Department of Justice, Assistant Attorney General, Office of Legal Counsel

Department/Agency: Department of Justice

Position:

Assistant Attorney General, Office of Legal Counsel

Major Responsibilities:

• Principal legal adviser to attorney general
• Provide authoritative legal advice to the President and other Executive branch agencies
• Craft Executive branch positions on constitutional issues
• Oversee Office of Legal Counsel

Key Competencies and Preferred Qualifications:

• Constitutional law expert
• Mastery of federal and administrative law
• Sound judgment on difficult matters of law and public policy
• Capacity to work well under pressure, handle the media, and withstand criticism

Insight:

The Office of Legal Counsel is, in effect, the general counsel for the Attorney General and the Justice Department. It also serves, in effect, as outside counsel to the President, the White House and other executive branch agencies, providing authoritative advice on the Constitution and other weighty legal matters. Typically its opinion is sought (and followed) when two agencies are in disagreement. Both the late Chief Justice William Rehnquist and Justice Antonin Scalia served in this position, as did Nicholas deB. Katzenbach, Theodore B. Olson and Walter Dellinger. As legal scholar Douglas W. Kmiec, once told The New York Times, the person who occupies this office is known as "the attorney general's lawyer." Kmiec, who filled this role under Presidents Ronald Reagan and George H.W. Bush, added, "We used to call it the conscience of the Justice Department." The attorney general makes public selected opinions for the convenience of the public, the bar, and the three branches of government.

Whether that conscience worked as it should during the Bush administration's war on terror is a question that historians will debate. The office's reputation suffered badly as critics on Capitol Hill and elsewhere questioned whether its advice contravened the Geneva Conventions and condoned the torture of terror suspects captured in the war on terror, and as the Supreme Court dealt setbacks to the Bush administration's reading of the law.  Then-Assistant Attorney General for the Office of Legal Counsel Jay Bybee signed in August 2002 what came to be known as the "torture memo," giving interrogators a wide berth for using whatever techniques they saw fit in dealing with suspected terrorists. That memo, which concluded that only pain like that resulting in ''death, organ failure or the permanent impairment of a significant body function'' could be considered torture, is believed to have been written principally by John Yoo, Bybee's deputy and now a law professor at the University of California, Berkeley. Bybee, a former law professor, now sits on the 9^th Circuit Court of Appeals.

President-elect Barack Obama and Attorney General-designate Eric Holder will be looking for a legal scholar who can rebuild the reputation and morale of the Office of Legal Counsel, and handle thorny questions about how to handle prisoners from the ongoing war on terror. Obama has promised to shut down the military prison inside the U.S. naval base at Guantanamo Bay, Cuba, and take a different approach to dealing with those suspected of links to al Qaeda.

Senate Democrats held pro-forma sessions over Christmas 2007 to keep President Bush from making a recess appointment of Steven G. Bradbury to the job. Bush sent Bradbury's nomination to the Senate four times - yearly starting in 2005 -- but Democrats blocked it. Bradbury, as principal deputy assistant attorney general, filled the job on an acting basis and authored two controversial opinions on what interrogation techniques by the Central Intelligence Agency were allowable. Those memos were revealed by The New York Times in October 2007 during the Senate confirmation hearings on Michael Mukasey to succeed Alberto Gonzales as attorney general.

Bradbury also played the role of public defender for the administration on the National Security Agency's surveillance without warrants of those suspected of having ties to terror networks. The Times article said that some legal scholars believed that such a public advocacy role was at odds with the office's tradition of staying out of politics. Bradbury defended the work and integrity of his office, telling the newspaper,  "In my experience, the White House has not told me how an opinion should come out. The White House has accepted and respected our opinions, even when they didn't like the advice being given."

Bradbury in September 2006 fielded questions from the public about how the United States handled suspected terrorists. During an "Ask the White House" online session, he said, "These al Qaeda terrorists are not POWs entitled to the privileges that apply to regular armed forces under the Geneva Conventions. The Geneva Conventions do require, however, that they be afforded the basic judicial guarantees deemed indispensable by civilized nations. In its Hamdan decision, the Supreme Court said that Congress must define those procedures. Otherwise, these terrorists would have to be tried through the same court-martial procedures afforded to our own troops. The President believes that it is neither practical nor appropriate to give the terrorists all of the same procedural protections that apply to the trials of our own troops and citizens, and there is a broad agreement on that in Congress." The Supreme Court ruled 5-3 in Hamdan v. Rumsfeld that the administration could not use military tribunals to try detainees at Guantanamo without express authority from Congress. It also held that the Geneva Conventions' protections did apply to the detainees.

