Earlier this week, a bi-partisan group of 70 legal scholars lobbied Sen. Richard Lugar (R-Ind.) to support the nomination of his constituent, Dawn Johnsen, to head the Justice Department's Office of Legal Counsel (OLC). Lugar has since announced his support for Johnsen, a former ACS board member. According to Politico, Lugar's defection from those threatening to block Johnsen's nomination all but guarantees that the threats will prove toothless.
President Barack Obama has drawn praise for transparency reforms during his first 100 days in office, but his use of the "state secrets" privilege to squash lawsuits on torture and surveillance is drawing mounting opposition.
On Tuesday, the Ninth Circuit Court of Appeals rejected the Justice Department's attempt to use the state secrets privilege to shut down an ACLU case challenging government rendition. As the Washington Independent reports, the Ninth Circuit reversed a lower court and reinstated a case challenging alleged rendition by CIA contractors (in Mohamed v. Jeppesen Dataplan). The Ninth Circuit held that the government's secrecy claim was so broad, it would shut down legal oversight and accountability for the entire CIA and its associates:
At base, the government argues here that state secrets form the subject matter of a lawsuit and  require dismissal any time a complaint contains allegations [which themselves have] been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it "involves ‘allegations' about [secret] conduct by the CIA."
This sweeping characterization ... has no logical limit-it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.
The Ninth Circuit rejected that approach, it explained, not only because it was "unsupported" by case law, but because it "forces an unnecessary" face-off between the judiciary's duty to uphold the law and the executive's duty to protect national security. (PDF of opinion here)
While federal judges usually have the last word on these issues, they are not the only ones expressing skepticism at Obama's expansive use of the privilege.
Seventy scholars recently called for the Senate to confirm Dawn Johnsen (left) as head the Office of Legal Counsel (OLC). Despite having the Judiciary Committee forward her nomination to the full senate by a vote of 11-7, Johnsen's nomination has not yet been scheduled for a vote. While aides say there is no formal hold on Johnsen's nomination, Majority Leader Harry Reid (D-Nev.) has not yet scheduled a vote. "She is extremely well qualified and deserves to be confirmed as quickly as possible for this important post," according to a spokesperson for Sen. Reid.
Douglas W. Kmiec, a law professor at Pepperdine University and former head of the Office of Legal Counsel (OLC) under Presidents Ronald Reagan and George H.W. Bush, says opposition to President Obama’s nominee to head the OLC is unjustified.
In an article, “Let Dawn Do It,” for Legal Times, Kmiec writes that Dawn Johnsen, an Indiana University law professor and former OLC deputy has “a uniquely well-informed understanding of the OLC’s role as honest broker.” The OLC, as Kmiec writes, is a “vital internal check upon executive overreaching,” by providing sound legal advice on policy.
Johnsen, a former member of the ACS Board of Directors and frequent critic of some of the legal advice that the OLC offered President George W. Bush, should be confirmed by the Senate, Kmiec maintains. He writes: