Judge Bybee Breaks Silence, Defends Torture Memos

Judge Jay Bybee broke his silence on the torture memos Tuesday, in responses to questions from the New York Times.

The reason for breaking his silence: He disagreed with an article in the Washington Post alleging he had regrets over the signing. Bybee says:

“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.”

He should have just kept silent. As a Judge, he should know by now that the 5th Amendment protection against self-incrimination, even if just in the court of public opinion, is there for a reason: Use it or lose it.

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    My position is a little more subtle (5.00 / 0) (#10)
    by Bemused on Wed Apr 29, 2009 at 03:22:44 PM EST
      I certainly don't think a lawyer should be subject to prosecution  for providing legal advice-- even bad legal advice that a client then uses to justify the client's conduct.

      There is a difference between counseling a client on how to violate the law without being detected and advising him that something is legal which is  or is later determined to be illegal.

      Political consequences for such work by a lawyer is an entirely different matter. No lawyer is a slave. We all have the freedom to do what we want to do and not do what we don't want to do (obviously there are financial and career costs involved, but we are all free agents).

      I have no problem with lawyers paying politcal prices for the decisions they make with regard concerning whom they repesent and how they represent them. You don't see many  criminal defense lawyers winning elections and the ones you see even receiving apponitments to high offices are most often big firm white collar defense only types. Represent accused drug dealers, killers, etc., and you are likely closing doors. If you can't abide that then you should choose a different area of the law.

      While the opprobrium from society is not as harsh or widespread, personal injury and  corporate lawyers and others  also alienate certain people simply by practicing their specialties. Many people don't believe that as long as what they do is just "practicing law" it's immune to criticism and that it's unfair to hold it against them.

      Working for DOJ and overseeing the production of legal memoranda obviously recognizable as highly controversial is no different. If you are willing to do it you should be prepared to face political and social consequences from those opposed.


    Lawyers must be accountable (none / 0) (#13)
    by NMvoiceofreason on Wed Apr 29, 2009 at 11:35:53 PM EST
    Where a lawyer misrepresents the law, he is guilty of more than bad advice. Just as in "color of law" cases, the lawyer is acting beyond his cover, beyond his authority. When that lawyer uses that misrepresentation to aid and abet others in the creation of a system to violate both national and international law, its more than bad advice. When that lawyer does that for the benefit of a lifetime appointment, the severest measures must take place.

    He must be impeached from the bench. He must be disbarred. He must be tried as a war criminal.

    Attorney's who enter into criminal conspiracies with their clients have no protection under the law.


    If a lawyer (none / 0) (#16)
    by Bemused on Thu Apr 30, 2009 at 07:40:09 AM EST
     knowingly and willfully misrepresents the law with the intent to aid and abet the commission of a specific act or acts which constitute an offense you might well have criminal culpability.

       Your opinion here though essentially relies upon a very similar rationale as that found in these memos. The memos assume certain facts are true (regarding the effects of the techniques). You do pretty much  the exact same thing (regarding the knowledge, willfulness and intent of the lawyers).


    I guess those usually reliable (none / 0) (#1)
    by oculus on Wed Apr 29, 2009 at 01:19:12 AM EST
    sources got it wrong.  Bybee is no more repentant than Yoo.

    Even Doug Kmieck is railing against Bybee (none / 0) (#2)
    by shoephone on Wed Apr 29, 2009 at 02:28:48 AM EST
    I couldn't believe my ears, but Tuesday on Warren Olney's show, Kmieck was coming out strongly against Bybee's conclusions and advice to Bush/Cheney regarding torture.

    The paint is really peeling off the Bush presidency. It seems everyone except the die-hard right-wing zealots is distancing themselves from the torture fiasco.

    He trusts that the Democrats protect him (none / 0) (#3)
    by Andreas on Wed Apr 29, 2009 at 03:01:41 AM EST

    A true sociopath (none / 0) (#4)
    by Dadler on Wed Apr 29, 2009 at 03:16:44 AM EST
    Able to rationalize the most obviously heinous and inhumane crap as just doing his job.

