Eric Muller starts hypothesizing about MemoGate:

This is the sort of thing one might expect to see a young lawyer do in a “brainstorming” sort of memo—and that one would expect to see a more senior lawyer react to by saying, “Very creative. I like how you’re thinking outside the box. But none of this is going to fly in the real world. Please go back and rewrite this into something we can actually use.”

The memo is marked “draft”—so maybe all of this too-clever manipulation of hornbook law ended up in the back of a filing cabinet of non-starter ideas. Somehow I don’t think it would have been leaked if that were true, though. [emphasis mine]

Alternative hypothesis: today is June 11, 2004, a mere 144 days before a presidential election. This memo is highly embarrassing to the Bush administration (at least in the opinion of those who already don’t much care for said administration; the jury’s still out on whether rank-and-file swing voter cares about Jose Padilla and Iraqi detainees). Lower-level functionaries in major government departments are known to be core Democratic voters. Ergo, any embarrassing material—even if it was never used to justify administration policy—is worth leaking, especially considering that Abu Gharib was finally moving off the front pages in light of progress in the political situation in Iraq.

Counter-hypothesis: today is June 11, 2004, the week of Ronald Reagan’s death. The memo is highly embarrassing to the Bush administration, but about the most damning piece of the paper trail that ties administration actors to extra-legal torture by CIA and military intelligence operatives. Leak it now, and the news will be buried along with Reagan, as the only media outlets who will still care in a week will be ones with known partisan taint like The New Yorker, and thus, any such accounts will be immediately discounted by otherwise-swayable Republican elites.