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Bush Admin Can’t Count on Torture Memos for Cover

President George W. Bush isn’t likely to pre-emptively pardon himself and his senior cabinet and other officials who authorized the use of torture in interrogation of suspected terrorists, in blatant violation of domestic, constitutional and international law, The Wall Street Journal reported on Tuesday.

That’s not because of any newfound respect for the rule of law, or the international reputation of the United States, though — it’s because they believe it’s not necessary.

They’re counting on what Harvard Law Professor Jack Goldsmith has called the “golden shield” that Bush officials created with the torture memos written by Office of Legal Counsel deputy John Yoo and colleagues, at the direction of Vice President Dick Cheney.

I guess Bush administration officials aren’t reading TWI, where we explained why those memos probably won’t provide the legal cover they’re seeking. If the legal opinion a lawyer offers is just blatantly wrong — like, for example, the opinion that torture is legal, or that waterboarding isn’t torture — then it becomes unreasonable for the president, vice president and other senior government officials to rely on it.

Moreover, if the legal opinions are issued after the torture had already begun, as appears to be the case, then they really don’t provide an excuse for the actions. They also make the whole post-hoc legal justification process look mighty suspicious.

Jonathan Turley, appearing on MSNBC’s “The Rachel Maddow Show” Tuesday night, agreed. So did about a dozen lawyers and constitutional law professors I spoke to for the earlier story.

If these memos fail to give Bush administration officials the cover they’re seeking, as many predict, then the next step will be up to the new Obama administration and congressional Democrats.

Let’s see if they have the spine to show the world that the days of executive lawlessness are over.

Update: For a wide range of opinions (though mostly in agreement) on the pardon issue, see today’s Arena debate on Politico.

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