U.S. attorney positions in Texas remain unfilled, writes Todd J. Gillman of The Dallas Morning News (DMN). The DMN notes that the "Senate has confirmed Obama-picked prosecutors for 57 or 93 federal districts nationwide. Nineteen more nominations are pending. A dozen districts have no nominee, including the four in Texas."

The DMN reports:

Tussles between Texas' senators, both Republican, and the state's Democrats in the U.S. House certainly caused some of the delay, but both sides long ago submitted lists of preferred nominees that largely overlap. While most states have gotten Obama nominees, Texas is still waiting.

...

With Democrats expected to lose Senate seats in November, winning confirmation of nominees won't get any easier. And the longer Obama waits, the harder it gets to woo top talent because of the grueling process, said Paul Coggins, the U.S. attorney in Dallas under [President] Clinton.

Coggins added, "At some point the White House just has to step in and say, ‘Look I've heard from the senators, and I've heard from the congressman, and here's who I'm nominating.' You'll probably hack off one side or the other but that certainly would be welcome among most of us Texans."

The Senate is moving far too slowly on confirming judicial nominations, causing more vacancies on the federal bench and delaying justice for Americans, President Obama said earlier this week at the White House.

ACS is launching JudicialNominations.org, a resource that will offer all those concerned about the ability of federal courts to operate efficiently to stay on top of the judicial nominations process. JudicialNominations.org brings together for the first time an array of information, including an interactive map that allows the user to select an individual district or circuit court and identify the number of vacancies in that area, how long those vacancies have existed, whether anyone has been nominated to the seats, and how long nominees have waited for confirmation. The Web site will also provide links to congressional statements, videos, upcoming hearings and other events, and the latest nomination news.

During his Rose Garden address, Obama said he had urged leaders of both parties in Congress, to "work with us to fill the vacancies that continue to plague our judiciary. Right now, we've got nominees who've been waiting up to eight months to be confirmed as judges. Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans. Both Democrats and Republicans agreed that they were qualified to serve. Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate."

The president continued, "If we want our judicial system to work - if we want to deliver justice in our courts - then we need judges on our benches. And I hope that in the coming months, we'll be able to work together to ensure a timelier process in the Senate."

Visit JudicialNominations.org today and check back frequently to follow developments on judicial nominations and vacancies on the federal bench.

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David Mortlock is the author of a recent article on this topic in the Harvard Law & Policy Review.

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The United States has yet to settle on a definition of enemy combatant. The Supreme Court spent the past decade determining whether and how detainees could challenge their detention but explicitly avoided the question of whether they could be detained in the first place. The debate has divided not only political rivals, but also, as the New York Times recently detailed, seniors official in the current Administration.

A handful of district and circuit courts have begun to examine the scope of the President's authority to subject enemy combatants to military detention without charges, a jury trial, or any of the other trappings of criminal detention. Some parties have taken the position that the President lacks detention authority in the fight against a terrorist group, while others argue that the President may detain even unwitting supporters of al Qaeda. The courts have reached a number of different conclusions.

In my article, Definite Detention: The Scope of the President's Authority to Detain Enemy Combatants, I suggest that Congress has authorized the President to subject members of al Qaeda and the Taliban to military detention, whether or not they engage in combat. However, the President may not use military detention for mere supporters or sympathizers of those groups. This membership model could also be used to determine the appropriate time for release. Namely, detainees could be freed when they sever their membership in al Qaeda or the Taliban.

Nonetheless, the debate is far from over. While a number of district courts have adopted this membership model, the D.C. Circuit recently suggested in dicta that an individual could be subjected to military detention merely for supporting the Taliban. The decision indicates that this debate could continue for many years.

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By Serena Vinter, Dara Alpert Lieberman, and Jeff Levi, authors of a recent article for the Harvard Law & Policy Review. Vinter is Senior Research Associate; Lieberman is Government Relations Manager; and Levi is Executive Director at Trust for America's Health, a non-profit, nonpartisan public health policy and advocacy organization in Washington, D.C.

