The Role of the OLC and Johnson's fitness to serve.

Leaving aside the fact that, as Balkinisation clearly points out, the charge Andy McCarthy is making is a false one - when he states that Dawn Johnson equated pregnancy with slavery by citing the Thirteenth Amendment argument - an argument which Johnson has made clear that she does not agree with.

Johnson: [Video 48:35] Thank you, Senator, for that opportunity to clarify. I was, I have to say, shocked when I saw that National Review article that made certain claims about what I had written yesterday. I have never —

Specter: You did not write that?

Johnson: I did write the part that you quoted, absolutely. Um, I have never argued that there’s a Thirteenth Amendment violation um, when, um, the government restricts abortion. Uh, that — I was shocked when I saw that. It took me a while to search and find what they were referring to. They made other claims that were clearly false. Uh — Here they — I did write a brief 20 years ago. Uh — In footnote 23, I found, makes um, um, a suggestion that there may be an analogy, um, between, not what the article said, pregnancy, which I’ve been blessed with twice and have two wonderful sons, but forced childbirth. This is a brief that I filed arguing that the right to privacy protects, um, the right of women and their families to make these choices and that Roe v. Wade should be upheld, which is in 1989. I made no Thirteenth Amendment argument. I can state categorically: I do not believe the Thirteenth Amendment is relevant at all. It was a straight Fourteenth Amendment argument.

However, the bit of McCarthy's argument which left me speechless was this reasoning as to why Johnson is unfit to serve in the OLC:

Staffed by graduates of top law schools who are then polished by elite judicial clerkships, it authoritatively interprets the law for the attorney general and, in doing so, drives administration legal policy. OLC’s credibility is derived from its reputation for apolitical, academic discipline — its commitment to informing policymakers of what the law is, rather than what staffers believe the law should be. Johnsen is, for that reason, a poor fit: She is an ideologue, and an unabashed one.

I'm sorry?!? The job of the OLC is indeed to tell the president "what the law is, rather than what staffers believe the law should be." Has McCarthy even heard of John Yoo?

But of course he has, because he defends him in this very column in which he brings his false charges against Johnson:

It is especially galling to consider Johnsen's smearing of John Yoo, the Cal-Berkeley law professor who, as a Bush OLC staffer, principally authored DOJ's so-called torture memo. In contrast to Johnsen's perversion of anti-slavery law to suit her abortion agenda, Yoo was not twisting the law to advocate torture. He was soberly attempting to construe a legal term, "severe . . . pain or suffering," part of the statutory definition of torture that had not yet been interpreted by the courts. This is what OLC does: It struggles to understand the state of the law, irrespective of staffers' predilections, so that policymakers can act in full awareness of their options. For this, Johnsen impugns not merely Yoo's scholarship ("irresponsibly and dangerously false") but also his good faith.

That's simply gob smacking. He must be the only man left on Earth who believes that Yoo gave that advice "in good faith" and that he wasn't simply doing cartwheels in order to tell Bush what he wanted to hear.

Indeed, Yoo is already under investigation for the advice he gave, as almost no-one believes that this advice was given "in good faith":

H. Marshall Jarrett, chief of the department's ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys."

According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials - Jay Bybee and John Yoo - as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

And many lawyers have chipped in making the exact same point:

As Duke University law professor Walter Dellinger said, "You can never get over how bad these opinions were."

"The assertion that Congress has no role to play with respect to the detention of prisoners was contrary to the Constitution's text, to judicial precedent and to historical practice."

And yet McCarthy can attack Dawn Johnson as an "ideologue" in the very same article in which he defends John Yoo? That's simply unbelievable.

What planet does Andy McCarthy live on?

Click title for McCarthy's article.

Tags: Andy McCarthy, John Yoo, Dawn Johnson