No Comment — April 29, 2009, 8:49 am

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.”

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.

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Ashley arrived for her prenatal appointment at Black Hills Obstetrics and Gynecology, in Rapid City, South Dakota, wearing a black zip-up hoodie and Converse sneakers.1 To explain her absence from work that morning — a Tuesday in April 2015 — she had told a co-worker that she was having “female issues.” She was twenty-five years old and eight weeks pregnant. She had been separated from her husband, with whom she had a five-year-old son, for the better part of a year. The guy who’d gotten her pregnant was someone she’d met at the gym, and he’d made it abundantly clear that he wanted nothing more to do with her. Ashley found herself hoping that the doctor would discover some kind of fetal defect, so that her decision would be easier. She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. “Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.”

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Ashley arrived for her prenatal appointment at Black Hills Obstetrics and Gynecology, in Rapid City, South Dakota, wearing a black zip-up hoodie and Converse sneakers.1 To explain her absence from work that morning — a Tuesday in April 2015 — she had told a co-worker that she was having “female issues.” She was twenty-five years old and eight weeks pregnant. She had been separated from her husband, with whom she had a five-year-old son, for the better part of a year. The guy who’d gotten her pregnant was someone she’d met at the gym, and he’d made it abundantly clear that he wanted nothing more to do with her. Ashley found herself hoping that the doctor would discover some kind of fetal defect, so that her decision would be easier. She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. “Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.”

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The baby was due in November, when Ashley, who was a nurse, hoped to be enrolled in a graduate program to become a nurse practitioner. Getting pregnant as a teenager had forced her to put that dream on hold, but she had thought that she was finally ready; she had even submitted her application shortly before the March 15 deadline. For the first time in her adult life, Ashley felt as if her plans were coming together. Then she missed her period.

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Ashley arrived for her prenatal appointment at Black Hills Obstetrics and Gynecology, in Rapid City, South Dakota, wearing a black zip-up hoodie and Converse sneakers.1 To explain her absence from work that morning — a Tuesday in April 2015 — she had told a co-worker that she was having “female issues.” She was twenty-five years old and eight weeks pregnant. She had been separated from her husband, with whom she had a five-year-old son, for the better part of a year. The guy who’d gotten her pregnant was someone she’d met at the gym, and he’d made it abundantly clear that he wanted nothing more to do with her. Ashley found herself hoping that the doctor would discover some kind of fetal defect, so that her decision would be easier. She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. “Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.”

In the exam room, she perched on the table with her feet crossed at the ankles, her blond hair brushing the back of her pink hospital gown. “I don’t know what’s available for me here,” she told her doctor, Katherine Degen, who sat facing her on a stool. “I figured nothing.”

 Some names and identifying details have been changed. 

“Big, fat zero, unfortunately,” Degen said, making a 0 with her fingers. The last doctor who provided abortions in Rapid City retired in 1986, three years before Ashley was born.

The baby was due in November, when Ashley, who was a nurse, hoped to be enrolled in a graduate program to become a nurse practitioner. Getting pregnant as a teenager had forced her to put that dream on hold, but she had thought that she was finally ready; she had even submitted her application shortly before the March 15 deadline. For the first time in her adult life, Ashley felt as if her plans were coming together. Then she missed her period.

It would be too difficult to attend school as a single mother of two, Ashley knew. She had made an appointment for three weeks from now at the nearest abortion clinic, in Billings, Montana, 318 miles away. But just a week and a half ago, her husband had said he wanted to get back together and offered to raise the child as his own. Was it a sign that she was meant to continue the pregnancy? As a rule, Ashley approached her problems with resolve. She was capable and tough; she liked shooting guns and lifting weights. She kept track of her stats and checked off her goals as she achieved them one by one. Yet the dilemma before her had shaken her confidence. She leaned back and turned to watch the ultrasound screen. The black-and-white image danced. A sharp, fast thumping emerged from the machine. As Degen removed the wand, Ashley wiped the corner of her eye.

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"She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. 'Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.'"
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