Particularly noteworthy to this 'Grrl was that OLC had lost the President's ear. Times reporter Charlie Savage explained:

Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In the Libya war powers instance, however, Obama did overrule OLC's views -- as delivered through an acting head. One can only wonder whether those views would have carried more weight had the office been given the benefit of a permanent leader these last two years.
Yesterday the Senate confirmed the nomination of Seitz, a superbly credentialed lawyer. Formerly a law clerk to U.S. Supreme Court Justice William J. Brennan, and a member of the Women's Bar Association, she becomes the 1st woman to head the office in a permanent capacity, and the 1st permanent head since 2004, when Jack Goldsmith, now a Harvard law professor, left.
Confirmation came not a moment too soon. Here's hoping Seitz can reclaim for OLC the governmental gravitas it once enjoyed.

Nomination stalled

Over the last year or so -- 358 days, to be exact -- we've posted periodically about the failure to bring to full Senate vote the nomination of our colleague Dawn Johnsen (left) to become head of the Office of Legal Counsel at the U.S. Department of Justice.

Dawn's eminently qualified for the post; indeed, she served as acting head during the Clinton Administration. She's a super lawyer and legal academic, and was a vocal opponent of OLC memoranda that sanctioned waterboarding and other post-9/11 interrogation practices. Her IntLawGrrls guest post concerned that very issue.

Now TPM's reporting that this round of her nomination is at an end, that the Senate sent back her nomination, "presumably" because Senators were "unable to achieve universal agreement" necessary by their rules to carry her nomination over to next year's legislative session. It's now up to President Barack Obama to decide whether to resubmit her name for the post.

Today we stop the nomination clock we've run in our righthand column for months, pending further word from the White House.

Day 250

Day 250 since IntLawGrrls guest/alumna Dawn Johnsen was tapped to be Assistant Attorney General in charge of the Justice Department's Office of Legal Counsel. Still no Senate floor vote on confirmation.

Check out the timer in our righthand column.

We're still counting.

Gitmo 'Grrls

(One in a series on Experts at Law)

As mentioned in our recent Read On! Review, a recurrent theme in IntLawGrrl Kristine A. Huskey's new book is, to quote her,

the fact that women are woefully scarce in national security law, my chosen field. I do not mean to convey that I am the only woman in this field, as there are many women writing, speaking about, and practicing nationalsecurity legal issues, specifically relating to Guantánamo ...

She continued:

[E]very one of these women will tell you that they, too, are often the only female speaker on these issues in a conference room or on a panel filled with men. The world can stand to have more women in fields that are traditionally filled by men.

(pp. iv-v) Kristine then proceeded "to name a few" of the Gitmo 'Grrls who jumped to mind. Her list is reproduced here, along with links to these women and some of their works:

► IntLawGrrl Beth Van Schaack, Santa Clara Law. Her IntLawGrrls posts are here; list of other publications is here.

► IntLawGrrl yours truly (thanks, Kristine!), University of California, Davis. My IntLawGrrls posts are here; list of other publications is here.

► Leila Nadya Sadat, Washington University. IntLawGrrls posts about her are here; publications list is here.

► Gitanjali S. Gutierrez, Center for Constitutional Rights, attorney for detainees. IntLawGrrls posts about her are here; her op-ed is here.

► Agnieszka M. Fryszman, partner at Cohen Milstein, attorney for detainees.

► Beth Gilson, attorney for detainees.

► H. Candace Gorman, attorney for detainees, whom the Chicago Tribune recently profiled. She runs 2 Gitmo blogs, here and here.

► Sylvia Royce, attorney for detainees.

► Sarah Havens, Allen & Avery, attorney for detainees.

► Becky Dick, attorney for detainees.

► Hina Shamsi, staff attorney at the National Security Project of the American Civil Liberties Union. Her ACLU blog posts are here.

► Maria LaHood, Center for Constitutional Rights.

