Bench Memos

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The England Memo and the Specter Bill


Around here there has been much worry expressed about the memo released the other day by DOD’s Gordon England (PDF here), and about the deal the president seems to have struck with Arlen Specter over terrorist surveillance and judicial oversight (PDF here).  Mark Levin and Andy McCarthy have been particularly alarmed about these developments, and NRO’s editors have written with a similar if more cautiously stated concern.  Is the Bush administration beating a hasty retreat from positions it ought to defend on the executive power to wage war?

I’m still mulling over these developments myself, and I may conclude Mark and Andy are right.  But this morning I wandered over to a place I don’t visit much (life is short, after all)—the Balkinization blogsite where liberal legal eminentoes such as Jack Balkin, Marty Lederman, Sandy Levinson, and Mark Graber hold forth.  And boy are these guys exercised too, but about exactly the opposite reading of the week’s developments.  The Bush administration is still defying Hamdan!  It’s violating Geneva!  Specter has offered to legislate the Bush theory of the executive!  Much wailing and gnashing of teeth, over there, about how Bush is GETTING AWAY WITH IT AGAIN!!

Like I said, I’m still thinking about it.  But somehow I feel a little better.

Tags: Franck


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