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Is the United States prepared for the next public health emergency? We've certainly faced our fair share of major public health crises over the past decade, including the 2009-2010 H1N1 influenza pandemic, natural disasters like Hurricanes Gustav and Ike in 2008 and Katrina and Rita in 2005. Americans also experienced the terror attacks of September 11, 2001 and the anthrax mailings in October of the same year.

Were these events wake-up calls to spur action? Based on the year-long health reform debate in Washington -- and the nearly complete absence of any serious discussion among elected officials and the general public about how a reforming health system could enhance our nation's ability to respond to public health emergencies -- it would appear that instead the country hit the snooze button and has lapsed back into complacency.

If we are serious about being prepared to confront the next public health threat, we need to modernize our public health and health delivery systems and take advantage of the opportunities the Patient Protection and Affordable Care Act (P.L. 111-148) presents to build prevention, preparedness, and response into our nation's public health and health care systems.

In our recent essay for the Harvard Law & Policy Review, Public Health Preparedness in a Reforming Health System, we examine how comprehensive health reform can be used to strengthen our nation, while noting that even with health reform, major gaps remain in our public health preparedness. Addressing these underlying weaknesses in our health system will not be easy or cheap, but failure to address these concerns could prove extremely costly.

As we come upon the five-year anniversary or Hurricane Katrina this August -- which left more than 1,800 people dead, caused some $81 billion in damages, and left the Gulf Coast region's public health and health care systems in shambles -- we hope that it won't take another natural disaster of this magnitude for our country to move ahead on strengthening our nation's preparedness.

President Obama recently called on Congress to overhaul the immigration system, finding a way to create a path to citizenship for nation's undocumented workers and families. At the 2010 ACS National Convention a panel of leading experts discussed the state and federal actions dealing with immigration, notably focusing on the stringent law in Arizona. Following the panel discussion, Thomas A. Saenz, president and general counsel of MALDEF talked with ACSblog about the need for immigration reform and the tragic struggles many immigrants face in keeping their families together.

Video of the entire panel discussion, "Immigration Reform: Congress and the States," is available here. Watch the interview with Saenz below or download a video podcast here.

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By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School

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The Supreme Court's 5-4 decision today invalidating a portion of the statute creating the Public Company Accounting Oversight Board (PCAOB) extends the implied power of the President to remove officers of the United States, but does so in a back-handed manner and introduces confusion into whether thousands of persons who work for the federal government are entitled to the statutory protections against removal that are currently contained in multiple provisions of the United States Code.

Unfortunately, the statutory structure and relation of the Board to the Securities & Exchange Commission really matter, so here they go. After the various accounting and other securities fraud scandals that surfaced in the early 2000s, Congress passed Sarbanes-Oxley, one portion of which created the Board to regulate the accounting profession as applied to the securities field, modeling its structure on the bodies that regulate the stock exchanges, except that it made the Board a governmental entity, exercising government power. All five members of the Board are appointed by the Commission for terms of years (staggered) and are removable only for cause and only by the Commission, not the President. The majority opinion, written by Chief Justice Roberts, asserted that the Commission members are also removable only for cause, but as Justice Breyer pointed out in his 37 page dissent (plus 36 pages of statutory tables) the Commission's statute does not include any for cause language, unlike most of the comparable agencies, although it has always been assumed that the Commissioners can only be removed for cause.

As befitting an agency that regulates a profession, the Board has the right to approve applications of accountants to practice before the Commission, issue rules, conduct investigations, and bring administrative enforcement proceedings to sanction accountants that violate its rules or those of the Commission. It is also undisputed that all Board rules must be approved by the Commission, and all of its administrative decisions are reviewable by the Commission, which has the power to reverse them, as well as to increase or decrease the Board's level of sanctions.