    Phuck him and his career.  He deserves a severe public humiliation.  As Woody Allen said in Annie Hall, "I need a large sock full of horse manure."  On second thought, that would be way too nice for this piece of turd.  He'd feel right at home.  Better make it a sock full of brains, then he wouldn't know WHAT the hell hit him.  

    Bad, sloppy work (none / 0) (#5)
    by NMvoiceofreason on Wed Apr 29, 2009 at 08:47:46 AM EST
    Bybee is also lazy. He did not do the statutory construction for statutes that did not have cases (so that he could create those cases). Where courts had interpreted a statute, he just made up new categories and definitions out of whole cloth. Where treaties and international law compelled one decisions, he created another with the "unitary executive in wartime" magic.

    The analysis was not even good enough to pass a quiz in my correspondence paralegal school exams. Lawyers better quit circling the wagons in defense and start getting out their knives, or soon "Rome shall have no Senate".

    what did you expect him to say? (none / 0) (#6)
    by cpinva on Wed Apr 29, 2009 at 09:02:51 AM EST
    that he was wrong? that in retrospect, it was a horrible piece of work?

    seriously, i think his head would literally explode, were he to do that. it would require the total destruction of a carefully constructed mental wall, separating truth, morality and actual law, from his ideological belief system.

    i'm no psychiatrist, i don't play one on tv, and i didn't spend last night in a hotel. that said, i truly think if he (or the others) were to admit he screwed up, he'd suffer a complete mental breakdown.

    he should have shut up.

    Bybee's (none / 0) (#7)
    by KeysDan on Wed Apr 29, 2009 at 10:11:20 AM EST
    law school colleague, Professor Blakesley, seems to have captured his character flaw of being too tied up in authority, but I might add that Bybee appears to be an immoral careerist. His telling to an assembly of former law clerks of  DOJ stories with teasers like radioactive decisions that he doubted would ever be released is curious.  Yes, he should remain silent, but he has a good protector in Senator Harry Reid, as far as that will take him.

    Patrick Leahy has invited Bybee (none / 0) (#8)
    by Anne on Wed Apr 29, 2009 at 01:22:26 PM EST
    to come have a chat with the Judiciary Committee:

    From Think Progress:

    Today, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) sent a letter to Judge Jay Bybee inviting him to testify about his "views" about torture and his "role" in drafting the torture memos. "There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated, the considerations that went into it, and the role played by the White House," Leahy wrote. "I look forward to your cooperation and your testimony." Read Leahy's letter (pdf) here.

    Seems Senatoir Leahy is a little confused about some of the things he's been reading in the papers of late:

    I also enclose an article published today in The New York Times in which you state, in contrast to the recent Post report, that you "believed at the time, and continue to believe today, that the conclusions were legally correct." You also stated that the Office of Legal Counsel provided its "best, honest advice, based on our good-faith analysis ofthe law." The contrast between the recent articles in The New York Times and The Washington Post is striking. I am giving you the opportunity to come forward and clarify what you meant in your public discussion of these matters, and so that we can establish the facts and get to the truth.

    And this is kind of interesting, too:

    According to the press account, you became the Assistant Attorney General in charge of the Office of Legal Counsel after interviewing with White House Counsel Alberto Gonzales because you were interested in being nominated to a judgeship on the Ninth Circuit Court of Appeals.
    Apparently he asked if you would be willing to head OLC first. I am sure you would like an opportunity to come forward and set the record straight with respect to whether and, if so, how your judicial ambitions related to your participation at OLC.

