Jay Bybee regrets. . .

I have said in the past (see here for example) that I disagree with aspects of “the Bybee memo” on torture, notably its definition of torture and, to some extent, its sweeping concept of executive power. But lawyers disagree about legal issues all the time, and it never bothered me that Jay Bybee was confirmed as a judge on the U.S. Court of Appeals for the Ninth Circuit. In fact, what bothered is that Jim Haynes who, as General Counsel at the Defense Department relied on the Bybee memos, was not confirmed as a judge on the Fourth Circuit.

Today’s Washington Post reports, however, that Bybee has “private regrets” (no longer private, actually) about his memos. Bybee did not talk to the Post; the report is based on the comments of friends (with friends like these. . .). One should not conclude (1) that the comments of the friends reflect Bybee’s thinking or (2) that the Post is fairly presenting those comments.

Moreover, the story is unclear, and indeed contradictory, about what it is Bybee regrets. According to one source, Bybee still defends the legal reasoning behind the memos but not the policy decision. That is a perfectly respectable position. Bybee was only asked a legal question and he answered it. He did not advise the administration to use any interrogation technique, and might well believe (as many do) that the techniques he said could be used should not have been used.

Other sources say they have heard Bybee express regret about the “contents” of the memo. This statement is ambiguous. Does Bybee disagree with the legal conclusions he reached or does he just think the reasoning could have been explained better? One source says Bybee feels the analysis “got away from him.” The source interprets this to mean that he got lost in the forest and “end[ed] up in a place he never intended to go.”

If this, or something like this, happened, it is quite unacceptable. Bybee, I assume, was operating under time constraints and other pressures. But his obligation was to provide answers he could stand behind and to not let these crticial issues “get away from him.” If he did, then he deserves the criticism he is receiving, though not criminal prosecution.

But, as I said, the Post’s sources are in conflict about whether Bybee actually thinks the legal reasoning in his memos was correct. Let’s not assume the worst based on a Washington Post story.

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