Hearing of Senate Judiciary Committee: Nomination of Dawn Johnsen

Statement

Mr. Chairman, nearly a year ago, this Committee first considered Dawn Johnsen's nomination to head the Office of Legal Counsel.

At that time, I explained that I was voting against Ms. Johnsen's nomination for largely the same reasons that I voted against Eric Holder's nomination to be Attorney General.

Specifically, I feared that they both failed to appreciate the threat of terrorism, and tended to make decisions based on ideology and politics rather than the best interests of the American people and the law.

Events since that time have increased my fears, and reenforced my opposition to Dawn Johnsen's nomination.

In his first 13 months as Attorney General, Eric Holder has repeatedly ratified my fears of political and ideological decisions that leave America less safe.

He declassified and publicly released top-secret OLC memos pertaining to interrogation methods and procedures.

Because of this decision, our enemies now know--and can prepare for--CIA enhanced interrogation methods, should we ever choose to use them again. Our enemies also know the careful, humane limits that America puts on that interrogation.

Holder appointed a federal Prosecutor to investigate CIA interrogators. This can only have a chilling effect on the front-line agents who are protecting us from terrorism.

It was Holder's misguided decision to bring Khalid Sheikh Mohammed and several other 9/11 co-conspirators to New York for trial in our civilian courts.

In testimony before this Committee, Holder made it clear that he made the decision to bring these terrorists to America based on nothing more than his ideological predispositions, without any meaningful analysis of the logistical, legal, and national security questions presented.

Holder could not even recall whether he had consulted the Secretary of Defense before making this decision, and we now know that he did not consult the Secretary of Homeland Security.

Holder was unsure whether there was any precedent for giving domestic civilian trials to wartime enemy combatants captured on a foreign battlefield. For the record, as Sen. Graham pointed out, there isn't any precedent.

Nor had Holder, or apparently anyone in the Justice Department, researched what immigration status the terrorists would have if they were acquitted, or whether they would be eligible to apply for asylum, or what the consequences of an acquittal or dismissal could be.

Most recently, Attorney General Holder ordered FBI agents to mirandize Umar Farouk Abdulmutallab (the so-called "Christmas Day bomber") rather than take him into military custody for interrogation.

We will never know how much actionable intelligence was squandered by that decision.

All of these decisions reflect an ideological predisposition toward the pre-9/11, law-enforcement model for fighting terrorism.

Dawn Johnsen's record demonstrates to me that she will facilitate, rather than moderate, this dangerous predisposition.

The Office of Legal Counsel should be a defender of the law and a strong Executive Branch, not an ideological echo chamber or political enabler for the Attorney General. I fear Ms. Johnsen will be just that--an enabler for the Attorney General's misguided policies.

For example, in an answer to a question posed by Senator Specter, Ms. Johnsen explained, and I quote, that "it might be a wise choice not to use [] language [that includes the word "war'] when talking about constitutional questions related to the new national security threats we face, because war has a long history of specialized constitutional meaning."

There could hardly be a clearer endorsement of the Holder, pre-9/11, law-enforcement model to fighting terrorism.

Only if you deny that we are at war with Al Qaeda does it begin to make sense to vest Al Qaeda terrorists with civil rights, give them lawyers, and give them civilian trials in the United States.

Perhaps most disturbing, for a nominee to head an office dedicated to giving objective legal advice to the Executive Branch, is Ms. Johnsen's record of intemperate partisanship and ideological rhetoric.

For example, Ms. Johnsen's views on the constitutional status of Presidential signing statements appears to depend on the party of the President in the White House.

There was no greater critic of Bush Administration signing statements than Dawn Johnsen, despite that, when she herself served there, the OLC counseled President Clinton that he could use signing statements to avoid certain provisions of laws passed by the Republican Congress.

And her frequent resort to partisan, ad hominem attacks is disconcerting for a nominee to a position whose role is to provide objective advice based on law and reason.

For instance, Ms. Johnsen did not merely argue against an Indiana Voter ID law, she insisted that the law was "indefensible" and accused her opponents of bad faith and "not really [] want[ing] certain kinds of people to vote."

These nasty, partisan accusations came even though the Supreme Court ultimately upheld Indiana's law in a 6-3 opinion written by the Court's leading liberal, John Paul Stevens.

This record of partisanship indicates, to me, that Ms. Johnsen may use OLC to give legal cover to the ideological commitments that she shares with Attorney General Holder, rather than to provide objective legal advice.

We cannot afford an Office of Legal Counsel that is a partisan, ideological, rubber stamp for the Attorney General's predisposition to treat terrorists as common criminals.

Based on the past year, we know that if Dawn Johnsen is confirmed to the Office of Legal Counsel, she will be presented with difficult and sensitive questions regarding our handling of captured terrorists.

Because American lives could depend on Dawn Johnsen's views of the legal questions that have arisen since her last hearing, this Committee should not approve her nomination without a serious discussion of her views on these questions.

In light of the Department of Justice's recent decisions, there are many questions that this side has for Ms. Johnsen.

For example, whether or not she believes it was appropriate for federal authorities to place the Christmas Day bomber in military custody or whether the civilian criminal system is the only legal route.

And, now, whether she believes that the government can take Abdulmutallab out of civilian criminal custody and place him into military custody for interrogation and military prosecution.

Also, I'd like to know whether Ms. Johnsen believes that current law allows the government to indefinitely detain KSM or any other terrorist detainee if his civilian criminal prosecution ends in an acquittal or some other result adverse to the government.

These are critical questions and scenarios that have arisen since Ms. Johnsen was before this Committee early last year.

These are very urgent, very real, non-hypothetical questions that she may be called upon to answer as head of OLC.

I worry, given her past statements and positions, that Ms. Johnsen will use her post at OLC to rubber stamp the Attorney General's ideological decision-making and unduly constrain the Commander-in-Chief's power during wartime.

That's something this nation cannot afford.

In discussing Ms. Johnsen's troubling record as an advocate for a limited approach to fighting terrorism, the Wall Street Journal editorial board wrote last year, when she was first nominated, that:

* If President Obama matures under the burden and accountability of stopping the next terror attack, he may come to regret having Dawn Johnsen around.

The President's decision to renominate Dawn Johnsen is a disturbing sign that this Administration has not developed a mature and full understanding of its responsibility to fight terrorism.

When Ms. Johnsen's nomination lapsed at the end of the last Session of Congress, the President had an opportunity to hit the reset button on Department of Justice policy.

The President could have gone in a different direction, and nominated a lawyer who understands that we are at war with terrorists.

Instead, the President's renomination of Dawn Johnsen amounts to an endorsement of the Holder Justice Department's record of treating terrorists as common criminals.

That is an endorsement that I cannot join, so I will oppose this nomination.

I think it is likely that, like last year, Ms. Johnsen will pass out of this Committee on a party-line vote.

But it appears that, even last year, the Democrats did not have the votes to confirm her nomination in the Senate as a whole--or else she would have been confirmed.

So I am hopeful that once again a party-line vote in this Committee will not indicate unanimity in the larger Democratic caucus--especially in light of the misguided Justice Department policies of the last year.

Source