Legal Analysis or Torture Advocate

[KillerDog]

I'm very curious about the recent vitriol targeted at Jay Bybee. Bybee is a Justice on the 9th Cir., is a BYU Alum, was Dean of the UNLV, Boyd School of Law, and was one of the drafters of the memos on torture in the Bush administration. I'm surprised that people are angry at this man. He was asked to analyze what the legal limits restraining interrogation were. He provided that information and is now the target of political posturing by every GWB hater out there. Frankly, I just don't get it.

I have prepared a large number of papers analyzing legal positions. In those papers I make a concerted effort to refrain from passing any judgment on the actions that might result from my analysis. You might say I set the outer limits but don't instruct my clients how close to those limits they should go. In addition, I don't make a value judgment on whether the law is right or wrong. I only research it and determine what it is. Often, I think the law is wrong but I'm not paid to determine whether the law is right. I'm paid to tell people what the law is.

I think Judge Bybee was in the same position and is now taking flak for it. He was asked to make a determination on what US and international law identify as torture and whether certain techniques are torture. He, or those under his direction, produced four papers on the subject that describe the outer limits and set parameters BASED ON EXISTING LAW. He didn't and wasn't asked to determine whether that law was right or correct. He was asked to and did provide analysis on what that law was. Why should he be impeached for correctly identifying that various methods of torture did not cause permanent physical damage or death and therefore were not defined as torture by US and international law? I don't get the logic behind targeting him as a culprit or complicit in a decision that was not his to make.

[RobinFinderson]

Architects receive a basic level of training in structural engineering. Your average architect should be capable of doing the calculations for a simple house without consulting an engineer, and should be capable of talking shop with engineers on larger projects. But the architect specializes in design, and will typically leave the engineering to a trained specialist who accepts both compensation and liability for a project that is built to his/her engineering specifications. Consulting with an engineer is a way for architects to pass the liability for structural engineering on to persons who have made that their career.

Questions: How is Bybee not like a structural engineer in the services he rendered? Or is the extent of his liability exactly the precedent that needs to be determined through an impeachment trial?

[il Padrino Ute]

I think you answered your own question when you pointed out that the call for impeachment is being done by the GWB haters. Their hatred of Bush is so intense that they want blood - and if if can't be Bush's blood, they'll take whatever they can get.

[KillerDog]

Architects receive a basic level of training in structural engineering. Your average architect should be capable of doing the calculations for a simple house without consulting an engineer, and should be capable of talking shop with engineers on larger projects. But the architect specializes in design, and will typically leave the engineering to a trained specialist who accepts both compensation and liability for a project that is built to his/her engineering specifications. Consulting with an engineer is a way for architects to pass the liability for structural engineering on to persons who have made that their career.

Questions: How is Bybee not like a structural engineer in the services he rendered? Or is the extent of his liability exactly the precedent that needs to be determined through an impeachment trial?

I think we can use your structural engineer analysis and say that Judge Bybee is the structural engineer.

If an architect comes to a structural engineer and asks him whether a particular design can be built on the side of a mountain, the engineer can then use his knowledge to create plans that demonstrate that the house can be built. Ultimately though, he does not cast a value judgment on the plans. His responsibility is to make a design as to whether the house can be built. The developer must then decide whether it is worth the cost to build the house in that manner. He may decide to do so and then lose money when he goes to sell it. He may decide to do so and then not follow the plans. He may decide not to build because it is an inappropriate building for the community. Ultimately, the developer needs to decide whether the house should be built. The engineer is only responsible for whether the house could be built.

So, Judge Bybee can be just like the engineer but his liability in either circumstance is only a professional negligence liability. If his analysis was an accurate assessment of the law, he has no liability to anyone. If his analysis is faulty in that it doesn't represent the judicial precedent and statutes at the time of his analysis and his efforts to represent those items was negligent, then he has liability to his client. At no point is he liable for the actions that others performed.

[KillerDog]

I think you answered your own question when you pointed out that the call for impeachment is being done by the GWB haters. Their hatred of Bush is so intense that they want blood - and if if can't be Bush's blood, they'll take whatever they can get.

I think it is more obvious than that. I think some want to get a conservative justice off of the notoriously liberal 9th Circuit. It isn't hatred of Bush that is driving it. A desire to control the future is driving it.

[il Padrino Ute]

I think it is more obvious than that. I think some want to get a conservative justice off of the notoriously liberal 9th Circuit. It isn't hatred of Bush that is driving it. A desire to control the future is driving it.

That is definitely a more accurate assessment. The 9th Circuit certainly can't have any balance, as that would defeat it's purpose.

[RobinFinderson]

I think we can use your structural engineer analysis and say that Judge Bybee is the structural engineer.

If an architect comes to a structural engineer and asks him whether a particular design can be built on the side of a mountain, the engineer can then use his knowledge to create plans that demonstrate that the house can be built. Ultimately though, he does not cast a value judgment on the plans. His responsibility is to make a design as to whether the house can be built. The developer must then decide whether it is worth the cost to build the house in that manner. He may decide to do so and then lose money when he goes to sell it. He may decide to do so and then not follow the plans. He may decide not to build because it is an inappropriate building for the community. Ultimately, the developer needs to decide whether the house should be built. The engineer is only responsible for whether the house could be built.

