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Bye-bye, Bybee?

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A week ago, the New York Times joined the growing chorus of commenters calling for Judge Jay Bybee’s impeachment. Is impeachment really going to happen? And what should we think about the issue?

Initial caveat: I’m not a con law expert; I do think that I have an adequate understanding of the legal standards here, but I’m happy to take suggestions or clarifications on the issues.

Facts

Unless you’ve been living in a cave, you know the basic facts by now. Jay Bybee worked in the Justice Department’s Office of Legal Counsel from late 2001 to early 2003. In 2002, the OLC was asked to provide legal advice on detainee interrogation. The result was a series of memos which suggested that many actions, including waterboarding, were not be covered under the legal definition of torture. The primary author of the memos is believed to be OLC attorney John Yoo. One of the memos, authorizing certain types of actions, was signed by Bybee (and came to be known as the Bybee Memo). In early 2003, Bybee left the OLC when he was appointed to the Court of Appeals for the Ninth Circuit.

In 2004, the memos were discussed extensively and eventually posted online by the Washington Post. Several commenters stated that the legal conclusions in the memos had flimsy support, and that the memos were ex post attempts to justify existing torture policies, rather than legitimate attempts to answer legal questions ex ante. At the time, various proposals for legal or professional actions against torture memo authors (including Bybee) were discussed; nothing came of them.

Recent developments have put the issue back into the spotlight. Opinion on the memos had been shifting slowly, as the extent of the damage caused to the war effort became clear. The process picked up steam in the past year, which saw Democrats pick up control of the Presidency and both houses of Congress. In one of its first acts following the Presidential inauguration in January 2009, the OLC formally repudiated the prior memos. The Obama administration also released additional memos and details, bringing renewed attention to the issue.

Relevant law

First off, remember that impeachment means bringing a formal claim against an official (such as a judge); however, this just sets the trial process in motion. From there, the official must be convicted in order to be removed.

Another initial note, the law on impeachment is extremely spotty and hard to define, because there have been so few impeachments. There’s not a lot of precedent here.

The rule seems simple enough. The basic rule is that Federal judges are subject to impeachment for “treason, bribery, or other high crimes and misdemeanors.” However, this turns out to be a ambiguous in practice.

On the face of it, that description sounds like it refers to crimes. However, the standard has been interpreted much more broadly. Judges have been impeached for non-criminal reasons — insanity, drunkenness, and even disagreement with case rulings. (And I think that there are good reasons to view the standard more broadly than crime. I don’t _want_ an insane person to be permitted to continue as a judge, even if insanity isn’t a crime.)

However, those impeachment cases are two centuries old. No judge has been impeached in the past 200 years for anything but alleged criminal action, and attempts to impeach judges over the content of their opinions have not succeeded lately, and have in fact been very unpopular.

(Here, the usual alignment of politics and views on founding fathers views may be reversed. The founders clearly had no problem impeaching for all sorts of offenses; but later generations have viewed the standard more narrowly. To some extent, it is Bybee’s critics who are relying on founding-era cases, while his defenders cite later precedents.)

Arguments

What are some of the relevant arguments for or against impeachment?

1. Criminal action

This is the easy one. If Bybee is convicted of a crime for his actions, then the case for impeachment immediately becomes much stronger. However, at present it appears that there is little likelihood of criminal prosecution for his actions regarding the torture memo.

2. General unfitness

Since a conviction is unlikely, many calls for impeachment have focused on the idea of general unfitness. For instance, the NYT editorial notes,

In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary.

That’s not a claim of criminal action, but of very very bad judgment. Similarly, in its call for impeachment, the editorial states that, “These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him.”

But this raises the question of whether general unfitness should be an impeachment offense. And, as noted above, this isn’t really clear. On the one hand, there are some precedents for this. On the other hand,they’re all 200 years old. In the past two centuries, impeachment has come to be equated with criminal action. An impeachment for non-criminal action would push the boundaries of impeachment law significantly. No judge has ever been impeached for legal opinions written prior to swearing in.

Impeachment seems possible on these grounds, but not particularly likely; conviction seems even less likely.

3. Deception

Another possible ground for impeachment is deception. Bruce Ackerman has argued that if Bybee’s participation in the creation of the memos was known at the time of his confirmation, he never would have been confirmed. Patrick Leahy has made just this argument recently, stating that “if the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed.”

It’s not clear how strong that argument is. During his confirmation hearings, Bybee claimed executive privilege for memos written while at the OLC, and he was appointed anyway. He didn’t tell any known outright lies under oath. It’s not clear that he had a duty to say more than he did.

4. Retroactivity

Finally, there may be concerns with impeaching Bybee for pre-appointment actions. Frank Bowman at Slate has argued that this may violate the “during good behavior” language of Article III, because Bybee’s actions took place prior to confirmation. .

Conclusions

I’d say that Bybee is unlikely to be impeached and even less likely to be convicted.

However, he’s become a political lightning rod. Leahy has stated that “the decent and honorable thing for him to do would be to resign.” That may be the politically astute option, too.

Other issues

Are there broader ethical or moral issues at play as well?

In 2004, Times and Seasons guest blogger Dan Burk stated, “I cannot believe that the practice of torture is acceptable to anyone who claims to be a disciple of Jesus Christ,” kicking off a lengthy discussion of whether it would ever be acceptable for a church member to legally support these kinds of actions. Those questions remain as current today as they were in 2004. It’s highly uncertain whether Bybee’s actions are consistent with LDS values. I think that there can be some room for disagreement on the topic, and he can be defended on some grounds; but it’s also true that a strong moral case can be made against Bybee. (Peggy Fletcher Stack wrote about this divide in the Salt Lake Tribune in 2004.)

What should a church member do, when asked to condone torture? At least one LDS soldier chose to kill herself rather than participate in torture. I don’t know that that’s always the answer; but there are serious problems with condoning torture. Dan Burk asked, “at what point does a Latter-Day Saint governmental official have, like Mormon of old, the moral obligation to resign his position rather than participate in the conduct of his superiors?” Five years later, that’s still the question we have to ask.

114 comments for “Bye-bye, Bybee?”

  1. Please forgive my extreme ignorance here, but did what he wrote constitute a violation of the Geneva Convention (or similar) and might that constitute “high crimes and misdemeanors”?

    And while I’m asking: I assume that ‘misdemeanor’ meant something different back in the day and that they weren’t envisioning impeaching judges for, you know, having an open beer in front of a convenience store? What did it mean? Is high crimes and misdemeanors just a merism for any crime?

  2. Kaimi, what’s your evaluation of claims that calls to impeach Bybee are little more than Republican retaliation for Democratic electoral success? (Not being a member of either, or any, party, I’m having a hard time picking up the partisanship vibrations. I’d hate to see a trend start, though, with either party retaliating against the other this way every time a change in power takes place.)

  3. I don’t know Jay Bybee, but I’m inclined to cut him quite a bit of slack here. By all accounts, he is a good dude who probably wishes he would have never signed these things. A couple of observations….

    First, it is entirely possible that while he did stake out a certain legal position, he did not necessarily condone the practices as moral, ethical, or even good policy…..simply, technically, legal.

    Second, in 2002 and 2003 we were all thinking that another 9/11 was imminent. Life at the Justice Department sucked. Everything was in flux, everything was new.

    People were taking positions on things and trying to come up with better programs as if their lives depended on it – everyone believed that since we missed the first one, we had to do things completely differently to uncover and stop the second one. I liked the recent statement by the Director of National Intelligence, Dennis Blair, who really put things into context……”in the months after 9/11, we did not have a clear understanding of the enemy we were dealing with, and our every effort was focused on preventing further attacks that would kill more Americans. It was during these months that the CIA was struggling to obtain critical information from captured al Qaida leaders, and requested permission to use harsher interrogation methods. The OLC memos make clear that senior legal officials judged the harsher methods to be legal. Those methods, read on a bright, sunny, safe day in April 2009, appear graphic and disturbing.”

    Again, we have to remember the context. What is “cruel and unusual” when interrogating someone who we believe has information on a plot that we believe will incinerate 30,000 Americans with a WMD, tomorrow, for example?

    Third, it’s highly ironic to me that those same people who were blasting the FBI and CIA for not stopping 9/11, are now blasting the CIA and Justice Department for doing their damndest to stop the second 9/11. Just look at the cast of characters casting stones. It more than pisses me off.

    Finally, this guy just signed the memos. He wasn’t the one who drafted them. He’s getting the heat because he is a sitting Federal Judge…..

    I’m not defending the use of these techniques. I disagree with them….I wish we wouldn’t have utilized them….and I wish Jay Bybee wouldn’t have signed the memos. But I tend to cut cut him some slack.

