On Jan. 5, President-elect Obama nominated Dawn Johnsen as Assistant Attorney General for the Office of Legal Counsel (OLC). Johnsen has written articles advocating for restrained executive power and increased government transparency, in particular at OLC. The office issued several secret and controversial opinions during the Bush administration.

The OLC provides legal advice to the president, Cabinet departments, and other executive branch agencies regarding the constitutionality or legality of particular policies. OLC memoranda are regarded as binding on the executive branch, and as their legal opinions are most often kept secret, they frequently go unreviewed by Congress or the judiciary. The office has provided a legal justification for some of the Bush administration's most controversial counterterrorism activities, including John Yoo's secret 2002 torture memorandum, the National Security Agency's secret warrantless wiretapping program, and secret Central Intelligence Agency prisons.

Johnsen, most recently a professor at Indiana University Law School, spent several years at OLC during the Clinton administration, including two years as acting head. Along with eighteen other former attorneys from OLC, Johnsen authored a white paper — "Principles to Guide the Office of Legal Counsel" — outlining the manner in which OLC should operate. Johnsen and the other authors concluded that greater transparency at OLC would have trickle-down effects across the federal government, strengthening the rule of law and the system of checks and balances while enriching the quality of American democracy.

The white paper recommends OLC make its opinions public "in a timely manner, absent strong reasons for delay or nondisclosure." The former OLC attorneys believe doing so promotes accountability, "ensur[ing] executive branch adherence to the rule of law and guard[ing] against excessive claims of executive authority," and as a corollary, "transparency also promotes confidence in the lawfulness of governmental action." The paper also proposes that the public disclosure of legal advice helps agencies understand and apply such advice. Finally, disclosure allows the legislative and judicial branches to better evaluate and check executive actions.

In an article published in the UCLA Law Review, entitled "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power," Johnsen sees OLC as an essential contributor to the checks and balances on the president's power. Complementing the external checks of the legislative and judicial branches, Johnsen believes OLC can serve as a check internal to the executive branch. "OLC must be prepared to say no to the President. For OLC instead to distort its legal analysis to support preferred policy outcomes would undermine the rule of law and our democratic system of government."

Johnsen believes that the "torture opinion" was constructed on a flimsy legal basis, explicitly to achieve the goals of the executive. She theorizes that had OLC been concerned with not merely justifying action regardless of its constitutionality, but with providing a neutral legal analysis, such an opinion would never have been issued.

President-elect Obama made repeated campaign promises about having the most transparent administration in our country's history. Based on Johnsen's previous writings, her nomination appears to not only signal a strong intent to break with Bush administration policies, such as the use of torture, but also a significant step to ensure and improve transparency across the executive branch.