In a meeting of the Senate Judiciary Committee yesterday, Senator Richard Durbin of Illinois noted a small piece of history that is nevertheless important for understanding the path history has taken. Regarding the confirmation hearing of Jay Bybee in 2001, Dick Durbin noted:
We saw what happened when Mr. Bybee was head of the Office of Legal Counsel. I might remind my colleagues that in 2001, this committee held a hearing on the nomination of Jay Bybee to head this office. One member of the committee, Senator Kohl, one, was present at the hearing. Mr. Bybee was asked six questions. Six questions. Then unanimously confirmed.
“All that is needed for the triumph of evil is for good men to do nothing.” So said somebody or other in history, unattended now because the source is lost. When good men, or good women, or even mediocre men and women absent themselves, they make it more likely for bad decisions to proceed unchecked. After his confirmation to lead the OLC, Jay Bybee wrote legal memos that declared federal laws against torture to be inapplicable because to outlaw torture would negate Bybee’s imagined power of the president as Commander-in-Chief to do whatever he sees fit to protect the country. Bybee further proclaimed that, despite clear standards to the contrary in federal law and treaty agreements, in any case no act to be torture unless it produced sensations of major organ failure or death. Bybee’s legal memos led to the erection of a system of torture in which doctors participated in order to keep detainees on the right side of the border between life and death and, among other things, in which just one man was drowned 183 times.
How does torture happen? Yes, the Bush administration had to decide to engage in it. But the Congress also had to decide not to watch, not to ask, not to trouble about it. Indeed, most of the Senators tasked with reviewing Bush’s nominees decided not even to show up.