John Ashcroft claims that OLC justified waterboarding as a technique. But when Jack Goldsmith, who succeeded Yoo at OLC, reviewed interrogation policy, he found that waterboarding was specifically prohibited by OLC policy, although not by OLC opinion.

In Goldsmith's book "The Terror Presidency," he says that during his tenure at OLC- he succeeded Yoo- he unwrote Yoo's memos because they were unconstitutional AND unnecessary. He writes:

“The August 1, 2002, opinion analyzed the torture statute in the abstract, untied to any concrete paractices. Then, in a second August 1, 2002, opinion that still remains classified, OLC applied this abstract analysis to approve particular and still-classified interrogation techniques. These separately and specifically approved techniques contained elaborate safeguards and were less worrisone than the abstract analysis in the public torture opinions themselves, which went far, far beyond what was necessary to support the precise techniques, and in effect gave interrogators a blank check.”(pp. 150-151; emphasis added.)

Now, Goldsmith then says he rewrote the Yoo-Bybee memoranda in a manner which specifically outlawed waterboarding. This is what he says about the ‘interrogation techniques’ themselves which he was reviewing:

“Although I was worried by what the sloppy interrogation opinions might be used to justify, I had not concluded that the actual interrogation techniques approved by the Justice Department were illegal….In April 2003, the Secretary of Defense had relied on the March OLC opinion [which had been written by John Yoo] to approve twenty-four interrogation techniques. Most of these techniques had long been in the military manual and viewed by military lawyers to be consistent with the Geneva Conventions….”[pp. 152-153; emphasis added.]

See the inconsistency? Waterboarding has long been viewed by military lawyers as violating the Geneva Conventions.  It appears that the policies Goldsmith was reviewing, pursuant to his bringing in line of the "Torture memos" to the Conventions and Army practice, did not include ALL of the policies that had been used. This can be called "lawyering in the dark." Goldsmith should be called before the House Judiciary Committee ASAP.

Baker and  Christopher recently came out with a proposed revision of the 1973 War Powers Act, which frankly did not seem to address the core problem, which is that this is a Constitutional issue and not merely a matter of fixing a bad law.
Baker and Christopher admitted in their Op-Ed that they did not address the core Constitiutional issue. While they recognize  that one of the problems with the current arrangement is that Congress can dodge its responsibilities and fob off rash decisions to go to war on the President (with varying success), their own proposal doesn't mitigate this at all. Their proposal requires that Congress be "consulted" on armed conflicts expected to last more than a week,  and then within 30 days congress would have to pass a resolution of approval or disapproval. This is inadequate for many reasons. The consultation can easily be skewed by the Executive, just as the intelligence was skewed prior to the Iraq War. And a resolution to disapprove, assuming the President vetoes it, is wrong for many reasons. First, it closes the door after the horse has escaped; second, it requires the two-thirds Congressional veto override, which is very diffiicult to attain, particularly in wartime (as we have seen the last half decade).

A far better option is this overhaul of the existing War Powers bill. This proposal "prohibit[s] presidential entry into future hostilities without congressional action except: to repel and retaliate for an attack on the United States, repel an attack on U.S. troops, or protect and evacuate U.S. citizens."

This proposal is backed by Rep. Walter Jones, R-NC, and Rep. Bill Delahunt, D-MA. What I find most intriguing about this proposal, besides its obvious requirement of timeliness, and assent rather than "consultation," is what effect it could have on the President's Article II powers as Commander in Chief. (Baker and Christopher's proposal does not address this at all, as far as I can tell.) If the President's status as C-in-C flows from a Congressional mandate, rather than from a generalized invocation of his or her "Commander-in-Chief" power, then the balance of power has shifted irrevocably away from the Imperial Presidency of John Yoo.