Jay Bybee, tragic victim of circumstance?


This WaPo article featuring comments from Jay Bybee’s friends and colleagues is a series of exasperating excuses and contradictions.

Judge Bybee regrets “the contents of the memo” and feels it “got away from him,” but stands behind the legal analysis in it.  I’m not sure what kind of a needle he’s trying to thread, but the legal analysis is what he should regret.  It’s a bad joke.  What principle of logic or statutory construction leads one to construe “pain or suffering” as synonymous with “pain”?

Judge Bybee wishes people would be more considerate of the pressure he was under, but also wishes people would remember he was just the lawyer, and had no control over policy.

Is he serious?  Does he really expect us to believe he didn’t know what policy he was being asked to justify?  Why did he think the administration was putting so much pressure on him?  Can he really have been that naïve, that oblivious?  I don’t think so; he was a Justice Department veteran.

Along these lines, one of Judge Bybee’s friends says, “Jay would be the sort of lawyer who would say, ‘Look, I’ll give you the legal advice, but it’s up to someone else to make the policy decision whether you implement it.'”  That may be what Bybee would say (and clearly is), but it’s not how it works when you’re the head of the Office of Legal Counsel.  Nobody in that position is just a lawyer, or just giving legal advice.  At that level of the government, the extreme power blurs the lines.  The top lawyers — the attorney general, the White House counsel, the head of OLC, the solicitor general (to a lesser degree), and the chief counsels for the major departments and agencies — are, de facto, part of the policymaking apparatus.  They don’t get to disown what they enable.

It’s a fundamentally different position for a lawyer to be in.  A criminal lawyer defending a client at trial or a corporate lawyer negotiating a contract is involved in an adversarial process.  You make the best argument you can to justify and defend your client’s interests, the other lawyer does the same for his or her client.  The outcome doesn’t get implemented until the end of that adversarial process.

An attorney general or head of the OLC giving internal legal advice to the executive branch is not engaged in an adversarial process.  You don’t go to the wall for a one-sided position, because nobody’s there to go to the wall for the other side.  Whatever argument you make, whatever conclusion you reach, that is the outcome, and it gets implemented immediately.  You don’t, therefore, get to disclaim responsibility for policies based on your conclusions.

Returning to the WaPo article, according to one of Judge Bybee’s clerks, he “was disappointed by what was done to prisoners, saying that ‘the spirit of liberty has left the republic.'”  Noble sentiments.  But given the question he was asked and the context and manner in which he was asked it, what in the world did he think would be done to prisoners?

As for the spirit of liberty, it didn’t leave the republic.  Judge Bybee swept it out the door when he signed off on John Yoo’s legal memo; a memo that was the most tendentious kind of special pleading, and clearly had but one purpose: to let the executive branch ignore the law.  That, Judge Bybee, is when the spirit of liberty leaked out of the republic: when you knocked a hole in the rule of law.

According to one of Bybee’s friends: “The whole idea that the Constitution is based on a kind of wariness of mankind’s tendency to grab power, that is an idea I got from Jay.  So the whole idea of uninhibited executive power, from him, does seem passing strange.”

Ya think?

Perhaps the most frightening thing in the entire article is this brief sentence:

Bybee still occasionally teaches a course at UNLV on separation of powers.


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3 Responses to “Jay Bybee, tragic victim of circumstance?”

  1. jazzbumpa Says:

    Bybee is an appointed judge. i believe such judges serve “at the pleasure of the president.” Wasn’t there some otherwise unjustified dismissal of judges with this line of reasoning in the last administration? president Obama should put this guy off the bench and back into his “gated suburban Las Vegas subdivision” before the weekend is over.

    Probably not.

  2. urbino Says:

    Not judges, jb. You’re thinking of U.S. attorneys. Federal judges are appointed for life.

  3. jazzbumpa Says:

    Drat! well, there’s always impeachment . . .

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