► Opinio Juris' Deborah Pearlstein, Princeton University. IntLawGrrls posts about her are here; her OJ posts are here; her publications list is here.

► Karen J. Greenberg, New York University. IntLawGrrls posts about are her here; some publications are listed here; her newest Gitmo book is here.

► Suzanne Spaulding, Bingham Consulting Group and former Executive Director of the National Commission on Terrorism, among many other natsec posts. An op-ed by her is here.

► Kate Martin, Center for National Security Studies. Some of her publications are here.

► Sahar Aziz, formerly an associate at Cohen Milstein, now Senior Policy Advisor at Office for Civil Rights, U.S. Department of Homeland Security.

► Barbara Olshansky, attorney for detainees. Her books are here.

► Jennifer Daskal, formerly senior counterterrorism counsel at Human Rights Watch, now a Department of Justice attorney.

Recognition is due to many other women as well, of course. (Readers' nominations welcome!)

There are, for example, all the IntLawGrrls and guests/alumnae who have contributed posts in IntLawGrrls' "Guantánamo" series. In addition to Beth, Kristine, and I, they are Elena Baylis, Ursula Bentele, Fiona de Londras, Monica Hakimi, Lynne Henderson, Elizabeth L. Hillman, Dawn Johnsen, Michelle Leighton, Pamela Merchant, Naomi Norberg, Hari M. Osofsky, Jaya Ramji-Nogales, and Lucy Reed. Not to mention guests/alumnae Mary L. Dudziak, editor of this book, and Mary Ellen O'Connell, interviewed here, both with respect to post-9/11 issues. Or my University of California colleague Laurel E. Fletcher, co-author of this book, an empirical study of the fate of ex-detainees.

And there are also the women who shared a Quonset-like tent with Jen Daskal and me during the December '08 week that, as posted earlier, I spent observing Gitmo military commissions on behalf of the National Institute of Military Justice. (A fuller account of my visit begins at page 9 of this report, which also includes dispatches from Executive Director Michelle Lindo McCluer and other NIMJ'ers) These tentmates were: Jill Heine, Amnesty International; Stacy Sullivan, Human Rights Watch; and Devon Chaffee, Human Rights First. And don't get me started on the many women journalists I met at Gitmo, or on the women JAG lawyers whom I watched provide excellent representation of various detainees as detailed defense counsel.

Bottom line -- memo to media reps, conference organizers, anthology editors, etc.:

There are many, many women now working in the field of national security. We've given you the list; it's your job to get in touch. As we posted when a similar issue arose years ago, the key is not only having women "in" the supposedly nontraditional fields of law. It's also having them recognized as being there.

Breaking News...

President Obama announced two key nominations yesterday:

• Michael H. Posner: Assistant Secretary of State for Democracy, Human Rights, and Labor, Department of State
  
• Stephen J. Rapp: Ambassador at Large for War Crimes Issues, Department of State

