Posts Tagged ‘David Barron’
Monday, March 29th, 2010

Soon after taking office, President Barack Obama articulated a more limited position than his predecessor on the power to detain suspected members of al Qaeda without trial. Rather than assuming inherent authority to hold people suspected of ties to the terrorist group or its affiliates, Obama, through the Justice Department, described his power as emanating from the authorization granted by Congress to use military force against the perpetrators of the Sept. 11 attacks and defined by the laws of war. The president, the department told a federal judge in March 2009, could detain only people who were part of al Qaeda, its affiliates or their “substantial” supporters.

In Monday’s New York Times, Charlie Savage notes how lawyers in the administration have debated counterterrorism policies against this backdrop. A deep division has emerged, unsurprisingly, between the State and Defense departments, which squared off regularly during the Bush administration (with the Defense Department claiming victory more often than not).

On the one hand, the State Department’s top lawyer, Harold Koh, has argued behind-the-scenes that there is no basis in the laws of war to detain as wartime prisoners supporters of al Qaeda captured far away from the battlefield. The contours of this position emerged in a secret memo by Koh, focusing on the case of Belkacem Bensayah, an Algerian man who had been arrested in Bosnia and placed in the U.S. detention camp at Guantanamo Bay, Cuba. He was accused of facilitating the travel of those who wanted to go to Afghanistan to join al Qaeda.

A federal judge ruled that Bensayah’s support justified holding him prisoner. The Justice Department asked an appeals court to uphold the ruling.

Defense Department General Counsel Jeh Johnson produced his own secret memo, arguing for “a more flexible interpretation of who could be detained under the laws of war — now or in the future,” Savage writes in Monday’s Times.

According to Savage, David Barron, the head of the Office of Legal Counsel, was called in to referee the debate, but ultimately did not:

In September 2009, national-security officials from across the government packed into the Office of Legal Counsel’s conference room on the fifth floor of the Justice Department, lining the walls, to watch Mr. Koh and Mr. Johnson debate around a long table. It was up to Mr. Barron, who sat at the head of the table, to decide who was right.

But he did not. Instead, days later, he circulated a preliminary draft memorandum stating that while the Office of Legal Counsel had found no precedents justifying the detention of mere supporters of al Qaeda who were picked up far away from enemy forces, it was not prepared to state any definitive conclusion.

In the end, the Justice Department decided to avoid the question by changing the subject. They asked to appeals court to adopt the position that actions taken by people like Bensayah effectively made them part of the terrorist organization, rather than mere supporters, and thus detainable under both the State and Defense departments’ interpretations. The appeals court has not ruled in the case.

Defense and State are aligned on other matters, Savage writes, as when two judges on the U.S. Court of Appeals for the D.C. Circuit ruled in January that the laws of armed conflict did not limit the president’s war powers. Career lawyers in the Justice Department’s Civil Division, who are defending the Guantanamo cases in federal court, wanted to use the ruling to their advantage.

But Barron, Koh and Johnson felt the administration should continue abiding by the laws of war and thought the decision was susceptible to reversal, according to Savage. The Justice Department has since cited the ruling in classified briefs as precedent while maintaining its argument that the president is bound by laws of war.

As Savage writes, “The debate would go on.”

Tuesday, January 26th, 2010

In deciding the fate of dozens of inmates at Guantanamo Bay, federal judges have been thrust into the position of crafting law that could end up governing U.S. detention of terror suspects around the world.

With so much at stake, Attorney General Eric Holder has relied heavily on the Justice Department unit that contemplates the executive branch’s thorniest legal questions, the Office of Legal Counsel, giving way to an unusual system where advisers are editing the work of the advocates.

OLC is enmeshed in more than 100 cases initiated by Guantanamo Bay detainees who are challenging their confinement in federal court in Washington. OLC lawyers review and revise virtually every brief filed in the cases, a break with tradition that has created some friction between the office and lawyers who defend the government’s positions in court, said several current and former Justice Department officials.

OLC acts as outside counsel for the president and the agencies, and its advice, often memorialized in opinions, is expected to represent the best reading of the law, but not necessarily the most popular. Rarely does the office concern itself with litigation, in part because it must be neutral to be effective, said one former OLC official.

Peter Shane (Ohio State University)

“OLC is generally not an advocacy unit,” said Peter Shane, a law professor at Ohio State University and a former OLC lawyer during the Carter administration. “A large part of the office’s credibility has been based on the notion that it has kind of a quasi-adjudicative role.”

