The harm that "good people" do.

Most of the harm in the world is done by good people, and not by accident, lapse, or omission," wrote Isabel Patterson in her 1943 essay The Humanitarian With the Guillotine. "It is the result of their deliberate actions, long persevered in, which they hold to be motivated by high ideals toward virtuous ends."

While all people are sinners, she continued, the percentage of "positively malignant, vicious, or depraved persons is necessarily small," since no society could endure if it were otherwise. "Therefore it is obvious that in periods when millions are slaughtered, when torture is practiced, starvation enforced, oppression made a policy ... it must be at the behest of very many good people, and even by their direct action, for what they consider a worthy object."

The case of Judge Jay S. Bybee, appointed in 2003 to the Ninth Circuit Court of Appeals, offers a sobering validation of Patterson's thesis.

On the day the Senate confirmed Bybee's nomination to the court, noted a profile in Meridian magazine, he "went home to celebrate in his usual unaffected way--by helping his kids with their homework and washing the dishes." Judge Bybee is a devoutly religious father of four, a Sunday school teacher for whom biblical allusions are the stuff of common conversation.

Law's role in society, Bybee believes, is to create a system of rules and standards addressing the fundamental question, "How are we going to conduct ourselves? "In his home," continued the profile, "a standard is, 'Be nice,' and a rule to encourage that is, 'Don't hit.'" Both his supporters and detractors regard Judge Bybee as a proponent of strict construction of the Constitution. Within the framework of constitutional law, he observes, "this is a government of the people, not a government of the leaders."

Given all of this, it's nothing less than remarkable that Judge Bybee, as Assistant Attorney General, was the author of the notorious August 1, 2002 "torture memorandum." The same gentle soul whose household rule is "don't hit" wrote that interrogation techniques "may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity" to meet the legal definition of torture. Only those acts that inflict pain "equivalent in intensity to ... serious physical injury, such as organ failure, impairment of bodily function, or even death" could be legally considered torture, Bybee decreed. Furthermore, enforcement of laws against torture "may be barred because enforcement of the statute would represent an unconstitutional infringement of the President's authority to conduct war," he continued.

Bybee claims to have discovered "an unenumerated 'executive power' [that] contrasts with the specific enumeration of the powers ... granted to Congress in Article I." The "sweeping grant" of power Bybee discovered applies to both the president and his designated agents, he contends. Thus military or intelligence personnel may commit acts of torture under "the President's Commander-in-Chief Power," which is apparently limitless. Accordingly, Bybee concludes, "the Department of Justice could not bring a criminal prosecution [against someone] who had acted pursuant to an exercise of the President's constitutional power.... If Congress could do so, it could control the President's authority through the manipulation of federal criminal law."

As a student of the Constitution, Bybee surely knows that while individual rights and powers reserved to the states are unenumerated, there are no unenumerated federal powers. Everything that any branch of the federal government can do is listed in the text of the Constitution. This is particularly true of the president's role as Commander-in-Chief, in which the executive's function is limited to that of supervising the conduct of a war declared by Congress. Further, it is Congress--not the president--that establishes regulations governing the armed forces, including laws against torture of detainees.

The essence of Bybee's memorandum was elegantly captured by one of King Henry's most dutiful subjects in Shakespeare's Henri' V: "[W]e know enough, if we know we are the king's subjects: if his cause be wrong, our obedience to the king wipes the crime of it out of us." The same sentiment was expressed more crudely at Nuremberg: "We were just following orders."

Whatever he may say privately in extolling a "government of the people" under the rule of law, Bybee's most lasting professional contribution may be his unabashed defense of fuhrerprinzip--the "Leader Principle." On February 3, former presidential Legal Counsel Alberto Gonzales, for whose benefit Bybee composed the memorandum, was confirmed attorney general. For the first time in our history, our nation has a chief law enforcement officer who, prior to his appointment, endorsed the notion that the president and his agents are above the law.

Judge Bybee is apparently a pious and decent man. He is much like tens of millions of Americans who have reacted to the Bush administration's embrace of torture and indefinite extra-judicial detention of terrorism suspects by (in Isabel Patterson's words) "giving approval, elaborating justifications, or else cloaking facts with silence, and discountenancing discussion."