Bradbury pressed the case for Congress to grant that authority. He testified before the Senate Judiciary Committee that, "The Administration believes that Congress needs to enact legislation in light of the Supreme Court's ruling in Hamdan that Common Article 3 of the Geneva Conventions applies to our armed conflict with al Qaeda. The United States has never before applied Common Article 3 in the context of an armed conflict with international terrorists, yet because of the Court's decision in Hamdan, we are now faced with the task of determining the best way to do just that. If left undefined by statute, the application of Common Article 3 will create an unacceptable degree of uncertainty for those who fight to defend us from terrorist attack."

Several Democratic senators wondered whether Bradbury overstayed the limits on how long an official can fill on an acting basis a senior position subject to Senate confirmation. The Federal Vacancies Reform Act of 1998 allows acting officials to serve no more than 210 days, plus an additional 210 days if the nomination is returned to the President. But Congress's watchdog, the Government Accountability Office, said Bradbury broke no law, since his official period as acting assistant attorney general ended in 2007 and the job remained officially vacant for the balance of President Bush's second term. Bradbury remained in charge as the office's principal deputy assistant. The general counsel of the GAO explained the situation in a letter to Senators Edward M. Kennedy of Massachusetts, Richard J. Durbin of Illinois and Russell D. Feingold of Wisconsin.

Jack Goldsmith held the job of assistant attorney general only briefly in 2003-2004 before departing to become a professor at Harvard Law School. But the conservative scholar was lionized in a 2006 Newsweek article for reportedly standing up to the White House and opposing efforts to expand its powers in the war on terror.  "For nine months, from October 2003 to June 2004, (Goldsmith) had been the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers," Newsweek wrote. It said that Goldsmith took the position that the Fourth Geneva Convention barring physical or moral coercion on prisoners of war applied to even to those suspected of belonging to al Qaeda. Back in academe, Goldsmith authored a book, The Terror Presidency: Law and Judgment Inside the Bush Administration.

Goldsmith told Newsweek that he realized soon after taking the job that the torture memo could not stand, but that it would be difficult to change. According to Goldsmith, "The Office of Legal Counsel rarely overturns its prior opinions, and even more rarely does so within an administration, and even more rarely than that, in the same administration about something this important. I didn't find any precedent for it."  Daniel Levin, who briefly acted as assistant attorney general after Goldsmith left for Cambridge, would up signing a new memo on what coercive interrogation methods the president could authorize.

Key Relationships – Within the Department or Agency:

Attorney General
Deputy Attorney General
Solicitor General
Assistant attorneys general

Key Relationships – Within the Government:

Counsel to the President
Counsel, Office of Management and Budget
General counsels or legal advisers in other departments and agencies

Key Relationships – Outside the Government:

American Bar Association
Inter-American Bar Association
Association of Trial Lawyers of America
International Law Institute
University law schools and centers
Association of American Law Schools
American Civil Liberties Union
State attorneys general
National Association of Attorneys General

Nomination Referred to:

Senate Committee on Judiciary

Current Position Profile:
1. Dawn E. Johnsen (Nominated: Feb. 11, 2009). Professor of Law and Ira C. Batman Faculty Fellow, Maurer School of Law, Indiana University Bloomington. Former Acting Assistant Attorney General, Office of Legal Counsel, Office of the Deputy Attorney General, United States Department of Justice. Former Legal Director, NARAL Pro-Choice America.

Recent Position Profiles:

2. Steven G. Bradbury, J.D. (Acting 2005 - 2007). Principal deputy assistant attorney general since 2004 and de facto head of the office during President George W. Bush's second term. Former associate at Covington & Burling. Graduate of Stanford University and University of Michigan Law School.

3. Daniel Levin, J.D. (Acting 2004-2005). Criminal law attorney and former federal prosecutor. Former chief of staff to attorney general in first Bush administration. Chief of staff to the FBI director, 2001-2002. Senior associate White House counsel and legal adviser to the National Security Counsel, 2005.

4. Jack Goldsmith, J.D. (2003-2004). Law professor. Special Counsel to the Department of Defense's general counsel in 2002-2003. Taught at University of Chicago and University of Virginia law schools. Now Henry L. Shattuck Professor of Law at Harvard.

5. Jay S. Bybee, J.D. (2001-2003). Associate White House counsel in first Bush administration. Law professor at University of Nevada and Louisiana State University. Now sits on 9^th U.S. Circuit Court of Appeals.

6. Randolph D. Moss, J.D. (2000-2001). Litigator. Partner, WilmerHale.