Bybee's "Good Faith," Ctd.

A reader writes:

From an attorney's perspective, your post was right on the money. I read the memos, and my immediate reaction was: "if I had submitted this kind of analysis in law school to my first-year legal research and writing professor, I would have been given a failing grade." I couldn't believe how thin the analysis was, especially given the significance of the issues involved and the credentials of the attorneys who would have researched and drafted the memos. There were sparse citations to authority and there was little, if any, credit given to potential counterarguments or other pitfalls to the proposed conclusion. Attorneys have an obligation to point out such issues in memoranda of this type.


On a daily basis, junior litigators in big firms churn out memoranda on far more mundane issues than the torture question, which memos are far more thoroughly researched and well thought out. Also, in my current line of work, if I drafted a memo like this but failed to caution my boss about the Texas case you mentioned, I would get bawled out big time if it came back to bite him later. These guys are supposed to be among the best legal minds in the country. Besides bad faith, I don't see any potential explanation for such shoddy work quality.

Me neither. One of the great benefits of actually reading the memos is that the transparent bad faith in which they were crafted under orders from above is unmistakable. The fundamental point is that Cheney decided that torture would be his central weapon in fighting Jihadist terrorism from September 2001 onward. Why else pick Gitmo? Why else remove Geneva protections from the get-go? Why else study torture techniques immediately?

And, being a very smart operator, Cheney also knew that all this was illegal.

He does not believe that the president of the US is subject to the rule of law in conducting military operations but was canny enough to know he needed a legal paper trail to cover his tracks and provide transparently shallow rationales for war crimes. He got what he wanted from a pliant legal bureaucracy already indoctrinated in the notion that the executive can never be checked in wartime.

Once you see the entire period and all its decisions as part of a concerted, planned attempt to violate the Geneva Conventions, it all makes sense. No other rationale works. The torture was not desperately authorized when all else failed. It was planned meticulously in advance.