LESSONS ENCOUNTERED

9/11 and After: Legal Issues, Lessons, and Irregular Conflict
that Yoo’s memo was “riddled with error” and a “one-sided effort to eliminate any hurdles
posed by the torture law.” Daniel Levin, who headed the OLC after Goldsmith, described
his initial reaction to Yoo’s memo as “this is insane, who wrote this?” See David D. Cole,
“The Sacrificial Yoo: Accounting for Torture in the OPR Report,” Journal of National Security
Law & Policy 4, no. 2 (2010), 455.
144
“Nomination of Michael Mukasey to Be the Attorney General of the United States:
Hearing of the Senate Committee on the Judiciary,” Federal News Service, October 17,
2007.
145
Department of Defense Emergency Supplemental Appropriations to Address Hurricanes
in the Gulf of Mexico, and Pandemic Influenza Act, 2006 (P.L. 109-148); the National
Defense Authorization Act for FY 2006 (P.L. 109-163).
146
See generally 13 No. 2 Human Rights Brief 39-40 (2006).
147
See P.L. 109-148, Title X, Sec. 1002 (2005); P.L. 109-163, Title XIV, Sec. 1402 (2006).
148
S. Amend. 1556 to S. 1042, 109 th Cong. (2005), reprinted in 151 Congressional Record
S8889 (July 25, 2005).
149
Geneva Convention Relative to the Treatment of Prisoners of War Art. 3, August 12,
1949, 6 U.S.T. 3116, 75 U.N.T.S. 135.
150
548 U.S. 557 (2006).
151
Executive Order 13340.
152
Department of Justice, Office of Legal Counsel, “Memorandum Regarding Application
of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva
Conventions to Certain Techniques That May Be Used by the CIA in the Interrogation of
High-level Al Qaeda Detainees,” July 20, 2007.
153
Luban, 1425 (ticking bomb scenarios rationalize and institutionalize torture); Kate
Kovarovic, “Our ‘Jack Bauer’ Culture: Eliminating the Ticking Time Bomb Exception to
Torture,” Florida Journal of International Law 22, no. 2 (2010), 251.
154
See Goldsmith, 166–168 (impact of fear).
155
See Alan M. Dershowitz, “Is There a Torturous Road to Justice?” Los Angeles Times,
November 8, 2001, B19 (judges should be allowed to issue “torture warrants,” thus
permitting the use of torture within our legal system rather than “outside of the law”);
but see Oren Gross, “Are Torture Warrants Warranted? Pragmatic Absolutism and
Official Disobedience,” University of Minnesota Law Review 88, no. 4 (2004), 1481, 1487
(“preventive interrogational torture is far too complex to be addressed by definitional
juggling”).
156
Philip B. Heymann and Juliette N. Kayyem, Long-Term Legal Strategy Project for
Preserving Security and Democratic Freedoms in the War on Terrorism (Cambridge: MIT
Press, 2004) (determining an emergency exception based upon President showing “an
urgent and extraordinary need”).
395