The office worked closely with the task force that recently completed a yearlong review of the Guantanamo Bay detainees. The task force determined that of the 198 detainees at the military-run prison, about 50 are unprosecutable but thought to be too dangerous to transfer, underscoring the importance of the habeas corpus cases — the chief means for testing the Obama administration’s detention regime.

The Supreme Court’s 2008 decision in Boumediene v. Bush recognized the right of Guantanamo Bay prisoners to challenge the legitimacy of their detention. But the high court left it to the lower courts to shape the proceedings, and the Obama administration has not asked Congress to intervene. (Interestingly, several judges overseeing the cases have spoken publicly about need for a guidance from Congress.)

Absent legislation, the habeas cases have become vehicles for hashing out questions about the scope of the government’s detention authority, the admissibility of evidence extracted through coercion, and the burden of proof required to hold prisoners indefinitely, among others.

Current and former officials said the cases play to talents of the OLC, jokingly referred to as “finishing school” for Supreme Court clerks, and they pointed out that several other Justice Department offices are involved in the effort.

The Civil Division’s Federal Programs Branch and Appellate Section, which have primary responsibility for the habeas cases, also collaborate with the offices of the Solicitor General, Associate Attorney General, Deputy Attorney General, and Attorney General, as well as the National Security Division.

“These cases present questions that have not been faced by the department or this administration previously,” said a senior Justice official.

New Responsibilities

In first months of the Obama administration, some legal experts questioned whether OLC was losing influence. They pointed to several signs.

The White House counsel’s office, for one, began in 2009 with about two dozen lawyers, a higher headcount than in OLC. The president, typically OLC’s biggest client, seemed to be building his own law firm.

Then, in April, a report emerged that the Attorney General had overridden OLC’s judgement that a District of Columbia voting rights bill, which Holder supports, was unconstitutional. The Attorney General went to the Solicitor General’s Office for a second opinion, and lawyers there told him they could defend the legislation if enacted.

It made OLC appear as if its advice were dispensable.

Complicating matters, the Obama administration has been unable to install a Senate-confirmed Assistant Attorney General in the office. Law professor Dawn Johnsen’s nomination has been held up in the Senate for nearly a year over Republican opposition to her vocal criticism of the Bush administration’s national security policies and her past work for an abortion rights group.

But far from ceding ground, the office has taken on new responsibilities, including guiding the Guantanamo Bay task force’s thinking on which detainees should be prosecuted, transferred or held indefinitely — and then seeing that its recommendations are executed in court.

Jones Day partner Gregory Katsas, a former Assistant Attorney General in the Civil Divison during the Bush administration, said that collaboration was typical of high-profile cases, but that the degree of OLC’s involvement was not.

Gregory Katsas (Jones Day)

“When we had the detainee cases, we would talk informally between the litigators and the counselors,” said Katsas, who was the Civil Chief when the Supreme Court decided Boumediene. ”We gave OLC drafts here and there, but the practice of having OLC set up as an overseer of the Civil Division on a regular basis is very new.”

OLC officials referred a reporter to the Justice Department’s Office of Public Affairs, which declined to give a statement.

The culture of the office differs vastly from that of the Civil Divison. OLC, with roughly 20 lawyers, provides advice to the government on complex legal and constitutional issues, interprets statutes and mediates legal disputes among agencies.

The Civil Division’s more than 750 lawyers represent the government in federal courts across the country, working closely with the Office of the Associate Attorney General, which oversees the division, and the Office of the Solicitor General, which signs off on all appeals. (The acting head of OLC, David Barron, was a constitutional law professor at Harvard Law School; Tony West, the Assistant Attorney General for the Civil Division, was a litigation partner at Morrison & Foerster in San Francisco.)

In the past, Justice Department offices consulted OLC on pending litigation, if, for example, separation of powers or other constitutional questions arose. But the office shied away from litigation strategy to avoid conflicts and because it lay beyond OLC’s bailiwick, said one former OLC lawyer, who served in the Bush administration.

Butting Heads

OLC’s influence over Guantanamo Bay issues dates back to the Bush administration. The office worked closely with the National Security Division and the Pentagon on the military commissions.

