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Judge Bybee and the Torture Memos:
The Washington Post has an interesting front-page story today on Judge Jay Bybee, who was the head of DOJ's Office of Legal Counsel from November 2001 to March 2003. I find it a bit hard to know what to make of the story, as it's pretty vague and the sources are mostly anonymous; the story indicates that Bybee has regrets about the torture memos he signed, but it's not clear exactly what about them he regrets. Still, it's a pretty interesting story.

Related Posts (on one page):

  1. Judge Bybee Breaks His Silence:
  2. Judge Bybee and the Torture Memos:
Oren:
Politico tells law-man to write a memo authorizing the sparing use of coercive interrogation as a last-resort effort to get information from the worst of the worst. Law-man sees that this could be reasonable under some circumstances, write the memo. Politico waterboards some guy on his first day and then 120 (or whatever) times in the next month. Law-man protests "That's not what I meant!" but it's too late.
4.25.2009 4:00pm
PC:
Politico waterboards some guy on his first day and then 120 (or whatever) times in the next month.

Wow, that's a rough editorial board.
4.25.2009 4:06pm
studentactivism.net (www):
I have to say, that article left me thinking that Bybee has no place on the federal bench. The only thing more damning than his opponents' criticism of his actions was his friends' defenses.

On the evidence of this article, Bybee is both spineless and incompetent. If this is the beginning of his PR offensive, he should ask for a mulligan.
4.25.2009 4:24pm
OrinKerr:
studentactivism.net,

why?
4.25.2009 4:28pm
Ian (www):
I found the Bybee apologist who tried to dismiss the torture memos as a consequence of formalism and textualism to be the most damning. Not because it is any more damning of Bybee than anything else which has already been said, but because, if you accept its premises, it is a pretty damning attack on textualism and formalism.
4.25.2009 4:35pm
OrinKerr:
Ian writes:
I found the Bybee apologist who tried to dismiss the torture memos as a consequence of formalism and textualism to be the most damning. Not because it is any more damning of Bybee than anything else which has already been said, but because, if you accept its premises, it is a pretty damning attack on textualism and formalism.
But aren't the premises pretty weak? Reading over the memos, it did not occur to me that its errors or weaknesses could be linked to textualism or formalism. Indeed, my sense is that the criticisms of the memos have been on textualist and formalist grounds, specifically that the memos did not apply the words as written but rather tried to define away terms despite their plain meaning. Do you disagree?
4.25.2009 4:41pm
innocent bystander (mail):
When I read "it got away from him" and the bit about textualism and formalism, I figured the story was dangled/planted or whatever and the WPost took the bait. The story's concept is pure spin from Bybee supporters, though of course late-leavened with a bit of oh-yeah-right comment from someone who knows him.
This backfires. It says he was in the tank.
4.25.2009 4:42pm
Stan Morris (mail):
"

If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," said Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), adding that "the decent and honorable thing for him to do would be to resign."

"If Patrick Leahy had had an ounce of decency or honor, he would have resigned from the Senate when he leaked Intelligence Committee information during the Iran Contra hearings.
4.25.2009 4:43pm
Oren:

If this is the beginning of his PR offensive, he should ask for a mulligan.

What possible purpose could PR serve him? He's got life tenure on the 9CA and will be too old for SCOTUS by 2012. There is no possible PR angle on this whatsoever.

It's at least possible that he wrote those OLC memos intending for the executive use them sparingly and as a last resort in a situation of imminent danger -- I'm not saying that's the case but it's not entirely outside the realm of possibility.
4.25.2009 4:43pm
Oren:

If Patrick Leahy had had an ounce of decency or honor, he would have resigned from the Senate when he leaked Intelligence Committee information during the Iran Contra hearings.

Can you give us your textualist interpretation of Speech and Debate.
4.25.2009 4:44pm
Ian (www):

But aren't the premises pretty weak? Reading over the memos, it did not occur to me that its errors or weaknesses could be linked to textualism or formalism. Indeed, my sense is that the criticisms of the memos have been on textualist and formalist grounds, specifically that the memos did not apply the words as written but rather tried to define away terms despite their plain meaning. Do you disagree?


They are tremendously weak (I've said so before here). To the point that it makes me wonder what the Bybee apologist's game is when he or she attributes Bybee's error to formalism. It is possible that the apologist is taking a very clever swipe at formalism and textualism under the guise of defending his or her friend.

That said, I stick by the point I made in the first piece that I linked to. If Bybee was applying a method of interpretation which seemed to suggest that torture is acceptable under U.S. law, the sensible thing to do would have been to scrap that method of interpretation.
4.25.2009 4:52pm
studentactivism.net (www):
For one thing, Orin, his friends' defenses are all over the place. One says he regrets the content of the memos, and blames time pressures, at least in part -- that the subject "got away from him," and took him to "a place [he] never intended to go." Another says that he stands behind the memos' legal reasoning. A third says he wasn't pleased with them at the time, but let them go out over his signature anyway. A fourth says he thinks "he would love to repudiate them all."

If Bybee really did have qualms at the time, the article raises the possibility that he kept mum for careerist reasons -- he had his eye on a judgeship from the beginning, one of his friends says, and only took OLC as a favor to Gonzales. If that's the case, one can see why he might have refused to stand up for what he believed, and it's not a reason that does him credit.
4.25.2009 4:54pm
studentactivism.net (www):
What possible purpose could PR serve him? He's got life tenure on the 9CA and will be too old for SCOTUS by 2012. There is no possible PR angle on this whatsoever.


People are calling on him to resign or be impeached. Even if neither of those outcomes is likely, he'd presumably be happier if people stopped pushing for them.
4.25.2009 4:58pm
Anderson (mail):
The only thing more damning than his opponents' criticism of his actions was his friends' defenses.

What S.A. (?) said. One quote has him defending the *legal* competence of the memos. That's always been the ground where the memos have been challenged. If he really believes that, then he *shouldn't* be on the federal bench. (Even in the 9th Circuit.)

I thought the article did a good job at hinting why Bybee signed the memo:

Bybee's friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, Guynn said, was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, "Would you be willing to take a position at the OLC first?" Guynn said.

Nice guy undone by ambition. A bit trite, but that's because it happens so often.
4.25.2009 5:10pm
badger (mail):
Pretty shameful journalism by the Post. Giving anonymous quotes these former clerks and friends doesn't make any sense at all. Many of them vaguely speculate about what Bybee might be thinking. Others just say that he regrets, not the content of the memos, but their "notoriety". No doubt many of these people, as former clerks, have a stake in maintaining Bybee's reputation and presence on the bench. His former colleagues who condemn him are willing to do so on the record. There's even a colleague at the end "Guynn" who actually gave Bybee a courtesy call before speaking on the record (positively). What excuse did the others have?
4.25.2009 5:18pm
Stan Morris (mail):
Oren: The senator confuses legality with *personal* honor. Having legal immunity does not take precedence over doing the honorable thing in the face of a discreditable act.
4.25.2009 5:22pm
Patrick216:
Bybee can be impeached but he can't be removed from office. It's very unlikely that the Dems will get to 66 Senate seats in 2010, though they may be able to get to 62.

Still, it is clear that George Bush made the wrong move by declining to preemptively pardon members of his administration on his last day in office. Obama and the Democrats will not rest until several former Bush people are in prison, or at least are bankrupted by lawsuits and legal fees.
4.25.2009 5:22pm
Mike& (mail):
He sold his soul for a federal judgeship. He twisted the law to make legal that which was illegal. He withheld material information about his role in drafting the torture memos in order to guarantee his appointment. Is there anyone who can seriously defend the man - as a jurist or a person?

Every villain has friends, I suppose. One friend of Bybee said:
"If they end up having hearings," he said, "they're going to have a very difficult time trying to square him with their judgments about the memo."


Perhaps it's Bybee's friends - rather than Congress - who are confused.
4.25.2009 5:22pm
Oren:

People are calling on him to resign or be impeached. Even if neither of those outcomes is likely, he'd presumably be happier if people stopped pushing for them.

Somehow I really doubt he cares. He's not going to resign. He can't be impeached. Only a political moron would waste capital attacking him over it.


Giving anonymous quotes these former clerks and friends doesn't make any sense at all. Many of them vaguely speculate about what Bybee might be thinking.

Surely they must have some notion of what he thinks about the issue.
4.25.2009 5:23pm
Mike& (mail):
Incidentally, listening to the Dems throw a hissy fit is quite annoying. Many people opposed Bybee's nomination. Jonathan Turley notes:
The expression of outrage from Democrats have civil libertarians grinding their teeth. Many civil libertarians, including myself, opposed his confirmation and raised his role in the torture program. Democrats refused to pursue the allegations, refused to block the nomination, and only asked him questions at this hearing. Only 19 democrats voted against his confirmation.


So it's not like Bybee's attackers have any more integrity than Bybee. There were people screaming about this issue. No one would listen.
4.25.2009 5:27pm
Anderson (mail):
Pretty shameful journalism by the Post.

I dunno. Bybee has been relatively mysterious -- there was a good article a while back from which the Post story quietly draws, but not much else -- so it's newsworthy, and it's pretty obvious that many people aren't going to speak on the record about a sitting circuit judge.

Bybee's deprecators on this thread seem to have no trouble exercising their critical faculties re: the anon quotes; the reporter doesn't have to assume his readers are idiots, eh?

... Mike&omits of course that not much was known about Bybee's role at the time, and that people like Mike&were excoriating the Dems who voted against Bybee.
4.25.2009 5:39pm
Leo Marvin (mail):
Oren:

Giving anonymous quotes these former clerks and friends doesn't make any sense at all. Many of them vaguely speculate about what Bybee might be thinking.


Surely they must have some notion of what he thinks about the issue.

Isn't ascribing certainty to speculation (by both sides) one of the things that makes this debate so hard?
4.25.2009 6:04pm
Leo Marvin (mail):
Orin,

I find it a bit hard to know what to make of the story, as it's pretty vague and the sources are mostly anonymous; the story indicates that Bybee has regrets about the torture memos he signed, but it's not clear exactly what about them he regrets. Still, it's a pretty interesting story.

In other words, you [support/oppose] torture. How do you sleep at night?
4.25.2009 6:06pm
CrimLawStudent:
Somehow I really doubt he cares.
Given that the WaPo article indicates that Bybee regrets his role in the memo, I think it is unlikely that he isn't also sensitive to public criticism. I certainly would be.

He can't be impeached.
He CAN be impeached. (Come on, there is a difference between can't and won't.) However, given that only 13 federal judges have ever been impeached, I highly doubt Bybee will be impeached.

Only a political moron would waste capital attacking him over it.
It may not be a terrible political move on behalf of the Democrats insofar as it would overshadow any stories about their complicity in the matter. (See 5:27pm) Of course, there is the potential of it all backfiring...

In other words, you [support/oppose] torture. How do you sleep at night?
I'll ask for Professor Kerr: Huh?
4.25.2009 6:24pm
MGoBlue (mail):
I was considering including him in my judge list for clerkship applications this fall.

Any (serious) thoughts on whether the cons of clerking for him (e.g. a future employer's disdain) would outweigh the pros of a 9CA clerkship?
4.25.2009 6:31pm
badger (mail):

Bybee's deprecators on this thread seem to have no trouble exercising their critical faculties re: the anon quotes; the reporter doesn't have to assume his readers are idiots, eh?