The case was filed by the non-profit Free Enterprise Fund and by an accounting firm that is a member of the Fund and that was once investigated by the Board (but was not sanctioned) and is still subject to regulation by it. According to the majority opinion, their main claim was that the Board was illegally constituted because its officers are not lawfully appointed under the Appointments Clause in Article II, Section 2, clause 2. The plaintiffs alleged that, because of the Board's extensive powers and the lack of meaningful supervision by the Commission or anyone else, the members of the Board are all principal officers who must be appointed by the President with the advice and consent of the Senate, which they clearly were not. Their alternative argument is that, if the Board is composed of inferior officers, who may be appointed by Department heads, the Commission is not a Department under that Clause and that the Commission as a whole cannot be a Department "head" - only the Chair can be. One piece of good news for those seeking some separation of powers clarity from this decision is that the majority specifically rejected the alternative arguments, with the apparent agreement of the dissent, holding that a body such as the Commission can be a Department and that the Commission as a whole can be the "head" of it under the Appointments Clause.

Instead of starting with the issue of principal vs inferior officer, the Chief Justice assumed that the Board's members were properly appointed as inferior officers, but then took up the issue that caused Circuit Judge Kavanaugh to dissent: the absence of any direct role for the President in their removal, and the fact that even the Commission could only remove them for cause. Without going into the history of removal litigation in the High Court, even the majority conceded that there was no case that presented this two-level for cause situation, but it nonetheless took it on. It did so on the theory that it was protecting the powers of the President, even though the Solicitor General, who works for the President, filed a brief supporting the structure of the Board as a permissible judgment of Congress as to its need for independence. This was not an automatic position for the SG since in many other separation of powers cases under the Appointments Clause, that office has asked the Court to strike down many that infringed on the powers of the President to appoint or remove officers, in such cases as Myers, Humphrey's Executor, Buckley, Bowsher & Morrison. One would think that if the President didn't think he needed any help from the Court, it might have been a little reluctant to jump in, but that was not the case.

Although there is a not a word in the Constitution about removal of officers, the Court has previously found implicit in the President's ability to assure that the laws are faithfully executed a constitutional necessity that he have some power over the retention of officers of the United States, and it applied that principle to the Board. No one challenged the (assumed) limits on removal of the Commissioners, but instead the Court concluded that the second level limits on the power of the Commission to remove Board members infringed on the President's power to assure that the Commission and/or the Board did their jobs properly. Having decided that the limitation on the Commission's removal power was unconstitutional, the Court then concluded that the Board could be composed of inferior officers, rather than principal officers, because of its ruling in this case that the Commission could fire them at will, even if it did not have the power to oversee their daily operations, as the dissent believed the Commission had under the statute, making the removal issue irrelevant.

I leave to the majority opinion to defend that ruling and to explain how it sliced and diced the statute to save the Board, but free up the Commission to fire its members at will, despite the clear intent of Congress not to give it that power. I also leave to the dissent to explain why the principal conclusion of the majority is in error. Instead, I want to raise a preliminary question that the majority did not discuss, ask what Congress might do as a second best alternative, and then touch briefly on the some of the concerns expressed by the dissent that relate to how this opinion will affect agencies beyond the Board.

Before getting to the merits, the Court was faced with a claim that the plaintiffs had to exhaust their administrative remedies and could not bring this case in this form. The Court rightly rejected that contention on the ground that at least the accounting firm was objecting to being subjected to a Board that was illegally appointed and thus had no power to do anything. But that argument has much less force when the issue is not the Board's method of appointment, but whether the plaintiffs have standing to protest that the Commission has too little power to remove Board members. It is one thing to conclude that Congress had too much power over the removal of the Comptroller General as he was then known in Bowsher v. Synar, so that members of the public who were subject to his rulings could protest his lack of independence, but here the claim would have to be that the Board had too much independence and that somehow the plaintiffs would inevitably be harmed by that. Given the stringency with which the Chief Justice and others in the majority have been applying the doctrine of standing, it is quite remarkable that they expressed no concern over the right of these plaintiffs to sue on this claim, with no showing whatsoever has to how this limitation adversely affected them. Of course, if the Court had found that the Board's members were principal officers, there would be no standing issue, but having split the baby this way, undoubtedly so that the Board's past and future actions would remain in place, that created a standing issue that the Court chose to ignore.