In at least two cases — against Salim Hamdan, Osama bin Laden’s former driver, and Omar Ahmed Khadr, a Canadian citizen accused of killing an American soldier in Afghanistan — OLC lawyers made rare appearances before a military judge.  In pretrial hearings, they argued matters related to the Geneva Conventions, the post-9/11 Authorization for Use of Military Force and the Military Commissions Act. After the issues were briefed and argued, the OLC lawyers faded into the background.

The office, which had enjoyed relative obscurity prior to the Sept. 11 attacks, came to symbolize the Bush administration’s controversial national security policies, having blessed waterboarding, warrantless wiretapping and extraordinary rendition. The office’s work exposed divisions among the Bush administration officials over the legality of the programs, prompting the resignations of senior Justice Department officials.

By the time Bush left office, several OLC opinions had been withdrawn, and the Justice Department’s Office of Professional Responsibility was years into an investigation of former OLC officials John Yoo and Jay Bybee.

OLC in the Obama administration has been more active in Guantanamo Bay matters. Barron and Martin Lederman, an OLC Deputy Assistant Attorney General, were part of Obama’s Justice Department transition team, and they were heavily involved in detainee issues before they were appointed to lead the office, said one lawyer who worked on the transition.

Lederman, like Johnsen, had been a fierce critic of the office’s work during the Bush administration, and his support for habeas rights and positions on indefinite detention were well-known within the department before he returned. (Lederman was an OLC lawyer during the Clinton administration.)

Views are mixed as to whether OLC should be so heavily invested in the Civil Division’s affairs. Some Civil Division attorneys told Main Justice OLC’s work was helpful, because of novel questions raised in the litigation, while others said it amounted to a cumbersome layer of oversight that has strained the relationship between lawyers in the two components.

In a new study, co-authors Benjamin Wittes and Rabea Benhalim of the Brookings Institution and Robert Chesney of the University of Texas Law School appeared to make an argument for OLC’s involvement in describing the significance of the cases:

They are more than a means to decide the fate of the individuals in question. They are also the vehicle for an unprecedented wartime law-making exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts acquire habeas jurisdiction. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts. They might, in fact, impact superficially-unrelated military activities, such as the planning of operations, the selection of interrogation methods, or even the decision to target individuals with lethal force.

“I’m not sure OLC can be faulted,” said one Civil Division lawyer. “It’s all new. The executive has had to come up with a way of dealing with these cases on the fly.”

But disagreements over the application of the Obama administration’s detention standards, which were devised by OLC, have been a source of friction. (The new standards, introduced in a habeas case in March, dispensed with the Bush administration’s “enemy combatant” designation and declared that Obama’s power to detainee suspected terrorists indefinitely flowed from the 2001 Authorization for Use of Military Force, as informed by law-of-war principles.) Civil Division lawyers chafed at OLC’s insistence that they drop certain legal arguments or abandon their defense in habeas case, the lawyers said.

The Civil Division lawyer said some on the habeas team feel OLC should have withdrawn after crafting the new detention standards, “to be consulted only as need be on resolving some big-ticket items.”

The relationship has steadily improved since the early days of the Obama administration, before the task force charged with determining the fate of Guantanamo Bay detainees hit its stride, the lawyers said. Questions about the government’s position in each case were answered at the task-force level, leaving little room for argument.

“There was a lot more head-butting going on before the task force process got fully underway,” said another Civil Division lawyer. “Now it’s a matter of defending the cases the task force is willing to defend. It has made things go more smoothly.”

The task force, led by prosecutor Matthew Olsen, recommended 35 detainees for prosecution in federal or military courts; at least 110 for release, either immediately or eventually; and nearly 50 for detention without trial.

The habeas cases, however, continue to wind through the U.S. District Court for the District of Columbia. Of the 41 decided habeas cases, 32 of them cut in favor of the detainee.

That number, however, includes 17 Chinese Muslims, known as Uighurs, who were ordered released in the U.S. by a federal judge in 2008. While the Bush administration eventually dropped the Uighurs’ “enemy combatant” designation, meaning the habeas petitions went unchallenged, the Justice Department appealed the release order.

The issue — whether federal judges have the power to release in the U.S. detainees  no longer deemed a threat — is before the Supreme Court. Arguments in the case, Kiyemba v. Obama, are scheduled for March 23.