The bios of both excellent candidates are below. Congrats! Let's hope these nominations are confirmed with more alacrity than some of the earlier posts (namely Dawn Johnsen and Harold Koh).
Michael Posner (below left) currently serves as the President of Human Rights First (formerly the Lawyers Committee for Human Rights) and has been at the forefront of the international human rights movement for more than 30 years. Posner has traveled to more than 50 countries in all regions of the world on behalf of Human Rights First and other organizations. He has worked to support human rights defenders in countries as diverse as Russia, Zimbabwe, Iran, Cuba, China, Uganda, Haiti, the Philippines, El Salvador and Egypt. He also has been actively involved in promoting the rights of refugees and displaced people, and has taken a leading role in promoting stronger industry standards to ensure fair labor conditions in global manufacturing supply chains. Posner is a frequent public commentator and his opinion essays have appeared in newspapers and magazines around the country. He also has testified dozens of times before the U.S. Congress on a wide range of human rights and refugee topics. Before joining Human Rights First, Posner was a lawyer with Sonnenschein, Nath & Rosenthal in Chicago. Posner lectured at Yale Law School from 1981 to 1984, and again in 2009. He has been a visiting lecturer at Columbia University Law School since 1984. A member of the California and Illinois Bars, as well as the Council on Foreign Relations, he received his J.D. from the University of California, Berkeley Law School (Boalt Hall) and a B.A. from the University of Michigan.
Stephen Rapp (below right) has served as Prosecutor of the Special Court for Sierra Leone since January 2007, leading the prosecutions of former Liberian President Charles Taylor and other persons alleged to bear the greatest responsibility for the atrocities committed during the civil war in Sierra Leone. From 2001 to 2007, Rapp served as Senior Trial Attorney and Chief of Prosecutions at the International Criminal Tribunal for Rwanda, personally heading the trial team that achieved convictions of the principals of RTLM radio and Kangura newspaper—the first in history for leaders of the mass media for the crime of Incitement to Commit Genocide. Previously, he was United States Attorney for the Northern District of Iowa from 1993 to 2001. Prior to his tenure as U.S. Attorney, he had worked as an attorney in private practice and had served as Staff Director of the U.S. Senate Judiciary Subcommittee on Juvenile Delinquency and as an elected member of the Iowa Legislature. He received his JD degree from Drake University and his BA from Harvard College.
Congrats to both!

1/2 a year & no vote

Our timer has reached the 180th day since our colleague Dawn Johnsen was nominated to become Assistant Attorney General in charge of the Office of Legal Counsel at the Department of Justice. A new Democratic Senator, presumptively a "Yes" vote, is a good thing; a couple who are ill and a couple more who say "No," not so good. We keep counting.

A count of a different sort

Sharp-eyed readers will note that we've moved to our righthand column the timer respecting the nomination of IntLawGrrls guest/alumna Dawn Johnsen to be Assistant Attorney General in charge of the Justice Department's Office of Legal Counsel.
Day 173. Still counting.

