Jay S. Bybee is described as a gentle soul. His legal scholarship was considered rigorous and his positions well reasoned and, though conservative, not dogmatic.
Even as he moved up easily through the elite echelons of government and academe, Bybee remained true to his nature, generous and kind.
So how could Bybee, now a judge on the U.S. Ninth Circuit Court of Appeals, sign his name to a legal document that seemed to sanction the use of torture?
This is the question now facing Bybee’s colleagues at UNLV’s Boyd School of Law, where he remains a senior fellow in constitutional law, and others who have worked with him. How he answers that question, if he ever decides to, will decide his legacy, those colleagues say.
A belief held around the world that the United States government tortured suspected terrorists, including many later found innocent of any crime, has damaged the nation’s reputation. And just as photos from Abu Ghraib prison and elsewhere will live on, so too do the words that provided the legal underpinning for what became known in the federal bureaucracy as “enhanced interrogation techniques.”
One legal memo in particular is known variously as the “torture memo” or the “Bybee memo” for the man who signed his name to it just a few months before then-President Bush nominated him to a seat on the appeals court, which is one step below the U.S. Supreme Court with jurisdiction over Nevada and eight other Western states.
The memo defined torture narrowly, arguing that only pain associated with “death, organ failure or serious impairment of body functions” constitutes torture.
Bybee signed memos such as this while he was head of the Justice Department’s Office of Legal Counsel, an obscure but powerful office usually comprising accomplished legal scholars who offer binding guidance to the government on a range of legal questions. Bybee, 56, held the post from 2001 until his nomination to the bench in early 2003. He left UNLV for the job but remains on the faculty there.
The government began repudiating the memos after Bybee left the OLC to join the court. The Justice Department’s Office of Professional Responsibility confirmed last year that it was investigating Bybee and other former OLC lawyers to determine whether the Bybee opinions were consistent with standards of professional conduct. A final report is expected soon.
Recent leaks to the national media suggest that a draft of the report sharply criticizes Bybee, as well his then-colleague John Yoo, who is widely thought to have been the driving intellectual force of the memos.
The final report could be forwarded to the state Bar Association for potential discipline, as well as Congress, which could impeach Bybee and conceivably remove him from the bench.
Both UNLV and the House Judiciary Committee said they are awaiting the report before deciding how to proceed. A spokesman for the House committee said impeachment has not been discussed and has not been ruled out.
The words “Bybee memos” are now yoked to the searing images of the treatment of detainees. Investigative reporter Mark Danner, in The New York Review of Books and The New York Times, wrote about the most recent revelations last week — a secret report of the International Committee of the Red Cross, including an interview with the notorious terrorist Abu Zubaydah.
“I woke up, naked, strapped to a bed, in a very white room,” Zubaydah said.
What followed were days, even weeks, of sleep deprivation, without solid food. He said he was constantly naked, placed in stressful positions, exposed to cold until he turned blue, waterboarded and occasionally beaten.
These accounts, which are consistent with many others, will forever be linked to Bybee — a fact that has UNLV professors and former law clerks struggling to square with the character of the man they know.
Who is Jay Bybee?
His former colleagues praise him effusively and agonize over his ordeal.
They are puzzled, however, by the memos. Several say the memos legitimize torture and authoritarianism and do so with sloppy legal reasoning.
Bybee consistently declines interview requests, and he did so, through a spokesman, when approached last week by the Las Vegas Sun.
“Judge Bybee has kept silent. I wish he would break that silence,” said Lynne Henderson, a UNLV colleague and friend until the two had a falling out after the publication of the memos.
“I wish we knew why he signed those memos, because he’s a good person,” Henderson said. “But it’s his choice.”
Tuan Samahon, now on the faculty at Boyd, was Bybee’s first law clerk, beginning in 2003. Just before he finished his clerkship, Bybee told Samahon about the memos in the days before they became public in 2004.
“It’s been personally difficult because I came at him first as a human being, a judge, and then secondarily through the memos,” Samahon said.
Samahon and Bybee are active members of the Church of Jesus Christ of Latter-day Saints. When Samahon’s wife gave birth to twins prematurely and the boys were in the neonatal intensive care unit, Bybee was with them. “He was very humane and kind to me,” Samahon said.
This view was echoed by others.
“I absolutely think the world of Jay Bybee,” said Jeffrey Stempel, another UNLV law professor.
“I think he’s one of the most wonderful human beings I’ve dealt with and one of the best faculty I’ve ever worked with.”
Yet some who know Bybee cannot reconcile the man they know with the memos, which many view as badly reasoned — and monstrous.
Chris Blakesley, a Boyd professor who has written extensively on the legal issues of the war on terrorism, knew Bybee when they were colleagues at Louisiana State University in the 1990s before Boyd was founded.
Blakesley said Bybee was a good colleague and solid scholar. But as for the memos: “Terrible. Just horrible.”
The critique is many-pronged.
First, critics attack the morality of any government lawyer who would so narrowly define torture as to all but encourage acts that had traditionally been defined as torture. As Blakesley noted, Americans have executed enemies for waterboarding American soldiers.
