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Originally Posted by Tex
Nonsense. Setting aside the fact that there is no uniform agreement on what constitutes torture, the whole point of the memos was for Bybee to give his opinion on what he thought was legal. For a prosecutor to show malfeasance here, he'd have to prove Bybee was actually advocating breaking the law.
I've read some conservative commentators who think Bybee made a poor argument. That's fair game. But to say he committed conspiracy to break the law is really silly.
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You saying it is silly doesn't make it silly.
Let's take an extreme hypothetical: let's say Bybee wrote a memo that said it is ok for the president to commit murder. It clearly is not ok, but Bybee wrote a document purporting to give him legal justification to commit murder. That would certainly be conspiracy to commit murder (he wrote the document knowing it would be relied upon and knowing what he wrote wasn't an accurate statement of the law).
Now back to this scenario: Bybee knew torture is illegal (he mentions that fact in his memo). His employer (the DOJ) had prosecuted many people in the past (successfully) for violating that law by waterboarding American citizens. Waterboarding has been declared torture by the US government multiple times in the past and has prosecuted people who waterboarded others. Now Bybee wants to claim he didn't know it really was torture or that the position his employer took routinely in the past was that it was torture? He knew it would be relied upon (that is the point of a legal memo), and knew (or should have known) that it was illegal. Conspiracy to commit torture. It isn't a stretch at all.
Waters is exactly right when he says that is why Bybee is publicly claiming he really believed what he wrote. That is his only possible defense (if ignorance can be a defense to this form of conspiracy). What he is saying publicly doesn't square with what he is saying privately, by the way.