Aside from the release of a couple sets of Bush administration legal memos that justified the use of torture, I have made no secret of my displeasure over how President Obama has handled this sordid mess. In fact, it is the signal failure of the first 100 days of his administration.
But the more we find out about how broad based and extraordinarily repugnant the Bush torture regime was and the more that the Obama White House asserts no one will be held responsible, a huge political and moral disconnect is emerging:
Attorney General Eric Holder's pronouncements about the government's recommitment to the "rule of law" and his boss's pronouncements about the need for "reflection and not retribution" are fundamentally at odds. The Obama administration cannot have it both ways, and the case of torture enabler Jay Bybee has brought that into sharp focus.
Key Bush administration players knew that the torture regime pushed by Vice President Cheney was morally and legally wrong. This is why they sought to first keep it secret and then give it legal cover by going to the Justice Department's Office of Legal Counsel where Bybee, as well as Stephen Bradbury and John Yoo, reverse engineered memos justifying the most vile forms of interrogation after the fact.
When the existence of the memos and their shabby justifications became known, Michael Mukasey, who in retrospect arguably was even worse than Alberto Gonzalez as attorney general because he refused to undo the harm that Gonzo had wrought, argued that lawyers cannot commit crimes when they act under the orders of a president -- and that a president cannot commit a crime when he acts under advice of lawyers.
Bush and Cheney are probably out of the reach of any U.S.-based tribunal and I have somewhat less problem with the CIA interrogators skating since they did, after all, rely on the OLC opinions no matter how perniciously self-serving they were. But Mukasey's legal flimflammery notwithstanding, Bybee was a knowing enabler and as such is unfit to wear the black bathrobe of a U.S. Circuit Court judge.
While Bradbury and Yoo also have earned their day in the dock, Bybee must be impeached or forced to resign from the federal bench because he has proven himself in word and deed to be unfit to judge others.
Is Bybee a fall guy like Scooter Libby was? To an extent that is true, but he should not be forgiven his ill deeds any more than Cheney's chief aide should have been forgiven perjuring himself and obstructing of justice.
Then there is the reality that once the Bush administration was caught out on torture -- initially with the Abu Ghraib prison scandal -- it sought to blame a few "rogue" enlisted personnel whereas the record shows that the torture regime operated from the top down and not the other way around.
Whether the Obama administration leans on Bybee will have far more bearing than a mere handshake on whether the young president is tough enough to see his way out of the dilemma he alone has created by doing the right thing while understanding that doing so will cost valuable political capital.
Obama's statement today that he is leaving open the door to prosecuting the torture memo authors as well as creating a bipartisan commission that would investigate Bush officials is an acknowledgment that he may not be able to have it both ways, but then the notion of a bipartisan panel is something of a dry well since getting Republican support is going to be all but impossible.
In any event, how hard the White House will push will speak volumes about whether the winds of change that blew so mightily on Inauguration Day were an illusion.PHOTOS (From top): One of Damon Winter's 2009 Pulitzer Prize
winning photos for The New York Times; Bybee; Obama
and CIA Director Panetta; Bradbury; Mukasey and Bush; Yoo.