OK, true, Orin and Jack , lawyerly can mean trussing up bad and thin arguments with questionable analogies from other cases and a horde of citations. (Though an awful lot of the ones in this Yoo memo are to other OLC memos from the same era — the ones Marty wants to see .) And I wouldn’t say a thoughtful and responsible weighing of counterarguments is the m.o. here.
Any reactions to how this discussion relates to the excellently timed Vanity Fair piece on Guantanamo and torture interrogation posted today? The article concentrates on the 2002 memos that had previously been disclosed, which Phil has pointed out previewed much of the reasoning in the newly released March 14, 2003, memo. Since I’m the one arguing that the legal reasoning of Yoo and the other torture lawyers is shoddy and unmoored, I am struck by this exchange between the writer, Phillippe Sands, and Doug Feith:
Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantánamo? “Oh yes, sure,” [Feith] shot back. Was that the intended result?, I asked. “Absolutely,” he replied. I asked again: Under the Geneva Conventions, no one at Guantánamo was entitled to any protection? “That’s the point,” Feith reiterated … That indeed was the point. The principled legal arguments were a fig leaf.
Yoo of course argues otherwise . I believe Feith. And even if these bald quotes aren’t a surprise — apparently to him, they’re uncontroversial — what’s useful about these moments when new memos drop from DoJ, I think, is that they give us a chance to remember that we should be shocked, even if we no longer can be.
On another note, Nick Rosenkranz points us to this Federalist Society debate over Medillin v. Texas .