  4. Julie:

    The DOJ’s Office of Professional Responsibility is supposed to be issuing a report on the soundness of the memo’s legal reasoning in the next few weeks. I’m not a lawyer, but what I’ve heard so far is more along the lines that Bybee seems to have approached the CIA’s questions with the intent to justify their “wish list” of interrogation techniques rather than answer whether the techniques did, in fact, violate the Geneva Conventions and the Convention Against Torture. There were other people, both in the military and in the agency that oversaw the SERE program, who issued opinions that the SERE tactics unequivocally constituted torture. (The JPRA, which oversaw SERE, issued a memo stating as much in July 2002; Bybee’s memo was dated August 2002.) In other words, from what I’ve heard so far, Bybee was at least negligent in writing his opinion. When the OPR report comes out it may be even harsher.

    leftwingcentrist.blogspot.com

  5. Just to add to what Aaron T. has said, members of Congrees (from both parties) knew full well what was going on in 2002 and did nothing. They may have even encouraged the use of torture.

    http://www.thenation.com/blogs/thebeat/258258

    “According to the news reports, Pelosi has no complaint about waterboarding during a closed-door session she attended with Florida Congressman Porter Goss, a Republican who would go on to head the Central Intelligence Agency, Kansas Republican Senator Pat Roberts and Florida Democratic Senator Bob Graham.

    ‘The reaction in the room was not just approval, but encouragement,’ recalls Goss.

    How encouraging? It is reported that two of the legislators demanded to know if waterboarding and other methods that were being employed ‘were tough enough’ forms of torture to produced the desired levels of mental anguish to force information from suspects who, under the Geneva Conventions and the U.S. Constitution, cannot be subjected to cruel or unusual punishment.”

  6. I’m wondering if the issue of criminality is less clear than your analysis suggests. The question of (not) prosecuting the actual interrogators who used these methods relates directly to the memos. Assuming that certain interrogation tactics are, in fact, torture and therefore a violation of the Geneva Conventions and US law, the fact is that the military and the CIA went to great lengths to create a clear and unambiguous paper trail of legal opinion that provided assurance to interrogators that the tactics they were being asked to use were legal.

    So the money question is: if an act (say waterboarding–a crime for which the US tried, convicted, and executed Japanese war criminals a half century ago) is illegal, but if the person who commits it is given official assurances (from, say, the White House OLC) that it is legal, who is to blame? On the one hand, it’s not a “few bad apples” situation. On the other, the Richard Nixon defense (“I’m saying that if the White House OLC approves it, it’s not illegal”) is dead in the water.

    We have to be able to hold someone accountable for the commission of a crime. It’s like money laundering–even if no specific law is broken along the line, the sum total of all the legal acts is an illegal act. In this case, the final product is American agents and soldiers engaging in torture under the belief that they are not. Bybee is the accountant. If Bybee had unreasonable pressure put on him to approve Yoo’s memo, then whoever exerted the pressure broke the law, even if they technically didn’t. If there was no pressure, then the buck stops with him.

  7. One other thing to note here is that Bybee did not originally campaign for the OLC job – he first talked to Alberto Gonzalez about another possible appeals court judgeship. He was apparently offered the OLC post as a “try out.” That could imply that the Bush administration offered him an appeals court nomination as a quid pro quo for his work at OLC. If that were the case then a criminal proceeding would be a possibility.

  8. Bybee’s job was to give the CIA legal cover for otherwise illegal acts. Because he did so, he is guilty of conspiracy to torture. That is a punishable offense.

    Earlier, I quoted to Kent what Brian Tamanaha analyzed of these memos. I’ll quote again:

    Here is the circularity in the analysis: Time and again the OLC memos conclude that the use of these interrogation techniques do not amount to the intentional infliction of severe physical or mental suffering (the torture standard) based upon the CIA’s own finding that these techniques don’t cross that line. But that is precisely the legal question the CIA (purportedly) is posing to the OLC: Do the interrogation techniques violate the anti-torture statute?
    Presumably, the OLC cannot answer the legal question by relying upon the CIA’s own determination that these techniques do not violate the torture statute. That is, however, exactly the analysis in the torture memos. This circularity is explicit in the following passage (March 10 memo), opining on the combination of sleep deprivation with other techniques:

    This possibility [that sleep deprivation reduces pain tolerance] suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to place the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you [CIA] have informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute ‘severe physical suffering’ within the meaning of sections 2340-2340A.

    To summarize the above passage: the OLC concluded—as a legal matter—that the CIA’s combination of techniques does not violate the torture statute based upon the CIA’s assurance that it combines the techniques in a way that does not violate the torture statute. It doesn’t get more circular than that.
    All of the recently released memos reason in this circular fashion. As the memos acknowledge, “there is no evidence” about the effect of combining these techniques. (Sleep deprivation studies exist, but, for obvious reasons, no studies examine the combined effects of sleep deprivation with waterboarding.). The OLC lawyers admit: “We don’t have any body of experience, beyond the CIA’s own experience with detainees, on which to base an answer to this question.” (March 10 memo).
    …
    On what grounds, in the final analysis, did OLC lawyers draw their “legal” conclusion that the specified interrogation practices did not violate the torture statute? The assurances of the CIA that 1) their interrogation practices did not inflict “severe suffering;” 2) interrogators were carefully trained and monitored to adhere to the limits (never mind that an IG report revealed that the waterboarding limits were exceeded); and 3) medical personnel were present during the interrogations—that’s the entire the basis for the OLC’s legal approval. When drawing their legal conclusions, rendering their purportedly independent legal assessment of whether the techniques violated the anti-torture statute, the OLC lawyers relied solely upon representations by the CIA.

    This was terrible, but purposeful logic. Bybee essentially said to the CIA, “you tell us these techniques don’t cause suffering, therefore, we believe they don’t cause suffering, and thus your techniques don’t violate the law.” That’s Bybee’s rationale. In the use of this circular reasoning, Bybee completely ignores all the evidence to the contrary, that these techniques, particularly when combined induce great suffering on the victim.

    The purpose of these techniques is to break down the spirit and will of an individual. How can anyone claim they don’t cause suffering? These techniques are designed to cause “learned helplessness,” a condition in which the victim no longer lives except on the commands of the torturer. These techniques are designed to destroy the ability to resist. How can anyone argue they don’t cause suffering?

    We’re not talking about hazing rituals here. We’re not talking about taking a dunk in the water. If these techniques were so “harmless” then why would ANYONE think they were effective on hardened terrorists? It just defies logic that any rational, civilized person would even think torture works.

    The purpose of torture has always been to extract false confessions. The SERE techniques were learned from the Chinese, who used them on American soldiers during the Korean War to get the Americans to FALSELY confess. The training American soldiers do in SERE is to help them RESIST torture if captured by enemies who don’t adhere to the Geneva Conventions. Those techniques learned in SERE are torture.

    Furthermore, when used on American soldiers, those techniques are used in a very controlled environment in which a soldier has the ability to opt out at any point, of his own choosing. To argue that the environment is the same with an enemy detainee is just ludicrous. The whole purpose of using these techniques on them is to force them to say things they would not say.

    Also, speaking on religious terms, why would any Mormon rely on torture to get information about our enemies’ movements? Did not Captain Moroni face a similar problem in Alma 43, where he needed to know where the Lamanites were heading? What did he do in order to get that information? We’re talking about a credible threat, and ticking-time. What did Moroni do? He went to the prophet of the Lord and asked him to ask God whither he should go. And you know what happened? The Lord replied. The Nephites were saved. And no one was tortured.

    Why on earth do we NOT rely on the Lord for answers? If we truly believe the Lord is on our side, and that He has promised to protect us, then surely we should rely on him for what we need to protect us!

    Or is faith in God just a matter of words? Do we think, “God won’t do miracles in our day, including revealing the latest Al-Qaeda plot. Those are things of days of old.” Do we forget that God knows exactly where Al-Qaeda wants to go next?

    In terms of utility, we simply do not need torture. It is ineffective at giving us accurate intelligence. It has heavy costs to the morals and standing of the nation that employs them. Why would anyone think there is any value in torture?

  9. Brad, I think you have an important point.

    It occurred to me some time ago that the OLC is all about what you describe. It is supposed to define for the executive what is legal, so that if anyone questions what was done, they can rely on the OLC memo. “I made sure the OLC approved” is the defense they use.

    Providing that cover is why the OLC exists.

    But, of course, that doesn’t answer your question. Who is at fault if the OLC gave aproval? Is it the OLC? Is it those that sought the opinion? Is it both?

    Like Aaron T., I don’t like blaming Bybee. The profiles I’ve read of him make me think he is a descent man.

    But it is clear he is at one end of this blame game–the other being those who sought the opinion.

    But, the system was set up to achieve this outcome.

    Now who is to blame?

  10. Never mind, Kaimi. I think previous comments in this thread have answered my question about partisan retaliation (which I worded incorrectly in my #2, since of course it isn’t the Republicans who are calling for Bybee’s resignation).

  11. Well, I think it’s abundantly clear that Yoo is to blame. As for Bybee, something must account for the fact that the sign-offs seem inconsistent with his character (perhaps further attested by the regret he has expressed regarding the memos). If, on the one hand, it was just political pressure, then he has a responsibility to give sound legal advice independent of political pressure. Not doing so is irresponsible at best, criminal at worst. If, on the other, he submitted to the pressure with an eye on a judgeship, then he has likely participated a very serious criminal conspiracy.

  12. Brad,

    (perhaps further attested by the regret he has expressed regarding the memos).

