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Don't Cry for Jay Bybee, the Torture Memo Boss Who Became a Judge

5 years ago
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Of all the patriotic zealots at the Office of Legal Counsel who helped the Bush Administration undertake its torture policies immediately following the terror attacks on America, perhaps the person least likely to deserve sympathy today is Jay S. Bybee. After signing off on fellow lawyer John Yoo's infamous torture memos in 2002, but before those dubious documents became known to the world in 2004, Bybee was promoted by President George W. Bush from the counsel's office to a judgeship with the 9th U.S. Circuit Court of Appeals. He presides there now, enrobed and life-tenured, with only the slightest of rumblings of impeachment heard in the background of his life.

Judge Bybee, in other words, got out while the gettin' was good-- and despite having stonewalled the hapless Senate Judiciary Committee during his own confirmation hearing back in 2003. As a federal judge, he's certainly not earning as much money as Yoo, the widely-despised law professor and columnist, but he's probably making more than disgraced former White House counsel (and Attorney General) Alberto Gonzales, who's struggled to find a new home for all his ethical and moral baggage. Judge Bybee doesn't have to face protestors, as Yoo regularly does, and, best of all, he gets to continue to help shape federal law from his esteemed perch. All this despite being accused by the Justice Department, at least initially, of having committed "professional misconduct" while working for his client, the United States, in 2002. If you were Judge Bybee today, you'd think you were sitting pretty, no?

Jay BybeeNo. The Justice Department subsequently backed off its "misconduct" charge against Bybee -- politics and decorum and the endless search for "closure" being what they are -- but the judge was back in the news last week. After nearly two months of delay and review, the House Judiciary Committee finally disclosed last Thursday portions of Judge Bybee's sworn and closed testimony to the panel in late May. Even though the White House and Justice Department have moved on from the issue in the name of political comity, the House Committee, led by Democrat John Conyers (D-Mich.), is still looking into the Bush Administration's terror law policies. And so, like a rat fink, Judge Bybee promptly squealed on his confederates while deflecting blame and responsibility for his own shameful lack of judgment and integrity during those crucial months in 2002.

He trashed the Central Intelligence Agency -- claiming that the CIA's torture practices (water-boarding, etc) went beyond even the broad legal authority that he and Yoo had ginned up. And then Judge Bybee trashed Yoo, too -- claiming his former colleague did not tell him about certain White House meetings and may have been too close after all to Dick Cheney, David Addington and the rest of the "enhanced interrogation" cheerleaders in the Bush Administration. Of his own role in the affair, Bybee told the lawmakers that he is standing by those infamous memos, the ones that begat Abu Ghraib and all the rest; standing by the legal analysis contained in them long after most of the rest of the legal world sees that analysis for the dramatic and dangerous departure from American law and norms that it turned out to be.

Despite his lack of leadership and judgment and integrity in 2002 and 2003, Judge Bybee tried to play the victim before the Committee in May. After denying he has regrets about his enormous professional failure, Judge Bybee told the panel: "I have regrets because of the notoriety that this has brought me. It has imposed enormous pressures on me professionally and personally. It has had an impact on my family. And I regret that, as a result of my government service, that that kind of attention has been visited on me and on my family."

Don't cry for Judge Bybee, now insulated by Article III of the Constitution. The "pressures" he now feels, from the cloistered bench in beautiful California where he now presides, are purely of his own making. He chose to embrace the legal zealotry of that administration. He chose to skew the rule of law beyond where it had gone before. He chose to let Yoo run amok among constitutional scripture. Most top-shelf government lawyers lose their jobs or are indicted after the sort of astonishing professional lapses we saw here. Most don't "fail up" as spectacularly as Bybee has.

Worst of all, Judge Bybee knew during his confirmation hearing in 2003 that he had drafted and/or authorized some of the most controversial legal memos in the nation's history. He knew what the broader legal and political community would say when they learned of the details. He knew the memos undercut the Geneva Conventions. And yet he grabbed the lifetime job anyway, protecting himself and his secrets, without so much as a peep to the Committee. Six years and no remorse later, that's no cause for sympathy or compassion. That's cause for disgust.

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