So, Judge Bybee can be just like the engineer but his liability in either circumstance is only a professional negligence liability. If his analysis was an accurate assessment of the law, he has no liability to anyone. If his analysis is faulty in that it doesn't represent the judicial precedent and statutes at the time of his analysis and his efforts to represent those items was negligent, then he has liability to his client. At no point is he liable for the actions that others performed.

So if we are sticking with the structural engineer analogy then ultimately, if the use of the questionable interrogation tactics are deemed by a preponderance of legal authorities as constituting 'torture,' and if the Bush administration stayed within the legal parameters established by Bybee's expert legal opinion (for which he was handsomely compensated, and by which he established his credentials for appointment to the bench), then Bybee would be liable for steering the administration toward the use of torture.

Perhaps more importantly, doesn't it serve the public interest to establish precedent regarding this sort of legal counsel? Wouldn't Joe Q. Public be best served if the hazy question of executive steering were taken out of limbo? The public needs some way of holding the executive accountable for this kind of stuff, and if impeachment and/or prosecution of the executive prove to be too cumbersome, then isn't the public well served by having some form of accountability that actually works?

Poor Bybee might get a raw deal here, but doesn't that go with the territory? He knew what kind of mess he was getting into.

[falafel]

I'm very curious about the recent vitriol targeted at Jay Bybee. Bybee is a Justice on the 9th Cir., is a BYU Alum, was Dean of the UNLV, Boyd School of Law, and was one of the drafters of the memos on torture in the Bush administration. I'm surprised that people are angry at this man. He was asked to analyze what the legal limits restraining interrogation were. He provided that information and is now the target of political posturing by every GWB hater out there. Frankly, I just don't get it.

I wish I had an comment that brought something to this discussion, but since I don't, I'll just point out that Bybee was never Dean of the Boyd School of Law.

[Jeff Lebowski]

Architects receive a basic level of training in structural engineering. Your average architect should be capable of doing the calculations for a simple house without consulting an engineer, and should be capable of talking shop with engineers on larger projects. But the architect specializes in design, and will typically leave the engineering to a trained specialist who accepts both compensation and liability for a project that is built to his/her engineering specifications. Consulting with an engineer is a way for architects to pass the liability for structural engineering on to persons who have made that their career.

This is why the best architects get an undergraduate degree in structural engineering.

[KillerDog]

So if we are sticking with the structural engineer analogy then ultimately, if the use of the questionable interrogation tactics are deemed by a preponderance of legal authorities as constituting 'torture,' and if the Bush administration stayed within the legal parameters established by Bybee's expert legal opinion (for which he was handsomely compensated, and by which he established his credentials for appointment to the bench), then Bybee would be liable for steering the administration toward the use of torture.

Perhaps more importantly, doesn't it serve the public interest to establish precedent regarding this sort of legal counsel? Wouldn't Joe Q. Public be best served if the hazy question of executive steering were taken out of limbo? The public needs some way of holding the executive accountable for this kind of stuff, and if impeachment and/or prosecution of the executive prove to be too cumbersome, then isn't the public well served by having some form of accountability that actually works?

Poor Bybee might get a raw deal here, but doesn't that go with the territory? He knew what kind of mess he was getting into.

I think you have twisted the analogy again. If the legal authority changes to no longer support Bybee's analysis, that is like trying to sue a structural engineer for designingaccording to currently established stress levels and building codes and then suing him when they change. I don't see how that is a bargained for liability. His client, the administration, is like a developer suing an engineer for using the 1983 code in 1983 when the agreed on seismic stresses standard has changed. It isn't negligent to use 1983 code in 1983 and it isn't wrong to use 2001 law in 2001 even if the law changes in 2009.

It does not serve the public to hold a person liable for something they didn't have control over. Once again, if a developer gets a structural engineer's design and decides to build according to that design, the developer cannot then sue the structural engineer for the price of the build being too high. Bybee was asked to analyze whether certain techniques were torture under existing law. His analysis that is wasn't torture does not make him complicit in ordering the act. Further, a correct analysis that something is legal cannot be held improper and subject to sanction based on the fact that it is now illegal. No one is contesting the legal grounds Bybee established, they are contesting whether those grounds should be changed or whether the US should hold itself to a higher moral but non-legal standard.

At the end of the day, I believe this isn't about "torture" at all. I believe a group of people thought it politically valuable to label certain items as torture and sell that label. They did this despite the analysis that such things were not torture as torture was then defined. Now, some feel it is politically valuable to pull some slight of hand and try to act like someone's appropriate acts in their previous job can be twisted to try and get them out of their current job. In making this post and thinking more about it, I've decided this has nothing to do with Bybee's memos or with torture, this is all as I said before...about the 9th Circuit's frustration at having a conservative justice on the bench.

[KillerDog]

I wish I had an comment that brought something to this discussion, but since I don't, I'll just point out that Bybee was never Dean of the Boyd School of Law.

