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• Monday, January 5, 2009 10:56 AM

  Jebbie

  In that case, the OLC could conveivably issue an opinion stating that since the Bush OLC issued an opinion that torture (or illegal surveilance) is legal, Johnsen could issue an opinion that would bar the Obama administration from prosecuting those that obeyed Presidential orders which were made legal by that opinion.

  Is that correct?

  No. Whether to prosecute someone isn't a decision made by OLC. It's possible that the AG could ask OLC for a legal view on whether prior OLC memos bar criminal liability, but that's true no matter who Obama appoints as OLC Chief. Does she strike you as the type who is eager to find ways to immunize former Bush officials from prosecution?

  If so, that would give Obama an "out", i he wants it, and keep him from ordering the DoJ from investigating and prosecuting those persons who engaged in illegal activities, including illegal wiretaps and torture among others.

  Again, that has nothing to do with Dawn Johnsen. If Obama is determined to find a way not to prosecute Bush officials, then it won't much matter who is at OLC (though, theoretically, his AG could commence prosecutions of that type even if Obama didn't want to).

  And, as urgent as I think prosecutions of Bush officials are -- and I doubt there's a topic I've written as much about -- it's not the only issue. There is the issue, beyond that, of how Obama will govern, of whether we'll have our constitutional framework restored, of whether we'll continue to live under a limitless and lawless Presidency, and there, I do think that the appointment of Johnsen can help a great deal.

  —GlennGreenwald Read GlennGreenwald's other letters
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