Lawyers who can say no

From Jacob Sullum's report in The Washington Times:

The administration's legal positions portrayed a country perpetually at war with a shadowy enemy, a struggle in which the whole world was the battlefield, anyone could be a combatant, and illegal measures were not only permissible but mandatory. In light of this ongoing emergency, Mr. Bush's supporters implicitly argued, the checks and balances required by the Constitution were an unaffordable luxury.

Congress and the Supreme Court rejected key aspects of this perspective, but going forward much will depend on how Mr. Obama and his advisers understand the president's powers. As Indiana University law professor Dawn Johnsen notes in a 2007 University of California-Los Angeles Law Review article, interbranch rivalry must be supplemented by "internal legal constraints on executive power" because there are limits to the limits that judges and legislators can impose.

Now Ms. Johnsen, Mr. Obama's nominee to head the Office of Legal Counsel, will have a chance to implement her vision of an OLC that is "prepared to say no to the president." Ms. Johnsen, who served in the office for five years under President Clinton, including two years as its acting head, emphasizes that OLC attorneys should view themselves not as the president's advocates, twisting the law to fit his preferred policies, but as intellectually honest advisers, offering guidance based on their "best understanding of what the law requires."

Ms. Johnsen has not been shy about criticizing Mr. Bush. She has condemned his "extreme view of expansive presidential authority during times of war and national emergency," his promiscuous use of signing statements reserving the right to disregard the law, his "arrogant disrespect for legal constraints and for the coordinate branches' constitutional authorities," and his excessive secrecy, which makes it difficult to know when and why the president is breaking the law.

Ms. Johnsen's critique cannot plausibly be dismissed as partisan sniping. The Bush administration's abuses of executive power were flagrant enough to draw criticism not only from Democrats but also from many conservatives and libertarians who were inclined to favor Republicans or supported neither major party. Even within the Bush administration, Ms. Johnsen notes, dissidents such as former OLC chief Jack Goldsmith and former Deputy Attorney General James Comey drew the line at policies they believed were clearly illegal.