ACSBlog: The Blog of the American Constitution Society

Dawn Johnsen, a member of ACS' Board of Directors and former head of the Office of Legal Counsel, shares her reaction to the newly released John Yoo OLC memorandum. She writes:

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.

She dismantles John Yoo's assertion that the memo's legal reasoning was "boilerplate." Professor Johnsen writes:

John Yoo, the memo's author, has the gall to continue to defend the legal reasoning in this memo, in the face even of Bush administration OLC head Jack Goldsmith's harsh criticism--and withdrawal--of the memo.  Not only that, Yoo attempts to spin the memo's advice on presidential power as "near boilerplate:"  "Far from inventing some novel interpretations of the Constitution, our legal advice to the President, in fact, was near boilerplate."

I served at OLC for 5 years, including in the very position Yoo held and then later as its head (as acting assistant attorney general from 1997-98) and I have studied OLC and presidential power for the 10 years since.  I know (many of us know) Yoo's statement to be false.  And not merely false, but irresponsibly and dangerously false in a way that impugns OLC's integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law. 

Far from "near boilerplate," recall that the last President who took the view that "when the President does it that means that it is not illegal" was forced to resign in disgrace.

Professor Johnsen has participated in an ACS panel discussion on principles to guide the next Department of Justice, written an ACS Issue Brief on how to avoid another "torture opinion" debacle, and signed a white paper on principles to guide the Office of Legal Counsel.