“Anybody who endorses torture of another human being is guilty of a high crime or misdemeanor,” Henderson said, using words of the kind often cited in articles of impeachment. “You don’t torture other human beings. Ever. Did we learn nothing from Nuremberg?”
Blakesley said sanctioning torture was “the horror of becoming what you claim to hate when you do what they do.”
An Aug. 1, 2002, memo also makes a broad claim of presidential authority in wartime, which critics, both conservative and liberal, have called a dangerous nudge toward monarchical government.
The memo sets forth a narrow definition of torture, but then also claims that Congress can’t tell the executive branch how to treat detainees.
It is a sweeping claim of executive power, one pushed for decades by a small but powerful group of neoconservatives, many of them tied to former Vice President Dick Cheney.
“That caused the most consternation” among legal scholars, said Samahon, Bybee’s former clerk and now a UNLV colleague. Samahon said 90 percent of constitutional scholars would disagree with the Bybee memo on constitutional grounds, arguing that Congress has some authority to set policy on subjects including the treatment of detainees.
Blakesley recently co-wrote a legal paper that attacked Bybee’s constitutional argument as deeply at odds with the founders’ intentions, mainstream constitutional theory and legal precedent.
About this, there seems to be a fairly broad consensus.
“What’s true and what the courts have said is that Congress isn’t deciding what armies go where,” Blakesley said. “But it’s not saying the president has absolute power, even during war. We don’t have a king. That’s what the American Revolution was about.”
Blakesley and other scholars note that the memo makes a glaring omission by failing to refer to a landmark ruling with clear relevance to the issue: Youngstown Sheet & Tube Co. v. Sawyer. In 1952, President Harry Truman ordered the Commerce Department to seize control of the country’s steel mills because of the threat of an imminent labor strike during the Korean War.
The Supreme Court ruled against Truman, finding that the president’s power to sidestep Congress in an emergency or in war was not absolute.
One constitutional scholar said recently that omitting the case from the August 2002 memo is akin to leaving Brown v. Board of Education of Topeka, Kansas, out of a brief on school desegregation.
The omission goes to the heart of another criticism of the 2002 memo and one that came after: They do not offer unbiased advice and present a full picture of the legal arguments surrounding the given issues. Rather, critics say they are the work of a lawyer whose client, President Bush, told him to produce a document that would enable enhanced interrogation and broadly expand his powers.
Bybee abdicated his responsibility in this, which was not to be the president’s lawyer, but a lawyer for the entity that is the United States of America and its system of constitutional laws, those scholars say.
A final critique of the memos is that they are poorly reasoned, an observation that also causes significant angst among those who know Bybee.
Samahon said he is a rigorous and thoughtful jurist, not dogmatic or ideological. His clerks have been conservative, liberal, gay, straight, black, white and Asian, all to better inform Bybee’s legal opinions, Samahon said.
But Samahon’s colleagues at UNLV and many legal scholars say the memos are sloppy, the work of first-year law students, not accomplished legal scholars.
“If a criminal law student turned that in to me, it wouldn’t pass,” Henderson said.
Critics cite numerous examples of tendentious reasoning in the August 2002 memo.
The author focuses on the notion that for conduct to classify as torture, it must lead to “severe physical or mental pain or suffering.”
To determine what constitutes “severe” physical pain, the memo cites a civil statute governing when hospitals have to treat an emergency patient. The choice of that statute is curious given that many state criminal codes provide a clearer parallel, scholars say. Those codes define torture as an aggravating factor in capital murder cases.
Blakesley and others also argue that the discussion of criminal intent to break the torture statute is at odds with accepted law.
The memo reads: “A defendant could negate a showing of specific intent ... by showing he had acted in good faith that his conduct would not amount to the acts prohibited by the statute.”
Blakesley objected: “Since we’re telling them it’s not against the law, they can never have specific intent” because they would always be acting in good faith.
This goes to a larger point: The document “doesn’t sound like neutral advising,” Samahon said. “It sounds like a criminal defense brief.”
Samahon speculated that one reason the memos read this way is that the CIA had begun using the “enhanced interrogation” techniques, so the White House wanted a legal document that would offer a shield to the agency and the interrogators.
The Justice Department would ultimately have to prosecute anyone accused of torture, and because Office of Legal Counsel opinions are binding and have the force of law, the memo seems to make a prosecution all but impossible.
Danner reports it was referred to by some as a “golden shield.”
But the memo can also be read another way:
“It’s a road map,” Blakesley said. The August 2002 memo offers several real-life examples of torture in rather graphic detail, and explains why each example would fairly be considered torture or not.
As Danner noted in The New York Times last week, John Kiriakou, a CIA officer who helped capture Abu Zubaydah, said that each time a new technique was to be used, it had to be cleared by Washington, which suggests the memos were an important reference of sorts to determine what was and wasn’t legal.
Despite the fairly broad consensus in the legal community that the memos amount to a misreading of the law, lawyers and judicial experts are divided about what should be done next.
Some legal scholars, including Yale University’s Bruce Ackerman, think Bybee should be impeached.
Others say doing so would force government lawyers to be cautious, and perhaps overly so, in the advice they give their clients.