    He hasn’t expressed regret yet. His anonymous friends tell the Washington Post that he has.

  13. Dan, seems to me there are scriptural precedents for the good guys doing some pretty nasty things in order to accomplish God’s will….not that I agree with those either.

  14. Bybee is small fry.

    Let’s go after Charles Schumer and Hillary Rodham Clinton, both of whom expressed enthusiasm for “coercive interrogation techniques” at the time.

  15. Aaron,

    Dan, seems to me there are scriptural precedents for the good guys doing some pretty nasty things in order to accomplish God’s will….not that I agree with those either.

    Any examples of torture? Please share.

    Secondly, it is one thing to do “God’s will” and another to do the will of a government.

  17. Brad, you may have missed my point. Wikipedia says “The Office of Legal Counsel was created in 1934 by an act of Congress,” so I assume the 1934 Congress is to blame for setting up a system where the executive branch can blame the OLC and the OLC can blame the executive branch.

    Something tells me they aren’t alive to take the blame.

  18. Mark, approval means one thing coming from senators who have no formal authority to approve. It means something quite different coming from someone in Bybee’s position. Hypocrisy and ridiculousness abound (high ranking congressional democrats wringing their hands about interrogation, teabaggers rending their garments, weeping and wailing, over the damage done to the constitution by a federal budget without as much as a mention of the past 8 years), but we really do need to hold people accountable for what’s taken place.

  19. Speaking as someone that worked in a downtown LA high-rise adjacent to the Library Tower from 2002-2008, I’m grateful that my life was likely saved by these interrogators.

  20. gst,

    Speaking as someone that worked in a downtown LA high-rise adjacent to the Library Tower from 2002-2008, I’m grateful that my life was likely saved by these interrogators.

    You realize, of course, that that particular plot was foiled in February 2002. Zubaydah was not tortured until the summer of 2002. KSM was not tortured (or even captured) until March 2003. How can the torturing of Zubaydah in the summer of 2002 and of KSM in March 2003, foiled a terror attack that occurred in February of 2002?

  21. I agree, Kent. We’ve become exceptionally good at shielding individuals from liability for the bad consequences of actions committed by vaguely identifiable forces. We’ve built unaccountability into our political structure. Just look at how many people are expressing outrage, not at the fact that this stuff happened, but at the fact that it’s been brought to light. Still, the only way to keep this from ossifying into political and legal normality is to hold someone accountable. Yoo and Bybee are, I think, appropriate starting points.

  23. gst,
    assuming your statement is factually correct (which I’m even willing to concede for the sake of argument), it does not by itself justify anything these men did, since it could just as easily be used to justify a policy of extracting information from high value prisoners by disemboweling their children in front of them.

  24. Brad, the senators approved of these programs and they approved funding for these programs. If they wanted to stop it they could have.

    The dirty secret here is that almost everybody in office at the time, R or D, wanted this to happen. The fact that Bybee is getting the heat now proves the axiom that it all rolls downhill.

  26. Read this particular article in the LA Times on how the CIA really didn’t want to research whether the methods used were really that valuable. Note one particular point that the writer makes:

    The limited resources spent examining whether the interrogation measures worked were in stark contrast to the energy the CIA devoted to collecting memos declaring the program legal.

    The CIA apparently spent a lot of energy making sure their methods were declared legal, but little energy devoted to whether the methods actually worked. Interesting…

  27. Mark:

    There was a funding request for the torture program? The only congressional involvement I’ve heard of before 2004 (ie, when the policies were being formulated) is when the ranking members of the House & Senate Intelligence Committees were called to the White House and given high-level summary info; they weren’t asked for approval, just told that the program was happening.

  28. I didn’t say torture, I said “nasty things.” My point was that I don’t know that it’s fair to use scripture as the answer to what we should have done in this case, while at the same time failing to recognize that sometimes really ugly things happen….and sometimes, according to the scriptures, God directed His people to do really ugly things to other people.

    I don’t mean to define who “the good guys” are in this case, nor do I necessarily compare a government to god’s people. And even if I did draw a parallel to a government and god’s people, your suggestion that the government utilize the BOM as a guide in this instance demands the exact same thing as a premise…..no?

    I suppose it is a possibility that Bybee’s “good Bushie” behavior helped secure for him the position that “wasn’t available” when Bybee went to OGC in the first place. I’m not sure whether prosecutors would have to prove a specfic quid pro quo, however (Bybee’s “cooperation” with the memos in exchange for a judgeship), in order for Bybee to be found guilty of a crime? Could he be convicted for simply knowing he had to “go along” with the administration’s policies generally, if he wanted to make the next step? I don’t know.

  29. I agree with your idea that surely Christ and His Church would not condone torture. When Mitt Romney supported torture in the presidential debates, he immediately lost my vote. The torture methods we used are against the Geneva Convention and against anything that is decent or humane. I am surprised that so many members are oblivious to the implications of torture and continue to support Romney as a potential candidate in 2012. To me, torture support by any candidate is a deal-breaker.

  30. Leftwing, it is immaterial whether they were asked for approval. They gave their approval without being asked. Representatives and senators can schedule hearings on anything they want to, anytime they want to, and withhold funding from anything the want to. I repeat, the fact of the matter is, nobody wanted to.

    Brad, your belief that legislators care much about legality is touching, it really is. Bybee and Yoo just gave them the answer they wanted to hear. The way those gasbags are pointing the finger now and claiming to have been mislead is an outrage.

  31. Kaimi mentions that Bybee being convicted of a crime would make the case for impeachment stronger. What are the relevant criminal statutes here? I alluded to one or two in my previous comment – bribery (for which you need a clear quid pro quo). But is that it? Really stretching it….something like a theft of honest services/conspiracy? Anything else?

  32. Mark,
    I don’t need convincing that the change in mood is an outrage. But you’re missing the point. Let me make it via imaginary dialog:

    Interrogator: Boss, we have the high value prisoner detained and ready for questioning what should we do?

    Boss: You’re allowed to do x, y, and z.

    Interrogator: Seriously? Those things look like they might be illegal. I could get in trouble, maybe even prosecuted for violating any number of binding treaties and US domestic law.

    Boss: Don’t worry, you should have seen how enthusiastically Senators Schumer and Clinton reacted to their briefing on the methods.

    Interrogator: Ah, say no more. I feel so much better. Let’s get to work.

  33. I see your point, Brad. The problem is that the impeachment, if it comes to that, will be performed by those same senators who, I will repeat again, gave at least their implicit approval by continued funding.

    There is plenty of guilt to go around here. Bybee is small potatoes compared to some of the others, but he’s the whipping boy now. Maybe he ought to just resign and get it all over with so everybody else can get back to their business of looking the other way at our ongoing renditions.

  34. Mark,

    This is not a partisan issue. If Democrats are caught writing this stuff, I would want their heads too. Sadly it is a Mormon who is caught writing such bad legal advice. Besides, using the “well Clinton did it too” argument is pretty lame. So what? Why would you use a Democrat as a standard for how a Republican should behave?

    Besides, it doesn’t matter if Clinton and Shumer gave their nods on this. You pick out two Democrats and I can pick out 50 Republicans who gave the okay. Does that make it any better or any more legal? Not at all.

  35. Dan, it’s always a pleasure, but you might want to brush up on your reading comprehension skillz. In comment # 24 I stated my opinion that just about everybody, R and D alike, was in favor of coercive interrogation techniques, and they were not concerned at all about the legality. For you, of all people, to barge in here and accuse me of partisanship is ridiculous, even by your own low standard of ridiculousness. Some piehole shutting might be in order.

  36. For the US Intelligence Community to resort to torture after 9/11 is confirmation if the complete failure of that same group to properly investigate these groups beforehand.

  37. While I don’t know him personally, my impression from others that do is that Bybee is a good man. I do find aspects of these memoranda to be horribly flawed, but I think few of us can really imagine the intense kind of pressure Bybee must have been under at the OLC during this critical period. In hindsight, he certainly appears to have regrets about the memos that were produced, something that I find reassuring. I’d like to think I would have voiced concern over what I was being asked to produce had I been in Bybee’s situation, but the truth is I don’t know what I would have done (I think none of us really do until we find ourselves in such a situation).

    I certainly don’t mind the legal justifications for these methods being exposed to some sunlight (as I hope it will result in better legal advice from future OLCs), and I do think some criticism of Bybee’s work here is warranted, but I truly hope we can avoid assassinating the character of someone who truly seems to be a good man.

  38. GST and Others: The CIA inspector general said in 2004 that there was no proof that the harsh techniques at issue here produced any actionable intelligence. There is also serious question as to the reliability of some of the information obtained and there is evidence that it actually led to some wild goose chases. Moreover, it’s also very unclear whether we couldn’t have gotten whatever information we did get via these techniques through the use of more conventional methods.

    All that aside, the legality of these techniques shouldn’t be an ex post facto consideration of whether they ended up being effective or not.