I think that those who seek to defend Bybee accomplished their objective when the article was titled "Amid Outcry on Memo, Signer's Private Regret". I think that pretty well outlines the strategy of Bybee's defenders. His memos were far too hackish to be defended on their merits (and a defense based on legal interpretation techniques won't get any traction with the general public or legislators).

I'd imagine that their fallback is to basically say, "Look, this isn't one of those weirdos who actively advocates torture like Yoo. Bybee just got caught up in the moment, and he has regrets, but he's not a complete sociopath or hack who's completely unsuitable for the bench." Of course, they when it comes to what those regrets actually are, it's just about "notoriety" and that 9-11 was so stressful, not what he actually did. But the headline implies broader regrets, which allows Bybee to get some sympathy with elites in DC, while not having to ever actually admit that regrets being a hack who produced hack work that got people killed so he could be appointed to the appellate bench.
4.25.2009 6:41pm
Cornellian (mail):
I'd take a 9th Circuit clerkship over a job in a big firm in today's economy, in a heartbeat. Even one with Bybee. Law firms aren't going to hold it against you when your clerkship ends and you're applying for jobs with them.
4.25.2009 6:44pm
PlugInMonster:
No torture to save even 1 million lives. Our nation's soul is much more important!!!!
4.25.2009 6:46pm
PlugInMonster:
I know I sleep better at night now, knowing torture is forever off the table and our nation's soul will be pristine.
4.25.2009 6:47pm
Oren:


He can't be impeached.
He CAN be impeached. (Come on, there is a difference between can't and won't.) However, given that only 13 federal judges have ever been impeached, I highly doubt Bybee will be impeached.

No, you can't impeach him for what he did before he was a judge ("[Judges] shall hold their offices during good behaviour"). The word "during" implies that they shall hold their office in spite of (alleged) bad behavior before getting there.
4.25.2009 6:50pm
studentactivism.net (www):
Oren:

No, you can't impeach him for what he did before he was a judge ("[Judges] shall hold their offices during good behaviour"). The word "during" implies that they shall hold their office in spite of (alleged) bad behavior before getting there.

That's an argument that he can't be removed from office, not that he can't be impeached.

Look, he probably won't be impeached. But it's possible that there will be hearings on whether he should be, and maybe even a congressional vote on the question. It strikes me as really odd to argue that he'd be likely to be indifferent to that possibility.
4.25.2009 6:59pm
Leo Marvin (mail):
PIM,

What's the human life equivalent of a million straw lives?
4.25.2009 7:01pm
Just an Observer:
The Post profile was well done and balanced. It is hardly surprising, given Bybee's current position, that he doesn't get drawn into critiquing or defending his OLC memo.

Personally, I feel empathy for Bybee, partly for reasons of social identity. He does seem like a nice guy who fell in with a bad crowd, and got undone by his own ambition.

Bybee is uniquely positioned to do something very positive, perhaps when the OPR report comes out. If he truly regrets the memos, he can renounce them and resign. By doing so he could reclaim his own honor, undo some of the institutional damage done to OLC, and help the nation to heal.
4.25.2009 7:01pm
barkeep:
I was considering including him in my judge list for clerkship applications this fall.

Any (serious) thoughts on whether the cons of clerking for him (e.g. a future employer's disdain) would outweigh the pros of a 9CA clerkship?


Are you kidding? If you can clerk for a federal appellate judge, take the job.

The only way it could ever hurt you, is if you are a Republican and hope for a career in politics or the federal judiciary; a Bybee clerkship would be a red flag to Democrats.

For private employment such as law firms, there would be no downside.
4.25.2009 7:03pm
PlugInMonster:
Leo Marvin - I know that I can sleep better at night knowing in this war that we are holding back weapons. It's so comforting to know that we can win this war with both hands tied behind our back!
4.25.2009 7:07pm
Leo Marvin (mail):
CrimLawStudent:

I'll ask for Professor Kerr: Huh?

It has nothing to do with what Orin wrote. Which was the point. If the satire failed, my bad.
4.25.2009 7:08pm
rosetta's stones:
I got it, Leo, the satire worked just fine. You just made the mistake of using it around linear-thinking lawyers.
4.25.2009 7:12pm
Leo Marvin (mail):
PIM,

Can you be more specific? Which restrictions are tying our hands? Which weapons would you like us to use?
4.25.2009 7:12pm
Leo Marvin (mail):
rosetta's stones,

Thanks. That's somewhat reassuring.
4.25.2009 7:15pm
MarkField (mail):

No, you can't impeach him for what he did before he was a judge ("[Judges] shall hold their offices during good behaviour"). The word "during" implies that they shall hold their office in spite of (alleged) bad behavior before getting there.


Putting aside the fact that I think Congress can impeach a judge anytime it wants to, do you believe it could impeach him for bribing Senators to consent to his appointment?
4.25.2009 7:16pm
PlugInMonster:
Leo - in WW2 the Red Army did not restrict what methods they would use to defeat the enemy. We should be like them.
4.25.2009 7:34pm
Chico's Bail Bonds (mail):
Still, it is clear that George Bush made the wrong move by declining to preemptively pardon members of his administration on his last day in office. Obama and the Democrats will not rest until several former Bush people are in prison, or at least are bankrupted by lawsuits and legal fees.

Putting aside the fact that a pardon cannot prevent impeachment, how crazy do you have to be to think preemptively pardoning a sitting federal judge would fly?
4.25.2009 7:38pm
Anon321:
Is there anyone who's clerking on the 9th Cir. who could give us some insight into how Bybee is perceived around those parts? How is he regarded by other judges? Has their opinion of him changed in the last two weeks? Are the Reinhardts of the world openly disdainful of him, or do they tend to take the position of Betty Fletcher (see here) and simply shrug and say that they don't know how a decent person and jurist like Bybee could have written or signed such documents?

Do those who follow the 9th Cir. closely think of Bybee as a good judge?
4.25.2009 7:47pm
Just an Observer:
We don't know as much as we should know yet about the merits of an impeachment. It is too early before we at least see what OPR found.

But impeachment is a political act as least as much as a legal act. In today's polarized environment, even if the OPR report turns out to be damning, the GOP will fight. I doubt if there is any way of getting two-thirds vote in the Senate to convict. So as a practical matter, Bybee could probably tough out most any charges.

But unlike Yoo, who has shown that he intends to ride the lightning as an ideological icon, I still hold out hope for Bybee. I don't know him, but I still hope he will do the right thing and resign.
4.25.2009 7:57pm
PlugInMonster:
So what does the left want - prosecutions?
4.25.2009 7:58pm
resh (mail):
One thing to remember about criminality is that it rarely happens in isolation. The burglar caught robbing the store today likely wasn't caught robbing the house last week.

Acts that shock the conscience, especially our own, are not much different. I'm guessing Bybee's memo-and his latent rue-is not the first instantiation of his dance with the devil.

It makes sense that he wants to put this issue to bed; it's not an easy thing to sleep with one eye open.
4.25.2009 7:59pm
TerrencePhilip:
Anon321,

I read the link you provided. Speaking as someone who opposes impeaching Bybee, thinks prosecuting these lawyers is an absurd idea, and also thinks the dominant view of the memos is grossly exaggerated and incorrect-- I find it absolutely bizarre that a 55-year-old man tells his professional understudies and colleagues that one of his life's regrets that his college girlfriend dumped him his first year of law school.
4.25.2009 8:07pm
BRM:
I chose not to apply to clerk for Judge Bybee because I did not want my reputation tarnished by association with him, whether or not such tarnish would be deserved. I still managed to get a clerkship with one of the many other judges to whom I applied.
4.25.2009 8:09pm
Leo Marvin (mail):
PlugInMonster:

So what does the left want - prosecutions?

If laws were intentionally broken and the Constitution intentionally subverted, I'd hope so.
4.25.2009 8:11pm
Leo Marvin (mail):
PIM,

You think the Soviet Union should be our role model?
4.25.2009 8:13pm
PlugInMonster:
Leo Marvin - your side always admires the Soviet Union, so why not take all of their attributes?
4.25.2009 8:17pm
PlugInMonster:
Leo - which laws were broken? What parts of the Constitution even apply to these filthy ragheads/
4.25.2009 8:18pm
Anderson (mail):
In other words, you [support/oppose] torture. How do you sleep at night?

I thought that was pretty funny even before I read further downthread, Leo.

N.b. that the House impeaches, the Senate convicts or acquits. Thus, Bybee *can* be impeached; the dedication of the GOP to torture makes conviction unlikely.

Mark Field points out that impeachment is whatever the House says it is, and that *some* pre-bench conduct presumably applies.

But if Bybee had bribed any senators, that presumably would have violated a few federal statutes? He could be tried and convicted. Obviously (?), a federal judge convicted of a felony can be removed from the bench?

Ditto conspiracy to violate the Torture Act.

Couldn't the House declare its intention to impeach unless Bybee's case is presented to a grand jury, and that jury's verdict followed up by DOJ?
4.25.2009 8:18pm
Anderson (mail):
What parts of the Constitution even apply to these filthy ragheads/

Wowzers.
4.25.2009 8:20pm
Patrick216:
Putting aside the fact that a pardon cannot prevent impeachment, how crazy do you have to be to think preemptively pardoning a sitting federal judge would fly?

I don't think the pardon power would serve as a legal bar to impeachment because of the separation of powers (impeachment is a purely legislative function; the pardon power is executive). But the reality is that Congress is not terribly likely to impeach Bybee because they lack the votes to remove him from office. Thus, all the impeachment would do is enflame Republicans and would blow up in their faces--just as the Republican impeachment of Bill Clinton blew up...

My comment was directed more generally at the judgment Bush et al. made that Obama would not make serious moves toward prosecuting or taking action against people involved in the more controversial aspects of the War on Terror. I always thought that the liberals' bloodthirst would overcome their judgment, and it appears that I'm being proven correct.
4.25.2009 8:25pm
CFG in IL (mail):
Would this have an effect on Bybee's ability to hear some cases? If so, which ones?
4.25.2009 8:31pm
MCM (mail):
Leo - which laws were broken? What parts of the Constitution even apply to these filthy ragheads/


Wow. I hope you DIAF.
4.25.2009 8:36pm
Patrick216:
Thus, Bybee *can* be impeached; the dedication of the GOP to torture makes conviction unlikely.
That's really an excellent point. I must admit my shock when the Bush admininstration authorized such torture techniques as: (i) breaking of bones; (ii) starvation; (iii) burning the suspect or pouring acid on him; (iv) regular beatings; and (v) rape. Oh. Right. They didn't.

I know it's politically cute to accuse the Bush administration of "torture," but there's a huge difference between our sissy form of waterboarding and what most people in the world consider "torture." Defining torture down disrespects the horror real torture victims suffer.
4.25.2009 8:39pm
MCM (mail):
I know it's politically cute to accuse the Bush administration of "torture," but there's a huge difference between our sissy form of waterboarding and what most people in the world consider "torture." Defining torture down disrespects the horror real torture victims suffer.


How is it defining it down? Waterboarding has been torture for over 100 years. American soldiers were court-martialed for performing and/or supervising waterboarding in the Spanish-American War and in Vietnam. The Spanish Inquisition used waterboarding. SERE used waterboarding because it was a technique copied from Vietnamese and Chinese communist torture techniques. Waterboarding is and always has been torture.

