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.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

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

Burn Pits

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.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

October 2016

Division Street

= Subscribers only.
Sign in here.
Subscribe here.

Innocents

= Subscribers only.
Sign in here.
Subscribe here.

The Quiet Car

= Subscribers only.
Sign in here.
Subscribe here.

Psychedelic Trap

= Subscribers only.
Sign in here.
Subscribe here.

The Hamilton Cult

= Subscribers only.
Sign in here.
Subscribe here.

Held Back

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
The Hamilton Cult·

= Subscribers only.
Sign in here.
Subscribe here.

"The past is complicated, and explaining it is not just a trick, but a gamble."
Illustration by Jimmy Turrell
Article
Division Street·

= Subscribers only.
Sign in here.
Subscribe here.

"Perfectly sane people lose access to housing every day, though the resultant ordeal may undermine some of that sanity, as it might yours and mine."
Photograph © Robert Gumpert
Article
Held Back·

= Subscribers only.
Sign in here.
Subscribe here.

"'We don’t know where the money went!' a woman cried out. 'They looted it! They stole our money!'"
Artwork by Mischelle Moy
Article
The Quiet Car·

= Subscribers only.
Sign in here.
Subscribe here.

Flor Arely Sánchez had been in bed with a fever and pains throughout her body for three days when a July thunderstorm broke over the mountainside. She got nervous when bolts of light flashed in the sky. Lightning strikes the San Julián region of western El Salvador several times a year, and her neighbors fear storms more than they fear the march of diseases — first dengue, then chikungunya, now Zika. Flor worried about a lot of things, since she was pregnant.

Late in the afternoon, when the pains had somewhat eased, Flor thought she might go to a dammed-up bit of the river near her house to bathe. She is thirty-five and has lived in the same place all her life, where wrinkled hills are planted with corn, beans, and fruit trees. She took a towel and soap and walked out into the rain. Halfway to the river, the pains returned and overcame her. The next thing Flor remembers, she was in a room she didn’t recognize, unable to move. As she soon discovered, she was in a hospital, her ankle cuffed to the bed, and she was being investigated for abortion.

Photograph by Joshua Lutz
Article
Innocents·

= Subscribers only.
Sign in here.
Subscribe here.

"The next thing Flor remembers, she was in a room she didn’t recognize, unable to move. As she soon discovered, she was in a hospital, her ankle cuffed to the bed, and she was being investigated for abortion."
Photograph © Nadia Shira Cohen

Amount of laundry an average American family of four washes in a year (in tons):

1

A study of female Finnish twins found that relative preference for masculine faces is largely heritable.

It was reported that visits from Buddhist priests could be purchased through Amazon in Japan, and the London Philharmonic Orchestra began streaming performances through virtual-reality headsets.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today