Dispatches from the Creation Wars

Bybee’s Private Regrets

The Washington Post quotes friends of Judge Jay Bybee, one of the authors of various memos narrowly defining torture and justifying its use while working at the Office of Legal Counsel, saying that he has privately expressed regret over those memos. Speaking of a gathering Bybee had with his former law clerks:

Five years along in his new life as a federal judge, Bybee gathered the lawyers and their dates for a reunion, telling them he was proud of the legal work they had together produced.

And then, according to two of his guests, Bybee added that he wished he could say the same about his previous position.


More details:

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.”…

Still, in the years since the original Bybee memo was made public, his misgivings appeared evident to some in his immediate circle.

“On the primary memo, that legitimated and defined torture, he just felt it got away from him,” said the fellow scholar. “What I understand that to mean is, any lawyer, when he or she is writing about something very complicated, very layered, sometimes you can get it all out there and if you’re not careful, you end up in a place you never intended to go. I think for someone like Jay, who’s a formalist and a textualist, that’s a particular danger.”

Tuan Samahon, a former clerk who recalled Bybee’s remarks at the reunion dinner, said in an e-mail that the judge defended the legal reasoning behind the memos but not the policy decision. Bybee was disappointed by what was done to prisoners, saying that “the spirit of liberty has left the republic,” Samahon said.

“Jay would be the sort of lawyer who would say, ‘Look, I’ll give you the legal advice, but it’s up to someone else to make the policy decision whether you implement it,’ ” said Randall Guynn, who roomed with Bybee at Brigham Young University and remains close.

Bybee has remained silent on the matter, unlike Yoo, who has continually defended the memos he wrote and attacked the Obama administration for questioning them. It’s time for him to take a public stand. If he regrets what he did, say so publicly. If he was pressured by the White House to provide legal cover for what he knows to be illegal and immoral, say so publicly. Private regrets simply are not enough.