When Barack Obama released Jay Bybee’s 2002 memos on enhanced interrogations, the Washington Post reported that Bybee recently expressed regret for his work. The New York Times today says that the Post got it wrong. Bybee stands by his work, even though it has cost him friends and prompted credential investigations:
Judge Jay S. Bybee broke his silence on Tuesday and defended the conclusions of legal memorandums he had signed as a Bush administration lawyer that allowed use of several coercive interrogation practices on suspected terrorists.
Judge Bybee, who issued the memorandums as the head of the Office of Legal Counsel and was later nominated to the federal appeals court by President George W. Bush, said in a statement in response to questions from The New York Times that he continued to believe that the memorandums represented “a good-faith analysis of the law” that properly defined the thin line between harsh treatment and torture. …
Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect. Given the widespread criticism of the memorandums, he said he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions.
But he said: “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”
Other administration lawyers agreed with those conclusions, Judge Bybee said.
“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”
Considering the pressures faced by the executive branch at the time, one can understand why Bybee gave the advice he did in 2002. Everyone expected another attack, and many had been highly critical of the Bush administration for missing opportunities to stop the 9/11 attack before it happened. The US captured high-ranking members of the al-Qaeda network who knew details of further attacks, and no one wanted to let them hit America again.
I still believe Bybee got it wrong, though, in his advice on waterboarding. He acknowledged that waterboarding instilled an “imminent threat of death,” a predicate of the US law prohibiting mental torture, but advised that the interrogators could use it without informing the subject that he would not be physically harmed and that medical personnel were on hand to prevent injury. Bybee rationalized this by saying that mental anguish had to last “months or years,” which would completely invalidate the “imminent threat of death” clause in the statute. (In the event, interrogators reportedly told Abu Zubaydah and Khalid Sheikh Mohammed that the process wasn’t fatal.)
This still misses the larger point, though, about responsibility for alleged torture. The lawyers neither ordered nor approved nor conducted the torture. There is no legal framework for trying the lawyers who gave the advice that doesn’t include trying the interrogators, the people who ordered the procedures, and the people who approved the procedures — including leading members of Congress who blessed these procedures. Going after Bybee is a ridiculous display of impotence, and releasing just the OLC memos without releasing the records of Congressional briefings is a cheap shot.