The Fabrications of Jay S. Bybee | The Nation


The Fabrications of Jay S. Bybee

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Few people know how to avoid, evade, beat around the bush, beg the question, bypass, circumvent, fudge, sidestep, prevaricate, equivocate, dodge, duck, avoid and ignore as well as Federal Judge Jay S. Bybee, the author of a torture memorandum given to the Central Intelligence Agency. Few people know how to be as skillfully dishonest while appearing to skirt dishonesty.

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Martin Garbus
Martin Garbus is one of the country’s leading trial lawyers. A graduate of New York University Law School and a...

Now that Judge Bybee has been asked to testify by a Senate committee, we will be able to see the fraudulence and dishonesty of his opinions. Given his recent public statements defending his memorandum, he has no right to refuse. We can expect that he will refuse to name his sources, but he can be pushed to get to the higher-ups. We can also expect that even if he now knows he was incorrect, he will not bare his soul.

Bush and Cheney are now within reach. It took a good while for the Watergate prosecutors to move ahead--once John Dean began describing his role and the people who directed him and he directed, the house of cards started to fall apart. We are at the beginning of the unraveling process.

Bybee is more interesting than his companions in crime, John Yoo, David Addington and Alberto Gonzales. He is a more moderate conservative, less interested in policy, less committed to the concept of expansive presidential power. He does not believe that the Bush administration's "war on terror" gives the president unbridled executive authority. His legal theory, unlike that of his colleagues, shows a respect for the Constitution. He is also a technocrat who never raises his head above tree level to see the larger picture.

In this instance, however, he boldly fashioned a legal memorandum to authorize illegal acts. And we have specifics. First, by the time he wrote his August 2002 memo, he had seen the March 2002 Justice Department memo that outlines "rendition" and also detainees regularly disappearing into foreign prisons. But he writes his memo as if the March 2002 memo did not exist.

Bybee makes sure there are no facts in the memorandum to contradict him. I felt sick as I read it. In his August 2002 memo Bybee writes, "We also understand that you do not have any facts in your possession contrary to the facts outlined here and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply."

Nothing in Bybee's memo is based on firsthand knowledge. He tries to protect himself from the possibility of contradiction or responsibility as he keeps total deniability.

Throughout the memo, he gives himself outs and defenses, but he is too subtle to argue for one position or another. He relies on oral information from individual parties so that there are no written records to support or contradict his "facts." He can always say, moreover, if a "source" is identifiable, that it was someone else who gave him the information.

He keeps it all ambiguous and attributes the transparently false statements to someone else. Bybee prefaces factual statements with language that passes responsibility to the CIA: "...your intelligence indicates..."; "Based on the information you have provided...."

He always relies on third parties to convey information and never cites more than one undisclosed source: "You have orally informed us that the false wall is in part constructed to create a loud sound." He never examines any wall or the effect of throwing someone into a wall. He refuses to look into what could easily be looked into. He makes precise conclusions based on vague oral information.

Bybee writes, "Your psychological assessment indicates that it is believed Zubaydah wrote Al Qaeda's manual on resistance techniques." He uses total irrelevancies that say nothing, justify nothing, and have no place in a legal memorandum: "You have informed us that he continues to express his unabated desire to kill Americans and Jews."

He is comfortable in expressing unsupported psychological conclusions to the CIA because, he says, "You have also reviewed the relevant literature and found no empirical data on the effect of these techniques." But there is no statement that anyone read anything.

Supporting waterboarding, Bybee writes, "It was also reported to be almost 100 percent effective in producing cooperation among the trainees." Again, he avoids any contrary waterboarding data.

He says that extreme sleep deprivation is fine because "The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep." He neglects to discuss the extraordinary suffering that takes place during the actual deprivation, focusing only on a lack of long-term aftereffects. This is like saying that beating your wife is okay if there are no visible bruises.

Bybee says, "...your intelligence indicates that there is currently a level of 'chatter' equal to that which preceded the September 11 attacks" and that justifies extreme measures. He does not define what a "level of 'chatter' " is.

What he does with the law is as bad as what he does with the facts, but he does it differently. He presents sentences that judges wrote in cases and interprets them in an astounding way.

He interprets the words of statutes by taking unsupportable extreme positions--the most radical reading of a sentence or a decision of a court.

He makes one plus one add up to seven.

From their first days of law school, through moot court and examinations, writing briefs and presenting argument in court, lawyers are trained to be able either to put in or take out facts, take the opposite side--or both sides--of a legal position. We are trained to marshal facts to present a client in a a totally different light than the one in which our adversaries present him. During a trial, sometimes first the prosecutor and then the defense present their cases. The trial lawyers show exhibits, quote specific witnesses and read transcripts. The listener hears two totally different cases, from two different planets. Appellate judges, in their opinions, even as they vigorously dissent from one another, do the same. This can all be done within permissible limits.

What Bybee has done here is different. He has made himself blind, deaf and dumb--he hears no evil, sees no evil, smells no evil.

A trial lawyer can best see the difference between what goes on in courtrooms and exactly how this federal judge stepped over the line. Bybee goes far beyond ethical limits because he has absolutely no facts, cannot name sources and goes out of his way not to state the sources' backgrounds, so the reader cannot judge credibility. For all that we know, the sources drawing sophisticated psychological conclusions are no more qualified than the ones who tell us about the physical construction of the walls. They could even be the same person.

Because of all this, he is criminally responsible.

People at the top of my profession--the law professors, judges, great trial lawyers, and lawyers high up in government--are often the best at creating nuance that can approach dishonesty. Bybee is among the best and brightest in taking that little extra step.

When lawyers write on behalf of clients--Enron, the government, defendants--they know what they must do to advance their position. Winning gets us where we want to go--with juries, up the ladder of personal advancement in government, or business, with executives who need legal cover. Jay Bybee wrote with an understanding of what his bosses wanted to achieve, by keeping his head down. No one had to tell him what to do. He was a perfect bureaucrat, the perfect, much smaller version of the German who pulled the switches in World War II, the perfect example of the banality of evil.

It's the Alice-in-Wonderland cliché: the facts are what the lawyers say they are.

What a sculptor can do with stone, Bybee does with words. He creates the image, distorts the image, manipulates the image. But the level of lying in the Bybee memos goes far beyond any ethical or legal standard I have ever seen.

Even the documents thus far released have more stories to tell. They are redacted in critical places. And additional documents that will be released will certainly show it was truly impossible for Bybee and the others not to know what everyone around them knew. The documents to be released in the future will show how he parsed the information he received and how he knowingly turned away from what was totally apparent.

Lawyers are often prosecuted. It's common, and not difficult. And even if it were difficult, that wouldn't be a reason to give this profession an immunity it does not deserve. There is no earthly reason why a criminal jury of twelve citizens cannot pass judgment on Federal Judge Jay S. Bybee. There is no earthly reason for not impaneling a grand jury or appointing a special prosecutor.

Judge Bybee could avoid all of this if he came clean and let us all know exactly what happened. He could give us the names and facts that would help us go after the Bush administration's higher-ups.

If he doesn't do a John Dean, he should be impeached or prosecuted. Impeaching Bybee would be like shooting fish in a barrel. But he deserves more--he deserves to be criminally prosecuted and made responsible for the horror he authorized. He should be charged with conspiracy to commit torture and war crimes, with violations of the War Crimes Act of 1996 and of the Torture Victims Protection Act of 1991, as well as violations of the four Geneva Conventions of 1949 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment as Punishment.

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