Balkinization  

Sunday, June 27, 2004

Torture Memos as CYA

JB

Michael Froomkin makes an important point:
[T]he Bybee memo was not written in a vacuum, nor (perhaps) due to some order from on high motivated by a desire to squeeze more info from detainees who were not coughing up the locations of weapons of mass destruction. No, what the NYT suggests is that the memo was written after the CIA had already done something — presumably excessive — to one of the detainees. Thus, it seems likely the White House was scrambling to find some legal cover for abuses that had already happened.

And, of course, once the memo was written, it offered legal cover for future activities.

Now go back and reconsider this exchange in front of the Supreme Court, two years later, on April 28th, 2004 in this light:

when Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement in the Hamdi cases whether judicial review should be foreclosed even in cases of alleged torture, Clement dodged the question. "Our executive," he insisted, doesn't engage in torture. "Judicial micromanagement" was inappropriate in wartime; "you have to trust the executive."

The Hamdi case will be coming down soon, possibly tomorrow.


Comments:

This is Mark Tushnet: I've wondered about this question: Should Mr. Clement, as an honorable person, have written a letter to the Court saying (if it is true) that he had no knowledge of the existence of the DoJ memos at the time he answered Justice Ginsberg?
 

Even more interesting than the letter Prof. Tushnet describes, I wish the Court had ordered reargument. The implications raised by the memos, in light of what we now know, are profound. Did the Court even considered reargument, or was that simply a can of worms the Court just didn't want to open? What the Court doesn't know, after all, can't hurt it.

Dan Ray, J.D.
Asst. Prof.
Eastern Michigan University
 

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