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New Hope for Justice


Today, Barack Obama has completed his choices for the Justice Department’s “brains,” and his picks provide good reason for hope that the old Justice Department—an organization of which all Americans can be proud—is returning. Dawn Johnsen, David Barron, and Martin Lederman will be the senior political appointees in charge. This team has tested experience in the Department of Justice and a strong sense of the institutional dignity that Justice once exuded. Johnsen, Barron, and Lederman have distinguished themselves over the last four years with the most intensive and penetrating analysis of the disintegration of the Office of Legal Counsel (OLC).

David Barron and Marty Lederman are the co-authors of “The Commander in Chief at the Lowest Ebb—A Constitutional History,” published last year. This is the best and most important single legal writing on presidential power published in the last eight years. I have been using it as the introductory reading for my national security law seminar for the past couple of years because it comes quickly to the most important (and previously little-studied) issue of the President’s commander-in-chief powers when Congress has spoken. This is precisely the area where the Bush OLC consistently got things wrong. The scholarship in this article is authoritative and its presentation is carefully balanced and solicitous of opposing views. It is a work of meticulous scholarship anchored deeply in American history.

I know Marty Lederman well and consider him a good friend. His presence in the Obama team gives me a great sense of relief. Ben Smith at Politico, in a piece filled with his signature histrionics, states:

These are anti-Bush lawyers. Lederman has been, in particular, an early and vocal critic of torture, and has suggested Bush Administration officials have committed specific crimes in that regard.

Smith doesn’t understand (and certainly wouldn’t report) that virtually the entire organized legal profession has been opposed to torture–because it’s a crime. Is it wrong for a lawyer to say the criminal statutes they are sworn to uphold should be enforced? But saying that they are “anti-Bush lawyers” is a remarkable bit of pettiness. This team is marked in fact by its dedication to institutional authority and tradition, and the suggestion that Lederman is an advocate of prosecuting Bush Administration officials is, regrettably, untrue. Just the opposite, in fact. But Lederman’s a very smart man, and I have every confidence that proper process will bring him and his colleagues at Justice to do the right thing. America is counting on them and wishing them well. They have a long and difficult path ahead.

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