What a revelation to learn that the Justice Department lawyer who wrote the infamous memo in effect defending torture is now a U.S. 9th Circuit Court of Appeals judge. It tells you all you need to know about the sort of conservative to whom George W. Bush is turning in his attempt to pack the federal courts.
Conservatives once were identified with protecting the rights of the individual against the unbridled power of government, but this is not your grandfather’s conservatism. The current brand running things in D.C. holds that the commander in chief is above all law and that the ends always justify the means. This has paved the way for the increasingly well-documented and systematic use of torture in an ad hoc gulag archipelago for those detained anywhere in the world under the overly broad rubric of the “war on terror.”
Those still clinging to the hopeful notion that photographic evidence of beatings, dead detainees, sexual degradation and threats of electric shock were all the work of a few twisted reservists aren’t reading the newspapers. Press accounts are following the paper trail up the chain of command to a heated and lengthy debate inside the White House about how much cruelty constitutes torture.
On Sunday, the Washington Post published on its website an internal White House memo from Aug. 1, 2002, signed by then-Assistant Atty. Gen. Jay S. Bybee, which argued darkly that torturing Al Qaeda captives “may be justified” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted under President Bush. The memo then continued for 50 pages to make the case for the use of torture.
Was it as a reward for such bold legal thinking that only months later Bybee was appointed to one of the top judicial benches in the country? Perhaps he was anointed for his law journal articles bashing Roe vs. Wade and legal protection for homosexuals, or for his innovative attack on the 17th Amendment to the Constitution, which provides for the popular election of U.S. senators. But it’s hard to shake the notion that his memo to Counsel to the President Alberto Gonzales established Bybee’s hard-line credentials for an administration that has no use for moderation in any form.
This president has turned his war on terror into an excuse for undermining due process and bypassing Congress. For Bybee and his ideologue cohorts, however, the American president is now more akin to a king, and legal or moral restraints are simply problems that can be overcome later, if anybody bothers to question the tactics: “Finally, even if an interrogation method might violate Section 2340A [of the U.S. Torture Convention passed in 1994], necessity or self-defense could provide justification that would eliminate any criminal liability.”
In fact, though, this was an argument of last resort for Bybee, whose definition of torture “covers only extreme acts ... where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure.... Because the acts inflicting torture are extreme, there is [a] significant range of acts that, though they might constitute cruel, inhuman or degrading treatment or punishment, fail to rise to the level of torture.”
Bybee’s generous standard should bring comfort to the totalitarian governments that find the brutal treatment of prisoners a handy tool in retaining power or fighting wars. Even Saddam Hussein, who always faced the threat of assassination and terrorism from foreign and domestic rivals, can now offer in his defense Bybee’s memo that his actions were justifiable, on the grounds of “necessity or self-defense.”
When confronted by the Democrats on the Senate Judiciary Committee with the content of Bybee’s torture defense, Atty. Gen. John Ashcroft responded that the memo did not guide the administration. Yet, the Bybee memo was clearly the basis for the working group report on detainee interrogations presented to Defense Secretary Donald H. Rumsfeld a year later. And if Bybee’s work was rejected as reprehensible, why was he rewarded -- with Ashcroft’s deepest blessings -- with a lifetime appointment on the judicial bench only one level below the Supreme Court?
Frighteningly, the Bybee memo is not some oddball exercise in moral relativism but instead provides the most coherent explanation of how this administration came to believe that to assure freedom and security at home and abroad, it should ape the tactics of brutal dictators.
Robert Scheer writes a weekly column for The Times and is coauthor of “The Five Biggest Lies Bush Told Us About Iraq” (Seven Stories Press/Akashic Books, 2003).