A story about the memo appeared on Monday in the Wall Street Journal (not available for free from the website, though the story can be read at Infoshop).
Left bloggers, especially those with law degrees (Mark Kleinman, Josh Marshall, Michael Froomkin, Philip Carter), are already analyzing the text of the memo and trying to figure out just where it goes off the rails legally and constitutionally. The memo is a finely-argued thing, but clearly its intention will not be served now that the Abu Ghraib scandal has broken. No one will be trying to use the arguments of this memo, I trust, to get the MPs and Military Intelligence people involved off the hook (the memo actually cites the Nuremberg Defense -- aka 'I was only following orders' -- as a viable defense for these soldiers).
The memo seems to be important because it proves that the US military use of torture goes much higher than some 'bad apple' soldiers and contractors. Classifying prisoners at Guantanamo as 'enemy combatants', as well as the need to keep them off U.S. soil, are both mentioned in this memo as ways to justify 'light' torture as policy. How high does it go? That is still being revealed.
Because of the Reagan frenzy, so far only a few news organizations have picked up the story with the urgency it requires. Newsweek/MSNBC has a story about it. The New York Times has a story that emphasizes the Democrats' outrage at the memo during hearings questioning John Ashcroft, not on the contents of the memo itself:
Mr. Ashcroft strove to make a distinction between memorandums that may have provided theoretical legal justifications for torture and his assertion that there had never been any directive that actually authorized its use.
But the memorandums, by their numbers and their arguments — aimed at justifying the use of interrogation techniques inflicting pain by spelling out instances when this did not legally constitute torture and the inapplicability of international treaties — have produced outrage from international human rights groups and members of Congress, mostly Democrats.
Over the past few weeks, The New York Times, Newsweek, The Washington Post and The Wall Street Journal have disclosed memorandums that show a pattern in which administration lawyers set about devising arguments to avoid constraints against mistreatment and torture.
So it will come down to that -- memos exist that explain why torture should not be considered illegal under U.S. Federal law, but no direct authorization of torture can be found. And Ashcroft 'doesn't remember' whether he discussed the question with Bush...
If Ashcroft can get away with signing off on the memos designed to circumvent U.S. and international laws regarding torture, why can't Bush get away with it too?
After all, no one (or so we're told) ever directly ordered the soldiers and contractors to torture anyone -- the administration only told them it would be ok and legal if they did decide to torture.