INTEL DUMP summarizes a Wall Street Journal account of a 100+ page memo that purports to explain how torture of detainees at Guantanamo could be legally justified.
The core of the argument is little more than the old Nixonian one that the President is above the law, so that he can authorize actions that would otherwise be illegal. It's dressed up with some sophistication, but that's about what it amounts to.
Phil says all the right things, so I won't repeat them. But there is one aspect that he missed. According to the WSJ:
The lawyers concluded that the Torture Statute applied to Afghanistan but not Guantanamo, because the latter lies within the “special maritime and territorial jurisdiction of the United States, and accordingly is within the United States” when applying a law that regulates only government conduct abroad.
As summarized by the WSJ, the crux of the government's position in this memo is that the executive has full unreviewable power in Guantanamo, not subject to check by the courts (at least absent some congressional action?). That this might be legally possible does not make it legally or morally correct.
Thus, it appears that the memo somewhat undermines the argument that the government made before the Supreme Court, where it argued that Gitmo was outside the jurisdiction of the courts because, being subject to residual Cuban sovereignty albeit US control, it was not part of the US for jurisdictional purposes. It's not impossible to have different conceptions of 'domestic' jurisdiction for the reach of a statute and judicial review — but it's uncomfortable and IMHO presumptively wrong.
This memo may also strengthen the case, set out by Eric Muller, that Deputy Solicitor General Paul D. Clement knew or (more likely) should have known that he was making a false statement when he said “[i]t's … the judgment of those involved in this process [of interrogating POW's and enemy combatants] that the last thing you want to do is torture somebody or try to do something along those lines.”
Someone — Congress? — really needs to get to the bottom of all this.
