Jay Bybee feels very sad about his decision to assist the CIA in developing a torture program (via the Washington Post):
It was, in the private room of a public restaurant, the kind of joyless judgment that some friends and associates say the jurist arrived at well before the public release of four additional memos last week and the resulting uproar that has engulfed Washington. One of the documents, dated Aug. 1, 2002, offered a helpfully narrow definition of torture to the CIA and soon became known as the “Bybee memo,” because it bore his signature.
“I’ve heard him express regret at the contents of the memo,” said a fellow legal scholar and longtime friend, who spoke on the condition of anonymity while offering remarks that might appear as “piling on.” “I’ve heard him express regret that the memo was misused. I’ve heard him express regret at the lack of context — of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety.”
That notoriety worsened this week as the documents — detailing the acceptable application of waterboarding, “walling,” sleep deprivation and other procedures the Bush administration called “enhanced interrogation methods” — prompted calls from human rights advocates and other critics for criminal investigations of the government lawyers who generated them.
I’d probably feel a bit more sympathetic if Judge Bybee didn’t author a memo giving the CIA the room it needed to develop and implement a torture program. That said, I don’t see why it matters that Bybee “regrets” his decision to pen the memo; while contrition is certainly nice, it doesn’t erase the fact that Bybee is partially responsible for instituting an immoral and illegal program for the torture of detainees. Indeed, I would very much prefer it if Bybee expressed his contrition while standing trial for his role in providing the legal justification for war crimes, and not while sitting on the federal bench.
The choice we have is to declare Bybee either too evil or too incompetent to be a federal judge. If those memos were his seminal work, that he disavows them now is to say that he was nominated for the bench without having the ncecessary qualifications. If they weren’t that important, if he just slapped them together and/or had underlings do the majority of the work contained in them, then he doesn’t have the temperament and understanding a federal judge needs. And if he’s lying now – which is the most likely story – then he doesn’t have the integrity we should expect from federal judges.
It’s like the Iran-Contra nonsense from Reagan. He and his administration presented us with two options: 1)They were evil and traitorous or 2)they were doddering old fools not capable of changing their own adult diapers.
Unfortunately, in situations like these most Americans seem to choose option 3)fingers in ears while shouting “LALALALALA I CAN’T HEAR YOU!”