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Editorial: The New Day At DOJ

Obama legal nominees have excellent First Amendment creds

Editorial: The New Day At DOJ

PORN VALLEY - The Bush administration was an unmitigated disaster; everyone with half a brain knows it. Between incompetence and/or corruption at nearly every federal agency, it's amazing the country survived eight years of Republican rule. (And actually, considering the condition of the economy, all the returns aren't in yet on that "survived" thing.)

So whether it's Secretary of the Interior Dirk Kempthorne, who spent over a quarter of a million dollars to renovate his office bathroom, allowing officials in his department to accept tens of thousands of dollars in gifts (not to mention free coke and pot) from oil and gas companies they were supposed to oversee, or Michael Brown, the Arabian Horse Association commissioner tapped to run (into the ground) the Federal Emergency Management Agency, it's only what we expect from these supporters of privatizing government.

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But the biggest threat to the United States, and in particular, to the First Amendment, had been Bush's legal appointments, so it's worth taking a look back at those - and a look forward to the nominees President Obama has picked to replace them.

Of course, we know that Attorney Generals John Ashcroft, Alberto Gonzales and Michael Mukasey couldn't possibly hold a candle to Obama's selection for AG, Eric Holder. Just the mere utterance of the words, "Waterboarding is torture" at his confirmation hearing put Holder head and shoulders above Bush's sycophants. There have been legitimate questions raised about his memo to U.S. Attorneys in 1998 suggesting that they prosecute more "obscenity," though several First Amendment attorneys now feel that he may have been pressured to take that position, and that he does not believe in it.

Similarly, David Ogden, as Holder's Deputy, has a long history of support for First Amendment causes, including opposition to 2257 (though he backtracked on that position somewhat during his confirmation hearing), the military's "Don't Ask, Don't Tell" policy, the Justice Department's former multi-jurisdictional prosecution strategy against adult mail-order companies, and support for Lawrence v. Texas.

But what about the two other primary administration legal positions, whose office-holders have also been much in the news for the last two terms?

Remember John Yoo, the Berkeley law professor who as Deputy Assistant Attorney General for the Office of Legal Counsel (OLC) authored memoranda of law stating that there was no legal impediment to U.S. Army and CIA interrogators using sleep deprivation, forced humiliation and waterboarding on "unlawful enemy combatants," whom he said had no habeas corpus rights in American courts? (Yoo also recommended repudiating the Geneva Conventions against torture so Bush and other administration officials would stand less of a chance of being prosecuted for war crimes under them.) Remember Yoo's (still-classified) memo which reportedly asserts that Bush had the constitutional power, as Commander In Chief, to allow the NSA to warrantlessly wiretap and read the email of US citizens on US soil because the Fourth Amendment didn't apply during "wartime"?

Well, meet Dawn Johnsen, Obama's choice for Yoo's (and later Jack Goldsmith's) job. Johnsen held the OLC position late in the Clinton administration before becoming an Indiana University law school professor. Johnsen has written extensively on the limits of presidential power and even the power of the Office of Legal Counsel, advising in a 2006 article which she co-authored, titled "Guidelines for the President's Legal Advisors," that "OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies," that "OLC advice should reflect due respect for the constitutional views of the courts and Congress" and that "OLC should publicly disclose its written legal opinions in a timely manner, absent strong reason for delay or non-disclosure." Take that, John Yoo!

Moreover, she wrote in a blog entry that an April, 2008 DOJ legal opinion approving Bush's power to authorize tortuous interrogation techniques was "shockingly flawed," its constitutional arguments "bogus," the broad reading of Bush's authority "outlandish," and the "horrific acts" the opinion encouraged against prisoners probably illegal.

Similarly, Harvard Law Professor Elena Kagan as Solicitor General will be a welcome change from Bush's Paul Clement, who steadfastly defended the administration's unconstitutional positions taken in such high-profile cases as Rumsfeld v. Padilla, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld (all challenging the USA PATRIOT Act and its progeny); Gonzales v. Raich (opposing medical marijuana); Gonzales v. Oregon (opposing assisted suicide); Gonzales v. Carhart (opposing late term abortions): and Hein v. Freedom From Religion Foundation (challenging Bush's faith-based initiative program).

Kagan, on the other hand, has written extensively on the First Amendment, including an article where she argued that proposed regulations on hate speech and pornography failed to adhere to the fundamental principle of viewpoint neutrality: That the government cannot favor certain private speakers or viewpoints over others. In that article, Kagan argued that the secondary-effects doctrine under which government officials have labeled restrictions on sexually oriented expression is content-based rather than content-neutral, and that that doctrine, as well as other Supreme Court-approved doctrines are based, to varying degrees, on underlying impermissible government motives.

Now that's change we can believe in!






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Mark Kernes

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