What might Congress do now to fix up a regime that it clearly did not want? First, it could do nothing on the theory that the Commission will not exercise this newly awarded power except in extreme cases, that there will be none, and that, because if there are problems the Commission would have to fire at least two and probably three members to effect any change, which it will probably never do. Second, it appears from the majority opinion that if either the Commission or the President had the power to fire Board members at will, that would satisfy the majority. Thus, Congress could amend the statute so that power to fire resides with the President, who would probably have too much else to do to worry about besides the Board that supervisors accountants, especially since he would not get to pick their replacements. Third, Congress could give the President the power to appoint the Board (with recommendations from the Commission), but then make the Board subject to removal only for cause, by the President. In this option, the Board might also be relieved of Commission supervision of its decisions, but that might not be necessary. None of these solutions is ideal, and given the fact that Congress has just finished the financial services regulation bill and seems unlikely to want to open up these issues now, leaving well (or bad) enough alone might be the best or at least the most likely course.

The dissent of Justice Breyer has two parts: in the first, he takes issue with the majority by arguing that none of the reasons for any of the Court's prior separation of powers cases striking down federal statutes has any application here and most point in the opposite direction. In doing so, he shows why this decision is wrong, but that does not seem to be his main concern since the statute governing the Board is unique in many ways. The problem, which Breyer explores in the second part of his dissent, is what else is subject to the majority's newly minted Presidential (or actually Commission derived from the President) right, given the great variety of federal agencies and the ways in which their membership is established and controlled. Perhaps it did not occur to him, but he might have taken a page from the Chief Justice's dissent in Caperton in 2009 which listed 40 questions that the opinion of Justice Kennedy in that case left open. I did not count the questions raised by Justice Breyer's dissent, but if they did not reach that number, they came pretty close. Among the most significant is what the majority will say about administrative law judges whom no one can remove without cause and who appear to be at least inferior officers.

For those who are interested in creating hypotheticals for class or a final exam, there are fertile grounds in the dissent's two appendices, the first listing 48 statutes limiting removal of specified officers and the other listing 573 Senior Executive Service officers whose removal might be subject to this ruling. As the dissent remarked, the ruling could be limited to this statute, but it is not easy to see on what principle, or it could be broad and hence potentially quite disruptive - and the majority does not tell us which one it will be. If it is the former, it can be forgotten as just an errant decision, but if it is the latter, the administrative state of the federal government is in for a rocky and uncertain ride.

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By Eugene R. Fidell, President, National Institute of Military Justice (NIMJ); and Florence Rogatz Lecturer in Law and Senior Research Scholar in Law, Yale Law School. The following post is adapted from comments Fidell made during a panel discussion he participated in at the 2010 ACS National Convention. Video of that panel discussion, "Detainees and Justice: Military Commissions versus Trials within the Federal Court System," is available here.

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This post is cross-posted at NIMJ's blog.

In a talk at the Brookings Institution the week before last, Assistant Attorney General David Kris, who heads the National Security Division, commented on the relative merits of trials in the district courts and in courts-martial for international terrorists. His remarks are available on the Justice Department's Website, and I encourage you to read them if you have not already done so.

Mr. Kris identified five factors that argue for using a military forum and five that argue for civilian trials. In the military column he included proof requirements (beyond-a-reasonable-doubt in both systems), the admissibility of confessions, the ability to close the courtroom, the admissibility of hearsay, and classified evidence. In the civilian column he listed certainty and finality, scope, incentives for cooperation, sentencing, and international cooperation. He wisely cautioned that an observer would have to go far deeper into the weeds to reach solid conclusions on any of these points. Nonetheless his list is helpful, and he has done a public service by setting out these considerations to help inform public debate.

I would like to offer a different take -- in part at the 50,000-foot level, but in part a worm's-eye view.

At the highest level, it seems to me, the question is whether trials in military courts are likely to generate public confidence in the administration of justice-a factor Mr. Kris mentioned. Obviously this can be an exercise in self-fulfilling prophecy. If many voices are heard singing the praises of military commissions, then perhaps public confidence is boosted. And conversely if there is a chorus of criticism, with people asserting that public confidence cannot be served in such a forum, that in itself can erode public confidence. So there is a conundrum built into the discourse. And yet, the question remains whether these tribunals do or will within a reasonable further period merit public confidence. I will leave it to you to make a judgment, but in order to make that judgment it seems to me that you have to try to isolate the factors that tend to foster or detract from public confidence.

