Bybee Weighs In

Judge Jay Bybee has been conspicuously absent from the discussion
about his most famous opinions-not the ones he issued from the bench,
but those he uttered just before leaving the Justice Department's
Office of Legal Counsel. Those opinions gave the green light to the use
of a series of torture techniques on specific prisoners held by the
CIA. But today, Jay Bybee has spoken. He responded to questions from the New York Times:

"The central question for lawyers was a narrow one;
locate, under the statutory definition, the thin line between harsh
treatment of a high-ranking Al Qaeda terrorist that is not torture and
harsh treatment that is. I believed at the time, and continue to
believe today, that the conclusions were legally correct."

administration lawyers agreed with those conclusions, Judge Bybee said.
"The legal question was and is difficult," he said. "And the stakes for
the country were significant no matter what our opinion. In that
context, we gave our best, honest advice, based on our good-faith
analysis of the law."

Count me among the unconvinced. First, I believe that one
consideration is guiding Judge Bybee here: self-defense. He fully
appreciates the threat of a criminal investigation and demands for his
impeachment. He's a sharp enough lawyer to appreciate that with respect
to criminal conduct in connection with the issuance of an opinion, he
has one pillar to which he can cling: the claim that the opinions
expressed were formed in good faith, whether right or wrong. If he
can't sustain that proposition, he's in deep trouble. Hence his
statements to the Times. They are utterly predictable.

Second, if the question "was and is difficult," as Bybee says, why
did he fail, in the two August 1, 2002 memoranda, to apprise his
clients of the quite overwhelming authority that runs in precisely the
opposite direction of his memos? Indeed, he talks about waterboarding
and never bothers to note the long list of cases in which waterboarding
was prosecuted, not even the 1983 case prosecuted by the Reagan Justice
Department against the backdrop of U.S. accession to the Convention
Against Torture. The suppression of all this adverse authority is
telling: it suggests an opinion which has been made-to-order, not
following careful, good-faith study of a question.

Third, we can't forget the facts in the background. Bybee is writing
up and issuing this opinion as a sort of farewell gift to people who
had just elevated him to a lifetime appointment to the federal bench,
just one rung below the Supreme Court. He was straining to please them.
And the suggestion of a Faustian bargain is hard to miss.

But Bybee's remarks highlight the need for the Justice Department to
come clean with its own internal probe into these matters, begun in
2004 and completed ostensibly in October 2008. We're told it's being
"finished up" to reflect comments from Attorney General Mukasey and to
give the affected parties an opportunity to respond. Seven months is an
awfully long time to be "finishing up" a report like this. And the
public needs to know the details of how these memos came to be
commissioned and written has never been more acute than right now.

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