Counting on success

Rumors and commentary run rampant these days regarding President Barack Obama's nominations of our colleagues Dawn Johnsen (right) and Harold Hongju Koh (below left) and to become, respectively, the Assistant Attorney General in charge of the Justice Department's Office of Legal Counsel and the State Department's Legal Adviser.
► Last Wednesday, The Atlantic's Marc Ambinder said that Obama Press Secretary Robert Gibbs ruled out recess appointments for Koh or for Johnsen. Such appointments have been used in years past to put into office persons for whom an administration can't muster the necessary Senate votes. That should be a simple majority -- 50 votes plus, if needed, a tiebreaker vote by Vice President Joe Biden. But the word is that certain GOP Senators are blocking that procedure. Instead they're using a "hold" mechanism that requires Democrats to effect a "cloture." On the matter of cloture, which requires not 50 but 60 votes, Ambinder wrote of both Johnsen and Koh: "There simply aren't enough Democrats who will support either of them." (Not sure at all this is right. As for Johnsen, a couple Democrats are reportedly balking, but at least 1 Republican counterbalances. As for Koh, indications are that all Democrats and a handful of Republicans stand ready to vote "aye," if they'd only be permitted to vote.)
Ambinder's post endeavors to explain the roadblock by reference to the same claptrap about transnational-"ism" and reproductive rights defense that we IntLawGrrls have refuted here and here.
(Can anyone explain why these nominees' unequivocal opposition to torture works as a negative?)
► On Thursday, a story in The News Tribune of Tacoma, Washington, maintained that Johnsen's nomination to lead the top law office at Justice "is meeting stiff resistance in the Senate, stalled for a month by Republicans who say she's a polarizing figure because she aggressively criticized the Bush administration's legal rationale on torturing terrorism suspects and radical in her views on abortion rights." It quoted 2 Senators to this effect. Particularly perplexing: Texas' GOP Senator John Cornyn expressed shock that Johnsen "questioned whether the wartime paradigm that the president is the commander-in-chief was the appropriate framework of analysis for determining what the president's powers are during a time of war.'"
Quite obviously Cornyn has not read the GTMO briefs and jurisprudence that, combined with academic literature, show the position attributed to Johnsen to be shared by many in the mainstream of American law -- not to mention more than 1 Justice of the U.S. Supreme Court.
(Incidentally, when's an organization like the National Organization for Women -- better yet, the American Bar Association -- going to object to slurs like "'not qualified'" and lacks "'requisite seriousness'" (both slung by Cornyn) to describe a woman who's a constitutional law professor at a major law school, graduated Phi Beta Kappa and helped edit the Yale Law Journal, clerked for a federal appellate judge, practiced law with distinction, and already proved her mettle as the acting head of the Office she's now been tapped to lead?)
► On Friday, a Foreign Policy blog said that unnamed sources on Capitol Hill and elsewhere had said that "[a]ll State Department nominees are on hold" by action of Senator Jon Kyl (R-Arizona), reportedly "because he is not satisfied with the information he has been receiving from the administration on the progress of arms control negotiations with Russia." The post immediately backtracked by naming several State nominees who in fact were confirmed last week -- even more curiously, it makes no mention of Yale Law Dean Koh, slated to become State's top international lawyer upon confirmation.
► On Saturday, finally, a Think Progress post claimed that in an e-mail Senate Majority Leader Harry Reid "told Koh’s supporters that he will bring Koh’s nomination for a vote sometime in the next two weeks"; that is, that he will seek the cloture vote he's so far avoided calling.
Not a word in this last post about Johnsen.
Though much is murky in these posts, 1 thing remains clear: It is well past time for top officials in this new administration to step into the ring and fight for these stellar nominees. As our colleague Christopher Eisgruber pointed out this weekend, supporters of these 2 include top-tier conservative lawyers: for Johnsen, Pepperdine Law Professor Douglas Kmiec, who held the OLC job during the Reagan administration; for Koh, Kenneth Starr and Theodore Olson, respectively, the Solicitors General during the 1st and 2d Bush administrations.
In our own humble effort to prod Reid -- and Holder and Clinton and, indeed, Obama -- to do so, today IntLawGrrls launches the clocks above. The timers re-count just how long it's been since the nomination of each of our colleagues was announced
What you can do:
► Spread the word by sending this post to Facebook, Twitter, and other sites and friends, via the "Share This" link at the bottom of the post.
► Better still, contact Senators and demand a floor vote.

Here's hoping that we soon can send both timers to an early and happy retirement.

Job 1 for AG

This week U.S. Attorney General Eric Holder listed as "'probably my top priority'" getting Dawn Johnsen confirmed as Assistant Attorney General for the Office of Legal Counsel.
It's about time.
About time, that is, that a top Obama Administration official pushed publicly on this issue.
As we posted about this IntLawGrrls guest/alumna, Dawn (left) was named to head OLC, the branch of the Department of Justice responsible for giving advice on the gamut of legal issues the Executive Branch confronts, 'way back on January 5th. (photo credit) That was more than 2 weeks before President Barack Obama's inauguration, and a day before the swearing-in of the new Congress. But the upper chamber of that Congress has moved at the pace of a recalcitrant snail since then. The Senate Judiciary Committee voted favorably on the nomination, but on a narrow vote of 11 Democrats to 7 Republicans, with then-Republican Arlen Specter of Pennsylvania then abstaining. Since then, nothing -- or rather, as Legal Times' blog reports,"since then Democrats have been trying to cobble together a 60-vote bloc to end debate on her nomination in the full Senate."
That's proved a challenge -- far more than it ought to be for Dawn, whose record as an attorney and law professor is, put simply, stellar. Singing her praises is a spectrum of former Justice Department lawyers that's broad enough to include Reagan-era OLC head Doug Kmiec and his Clinton-era counterpart, Walter Dellinger. The Washington Post endorsed her.
Against her? Specter and Ben Nelson, Democrat from Nebraska, plus, according to Legal Times' blog, "Republicans, foremost among them Sen. John Cornyn (R-Texas)." (A GOP exception: Dawn's won the support of Richard Lugar, senior Senator from Indiana.)
Complaints remain those identified before:
►As legal counsel for the National Abortion Rights Action League, Dawn vigorously represented her client, and so litigated against encroachments on the law of the U.S. Constitution as set forth by the U.S. Supreme Court in Roe v. Wade (1973); and
►As a law professor and former acting head of OLC, Dawn spoke and wrote against the so-called "torture memos," the Bush-era OLC opinions that professed to give legal cover for post-9/11 detention and interrogation practices and policies.
By no means does either of these points constitute a basis for withholding confirmation.
Here's hoping that Holder -- who told a Senate appropriations subcommittee that OLC "is being run by capable layers but required the 'solidity and continuity' supplied by a Senate-confirmed assistant attorney general" -- will keep the pro-Johnsen pressure on.

