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Human Rights Law

: Never In Our Names

Bybee: "The Spirit Of Liberty Has Left The Republic"

By blueness

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According to stories in the Los Angeles Times and the Washington Post, it is not just the editorial board of the New York Times and people in the lefty blogosphere who are pissed at Jay Bybee.

Bybee is the federal judge who, while serving as Assistant Attorney General in George II's Office of Legal Counsel, penned a legal memorandum that provided the CIA with legal cover for the torture of the War on Terra prisoner Abu Zubaydah. He was additionally involved in the production of that legal memorandum, commonly attributed to John Yoo, that purported to define "Standards of Conduct for Interrogation under 18 U.S.C. ?? 2340-2340A," that was subsequently used by George II and his factotums to inflict torture on prisoners throughout the War on Terra.

No, according to the Times and the Post, Bybee himself has come to regret his work. He has concluded that, because of his memos, and because of how they were acted upon, "the spirit of liberty has left the republic."
The Times reports that at a dinner last year for the men and women who had served as Bybee's law clerks during his five years on the Ninth Circuit Court of Appeals, Bybee said "he was proud of the legal work they had together produced."

Then, according to two of his guests, Bybee added that he wished he could say the same about his previous job.

It was the kind of joyless judgment that some friends and associates say the jurist arrived at well before the public release of four additional memos last week and the resulting uproar. One of the documents, dated Aug. 1, 2002, offered a helpfully narrow definition of torture to the CIA and soon became known as the "Bybee memo," because it bore his signature.

"I've heard him express regret at the contents of the memo," said a fellow legal scholar and longtime friend, who spoke on condition of anonymity. "I've heard him express regret that the memo was misused. I've heard him express regret at the lack of context--of the enormous pressure and the enormous time pressure that he was under."

Tuan Samahon, a former Bybee clerk, told the Times in an e-mail that Bybee, reflecting on what had been done to War on Terra prisoners, concluded "the spirit of liberty has left the republic."

Bybee is one of several former BushCo lawyers targeted in an investigation by the Justice Department's Office of Professional Responsibility, charged with determining whether those lawyers acted in a manner "consistent with the professional standards that apply to Department of Justice attorneys."

Lawyers with the Office of Legal Counsel have traditionally worked to provide objective, balanced legal opinions that are loyal to the law, rather than using the law to produce opinions supporting White House policy objectives.

The OPR report is not expected to be kind to Bybee and the other BushCo attorneys. It is reportedly completed, but its issuance was blocked by George II's final AG, Michael Mukasey.

Bybee is also the target of a nascent movement to remove him from his lifetime appointment on the federal bench. The New York Times has called for his impeachment; numerous lefty bloggers are likewise flogging the notion. It is argued, correctly, that full knowledge of Bybee's role in the BushCo torture machine was not before members of the United States Senate when they voted to confirm him to the federal bench. Senator Patrick Leahy, chair of the Senate Judiciary Committee, has observed: "If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed. The decent and honorable thing for him to do would be to resign."

Are these stories of Bybee's reflection on and regret over his role in the War on Terra merely cynical PR ploys designed to blunt calls for Bybee's impeachment, or for a criminal investigation of his actions, as has been suggested by some members of Congress, and, sporadically, by some in the Obama administration?

Maybe.

But what is certain is that neither impeachment proceedings nor a criminal prosecution can be expected to produce publicly from Bybee any such reflection or expressions or regret. In either proceeding he would be lawyered up, caught up in the game of admitting to nothing, minimizing responsibility, establishing innocence.

To me, Bybee's apparent agonizing is another illustration of the wisdom of Alexa's call for a truth commission, in which we get it all out, from everyone, on everything, all of it, opening ourselves to everyone from the scared saps who dumbly brutalized prisoners, to the ambition-driven apparatchiks, like Bybee, who, there in their air-conditioned aeries, applied words to paper, to render whatever horror might be desired by their overlords, all alright.

This is what we're getting from Bybee's friends and associates:

Bybee's friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, [a friend] 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?" . . . .

"On the primary memo, that legitimated and defined torture, he just felt it got away from him," said [a] fellow scholar. "What I understand that to mean is, any lawyer, when he or she is writing about something very complicated, very layered, sometimes you can get it all out there and if you're not careful, you end up in a place you never intended to go. I think for someone like Jay, who's a formalist and a textualist, that's a particular danger" . . . .

"I got the impression that he was not pleased with that bit of scholarship," said an associate who asked not be identified sharing private conversations. "I don't know that he 'owned it.' . . . The way he put it was: He was head of the OLC, and it was written, and he was not pleased with it" . . . .

"The whole idea that the Constitution is based on a kind of wariness of mankind's tendency to grab power, that is an idea I got from Jay," said [a friend of 30 years]. "So the whole idea of uninhibited executive power, from him, does seem passing strange" . . . .

"Getting to the personal side of him, my sense is he would love to repudiate them all," [another friend] said. "Which gets to: Why'd you sign it?" . . . .

Before a truth commission, where he would be charged only with being honest, Bybee could tell us what happened. That he wanted to be a judge, and that the trade-off was that to became a judge, he first had to put in some time with the OLC. And that, in working for the OLC, he was, post-9/11, charged with providing an angry and impatient executive with a tour through the very outer limits of the law in order to facilitate its journey through "the dark side." And that, through fear, ambition, hubris, he did just that. Asked "why'd you sign it?" he could answer: "to become a judge."

Before a truth commission, Bybee could also come face-to-face with Abu Zubaydah. He could confront the personal results of what he wrote. I don't even think it would be more productive for such a meeting to occur publicly. I think the enormity of his error would more strike home if such a meeting occurred privately, one-on-one.

Then, rather than dress him in orange and put him away in a cage for a few months, or strip him of his judgeship so that he could become a martyr to the right, Bybee could return to the bench, with a renewed respect for the law. He would know that others would be looking over his shoulder at his opinions, for the rest of his life. And that he would be, too.

Finally, Bybee could annually tour the nation's law schools, speaking before ethics classes, citing himself as an example of how hubris is always waiting there in the weeds in the legal profession, ready to ruin someone, and through him (or her), countless others. And sometimes, an entire nation.    

Full post as published by Never In Our Names on April 26, 2009 (boomark / email).

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