Bybee stated “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.” Bybee likes sees little choice but to defend these memos despite their fundamental flaws on the law and critical facts. The memos clearly struggled to come to a conclusion that the torture program was lawful — at a time when Bybee was lobbying for the appointment to the Ninth Circuit from Attorney General Gonzales.
Bybee seems to ask for a bit of a constitutional Mulligan by adding “[t]he legal question was and is difficult. And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.” Notably, while Judge Bybee appears entirely unaware of the fact, but the prohibitions on torture specifically rule out such contextual justifications. For example, the Article 2 of the Convention Against Torture reads in part: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.” By the way, Article 2 also says in direct contradiction of arguments made by both Bush and Obama officials that “An order from a superior officer or a public authority may not be invoked as a justification of torture.”
Perhaps the most interesting a statement in the New York Times from Ninth Circuit Judge Betty Fletcher, who says “I have not talked to other judges about his memo on torture, but to me it seems completely out of character and inexplicable that he would have signed such a document.” That is quite a rebuke from a judicial colleague.
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