Good Faith

Jay Bybee spoke for the first time that I can remember about his signing of the Torture Memos while at the Office of Legal Counsel, and he went with the "they looked good to me" defense.

Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect. Given the widespread criticism of the memorandums, he said he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions.

But he said: “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.”

Yes, if you just sharpen the analysis that waterboarding causes a denial of oxygen and gives the sensation of imminent death, but isn't torture anyway, I think everybody would be satisfied. As Ian Milhiser says, though John Yoo did most of the writing of the memos, and Bybee could have easily pleaded negligence and thoughtlessness, he decided to take ownership and aver that they were legally correct, which is essentially a confession of his involvement.

We get a portrait here of Bybee ostracized by many colleagues for his work.

Prof. Christopher L. Blakesley, a colleague on the law school faculty at the University of Nevada, Las Vegas, said that after the first memorandum was released, he was unable to restrain himself from expressing disagreement at a 2004 dinner at a restaurant that included their wives.

“I asked him how he could sign such an awful thing,” Professor Blakesley recalled in an interview.

He said the judge replied that he could not talk about the matter. The dinner proceeded awkwardly, Professor Blakesley said, and they have not spoken since.

Professor Blakesley said that while he liked Judge Bybee, “he has some basic flaws including being very naïve about leaders.’

“He has too much respect for authority and will avoid a confrontation no matter what,” the professor continued.

There are other glimpses of Bybee dropping hints about his conduct, saying that he wasn't proud of his time at the Bush Justice Department, and that some of the work concerned matters “so awful, so terrible, so radioactive” that he thought it would never come to light. This law clerk kind of nails it:

Another clerk at the luncheon, Nina Rabin, who now runs an immigration clinic at the University of Arizona, said she found Judge Bybee’s remarks troubling because he suggested that his role as a lawyer could be divorced from whatever policy was being pursued. “He definitely offered a view that was sanitized,” she said, “and I thought that was disingenuous in that it removed any responsibility on the part of the lawyer for what was happening.”

This is quite literally the definition of lawlessness; the lawyers put no roadblocks in place to the whims of the Cheneyites, and instead did their bidding. So the Cheneyites could argue they received legal advice that pushed them in a certain direction, and the lawyers could argue they made their best effort to provide what the Cheneyites wanted (which is the opposite of the role of a lawyer, of course). And everyone gets to sleep another night. Yet the damage around the world holds to this day.

"For years, talks with foreign partners regarding how best to combat terrorism have foundered at a fundamental impasse because of the use of counter-terrorism authorities outside of, and many felt, contrary to, the rule of law," (deputy assistant Attorney General Todd) Hinnen told an audience of government and private-sector counter-terrorism experts at the Washington Institute for Near East Policy.

His remarks were especially noteworthy because Hinnen, until 2007, was a top Bush administration counter-terrorism official at the National Security Council.

Hinnen said that the new administration was trying to "move past this impasse and provide grounds for constructive discussions with foreign partners and in multilateral organizations," but that the effort had proven extremely challenging given the Bush White House's penchant for conducting a global counter-terrorism campaign that was in apparent violation of U.S. and international law and treaty.

"In recent weeks, the administration has made a clean break with the practices of the last administration that were, to put this delicately, least amenable to existence as part of a principled and enduring legal framework," Hinnen said. "The Department of Justice has released and rejected a series of memoranda that are widely regarded as an effort to bend the rule of law to support conclusions which are fundamentally antagonistic to it."

Hinnen had no comment on whether the Justice Department, which is investigating the Bush administration lawyers who wrote those memos, would consider such an "effort to bend the rule of law" in support of possibly illegal policies to be something prosecutable in a court of law.

And what Hinnen leaves unsaid is that a country that refuses to follow the law in providing accountability for those who violated it remains a lawless country, and our allies around the world know it. Which is why we must continue the fight for justice and the rule of law, beginning with the man who defended his atrocious conduct and still sits on the federal bench. Call and write the House Judiciary Committee and demand that they open hearings with the possibility for penalties to the fullest extent of the law, starting with his impeachment.