Torture Memos - Responses To The Torture Memos - Criticism

Criticism

The August 1, 2002, memo has been widely criticized, including within the Bush administration. Colin Powell, the Secretary of State, strongly opposed the invalidation of the Geneva Conventions, while Alberto Mora, General Counsel of the U.S. Navy, campaigned internally against what he saw as the "catastrophically poor legal reasoning" and dangerous extremism of Yoo's legal opinions.

In 2009 Philip D. Zelikow, the former State Department legal adviser to Condoleezza Rice, testified to the Senate Judiciary Committee,

It seemed to me that the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution.

Zelikow alleged that Bush administration officials not only ignored his memos on the subject, but attempted to destroy them.

In June 2004, the memo was rescinded by Jack Goldsmith, who had been appointed in October 2003 to lead the OLC. He had earlier advised agencies not to follow the three August 2002 memos. He called the memo "deeply flawed" and "sloppily reasoned". In discussing the issues in 2007, after publishing his memoir about his service in the Bush administration, Goldsmith asserted that he "hadn't determined the underlying techniques were illegal". He continues, "I wasn't in the position to make an independent ruling on the other techniques. I certainly didn't think they were unlawful, but I couldn't get an opinion that they were lawful either."

In 2004 the journalist Robert Scheer asked if Bybee's appointment to a lifetime job as a federal judge was reward for writing the torture memo. In his column in the Los Angeles Times Scheer wrote, "Was it as a reward for such bold legal thinking that only months later Bybee was appointed to one of the top judicial benches in the country?" He wrote, "The Bybee memo is not some oddball exercise in moral relativism but instead provides the most coherent explanation of how this Bush administration came to believe that to assure freedom and security at home and abroad, it should ape the tactics of brutal dictators."

In 2005 testimony to Congress, Harold Hongju Koh, dean of the Yale Law School and former Assistant Secretary for Human Rights in the Bill Clinton administration, called the 1 August 2002 memo "perhaps the most clearly erroneous legal opinion I have ever read", which "grossly overreads the president's constitutional power". John Dean, the former Nixon White House Counsel involved in the Watergate scandal, concluded in 2005 that the memo was is tantamount to evidence of a war crime. He noted that, after the memo was leaked, "the White House hung Judge Bybee out to dry."

On March 9, 2006, after emerging from a closed talk at Harvard Law School sponsored by the student chapter of the Federalist Society, a legal organization, Bybee was confronted by around thirty-five protesters.

Douglas Kmiec, a law professor at Pepperdine University, has stated that ultimately the memo "caused no long-term legal damage because it was redrafted and is not legally binding".

In March 2009 Baltasar Garzón, a Spanish judge who has considered international war crimes charges against other high-profile figures, considered whether to allow charges to be filed against Bybee and five other former officials of the George W. Bush administration. On April 17, 2009, Spain's Attorney General Cándido Conde-Pumpido issued a non-binding recommendation against the investigation.

On April 19, 2009 an editorial in The New York Times said that Bybee is "unfit for a job that requires legal judgment and a respect for the Constitution" and called for Bybee's impeachment from the federal bench. Friends of Bybee have indicated that the jurist privately regrets the controversial memo's inadequacies and growing notoriety. In response to the criticism, Bybee told The New York Times that his signing of the controversial opinions was "based on our good-faith analysis of the law". In addressing reports of his regrets, he said in the same article that he would have done some things differently, such as clarifying and sharpening the analysis of some of his answers, to help the public better understand in retrospect the basis for his conclusions.

In an April 25, 2009, Washington Post article, Patrick J. Leahy (D-VT), chairman of the Senate Judiciary Committee, is quoted: "If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," adding that "the decent and honorable thing for him to do would be to resign ". Four days later, Senator Leahy sent a letter to Judge Jay S. Bybee inviting him to testify before the Judiciary Committee in connection with his role in writing legal memoranda authorizing the use of harsh interrogation techniques while serving as the Assistant Attorney General of the Office of Legal Counsel (OLC). Bybee "declined to respond" to the letter".

Judge Betty Fletcher, a member of the United States Court of Appeals for the Ninth Circuit for 30 years, is quoted from a statement regarding Bybee:

He is a moderate conservative, very bright and always attentive to the record and the applicable law. I have not talked to other judges about his memo on torture, but to me it seems completely out of character and inexplicable that he would have signed such a document.