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Non, je ne regrette rien

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Strike up the band and bring on Edith Piaf: we now have Jay Bybee’s theme song. The former White House counsel who headed the Justice Department’s Office of Legal Counsel (OLC) and oversaw what is now the most notorious legal memorandum of all time submitted to questioning by the House Judiciary Committee, and a transcript was released late last week. Bybee had avoided making public statements about his role in the issuance of the notorious torture memoranda, but a Washington Post account by Karl Vick appeared on April 25, 2009, quoted friends who said he was not exactly proud of this chapter of his life. Now Bybee corrects the record:

I have regrets because of the notoriety that this has brought me. It has imposed enormous pressures on me both professionally and personally. It has had an impact on my family. And I regret that, as a result of my government service, that that kind of attention has been visited on me and on my family.

So, he regrets the fact that the memos, intended to be secret, became a matter of public knowledge. He regrets the damage to his reputation that resulted from this process. But he apparently has no reservations whatsoever about the substance of the memos:

In terms of the analysis, I am going to stand by the memo.

The major “news” item that emerges from the Bybee interview is not surprising. Bybee agrees that the CIA apparently used practices that were beyond the scope of what the OLC authorized. That’s the same as the conclusion reached by the CIA’s Inspector General, by Attorney General Eric Holder, and by senior professional staff at the Justice Department. And it forms the basis for the decision to appoint John Durham, a career Justice Department prosecutor from Connecticut, to do a preliminary review of the matter and decide whether any of the roughly ten cases identified in the CIA IG report merited a separate criminal investigation.

But overall Jay Bybee’s comments to the committee could all have been predicted. We know from papers Bybee filed with the Judicial Council that he hired a criminal-defense lawyer to advise him in possible proceedings dealing with legal ethics issues. We don’t of course know what advice he received. But I have discussed his dilemma with several legal ethicists and have a good idea of what that advice would have been. He would have been told that for the best chance to avoid bar ethics charges or a criminal investigation he should insist that the memos actually reflect his best legal analysis and that he believes in good faith that the analysis is right—even if it is in fact outrageously wrong. Not surprisingly, Bybee’s testimony clings to that slender reed.

Remember that the Justice Department’s own professional ethics office concluded that Bybee had probably breached serious ethics rules and recommended that the matter be referred to a bar ethics committee for review and disciplinary action. The referral did not occur because David Margolis—a high-level Justice official who has built his entire career on protecting political appointees from disciplinary action—intervened to overturn the ethics experts’ recommendations on political grounds. But the story doesn’t end there. The bar associations in the District of Columbia and Nevada are free to take up the Bybee case and take action on it, so he’s still in some jeopardy.

But Bybee’s other worry has to do with his judgeship. The record is clear that Bybee, on departing the White House’s legal counsel’s office, told Alberto Gonzales that he wanted a federal judgeship. Gonzales responded to him that that would take some time, and meanwhile he had another appointment in mind—at the OLC, from which Gonzales was commissioning the torture memos. The facts suggest a clear-cut quid pro quo, under which Bybee got his judgeship in exchange for delivering the most outrageous legal memoranda ever uttered by the Justice Department—memoranda that in fact gave a green light to carefully orchestrated criminal conduct.

Although calls have issued for Bybee’s impeachment, the House Judiciary Committee, while obviously troubled by Bybee’s testimony and seeing in it evidence of criminal wrongdoing, so far shows no signs of initiating the formal removal process. On the other hand, Bybee’s legal problems are far from over. He figures as a target in criminal investigations in Spain, and faces possible arrest if he leaves the country. He’s the only member of the federal judiciary with the threat of arrest hanging over his head.

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