Last Thursday, the Obama Administration ended the internal dispute about the release of additional memos regarding enhanced interrogation techniques by making public lightly redacted versions of four Office of Legal Counsel memoranda, one issued in 2002, the other three in May of 2005. Here is a highly selective summary of some of their more salient features. (more…)
Posts Tagged ‘bybee’
The New Torture Memos
April 21, 2009The Hollow Men
March 3, 2009For the better part of eight years, the Bush Administration employed distinctly muscular and macho imagery in connection with its theories of presidential power – think John Wayne or Clint Eastwood. But in its waning days the Administration’s legal theorists were reduced to a very different image: that of the diminutive and feckless Emily Litella of Saturday Night Live fame. Regarding those strident assertions of authority, “Nevermind.” Or maybe the better pop cultural reference is Dallas. Bobby Ewing did not actually die, the entire season in which he appeared to have gone to his reward was just a dream, and Bobby could return to the show. So it is that those opinions from John Yoo and Jay Bybee were just a bad dream, and it is safe for the rule of law to return. Or maybe it is the Wizard of Oz: “Ding dong, the wicked witch is dead.”
Whatever the reference, the revelation of the recent memoranda repudiating aspects of seven OLC opinions issued in the wake of the 9/11 attacks is stunning. I will leave discussion of the seven newly released opinions to another post. For now, I want to offer a few comments on the extraordinary memorandum (bearing the misleadingly banal caption: “Memorandum to the File”) that repudiates important components of the legal foundation for the Bush Administration’s theory of presidential power.
First, as far as I am aware, this Memorandum to the File is unprecedented. OLC occasionally reverses itself on a question. But I can think of no situation in which an Administration has gone back and repudiated its own analytical approach to an entire category of issues. This action speaks volumes as to just how deeply flawed those opinions were. There continue to be commentators who assert that opinions such as the infamous torture memo involve close calls over which reasonable lawyers may differ (a rant by Andrew McCarthy over the National Review Online provides a recent example). But the repudiating memo demonstrates that these opinions do not involve points of reasonable disagreement. Rather, they involve egregious and unjustifiable departures from accepted legal principles. The theories that guided the Bush Administration at least in 2001-2003 have been roundly rejected by commentators across the political spectrum, and now are repudiated by the very Administration and the very Office that had once issued them. It now seems beyond reasonable dispute that the theories espoused by OLC under the leadership of Jay Bybee and John Yoo were clearly wrong and unsupportable by reference to accepted legal principles. (more…)
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Impeach Jay Bybee?
April 30, 2009The recent release of additional torture memos has spawned calls for the impeachment of Judge Jay Bybee, who signed several of the most egregious of those memos. The case for impeachment has been laid out ably by Prof. Bruce Ackerman (here) and by John Podesta of the Center for American Progress (here). The argument has several grounds. First, Jay Bybee would never have been confirmed as a judge on the Ninth Circuit had the Senate been aware of the memos’ existence. Second, the memos deviate from professional standards so egregiously that the public cannot be expected to have confidence in the integrity and competence of their author.
These are powerful arguments. The torture memos have been sharply condemned by Republican officials, such as Senator Lindsey Graham and former Rep. Bob Barr, and even by former Bush Administration officials, such as Bybee’s successor at OLC Jack Goldsmith. When the first torture memo was leaked the White House immediately repudiated it and in the waning days of the Administration the de facto head of OLC Steven Bradbury wrote a memo to the file condemning it and a number of additional legal opinions of the Bybee era at OLC. This broad-based record of condemnation confirms what any fair reading of the torture memo would conclude: the memo that Jay Bybee signed is far outside the standards of the legal profession. Given the braod condemnation of the torture memo, it is nearly impossible to imagine how Bybee could have been confirmed to his judgeship had the memo’s existence been disclosed to the Senate.
Nevertheless, I do not believe that this provides sufficient grounds for impeachment. (more…)
Tags:bybee, impeachment
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