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.
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.