And in other nominations news ...

President Barack Obama's nomination (prior post) of Dawn Johnsen (left) to become the Assistant Attorney General in charge of the Office of Legal Counsel, U.S. Department of Justice, is now before the U.S. Senate following a favorable vote last week in the Judiciary Committee. But the tally was close -- 11 to 7 -- and SCOTUSblog predicts "a lengthy and contentious floor debate" in the full Senate. Issues Republicans have raised about this Indiana Law professor, an IntLawGrrls' guest/alumna? According to SCOTUSblog:
►"[S]he has served as legal counsel for NARAL, a pro-choice reproductive rights political group," and
►"She has strongly criticized the Bush administration’s OLC legal memorandums and positions on executive power," going so far "[d]uring her nomination hearing" as to "explicitly cal[l] waterboarding a method of torture when asked by Sen. Dianne Feinstein (D-Calif.)."
'Nuff said.
Meanwhile, another Obama nominee about whom we've posted, former Harvard Law Dean Elena Kagan, was presented sworn to the Supreme Court yesterday, having been sworn in as Solicitor General of the United States, the government's chief advocate before the Court, on Friday. Kagan (left) is the 1st woman to hold her post -- as would be Johnsen if confirmed.

Our guest alumna's tapped for OLC...

Kudos to our guest alumna, Dawn Johnsen (left), whom President-Elect Barack Obama's just nominated to restore the Department of Justice office notorious in recent years for having produced the "torture memos" and another memo condoning rendition of persons from Iraq to other countries. As Assistant Attorney General for the Office of Legal Counsel, Dawn will head a team of lawyers charged with giving the President and others in the Executive Branch on any number of issues.

A law professor at Indiana University-Bloomington and the former Legal Director of the National Abortion Rights Action League, Dawn's no stranger to OLC: she was its Acting Assistant Attorney General from 1997-1998 and Deputy Assistant Attorney General from 1993-1996, U.S. Department of Justice Office of Legal Counsel, Washington, D.C. And she's been a fierce critic of what happened to OLC in this last administration, having coauthored Principles to Guide OLC as a response to disclosure of the torture memos.

Her IntLawGrrls' guest post, published last February, took on the questions of whether to "prosecute the waterboarders," and how to reform OLC. (The full string of IntLawGrrls posts by or about Dawn may be found here.)

Heartfelt congratulations, Dawn!

...and Elena Kagan's to be the new SG

More kudos: President Elect-Barack Obama has just nominated Harvard Law Dean Elena Kagan to be the lead government lawyer before the U.S. Supreme Court.
Kagan, who would be the 1st woman Solicitor General of the United States, was a law clerk to Justice Thurgood Marshall, himself the 1st African-American person to serve as SG.
IntLawGrrls mentioned Kagan this summer, in a post on the annual meeting of the American Constitution Society that also mentioned our guest alumna Dawn Johnsen, who, as described above, has just been named to head the Office of Legal Counsel. In that post we wrote:

Of some concern, though, were comments at a Friday morning panel entitled 'What's At Stake: Law and Justice Policies in a New Administration.' There participants shrank from a suggestion by the moderator, Harvard Law Dean Elena Kagan, that criminal investigation might receive even fleeting contemplation by the new President, who will have the task of making an accounting of official abuse post-9/11. ...

