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Abstract

Were mistakes made in the preparation of the controversial OLC memoranda? There is no question about it; they were very serious mistakes, and they have harmed this country. But I think part of the explanation is that the authors of the "torture" memoranda lacked sufficient expertise in national security law, and honestly believed that a conflict involving more than seventy-five sovereign nations was "international" in scope. They reasonably read the language in Common Article 3 limiting its application to conflicts "occurring in the territory of one of the High Contracting Parties" as excluding its applicability to a struggle taking place across much of the world. And the fact that the D.C. Circuit Court of Appeals unanimously accepted this reasoning (before being overturned by a divided Supreme Court) would seem to be prima facie evidence that the interpretation was reasonable.

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