Slim Legal Grounds for Torture Memos

"It's a minority viewpoint," said Rivkin, who shares it. "If you line up 1,000 law professors, only six or seven would sign up to it." He said some of its adherents are associated with the Federalist Society, a conservative legal group formed to combat what its Web site calls "orthodox liberal ideology" and judicial interpretations that fail to safeguard individual prerogatives. Both Yoo and Bybee, as well as Attorney General John D. Ashcroft, are close to the society and frequently speak at its meetings, as are other lawyers appointed to senior Bush administration posts at the Defense Department, Justice Department and White House.

But criticism of the memos' claims of presidential powers has come from a wide range of legal scholars, including past heads of the Justice Department Office of Legal Counsel and chief legal advisers to the State Department under Republican and Democratic presidents.

Douglas W. Kmiec, a Pepperdine University law professor who directed the legal counsel's office under presidents Ronald Reagan and George H.W. Bush from 1985 to 1989, termed the August 2002 memo "unrefined" and said its depiction of presidential authorities ran "the risk of being misunderstood." He said it failed in particular to state clearly that anti-torture laws could be superseded only "in grave or unforeseen or imminent" crises that do not exist at present.

Abraham D. Sofaer, a State Department legal adviser from 1985 to 1990, said he also considers the August 2002 memo flawed. "We in the Reagan and Bush administrations intended that deliberate violations of the Convention [Against Torture] should lead to the criminal prosecution," said Sofaer, who testified for the executive branch during Senate hearings on the convention's ratification.

Sofaer said he believes the notion of "inherent" presidential authority to ignore the treaty is vague and has little basis.

Walter Dellinger, who directed the Office of Legal Counsel in the Clinton administration, said the memo's assertion of presidential authority "goes beyond anything OLC has ever stated" and omitted any reference to a key Supreme Court decision that acknowledges congressional power to enact laws that limit presidential authority. That decision, barring President Harry S. Truman from seizing steel mills to stop a strike during the Korean War, was specifically cited by the Supreme Court last week in its rulings on foreign detainees.

Congress has mostly been silent on these issues. But five Republican senators bolted from their party June 24 to pass a measure limiting U.S. interrogation techniques to those that the United States would consider legal for other nations to use. It urged the prompt prosecution or release of detainees to avoid their "indefinite detention . . . which is contrary to the legal principles and security interests of the United States."

The Defense Department had opposed the measure sponsored by Sen. Patrick J. Leahy (D-Vt.), saying it would insert Congress "inappropriately into the executive function of conducting the war on terrorism" and potentially diffuse the "national focus on protecting Americans." But this view was rejected by Republicans who have been highly critical of detainee abuses -- Sens. John McCain (Ariz.), Lindsey O. Graham (S.C.), Mike DeWine (Ohio), Chuck Hagel (Neb.), and Arlen Specter (Pa.), who voted for the measure.