Jack Balkin Thumps the Pulpit

Balkinization today:

The torture memos, I firmly believe, show the corrupting influence of power, and the desire to advance one's political career by casting aside professional pride and telling one's superiors that they can do whatever they like, no matter how base or unjust it may be. In the Bush Administration, ambition and syncophancy have trimphed over professionalism, sound judgement and moral seriousness. The corruptions of power have brought us to a sorry spectacle in which intelligent lawyers, many with impeccable credentials, have argued vigorously for an Imperial Presidency that is above the law and for the right to abuse and torture fellow human beings. This failure of moral imagination and professional scruple makes the participants unfit for judicial office, and no one should hesitate in saying so. Put another way, if the torture memos have made these very bright and talented lawyers radioactive, it couldn't have happened to a nicer bunch of guys.

It's probably too late to do anything about Bybee, alas. There seems to be a pretty strong tradition that after-confirmation discoveries of anything that isn't prosecuted don't count. See, e.g., Rehnquist .

On balance, and even though I don't like how it works here, I regret that I think this political stare decisis may be a good rule—do we want every litigant, or disappointed litigant doing oppo research on the judge? Furthermore, I think it unlikely that non-criminal pre-confirmation misdeeds meet the high bar set by the Constitutional impeachment requirement of “High crimes and misdemeanors.” (Perjury during a confirmation hearing would count because that's criminal, but there's no reason to believe Bybee would lie about it had anyone asked.)

I think that during his confirmation hearings, Bybee legitimately claimed that the content of his legal advice were covered by privilege. But I think his personal views were fair game. Unfortunately he dodged the few questions about this stuff during his confirmation hearings.

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5 Responses to Jack Balkin Thumps the Pulpit

  1. Pingback: Paperwight's Fair Shot

  2. Evelyn Blaine says:

    Just for clarification — am I right in thinking that, even after the decisions that came out of the Starr investigation, government lawyers are still thought to be bound to a general attorney-client privilege, although this may be overridden in cases where the lawyer has information about a criminal act with much more ease than would be the case for private attorneys? (My knowledge of this is limited to an article I read on the subject in connection with the Plame case: http://writ.news.findlaw.com/dean/20040604.html)

    Which would make Bybee’s evasions at least legally grounded (unlike his reasoning in the memo itself). I’m leaving aside the issue of executive privilege, since — to be quite frank — my views on that subject are a little out of the mainstream. (Specifically, I think there’s zero constitutional and virtually no practical justification for it and the entire body of practice that has sprung up around it should be put to the torch.)

  3. Newsweek reported that the memo was written by Yoo, even though it’s signed by Bybee:


    Can anybody confirm this, or does anyone know what the basis for the Newsweek assertion is?

  4. I persist in thinking that Gonzales, Addington, Haynes, Bybee and Yoo (among others) are all guilty of at least aiding and abetting war crimes here, and I would be very interested to hear your thoughts on that Michael.

    My belief is that there is ample probable cause for indicting them pursuant to 18 U.S.C. § 371 (Conspiracy) and 18 U.S.C. § 2441 (War crimes). As I recently stated to a correspondent:

    Yoo is a law professor at a very fine school. Gonzales is former Texas Supreme Court Judge. Haynes has been nominated to the 4th Circuit, Bybee sits on the 9th. They have all had two and a half years to show some sign of an honest inclination to obey the laws they swore to uphold, and in all that time they have done absolutely nothing but trot out one lame excuse, fallacy, and fraud after another.

    In order for me to harbor a reasonable doubt as to their guilt I would have to believe that a member of the bar could read Geneva Common Article 1 and 18 USC 2441 and make an honest mistake about their meaning, and I don’t see how an average 1L could be confused about that: it’s a no-brainer.

    Further: the elaborately extreme sophistry of their arguments makes it clear that their only intent was to nullify and violate Geneva. It would be a stretch to think any one of them were so incompetent as to misunderstand those laws, but all of them?

    The only person involved in this that I could believe was incompetent to understand the basic meaning of those laws is George W. Bush.

    Their agenda is clear, and it was and is to enable, justify, and conceal violations of the Geneva Conventions. There are some possible defenses, but possible defenses are not exactly a bar to an indictment, and are ultimately for a jury to decide.

    I have a working list of supporting authorities linked here:


    In particular note Evan J. Wallach, Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander?, Army Law., November 2003, at 18, 42-47.

    See also:

    Jordan J. Paust, The Common Plan to Violate the Geneva Conventions, JURST (2004):


    Douglas Linder, The Justice Trial, United States of America v. Alstötter et al. (“The Justice Case”) 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948):


    Charter of the International Military Tribunal, 82 U.N.T.S. 279 (London, 1945) (“IMT”), arts. 6-8:


  5. Joe says:

    The confirmation hearings of Judge Bybee had an Estrada tinge to them … important matters that clearly led to his nomination apparently are off limits when the Senate examines his nomination pursuant to their “advise and consent” powers. The article cited is also of interest as to the last sentence in which Bybee suggests expected results do not matter when you advise your client even if he is the President of the U.S. There seems to be a degree of moral bankruptcy to this that calls to mind Prof. Balkin’s comments.


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