Last Saturday, the Washington Post ran an article on Jay Bybee, a judge on the Ninth Circuit Court of Appeals and former assistant attorney general in the White House’s Office of Legal Counsel.  In his role as the Justice Department’s issuer of legal opinions, Bybee was responsible for the various “torture memoranda” and signed perhaps the most important letter, which approved, in a highly detailed and concrete manner, the use of “enhanced interrogation techniques” such as waterboarding.

The Post’s story is replete with quotes from unnamed friends and associates of Bybee who claim that he deeply regrets the memos.  Many commentators have rightly criticized the newspaper for granting anonymity to Bybee’s allies. The controversy over the article raises the question of the Post’s practices regarding sources.

In February 2004, the Washington Post published revised guidelines for using anonymous sources.  If you read the rules carefully, you will see a curious feature: there are no circumstances under which Post reporters and editors won’t grant anonymity to a source who demands it, if the information cannot be acquired elsewhere.  To be sure, the Post encourages its staff to attempt to persuade their sources to go on the record, but the ultimate upshot of the rules is quite clear.

If the Post’s rules were a trade secret, potential sources wouldn’t necessarily know what to expect when dealing with its journalists.  But the Post has shared its guidelines with the world.  Everyone, especially political and corporate elites who are savvy about dealing with journalists, can read them and know what to expect.  The long-term consequences of the Post’s policies are rather obvious: Potential sources have no reason to go on the record, since they know they can demand anonymity with impunity.  And when sources know they can speak off the record, the potential for public manipulation grows.

To illustrate these points, consider how the Post uses Bybee’s unnamed friends:

I’ve heard him express regret at the contents of the memo,” said a fellow legal scholar and longtime friend, who spoke on the condition of anonymity while offering remarks that might appear as “piling on.” “I’ve heard him express regret that the memo was misused. I’ve heard him express regret at the lack of context — of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety.”

The Post’s guidelines recommend that a reporter publicize the reason a source demands anonymity.  They do not, however, seem to require that the excuse make sense.  Far from “piling on,” Bybee’s unnamed buddy attempts to offer exculpatory information that Bybee himself is unwilling to state publicly.

The other quotes offer similar rationalizations of scandalous and possibly criminal behavior, including passive-voice formulations and appeals to good intentions:

On the primary memo, that legitimated and defined torture, he just felt it got away from him,” said the fellow scholar. “What I understand that to mean is, any lawyer, when he or she is writing about something very complicated, very layered, sometimes you can get it all out there and if you’re not careful, you end up in a place you never intended to go. I think for someone like Jay, who’s a formalist and a textualist, that’s a particular danger.” . . .

“I got the impression that he was not pleased with that bit of scholarship,” said an associate who asked not be identified sharing private conversations. “I don’t know that he ‘owned it.’ . . . The way he put it was: He was head of the OLC, and it was written, and he was not pleased with it.”

Who gains from the Post’s current policies?  Certainly Bybee and his allies.  Bybee can promote the notion that he regrets issuing the torture memos, without actually having to take that stance publicly.  If the Post, on the other hand, forced the sources go on the record, then it would have the necessary leverage to press Bybee to confirm or deny their allegations. Bybee would have ultimately been challenged either to endorse the story and explain himself, or to deny that he regrets his role in legalizing torture.

What about the Post’s readers?  Do they benefit?  Should it matter to them that Bybee has allegedly expressed regret to close friends and colleagues?  There’s a reason we prefer to keep private conversations private, as Bybee’s anonymous associate acknowledges: because they don’t reflect our public selves—what we chose to present to the world.  The story plays on this dichotomy, using private conversations to insinuate that Bybee, the public figure and judge, disapproves of what he did.  But Judge Bybee, of course, has done no such thing.  In the end, the story has nothing to say on whether Judge Bybee, the legal official who decides cases in the second-highest court in the land, shouldn’t be impeached.  But that’s the question that should really concern the Post’s readers.

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