  39. I suggest reading these two articles

    oh and im not sure how we define a “good” or “decent” man but writing memos that authorize torture doesnt sound very good or decent; even under political pressure.

    sounds like high crimes and misdemeanors to me. but as Peggy suggested, some things in life should be left a mystery. just keep walking folks. seriously makes you wonder if we are the “hypocritical nation” willing to hang japanese soldiers who torture and just keep walking when we do it.

    the money quote:

    The parallels between the Foreign Office’s role in the SS deportations and the OLC’s role in the CIA’s torture regime are uncanny. Nothing is lost if we simply substitute “Yoo, Bybee, and Bradbury” for “Woermann and von Weizsaecker,” “OLC” for “Foreign Office,” and “torture” for “deportations.”

    Indeed, in one critical respect, the case against the authors of the OLC memos is even stronger than the case against von Weizsaecker and Woermann. The latter’s criminal participation in the deportations consisted solely of omissions — failing to point out that the deportations violated international law. The former’s criminal participation in the CIA’s torture regime, by contrast, consists of both acts and omissions, because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime.

  40. J. Madson, the Ministries case does establish precedent for prosecuting an attorney so I see your point in recommending it. But it shouldn’t apply here for an obvious reason. Ministries dealt with the practice of rendition, and many of the people who are the most upset about Bybee apparently continue to approve of rendition, warrantless wiretaps, habeus corpus violations, etc.

    I agree with previous comments which call his work into question, especially with the benefit of hindsight. I am open to the suggestion that perhaps he ought to step down. I object to the prospect of a show trial, I object to his being made the scapegoat for people who have done things which are far, far worse, and I object to the notion the he is some kind of remarkably evil person who deserves our special condemnation.

  41. Mark Brown,

    My reading skillz are just fine thank you. In comment #24, you state:

    The dirty secret here is that almost everybody in office at the time, R or D, wanted this to happen.

    That is inaccurate. As Mr. Hayden has revealed (apparently proving the illegality of the program), the CIA only informed “The Gang of Four” of the techniques. Furthermore, it has come to light that the only Congressman (or in this case woman) to object to the techniques was Jane Harman (which explains why the sudden revelation of her involvement with Israeli spies—assassinate her character). To say that ‘almost everybody in office at the time’ approved of this stuff is just plain wrong. Sadly, yes, Democrats were not principled enough at the time (and still aren’t) to say, “No, this is un-American.”

    The attempt by you (and Hayden and others like him) to link Democrats to this is to turn it partisan, Mark. What I’m saying to you is that if Al Gore was president at the time and he ordered this stuff, I would say exactly the same things as I am now. I really don’t care who is in power. They, however, must follow the law of the land!

    And, unfortunately for Obama, he must follow the law of the land as well, and sadly that includes the prosecution of any who committed torture, or conspiracy to torture. If we are a nation that adheres to the rule of law, that also includes prosecuting those who broke the law, as high up as they go.

    President Ford thought he was doing the nation a favor when he pardoned Nixon, but he wasn’t. He told lawbreakers (in the Nixon administration), “you were bad, but not bad enough to be held accountable.” Many of the same individuals in the Nixon administration went on to break laws under Reagan (who then were pardoned by George H. W. Bush). Their apprentices learned from them and broke laws under George W. Bush. There is a pattern here, Mark. Unless those who break laws are held accountable the pattern will continue. And, I promise you this, the lawbreaking will get worse. And it will further erode our democracy and our values.

    I don’t want Bybee to be the scapegoat, but he’s putting himself in that position by hiding behind anonymous friends. He’s hiding, which means he is showing that he is indeed guilty. If he truly wants to save himself, he needs to go public with what he knows. Obviously he was ordered from someone higher up to write a legal cover for illegal acts. I don’t want Bybee to be the focal point. Clearly the real law breakers are George W. Bush, Dick Cheney, Condoleezza Rice, and Donald Rumsfeld (note how many of these four come from the Nixon administration). These are the men who should be the focal point. They are the real law breakers. Trying to say “well, Democrats approved it too” is a red herring. So what if they did. They didn’t give the order. The order comes from the President of the United States and his closest advisors.

  42. It’s torturous reading these torture discussions. They inevitably involve a whole group of people getting on their soapboxes and claim moral superiority and righteousness over a whole group of other people without having a clue as to the complexities involved. I for one am thankful for the people who have helped keep the country safe in the wake of 9-11. The fact that they are being turned into scapegoats for spineless and hypocritical politicians — and their willing accomplices in the media and even on this blog — makes me very sad indeed.

  43. Thank goodness the information Nephi wanted wasn’t in Laban’s head. “Better that one should perish than a nation… ” is so much neater when you can get the job over with in one stroke and carry off the data.

    I say bring it on. It will be good to get a few congressmen under oath. I want to hear them say that it would have been better to have a few more airplanes crash into towers than to have put some water in a slimeball’s nose.

  44. Bybee is a small fish, but he’s a small fish that was dumb enough to put his name on incredibly incriminating materials. That shows a lack of judgment and a limited moral sense at the very least. The first rule of government is CYA and his is swinging out in the wind right now.

  45. AM

    Prove it. How did the torture provide ANY actionable evidence that stopped ANY terrorist attack? Jack Baur is a fantasy, the real world requires proof.

    It would be good to get a few congressmen under oath, and the blame for the torture spreads to both sides of the political aisle.

  46. Cheney says release the memos that demonstrate the results. I say yes. Let’s have the whole truth. I an guessing that the Dems don’t want the truth.

  47. I can think of one example in the scriptures of the ‘good guys’ using torture. At least, that’s what’s implied. This, from Alma 1:15: “And it came to pass that they took him; and his name was Nehor; and they carried him upon the top of the hill Manti, and there he was caused, or rather did acknowledge, between the heavens and the earth, that what he had taught to the people was contrary to the word of God; and there he suffered an ignominious death.”

    Sounds ominous enough that even Mormon (presumably the narrator at this point) wants to cover for what happened. Thus, “he was caused, or rather did acknowledge.” Considering the things Mormon saw, you wouldn’t think he’d be squeamish about a little thing like extracting a confession from the granddaddy of priestcrafts. Might be an indication of where torture falls on the moral continuum.

  49. aloysius,

    Cheney says release the memos that demonstrate the results. I say yes. Let’s have the whole truth. I an guessing that the Dems don’t want the truth.

    Bring it on. Release all the memos, not the cherry-picked ones. Let’s have it all out in the open.

    see, there are things we can agree on aloysius. :)

  50. john,

    #47,

    Interesting example. Unfortunately, Mormon doesn’t give us more details. The words he uses are quite vague, and thus it becomes a Rorschach based on preconceived thoughts.

    If the Nephites did indeed force a confession out of Nehor before his death, that confession would hold little value as it was done under duress, thus frustrating the very point of getting that confession: to prove that Nehor’s priestcraft was wrong. As we know from reading onward, Nehor’s craft did not end with him, thus proving that a forced confession against his priestcraft did not have the effect the Nephites intended.

    So really, Mormon’s point may actually be that such actions become self-defeating. :) See what I mean, Rorschach.

    As far as Mormon was concerned, no, he was not squeamish. He did however resign from his post rather than do the atrocities the rest of the wicked Nephites were doing at his time. That ought to tell you the kind of standard modern day Mormons ought to keep.

  51. Kaimi, what do you think of the disbarment issue? The idea that the legal research and reasoning are so inadequate as to constitute malpractice?

  52. Dan any agreement you perceive is superficial and trivial. You have no idea how different you and I are.

  53. “I for one am thankful for the people who have helped keep the country safe in the wake of 9-11.”

    Geoff, I’ll give you the same answer I gave gst (which puts you in pretty good company). That answer is crap. Even if torture made the country safer, that’s not an argument for it’s moral legitimacy. If US interrogators were rounding up the families of high value detainees — parents, spouses, children — and killing the innocents in order to get the detainees to talk, you’re sanctimonious little defense would be just as (ir)relevant. It doesn’t matter what they did, because they made me (feel) safer. That’s an incredibly lofty standard.

    Mark,
    I definitely agree RE: conflict of interest involving formerly approving senators and an impeachment process. Yoo and others — including possibly Bybee — should be tried in an independent criminal court by a jury of their peers with all the due process that they sought so diligently to deny their enemies, real, potential, and imagined.

  55. Brad,

    If US interrogators were rounding up the families of high value detainees — parents, spouses, children

    Isn’t the CIA currently holding KSM’s children in some secret place? I believe they are on the list of ghosted people. And I read reports that they were used as collateral against KSM so that he could talk. He replied back that no matter what they do to his children, he would see them in heaven.

  57. This entire issue, and the discussions like this one that it has spawned, speak to the effectiveness of the 9/11 attack. Every time someone says “keeping this country safe after 9-11,” another point goes in Osama’s column.

    There is a fundamental misunderstanding underlying our discussion of national security in this country, and that is that the goal of terrorists is to kill Americans. Killing Americans is not the goal of terrorists, but, to put it bluntly, a theatrical side effect. The goal of terrorists is not to kill but to terrorize. And in this regard the Bush administration was entirely complicit. The Bybee memo, Abu Ghraib, Guantanamo, the Patriot Act, the invasion of Iraq, the deterioration of the Geneva Protocols, and even things as banal as Glenn Beck’s 9/12 project or Mitt Romney’s derision of his opponents’ “9/10 mentality”– these are all feathers in Osama bin Laden’s cap.