Just because there might be kinds of torture worse than waterboarding, doesn't mean that waterboarding isn't torture.
4.25.2009 8:43pm
Michael Ejercito (mail) (www):

That's really an excellent point. I must admit my shock when the Bush admininstration authorized such torture techniques as: (i) breaking of bones; (ii) starvation; (iii) burning the suspect or pouring acid on him; (iv) regular beatings; and (v) rape. Oh. Right. They didn't.


Has rape itself ever been prosecuted by any state as torture?

The states have consistently classified rape as a separate class of crime from torture for centuries.

I know it's politically cute to accuse the Bush administration of "torture," but there's a huge difference between our sissy form of waterboarding and what most people in the world consider "torture."

A reasonable case can be made that waterboarding constitutes assault and battery and mistreatment of prisoners.

Two issues are whether or not Al Qaeda terrorists are proteced persons under the Geneva Conventions. ( Others have pointed out that they are nor protected persons. ) The other issue is if U.S. law makes a distinction between protected persons and unprotected persons.

One thing that should be noted is that our laws certainly do not regulate the conduct of our allies- we could summarily turn over captured terrorists to our allies and no harm, no foul.
4.25.2009 8:46pm
Just an Observer:
Anderson, MarkField:

I'm just spitballing, but I am not betting on any charges of a criminal nature coming out of the OPR report, although it could make some ethical charges, and there reportedly is some negative content. (If I am wrong about the first point, that would be a rather earth-shattering development.)

OPR does have the authority to refer a matter for prosecution. One tea leaf to read is that Bybee, like Yoo and Bradbury, has surely seen the substance of the OPR report. (Supposedly what we all are waiting for is the slow-walking of at least one of their responses.) If the OPR was pointing toward criminal investigation, Bybee would probably be represented by someone other that Maureen Mahoney, known as a genteel appellate lawyer.
4.25.2009 8:47pm
Dave N (mail):
As a 9th Circuit practitioner, I have nothing but respect for Judge Bybee's decisions as a federal judge. He is a judicial conservative, but I do not consider him in the least bit ideological.

One of Jay Bybee's political patrons is Harry Reid. Reid is a very smart politician and knows that even though the looney left is calling for Bybee's head there is not the stomach for an impeachment fight. I am guessing he will use his powers to squelch any move for impeachment in the House, probably calling it a "non-starter" in the Senate.

I also doubt Judge Bybee will resign to make the New York Times or Patrick Leahy feel better.
4.25.2009 8:50pm
studentactivism.net (www):
Patrick:

I know it's politically cute to accuse the Bush administration of "torture," but there's a huge difference between our sissy form of waterboarding and what most people in the world consider "torture." Defining torture down disrespects the horror real torture victims suffer.

So you're saying that if American troops were subjected to the kind of treatment we're talking about here, Republican politicians and pundits wouldn't be calling it torture?

Please.
4.25.2009 8:51pm
bushbasher:
"Isn't ascribing certainty to speculation (by both sides) one of the things that makes this debate so hard?"

no. there is nothing hard about this debate. the nasty little shit knew exactly what he was writing, and for whom, and why.

maybe the torture-sanctioning creep can't be impeached, but he can be shamed, and shamed further for a spineless, meaningless defence, enabled by a tone-deaf and unprincipled piss-press.
4.25.2009 8:53pm
PlugInMonster:
bushbasher - FOAD.
4.25.2009 8:59pm
Michael Ejercito (mail) (www):


So you're saying that if American troops were subjected to the kind of treatment we're talking about here, Republican politicians and pundits wouldn't be calling it torture?

Troops are protected persons, even Taliban troops.

Al Qaeda terrorists are not protected persons at all.
4.25.2009 9:10pm
MarkField (mail):

I'm just spitballing, but I am not betting on any charges of a criminal nature coming out of the OPR report, although it could make some ethical charges, and there reportedly is some negative content. (If I am wrong about the first point, that would be a rather earth-shattering development.)


I think this is probably accurate, though any finding of unethical conduct or malpractice would seem (to me, at least) to have significant implications for a sitting judge. The real issue, though, is how much access OPR had to the information Bybee had at the time (August 2002). I have no idea how these internal investigations work, nor what security clearances the investigators would have or what they could reveal in the report. Given the way new information keeps coming out, it's possible there could be revisions to any report.
4.25.2009 9:11pm
MarkField (mail):

Al Qaeda terrorists are not protected persons at all.


All persons are protected under the torture statute. Same with Common Article 3.
4.25.2009 9:13pm
Jason F:
It seems to me that Judge Bybee is signaling that he intends to cooperate with whatever investigation or prosecution winds up occuring.
4.25.2009 9:19pm
byomtov (mail):
Would this have an effect on Bybee's ability to hear some cases? If so, which ones?

For starters, any criminal case where the defendant claimed that he was under pressure, and "things just got away from him," so he shouldn't really be held accountable.

Who would buy that excuse from anyone but Bybee?
4.25.2009 9:26pm
Just an Observer:
MarkField: The real issue, though, is how much access OPR had to the information Bybee had at the time (August 2002).

Yes. AFAIK we haven't seen anything new about that since Michael Isikoff's tantalizing story in Newsweek more than two months ago.
4.25.2009 9:33pm
byomtov (mail):
Madoff:

“When I began the Ponzi scheme, I believed it would end shortly and I would be able to extricate myself and my clients.”

Things just got away from him, I guess.
4.25.2009 9:39pm
AntonK (mail):
The Washington Post also has this outstanding Op-Ed from former CIA Director Porter Goss: "It's blatant political posturing — and it has hurt our national security"

They did not vote to stop authorizing CIA funding. And for those who now reveal filed "memorandums for the record" suggesting concern, real concern should have been expressed immediately... and not quietly filed away in case the day came when the political winds shifted. And shifted they have.

... The CIA has been pulled into the center ring before. The result this time will be the same: a hollowed-out service of diminished capabilities. After Sept. 11, the general outcry was, "Why don't we have better overseas capabilities?" I fear that in the years to come this refrain will be heard again: once a threat -- or God forbid, another successful attack -- captures our attention and sends the pendulum swinging back. There is only one person who can shut down this dangerous show: President Obama.
4.25.2009 9:42pm
Losantiville:
Still, it is clear that George Bush made the wrong move by declining to preemptively pardon members of his administration on his last day in office.
We won't know until someone is convicted of something and pulls a pardon out of his pocket. Not that convictions are likely here. Where's the mens rea?
4.25.2009 10:13pm
RPT (mail):
And the security at the Court of Appeals is a lot better than the big firm.... Do a two year clerkship.
4.25.2009 10:22pm
ArthurKirkland:
If the information in that article is accurate (the sources know what they are talking about and are speaking honestly), Judge Bybee appears to recognize the wrong and his culpability.

Whether he will admit it publicly, or explain how it occurred and attempt to prevent recurrence, should be worth watching.

Although Judge Bybee appears more worty of sympathy than are those without remorse, a conscience in some ways places him in a worse position. I do not envy him, particularly if he believes he will face a judgment day. Against accusations of facilitating torture (perhaps in the context of a political effort to vindicate a bad decision to invade another country), "it kind of got away with me" might be a lame defense in an accounting before a just God.
4.25.2009 10:28pm
studentactivism.net (www):
AntonK, I don't see how demonstrating -- if it can be demonstrated -- that a handful of top Democrats were complicit in this travesty exonerates the Republicans who propagated it.

Most of us aren't playing "gotcha" with this, and we're not choosing teams. Porter Goss may think that demonstrating Pelosi was on the inside makes the whole thing go away, but I don't see any reason why that should be so.
4.25.2009 10:45pm
Patrick216:
How is it defining it down? Waterboarding has been torture for over 100 years. *** Waterboarding is and always has been torture.

The technique described in the memos is little more than a fraternity hazing prank. The type of waterboarding that went on in WWII, Vietnam, and the Spanish-American war was far, far harsher. And rest assured that any Americans captured abroad by these guys will be subjected to far worse--hence the need for SERE school.
4.25.2009 10:58pm
MarkField (mail):

The technique described in the memos is little more than a fraternity hazing prank.


Then why would the CIA ask for a legal opinion before (sic) using it? And why would it "encourage" anyone to talk?
4.25.2009 11:04pm
taney71:
No way Senator Reid will move to impeach (well remove) Bybee since the judge comes from Nevada. Reid is up for reelection and Bybee is well liked in Nevada. If Bybee is impeached and removed Reid is finished.
4.25.2009 11:17pm
Ariel:
studentactivism,

Porter Goss may think that demonstrating Pelosi was on the inside makes the whole thing go away, but I don't see any reason why that should be so.

Because no one is calling for Pelosi to be prosecuted or impeached? If Pelosi is at least as guilty as Bybee and the gang - I've read second hand statements that she wanted us to go further than we did with the detainees, which I'd argue makes her at least as complicit as an attorney giving an opinion about whether something is ok - it's hard to understand why she's not on the block too.
4.25.2009 11:17pm
Oren:


Look, he probably won't be impeached. But it's possible that there will be hearings on whether he should be, and maybe even a congressional vote on the question. It strikes me as really odd to argue that he'd be likely to be indifferent to that possibility.


I think he would end up looking better for being dragged through an utterly pointless abuse (and transparently contrary to the spirit of the Constitution, even if it's beyond of Congressional power.

As an aside (just popped into my head), I am sort of waiting for someone from the Bush administration to be subpoenaed by either House of Congress just to find out whether executive privilege is vested in the person of the Presidency or the Office. . .
4.25.2009 11:37pm
jukeboxgrad (mail):
ejercito:

Troops are protected persons, even Taliban troops.


If in some future war American soldiers are captured and waterboarded (say, 183 times), will the GOP refrain from using the word "torture" to describe the treatment of those soldiers? Will it limit itself to accusing the enemy of using "enhanced interrogation techniques?"

One of the bizarre consequences of the Bush torture policy is that when Fred Thompson stood up at the convention to talk about McCain's experience with torture, Thompson carefully avoided using the word torture.

===================
patrick:

The technique described in the memos is little more than a fraternity hazing prank. The type of waterboarding that went on in WWII, Vietnam, and the Spanish-American war was far, far harsher.


The Japanese did it a variety of different ways. But sometimes they did it just like we did it (pdf, p. 20, third bullet):

...they laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air.... They then began pouring water over my face and at times it was almost impossible for me to breath without sucking in water


We called this torture, and we prosecuted the Japanese for doing this. Feel free to explain where you see a meaningful difference between what they did and what we did.

And as far as I know, they never did that to someone 183 times.

And rest assured that any Americans captured abroad by these guys will be subjected to far worse--hence the need for SERE school.


If Americans captured abroad are ever subjected to the same waterboarding technique the CIA used, then SERE will not be a very adequate preparation (pdf, p. 41):

the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant


And just to be clear about "different:" the SERE waterboard technique is much milder than the CIA technique. This is documented in the memos.

Also, the Navy is the only service that used waterboarding in SERE training. And they stopped using the waterboard in SERE training in 2007.
4.25.2009 11:43pm
Anderson (mail):
I'm just spitballing, but I am not betting on any charges of a criminal nature coming out of the OPR report

Concur.

