Not much attention has been paid so far to the role that the memos play in the broader legal landscape. Here’s an attempt to explain it. This is from my story in the paper today, which includes an interview with former CIA chief Michael Hayden:
The memos released by the White House on Thursday do not constitute the totality of jurisprudence produced by the U.S. government since the Sept. 11, 2001, terrorist attacks. There are at least 12 other memos from the Justice Department’s Office of Legal Counsel that pertain to detainee treatment and interrogation that remain secret, along with at least six others that have been made public, according to a count by the ACLU.
Three of the memos released Thursday represent the Bush administration’s attempt to rebuild a legal framework for enhanced interrogation techniques after several earlier memos were rejected in 2004 by then-OLC head Jack Goldsmith.
Mr. Goldsmith rescinded much of the rationale for aggressive interrogation that relied, in his opinion, too heavily on an overly broad interpretation of the president’s authority in wartime, which was created in 2001 and 2002 by then-OLC head Mr. Bybee and one of his deputies, John Yoo.
Mr. Goldsmith’s replacement, Mr. Bradbury, made clear in his 2005 memos that he was not relying on the legal arguments that have been largely attributed to Mr. Yoo.
— Jon Ward, White House reporter, The Washington Times