Located within the Department of Justice, the Office of Legal Counsel functions as one of the most powerful legal bodies in the federal government. Although few have heard of it, the office is responsible for putting forth legal opinions that shape the public policies of the executive branch. Its most important duty is helping to define the legality of decisions made by the White House. While the Constitution gives the US Attorney General responsibility for providing legal advice to the President, the Office of Legal Counsel has become the de facto legal advisor to the Oval Office. During the administration of George W. Bush, the office has become the center of numerous controversies surrounding the President’s bold—and probably illegal—efforts to extract information from suspected terrorists. One of the most heated criticisms of the Bush administration has been its decision to allow military and intelligence officers to use torture while interrogating detainees—a decision based on the legal rationale provided by the Office of Legal Counsel. The low-profile office also has ruled that the federal government can legally fund organizations that discriminate in their hiring based on religious preferences.
The Office of Legal Counsel was created in 1934 by Congress as part of an executive branch reorganization that involved the Department of Justice. The office was headed by an assistant solicitor general until 1951 when Attorney General J. Howard McGrath elevated the office’s top post to assistant attorney general in charge. The office was also renamed the Executive Adjudications Division. This lasted for two years until the name was changed to Office of Legal Counsel by Attorney General Herbert Brownell.
Dawn E. Johnsen is an outspoken critic of the Bush administration’s use of the Office of Legal Counsel (OLC)—a key part of the Department of Justice that she once led on an interim basis during the Clinton presidency and has been asked to lead again. During her previous tenure at OLC, she advocated for increased executive power. In 2006, she joined with several other Clinton Justice Department officials in support of retaining the right of the president to use “signing statements” that allow him to bypass laws, claiming that the practice should be retained even if President Bush abused it. Johnsen does not support the prosecution of CIA operatives and contract employees who committed torture. She does support investigating how it came to pass that the “OLC misinterpreted the law in a way that led to torture.”