Jay Bybee

Truth or Dare

BARACK OBAMA is trying to split the difference on torture. He wants to move forward—no messy dwelling on the Bush-Cheney era—except that he’ll look backward if forced. There will be no independent commission to hold top-ranking officials politically accountable. But, if Attorney General Eric Holder wants to prosecute the Bush lawyers who defended the legality of waterboarding—John Yoo, Jay Bybee, and Steven Bradbury—well, the president won’t stand in the way. What does Obama gain by this approach?

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Jeffery Toobin says he is, complaining that unlike John Yoo, Bybee, an author of the torture memos who's now a judge on Ninth Circuit Court of Appeals, "has never answered questions about them, has never had to defend his conduct, has never endured anywhere near the amount of public scrutiny (and abuse) as Yoo." That's all true, and I'll certainly grant that Yoo has drawn more criticism than Bybee, probably because Yoo's a law prof at Berkeley and someone who's intent on maintaining a high profile, in contrast to Bybee, who's a federal judge (i.e.

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