Among her 1st tasks upon confirmation relates to the post-9/11 legal landscape: it is, as detailed in this New York Times article , to prepare and file the government's briefs in the case of Ali Saleh Kahlah al-Marri, the only person designated an "enemy combatant" who is still in Stateside detention.

Heartfelt congratulations, Elena!

Guest Blogger: Jeannine Bell

It's IntLawGrrls' great pleasure today to welcome guest blogger Jeannine Bell (left).
Jeannine is Professor of Law and Charles Whistler Faculty Fellow at Indiana University School of Law in Bloomington. (As blogreaders know, the law school also is the home institution of IntLawGrrl Christiana Ochoa and guests/alumnae Hannah Buxbaum and Dawn Johnsen.)

After earning her A.B. degree in government from Harvard College, Jeannine earned a J.D., as well as an M.A. and Ph.D. in Political Science, from the University of Michigan. At Indiana she teaches Criminal Procedure, Property, and seminars on the First Amendment and Law and Society. She's active in the Law and Society Association (about which IntLawGrrls also posts today): in addition to having served on the LSA board and chaired several LSA committees, she's an associate editor of the Law and Society Review. Her publications, which have focused on matters of criminal justice, include Policing Hatred (2004), Police and Police and Policing Law (2006), and, with Martha S. Feldman and Michele Berger, Gaining Access (2003). In her guest post below, Jeannine describes her article on torture, which grew out of questions that arose when she served as a member of a political science special task force on terror and political conflict.

Jeannine would like to dedicate her post to a woman about whom IntLawGrrls has posted before: the activist Fannie Lou Hamer (1917-1977, in the foreground of the photo below). Jeannine writes: "Though largely known for her work on behalf of civil rights in Mississippi, Hamer was also an outspoken critic of the war in Vietnam. Rather that just fighting for the rights of Blacks from Mississippi, Hamer used her voice to call attention to injustice outside the U.S. Her fearlessness, courage, and refusal to accept the place to which society relegated her is truly inspiring." Today Hamer joins the list of IntLawGrrls' transnational foremothers, just below the "visiting from..." map in the righthand column.

Heartfelt welcome!

Opening elections, closing ranks

We fear aliens and disenfranchise nuns.

Thus did Stanford Law Professor Pamela S. Karlan (right) sum up her criticism of laws that block the right to vote.
Karlan took part in a superb panel at this weekend's annual convention of the American Constitution Society. Though founded just 7 years ago, ACS has created a national forum for liberal lawyers and law students. (That's due in no small part to the hard work of folks like Executive Director Lisa Brown (below right); director Dawn Johnsen, an IntLawGrrls guest alumna; and director Patricia Wald (left), formerly Chief Judge of the U.S. Court of Appeals for the District of Columbia and a Judge of the International Criminal Tribunal for the former Yugoslavia, and the honoree at ACS' end-of-meeting banquet.) ACS thus provides a counterweight to the Federalist Society, which in the last quarter-century has succeeded in pushing a conservative agenda to the frontline of legal developments in the United States.
ACS' mission was well served by the voting panel. Ron Klain, who led Al Gore's recount bid in 2000, urged every one of the hundreds of lawyers and law students in the audience to do his or her part by volunteering as an election protection worker or election judge for November's general election. Joe Trippi, a presidential campaign aide to Howard Dean in 2004 and John Edwards in 2008, added a global perspective by urging all to go to the Friends of Zimbabwe website and donate toward election protection in that troubled country, which faces a presidential runoff on June 27.
In a word, inspiring.
Of some concern, though, were comments at a Friday morning panel entitled "What's At Stake: Law and Justice Policies in a New Administration." There participants shrank from a suggestion by the moderator, Harvard Law Dean Elena Kagan (below left), that criminal investigation might receive even fleeting contemplation by the new President, who will have the task of making an accounting of official abuse post-9/11.
Now, no one would have expected panelists to sound a clarion call for prosecution. Nor is such a call appropriate at this time. It is likely that resort to the criminal system will prove ill-advised and/or impossible. In any event, consideration of the question must await the new administration's analysis of documents, secret as well as public, in order to find out what in fact happened these last 7 years. By that same reasoning, however, it seems equally premature to close ranks against any single avenue for accountability even before the facts are known.