    No date proposed, and I would be shocked to see Bybee come before the committee, but I love the dry and slightly sarcastic tone of Leahy's letter.

    integrity is not telling a lie (none / 0) (#9)
    by diogenes on Wed Apr 29, 2009 at 02:38:34 PM EST
    Sorry guys...if Bybee now changed his mind to bend to the prevailing winds or "didn't comment", then would think better of him?  
    You criminal lawyers easily rationalize defending serial killers "because of our adversarial justice system" even if you know that your client is guilty.  Surely Bybee has the same right to give legal advice to his clients.

    Would your view be different if (none / 0) (#11)
    by Anne on Wed Apr 29, 2009 at 03:30:55 PM EST
    it was determined that lawyers at OLC - maybe even Bybee - had at some point advised that what the administration wanted to do with - and to - detainees was illegal and unconstitutional?  What would it make you think about the memos that did authorize the treatment and defined torture?

    I think there is also some question whether Bybee's desire to be named to the bench influenced the memos he wrote; it doesn't strike me that Bush would have rewarded Bybee with a judgeship if Bybee had gotten in the way of the administration's plans for interrogation of detainees.


    depends (5.00 / 0) (#12)
    by Bemused on Wed Apr 29, 2009 at 03:47:52 PM EST
     if (it was determined that lawyers at OLC - maybe even Bybee - had at some point advised that what the administration wanted to do with - and to - detainees was illegal and unconstitutional?

       My view might be different depending on what you mean. If you mean that those lawyers first delivered an opinion it was illegal and that then conspired to  destroy the record of that advice and then created memoranda containing statements that really did not constitute "legal advice" but was actually deliberately fabricated to provide cover for those engaging in conduct believed to be illegal I think that might be a crime sounding fraud and failure to provide honest services.

      If it was just a matter of either different lawyers in the same office reaching different conclusions I don't think that is a crime. Nor, do I believe it would be a crime if the advice was  altered based upon the provision of additional relevant facts, or even just because the question was reconsidered.



    Fundamental difference (none / 0) (#14)
    by Andreas on Thu Apr 30, 2009 at 12:21:33 AM EST
    There is a fundamental difference between defending people in court and helping them to commit crimes.

    yes, there certainly is (none / 0) (#15)
    by Bemused on Thu Apr 30, 2009 at 07:27:03 AM EST
     but, standing alone,  writing an opinion letter  advising a client that you do not believe a proposed future course of conduct to be illegal isn't "helping the client commit a crime" or engaging in a conspiracy to unlawfully conceal evidence of a crime.

      In some cases (and this now appears to be one) the existence of such an opiion letter might be helpful to the client in avoiding prosecution, or, in narrow circumstances, might provide a potential affirmative defense for a client who is prosecuted, but the act of writing an opinion letter, standing alone, is not part of any crime the client subsequently commits.

      Almost by definition, opinion letters are sought when the state of the law is uncertain and open to competing or conflicting interpretations. the "client" in these matters did not ask if torture is legal or even if techniques involving acts every single person would agree involve inflicting severe physical or psychological suffering. The memos were also (despite the criticisms) carefully drafted to make clear that the advice was only operative if the assumptions contained therein (which appear to have been based on information provided by the client) were valid. To the extent those assumptions are invalid, that should be on the client and not the lawyer.

      Could the lawyers have written something along the lines of, "the information you have provided regarding the effects of these techniques  on the subjects appears unreliable and one-sided to the extent it is unlikely any reasonable person would disagree with your assessment of harms and therefore it is highly likely such conduct will be judged illegal?" Sure, lawyers are also not only allowed to but encouraged to counsel clients with regard to "extra-legal" considerations including moral, political, and social considerations and these lawyers could have done that as well instead of crafting such narrowly tailored advice essentially confined to "if what you tell me about the effects of these techniques is entirely true then these techniques are probably legal."

     I don't believe, again standing alone, that failing to do those things should be considered a crime.

      A different view might be warranted with just one slight alteration though. If the lawyers (outside of these memos, of course) told the client you need to provide false information concerning the effects of these techniques on the subjects in order for our office to provide you with an opinion letter such as you desire, then we might have a crime.