(I had to look up DIAF, but FOAD, I think I could figure out.)

All persons are protected under the torture statute. Same with Common Article 3.

What? No filthy-raghead exception? Some of y'all need to write your congresscritters to protest that oversight.
4.25.2009 11:48pm
Eli Rabett (www):
The next likely step is an attempt to get Bybee and You, etc. disbarred. Pass the popcorn
4.25.2009 11:48pm
Anderson (mail):
If Bybee is impeached and removed Reid is finished.

I take your point, but (1) House reps are *always* "up for reelection," and (2) Reid is not to be ruled out just on an issue like Bybee.

For that matter, an impeachment in the House could give Reid some air time opposing Pelosi and sounding all moderate &stuff. Great campaign fodder.
4.25.2009 11:50pm
Just an Observer:
Ariel: Because no one is calling for Pelosi to be prosecuted or impeached? If Pelosi is at least as guilty as Bybee and the gang - I've read second hand statements that she wanted us to go further than we did with the detainees, which I'd argue makes her at least as complicit as an attorney giving an opinion about whether something is ok - it's hard to understand why she's not on the block too.

It depends on what the venue of investigation is.

In a wide-ranging "truth commission," for example, whatever political complicity of Pelosi or other members of Congress was, that would be very much on the table. I'm for such an inquiry, with no holds barred for Democrats or Republicans. Put them under oath, I say. (I assume that you, AntonK and Goss are for that, too.)

In the immediate venue of the Justice Department's OPR investigation, only the OLC lawyers are on the block. The department is the extent of OPR's jurisdiction.

In any future criminal investigation, anyone who broke the law would be at risk. It is theoretically possible to construct a case against anyone in the executive-branch chain of command, if violation of torture or war-crimes statutes is being investigated. But that does not include members of Congress, who are certainly not in the chain of command. Even a general conspiracy case would be hard to prosecute against members of Congress, because they have particular immunity under the Speech and Debate clause. They also had no authority to act under the ground rules of the briefings. They were not acting on legislation, which is their only authority, but receiving information under restrictive ground rules of secrecy.

My bet is that the congressional players are at risk politically, but not legally.

None of that really has to do with this thread about Bybee, except for one thing: All parties describing the congressonal briefings seem to agree that the OLC opinions were cited in the briefings to vouch for the legality of the interrogations.
4.26.2009 12:04am
Dave N (mail):
Eli Rabbet,

Except there have to be, you know, grounds for disbarment--and I doubt neither the California or Nevada Supreme Courts are as deranged as the leftist blogosphere or the NYT.

I would note that an impeached and removed federal judge who actually went to federal prison was allowed to practice law in Nevada after he got out of prison.
4.26.2009 12:12am
Anderson (mail):
Surely Judge Bybee would rather step down than endure ... puns from Howard Bashman?

Ninth Circuit Judge Jay S. Bybee decides appeal with a tortuous procedural history ...

Resign, judge, or we shall taunt you a second time!
4.26.2009 12:15am
Ariel:
Just an Observer,

I don't think there's a legal case against Pelosi. I don't think there's a legal case against a lawyer trying to give his best opinion about what can and can't be done, either. Imagine the chilling effect that it would have on executive branch lawyers if they could be prosecuted for trying to define what is or is not legal, if a subsequent administration disagrees.

What I was talking about was not legal culpability, but actual culpability. Sure, Pelosi can get off. As we all know, thanks to the NSA wiretap story, if folks don't like certain programs, they can be leaked to the press. If Pelosi wanted to stop the program, she could have done so. But by all reports, she wanted it to go further.

So now compare the two:
- Lawyer asked to say what can or can't be done, and lays out what he thinks
- Congressperson sees what has been done, and asks that more be done. Relies on lawyer's analysis to say that what has been done is ok.

Note - who is pushing the envelope further? Who is actually more morally culpable, even if they have a complete legal defense?
4.26.2009 12:30am
krs:
I'm surprised at all of the anonymous sources in the article. I wonder why those people thought it was appropriate to talk to the press that way but keep their identities secret.
4.26.2009 12:41am
jccamp (mail):
I think that Oren, in the very first post in this thread, may have it best.

I think it impossible to remove the memo, subject matter, decision, all of it from the post 9/11 environment. Put your self in the OLC's chair, and be told that the CIA has in custody high value terrorists - not soldiers - who are responsible for the deaths of thousands of American men, women and children. Further, these terrorists almost certainly have knowledge of future attacks, individual identities, tactics and the like which, if discovered, could possibly prevent another attack and concomitant loss of life on a level with 9/11. But the terrorists refuse to tell us anything. The CIA wants permission to rough them up, pour water in their noses, do the same thing done to U S service personnel in Escape and Evasion School. In that time and place, with that burden, i suspect most people would say to the CIA "Do what you have to do. We'll try to justify it." and then make the best legal rationale for the tactics, however weak those arguments ultimately sound years later.

The same people who write the much-maligned memoranda may have been willing to risk life and limb in combat in different circumstances of age and occupation. Why would they not risk livelihood and reputation if they felt that the ends justified the means. Maybe we should look back at this episode much like what happened to the Nisei during WW II. Emotional response to awful things happening. Very bad. Lets not do it again. And we won't. But let's not pretend that the continuing war against future terror attacks on the U S is going to be done in white shirts and neckties. Somebody is going to have to get dirty, sooner or later.

As one example, I would suggest the continuing missile strikes by the U S against targets in the Afghan-Pakistan border regions. Just about every missile strike kills women and children. Someone explain why this is acceptable but pouring water in some completely dangerous and murderous nutcase is not. This war does not lend itself to black and white solutions. We may have strayed too far with the forcible interrogations. Great. Let's apologize to ourselves and move on.
4.26.2009 12:44am
Ben P:

I don't think there's a legal case against Pelosi. I don't think there's a legal case against a lawyer trying to give his best opinion about what can and can't be done, either. Imagine the chilling effect that it would have on executive branch lawyers if they could be prosecuted for trying to define what is or is not legal, if a subsequent administration disagrees.


I'm not sure that's a fair characterization. Even those supportive of prosecutions (which I'm not) frame this in terms of bad faith. So the accusations go that those on the political side told them that "we want this" and the OLC people wrote a memo justifying the specified behavior. In some peoples minds that's the only rationale for the legal analysis being as thin as it is.

As far as Pelosi, by all means let her face the political repercussions of her complicity, but I find it more than a little suspicious that all of the accusations coming out of this closed intelligence commitee meeting that she "thought we ought to go farther" are coming from those with conduct of their own to justify. When the source for the reaction in the room being "encouragement" is porter goss, the trial lawyer in me says BS.
4.26.2009 12:44am
Randy R. (mail):
"Personally, I feel empathy for Bybee, partly for reasons of social identity. He does seem like a nice guy who fell in with a bad crowd, and got undone by his own ambition"

As my old English teacher used to say, if you play with pigs, you're gonna get dirty.
4.26.2009 12:46am
Anderson (mail):
Even those supportive of prosecutions (which I'm not) frame this in terms of bad faith. So the accusations go that those on the political side told them that "we want this" and the OLC people wrote a memo justifying the specified behavior.

Bingo. Essentially, John Yoo is either incompetent or culpable, and he doesn't seem to be incompetent. The memos did a miserable job of advising the client on law re: torture, presidential war powers, and various other things that someone would want to know before risking a prison sentence. No layman who read those memos would necessarily realize how dangerous it was to follow their advice.

That's not a great case to take to a grand jury, but it could work.

Of course, the odds of an indictment/conviction would increase greatly if bad faith were provable directly not circumstantially -- imprudent e-mails or whatnot.

I don't think there's any "chilling effect" from "don't write astounding bad memos." At most, OLC might be reminded to present both sides of a legal issue ... which is what they're supposed to be doing in the first place.
4.26.2009 1:15am
Just an Observer:
Ariel: But by all reports, she wanted it to go further.

Ben P: When the source for the reaction in the room being "encouragement" is porter goss, the trial lawyer in me says BS.

I'm with Ben on his skepticism. Actually, I don't think Goss even says that in the op-ed. FWIW, I have heard versions of such a claim from Hannity and Limbaugh, who have no credibility with me when they paraphrase anyone.

I do suspect members from both parties are spinning at least some about who knew and did what when. When I hear Pete Hoekstra assert that the briefings were really meetings to "formulate policy," I'd like to know where the Constitution authorizes four legislators meeting in secret with executive branch officials to abrogate U.S. criminal laws. AFAIK, these were briefings from the executive to selected members of Congress, who were prohibited from revealing what they heard, even to staff. And the only legal input was from the OLC opinions.

But members are still on the hook politically and morally if they can't show that they ever objected to torture.

I say release all the records and put them all under oath.

(Sorry for being complicit in taking this thread so far off-topic. This really is pretty unerelated to Judge Bybee.)
4.26.2009 2:01am
Michael Ejercito (mail) (www):


If in some future war American soldiers are captured and waterboarded (say, 183 times), will the GOP refrain from using the word "torture" to describe the treatment of those soldiers? Will it limit itself to accusing the enemy of using "enhanced interrogation techniques?"

Why speculate about then future? Those sand Nazis had already sawn Nick Berg's head off.
4.26.2009 3:11am
Public_Defender (mail):
I'd be interested in the thoughts of the conspirators about whether Bybee should keep his job. My impression (which could be wrong) is that he is basically a decent guy who got in way over his head and made some pretty horrible mistakes for which he needs to pay a steep price. If my impression is right, we could see him resign long before anyone cold impeach him.

One factor that militates against resignation is that he probably needs the money o pay for expensive lawyers and just to support his family. And his mistake may make it difficult for him to find a job.

As someone who sometimes litigates cases in federal appeals courts, I can say that this kind of controversy would certainly affect the trust lawyers and litigants had in decisions issued by him, especially in those few case where he's in a 2-1 majority. But even if we didn't respect him or his decisions, he's still got the power, and we'd probably just have to keep our mouths shut.

Please note all the "may's" and "probably's" in this post. As I said at the start of this comment, I'd be interested in seeing the opinions of people who know Bybee and who are more familiar with the issues. But my guess is that he built up enough reservoir of goodwill among those who knew him that knowledgeable potential critics are keeping quiet.
4.26.2009 5:45am
Tom Perkins (mail):
@MarkField

Because it was unusual, and they wanted to CTA.

Claiming it means anything else is a stretch, just like Studentactivism implicitly saying American troops generically are just like Khalid Sheik Mohammed.

Yours, TDP, ml, msl, &pfpp
4.26.2009 8:29am
jukeboxgrad (mail):
JaO:

All parties describing the congressonal briefings seem to agree that the OLC opinions were cited in the briefings to vouch for the legality of the interrogations.


Yes. Those briefings took place in fall 2002. According to Pelosi, she was told that OLC had said that CIA had the legal right to waterboard. She wasn't told that any had actually been done, or even that any was planned. Keep in mind that Zubaydah was waterboarded 83 times in 8/02. Also:

Pelosi said that the officials promised to inform Congress if they ever did waterboard a detainee, but never did so.


==================
ariel:

Congressperson sees what has been done


The story you're telling is not the story she's telling. I know you think she's lying, but I'd love to see some proof.

