Let Us Now Praise Gentle Men, To Wit, Life-Tenured Federal Judge Jay Bybee

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Dear Colleagues:

Jay Bybee’s former colleagues say, in the words of The New York Times, that he is a “serious, soft-spoken, reflective man.” One says “‘He is a pretty gentle soul.”’ His personality, this colleague says, would not be like that of Donald Rumsfeld. No. “‘He would be quieter, more reflective, quite temperate.’” And he plays the kazoo. In fact, he has a whole collection of Kazoos.

But not to worry. If you want torture, Jay Bybee is your man. If you want to destroy one of the bases of American democracy by making the commander-in-chief a dictator superior to the laws of Congress, Jay Bybee is your man. For, you see, Gentle Jay, along with his sidekick John Yoo, is the author of memos saying that torture of prisoners is permissible -- isn’t even torture -- and that the President as commander-in-chief can ignore Congress’ law against torture (not to mention ignoring those effete international law rules against it).

The work of Gentle Jay and his sidekick has been assailed as vigorously as any I’ve seen in 40 plus years of being a lawyer. Prominent legal academics have called it “‘embarrassing,’” “‘abominable,’” “‘very low level . . . embarrassingly weak.’” The work’s failure to cite the Youngstown Street & Tube case of 1951 -- the famous Steel Seizure case of the Korean War -- was called “‘not legitimate,’” has been said to be “‘not just poor judgment,’” but “‘incompetence.’” Even the White House has been forced to disown the conclusions of Gentle Jay and John Yoo.

The academic critics don’t get it, though. Not only are some of them, maybe even all of them, liberals, but they are saying the work is legally incompetent. Maybe that makes Jay and John feel bad (though I doubt it) because they too were and/or are legal academics themselves. (Gentle Jay taught at Louisiana State and Nevada, and Gentleman John teaches at Berkeley.) Still, legal competence was never what those memos were about. What they were about was that Bush, Gonzalez, Rumsfeld, the CIA and others needed cover. They wanted to get information out of Al Qaeda, Taliban and other prisoners, and they felt that harsh methods were desirable for this purpose. But they wanted to be immune from punishment. How to obtain this immunity? It’s simple. Get some supportive legal memos from the Justice Department’s ultra prestigious Office of Legal Counsel, headed by Jay and including John. Those memos will have all the outward trappings of quality: they will have extensive lawspeak and legalese, citations to statutes and cases, the lot of it. Then, if torture ever comes to light, at least Rummy, George and others can say they relied on the prestigious Office of Legal Counsel. How can they be faulted for that? How can they be faulted when the prestigious Office of Legal Counsel shows that under the law torture is not torture, and that the commander-in-chief can be a dictator? All they did was to act in accordance with what the Legal Counsel said is permissible.

You answer that the Legal Counsel memos that people like George and Rummy relied on are legally inept? Well, you must be an effete liberal. Anyway, do you expect George to be able to read page after page of legalese from the Office of Legal Counsel and pronounce it inept? The man can hardly talk, for God’s sake. Rummy can talk, of course. He’ll give you 15 minutes of monologue sturm und drang on why the memos were right, were in fact the second coming of Christ.

One thing, though. Unless and until the torture of prisoners ever (God forbid) came to light, the memos had to be kept secret. For if they ever became known, people would start to ask whether torture was in fact being used. And the Administration knew that Congress and the American public would never stand for torture (some military lawyers who were against it said the public would react very badly), even if George and Don and Alberto and Dick and Paul and the CIA and that whole lot claimed torture was necessary to save us from attacks. Maybe torture is necessary for this purpose, though lots of experts say little of value is gained from it and that it is counterproductive, not productive. The point, though, is that the Bushies figured they could not win a fight over torture and so, as they commonly do, they chose secrecy.

Secrecy was only the more important for another, intimately related reason as well. You see, in Iraq the Bushies screwed up from the get-go, from the first thus-far-still-phony claim of weapons of mass destruction (as everyone now knows). One of their major screw ups was the truly stupid belief that you can change a country -- and a whole area of the world, no less -- on the cheap (let alone at all). You can do it with only about 125,000 men they said, and for “only” about 50 or 60 billion dollars. Does General Shinseki say the aftermath will require a force of 200,000 men or more? Get rid of him. Does Larry Lindsey say the cost will be 100 billion or 200 billion dollars? Get rid of him too.

But then came the reality of a long planned insurgency, with the Bushies’ stupid plans all falling apart. The Bushies were, of course, desperate to stop the insurgency in Iraq, and to thereby stop the encouragement the insurgency was providing to the more general growth of terrorism elsewhere. To stop this insurgency produced by the Bushies’ dumb policies, and to do so without admitting that the policies were stupid, torture was thought necessary in order to get information. So torture there would be. But not to talk about it and not to release memos about it. God forbid. Because once the torture became known, Congress and the public would demand an end to it. And when it ended, there would be even less hope of redeeming the Bushies’ stupid policies in Iraq, which would continue to career along a path that was becoming ever more disastrous for both Iraq and the U.S. So mum was the word. Until Abu Ghraib broke.

But Gentle Jay Bybee got his reward for playing along with the Bushies. He was nominated to be a federal judge on the Ninth Circuit Court of Appeals, a prestigious, life tenured job. True, when he was nominated, effete liberals objected because he had said that Congress had no power to stop violence against women, that election of Senators by the people rather than by State legislatures was a mistake, that the first amendment should not have been used to limit states’ infringements on liberty, that Congress’ power to limit the President is itself limited. He appeared hostile to gays, and had supported Bob Jones University’s right to engage in religious discrimination. But not to worry. His nomination ultimately managed to overcome all this.

It also managed to overcome another point. Democratic senators wanted to know what advice he had given for the war on terrorism. Gentle Jay refused to tell them -- he wouldn’t even tell them whether he had given advice. And the Government would not provide the memos his office had written. The reason for all this secrecy? -- the alleged need to be able to give the president confidential advice. So, once again, secrecy -- the first refuge of all tyrants -- was used to hide misconduct, and Gentle Jay got himself a lifetime job as a federal judge. Today, Democratic Senator Leahy says important information was withheld, and some Democratic types are threatening various actions, perhaps even actions involving Bush. And at least one lawyer for an Abu Ghraib defendant has said he wants to show the whole abuse scandal goes right up to Bush -- as it surely does. But Gentle Jay is still not talking. As for his sidekick, John Yoo, he did not land a lifetime federal job, but is only back teaching at Berkeley, amidst a gang of effete liberals. But like Gentle Jay, he too is not talking because, he says, ethics preclude it.

One can only hope that Leahy and company do something about all this. An investigation, a special counsel, anything that is legal, that is ethical and that works. Impeachable criminality has occurred, it goes to the very highest levels, and it should not be gotten away with. Gentle Jay should be forced to resign or face impeachment -- imagine, we presently have a federal court of appeals judge who blithely, and, as his once-fellow academics say, incompetently justified torture and the commander-in-chief’s right to be a dictator. And then withheld this (incriminating?) information from the Senate so that he could become a judge. As for John Yoo, Berkeley should be ashamed of itself for having him on its law faculty. Would that there was such an animal as academic impeachment --of a non-purely intellectual kind.