Courage in our Convictions

Eagle-eyed blogreaders will notice that a couple of my recent posts (here, and today, here) have been cross-posted at Convictions, the just-launched legal blog at Slate, the online magazine owned by Washington Post.Newsweek Interactive Co. Convictions is self-described as

Slate's blogging destination for smart legal conversation and commentary. Law plays an increasingly important role in American public and private life, defining the myriad ways we interact, transact, relate and dispute with each other. We hope that, by sharing their own convictions on this blog, our contributors will help inform and shape the American conversation about law.

My co-contributors, I'm pleased to announce, include a number of women featured here in the course of this past year:

► IntLawGrrl guest/alumna Dawn Johnsen, Professor of Law and Ira C. Batman Faculty Fellow, Indiana University School of Law, Bloomington. Formerly Acting Assistant Attorney General for the Office of Legal Counsel at the U.S. Department of Justice, Dawn guest-posted last month on the question of investigating CIA waterboarding.

► Rosa Brooks, Professor of Law, Georgetown University Law Center, Washington, D.C., a number of whose Los Angeles Times columns we've featured.

► Dahlia Lithwick, Slate senior editor and legal writer, on whose work we've also posted.

Other women (we make up a third of the Convictions roster; not bad for the outside-the-pink-zone):

► Emily Bazelon, Slate senior editor, with a focus on health, law, and family.

► Judge Nancy Gertner, U.S. District Court, Boston, Massachusetts, who teaches at Yale Law School and practiced in Boston before joining the bench in 1993.

► Deborah Pearlstein, Visiting Scholar, Princeton University's Law and Public Affairs Program. She was the founding director of Human Rights First's Law and Security Program and a speechwriter in the White House of former U.S. President Bill Clinton.

For details on blog organizer Phillip Carter and our other distinguished male colleagues at Convictions, click here.

Guest Blogger: Dawn Johnsen

It’s IntLawGrrls’ great pleasure to welcome as a guest blogger today our colleague Dawn Johnsen (left), Professor of Law and Ira C. Batman Faculty Fellow at the University of Indiana, Bloomington, School of Law. A scholar of the constitutional law of the United States, Dawn’s accomplishments include service as the Legal Director of the National Abortion & Reproductive Rights Action League from 1988 to 1993. Just before joining academia, she spent several years as an attorney in the Office of Legal Counsel of the U.S. Department of Justice, serving as its Acting Assistant Attorney General in 1997 and 1998. At OLC she was responsible for advising the United States’ Attorney General and White House Counsel, as well as the general counsels of all U.S. executive departments and agencies. Her experience gives her special expertise to write, as she does below in her guest post about how the Department of Justice should go about investigating the United States’ post-9/11 use of waterboarding as a tool of interrogation.
Heartfelt welcome!