    It’s a minor victory for a terrorist to leave someone dead. It’s a major victory for a terrorist to use that one death to make dozens or hundreds of survivors change their moral standards out of fear. Bybee’s memo was simply a legal apparatus for giving Osama exactly what he wanted.

  58. RE #55 and #56: Oh, dear. In discussions with people on this topic, when they’ve played the “keep our country safe no matter what” card, I’ve presented the hypothetical situation of having a terrorist’s child in custody and facing the moral dilemma of trying to extract intel from the child or threatening the child (waterboarding? what?) to try to extract intel from the parent. I presented it as what I thought was an ad absurdam extrapolation of the “safety at all costs” argument. I’m quite dismayed to learn it wasn’t so absurdum after all.

  59. Jeremy,
    Regardless of whether it is actually going on (which I doubt, at least in the sense of physically harming the family members to extract info), the “whatever-makes-us-safe” defense is staggeringly morally vacuous.

  60. “rather perish than make morally tough decisions” is gutless and cowardly. It is what one expects out of eunuchs.

    Let’s all see the memos Dick Cheney is calling for. Torture may not work on someone with character and values but I’ll bet that it worked like a charm on gutless nihilistic terrorists. in fact I am willing to bet that must of them broke in six seconds or less of water in their noses.

  61. Eunuchs. Teabags. Trucknutz. I had no idea of the extent to which the current conservative movement is driven by pure testosterone.

  62. Dan writes,

    “I don’t want Bybee to be the scapegoat, but he’s putting himself in that position by hiding behind anonymous friends. He’s hiding, which means he is showing that he is indeed guilty. If he truly wants to save himself, he needs to go public with what he knows. Obviously he was ordered from someone higher up to write a legal cover for illegal acts. I don’t want Bybee to be the focal point. Clearly the real law breakers are George W. Bush, Dick Cheney, Condoleezza Rice, and Donald Rumsfeld (note how many of these four come from the Nixon administration). These are the men who should be the focal point. They are the real law breakers. Trying to say “well, Democrats approved it too” is a red herring. So what if they did. They didn’t give the order. The order comes from the President of the United States and his closest advisors.”

    Err — are you suggesting that this is the proper standard for potential criminal defendants generally?

    Remember, there have been ongoing discussions about indicting Bybee for criminal acts. Like everyone who is or may be accused of a crime, Bybee has a constitutional right not to be forced to incriminate himself.

    Jeremy writes,

    “There is a fundamental misunderstanding underlying our discussion of national security in this country, and that is that the goal of terrorists is to kill Americans. Killing Americans is not the goal of terrorists, but, to put it bluntly, a theatrical side effect. The goal of terrorists is not to kill but to terrorize. And in this regard the Bush administration was entirely complicit. The Bybee memo, Abu Ghraib, Guantanamo, the Patriot Act, the invasion of Iraq, the deterioration of the Geneva Protocols, and even things as banal as Glenn Beck’s 9/12 project or Mitt Romney’s derision of his opponents’ “9/10 mentality”– these are all feathers in Osama bin Laden’s cap.”

    Don’t be silly. Bin Laden isn’t a terror worshipper. He’s a follower of the Wahabist strand of Islam, with very specific goals. He wants the U.S. off of what he sees as Islamic land, and he wants an end of U.S. support for Israel. Those are his immediate goals.

    He’s an egotistical operator and a political player in extreme Islam, and in those regards is happy to boost his stock with success against the U.S. But those are peripheral — his goals are explicitly drawn from Wahabi.

    z writes,

    “Kaimi, what do you think of the disbarment issue? The idea that the legal research and reasoning are so inadequate as to constitute malpractice?”

    I don’t find those arguments particularly convincing. I’m not an expert on Geneva convention law, but the analyses I’ve seen indicate that the problem with the memos was ignoring some important counter-arguments. That’s problematic, but wouldn’t rise to the level of malpractice; especially since those counter-arguments are not universally accepted.

    At its worst, the Bybee memo is a one-sided piece of legal argument, which is probably not malpractice.

    Besides, let’s be honest, it’s not really about the legal research at all. If the Bybee memo had said, “Water boarding? That’s a silly question. I’m not even going to look it up. Don’t do it.” — would we be saying that was malpractice because he didn’t look it up?

    The fundamental problem that people have with the Bybee memo is its conclusion, not its research level.

  63. I know, I’m just thinking through potential outcomes. I don’t think he’ll step down per se, but maybe quietly “retire.” I really don’t know how he can live with himself, and this “he says he regrets it” thing in the papers is just kind of pathetic.

  64. Brad, #53,

    Yoo and others — including possibly Bybee — should be tried in an independent criminal court by a jury of their peers with all the due process that they sought so diligently to deny their enemies, real, potential, and imagined.

    Fair enough, as far as it goes. But who do you include in the “and others” part? Since the current occupant, his A.G., and his sec. of state all want to continue the practices of rendition, illegal wiretapping, and the withholding of habeus corpus, they are also denying their real, potential, or imagined enemies due process. Shall we put them on the docket as well? If not, why not? Waterboarding is bad, but rendition is worse. It isn’t like they can continue to say that they were misled by Bybee, or that GWB made them do it.

    This gets to the heart of why I think the attention to Bybee is a sideshow. Any prosecution of him would be conducted by the dept. of Justice and led by A.G. Holder. I’m trying to see some moral high ground here from which to launch a prosecution and I’m just not seeing it.

  65. “Let’s all see the memos Dick Cheney is calling for. Torture may not work on someone with character and values but I’ll bet that it worked like a charm on gutless nihilistic terrorists. in fact I am willing to bet that must of them broke in six seconds or less of water in their noses.”

    The fact that it works does not make it right or acceptable. Anyone who thinks so has the moral compass of an insecure 13-year-old jock.

  68. How can any Mormon condone torture? Any Mormon who condones torture should think about what Jesus suffered.

  69. Geoff B. – The argument that they’ve kept us safe is a red herring. Beyond the fact that we shouldn’t have to sacrifice our moral standing for safety, it’s simply not substantiated that we could not have obtained the same information through less controversial methods. A steady stream of CIA and FBI folks have said that they believe we could have, the most recent of which is one of the FBI interrogators of Abu Zubaydah.

  70. If your granddaughter were a hostage and you found a terrorist who knew where she was being held, you would (if you were any kind of human) gladly poor some water in his nostrils to extract the information on her whereabouts. If you wouldn’t then God have mercy on your gutless emasculated soul.

    Its just a scale problem up from there but it requires conviction that something worth saving is urgently threatened and that this is the only way to save it. Goodbye New York, goodbye Los Angeles we’re through with you.

  71. Hmm so i should lower myself to their standards? Shouldnt our morals have higher standards to theirs? If our morals arnt higher then theirs, doesnt that make us no better then them?

  72. viciousaloysius, we’ve seen you progress here at T&S from denying Elders’ quorum muscle to widows and orphans, to multiple assurances that you define your masculinity by your willingness to sink to the depths of the Gestapo, the Czar’s secret police, and the Vietnamese interrogators who twisted John McCain’s broken limbs with ropes and meathooks to extract an apology to The People.

    We believe you.

    God have mercy on your soul.

  73. aloysiusmiller,
    It doesn’t matter how satisfying, on whatever adolescent, visceral, knee-jerk, Jack-Bauer-worshipping level, an action is. Talk about lowest common denominator. Not an incredibly impressive standard for someone who even makes a pretense at Christian discipleship. At least DKL has the cojones to admit that he finds the ethical teachings of the savior to be fundamentally wrong. If the levels to which someone whose child is being tortured is willing to stoop is your litmus test for morality, then your moral universe is much more shallow than my original analogy gave you credit for.

  76. When the time for courage is past the cowards gather to boast of their moral superiority. No Nephis in this crowd who could even have heard the admonition “better that one should perish…”

    Bybee is a real hero. God bless him and bear him up in the congregation of the cowards.

  77. Kaimi,

    I just want to pipe back in and say that stated goals, “on paper,” are different than the internal goals that drive people, especially dangerous people. Wahabism is OBL’s ideology, but people driven to mass violence against innocents in pursuit of the goals of their ideology (OBL, McVeigh, whoever) have deeper, more purely carnal urges, which the ideology gives them license to indulge in — they’re not following some Franklin-Covey program of dividing big goals into tasks. This is another topic entirely, of course, and I think we’re probably talking past each other.

  78. Aloysiusmiller,
    Giving in to your basest, most vengeful, violent impulses when backed into a corner is not courage. It is the antithesis of courage. Except maybe in the thoroughly wicked moral universe you inhabit.

  79. aloysius said: “Bybee is a real hero. God bless him and bear him up in the congregation of the cowards.”

    Im a coward? I served in Iraq, you sat in an armchair and wrote letters trying to get the tortures broadcast on pay per view.

    Your praise for torture is frankly disgusting.

