Quid Pro Quo

By Scott Horton
Harper's

A critical question in examining the criminal culpability of the torture memo writers goes to what lawyers call mens rea or “guilty mind.” With respect to a joint criminal enterprise to torture, the requisite mens rea is simple: the perpetrators must have the intention to introduce torture. John Yoo and Jay Bybee have repeatedly stated that they believe their advice was and is correct, that none of the techniques they counseled or approved were torture, and that therefore they are innocent. They continue to adhere to this position, even in recent interviews, for a simple reason: it would be vital to their defense in the event of a future criminal prosecution.

But the facts developed by the OPR report strongly support another approach to the mens rea problem. There is strong evidence to show that each of the key actors—Jay Bybee, John Yoo, and Steven Bradbury—had the same compelling motivation in rendering false legal advice. Each sought a specific high office that the recipients of the memos were able to give to them.

Jay Bybee, while working in the White House, advised his boss Alberto Gonzales that he wanted a judicial nomination. The Washington Post reports:

Bybee’s friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, [Randall] Guynn said, was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, “Would you be willing to take a position at the OLC first?” Guynn said. Being unable to answer for what followed is “very frustrating,” said Guynn, who spoke to Bybee before agreeing to be interviewed.

(More here.)