Wednesday, January 6th, 2010

Dawn Johnsen during her confirmation hearing before the Senate Judiciary Committee in February 2009 (Getty Images)

Former Office of Legal Counsel nominee Dawn Johnsen is on course for re-nomination, an administration official told Main Justice today.

Johnsen has been in a state of limbo since the Senate returned her nomination to the White House on Christmas Eve, after she spent months waiting for a vote on the Senate floor. The White House sent her nomination to the Senate on Feb. 11, 2009 and the Senate Judiciary Committee approved her nomination on a party line vote on March 19, 2009.

Several Senate Republicans, joined by Democratic Sens. Arlen Specter (Pa.) and Ben Nelson (Neb.), have voiced concerns about Johnsen’s vocal opposition to the Bush administration’s national security policies and her past work for an abortion rights group.

President Barack Obama must tap Johnsen again if he wants the Senate to confirm her. The White House has remained mum on whether she will be re-nominated.

Press Secretary Robert Gibbs told reporters today during a briefing that he has “not gotten an answer” on Johnsen and is looking into it. The administration official told Main Justice that Johnsen matter hasn’t come to the president’s desk yet.

Gibbs said the White House is unhappy with the pace of confirmation for some of the nominees.

“We’ve put a number of people into government in the first year,” Gibbs said in response to a question by the Huffington Post. “But at the same time, we have seen a pacing in dealing with nominations both for the executive branch and for judicial nominations that I think by almost any estimation would be deemed slow.”

William Treanor, who worked with Johnsen in the Office of Legal Counsel during the Bill Clinton administration, said Johnsen remains “enthusiastic” about her prospects for confirmation. We previously reported that she will continue to teach law at Indiana University during the spring 2010 semester. Johnsen declined to comment to Main Justice.

Johnsen has support from liberal advocacy groups, including the National Organization for Women, Alliance for Justice and People for the American Way.

People for the American Way recently wrote about the returned OLC nominee on its blog and has endorsed two letters in support of Johnsen.

Marge Baker, an executive vice president at People for the American Way, said her organization do “whatever needs to be done” to get Johnsen confirmed.

“We’ll continue working all of the angles,” Baker told Main Justice.

OLC has not had a Senate-confirmed head since George W. Bush appointee, Jack Goldsmith, resigned in June 2004.

Bush nominated Steven Bradbury to the post five times, but he was returned to the White House each time. Bradbury served as acting OLC chief from June 2005 to April 2007, and continued to lead the office as Principal Deputy Assistant Attorney General until the start of the Obama administration.

David Barron has been the acting head of OLC since January 20. In 2004, Johnsen, Barron, Treanor and other former OLC officials signed the “Principles To Guide the Office of Legal Counsel,” which offered suggestions on how the office could move forward after it was revealed that the office authorized harsh interrogation methods used against terrorism suspects during the Bush administration.

Joe Palazzolo contributed to this report.

Saturday, November 28th, 2009

The Justice Department released a memo this week concluding the government should pay ACORN for contracts that were in place before Congress banned the community organizing group from receiving federal funds.

Legislation signed by President Barack Obama in October prohibits the Association of Community Organizers for Reform Now from receiving federal funds.

Acting Assistant Attorney General David Barron, who oversees the Office of Legal Counsel, stated in an opinion dated Oct. 23 that the language of the law is ambiguous and that the government should honor contracts with Acorn that predated the law. The ban on funding for ACORN came after two conservative activists videotaped employees of the group giving advice on how to launder money and evade taxes.

The deputy general counsel for the Department of Housing and Urban Development had asked the Justice Department for its legal opinion about the pre-existing contracts it had with ACORN. The group has gotten around $53 million from the federal government since 1994, much in the form of grants from HUD, according to the New York Times.

The OLC memo states that the law “should not be read as directing or authorizing HUD to breach a pre-existing binding contractual obligation to make payments to ACORN or its affiliates, subsidiaries or allied organizations where doing so would give rise to contractual liability.”

ACORN got around $200,000 from the Department of Justice through affiliates and subcontracts between 2002 and 2009, according to a report issued last week by the department’s inspector general. Acorn also registers minority and low-income voters - who tend to vote Democratic. It has been a long-time target of conservatives.

Republicans are not reacting well to the legal opinion, writes Jake Tapper on ABC’s Political Punch blog:

The ranking Republican on the House Committee on Oversight and Government Reform, Rep. Darrell Issa, R-Calif., blasted the DOJ opinion as “political cronyism.”

