No Comment — February 22, 2010, 3:28 pm

Quid Pro Quo

A critical question in examining the criminal culpability of the torture memo writers goes to what lawyers call mens rea or “guilty mind.” With respect to a joint criminal enterprise to torture, the requisite mens rea is simple: the perpetrators must have the intention to introduce torture. John Yoo and Jay Bybee have repeatedly stated that they believe their advice was and is correct, that none of the techniques they counseled or approved were torture, and that therefore they are innocent. They continue to adhere to this position, even in recent interviews, for a simple reason: it would be vital to their defense in the event of a future criminal prosecution.

But the facts developed by the OPR report strongly support another approach to the mens rea problem. There is strong evidence to show that each of the key actors—Jay Bybee, John Yoo, and Steven Bradbury—had the same compelling motivation in rendering false legal advice. Each sought a specific high office that the recipients of the memos were able to give to them.

Jay Bybee, while working in the White House, advised his boss Alberto Gonzales that he wanted a judicial nomination. The Washington Post reports:

Bybee’s friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, [Randall] Guynn said, was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, “Would you be willing to take a position at the OLC first?” Guynn said. Being unable to answer for what followed is “very frustrating,” said Guynn, who spoke to Bybee before agreeing to be interviewed.

So Bybee accepted the position at OLC, which he never sought, as a favor to Gonzales while he waited for an opening on the Ninth Circuit. Gonzales, as a member of the “war council,” certainly knew what was being asked of OLC. Indeed, the request was emanating from the White House. Bybee certainly could have understood that failure to deliver the memos would mean the end of his judicial aspirations. The unredacted portions of the OPR Report note that Bybee was in line for a judgeship and that he departed as some of the key memos were being issued. But there is no suggestion that OPR explored the relationship between the memos and Bybee’s judicial candidacy in any depth. No doubt it was hampered by the lack of cooperation in this process from the White House.

John Yoo, working as a Deputy Assistant Attorney General, clearly aspired to become Bybee’s successor. In the legal world, the position of deputy assistant attorney general is a modest preferment, whereas an assistant attorney general slot is a marquee position usually opening doors to partnership at major law firms, judgeships, or still higher government offices. Yoo was open about his goals, and he mobilized major resources to obtain them—including his “clients,” David Addington and Dick Cheney. His candidacy for Bybee’s job ultimately became rancorous, perhaps in part because of the way he addressed the torture issue. John Ashcroft resisted the White House’s pressure and rejected Yoo, leaving him bitter. Yoo’s struggle for the seat that Bybee left vacant has been discussed in Jane Mayer’s Dark Side and other works. But again the OPR Report is curious in its indifference to factors that so obviously drove the process.

With Steven Bradbury, however, the OPR Report research provides useful information in the form of an email from Deputy Attorney General James Comey:

[Philbin] had previously reported that Steve [Bradbury] was getting constant similar pressure from Harriet Miers and David Addington to produce the opinions [authorizing torture techniques.] I have previously expressed my worry that having Steve as ‘Acting’ – and wanting the job – would make him susceptible to just this kind of pressure.

Comey is referring to pressure coming from the White House for Bradbury to issue an opinion legalizing torture procedures. And Comey is unequivocal as to why Bradbury is willing to render the desired opinion—in order to secure a formal nomination as assistant attorney general in charge of OLC. In fact, almost immediately after Bradbury produced the memo, the White House okayed his name going forward for the appointment as an assistant attorney general.

The evidence therefore supports the case for a quid pro quo scheme in which Bybee, Yoo, and Bradbury were offered powerful government preferments (in Bybee’s case, a life-time judgeship) in exchange for rendering the opinions. In fact, the Justice Department’s Public Integrity Section has regularly prosecuted public office holders—both those making the appointments and those seeking them—on the ground that the extraction of a wrongful act in exchange for a preferment constitutes an act of public corruption. Consider, for instance, the recent prosecution of Judge Bobby DeLaughter in Mississippi, whose judgment in a criminal case was claimed to have been corruptly influenced by the offer of a federal judgeship, or Governor Don Siegelman in Alabama, who was prosecuted for appointing a campaign supporter to an honorary unpaid oversight board.

The Justice Department bristles at the idea that the process of internal appointments or the process of judicial nominations—both supervised and controlled tightly by Justice—would be essentially criminal activities if wrongful actions are sought in connection. But the actual prosecutorial practice of the Justice Department clearly suggests they can be. And the evidence that emerges from the Justice Department’s own internal probe would be far more than is needed to get to a jury.

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 168 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2019

Without a Trace

= Subscribers only.
Sign in here.
Subscribe here.

What China Threat?

= Subscribers only.
Sign in here.
Subscribe here.

Going to Extremes

= Subscribers only.
Sign in here.
Subscribe here.

“Tell Me How This Ends”

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
What China Threat?·

= Subscribers only.
Sign in here.
Subscribe here.

Within about fifteen years, China’s economy will surpass America’s and become the largest in the world. As this moment approaches, meanwhile, a consensus has formed in Washington that China poses a significant threat to American interests and well-­being. General Joseph Dunford, the chairman of the Joint Chiefs of Staff (JCS), has said that “China probably poses the greatest threat to our nation by about 2025.” The summary of America’s 2018 National Defense Strategy claims that China and Russia are “revisionist powers” seeking to “shape a world consistent with their authoritarian model—gaining veto authority over other nations’ economic, diplomatic, and security decisions.” Christopher Wray, the FBI director, has said, “One of the things we’re trying to do is view the China threat as not just a whole-­of-­government threat, but a whole-­of-­society threat . . . and I think it’s going to take a whole-­of-­society response by us.” So widespread is this notion that when Donald Trump launched his trade war against China, in January 2018, he received support even from moderate figures such as Democratic senator Chuck Schumer.

