Nominee to Head OLC Called Torture Memo ‘Shockingly Flawed’

President-elect Obama’s choice to head the Justice Department’s Office of Legal Counsel has been a vocal critic of the Bush administration’s terrorism policies and the legal opinions that authorized them.

The nominee, Indiana University law professor Dawn Johnsen, has called one OLC memo authorizing harsh interrogations of terrorism suspects “shockingly flawed” and driven by “bogus constitutional arguments.”

Johnsen is one of four Justice Department nominees announced yesterday. Another nominee is Harvard law dean Elena Kagan, chosen to be solicitor general. The Wall Street Journal (sub. req.) describes the picks as a “liberal lineup” while the New York Times says the choices suggest “a strong effort to stake out a new direction” from Bush administration policies.

Working with former lawyers from the OLC, Johnsen has developed a set of principles to reform the office, the Wall Street Journal article says. They include a preference to publish its legal opinions.

Johnsen criticized the OLC’s so-called torture memo in a Slate's blog Convictions last April.

“Where is the outrage, the public outcry?!” she wrote. “The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it—all demand our outrage. … We must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power.”

Johnsen also wrote a critical August 2007 article in the UCLA Law Review (PDF) that said the OLC should “provide accurate and honest legal appraisals, unbiased by policymakers’ preferred outcomes,” the Washington Independent reports. Legal advice from lawyers in the executive branch can be an important component in preserving civil liberties, she wrote.