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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:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Years ago, I lived in Montana, a land of purple sunsets, clear streams, and snowflakes the size of silver dollars drifting through the cold air. There were no speed limits and you could legally drive drunk. My small apartment in Missoula had little privacy. In order to write, I rented an off-season fishing cabin on Rock Creek, a one-room place with a bed and a bureau. I lacked the budget for a desk. My idea was to remove a sliding door from a closet in my apartment and place it over a couple of hastily cobbled-together sawhorses.
Average number of bacteria living in a pound of U.S. mud:
Canadian doctors saved a baby from drowning in his own drool by using Botox on his salivary glands.
A black bear named Pedals, famous for walking upright on his hind legs through Rockaway Township, New Jersey, was reported killed by a hunter, and a hiker in California was attacked after he interrupted two bears mating. It was a “pretty good bear attack,” said the local police chief.
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"She never thanked me, never looked at me—melted away into the miserable night, in the strangest manner I ever saw. I have seen many strange things, but not one that has left a deeper impression on my memory than the dull impassive way in which that worn-out heap of misery took that piece of money, and was lost."