Before I get to those factors, it's important to focus on who is "the public" for the purpose of this inquiry. Is it only the American electorate, as Mr. Kris suggested ("the American people need to understand, and have confidence in, all of the tools in the toolbox")? Or does it include people in other democracies, whether or not they have chosen to ally with us in the struggle with al Qaeda? Or does it extend to people who are either quite neutral, or worse yet, favorably disposed to al Qaeda? Let's assume we are talking about a population that at least shares our core values about the rule of law.

So what affects public confidence in the administration of justice?

• Outcomes that are objectively accurate are a good starting place. That only persons who are guilty are found guilty. And of course that the guilty are actually convicted.

• That sentences are within reason.

• That proceedings are conducted with reasonable dispatch.

A system that failed any of these three tests would hardly earn public confidence, however you define the public.

Taking only these three factors into account, how do the military commissions stack up?

Given the handful of cases to date, it does seem that no innocent persons have been convicted, and -- since there have been no acquittals--it is obvious, conversely, that no guilty person has been acquitted.

Sentencing presents a tougher question. Certainly the few sentences that have been handed down have not been draconian. Indeed, some might argue that if anything they have been too lenient, although it is hard to carry the day on that point given the protracted periods of pretrial confinement the accused have experienced. The government tried without success to have the commission reconsider Salim Hamdan's receipt of credit for time served.

Reasonable dispatch is an even harder case to make. Admittedly, the impediments to conducting trials by military commission have been daunting. Because the Bush Administration elected to proceed as it did, without legislation other than the Authorization for Use of Military Force (rather than amending the military commission aspects of the Uniform Code of Military Justice), litigation was certain. The novelty and nature of the issues made Supreme Court review highly likely, with the delay that entails given the Court's reluctance to convene in extraordinary sessions. In addition to its fundamental error of proceeding by Military Order in November 2001, the Bush Administration also reduced its own chances of success in the inevitable litigation by failing to make impracticability findings that any reasonable observer would accept as justifying a departure from civilian procedure or even court-martial procedure, as the Court noted in Hamdan v. Rumsfeld.

And yes, when Congress got into the act by passing the Military Commissions Act of 2006, it ensured further delay since the legislation proved defective, as the Court held in Boumediene v. Rumsfeld, requiring yet additional legislation in 2009.

But set all of that aside. Have the commissions proceeded-allowing for these delays-with what any reasonable observer can call reasonable dispatch-or can we expect that going forward? I think not. Why is that? One explanation is the sheer inconvenience of the place of trial (never mind the expense, as General Charles C. Krulak, retired Commandant of the United States Marine Corps observed a week ago in an extraordinary letter to the editor of The Washington Post). General Krulak commented: "The real absurdity of the Guantanamo boondoggle is that we never needed to spend a dime to create it." He also wrote: "the greatest cost of Guantanamo has been to American global leadership and credibility as a nation that respects the rule of law."

I know of no place under the U.S. flag in which sheer geography imposes such hurdles on counsel and other trial participants. No, it's not easy to make time to visit any client who is behind bars, but in what other setting is the mere act of visiting such a production, with access so pervasively controlled by the government? And I don't mean just getting into the counsel-interview room: I mean getting to the place of detention itself. It may be only 100 miles or so as the crow flies from Miami to Guantanamo, but it might as well be thousands of miles away.

No wonder these cases have taken forever to move forward. Remember, every motion session involves flying in a substantial case of characters: prosecutors, defense counsel, court reporters, translators, paralegals, security personnel, and judges.

Adding to the delay has been the Defense Department's delay in generating the detailed rules to govern the proceedings.

Even if one were to subtract all time attributed to the effective advocacy of detainee counsel such as present Acting Solicitor General Neal Katyal, it is impossible to justify the parade-like pace of these proceedings.

So far I've discussed accuracy in results, reasonableness of sentences, and timeliness. Are there other factors that bear on public confidence in the commissions?

