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The ‘blueprint’ for Abu Ghraib?
A “notorious” memo just released by the Defense Department “gave the Pentagon the green light to torture detainees,” said Marty Lederman in Balkinization. The document “reads like a careful lawyer’s work,” said Orin Kerr in a Slate blog, but it fails to s
W

hat happened
The Defense Department, responding to a 2004 Freedom of Information Act request, released the text of a 2003 memo that provided the legal rationale for military interrogators to use harsh tactics in questioning terrorist suspects detained outside the U.S. (Reuters) The 81-page memo, written by Justice Department lawyer John Yoo, argues that the president, as commander in chief, is not bound by statutes banning torture and other interrogation techniques. The memo was rescinded less than a year after its recommendations were enacted. (The Washington Post, free registration)

What the commentators said
This “notorious memo” essentially “gave the Pentagon the green light” to torture detainees, said Marty Lederman in the blog Balkinization. That makes it the “blueprint that led to Abu Ghraib” and other abuses in 2003 and 2004. And Yoo, a “mere deputy” in the department’s Office of Legal Counsel, was so eager to push his “outrageous arguments” that he sent the “torture memo” to the Pentagon the day after his boss left to become a federal judge—and that was “a Saturday, mind you.”

Actually, it's striking "how lawyerly" the memo reads, said law professor Orin Kerr in Slate’s Convictions blog. It “cites tons of authority, hedges arguments, discusses counterarguments, and generally reads like a careful lawyer’s work,” and if it was a Supreme Court opinion, “it would be entirely acceptable.” But Yoo's "doctrinal analysis is generally poor." He says torture is OK in self-defense—the "ticking-time bomb scenario," for example—but fails to explain under what circumstances it would apply.

Yoo’s legal advice is so “shoddy” that even conservative lawyers were “taken aback by it,” said Josh Patashnik in The New Republic’s The Plank blog. The real surprise is how “docile” Congress, especially its GOP members, has been in accepting a “constitutional theory” that “renders them toothless” and gives the president king-like powers. Our whole system is premised on the notion that “naked self-interest” will prevent Congress from handing power to the executive.

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