    To the rest of the posters:
    I apologize for the ad hominem. I normally try not to engage in personal criticisms

  81. You’re absolved Ken. A liberal is incapable of ad hominem attacks on a conservative.

  82. I’m so glad we have the example of Jesus torturing the moneychangers in the temple to fall back on in our defense of torture. But, seriously…

    Given that there are reports that people died during “harsh interrogation”, and that we are commanded by the Lord “Thou shalt not steal; neither commit adultery, nor kill, nor do anything like unto it”, I’d say the “anything like unto [killing]” pretty much puts the end to any serious defense of torture.

  84. To T&S Admins,

    I’ve been asked to moderate my language. I ask the same out of aloysius.

    This is unacceptable:

    If you wouldn’t then God have mercy on your gutless emasculated soul.

  85. Dan #8

    Why on earth do we NOT rely on the Lord for answers?

    I’ll send that recommendation on over to Obama. I’m sure he’ll go for it.

    OTOH, maybe even believers don’t rely solely on answers because they are not always forthcoming. I’m wondering how the American people would react to, “Yes, I know Iran is planning to bomb us tomorrow. But I’m waiting for a reply from God.”

    We’re all good with God if we’re Shadrach, Meschach, and Abednego. Not so good when we’re Abinadi.

    My favorite defense in all the aftermath was Pelosi’s. She stammered on about how she didn’t object BEFORE because congressmen aren’t supposed to speak up about things, they are just told (only in my dreams). She also was completely unaware of any intent to USE the method. Apparently she thought they discussed it and demonstrated it and gave the opinion that is was legal because they were fans of aquatics.

    Chris #29

    I am surprised that so many members are oblivious to the implications of torture and continue to support Romney as a potential candidate in 2012. To me, torture support by any candidate is a deal-breaker.

    That’s the exact reason I’ve voted for so few Democrats in my life. I’m thinking that if waterboarding is really horrendous, then sucking babies into sinks and poking scissors in their skulls almost ranks up there with being watering-canned into severe emotional distress.

  86. You can argue about whether waterboarding was torture under the United States Code as it stood in 2001-2002 until a whole lot of hands develop carpal tunnel syndrome and you still won’t persuade each other or come to the heart of the matter. There is a serious national security risk here that is already having a chilling effect on the information about threats and the national security law advice being given to a sitting president.

    I have a couple of scenarios that I would like all of you who are lawyers or law professors to step up to the plate and answer. Indulge a poor management scholar and game this out.

    First scenario: suppose that this goes so far as just a “truth” commission and all and sundry get their names thoroughly sullied. Then you are hired by the Justice Department, or the General Counsel of the Defense Department or some other agency that has responsibility for providing legal advice about defense options. Then the day comes that you are assigned to prepare a policy paper to advise the sitting president what the absolute outer limit of the law is on a potential response to a threat to the United States. Because of this event, you know that there is a very good chance that when the opposition party comes back into power, they will do to you what was done to Yoo, Bybee, and company. Given the growing antipathy between the major parties, that is some thing that is probably a good bet. What do you do? Do you really tell the president how far out that he or she can go to protect the nation, or do you protect yourself first?

    Second scenario: this actually goes to trial and convictions or not, the defendants are ruined personally, professionally, and financially. Again, you get hired by the government and the day comes where you get asked to prepare that potentially toxic policy memo. What are you going to do? Will you step up to the plate and tell the sitting president what his or her far outer fence is? Or are you going to think about the harm that very likely will come to you and your family if you do prepare that memo in all it’s horrible glory and you are someday in the defendant’s chair? Will you protect the country or yourself?

    These are the scenarios that CIA field officers, Military Intelligence troops, and lawyers in the government with national security law duties are thinking about this weekend.

  87. Alison,

    I’ll send that recommendation on over to Obama. I’m sure he’ll go for it.

    I don’t hold Obama to this standard, but I do hold a Mormon to this standard. It is what we purport to believe. But I guess I shouldn’t expect Bybee to be a modern day Captain Moroni.

    But just speaking abstractly, we believe God answers our prayers and defends us. We ought to rely more on him than on the arms of flesh for our defense, and we ought to say that publicly too.

  88. James,

    What do you do? Do you really tell the president how far out that he or she can go to protect the nation, or do you protect yourself first?

    The purpose of the OLC is not to tell the president how far he could go, but what the limits are. Err on the side of caution.

    James, there shouldn’t be immunity for lawyers writing legal opinions on matters of national security. That’s the impression I get from your piece. If we truly believe no one is above the law, that includes the lawyers writing the memos. They really do have to take into account what effect the memos have on their own reputation and livelihood. They don’t live in a vacuum. They shouldn’t be able to sit back in their OLC cubicles and write whatever they want with impunity. There should be consequences for their memos. It will keep them on their toes, and keep them within the law. That’s the point of accountability!

    But if we let the Bybees and Yoos of the world go on without consequence for bad legal advice, no, really, criminal advice, then it removes accountability from future lawyers who write this stuff.

    People must be held accountable if we are to sustain the rule of law in America.

  89. Dan, when you say “The purpose of the OLC is not to tell the president how far he could go, but what the limits are.” You appear to be arguing that the limit that the president should go to defend the nation should be at some point less than the absolute limit the law will allow.

    Isn’t this the logic that kept U.S. Central Command from killing Mullah Omar, the leader of the Taliban, when they had the chance just because Tommy Franks was afraid of a lawyer’s bad opinion?

    Assuming that you are an attorney, your vote is that the lawyers should protect themselves first.

  90. @ James I can tell you as a fact that the rules of war are drilled incessantly in all members of the military. If you are given something you know to be an unlawful order, you are NOT to obey it, you are to go to the next person in your chain of command. When you obey an order to torture, you are then guilty of it, as is the person who ordered it.

    IF you tortured, your guilty of torture, sorry its rather black and white. If you remember we said the same things to the concentration camp guards after WW2

  91. James, your scenarios are only interesting if we assume that an honest assessment of the outer limits would yield something as horrendous as the Bybee memo. But whether the memos were an honest assessment, or an ex post facto exercise in excusing criminality is at the heart of what is in dispute here. (classic begging the question)

  92. Dan #87

    I don’t hold Obama to this standard

    Darnit all. I thought he was a God-fearing Christian.

    But just speaking abstractly, we believe God answers our prayers and defends us.

    We do? I don’t. But maybe I just sat in the pew for 20 years without listening.

    I believe “God answers our prayers” means that he hears them and either says “yes,” “no,” or nothing at all. The latter to be interpreted (according to Maxwell) to mean (a) later or (b) you decide.

    How you’re going to incorporate that into national policy will be an interesting tale. As will be how you know that Bybee didn’t pray about it.

    As for whether or not God defends us, my belief is two-fold. (a) He will defend us ULTIMATELY. (b) He defends us when it suits his greater purposes.

    I don’t know of any authoritative pronouncement that would lead me to believe that an individual’s belief in God (Bybee’s or anyone else’s) will result in either myself, my family, or my country being defended by God (presumably from a person, family, or country who don’t believe).

    James #89

    But if we let the Bybees and Yoos of the world go on without consequence for bad legal advice, no, really, criminal advice, then it removes accountability from future lawyers who write this stuff.

    I’m (obviously) not a lawyer, but the assumption here is that what constitutes “legality” is actually clear, making “bad advice” and/or “criminal advice” something easy to identify.

    In a country where women are awarded millions because they don’t know coffee is best kept in a cup, not on one’s lap and irons must have warnings not to use while wearing the wrinkled clothing, I hardly think that’s a given.

  94. Ken – Yes, ensuring that military personnel obey lawful orders is a critical factor to retaining civil control of the military. You however are thinking from the position that interrogation techniques like waterboarding are torture. That is not settled by a U.S. civilian court as yet. There are good legal scholars in this country on both sides of the argument.

    Cynthia L. – You’ve reached the conclusion that the boundary of the law established by the memos is horrendous. Not everyone agrees with you. In any case, the scenarios that I propose for your consideration are based on the concept that if a witch hunt goes forward now, when the democrats lose power there will be a corresponding inquisition for the purposes of political payback. If and when that happens, and I think that it is more a case of when, the obligatory incarceration of sacrificial mid to high level government officials at the change of party in power will become a part of the political landscape.

    Which brings us back to the core question of the scenarios. What is a lawyer going to do? Are they honestly going to tell the president, “you may go this far down that path in order to protect the nation and no farther.” Or are they going to say to themselves, “I don’t want to be the target of the other party’s ‘truth’ commission when they get in power. I’m going to put enough space in this thing between what the true limit of legality is and what I tell them so that I don’t go to jail or poverty.” That is the question and it seems that there is already a strong affinity for the CYA approach.

  95. …There are good legal scholars in this country on both sides of the argument. … Not everyone agrees with you. … “

    There is unanimity on exactly nothing in this world. Not whether waterboarding is torture, not whether almond rocha ice cream is the best, not whether Jesus is the Christ.

    That doesn’t exactly mean that our conclusions are invalid, James.

  96. Jay Bybee was my Civil Procedure professor in law school. In my limited interaction with him, I found him to be an exceptional legal scholar and a good man.

