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December 2008


How to Become a Bounty Hunter

Controversial Office of Legal Counsel Will Undergo Heavy Scrutiny Under Obama Regime

By Mary Jacoby
WASHINGTON — The famously leak-proof Barack Obama operation hasn’t said much about its plans for the Justice Department. But one thing’s clear: the controversial Office of Legal Counsel notorious for issuing what critics dubbed the “Torture Opinion” —  the sanctioning of extreme interrogation techniques  — is going to come under some heavy scrutiny in the new administration.
Several members of Obama’s DOJ transition review team have been vocal critics of what they’ve called the Bush administration refusal to abide by the rule of law in national security cases.
They include Dawn Johnsen, a law professor at Indiana University who serves as a DOJ transition team “leader,” and Martin Lederman and Christopher Schroeder, also law professors and members of the DOJ review team.
Moreover, Obama’s pick for the influential post of White House staff secretary is Lisa Brown, former executive director of the American Constitution Society for Law and Policy, a liberal-leaning advocacy group that was active in the debate against torture.

The once-obscure Office of Legal Counsel became a flash-point in the public debate over torture when, in 2004, an anonymous insider leaked its confidential legal opinion sanctioning the government’s use of extreme interrogation techniques in terrorism investigations. The DOJ office reviews government policies for legal and constitutional compliance.

Some liberal bloggers and advocacy groups have called for prosecution of government officials involved in torture and other controversial policies, such as warrantless wiretapping.

Outgoing Attorney General Michael Mukasey shot back in a Nov. 20 speech before the conservative Federalist Society in Washington.

Mukasey denounced the critics’ “smug sense of outrage.” He said he found “no evidence that these DOJ attorneys provided anything other than their best judgment of what the law required” when advising CIA officials on interrogation techniques.

Well, it seems the Obama team has other thoughts.

Johnsen, a former Deputy Assistant Attorney General in the Clinton administration, wrote a paper in 2007 called “All the President’s Lawyers: How to Avoid another ‘Torture Opinon’ Debacle.”

In the paper, Johnsen said the Bush administration “has engaged in years of largely unconstrained illegal practices,” and called for more transparency at the Office of Legal Counsel and a return to constitutional principles over “advocacy.”

Lederman, a Georgetown law professor, and Schroeder, a law professor at Duke, have also been outspoken critics of what they call Bush-era legal abuses. (See Schroeder’s June testimony before a House Judiciary subcommittee and Lederman’s 2007 interview.

Johnsen, Brown, Lederman, Schroeder and another Obama DOJ transition team member, Harvard law professor David J. Barron, were all signatories to a 2004 paper called “Principles to Guide the Office of Legal Counsel,” issued after the Torture Opinion became public.

The paper offered ways the DOJ could return to its “profound tradition of respect for the rule of law.”

The composition of the DOJ transition team is important. Not only are its members writing a blue print for new policies at Justice, but some of them are likely to end up in key positions at DOJ.

Once the Obama team gets access to the files, it’s likely other, still secret, opinions issued by Office of Legal counsel during the war on terror will come to light.

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