With the infamous "torture memos" back in the news, it seems worth noting that my former colleague, Amos Guiora, has a brand new book, Constitutional Limits on coercive Interrogation. I have yet to read it, but have every reason to expect it will be interesting and provocative like much of his other work. There are few working in this area that have anywhere near his real-world experience on the front lines of counter-terrorism work — something which makes his refusal to endorse the "we must win so everything is permitted" doctrine that much more significant.
I will make two predictions: 1) Few lawyers who have expertise in the areas covered by the recently released Yoo Memorandum (part I here, part II here) will defend it as sound and persuasive legal analysis; 2) No more than a handful of such lawyers will agree with John Yoo's characterization of the memo as "near boilerplate."
One question this raises is the point at which one can fairly say that a given memorandum or opinion is unreasonable. But I want to focus on a different point: if my assumptions above are correct, this creates a great opening for opportunistic conservative legal bloggers/commentators. A majority of conservatives still support President Bush's conduct of the war, and the Yoo Memorandum authorized techniques that were part of that conduct. Some supporters of Bush's conduct will want to distance themselves from the sorts of activities that the Yoo Memorandum authorizes, but many diehard Bush supporters will presumably want to stand by their man, and the conduct of the war. So the very small percentage of lawyers who will defend the Yoo Memorandum, combined with the greater percentage of Americans who will defend the conduct authorized by that memorandum, presents a chance for legal commentators seeking prominence: take the unpopular position and infuriate most people, but gain the everlasting gratitude of a nontrivial segment of the conservative community.
Of course, the wisdom of this bet depends in part on that segment of the conservative community continuing to have power, and perhaps expanding their power. Will the Yoo/Addington/Gonzales wing of the conservative legal establishment have power in the future? If you think so, and your desire for power is greater than your qualms about endorsing what looks to be quite shoddy legal reasoning, then now is your chance to write an op-ed/blog post on why the Yoo Memorandum is right. I'll be curious to see who seizes the opportunity.