==================
jccamp:

these terrorists almost certainly have knowledge of future attacks, individual identities, tactics and the like which, if discovered, could possibly prevent another attack and concomitant loss of life on a level with 9/11. But the terrorists refuse to tell us anything.


Did you get that scenario from a TV show? Because it doesn't correspond to reality. "The terrorists refuse to tell us anything?" You've got it backwards. According to one of the FBI agents interrogating Zubaydah:

Thomas described for the OIG the techniques that he saw the CIA interrogators use on Zubaydah after they took control of the interrogation. Thomas said he raised objections to these techniques to the CIA and told the CIA it was "borderline torture." He stated that Zubaydah was responding to the FBI's rapport-based approach before the CIA assumed control over the interrogation, but became uncooperative after being subjected to the CIA's techniques.


pdf; See p. 111 in Adobe Reader. Emphasis added. Also see here.

The CIA wants permission to rough them up, pour water in their noses, do the same thing done to U S service personnel in Escape and Evasion School.


"The same thing?" I guess that came from the same TV show. I already cited this above:

the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant


==================
ejercito:

Why speculate about then future? Those sand Nazis had already sawn Nick Berg's head off.


Do you really not understand the simple and specific question I asked you, or are you pretending to not understand it because you would prefer to evade it?

And it's essentially the same question that was asked here.

==================
perkins:

just like Studentactivism implicitly saying American troops generically are just like Khalid Sheik Mohammed


That's not what his question implies. Not even slightly. And I wonder if you are willing to answer the question that he and I both asked, and which ejercito ducked. Here it is again, for your convenience.

If in some future war American soldiers are captured and waterboarded (say, 183 times), will the GOP refrain from using the word "torture" to describe the treatment of those soldiers? Will it limit itself to accusing the enemy of using "enhanced interrogation techniques?"

Your answer?
4.26.2009 8:39am
Tom Perkins (mail):
JBG


"That's not what his question implies. Not even slightly."


That's exactly what his question implies, it is part and parcel of it.

It does so by implying it would somehow be both inevitable and hypocritical for Republicans to protest the treatment of American troops in manner KSM was "tortured". American troops would not have done what KSM has done, so not protesting their being treated in a manner not complying with the Geneva Conventions would be a dereliction of duty.

I have no doubt they would generally not be so derelict.

So I have both answered you question and shown you were wrong here.

Yours, TDP, ml, msl, &pfp
4.26.2009 8:54am
Tom Perkins (mail):
Additionally, one of the articles I have read stated the waterboarding of people like KSM was employed to avert an attack on LA, not the waterboarding of KSM prevented such an attack. No timeline issues then, also your insistence there is any timeline issue RE waterboarding KSM and the prevention of an attack on LA presumes there was only the one plot against LA, something not in evidence.

Yours, TDP, ml, msl, &pfpp
4.26.2009 8:58am
geokstr (mail):

jukeboxgrad:
According to Pelosi...

Pelosi said...

And, of course, it's common knowledge that everyone who disagrees with JBO is a flat-out lying traitor, but that everyone who agrees with him is to be believed without question, especially someone with such a sterling record of integrity as Pelosi.
4.26.2009 9:14am
studentactivism.net (www):
It does so by implying it would somehow be both inevitable and hypocritical for Republicans to protest the treatment of American troops in manner KSM was "tortured". American troops would not have done what KSM has done, so not protesting their being treated in a manner not complying with the Geneva Conventions would be a dereliction of duty.

Well, no. You're jumping ahead.

The question on the table is whether some actions are torture or not. The question of whether torture is legal, or morally acceptable, is a separate question.

If someone does X and Y and Z to an American POW, and I call it torture, one what grounds can I turn around and deny that X and Y and Z are torture when they are inflicted on someone in American custody? What's the basis for that distinction?
4.26.2009 9:25am
SteveW:
From the Washington Post article:


Being unable to answer for what followed is "very frustrating," said Guynn, who spoke to Bybee before agreeing to be interviewed.

"If they end up having hearings," he said, "they're going to have a very difficult time trying to square him with their judgments about the memo."

It sounds like Judge Bybee would like to have public hearings.
4.26.2009 9:31am
jukeboxgrad (mail):
perkins:

It does so by implying it would somehow be both inevitable and hypocritical for Republicans to protest the treatment of American troops in manner KSM was "tortured". American troops would not have done what KSM has done, so not protesting their being treated in a manner not complying with the Geneva Conventions would be a dereliction of duty.


But the question was not about "protesting" their treatment. Everyone agrees it would be correct to "protest" their treatment. Everyone agrees that waterboarding US soldiers would be a violation of GC. Everyone agrees that US soldiers would never do what KSM did. That is all beside the point, and those are all issues you're raising in a feeble attempt at misdirection.

The question is about using the following word to describe their treatment: "torture." If some future enemy waterboarded a US soldier 183 times, would it be correct to use that word? It's an exceedingly simple question. Why haven't you answered it?

one of the articles I have read stated the waterboarding of people like KSM was employed to avert an attack on LA, not the waterboarding of KSM prevented such an attack


The memos, Thiessen and others have indeed specifically claimed that "the waterboarding of KSM [not "people like KSM"] prevented such an attack." Trouble is, that claim requires a belief in time travel.

your insistence there is any timeline issue RE waterboarding KSM and the prevention of an attack on LA presumes there was only the one plot against LA


If there was ever more than "the one plot against LA," please explain why
leading torture apologists Bush, CIA and Thiessen have described "the one plot against LA," but have never claimed that there was ever more than "the one plot against LA." If there was ever a second plot against LA, isn't it odd that they have never mentioned it? Isn't it odd that Bush told us about "a plot to hijack a passenger plane and fly it into Library Tower in Los Angeles," instead of telling us about 'the first plot' and 'the second plot?' Is the second plot still classified information? And if so, why have you mentioned it?

By the way, space aliens have told me that there were zillions and zillions of plots against LA. The bad guys were hatching new plots every nanosecond! Thank God the brave torturers foiled them all!
4.26.2009 9:32am
Tom Perkins (mail):

What's the basis for that distinction?


The behavior of the people being"tortued". BTW, you forgot the scarequotes.


Well, no. You're jumping ahead.


So I correctly interpreted your implications, just before you wanted me too?

Yours, TDP, ml, msl, &pfpp
4.26.2009 9:34am
jukeboxgrad (mail):
It sounds like Judge Bybee would like to have public hearings.


I agree that the comment could be read that way. But I think it could also be read this way: 'I dare you call me to a hearing. Because on teevee I will look like a really normal, lovable guy, so you'll be sorry.'
4.26.2009 9:35am
Oren:

i suspect most people would say to the CIA "Do what you have to do. We'll try to justify it." and then make the best legal rationale for the tactics, however weak those arguments ultimately sound years later.

I suspect that most people haven't read the Church Committee reports and didn't realize that that, while one would like the CIA to have discretion to act, one must be quite careful because they routinely exceed their authority.

The head of the OLC, however, should know these things.
4.26.2009 9:43am
Oren:

your insistence there is any timeline issue RE waterboarding KSM and the prevention of an attack on LA presumes there was only the one plot against LA

Why would anyone care about plots against LA? They're all Hollywood faggot liberals, not Real Americans™ living in Real America™.
4.26.2009 9:45am
Ben P:

The behavior of the people being"tortued". BTW, you forgot the scarequotes.


What?

That's still non responsive to what they've been saying.

I'll even concede for the sake of the Argument, your implication that torturing KSM would be legal and that torturing an American Soldier would be illegal, presumably under some interpretation of the Geneva Conventions.

That still provides no basis for arguing that

Waterboarding Person A = Torture

Waterboarding Person B = Not Torture

Not only is that an obvious contradiction, it begs the question of, if you have different standards how much are they different? Is beating still not torture? what about electric shock? What's the basis for this?
4.26.2009 9:46am
geokstr (mail):

jccamp:
This war does not lend itself to black and white solutions. We may have strayed too far with the forcible interrogations. Great. Let's apologize to ourselves and move on.

Jccamp, don't bother with trying to get the other side to be reasonable, or honorable, or put this in any kind of perspective or context. These are the same people who grew up spitting on soldiers, writing theses on the evils of capitalism and imperialism, and shouting down speakers when they were in college. They're in charge now, they smell blood and want it spilled. They will not be satisfied until Bush, Cheney, and the rest of the opposition is ruined financially, has their reputations destroyed, and better yet, are imprisoned.

Assuming (ONLY for the sake of argument) that waterboarding is torture, it's not psychologically possible for them to even understand, let alone admit, that good men may have made mistakes while trying to do their best to protect our country. No, the BusHitlerlites can only be evil incarnate, because the religion of leftism, just like any other faith, must have its demons.

Alinsky's Rules for Radicals (beloved by both Obama and Clinton) is their catechism, and it shows up pretty much in everything the left does, this persecution of the past administration being a prime example. If this issue had not been available to them, they'd just find another one.
4.26.2009 9:51am
jukeboxgrad (mail):
perkins:

What's the basis for that distinction?


The behavior of the people being"tortued".


So the same act performed on Person A and Person B can be torture in the latter instance and not in the former, provided that one believes that Person A 'deserves' (whatever that means) to be tortured, and Person B does not?

That's a peculiar notion. No dictionary I can find supports that notion. Every dictionary I've seen defines 'torture' in the nature of the act, and gives no consideration to whether or not the subject 'deserves' it (and likewise for legal definitions). So you're inventing your own definition. But it's a free country, so I guess you can do that.

Next question. Since I've never heard anyone other than you express that definition, do you envision that we might be seen as hypocrites when we use the word torture to describe something done to us, given that we claimed it wasn't torture when we did it to someone else?

And keep in mind that we also called it torture when the Japanese did it to us. So I guess the Perkins rule is this: it's torture when other people do it, but not when we do it. Because we are righteous and others are evil. Did I get that right?

=================
oren:

I suspect that most people haven't read the Church Committee reports and didn't realize that that, while one would like the CIA to have discretion to act, one must be quite careful because they routinely exceed their authority.


Indeed. It should be noted that the memos reveal that the CIA exceeded the limits described in the memos. Even though the limits in the memos were already a description of torture.

=================
geo:

good men may have made mistakes while trying to do their best to protect our country


The judge and the jury should give that argument proper consideration.
4.26.2009 9:57am
Leo Marvin (mail):
geokstr:

Jccamp, don't bother with trying to get the other side to be reasonable, or honorable, or put this in any kind of perspective or context. These are the same people who grew up spitting on soldiers, writing theses on the evils of capitalism and imperialism, and shouting down speakers when they were in college. They're in charge now, they smell blood and want it spilled. They will not be satisfied until Bush, Cheney, and the rest of the opposition is ruined financially, has their reputations destroyed, and better yet, are imprisoned.

Have you been reading my Facebook page?
4.26.2009 10:03am
MarkField (mail):

Because it was unusual, and they wanted to CTA.


Well sure, because "fraternity hazing pranks" can lead to double secret probation.
4.26.2009 10:10am
rosetta's stones:

Oren:
"...while one would like the CIA to have discretion to act, one must be quite careful because they routinely exceed their authority.

The head of the OLC, however, should know these things."


