Office of Legal Counsel

Ted Olson was the man who argued Bush v. Gore at the Supreme Court and won, making George W. Bush the 43rd President of the United States.  And he was also the man Bush then quickly tapped to serve as the Solicitor General.  On top of that, he served as Assistant Attorney General for the Office of Legal Counsel under President Reagan and even sits on the board of the Federalist Society.

But I have a feeling that none of that will matter to the Religious Right when they find out about this:

Former Bush administration solicitor general Theodore Olson is part of a team that has filed suit in federal court in California seeking to overturn Proposition 8 and re-establish the right of same-sex couples to marry.

The suit argues that the state's marriage ban, upheld Tuesday by the California Supreme Court, violates the federal constitutional right for same-sex couples to marry. The complaint was filed Friday, and Olson and co-counsel David Boies -- who argued against Olson in the Bush v. Gore case -- will hold a news conference in Los Angeles Wednesday to explain the case.  The conference will feature the two same-sex couples on whose behalf Olson filed suit.

The suit also asks the U.S. District Court for the Northern District of California to issue an injunction that would stop enforcement of Proposition 8 and allow same-sex couples to marry while the case is being decided.

"I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions," Olson told me Tuesday night.  "I thought their cause was just."

I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California.  "It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution," Olson said. "The constitution protects individuals' basic rights that cannot be taken away by a vote.  If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution.  We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation."

Technically, the suit Olson has filed is against the governor, attorney general, and other officials of the state of California.  Ultimately, Olson said, it's a question that will be decided in Washington, by the Supreme Court. "This is an issue that will get to the Supreme Court, and I think it could well be this case," he said.

I imagine that Olson’s conservative bona fides won’t be enough to shelter him from an onslaught of vicious criticism from the Right for this heresy.

Last week, Andrew Sullivan wrote a post linking to a Senate Intelligence Committee Report on the CIA’s detention and interrogation techniques which claimed that “In July 2003 … NSC Principals met to discuss the interrogation techniques employed in the CIA program” and that, according to CIA records, those in attendance included the Acting Assistant Attorney General for the Office of Legal Counsel.

Sullivan pointed out that “in the spring of 2003, that post was held by M Edward Whelan III, an arch-Catholic. Whelan is the head of - wait for it - the Ethics and Public Policy Center.”

Whelan immediately responded with a post of his own, calling Sullivan’s assertion a “vicious lie" and categorically stating "that I never attended the meeting that Sullivan refers to and that I never had any knowledge of or involvement in any of the matters involving interrogation techniques."

What does this have to do with us?  Nothing really, other than the fact that I happened to mention it in one of the round-ups I did last week:

Andrew Sullivan says that Ed Whelan was involved, during his time in the Bush Administration, in discussions of torture, but Whelan denies it, calling it a vicious lie.

Whelan has since been on a mission to get Sullivan to retract this “libelous attack” on him, which Sullivan has now done, personally apologizing “for causing Mr. Whelan any distress.”

But apparently that isn’t enough, because we have now been contacted by Schuyler Smith of the Ethics and Public Policy Center demanding that we make prominent note of Sullivan’s retraction here and, if we don’t, face libel charges of our own:

You recently linked to a blog post by Andrew Sullivan that falsely and libelously accused Ed Whelan of support for, and involvement in, torture (http://www.rightwingwatch.org/content/right-wing-round-42). Andrew Sullivan has now entirely retracted his libelous charge http://andrewsullivan.theatlantic.com/the_daily_dish/2009/04/nros-ed-whelan-ctd.html). 

In order not to be committing libel against Mr. Whelan by perpetuating a charge that has been retracted, I ask on Mr. Whelan’s behalf that you immediately (1) publish a post noting Mr. Sullivan’s retraction, (2) prominently link to that correcting post on your original post, and (3) e-mail me a link to your correcting post.  Thank you.

Does this satisfy EPPC’s requirement?  We sure hope so, because we’d hate to be sued for merely writing one sentence mentioning the issue.  

Sullivan says he has been assured that Whelan “does not support torture” and Whelan himself says that he has “never defended torture." But since he was Principal Deputy Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice until 2004, during which time the administration was debating the use of torture, perhaps this presents a good opportunity for him to explain just what, if any, his role was in this debate.

[Update: Smith has contacted us, insisting that Whelan did answer this question, pointing to this post from September 2007 in which he said he was "not well positioned to comment on the issues in immediate dispute, as my own involvement at OLC in opinions on national-security matters generally ranged from non-existent (especially on the opinions that have been the subject of greatest controversy) to marginal."]

The Right has been working overtime to attack President Obama’s nominees to the Department of Justice.  But the grandstanding and name calling that have characterized the Right’s attacks on Elena Kagan, Tom Perrelli, David Ogden, and Eric Holder might only be skirmishes compared to the campaign they’re gearing up to wage against the President’s nominee to head the Office of Legal Counsel, Dawn Johnsen.

Today the National Review weighs in with its typical sobriety.

In Dawn Johnsen's dizzying jurisprudence, government has no business invading individual privacy and regulating abortion but is obliged to coerce taxpayers into underwriting abortions as a first step in what she unapologetically calls "the progressive agenda" of "universal health care, public funding for childcare, paid family leave, and . . . the full range of economic justice issues, from the minimum wage to taxation policy to financial support for struggling families."

If Johnsen is confirmed, OLC will be transformed from a source of non-ideological legal analysis to a culture-war agitator. And its value to the Department of Justice may be lost.

Most of the article is a tirade against Johnsen’s pro-choice credentials, but be sure not to miss the hilarious interlude describing her “smearing of John Yoo, the Cal-Berkeley law professor who, as a Bush OLC staffer, principally authored DOJ's so-called torture memo.”

In contrast to Johnsen's perversion of anti-slavery law to suit her abortion agenda, Yoo was not twisting the law to advocate torture. He was soberly attempting to construe a legal term, "severe . . . pain or suffering," part of the statutory definition of torture that had not yet been interpreted by the courts. This is what OLC does: It struggles to understand the state of the law, irrespective of staffers' predilections, so that policymakers can act in full awareness of their options.

Who says that conservatives don’t have a sense of humor?

Seriously though, as much as we’d love to smear John Yoo’s reputation, he’s already done more to shame himself than we (or Dawn Johnsen) could ever hope to do.