“The bipartisan intent of Congress was clear – no more federal dollars should flow to ACORN,” Issa said. “It is telling that this administration continues to look for every excuse possible to circumvent the intent of Congress.  Taxpayers should not have to continue subsidizing a criminal enterprise that helped Barack Obama get elected president.  The politicization of the Justice Department to pay back one of the president’s political allies is shameful and amounts to nothing more than old-fashioned cronyism.”

Friday, September 25th, 2009

The Justice Department in a Monday court filing said it can’t find 10 documents that are supposed to be released as part of a Freedom of Information Act request filed by the American Civil Liberties Union, Al Kamen reported in The Washington Post.

The ACLU’s five-year FOIA battle seeks to illuminate the process that led to a policy of harsh interrogations of terrorism suspects during the Bush administration. One of the 10 missing documents is a 59-page exchange in 2002 between the  Office of Legal Counsel and the Pentagon on the eve of a decision to increase the intensity of the interrogations, Kamen reported.

The Justice Department was able to find an additional 224 documents relevant to the ACLU’s 2005 request, Kamen said. They were found in three safes and in “the back of a third drawer” inside OLC’s room for highly classified documents. The documents were located by two visiting Assistant U.S. Attorneys from New York and one DOJ attorney.

Acting Assistant Attorney General for the OLC David J. Barron had to explain the loss to a federal judge in New York. He wrote: “Due to their extreme sensitivity at the time,” the relevant document set was not copied and its contents were “intermingled” with other files in the room. The documents then took the scenic tour of Washington, D.C., first going to another special room at DOJ, then to the CIA in 2007 and stopping at the Office of Professional Responsibility until March.

Kamen reported there is no word on if or when the documents might be made public.

Tuesday, August 25th, 2009

A couple months back, we were whining about the lack of published opinions from the Justice Department’s Office of Legal Counsel. By the end of May, the Justice Department had released 13 previously secret Bush-era legal memos but just one penned during the Obama administration.

Well, the office threw us all a few bones yesterday, posting 12 opinions — including six issued since Barack Obama took office.

Here they are:

Enjoy.

Monday, June 29th, 2009

The other day, we wrote about the lack of published Obama-era legal memos from the Office of Legal Counsel. (The office has published approximately one since he took office.) We gave OLC the benefit of the doubt: It’s early in the administration; Dawn Johnsen, the nominee to head the office, is stuck in the mud; and several OLC lawyers have departed recently. But today The Wall Street Journal has the scoop on another as-yet unpublished OLC memo.

To wit:

The Justice Department has determined that detainees tried by military commissions in the U.S. can claim at least some constitutional rights, particularly protection against the use of statements taken through coercive interrogations, officials said.

A DOJ task force has been considering ways to try prisoners by military commission. According to the WSJ, the task force asked OLC which constitutional rights, if any, would apply if the trials were held in the U.S. David Barron, the acting assistant attorney general, wrote in a May 4 memorandum that there is a “serious risk” that federal courts would take a constitutional due process approach when evaluating the trials.

Mr. Barron advised that federal courts were unlikely to require strict adherence to Bill of Rights provisions spelling out specific procedures, such as the Sixth Amendment speedy trial right, or the Miranda warning, which the Supreme Court imposed in 1966 to ensure compliance with the Fifth Amendment right against self-incrimination and the Sixth Amendment right to an attorney.

But Mr. Barron advised that courts were likely to view the use of coerced statements to convict and punish defendants as violating any definition of the Fifth Amendment’s Due Process Clause, which courts have cited in establishing a baseline of fundamental rights. As a result, some officials believe a legislative fix to the Military Commissions Act should include additional rights for defendants in order to lower the chances courts would strike it down.

The Obama administration has published 13 previously secret Bush-era legal memos by the OLC. We hope Barron lives up to the “Principles to Guide the Office of Legal Counsel” he signed along with Johnsen in 2004. No. 6 on the list of principles: “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.” Timely. Manner.

Tuesday, June 23rd, 2009

The Obama administration has published 13 previously secret Bush-era legal memos by the Justice Department’s Office of Legal Counsel. But the Most Transparent Administration Ever has released just one OLC opinion of its own since President Obama took office more than five months ago.

