One of the minor mysteries troubling lawyers who care about such things was why the Bybee memo was such a lousy piece of craft. The OLC is traditionally drawn from the elite of the profession, even if its head sometimes has to pass an ideological litmus test. One would expect an advisory memo on a major issue like torture to at least present both sides. If the key to a major part of the argument is an expansive view of separation of powers that has in the past been championed by Justice Scalia but has been repeatedly rejected by the Supreme Court as a whole (or, if you prefer, never adopted), one would expect to see a caveat or two somewhere as to the operational realities. But, just like there is a chilling absence of morality, there's also this puzzling disconnect with the state of the law (as I've also noted elsewhere, the crim law types have similar complaints).
One plausible explanation for these mysteries appears now on the New York Times web site and will presumably be in tomorrow's paper, Aides Say Memo Backed Coercion for Qaeda Cases: the Bybee memo was not written in a vacuum, nor (perhaps) due to some order from on high motivated by a desire to squeeze more info from detainees who were not coughing up the locations of weapons of mass destruction. No, what the NYT suggests is that the memo was written after the CIA had already done something — presumably excessive — to one of the detainees. Thus, it seems likely the White House was scrambling to find some legal cover for abuses that had already happened:
The legal memo was prepared after an internal debate within the government about the methods used to extract information from Abu Zubaydah, one of Osama bin Laden's top aides, after his capture in April 2002, the officials said. The memo provided a legal basis for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, the chief architect of the attacks of Sept. 11, 2001, who was captured in early 2003.
…
It has been known that the methods used on Mr. Zubaydah and other senior Qaeda operatives stirred controversy in government counterterrorism circles. But until now, it was not been clear that the memo was written in response to the Central Intelligence Agency's efforts to extract information from high-ranking Qaeda suspects, and was unrelated to questions about handling detainees at Guantánamo Bay or in Iraq.
…
The full extent of the tactics used during his interrogation are still not publicly known, but the methods provoked controversy within the C.I.A. and prompted concerns about whether agency employees might be held liable for violating the federal torture law.
Does the provision of this context mean that the attacks on Bybee have been unfair? No. Being asked to come up with justifications for the CIA's behavior might mean that he was in a much tougher spot than if he was just engaging in a theoretical exercise, but his moral and professional obligations — and the need to provide quality, balanced advice not a one-sided and ultimately unpersuasive screed — were every bit as strong if not stronger.
Furthermore, and perhaps because of this memo (the NYT does not claim direct causation), whatever happened to Abu Zubaydah was not unique:
It is known that some Qaeda leaders were deprived of sleep and food and were threatened with beatings. In one instance a gun was waved near a prisoner, and in another a noose was hung close to a detainee.
Mr. Mohammed was “waterboarded” — strapped to a board and immersed in water — a technique used to make the subject believe that he might be drowned, officials said.
In the end, administration officials considered Mr. Zubaydah's interrogation an example of the successful use of harsh interrogation techniques.
Some things just are not legal, and you have to say so.
Some Background:
Update: Jack Balkin on the role of the government lawyer.
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