Saturday, April 25, 2009

If You Can't Stand the Water...

The defense offered by "friends" of Jay Bybee for his role in the waterboarding debacle is so weird that you have to wonder if it is a piece of subtle sabotage:
"I've heard him express regret at the contents of the memo," said a fellow legal scholar and longtime friend, who spoke on the condition of anonymity while offering remarks that might appear as "piling on." "I've heard him express regret that the memo was misused. I've heard him express regret at the lack of context -- of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety." ...

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

Tuan Samahon, a former clerk who recalled Bybee's remarks at the reunion dinner, said in an e-mail that the judge defended the legal reasoning behind the memos but not the policy decision. Bybee was disappointed by what was done to prisoners, saying that "the spirit of liberty has left the republic," Samahon said.

"Jay would be the sort of lawyer who would say, 'Look, I'll give you the legal advice, but it's up to someone else to make the policy decision whether you implement it,' " said Randall Guynn, who roomed with Bybee at Brigham Young University and remains close. ...

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

May I ask whether Judge Bybee ever has similar "regrets" in his present job? Does he ever find, for example, when he writes an opinion endorsing the death penalty that events "just get away from him" so that some poor fool is hanged? Or does he see himself as making "just a policy decision," and it's up to the hangman to decide whether to implement it?--even if the judge believes, say, that it is contrary to "the spirit of liberty?"

Again: Ninth Circuit judges do, I assume, deal with matters that are sometimes "very complicated, very layered." Does Judge Bybee ever find himself being "not careful," such that he ends "up in a place [he] did not intend to go?"

Elsewhere in the Post piece, we are told that Bybee didn't even want the job at Justice; he only took it as a way-station to his judgeship. Would it be proper to judge anything he does on the Ninth Circuit on the supposition that he's only trying to wangle his way onto the Supreme Court?

In Bybee's defense, we would have to admit that there are certain pressures in high government office. Occupants are often subjected to extreme stress, sometimes even sleep deprivation. Many have reported that the experience can be disorienting, impelling you to do or say things you wouldn't ordinarily say or do. Only the toughest survive. But that comes with the territory. As they say in Guantanamo, if you can't stand the water, stay off the board.

Afterthought: I'm still not sure, is Bybee (for I assume he endorses every word) being sincere here, or is this just a ham-handed and misguided effort to explain himself away? Either way, it makes you nostalgic for this guy whose, shall we say, moral clarity, is a marvel to behold.

1 comment:

New York Crank said...

Oh, stop all the blathering and hang the bastard.

Or at least impeach him and disbar him. All the legal opinion writers from Bybee to Yoo to Gonzalez have apologists out there whining, "You can't punish a man for issuing a legal opinion."

By that standard, the guys who told Stalin executing anybody he felt like it was okay were also innocent. As were Hitler's theorists. As was Hitler himself. And since everybody down the chain was "only following orders..." Well, you get the idea. Terrible crimes were committed, but nobody's guilty. Except, maybe Lindy England.

But issuing really bad legal advice is surely excellent evidence of legal incompetence.

Fire them! Fire them all!

Crankily yours,
The New York Crank