I don't do lawyer, but the characterizations being made of Bybee's memo work remind me of situations when I'm called upon to write contracts, specifications or analytical reports, wherein I'm obligated to creep forward onto unfirm ground. The (paraphrases) "You have told me this..." and "My understanding is that..." are phrasing tools that tip off his awareness of what Oren is saying, and that he was mapping a course on that unfirm ground, rather than applying a strict hierarchical approach.

Obama and Holder seem to be accepting his mapwork as pure policy execution, and blocking investigation, and Pelosi is doing her best to block it from her end.

I think we'll see a nice, sanitized report from Senator Levin, and that'll be it.
4.26.2009 10:11am
Tom Perkins (mail):
@Ben P, JBG, et al


Waterboarding Person A = Torture

Waterboarding Person B = Not Torture


You are both assuming all waterboarding is equal, and that any inconsistency in the historical record at any point is a circle I need to square, which I don't. If you recall I mentioned as an example of a victor's show which we conducted, the result of which was the hanging of Henry Wirz. He amply showed he "lacked mens rea", he was hung anyway. His supposed crimes were far worse, yet how if at all should that affect this debate?


Every dictionary I've seen defines 'torture' in the nature of the act, and gives no consideration to whether or not the subject 'deserves' it (and likewise for legal definitions).


And yet there are homicides which are not murder, and the deficiency is not in the definition of either. To prevent an injustice, what you presume may be crimes must not be submitted to a jury--the process is a punishment.

Yours, TDP, ml, msl, &pfpp
4.26.2009 10:25am
Tom Perkins (mail):
"show which" /= "show trial which"

Yours, TDP, ml, msl, &pfpp
4.26.2009 10:27am
studentactivism.net (www):
Jccamp, don't bother with trying to get the other side to be reasonable, or honorable, or put this in any kind of perspective or context. These are the same people who grew up spitting on soldiers, writing theses on the evils of capitalism and imperialism, and shouting down speakers when they were in college.

Yee hah! Way to strike a blow for reason, honor, perspective, context, and constructive dialogue!
4.26.2009 10:40am
jukeboxgrad (mail):
perkins:

You are both assuming all waterboarding is equal


Feel free to explain how what we did is different from what the Japanese did, which I documented here.

But let's put that aside for a moment. Assume arguendo that the waterboarding done to a future American soldier (say, 183 times) is identical to the procedure we used. Would it be correct to accuse that future enemy of torture? Or should we just accuse that future enemy of using "enhanced interrogation techniques?"

His supposed crimes were far worse, yet how if at all should that affect this debate?


Here's the effect of Henry Wirz on this debate: to demonstrate that you're trying really hard to duck the question and change the subject.

yet there are homicides which are not murder, and the deficiency is not in the definition of either


But there are no homicides that are not homicides, and there are no murders that are not murders. So we're asking you to explain how there can be torture that is not torture.

To prevent an injustice, what you presume may be crimes must not be submitted to a jury--the process is a punishment.


If waterboarding was a crime when the Japanese did it, then why isn't it a crime when we did it?
4.26.2009 10:44am
studentactivism.net (www):
You are both assuming all waterboarding is equal

No, they're responding to the premise of my original hypothetical, which was that US soldiers were subjected to treatment comparable to that which these detainees were subjected to. I didn't use the word "waterboarding."

The question is a simple one. If America's enemies did to our troops what we did to these prisoners, would we consider it torture?

And to answer your other question, Tom: no, you didn't correctly interpret my implications.

I'm happy to have a discussion as to whether torture is ever justified, and if so under what circumstances. But that's a different question than the question of what constitutes torture. And it seems to me that there should be a single consistent definition of torture, not one that's dependent on whether the torturer and the tortured are good people in other ways.
4.26.2009 10:46am
PC:
Why speculate about then future?

Because North Korea is holding two American reporters right now? If North Korea were to only use the methods described in the OLC memos to interrogate the two Americans in their custody, would you consider it torture? Keep in mind the North Koreans could be acting in "good faith." The CIA always has agents working under cover, and from the North Korean's point of view, these two reporters could be CIA agents sent to spy on them (spies receive no special protections like soldiers do).

But I really doubt you care about the rule of law or the breaking thereof. Did you protest when we sent Maher Arar to Syria to be beaten with shredded cables? Did you protest when we kidnapped Khalid el-Masri and allegedly sodomized him in an Afghani prison? Did you speak out when we sent Binyam Mohamed to Morocco to have his genitals sliced up? If so, I'll withdraw my earlier comment.

If not, as I suspect, this is just another partisan game where you think people are rooting for their "team." For some of us it's not. There were laws broken and people need to answer for it. Some of us don't care what party affiliation is attached to that. In the words of Shepard Smith, "We are America, we don't fucking torture."
4.26.2009 12:04pm
PC:
He amply showed he "lacked mens rea", he was hung anyway.

Mens rea is not an exception to the torture statute for reasons obvious to people that are even non-lawyers.
4.26.2009 12:08pm
jukeboxgrad (mail):
geo:

These are the same people who grew up spitting on soldiers, writing theses on the evils of capitalism and imperialism, and shouting down speakers when they were in college. They're in charge now, they smell blood and want it spilled. They will not be satisfied until Bush, Cheney, and the rest of the opposition is ruined financially, has their reputations destroyed, and better yet, are imprisoned.


Why did you omit so much? We also want to institute sharia law, impose mandatory gay abortions, and put you in a FEMA camp.

These major omissions on your part can only mean one thing: you're part of the conspiracy to hide those plans. Which means you're a double agent. Good work, Comrade. You've done an excellent job of creating an authentic wingnut persona, for the purpose of alienating moderate Republicans who want nothing to do with a party whose core is so irrational.

I promise I won't tell anyone I've seen through your cover. And in the future, when I see you continuing to maintain your cover, I'll understand that you're just continuing your excellent work for The Cause. Carry on. You are a true patriot.

PS: that thing about "spitting on soldiers" seems to be a complete urban legend (link, link, link). But it works great in your persona, so I hope you don't drop it.

==============
pc:

In the words of Shepard Smith, "We are America, we don't fucking torture."


Video here.
4.26.2009 12:10pm
jukeboxgrad (mail):
Oops, I used the term double agent incorrectly. I just meant to say undercover agent. But I bet you all knew that.
4.26.2009 12:16pm
Dave N (mail):
Jukeboxgrad,

I didn't know that you could do a post in only 21 words.
4.26.2009 12:24pm
Oren:

Mens rea is not an exception to the torture statute for reasons obvious to people that are even non-lawyers.

Really? I don't see anything in the statute suggesting strict liability.

Plus, how does this apply to Bybee, unless you believe that he violated the Torture Act?
4.26.2009 12:30pm
PC:
As to Judge Bybee and the memos he signed off on, two things come to mind: incompetence or dishonesty. The idea that he isn't responsible just because he signed off on the memos is a non-starter. I sign off on work all the time that I didn't write, but I do review it to make sure it meets the standards set forth. That's what I'm paid to do. If something breaks I'm the first called to task because I approved the work.

There are plenty of discussions about the shoddiness of the Bybee memos on the intertubes, so I won't rehash those here...unless some wingnut really wants to. So the conclusion I'm left with is that Judge Bybee is either incompetent or dishonest. Neither is a quality I like to see on the federal bench.
4.26.2009 12:37pm
PC:
Really? I don't see anything in the statute suggesting strict liability.

I'm not seeing anything in the § 2340 that provides an exception for good intentions. If my reading is wrong could you point it out?

Plus, how does this apply to Bybee, unless you believe that he violated the Torture Act?

A case could be made for conspiracy (§ 2340A), but there's not enough evidence in public to say that. Note, could, not should.
4.26.2009 12:47pm
mattski:

We also want to institute sharia law, impose mandatory gay abortions, and put you in a FEMA camp.

Personally, I think gay abortions are just good clean fun.
4.26.2009 12:51pm
jukeboxgrad (mail):
dave n:

I didn't know that you could do a post in only 21 words.


Isn't it 22? But you're a lawyer, not an accountant. Anyway, it's not even that close to my record, which may or may not be here.

I'm sure you know the old saying.

=====================
matt:

I think gay abortions are just good clean fun.


I wouldn't know, but some of my best friends etc.
4.26.2009 12:55pm
MarkField (mail):

I'm not seeing anything in the § 2340 that provides an exception for good intentions. If my reading is wrong could you point it out?


I hate to interrupt a good quarrel, but I think you guys are talking past each other. Mens rea is not the same as motive; "good intentions", which seems like another way of saying "motive", therefore would not be a defense even if mens rea is one of the elements of the crime.
4.26.2009 1:51pm
Oren:


Really? I don't see anything in the statute suggesting strict liability.

I'm not seeing anything in the § 2340 that provides an exception for good intentions. If my reading is wrong could you point it out?

SCOTUS has generally ruled that a statute has to explicitly make itself strict liability. IOW, unless otherwise noted, it is assumed that mens rea is a component of the offense. For a good overview, see here.


Plus, how does this apply to Bybee, unless you believe that he violated the Torture Act?

A case could be made for conspiracy (§ 2340A), but there's not enough evidence in public to say that. Note, could, not should.

I'm not sure you can make the case that he knew enough about what the interrogators were doing to be in conspiracy with them. Perhaps though ...
4.26.2009 2:29pm
Anderson (mail):
These are the same people who grew up spitting on soldiers, writing theses on the evils of capitalism and imperialism, and shouting down speakers when they were in college.

I should be taking this lightly like the others, but my dad flew helicopters in Vietnam, from which (according to a TV documentary) 1 in 12 pilots did not return home.

And he sure as hell didn't do it so that crypto-fascists with no respect for American values could drag his flag through the figurative muck.

Geok's little rant shows that he doesn't even know how to relate to real people, only to Fox News caricatures. It's despicable. As in, "to be despised."
4.26.2009 2:45pm
jukeboxgrad (mail):
anderson:

my dad flew helicopters in Vietnam


A very close friend of mine flew on helicopters in Vietnam (maybe it was even the same helicopter, at the same time). He was a door gunner. Various pieces of him never made it home. His attitude about the situation is exactly congruent with your dad's. And you can guess how he feels about people like geo.
4.26.2009 4:44pm
ChrisTS (mail):
Anderson: And he sure as hell didn't do it so that crypto-fascists with no respect for American values could drag his flag through the figurative muck.

Well said. It is particularly galling to many of us that those same crypto-fascists, wrapping themselves in our flag, largely avoided the kind of service your dad and others performed for our country. And yet they claim to be more patriotic than those who believe this country stands for values that do not include calling abusive treatment 'torture' only when it is inflicted on our people and not when we inflict it on others.
4.26.2009 5:22pm
mattski:
writing theses on the evils of capitalism

Not to pile on... but conservative ideologues like Ronald "gov't is the problem" Reagan, Alan Greenspan, Phil Gramm, etc. wrote the book on the self-destruction of capitalism. The global financial crisis we are now suffering is the fruit of their laissez-faire religion.

The irony is that the price of advocating for regulatory controls is that you get accused of undermining capitalism by the people whose malignant ideas are producing exactly that result.
4.26.2009 5:39pm
Leo Marvin (mail):
jbg

that thing about "spitting on soldiers" seems to be a complete urban legend

I don't know. I barely have enough spit left to smack my lips at the thought of those gay abortions.

