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Debbie O'Leary
IU School of Law--Bloomington

Steve Hinnefeld
University Communications

Last modified: Thursday, May 1, 2008

IU professor Dawn Johnsen testifies at 'secret law' hearing

May 1, 2008

BLOOMINGTON, Ind. -- The Bush Administration's excessive reliance on "secret law" threatens the effective functioning of American democracy, Indiana University Law Professor Dawn E. Johnsen said this week in testimony to a Senate subcommittee.

Johnsen said the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.

Dawn Johnsen

Dawn Johnsen

She testified that the key question is "May OLC issue binding legal opinions that in essence tell the President and the Executive Branch that they need not comply with existing laws -- and then not share those opinions and that legal reasoning with Congress or the American people? I would submit that clearly in our constitutional democracy, the answer to that question must be no."

"Congress cannot effectively legislate unless it knows how the executive branch is implementing existing laws," she said. "Moreover, if the President refuses even to notify Congress when he refuses to comply with a statutory requirement, Congress -- and the public -- has little ability to monitor the executive branch's legal compliance and significant reason for suspicion."

Johnsen, a professor at the IU School of Law--Bloomington, testified Wednesday, April 30, before the U.S. Senate Judiciary Committee Subcommittee on the Constitution. Subcommittee Chairman Sen. Russ Feingold, D-Wis., scheduled the hearing to address secret opinions, agency rules and executive pronouncements that have the force of law.

Johnsen served five years in the Office of Legal Counsel, including as deputy assistant attorney general from 1993-97 and as acting assistant attorney general in charge of the OLC from 1997-98. As a professor at IU, she has focused her research on issues of Constitutional law and presidential power.

She testified that the Bush Administration OLC has been "terribly wrong" to withhold the content of much of its legal advice to the president, especially when it advised that the executive branch could disregard federal laws. She pointed out that it was only because of leaks that the public learned -- belatedly -- about legal opinions on extreme methods of interrogation, the government's domestic surveillance program and the use of secret prisons overseas to detain and interrogate suspected terrorists.

"This combination -- the claimed authority not to comply with the law and to do so secretly -- is a terrible abuse of power, without limits and without checks," she told the committee. "It clearly is antithetical to our constitutional democracy."

Johnsen said there are instances in which the executive branch does need to keep OLC advice secret; for example, because its release could imperil national security. But if OLC advises that a presidential prerogative trumps the law, that advice should almost always be disclosed in a timely fashion, she said.

"Congress should respect the President's genuine needs for secrecy," she said. "But so, too, should the President respect Congress's need to know how -- even whether -- the executive branch is enforcing existing law."

Johnsen cited a December 2004 report titled Principles to Guide the Office of Legal Counsel, which she and 18 other former OLC attorneys produced in response to the Justice Department "torture memo" that was leaked in the summer of 2004. One principle is that the OLC should "publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure." The Bush Administration, she said, "has not complied with this public notice standard and has operated in extraordinary secrecy."

Johnsen suggested that Congress consider legislation to require additional reporting when the executive branch fails to enforce statutes as written. Both Feingold, the chair of the subcommittee, and ranking member Senator Sam Brownback indicated their interest in pursuing the possibility of such legislation.

Johnsen can be reached at 812-856-4984 or For the text of Johnsen's testimony, contact Debbie O'Leary at 812-855-2426 or, or Steve Hinnefeld at 812-856-3488 or