Shanghai Broadcasting Building, by Cui Jie (detail) © The artist. Courtesy private collection
Article
Without a Trace·

= Subscribers only.
Sign in here.
Subscribe here.

In December 2015, a twenty-­two-year-­old man named Masood Hotak left his home in Kabul, Afghanistan, and set out for Europe. For several weeks, he made his way through the mountains of Iran and the rolling plateaus of Turkey. When he reached the city of Izmir, on the Turkish coast, Masood sent a text message to his elder brother Javed, saying he was preparing to board a boat to Greece. Since the start of the journey, Javed, who was living in England, had been keeping tabs on his younger brother’s progress. As Masood got closer to the sea, Javed had felt increasingly anxious. Winter weather on the Aegean was unpredictable, and the ramshackle crafts used by the smugglers often sank. Javed had even suggested Masood take the longer, overland route, through Bulgaria, but his brother had dismissed the plan as excessively cautious.

Finally, on January 3, 2016, to Javed’s immense relief, Masood sent a series of celebratory Facebook messages announcing his arrival in Europe. “I reached Greece bro,” he wrote. “Safe. Even my shoes didn’t get wet.” Masood reported that his boat had come ashore on the island of Samos. In a few days, he planned to take a ferry to the Greek mainland, after which he would proceed across the European continent to Germany.

But then, silence. Masood stopped writing. At first, Javed was unworried. His brother, he assumed, was in the island’s detention facility, waiting to be sent to Athens with hundreds of other migrants. Days turned into weeks. Every time Javed tried Masood’s phone, the call went straight to voicemail. After a month passed with no word, it dawned on Javed that his brother was missing.

A screenshot of a December 2015 Facebook post by Masood Hotak (left), in Istanbul
Article
Going to Extremes·

= Subscribers only.
Sign in here.
Subscribe here.

When Philip Benight awoke on January 26, 2017, he saw a bright glow. “Son of a bitch, there is a light,” he thought. He hoped it meant he had died. His mind turned to his wife, Becky: “Where are you?” he thought. “We have to go to the light.” He hoped Becky had died, too. Then he lost consciousness. When he opened his eyes again, Philip realized he wasn’t seeing heaven but overhead fluorescents at Lancaster General Hospital. He was on a hospital bed, with his arms restrained and a tube down his throat, surrounded by staff telling him to relax. He passed out again. The next time he came to, his arms and legs were free, but a drugged heaviness made it hard to move. A nurse told him that his wife was at another hospital—“for her safety”—even though she was also at Lancaster General. Soon after, two police officers arrived. They wanted to know why Becky was in a coma.

Three days earlier, Philip, who was sixty, tall and lanky, with owlish glasses and mustache, had picked up his wife from an HCR ­ManorCare nursing home. Becky had been admitted to the facility recently at the age of seventy-­two after yet another series of strokes. They drove to Darrenkamp’s grocery store and Philip bought their dinner, a special turkey sandwich for Becky, with the meat shaved extra thin. They ate in the car. Then, like every other night, they got ice cream from Burger King and drove to their home in Conestoga, a sparse hamlet in southern Lancaster County, Pennsylvania. Philip parked in the driveway, and they sat in the car looking out at the fields that roll down to the Susquehanna River.

They listened to the radio until there was nothing more to do. Philip went into the house and retrieved a container of Kraft vanilla pudding, which he’d mixed with all the drugs he could find in the house—Valium, Klonopin, Percocet, and so on. He opened the passenger-­side door and knelt beside Becky. He held a spoon, and she guided it to her mouth. When Becky had eaten all the pudding, he got back into the driver’s seat and swallowed a handful of pills. Philip asked her how the pudding tasted. “Like freedom,” she said. As they lost consciousness, the winter chill seeped into their clothes and skin.

Illustration by Leigh Wells (detail)
Article
“Tell Me How This Ends”·

= Subscribers only.
Sign in here.
Subscribe here.

America in the Middle East: learning curves are for pussies.
—Jon Stewart, The Daily Show, June 2, 2015

In January 2017, following Donald Trump’s inauguration, his national security staffers entered their White House offices for the first time. One told me that when he searched for the previous administration’s Middle East policy files, the cupboard was bare. “There wasn’t an overarching strategy document for anywhere in the Middle East,” the senior official, who insisted on anonymity, told me in a coffee shop near the White House. “Not even on the ISIS campaign, so there wasn’t a cross-governmental game plan.”

Syrian Arab Red Crescent vehicles in eastern Ghouta, March 24, 2018 (detail) © Anas Alkharboutli/picture-alliance/dpa/AP Images

Chance on any given day that the only “vegetables” served in a U.S. public school are potatoes:

1 in 2

Horticultural scientists reported progress in testing strawberries to be grown in spaceships. “The idea is to supplement the human diet with something people can look forward to,” said one of the scientists. “Fresh berries can certainly do that.”

In Wichita Falls, Texas, a woman was banned from Walmart after drinking wine from a Pringles can while riding an electric shopping cart; she had been riding the cart for two and a half hours.

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

HARPER’S FINEST

Happiness Is a Worn Gun

By

Illustration by Stan Fellows

Illustration by Stan Fellows

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

Subscribe Today