Your friend and Anderson's dad are poignant examples. If they seem lost on geokstr, it may be because thanks to Jonah Goldberg's deft Orwellian touch we're now the fascists.
4.26.2009 5:49pm
jccamp (mail):
jukeboxgrad -

Well, first, no need to be a smart ass. I was suggesting that one should put themselves in the position of, say, Bybee, in the time and place of fall, 2002. Referring to that selfsame pdf file from the FBI, why not look at page xiii? I can't seem to clip the paragraph, so I'll summarize. People within the FBI and DOJ at that time wanted to adopt the CIA's harsher interrogation methods, because they (the CIA) had been successful in obtaining information. They were ultimately overruled by the FBI director. But there were at least several points of view (within the FBI and DOJ) about which interrogation method was effective contemporaneous with these 2002 memoranda.

Referring again to the same FBI file, months after the Bybee memos, the FBI was still unsuccessful in obtaining anything from detainees other than Zubaydah, using their rapport-based interrogation. As for Zubaydah, the FBI never received anything of value from their rapport-based interrogation, because they were preempted by the CIA. The agent you quote had no results to back up his assertion that he would obtain intelligence. His was merely one opinion among the many, about one detainee among the many.

I am suggesting that Bybee and others thought at that time that the harsh interrogation methods were needed to obtain critical information. I do not know that such a scenario is not true, even with today's 20-20 hindsight, hence the recent flap over whether to release additional memos detailing what intelligence successes we enjoyed as a result.

It certainly is not your contention, I would think, that Bybee had been told the FBI was successfully obtaining information from hardened terrorists by becoming their buddies, but that the CIA wanted to disrupt that flow of valid intelligence by torturing unnecessarily the same terrorists with the intent to alienate them from their new FBI friends?

So, no, I didn't write that post based on a movie script. Nice to see you giving fair consideration to other view points, though.
4.26.2009 8:57pm
Anderson (mail):
I am suggesting that Bybee and others thought at that time that the harsh interrogation methods were needed to obtain critical information.

One can grant this and still find that Bybee et al. are guilty of criminal conspiracy, because there is no necessity exception to the Torture Act.

Indeed, it's characteristic of torture that it's rationalized as a necessary response to extreme circumstances.
4.26.2009 9:50pm
jccamp (mail):
Anderson -

I thought I made the point - evidently not - that persons such as Bybee may have taken a chance that their actions would in fact violate a statute(s) somewhere, but felt the risk was worth taking, and was similar to the risks many people undertook in defense of their country, knowingly made for what they saw as the greater good in the time and place of the decision. And, as for the Torture Act, is not that what all this is about, that is, what exactly meets the definitions from 18 USC 2340? The questioned memoranda claim to be a legal opinion that the actions as sanctioned fall without the statute's definitions. Wouldn't one need to prove bad faith in the construction of the memos to actually prosecute for this crime?

Now that the acts which are now described as torture - but previously had been determined to be legal - have again been prohibited, what is to be gained by a prosecution? Do the lawyers who constructed the memos in question really deserve criminal penalties?

Indeed, it's characteristic of torture that it's rationalized as a necessary response to extreme circumstances.


I do not necessarily think that's accurate at all. Most of the regimes that we associate with torture and human rights violations seem to engage in such practices wholesale. I don't recall North Korea, Cuba et al bothering to rationalize their human rights agenda to anyone ever. In fact, people who otherwise would be excludable from the U S are regularly allowed to remain here because they make the case that they would experience persecution and torture if they are returned to their own countries. When is the last time you could recall a non-democratic regime that engages in torture even admitting that they engage in such practices, let alone maintaining the practice is necessary.

But I agree with your first point. Believing their actions to be necessary does not exclude anyone from culpability if there is a violation of law. However, I question why, under the present circumstances, we're trying to prosecute what appear to be honorable men under difficult circumstances. Lets say mea culpa and move on.
4.26.2009 10:31pm
ArthurKirkland:
An honorable man would have admitted culpability by now and worked to avoid recurrence.

The circumstances appear to have been more than difficult in the context of the abilities and character of the persons entrusted to make decisions. An honorable man, however, if overwhelmed and frightened to the point of being tempted to violate the law and act indecently, would have sought the help of better men.

At the moment, people such as Addington, Yoo and Cheney strike me as ineligible for a pass for their failures. The evidence indicates that the organization of which they were important elements invaded the wrong country, then kidnapped, tortured and killed prisoners in a vain effort to vindicate the original misconduct. "Forgive and forget" seems inapt.

But look at the bright side; the worst their countrymen can do to them is the least of their worries if they must account for themselves on a Judgment Day.
4.26.2009 11:39pm
jukeboxgrad (mail):
mattski:

The irony is that the price of advocating for regulatory controls is that you get accused of undermining capitalism by the people whose malignant ideas are producing exactly that result.


Nicely put.

==================
lm:

thanks to Jonah Goldberg's deft Orwellian touch we're now the fascists


Both of these comments remind me that "Rush and his boys are doing what Gene Debs and his comrades never really could. In tandem with Wall Street, they are building socialism in America." When people like Rush and geo condemn socialism, they make it look good.

Speaking of irony, and speaking of "undermining capitalism."

==================
jccamp:

Referring to that selfsame pdf file from the FBI, why not look at page xiii? … People within the FBI and DOJ at that time wanted to adopt the CIA's harsher interrogation methods


Why not summarize the text accurately? You're implying that, generally speaking, "people" at FBI and DOJ wanted to do it the CIA way. Bullshit. What you're implying is the opposite of the truth. The passage actually says this:

FBI witnesses almost uniformly told us that they strongly favored non-coercive rapport-based interview techniques to the harsher techniques used on Al-Qahtani and others due to the FBI's extensive history of success with such techniques in the law enforcement context. However, we also learned about a proposal advanced by certain officials from the FBI and DOJ in late 2002 to change the circumstances of AlQahtani's interrogation. A draft letter prepared for the purpose of presenting this proposal to the National Security Council indicated that this proposal involved subjecting Al-Qahtani to interrogation techniques of the sort that had previously been used by the CIA on Zubaydah and another detainee. DOJ and FBI officials involved with this proposal stated to us that the rationale for this proposal was to bring more effective interrogation techniques to bear on Al-Qahtani than the ineffective interrogation techniques that the military had been using on him up to that time. The techniques that had been previously used by the CIA on Zubaydah included methods that did not remotely resemble the rapport-based techniques that are permitted under FBI policy. However, the DOJ and FBI officials involved in the proposal stated to the OIG that they did not learn what specific techniques had been used by the CIA until much later, and that they based their recommendation on the fact that the CIA had been effective at obtaining useful information from Zubaydah. Senior officials in DOJ and the FBI such as FBI Director Mueller, former Assistant Attorney General Chertoff, current Assistant Attorney General Fisher, and others, told us the draft letter never reached them, that they were not aware of a proposal to subject AlQahtani to methods of the sort that had been used on Zubaydah, and did not take part in any specific discussion of such a proposal. … We concluded that the proposal to subject Al-Qahtani to the type of techniques that the CIA had used on Zubaydah was inconsistent with Director Mueller's directive that the FBI should not be involved with interrogations in which non-FBI techniques would be utilized, and with the frequently stated position of DOJ and FBI officials that the FBI's rapport-based techniques were superior to other techniques. We were also troubled that FBI and DOJ officials would suggest this proposal without knowing what interrogation techniques the proposal entailed.


Did you follow that? This was a minority view. It was just "certain officials." And they had an idea about imitating CIA even though they didn't know what CIA was actually doing. All they were working with was the idea that the CIA had been successful with Zubaydah. And where did they get that wacky idea? I wish I knew, because according to Soufan, it was the FBI techniques that had been successful with Zubaydah.

But there were at least several points of view (within the FBI and DOJ) about which interrogation method was effective contemporaneous with these 2002 memoranda.


There weren't "several points of view." There were people who believed in torture, and there were people who believed in obeying the law. And you're making a fuss over nothing: the fact that certain people at FBI were getting excited about CIA techniques even though "they did not learn what specific techniques had been used by the CIA until much later."

Referring again to the same FBI file, months after the Bybee memos, the FBI was still unsuccessful in obtaining anything from detainees other than Zubaydah, using their rapport-based interrogation.


For some strange reason, you're completely glossing over this:

Al-Qahtani began cooperating with military interrogators in April 2003, obviating the underlying rationale for the proposal [i.e., the proposal to adopt CIA techniques].


Why did you skip that part?

As for Zubaydah, the FBI never received anything of value from their rapport-based interrogation


Why are you making claims that are transparent baloney? This is what Soufan said:

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.

We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber. This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.


Why are you ignoring that?

The agent you quote had no results to back up his assertion that he would obtain intelligence.


Soufan is making very specific claims about what he got from Zubaydah. Why are you calling him a liar? Where's your evidence?

I am suggesting that Bybee and others thought at that time that the harsh interrogation methods were needed to obtain critical information.


The law makes no exception for a situation where there is a need "to obtain critical information."

hence the recent flap over whether to release additional memos detailing what intelligence successes we enjoyed as a result.


If there were actually "additional memos detailing what intelligence successes we enjoyed as a result" Cheney would have been waving them under Brit Hume's nose ages ago. The best the torturers have done with regard to demonstrating "intelligence successes" has been to entertain us with science fiction about time travel. If they had anything better than that, we would have seen it years ago.

It certainly is not your contention, I would think, that Bybee had been told the FBI was successfully obtaining information from hardened terrorists by becoming their buddies


I don't know what Bybee was "told." And I don't know if he bothered asking the FBI any questions. But if he had, he would have found out that traditional, legal FBI techniques were working with Zubaydah.

but that the CIA wanted to disrupt that flow of valid intelligence by torturing unnecessarily the same terrorists with the intent to alienate them from their new FBI friends?


It's up to the CIA to explain why they decided to start torturing Zubaydah. Maybe he wasn't coming up with the right false confessions that Cheney was looking for (after all, the torture of al-Libi didn't stop until he provided false confessions that were used to sell the war). But according to Soufan, non-torture was working better.

So, no, I didn't write that post based on a movie script. Nice to see you giving fair consideration to other view points, though.


I'm willing to give "fair consideration to other view points." I'm not willing to give fair consideration to complete bullshit. Which is what you've been presenting in your posts.

what exactly meets the definitions from 18 USC 2340?


Let us know if you thnk it's torture to be forced to stand continuously for 180 hours. While being completely deprived of sleep. In shackles and a diaper. While on a starvation diet. That doesn't fit "the definitions from 18 USC 2340?"

And there are many ways that we know waterboarding is torture. Here's one: we called it torture when the Japanese did it. They used various methods, including the method we used. And we called it torture, and prosecuted them for it, when they used that method (pdf). So feel free to explain why it's torture when they do it, but not when we do it.

Wouldn't one need to prove bad faith in the construction of the memos to actually prosecute for this crime?


There are plenty of indications of "bad faith in the construction of the memos." Example: they gave no consideration to the long history of waterboarding being prosecuted as a crime by US courts.

Now that the acts which are now described as torture - but previously had been determined to be legal


You have it exactly backwards. Waterboarding has been around for centuries, and it has been universally described as a form of torture. Claiming that waterboarding is not torture is a Bush administration innovation.

Do the lawyers who constructed the memos in question really deserve criminal penalties?