On investigation of post-9/11 waterboarding

With this guest post I'd like to weigh in with a few thoughts on "A Dissenting View on Prosecuting the Waterboarders." In that post over at the Balkinization blog, Georgetown's Marty Lederman wrote that although he was "horrified by what DOJ approved and what the CIA has done" – that is, the subjection of so-called high-value detainees to simulated suffocation in the course of interrogation – he does not "find it so surprising, or objectionable, that DOJ would not think of prosecuting the CIA operatives and contractors, even though" Marty's been a leading critic of "the DOJ legal advice underlying the CIA's interrogation practices."
I too have been a critic of that advice, for example, in the article available here and as a drafter and signatory to the Principles to Guide the Office of Legal Counsel endorsed in that article. As does Marty's, my criticism stems from my own experience as an attorney at the Office of Legal Counsel (OLC) of the Department of Justice (DOJ). From 1993-96 I served as a deputy there, and from 1997-98 I was OLC's Acting Assistant Attorney General, as Diane Marie Amann's described in her introductory post above.
Here's why I support Marty's position:
First, to be clear, of course current Attorney General Michael Mukasey – and more likely to the point, the next AG -- should investigate what happened. OLC misinterpreted the law in a way that led to torture. No question that demands investigation!
The question is how should that investigation be framed; and today, how should members of Congress and concerned observers describe the investigation they want Mukasey to undertake.
I believe that focusing on the criminal culpability of the career guy who engaged in waterboarding/torture in reliance on the horrific legal advice is the wrong way to go. It diverts attention from where culpability truly lies. Furthermore, at this point it seems very unlikely the facts could support such a prosecution, so it would be wrong for the AG to suggest otherwise. Again, though, there absolutely should be an investigation (so Mukasey is wrong to the extent he says no to that). It is conceivable that such an investigation would uncover facts that could support a prosecution, but that is not true of what we know today. If the investigation uncovers unexpected evidence that would support a prosecution, that of course should be pursued, but it seems irresponsibly premature at this point to say that is the point of the investigation.
For decades prior to this administration, OLC legal opinions were treated by the executive branch as authoritative unless overruled by the AG or the President. During the Clinton administration it's how we understood the office (and how we consistently described the status of our legal opinions). It is how the former heads and deputies from OLC – from the Carter, Reagan and first Bush administrations – and many others, from within and outside the Executive Branch, described the office to me when, as a member of the transition team, I interviewed them just prior to Bill Clinton's taking office.
Based on all reports I've seen, the current administration continued to assert that status for OLC opinions, specifically in the face of internal objections to OLC advice on interrogation (though we now can say that wasn't appropriate given the changed role/interpretive stance of the office). Far from overruling OLC's advice, those in the Bush White House endorsed OLC's legal conclusions. Thus it is very hard, I think, to say, given all of this, that early in the Bush administration, in the wake of 9/11, when the waterboarding actually occurred, that it was unreasonable for CIA career employees to rely on what OLC and the White House instructed that the law permitted. Again, it is conceivable an investigation might turn up unexpected facts that could support a prosecution. In addition, today, and in recent years, would be a very different question, given the subsequent legislation and also all the attention to the fact OLC has not been fulfilling its traditional role, at least with regard to counterrorism issues.
I don't agree with those who suggest that it's only for the jury, and not for the prosecutor, to decide whether the reliance by those careerists was reasonable. Surely the AG shouldn't proceed with a prosecution where OLC, with the support of the White House, directed a government employee to do something and the AG continues to believe that reliance was reasonable.
Going forward, we can and should think about whether the role of OLC should be different, given our experience with this administration destroying that office. In fact, not only is that inquiry possible, it is inevitable, because the role of OLC already has been transformed – so if we want to return to the traditional role, that will require change. The 10 "Principles to Guide OLC" was one attempt by some of us to address that question, in the wake of the disclosure in 2004 of the Torture Opinion. Admittedly we took a relatively conservative approach, no doubt in part because we all were OLC alums who believed things worked quite well when we were there.
The point now, of course, is to figure out whether we can make institutional changes to increase the likelihood things work properly under the worst of conditions (though sometimes you can't – or shouldn't – design institutions tailored to the most abusive of administrations; you may need to rely at least in part on other checks). We should consider a range of possibilities. But I would caution against assuming that a radical change in the traditional, pre-Bush role of OLC is what we need. Perhaps it is, but I'm not yet sure there is a better approach to providing the President with the best legal advice than working to institutionalize standards and processes that build on and strengthen the traditional model. I would love to hear reactions and alternative suggestions.