Judge Bybee’s Torture Memo

I’ve read the now-notorious Aug. 1, 2002, memo by federal judge and then-Assistant Attorney General Jay S. Bybee to CIA acting General Counsel John Rizzo. The Top Secret Memo includes 18 single-spaced pages (mildly redacted), but it suggests more than it states. It purports to be a legal opinion about the applicability of 18 USC 2340A (the prohibition against torture) to proposed investigative techniques, waterboarding being the most notorious. Relying on “oral advice” provided by investigators who wished to move into the “increased pressure phase” of their interrogation of Abu Zubaydah, a high-ranking al Qaeda operative, the memo provides the CIA with the legal OK to proceed with the proposed “techniques.”

Like accountants who provide useless cover-your- …, corporate audits by saying nothing and concluding that they are relying on the representations of the audited organization, Bybee repeatedly notes and accepts what the operatives told him about what they were proposing, and adopts their judgments about the implications of it. He notes that “there are no cases construing this statute,” nor any “prosecutions brought under it.” He does not mention this government’s prosecutions after World War II of comparable conduct it condemned, even to distinguish it. He does not mention the legislative history and intent of 2304A. He offers no counterarguments to the submissions by the government’s proponents, even to dismiss or distinguish them. There is no mention of relevant human-rights jurisprudence on the subject of torture.

The situation called for independent judgment, and Bybee offered none. One by one, he described the 10 techniques, including wall-standing, sleep deprivation, use of insects, facial slaps and waterboarding. But rather than exercising independent judgment, he relied on the opinions of the experts the proponents used — investigators, medical experts and psychologists — and, to put the best light on it, went willingly where he was led.

Reading how 20 minutes of waterboarding falls short of “suffocation and incipient panic” in a legal memo is weird. That the lawyer relied essentially on his clients for sources and authorities suggests an adviser who went where he was supposed to go. For example, at one point he states: “You have informed us that this procedure does not inflict actual physical harm. Thus … the waterboarding does not inflict physical pain,” only fear and panic. Waterboarding lacks, Bybee concluded, “the connotation of a protracted period of time generally given to suffering.” His authority for this bizarre conclusion? The folks who asked for his legal opinion. His basis for concluding there was no statutory mental harm was “Based on your [my emphasis] research into the use of these methods … and consultation with others in the field of psychology and interrogation.” They didn’t anticipate mental harm, so Bybee didn’t. His whole memo is filled with comments like, “Based on the facts you have provided to us …” and includes this strange viewpoint: “an honest belief need not be reasonable …”

Bybee remarks that the “totality-of-the-circumstances are to be considered in determining if torture techniques equal intentional infliction of severe physical or mental pain or suffering on one in custody. Bybee concluded, “None of the proposed techniques inflicts such pain.”

But there is little examination or analysis of those total circumstances — whether these techniques result in credible confessions or the impact of repeated use of the technique, for example.

The internal Justice Department review of his work concluded that he committed no crime; the attorney general is reviewing that report. His role and action may be referred to state bar disciplinary authorities to determine if he violated standards of professional conduct.

Sanctioning an attorney for his or her legal advice is rare, tricky, and should be used in the most clear-cut situations, where the advice constitutes participation in wrongful conduct, and not solely consideration of and advice about its consequences. Whether Bybee crossed that line between advice and advocacy or participation in misconduct is open to question.

If Bybee’s actions weren’t criminal, they surely are questionable. It may be that the shame that follows him as his role inevitably becomes public and is judged in the court of public opinion will be his punishment, and a chastening lesson to young lawyers.

Thurman Arnold, the late wise and witty professor, judge and lawyer advised young lawyers: “When the time comes in the course of your representation of a client that it is clear that someone is going to jail, make sure it’s your client, not you.” If only for self-preservation, if not for moral principle, Mr. Bybee should have followed that advice. But if he balked, he wouldn’t be a federal judge. The question now is: Should he remain one?

This is the third in a continuing series of commentary on the subject of torture.

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