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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.”
Other 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.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
On a Friday evening in January, a thousand people at the annual California Native Plant Society conference in San Jose settled down to a banquet and a keynote speech delivered by an environmental historian named Jared Farmer. His chosen topic was the eucalyptus tree and its role in California’s ecology and history. The address did not go well. Eucalyptus is not a native plant but a Victorian import from Australia. In the eyes of those gathered at the San Jose DoubleTree, it qualified as “invasive,” “exotic,” “alien” — all dirty words to this crowd, who were therefore convinced that the tree was dangerously combustible, unfriendly to birds, and excessively greedy in competing for water with honest native species.
In his speech, Farmer dutifully highlighted these ugly attributes, but also quoted a few more positive remarks made by others over the years. This was a reckless move. A reference to the tree as “indigenously Californian” elicited an abusive roar, as did an observation that without the aromatic import, the state would be like a “home without its mother.” Thereafter, the mild-mannered speaker was continually interrupted by boos, groans, and exasperated gasps. Only when he mentioned the longhorn beetle, a species imported (illegally) from Australia during the 1990s with the specific aim of killing the eucalyptus, did he earn a resounding cheer.
Percentage of Britons who cannot name the city that provides the setting for the musical Chicago:
An Australian entrepreneur was selling oysters raised in tanks laced with Viagra.
A tourism company in Australia announced a service that will allow users to take the “world’s biggest selfies,” and a Texas man accidentally killed himself while trying to pose for a selfie with a handgun.
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“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”