F-Minus

A reader writes:

I am a lawyer who has practiced in Washington for more than 20 years.  I'm not sure I have the words to describe my reaction upon reading the Bybee memo, but it's fair to say it sent chills down my spine.

Lawyers are a cynical lot - it comes with the territory - but we all know that we have some basic obligations to our clients.  One of them is to tell them the truth, and not to conceal facts or law that the client should know about.  Even as you must represent your client zealously in disputes, you are required as an officer of the court not to hide adverse precedent.  And failing to tell your client about cases that run against the client's preferred result is a profound dereliction of duty.

In that context, the Bybee memo is a lawyer's worst nightmare.  It's an F-minus in law school, a zero on the bar exam, grounds for firing a first-year lawyer for an utter lack of understanding of what the practice of law requires. 

It is beyond conception to imagine a competent lawyer not even mentioning the cases when the U.S. prosecuted Japanese soldiers for waterboarding, let alone asserting that "there have been no prosecutions" under the specific statute.  It is nearly as inconceivable that the memo concludes that the insect technique, used against someone with a known insect phobia, would not cause "severe mental pain."

The only rational conclusion is that this memo is not, in fact, legal advice at all, at least not in the sense that a lawyer would use the term.  None of the people involved in writing are incompetent, after all, and none of them would have made these kinds of elementary mistakes in writing for a private client.  It was written purely to provide cover.  To do that, Bybee and the others involved in these memos knowingly subordinated their oaths as officers of the court and their ethical obligations to give carte blanche to the interrogators and those who directed them.  Perhaps they thought it was their patriotic duty; perhaps they thought that the "chatter" mentioned in the memo created an exigent circumstance that demanded that shortcuts be taken; or perhaps they expected that the memos never would see the light of day.  I doubt we'll ever really know.  Regardless of the reason, though, the dull legalese conceals an utter lack of respect for the law and for any constraints that the law might require.  And that's what's really chilling about it.