    I have read the memos and do no find them to be so horrible. They are legal opinions written under a time of extreme pressure. I suggest that many here need read the memos rather than rely solely on the Huffington Post and the NYT for their information.

    He is being unfairly treated and unfairly smeared. He will not be convicted (or even charged) with a crime. Unfortunately he probably will be at the center of witch-hunt for some time.

    I sincerely hope he will not resign his judgeship or give in. The Ninth Circuit needs him. I, and many other like-minded individuals, will contribute financially to his defense, should that become necessary.

  97. #96 – I know that many commenters here have read the memos (I have). Here and elsewhere I’ve echoed some of your sentiments about Bybee, including the fact that he seems to be a good man and was facing tremendous pressure at this time at the OLC. That said, I’ve also noted that I found aspects of the memos highly troubling. I know others who know him well and who have told me that he has some serious regrets about the memos (something the recent Washington Post article further substantiates). While I certainly concur that Bybee has suffered a significant amount of character assassination over this, I do think still think some legitimate criticism was warranted. I highly doubt he’d defend the memos in whole today, I’m not sure others should feel compelled to on his behalf.

  98. Ardis, in response to #95. “That doesn’t exactly mean that our conclusions are invalid.” Will you grant those who don’t consider waterboarding to be torture the same leeway? Can you accept the idea that those conclusions may not be invalid?

  99. James,

    #89,

    You appear to be arguing that the limit that the president should go to defend the nation should be at some point less than the absolute limit the law will allow.

    I’m arguing that the OLC is meant to ensure that the president adheres to the law, not find all the deep crevices where he can get away with something he normally can’t. That, over time, degrades the law, to where it essentially becomes that the president IS the law. If you read Yoo’s arguments, that is what essentially he believes. Whatever the president deems, must be, and is legal. That’s just whacked thinking!

    Isn’t this the logic that kept U.S. Central Command from killing Mullah Omar, the leader of the Taliban, when they had the chance just because Tommy Franks was afraid of a lawyer’s bad opinion?

    No clue. I don’t remember the incident and can’t comment on it.

    Assuming that you are an attorney, your vote is that the lawyers should protect themselves first.

    In the dog-eat-dog jungle that is politics, hell yes!

  100. Alison,

    #92,

    Darnit all. I thought he was a God-fearing Christian.

    He is. But based on the theologies of other Christian denominations, I don’t expect any of them to believe that God will actually work miracles today. So I don’t expect them to call upon God to help them today and actually believe he will.

    How you’re going to incorporate that into national policy will be an interesting tale. As will be how you know that Bybee didn’t pray about it.

    I figure along the lines of all the examples in the Book of Mormon and the Old Testament. How often had political leaders gone to religious leaders for advice in the Old Testament, Alison? And in the Book of Mormon? There are a number of examples. Not always was the advice what the king in question desired (for instance 1 Kings 22), but for some odd reason, the prophet at the time gave the Lord’s counsel when requested. Who knows, maybe asking the prophet for the advice from the Lord may actually work today. I’m curious why few try it. What’s there to lose?

    As for whether or not God defends us, my belief is two-fold. (a) He will defend us ULTIMATELY. (b) He defends us when it suits his greater purposes.

    Indeed, but we’re supposedly HIS CHURCH! Surely he will do everything in his power to defend it (which he has). But you bring up a great point here. When we rely on the Lord for protection, the way we end up being protected may not be the way we would have done it on our own. But this again comes down to trust. Who do you trust more? The Lord, or the arms of flesh? Personally, I lean on the Lord.

  101. James,

    #94,

    You however are thinking from the position that interrogation techniques like waterboarding are torture.

    Dude! We prosecuted Japanese soldiers who performed waterboarding on our soldiers during World War II. Nothing about that particular law has changed since the 1940s. It is still in effect. Anyone who uses waterboarding can still be tried under that same law! Waterboarding IS TORTURE!

    Will you grant those who don’t consider waterboarding to be torture the same leeway? Can you accept the idea that those conclusions may not be invalid?

    But you have a few large hurdles to overcome. 1. Waterboarding was previously prosecuted by US courts against Japanese soldiers. 2. Waterboarding is part of SERE, which was developed from techniques the Chinese used on Americans during the Korean War to extract false confessions out of the Americans. 3. Waterboarding has a nasty history, including the Spanish Inquisition and Pol Pot’s regime in Cambodia.

    Really, I can’t fathom how any sensible person would ever consider allying themselves in support of such a horrible tool.

  102. I find it terribly sad that Mormons — Bybee, Flanagan, the guy who developed the SERE protocol — would ever support torture — ever. Not only is it morally repugnant, but it goes against all FBI, military, and now, apparently, even CIA, opinion that it does not work. That these individuals are good members of the church, great family people, only makes it sadder.

  103. I do know Jay Bybee, I’ve known him for more than 30 years. I’ve been waiting for the trashing in the bloggernacle to begin ever since his name resurfaced with the memos.

    I would write in more detail but T&S’s new formatting does a strange thing on my computer. As the thread grows the text spreads wider and wider. So on long discussions each succeeding comment becomes more buried underneath the right and left margins and around comment 80 or so I start to miss enough that it makes reading impossible. If someone at T&S can fix that or tell me how to fix it I would like to talk about Judge Bybee and hopefully add to the discussion.

  104. Does this mean that at the next General Conference’s Priesthood Session, there just might be a chance in heck that instead of the usual anti-pronography talk, we might get one that lets us know that the Lord says that acceptance of torture as a valid method of interrogation is at least as destructive to the soul as pron?

    How widespread is that acceptance among the Priesthood holders of the Church, I wonder?

  105. I’m new here, and a friend from my ward sent me link to this post. I am including below my reply:

    The Times & Seasons post is about impreachment — actually the NYT editorial board’s view of impeachment. As I told you today, I think impeachment is a non-starter for political reasons. There just will not be anything close to 66 votes to convict in the Senate because Republicans won’t cooperate.

    The T&S writer (Kaimi) is correct that precedents regarding impeachment are murky. Impeachment is at least as much a political action as a legal action. Although there is a loose tradition of making impeachment proceedings mimic criminal-justice standards, ultimately Congress can impeach, convict or acquit on whatever grounds it pleases. There is no one empowered to tell them otherwise. (See Clinton, William Jefferson.)

    Unless there is real smoking-gun evidence of criminal behavior, I think there would be no chance of conviction. If there is such evidence, which I doubt, it would probably be easier to indict and convict Bybee in federal court.

    The T&S post mostly misses the core issue about Bybee’s behavior, dismissing the question merely as one of “very very bad judgment.” It is fairly easy to make a case that the Bybee memos were substantively wrong. The question is, were they actionably wrong, and if so in what venue are they actionable?

    The blog post never really addresses what Bybee’s core duty as a government lawyer was when he wrote the memos — to issue an objective adjudicatory opinion on the what the law is, based on solid analysis, not just advocate what policymakers wanted to hear. That is obviously a subjective question, but legal processes deal with subjective questions all the time and render them to bright-line judgments.

    The threshhold determination will be made by the pending investigation by DOJ’s Office of Professional Responsibility. It may be that is as far as it goes, even if the language is damning. Other than state bar discipline, there really are not other enforcement mechanisms I know of that could reach Bybee, Yoo or Bradbury. That is a possibility, and state bar discipline can have real teeth. For example, I once covered a Virginia DA being investigated by a state special prosecutor, who instead of bringing criminal charges referred clear-cut evidence of wrongdoing to the state bar. The DA resigned and was disbarred.

    There have been some leaked reports of the OPR investigation, and we are still waiting to see the results. I’m expecting that it will charge ethics breaches of some kind, but not refer anything for criminal prosecution. Here are the two stories (about 11 weeks old) about what OPR reportedly found:

    Newsweek: http://www.newsweek.com/id/184801

    WashPost: http://www.washingtonpost.com/wp-dyn/content/article/2009/02/16/AR20 09021601198.html

    The Newsweek story contains this fascinating detail: “OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted. ”

    So if there is a smoking gun, it would probably be in that paper trail. Hypothetically, an email exhange with David Addington showing improper deference to the White House might be sufficient to show a breach of ethics. A real smoking gun would be something that showed Bybee actually thought the interrogation practices were illegal, but willfully wrote a wrong opinion. (I would be shocked if there is anything so clear-cut. If there were such evidence, impeachment would be the least of Bybee’s worries, because he could be indicted for conspiracy to commit torture, a serious felony under the Torture Act.)

    So my bet is that there will be some ethics allegations against Bybee. I don’t know where that might lead. I think there is enough known now for the public to form a very low opinion of Bybee’s actions. I absolutely think he should resign with some public recanting of the opinions. Unless he honestly believes — as John Yoo claims to — that there was no problem with any of the controversial opinions and how they were decided, I can’t see how he could justify putting the nation through a legal and political civil war to keep his lifetime job on the bench.

    Bybee is obviously a nice guy and a smart lawyer — so smart that it is hard to give him the whole benefit of the doubt under the layman’s principle of Hanlon’s Razor. I think he just let Yoo (his subordinate) and Cheney/Addington/Gonzales use him very badly, and he wanted that judgeship a little too much.

