Charlie Savage

This is the power of the Office of Legal Counsel within the Justice Department.

And we saw an earlier round of this 20 years ago when, after 9-11, the Bush administration had in its Office of Legal Counsel a lawyer named John Yoo who had an idiosyncratically broad view of executive power that most people thought was wrong.

And under his view, the president could authorize anything he thought was necessary to protect national security.

Things like wiretapping without warrants, torturing prisoners.

These memos are later rescinded.

But they were there while this stuff was happening.

And when Eric Holder, the liberal attorney general under Barack Obama, comes in in 2009 and opens a criminal investigation case,

into the treatment of detainees by the CIA under the Bush administration because of this problem of the OLC's assurances at the time.

He says...

We are only going to look at actions that went beyond the guidance that was blessed by the OLC.

So the OLC said you can waterboard people and you waterboarded people.

Even if everyone else says drowning people is torture and it's illegal, the OLC said it was okay.

We're not going to prosecute you for that.

Now, the catch, of course, and this is where we circle back to this conversation about the second strike, is the memo says, apparently,

because this is supposedly an armed conflict, strikes that comport with the law of war, the law of armed conflict, are permissible.

The second missile strike in the first attack, which kills the shipwrecked survivors of the first missile strike, arguably does not comport with the law of armed conflict.

And so that's one place where this particular strike, as opposed to all the others...

might be more vulnerable to later legal scrutiny.

Because especially if there's evidence

that Admiral Bradley's specific intent was to target the still living crew members as opposed to the boat or the supposed cargo.