Mr. Kris mentioned certainty as a factor militating in favor of civilian trials. That's true. Numerous observers have commented on the fact that the participants in the Guantanamo commissions seem to be making it up as they go along. We simply don't have a body of military commission precedent on which to draw. Earlier this year, one motions session was convened before the Pentagon issued a manual to replace the outdated one issued in 2007 to implement the 2006 Military Commissions Act. Is it difficult to have confidence in legal proceedings where the rules are announced in midstream. This kind of thing in turn builds in further delay-see above. Mr. Kris thinks uncertainty will recede over time. Maybe it would, if we were willing to give these cases an eternity.

How rules of law are made is itself the kind of thing that contributes to or detracts from public confidence. For those of us who thought we were actively participating in the legislative process that led to enactment of the 2006 MCA, it was a bitter experience to learn that the key elements were being worked out behind closed doors. Much the same happened with the 2009 legislation. But that's Congress, and perhaps there's no difference between what happened in 2006 and 2009-with the target off the radar screen-and how legislation is typically made in this town.

But the legislation was not the end of it. There were also massive implementing rules, about the size of the Montgomery County telephone directory. Numerous students of the military commissions-myself included-were appalled when the Bush Administration mostly dispensed with notice-and-comment rulemaking for the pre-MCA commissions. Earlier this year, the current Administration dispensed with public comment entirely in promulgating the 2010 Manual for Military Commissions, and failing even to issue an explanatory memorandum-which you and I both know exists-setting forth what had changed from the 2007 version. Observers were on their own in trying to find and understand the changes. So much for transparency in structuring the administration of justice by military commissions.

Public access to legal proceedings is another potent factor in fostering or eroding public confidence. Where the place of trial is remote and subject to stringent governmental access controls, one would think those in positions of responsibility would bend over backwards to accommodate and indeed, facilitate, public knowledge of the proceedings. (Remoteness also works a hardship on victims.) What, then, to make of the Defense Department's recent decision to exclude four journalists-including the Miami Herald's indefatigable Carol Rosenberg, the doyenne of the Guantanamo press corps-on the ground that they had published the name of an interrogator who was called as a witness. Their having done so was said to have violated the Guantanamo media ground rules, but the witness was widely known to have been prosecuted by court-martial and indeed had gone public with the media in his own defense. It is preposterous for the Pentagon to have excluded these journalists, partially if not substantially decapitating the Guantanamo press corps, and thereby depriving the American, Canadian and world public of the benefit of their insights. I hope the Pentagon public affairs apparatus relents and that the federal courts do not have to become involved, but whatever the dénouement, public confidence cannot have been served by this episode.

A legal system that is entitled to respect makes it decisions and the parties' submissions available in an organized fashion and a timely manner. I invite you to visit the Defense Department's website for military commissions and draw your own conclusions. The National Institute of Military Justice, which I head, responded by creating a Military Commission Reporter series to give the bench and bar access to the decisions in user-friendly law-reporter format. Why didn't the government do this itself?

What are we and others to make of the fact that Congress elected not to confer military commission appellate jurisdiction on our specialized appellate court for military cases, the U.S. Court of Appeals for the Armed Forces? Does a conscious choice like this-routing cases to another court that seems to have been selected only because it has been highly deferential to the Executive and Congress in Guantanamo-related cases-suggest forum-shopping on the grandest scale? What impact does this kind of transparent legislative ploy have on public confidence here or elsewhere?

Finally, our military commission system revolves around an official called a Convening Authority ("CA"), who decides which cases should be prosecuted. The CA is a familiar figure in American military justice, but military commissions do not have to do with maintaining good order and discipline within our forces; they have to do with punishing non-soldiers on the opposing side. Such an arrangement offends settled human rights norms to which our NATO allies subscribe. If part of what we are after is to earn public confidence among the democratic countries with which we share so much, and on which we rely, having a CA-be he who he may (the incumbent has a sterling reputation)--run the show is self-defeating. The power to make prosecutorial decisions should be vested in an independent prosecutor. This is 2010, not 1942.

