We now have an innovation in executive power. During the Bush Administration, mid-level functionaries would be found to write legal justifications for waging war, committing acts of torture, or what have you. Now, during the Obama Administration, the top lawyers are free to give their considered opinion on these issues. But the President will simply overrule them.

Through what can only be described as a Christmas miracle, our very own Mary has “discovered” a new version of the Christmas Carol, as updated by the Obama/Bush Office of Legal Counsel. As Mary noted, “Those jokers at OLC. At least they enjoy their work”. Indeed. With “wise men” like John Yoo, Jay Bybee and Steve Bradbury, what could go wrong?

As you probably know, the Office of Legal Counsel is basically the Supreme Court inside the executive branch, providing legal opinions for the Administration on what they can and cannot do. It was legitimately good news at the time when that office was being staffed with people vocally opposed to torture. It’s legitimately depressing news that they have all been either blocked from their jobs or left them on their own accord. It signals a dark time in American history for the rule of law.

Yet another recess appointment proves the sham and fraud that was the Obama White House handling of Dawn Johnsen’s nomination to head the Department of Justice Office of Legal Counsel.

Acting Office of Legal Counsel head David Barron is returning to spend more time with his law students at Harvard, to be replaced by Jonathan Cedarbaum. Unlike several of the legal jobs that have turned over under this Administration, this one doesn’t appear to be tied to a fight over counter-terrorism policy.

There are predators, and then there are enablers.

It doesn’t matter if we are talking about child sexual abuse committed by Roman Catholic priests, deceptive Wall Street bankers, or DOJ-sanctioned torture. The game being played right now is the same, in all three venues: avoid accountability.

We’ve long known that in February 2005, then-acting head of OLC Daniel Levin contacted DOD General Counsel to remind him that the March 14, 2003 Yoo memo on torture had been withdrawn. But I, for one, had never seen a copy of that letter. It turns out the government included it with their Appeals brief in the David Passaro case (see pages 99-100).

It was not Ben Nelson who killed the nomination of Dawn Johnsen, nor was it Arlen Specter or Senate Republicans. No, the sole reason Dawn Johnsen is not leading the OLC is that Barack Obama and his coterie of advisors did not want Dawn Johnsen leading the OLC.

There was never any question but that the nomination of Dawn Johnsen to be head of the Department of Justice Office of Legal Counsel would be withdrawn. Now we have confirmation of that fact.

Meanwhile the Justice Department still has nobody at OLC, as hundreds of opinions requiring expert advice pile up.