Sorry, I thought he was one of the deans. I knew he was a professor.

[RobinFinderson]

I think you have twisted the analogy again. If the legal authority changes to no longer support Bybee's analysis, that is like trying to sue a structural engineer for designingaccording to currently established stress levels and building codes and then suing him when they change. I don't see how that is a bargained for liability. His client, the administration, is like a developer suing an engineer for using the 1983 code in 1983 when the agreed on seismic stresses standard has changed. It isn't negligent to use 1983 code in 1983 and it isn't wrong to use 2001 law in 2001 even if the law changes in 2009.

It does not serve the public to hold a person liable for something they didn't have control over. Once again, if a developer gets a structural engineer's design and decides to build according to that design, the developer cannot then sue the structural engineer for the price of the build being too high. Bybee was asked to analyze whether certain techniques were torture under existing law. His analysis that is wasn't torture does not make him complicit in ordering the act. Further, a correct analysis that something is legal cannot be held improper and subject to sanction based on the fact that it is now illegal. No one is contesting the legal grounds Bybee established, they are contesting whether those grounds should be changed or whether the US should hold itself to a higher moral but non-legal standard.

You compare Bybee to a structural engineer who met the standard of care in 1983, but whose work would not meet the standard of care in the present. If this is the case, then I agree with you that Bybee should not be held accountable.

But isn't Bybee's case different than that? Isn't the real question whether or not Bybee's legal opinion met the standard of care at the time it was provided to the administration? If a preponderance of legal scholars agree that Bybee's recommendations included acts that constitute torture by the legal definitions at that time, then shouldn't Bybee be liable for not meeting the standard of care?

Whether some actors in this fox hunt are political agents themselves is secondary to the issue of what serves the public's best interests. Personally I think an impeachment trial for Bybee would be very useful.

[KillerDog]

But isn't Bybee's case different than that? Isn't the real question whether or not Bybee's legal opinion met the standard of care at the time it was provided to the administration? If a preponderance of legal scholars agree that Bybee's recommendations included acts that constitute torture by the legal definitions at that time, then shouldn't Bybee be liable for not meeting the standard of care?

To my knowledge, there isn't anyone asserting that the definitions of torture used by Bybee and his staff are incorrect. I don't believe anyone is challenging that. The Senator/congressman (I can't remember which) that is trying for an impeachment is stating that his analysis showed a disregard for the Constitution and its underlying principles. I understand that to be referring to the popular belief that waterboarding etc. is torture, not the legal standard that determined it was not. I don't believe anyone is challenging the quality of Bybee's research or the research of his staff. I think they are challenging the outcome of that research as being unbecoming of a member of the judiciary. I say it is evidence of the contrary. It shows a paramount regard for the law even if the law seems odd. That trait is much needed in the judiciary to balance those who have nothing but contempt for the law and the lawmakers.

If you are right about the facts and what it being challenged, I agree with your contention that the politics of the attacker are irrelevant. Under my understanding of the facts...it is relevant as the only explanation.

[UtahDan]

A lot of people don't understand what advocacy is. His client asked him to find legal support for a particular position and he did it. We're not talking about being complicit with the third reich here. This is an issue that there is great disagreement over. He fleshed out one side of the argument for his boss. This is what lawyers do. Whoop-dee-do.

[RobinFinderson]

To my knowledge, there isn't anyone asserting that the definitions of torture used by Bybee and his staff are incorrect. I don't believe anyone is challenging that. The Senator/congressman (I can't remember which) that is trying for an impeachment is stating that his analysis showed a disregard for the Constitution and its underlying principles. I understand that to be referring to the popular belief that waterboarding etc. is torture, not the legal standard that determined it was not. I don't believe anyone is challenging the quality of Bybee's research or the research of his staff. I think they are challenging the outcome of that research as being unbecoming of a member of the judiciary. I say it is evidence of the contrary. It shows a paramount regard for the law even if the law seems odd. That trait is much needed in the judiciary to balance those who have nothing but contempt for the law and the lawmakers.

If you are right about the facts and what it being challenged, I agree with your contention that the politics of the attacker are irrelevant. Under my understanding of the facts...it is relevant as the only explanation.

I don't think people are challenging whether or not Bybee used the correct definition of 'torture.' I thought they were arguing that Bybee took actions that were specifically not torture and figured out how to combine them or make them extreme enough that they would yield the same results as torture. When independently examined, the combined and/or extreme effect was deemed to be torture. So this is some gray territory. It should be clear to everyone that something as benign as playing music into a prisoner's cell could become an act of torture under certain conditions (decibel level, if it is part of a sleep deprivation program, etc). In such gray territory it seems useful to me (and by extension to the public) to determine whether Bybee's recommendations met the standard of care. Naturally a legal definition of torture isn't going to include every creative way that folks can figure out how to torture another being. This is why the standard of care in this situation is so important. Did Bybee recommend enhancing interrogation techniques in ways that, by themselves, would not constitute torture, but when taken collectively would in fact constitute torture in the opinion of most legal experts? If so, he failed to meet the standard of care for his profession, and should be liable.