Could some of these conditions be fixed in a way that was more likely to foster public confidence? Of course. However, at a certain point it becomes too late; an institution becomes tarnished beyond repair. In the case of the military commissions, it's too late.

I will close with one last, disturbing thought. Increasingly we have seen United States citizens engaging in conduct that is not reasonably distinguishable from the kinds of conduct for which we have chosen the military commission as a forum. Unless we are willing to change our rules and subject holders of U.S. citizenship to trial by military commissions, and I hope we are not, this pattern injects an arbitrary discrimination that will be increasingly hard to justify.

[image via U.S. Army]

Dawn Johnsen, President Obama's initial nominee to head the Office of Legal Counsel (OLC) provided a ringing call for young lawyers and other advocates of progressive values to stay to true to their principles and not fear speaking out on behalf of them for fear of losing potential political rewards.

Johnsen, an Indiana University law school professor and former OLC lawyer in the Clinton administration, was nominated more than a year ago to lead the OLC, which provides legal analysis on potential actions by the executive branch. Johnsen's nomination was defeated by a sustained threat of a Republican filibuster, partly because of her criticisms of the OLC's work during the Bush administration. The Johnsen nomination was also undermined by conservatives' obsession with her work to protect reproductive rights Specifically, Johnsen tagged the OLC's advice on torture of military detainees as legally reckless. Her nomination was also underminded by conservatives' obsession about her work to advance the protection of reproductive rights. She withdrew her nomination earlier this year.

But to those attorneys "who might to look at my experience and nonetheless still wonder if they are making a mistake by taking strong public stands on upholding our Constitution, I say this: In the current climate, even if you attempt a crass political calculus about how to live your life, you may as well say what you think, because they can always find a footnote to twist and distort in a 20-year-old brief."

"In my case it was footnote 23 in the 1989 Webster case -- and I have to say, whatever you think about the footnote, it was a damn good brief. Just three years out of law school, I had the privilege to write it with civil rights greats Judy Lichtman and Marcia Greenberger, and eight others, on behalf of 77 organizations committed to upholding Roe v. Wade, when the Court seemed poised to overrule Roe ...."

Johnsen continued, "Do you think for one moment I wish I had sat that fight out due to caution and calculation? Not a chance. Never for a moment. Not on your life."

"Of course the real point," Johnsen said, "is one should not live one's life -- deciding whether or how to write such briefs -- based on crass political judgments about possible future payoffs. You should stand on principle and speak out because, that is simply the right thing to do. It is the deep and best tradition of lawyers and others fighting for the rule of law and the rights of those without political power. It is the foundations of ACS. And it is also the patriotic thing to do -- the way for our great nation to achieve its potential." 

Tonight at the start of the 2010 ACS National Convention, Johnsen announced she was rejoining the ACS Board of Directors and that she had no regrets, whatsoever, about her outspoken criticism of the Bush administration OLC's office and its disastrous advice on the treatment of military detainees.

Stay true to your principles and do not be cowed into silence by political ambitions, she urged the packed Grand Ballroom of the Renaissance Mayflower Hotel in Washington, D.C.

Watch video of Johnsen's speech below:

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By Alex Kreit, assistant professor of law and director of the Center for Law and Social Justice at the Thomas Jefferson School of Law in San Diego, Calif. Kreit is author of an ACS Issue Brief, "Toward a Public Health Approach to Drug Policy."

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With the recent release of the Obama administration's National Drug Control Strategy, and drug policy increasingly making headlines with California's marijuana legalization measure set to appear on the ballot in the fall, now is a useful time to take a quick look at where our nation's drug policy appears to be heading. Director of the Office of National Drug Control Policy (ONDCP) Gil Kerlikowske assumed his job a little over a year ago on a promising note by saying that the time had come to discard the outdated and unhelpful terminology of a "war on drugs."

Since that time, the Obama administration has made a number of noteworthy policy shifts. The administration announced that they will no longer arrest and prosecute medical marijuana patients and caregivers in compliance with state medical marijuana laws (though it bears mentioning that some local offices may not always be faithfully abiding by this policy). Obama's Justice Department has worked to reduce the "100-to-1" sentencing disparity between powder and crack cocaine. It has also lifted the ban on federal funding of syringe exchange programs.