Marty Lederman (georgetown.edu)

What gives? This slow trickle of information appears at odds with the battle cries for transparency issued during the Bush years by law professors Martin Lederman and David Barron — now top Obama political appointees at the OLC — as well as Dawn Johnsen, the president’s choice to head the office whose nomination has been stalled in the Senate.

Johnsen, who spoke of the need for more transparency during her confirmation hearings, helped write a 2004 manifesto signed by Lederman, who is now the office’s deputy assistant attorney general, and Barron, the acting assistant attorney general.  Also signing on was Lisa Brown, now the White House staff secretary; and Christopher Schroeder, nominated to head the DOJ’s Office of Legal Policy.

David Barron (harvard.edu)

David Barron (harvard.edu)

No. 6 on the list of “Principles to Guide the Office of Legal Counsel” declares, “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.” The memo continues:

In all events, OLC should in each administration consider the circumstances in which advice should be kept confidential, with a presumption in favor of publication, and publication policy and practice should not vary substantially from administration to administration. The values of transparency and accountability remain constant, as do any existing legitimate rationales for secret executive branch law.

So where are the opinions? We know from news reports and congressional hearings that the office has generated at least one big memo on the D.C. voting rights bill. (Attorney General Eric Holder reportedly disagreed with the OLC’s view that giving the District a vote in the House was unconstitutional, prompting him to seek advice elsewhere in the department.) And former OLC lawyers say DOJ’s “brain” is constantly mulling legal questions large and small from the White House and executive agencies.

The Washington Post reported last week that the OLC is refereeing a dispute between the Treasury Department and Neil Barofsky, the inspector general overseeing the $700 billion bailout of the financial industry. Treasury believes it has legal authority over Barofsky’s office; Barofsky says such an arrangement would threaten his independence as watchdog for the Troubled Asset Relief Program. OLC has been reviewing the matter since April.

There is typically a lag time for release of the opinions, but it’s difficult to measure it. The OLC Web site doesn’t give enough information to determine the average wait, and it varies with each administration. For instance, the Bush administration waited more than a year to publish a controversial opinion that it could bypass laws intended to prevent taxpayer money from going to religious groups that hire only staff members of the same faith. The opinion was issued in June 2007 and quietly released by the Bush administration on the OLC Web site last October.

Charles Cooper, of Cooper & Kirk, who was head of OLC from 1985 to 1988, said the office began systematically reviewing opinions for release during the Reagan administration. He said the office typically deferred to the client agency when deciding whether to make an opinion public. “But potential political embarassment was not a concern we yielded to,” Cooper said.

The Bush administration never released memos about the legality of harsh interrogation techniques, domestic military force and domestic surveillance. But those memos were the first that the Obama DOJ released after taking office. (Click here and here for links to the Bush memos.)

The Justice Department did not respond to a request for comment about the lack of published OLC opinions by the Obama administration.

The one opinion the office published, on May 20, dealt with the question of whether Obama’s appointment of then-Sen. Hillary Clinton to be Secretary of State violated the Constitution’s Ineligibility Clause because Congress authorized a pay raise for the post while she was serving her term. OLC ruled that a salary rollback for the post, which immediately preceded her appointment, achieved compliance with the clause.

The ruling reversed an opinion penned by Cooper in 1987. ”I’d very much like to see them release opinions in addition to the only one that reversed my opinion,” he joked.

Former OLC lawyer Neil Kinkopf, a professor at Georgia State University College of Law who served in the OLC during the Clinton administration, said in an interview that Johnsen’s problems in the Senate are likely hampering the office’s efforts to be transparent. Without a leader in place, it’s tricky for lower-level staff to make ”systemic decisions about what’s going to be the policy on publishing opinions or making ad hoc decisions about when to publish,” he said.

Kinkopf, who also signed the 2004 “principles” manifesto, said it’s probably too early for opinions on big-ticket items such as health-care reform and detainee issues. But he said the office has likely dealt with many routine matters, such as transition-related questions about appointing and removal powers (the Clinton opinion falls in the former category). “What you have is the administration formulating policy, so there might not yet be an occasion for an OLC opinion,” Kinkopft said. He added, “OLC is part of the policy process, too, so not having a head [of the office] can literally impede policy-making.”

Holder has indicated as much in congressional testimony. In May, he told members of the Senate Judiciary Committee that getting Johnsen confirmed was “probably my top priority,” as the department juggles reviews of interrogation and detention policies, and of the remaining detainees at Guantanamo Bay.