We have a system designed to carefully consider that question. It's called a 'trial.'

I question why, under the present circumstances, we're trying to prosecute what appear to be honorable men under difficult circumstances.


The law makes no exception for "honorable men under difficult circumstances."

Lets say mea culpa and move on.


Ignoring crime is an invitation to commit more crime.

==================
kirkland:

The evidence indicates that the organization of which they were important elements invaded the wrong country, then kidnapped, tortured and killed prisoners in a vain effort to vindicate the original misconduct.


Not just that. Pay attention to the chronology. There was lots of torture before the war, for the apparent purpose of generating false confessions that were used to sell the war. Exhibit A: al-Libi (link, link).
4.27.2009 12:38am
AlanDownunder (mail):
Oren:

He's not going to resign. He can't be impeached.

... but he can be tried.
4.27.2009 12:48am
rosetta's stones:
No, he can't be tried... not unless Obama and Holder want him to be tried. But they accept all this as policy, so it doesn't appear a trial is forthcoming.
4.27.2009 7:51am
jccamp (mail):
Jukeboxgrad -

Well, you're cherrypicking your own cited material. Within the FBI and the DOJ, people wanted to adopt harsher interrogation methods because the CIA had been successful - where the FBI had not - in obtaining intelligence from detainees via the harsher methods. At the time of the debate, there were legal opinions within the administration that the harsher methods were not unlawful. You can fling expletives about and come to your own legal conclusions about what each alternative represented, but if calling a view other than your own "bullshit" is your best logic, then you're letting emotion rule the debate.

As for some of the particulars, the FBI had been unsuccessful interrogating Al-Qahtani. The military took over the interrogation in the fall of 2002, escalated the physical level of the interrogation and eventually broke Al-Qahtani in the spring of 2003, when he began co-operating completely. During the escalating regime of military interrogation, someone within the FBI suggested that the FBI adopt the harsher methods in the fall, 2002. At the time of the 2008 report, everyone within the DOJ and FBI has developed amnesia about the exact methods and precisely who made the proposal, even though any number of people did sign off on the proposal. Implicit in the proposal was that the FBI would regain control of the high value prisoner from the military.

You're also ignoring a central theme throughout the report. The FBI was trying to preserve evidence to be admissible in a court of law. The military and the CIA were looking for actionable intelligence.

There has been a recent on-going public back-and-forth, involving notably the former VP Cheney, about whether the government should release additional classified material which would purportedly detail what intelligence was obtained - and what benefit accrued - as a result of the harsh interrogation methods. Claiming that no such benefits exist because they have not yet been revealed is not much of an argument.

Finally, the FBI report should not be considered gospel. This report, dated in 2008, is pretty clearly designed to shield the FBI from any fallout from the interrogation controversy. The report itself describes a turf battle for control of the detainees and the resultant flow of intelligence.

I would refer you to the article in today's WSJ by William McSwain. Link is HERE.
4.27.2009 9:17am
studentactivism.net (www):
I question why, under the present circumstances, we're trying to prosecute what appear to be honorable men under difficult circumstances. Lets say mea culpa and move on.


If these men are honorable, let them make the mea culpas, and give the rest of us the opportunity to decide whether that's sufficient.

Until they come clean and express contrition, there's no mea in their culpa. And if they're not regretful, I don't see why we should consider them honorable men.
4.27.2009 9:48am
AlanDownunder (mail):
rosetta's stones:


No, he can't be tried... not unless Obama and Holder want him to be tried. But they accept all this as policy, so it doesn't appear a trial is forthcoming.


Reagan signed the convention against torture into US law, so of course Bybee can be tried.

Obama has (belatedly I must say) drawn the line at politicising the DoJ like his predecessor, so he will let the law take its course. He'll say he wants to draw the nation together and look forward. Of course he'll go that far, but it's not his call.

Holder, whose call it is, has not said whether he will or he won't. Half the country (trending up) wants investigations. A third (trending up) want prosecutions. Even talking heads on Fox are appalled and angry.

No wonder Bybee's friends are now feebly trying to untarnish him. He's a worried man - with cause.
4.27.2009 9:53am
rosetta's stones:
Holder, whose call it is, has not said whether he will or he won't.

No, the other day in front of the Congress, he said the magic words... that he wouldn't be pursuing investigations because of "policy" disagreements.

Sure, he and Obama are throwing out some boob bait, for the rabid, but I don't foresee anything more than that. No JD investigations, and likely none in the Congress, as the congresscritters appear to be blocking here as well.

I don't see public support for any of this "trending up" either, quite the opposite, in fact.

I'm in favor of full and open Congressional investigation for sure, but the congresscrittes appear firmly against it.
4.27.2009 11:59am
jukeboxgrad (mail):
jccamp:

the CIA had been successful - where the FBI had not - in obtaining intelligence from detainees via the harsher methods.


You are repeating the same bogus claim, without offering a shred of proof. Even though Soufani says the exact opposite, and he was there. And it's not just that you're showing no evidence to prove him wrong. You're failing to even acknowledge that his statement exists.

There has been a recent on-going public back-and-forth, involving notably the former VP Cheney, about whether the government should release additional classified material which would purportedly detail what intelligence was obtained - and what benefit accrued - as a result of the harsh interrogation methods. Claiming that no such benefits exist because they have not yet been revealed is not much of an argument.


Like Cheney, you're suggesting that Obama is holding back some other memos that will make Bush look good. If so, you should explain why Cheney didn't release those memos when he could have:

If there exist documents that prove that torture prevented attacks on the US, and those documents can be released without jeopardizing national security, why didn't the Bush administration release them before leaving office?


I've been trying really hard to find someone willing to answer this question.

I would refer you to the article in today's WSJ by William McSwain.


He's making the same time-travel claim that Thiessen did. It's really nice to know that the time cops saved LA.

if calling a view other than your own "bullshit" is your best logic


It's not that I'm calling a view other than my own "bullshit." It's that I'm calling bullshit bullshit. You're essentially calling Soufani a liar, even though you're not presenting a shred of evidence to support your accusation. Here's a good word for that: bullshit.

I find it really hard to believe that you actually expect to be taken seriously.
4.27.2009 12:17pm
Just an Observer:
I'm in favor of full and open Congressional investigation for sure, but the congresscrittes appear firmly against it.

Actually, members of Congress are split on that. There is no doubt that in the Senate, Harry Reid is supporting the Obama line of "not looking back." I join you in decrying that.

But in the House, where there has been a public spinning match between Pelosi on the one hand and Hoekstra/Boehner on the other about who knew and said what when during those secret briefings, Pelosi's position is for a truth commission.

On its face, at this point, that lends credibility to her version of the facts. If Boehner and Hoekstra join the call for an investigation, I will credit them with greater credibility. But AFAIK they oppose the truth commission proposal, while Pelosi supports it.

I say declassify the records of the briefings and put all the participants under oath.

But returning to the topic of this thread -- Bybee and the OLC memos -- there is no dispute that the opinions were presented at the congressional briefings as a formal finding that the interrogations would be legal.

So, just as the faulty OLC opinions -- which called legal that which was really not legal -- degraded the executive-branch actions, it also corrupted the briefings.
4.27.2009 12:29pm
rosetta's stones:
Of course the ademocratic congresscritters would support the creation of an ademocratic, unaccountable commission.

Afterall, the object here is to create distance, make this all go away, and ensure no congresscritter is held to account. Obama and Holder are doing their part, and now it's up to these guys to do theirs.

I mean, they got jobs to protect, and there's a recession on. Haven't you heard?
4.27.2009 1:16pm
jccamp (mail):
"If there exist documents that prove that torture prevented attacks on the US, and those documents can be released without jeopardizing national security, why didn't the Bush administration release them before leaving office?"

The documents are classified. Cheney and others have been calling for the Obama administration to declassify them, as a counterweight to the declassification of the released memos, said declassification BTW being opposed by any number of both Dem and Republican intelligence professionals.

"...Even though Soufani says the exact opposite..."


I believe all that the FBI interrogators obtained from Zubaydah was an identification by alias of a photo of KSM as a principle in the 9-11 attacks. He provided only a historical allegation, not intelligence that pertained to contemporary or future events. The CIA termed the FBI-obtained data "throw-away." In any event, the info obtained by the FBI was minuscule compared to the eventual trove obtained by the harsher methods. DOD and the CIA felt the so-called FBI success was in fact of little value. Only the FBI thought they were making progress. At the same time, your own source document describes any number of FBI agents who felt the harsher interrogations were obtaining valid results. Even thought we're dealing with the (opposing) opinions of two different groups of investigators, you decide to accept one without question and condemn the second as cow manure.

The same with the WSJ editorial page article - it's a "time travel" piece, and thus unworthy of response or consideration. Good critical analysis.

So, once more, I think it obvious that anything that fails to match your own narrative becomes the vulgarity you chose, "bullshit." Well spoken.

To the degree that your position has arguable merits, you degrade them with such meaningless and thoughtless comment.
4.27.2009 2:19pm
AlanfromOntario:
If Bybee had any honor or integrity, he would kill himself.

If anyone thinks that is too strong, what do you think is the appropriate action for someone who has cheerfully provided a legal figleaf for illegal and immoral conduct that has maimed and killed others. (And if you don't think that anyone has been killed during torture at the hands of the US Govt, then you are simply misinformed.)
4.27.2009 3:37pm
jukeboxgrad (mail):
jccamp:

The documents are classified. Cheney and others have been calling for the Obama administration to declassify them, as a counterweight to the declassification of the released memos


You didn't answer the question. The debate about torture didn't start with "the declassification of the released memos." It's been going on for a long time. If there were actually memos proving the effectiveness of torture, "and those documents can be released without jeopardizing national security," then Cheney would have released them long ago. He had every reason to do so.

the info obtained by the FBI was minuscule compared to the eventual trove obtained by the harsher methods.


As usual, you are making claims that are completely unencumbered by even a shred of evidence. Why not simply claim that Bush personally protected us from the death rays that emanated from Planet Murxon? We have exactly as much proof of that event, as we do of the events that you're describing.

Even thought we're dealing with the (opposing) opinions of two different groups of investigators, you decide to accept one without question and condemn the second as cow manure.


That's because you've cited no proof. The only "proof" you cited turned out to be regarding a few people at FBI who were infatuated with CIA methods even though they didn't know what the methods were.

The same with the WSJ editorial page article - it's a "time travel" piece, and thus unworthy of response or consideration. Good critical analysis.


The Slate article I cited did indeed prove that the WSJ article you cited makes a claim that requires a belief in time travel. That is definitely "good critical analysis." And where is your "good critical analysis" of the Slate article, which is scrupulously documented? Nowhere.

vulgarity


The real "vulgarity" here is torture and the defense of torture.
4.27.2009 7:04pm
AlanDownunder (mail):
rosetta:


Sure, he and Obama are throwing out some boob bait, for the rabid



A torture defender talking about "the rabid"? Big call, but I think GOP-style projection just reached a new low.
4.28.2009 12:40am
rosetta's stones:
Well no, Alan, I'm neither a "torture defender" or the "GOP", I'm just pointing out the rabid who advocate sentencing first, followed by everything else.

Obama is just throwing the rabid some boob bait, because he doesn't appear to be teeing up any sentencing, as the rabid rabidly want.
4.28.2009 10:35am

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