In announcing its new drug control strategy last month, the administration emphasized the importance of shifting away from the "war on drugs" mentality and treating drug abuse primarily as a public health issue. Kerlikowske (pictured) told The Associated Press, for example, that "[i]n the grand scheme, [the current strategy] has not been successful" and that forty years after Nixon began the drug war "the concern about drugs and the drug problem is, if anything, magnified, intensified."

Unfortunately, at least for the time being, the strategy does not quite match the administration's vision and continues to fund many of the very same programs that have "not been successful" at the same or greater levels as in previous years. As Ethan Nadelmann, head of the Drug Policy Alliance, has pointed out, contrary to the administration's effort to paint the strategy as a major step toward treatment and away from incarceration-oriented policies, 64 percent of the $15.5 billion federal drug control budget will be spent on interdiction and law enforcement while only 36 percent will go to treatment and prevention. This is virtually the same supply-and-demand allocation as under President Bush's final drug control strategy. And, if we go back further, we find that the percentage of President Obama's budget earmarked for demand reduction is actually less than in recent past. In 2002, 46 percent of the total drug control budget was spent on demand reduction efforts, a full 12 percent higher than under Obama's budget.

These numbers do not tell the whole tale, however. Taking a closer look at the strategy, we find some more room for optimism and signs of change. Even though the overall budget for supply-reduction remains unchanged, for example, the strategy emphasizes tactics that are less likely to result in the incarceration of drug offenders. In particular, as Professor Mark Kleiman highlights, the drug control reveals that the Department of Justice is in the process of replicating and funding "drug market intervention" programs, an approach that have achieved some success in addressing especially disruptive open-air drug markets "without mass arrests."

Perhaps even more important than the numbers in this year's strategy, however, are signals that the administration sees this as just the first piece in a more lasting policy change. In his interview with the AP linked above, Kerlikowske bluntly acknowledged that some people will "say the drug budget hasn't shifted as much as it should have, and granted I don't disagree with that. We would like to do more in that direction." He explained, however, that "[n]othing happens overnight."

There is good reason to believe that this is more than just rhetoric. After all, 40-years into the "war on drugs," the bureaucratic structure that has arisen to support it cannot easily be reconfigured overnight.

As is so often said about drug addiction itself, the first step to fixing our failed drug strategy is to admit we have a problem. So, while those of us who believe the current drug control strategy leaves much to be desired are right to point out its shortcomings, we should not underestimate the importance (and difficulty) of taking that first step. And, whatever else might be said about the new drug control strategy, I think it is clear that the administration has admitted that the past strategy has not worked and has taken the first-step toward a new approach.

 

The Office of Legal Counsel (OLC), which is charged with providing the administration legal analysis on potential executive branch actions and policies has gone too long without a leader, writes Dawn Johnsen, an Indiana University law school professor, whose nomination to head the OLC was defeated by Republican opposition, in an op-ed for The Washington Post.

Johnsen maintains that her criticism of the OLC's legal analysis regarding torture during the Bush years played a part in her nomination's demise. But, she writes, that it "is long past time to halt the damage caused by the ‘torture memo' by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding."

Johnsen, acting assistant attorney general in the OLC during the Clinton administration, and a former ACS Board member, continues:

After the torture memo came to light, I led 19 former OLC lawyers in developing 10 "Principles to Guide the Office of Legal Counsel." We called for a return to long-standing, nonpartisan practice. The results were not flashy proposals for change but the carefully considered consensus of experience. The first principle, from which the others follow: "When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies."

Put plainly, the OLC must be willing to say no to the president under any circumstances. The office does the president no favors by allowing its legal analysis to be twisted by policy or partisan preferences, even in the midst of crisis, as the months after Sept. 11 undoubtedly were.

Her entire op-ed is available here.

Johnsen will provide remarks on the first day, June 17, of the 2010 ACS National Convention, "The Constitution, Congress, and the Courts," before a Gala Dinner at which Senator Al Franken will be the featured speaker. Today is the last day for early registration for the Convention. Click here to register and obtain a full schedule.