ACS is pleased to release an issue brief by Dawn Johnsen, Professor of Law at the Indiana University School of Law--Bloomington, entitled, All the President's Lawyers: How to Avoid Another "Torture Opinion" Debacle. The brief is available here.
Professor Johnsen examines the inadequacy of external checks on presidential powers, particularly as exercised in a time of war or national emergency. More specifically, she outlines the executive branch legal memoranda severely limiting the definition of torture.
Johnsen argues that the danger is not only whether Congress and the courts are maintaining a check on the executive branch, but whether the Office of Legal Counsel (OLC) within the executive branch is acting properly to fulfill its credo of “faithfully executing” the laws to which the President is bound.
She explores key recommendations from nineteen OLC alumni who co-authored a statement of ten principles to guide the formulation of legal advice regarding contemplated executive action. This statement, issued in December, 2004 and entitled “Principles to Guide the Office of Legal Counsel,” affirmatively describes how the OLC should function. Johnsen also notes that a “President’s attitude toward the rule of law ultimately will go a long way toward setting the tone for the Administration,” and calls for a congressionally-led discussion of the role of the President’s lawyers.