  106. When Earl Warren was Attorney General of California, he offered his formal legal opinion that the fact there had been no documented evidence of any acts of sabotage or espionage by Japanese Americans living in California was just proof that they were extra sneaky. His statements helped get him elected governor. They also helped to make it politically palatable for FDR to imprison 100,000 American citizens and legal residents for three years without any formal charges, let alone a trial. You can bet there were a lot of innocent people who died prematurely in the relocation camps because of the enforced poverty and deprivation of that unjust imprisonment.
    Warren’s statements supporting that action did nothing to prevent his selection as Chief Justice of the Supreme Court. He never made any apology for his actions during World War II.

    No one in responsible positions in American government was ever held personally liable for the unconstitutional imprisonment of 100,000 innocent people. The military justification for the action was totally bogus, as was clear from the fact that the Japanese American population in Hawaii, an obviously more crucial military location, was almost entirely left alone.

    FDR is still lionized by minority groups, even though he rejected the advice of his own attorney general when he signed the executive order for “relocation”, and had to be almost blackmailed (by Elbert D. Thomas, Senator from Utah, among others) to allow Jewish refugees to come into the US. Earl Warren is remembered mainly for his leading the Court to a unanimous opinion denouncing racial segregation in schools in Brown v. Topeka Board of Education. It is continuing offense against our children when we don’t teach them about the negative actions of men who were and continue to be held in high esteem. But how much good would it have done to impeach Earl Warren or FDR on those grounds?

    Even if you think the judgment of Bybee and others in the Department of Justice was atrocious, taking up a cudgel against them, and in effect torturing them because you disagree with them, teaches hatred and indulgence of the will to vengeance, rather than restraint in the use of power. One of the most basic consitutional limits on criminal enforcement is that there be no ambiguity about whether the act that one is accused of was a crime based on what was known at the time. Notice that one’s actions were illegal must be objectively clear in order to meet the standard of “due process of law.” There is no justice in “victor’s justice” where the main element of a crime is that you belong to a political party different from the one that won the last election.

    Saying that torture (however you define it) is unacceptable under any circumstances is easy to say, but what if real lives are at stake? After what happened on 9/11/2001, military air defense pilots know that, if the scenario is ever repeated, they could be ordered to shoot down a civilian plane, containing a hundred innocent people, in order to stop it from being used to kill even more people on the ground. The people who fought back on United Flight 93 knew that their actions could speed the death of all of the innocent passengers. If it is morally justifiable in some cases to actively kill a hundred innocent people to prevent a terrorist attack from succeeding, how can you say that it is unequivocally illegal and immoral to coerce someone through torture–without killing him–if it would provide information that would prevent that awful choice?

    Remember, this is not torture to produce a confession for use as evidence in a criminal trial. It is, at worst, torture to get informaiton to prevent the murder of hundreds or thousands of innocent people. If the unwillingness to use waterboarding led to the deaths of your own family, and a thousand of your neighbors, would you really see the result as morally justifiable? If another major attack occurs, in which thousands are killed, and it becomes known that our refusal to torture a terrorist led to the deaths of innocents, I think it more likely under those circumstances that the person being brought up for impeachment would be the President of the US who preferred the comfort of a terrorist over the lives of Americans. And you can bet that George W. Bush knew that, if he were that President, the same Democrats who are attacking him now would be more than happy to crucify him.

    I think that it was precisely that scenario that led people in the Bush Administration to actions that were at the edge of constitionality, and perhaps even beyond it. They knew that laws that prevent American government from defending its citizens would never be accepted as excusing their direct culpability for the outcome of another mass killing of Americans.

    Let us have a debate about what should and should not be done with terrorists who mean us massive harm. But to prosecute the people who were involved in this policy is more of an exercise in self-righteousness than a fair acknowledgement of the difficulty in making such judgments at a time when the lives of Americans were in your hands.

  107. RTS, anyone ever tell you that all of your comments are way too long? I mean, I get a lot of crap about mine but for different reasons. Just wondering what sort of feedback you get.

  108. Raymond,

    Remember, this is not torture to produce a confession for use as evidence in a criminal trial. It is, at worst, torture to get informaiton to prevent the murder of hundreds or thousands of innocent people.

    But there is where you get to the crux of the problem. These techniques are not what you think they are. They DON’T prevent the murder of hundreds of thousands of innocent people!

    These techniques originate from the Chinese who used them on American soldiers to extract FALSE CONFESSIONS! That’s the whole point of torture.

    Furthermore, just look at the evidence from the memos themselves. One memo recounts how KSM was waterboarded 183 times in the month of March 2003. That’s the month he was captured in. They didn’t even bother trying to first build a rapport with him to get him to talk on his own free will. My feeling, based on what I’ve learned about KSM, he would have gladly spoken of his accomplishments. Furthermore, note one other important aspect of the fact that he was waterboarded 183 times in March 2003. If this technique was so good at breaking down a hardened terrorist, would it need to be used 183 times in one month on that same individual? One more thing to note about KSM and March 2003. What event took place in March 2003? The war in Iraq was started. Why do you think Bush ordered KSM to be waterboarded so many times in March 2003? Because he, and the interrogators, came in with a preconceived notion (that Al-Qaeda and Saddam were collaborators), and that the more KSM just couldn’t connect the two for them at the last minute, it really ticked them off, so they pressed further. Surely somewhere deeper in his mind is that golden nugget! See, Bush wanted that nugget, the one that never existed. He wanted the link between Al-Qaeda and Iraq. He always believed it, though it was never there. And because interrogators were ineffective at getting that link, he ordered torture to get that link. Of course, torture failed because it just does.

    The use of torture was about getting intel on the connection between Saddam Hussein and Osama Bin Laden. The war in Iraq was a distraction from our real enemy, but Bush and his buddies really thought that Saddam was the baddest boy on the block. They couldn’t fathom the possibility that there really was no connection between the two bad boys. So they ordered torture to try and force it out of the detainees.

    Remember that. Torture was used to try and get a fake link between Saddam and Al-Qaeda so it would be easier to hoodwink Americans into thinking it was okay to attack Iraq.

    It is utterly reprehensible.

    If the unwillingness to use waterboarding led to the deaths of your own family, and a thousand of your neighbors, would you really see the result as morally justifiable? If another major attack occurs, in which thousands are killed, and it becomes known that our refusal to torture a terrorist led to the deaths of innocents, I think it more likely under those circumstances that the person being brought up for impeachment would be the President of the US who preferred the comfort of a terrorist over the lives of Americans.

    This is just fearmongering and unrealistic.

    I read a piece recently on the intel America has of the Taleban right now, and let me tell you, we’re going to lose Afghanistan and Pakistan in the near future. We apparently know so little of the motivations of the Taleban. How can that be after EIGHT YEARS of fighting against them! Why hasn’t the torture that has been done at Bagram Base given us more information about who our enemy is? Seriously!

    They knew that laws that prevent American government from defending its citizens would never be accepted as excusing their direct culpability for the outcome of another mass killing of Americans.

    Then CHANGE the frakking laws, not subvert the current ones!

    But to prosecute the people who were involved in this policy is more of an exercise in self-righteousness than a fair acknowledgement of the difficulty in making such judgments at a time when the lives of Americans were in your hands.

    No. It is about adhering to the laws we purportedly believe in. Either we believe in the rule of law, or we don’t. We cannot have both.

  110. See, now everybody gives Dan crap for all of his comments. That’s what I’m talking about RTS.

  111. Ok im calling for all the people who believe waterboarding is not torture. Im gonna waterboard you 183 times over the next month, after the 183rd, you can stand up and tell me that waterboarding is not torture, and I will personally take it as gospel and shout it from the mountain tops.

    Hmm no takers?

    Alright its established that waterboarding is torture then…

    Now that we know its torture, anyone who committed it, ordered it, ignored it, or enabled it should now be prosecuted.

    Ohh BTW none of that “well we thought it was legal.” Two things come to mind when I hear that.

    1) If you have to ask you cant do it.
    2) Ignorantia legis neminem excusat (ignorance of the law excuses no one)

    Ohh BTW Dan.. good post

  112. Nice comment Raymond. You were just trying to provide some context to decisions that were made by those charged with our safety and had the ultimate goal of protecting all of us. Whether those decisions were right or wrong is the issue, and I personally am not settled on how I feel. But I appreciate the fact that you felt that crucial context was not being properly considered, or intentionally ignored.

    Speaking of ignoring, I suggest you do just that with Steve Evan’s comment about the length of your comments. I notice that when Steve is confronted with a well reasoned argument that goes against his opinion, he resorts to personal attacks, sometimes camouflauged, sometimes not.

  113. Raymond: I thought your comment was really well-written and provocative, so I second Sonny’s comment above.

    I disagree with your conclusion, though. The UN Convention on Torture (signed by Reagan) is about as clear as you can be on this point:

    “2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

    That’s not to say that Bush, Bybee, et al should have just read this statute and called it a night. It means that other great leaders have struggled with the same “ticking time bomb” question for centuries, and have all come to the same conclusion: when torture is condoned – for any reason – democracy goes out the window.

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