To which the other side responds: Good.
The rough consensus among Bybee’s UNLV colleagues is that he should remain on the faculty unless there was significant misconduct, “on the order of moral turpitude,” Stempel said.
Bybee’s colleagues also are offering a potential defense of him: He wasn’t really running things.
They note that he wasn’t on the job until late 2001, and that he was a consensus candidate and not the White House’s first choice. John Yoo was a tenured Berkley professor with a history of fierce advocacy for executive power and had written a memo after 9/11 that laid out an expansive vision for the executive branch in a time of war.
David Addington, then-counsel to Cheney, a fierce believer in executive prerogative, had begun to impose that constitutional vision on the government.
He and Yoo sat on a “war council” at the White House that didn’t include Bybee.
A close observer of the intelligence community, who asked not to be named, said the argument that Bybee was not deeply involved in the drafting of the memos could very well be true. An observer close to the Office of Legal Counsel describes Bybee as out of his depth on national security issues and disinterested in them. He also lacked the stomach or acumen for bureaucratic infighting that was second nature to Yoo and Addington, the observer said.
Writing in The New York Times Magazine, Jeffrey Rosen said, “Bybee ... had little experience with national-security issues, and he delegated responsibility for that subject matter to Yoo, giving him the authority to draft opinions that were binding on the entire executive branch.”
(Yoo did not respond to an e-mail from the Sun.)
Many people interviewed by the Sun offered another defense of Bybee’s actions. After 9/11, the country was gripped with understandable fear and dread.
“I know what it must have been like in D.C. in that time, it must have been terrifying,” Henderson said.
Still, Blakesley believes Bybee has a duty to help the country understand what happened and why.
“I’m torn by it because I think he is a good person,” he said.
“I think he in the long run, for his own personal well-being needs to be repudiate it,” Blakesley said. “And I wish he’d come forward and talk about what happened to show what the others did. I believe he was set up to be a guy who would sign it. And sadly, he did. There’s got to be accountability.”
Samahon suggests that Bybee may be coming to terms with his role in the war on terrorism.
He said when Bybee told him about the memos, he defended them as law, but said as policy, the presence of torture suggested “the spirit of liberty has left the republic.”
Later, according to Samahon, at a reunion dinner for his old law clerks, Bybee thanked the clerks and said he was proud of the jurisprudence they had helped to produce. He then told them he wished he could say the same about his last appointment — when he was head of the Office of Legal Counsel.
Depending on the findings of Justice Department and a decision by Congress, Jay Bybee may not have much more chance at jurisprudence.
For now, he remains on the bench and on the faculty at UNLV.
He teaches a constitutional law seminar once a year, on the separation of powers doctrine.
In one article [Pimps, Metro's coming for you] Metro is targeting those they claim "whose tools are manipulation and brutality and whose goods are people," and in another [The definition of torture] a "gentle soul" judge/professor, former Assistant Attorney General advocating "enhanced interrogation techniques" which results in detained individuals being "constantly naked, placed in stressful positions, exposed to cold until he turned blue, waterboarded and occasionally beaten".
Ouch
There seems to be broad agreement among human right activists, the ACLU, Red Cross, etc. that the water boarding techniques used by the Bush administration amount to "torture". From my earliest experiences, beginning with the techniques which the Japanese military used on American captives, my perception of torture was that there must be some method used that could likely result in death, or the loss of limb,or permanent damage to bodily functions of the person involved in the activity. My perceived threshold for torture, therefore, has always been much more harsh than the techniques employed by the Bush administration,and characterized as "enhanced interrogation techniques", and remains as such. In other words, the definition in the Bybee memo is more clearly in line with the fundamental definition of "torture" to which I personally have always subscribed.
One particularly galling fact is that both Bybee and Yoo, tenured faculty members enjoying the greatest "freedom of speech," are remaining silent now. Their tenure, their universities, allow them to keep their jobs no matter how nonsensical or unethical their academic arguments. Yet they refuse to respond to rational arguments opposing the positions they took. "Academic freedom" for professors not only confers upon them the right to say what they think, it obligates them to do so. They should lose their tenured professorships for failing to live up to the high standard they have accepted.
Torture, according to the United Nations Convention Against Torture is:" any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a male or female person,for such purposes as obtaining from him, or a third person, information or a confession,punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or aquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
It seems Mr. Bybee changed the definition of torture as it was defined by the United Nations.
The poor detainees at gitmo should immediately be released in Washington DC to live a long life. DC, a place where they will be free to become citizens and community leaders.
Yes, the Gitmo detainees will become community organizers.
That was low, even for you, nance.
If you folks support your government using torture, you should move out of the U.S.A.
That is not now, nor has it ever been,
what this great country stands for.
Quite to the contrary.
That's the only direction nance goes is low.
I think it is funny that many on the left will call the terrorists in the middle east as freedom fighters who do extreme foul and disgusting acts that nowhere compare to anything the USA has done.
It always seem that the left is cheering for the enemy and working against the USA.
@ orientalobserver, Exactly !
....."He wasn't really running things." Alrighty then.This means he is smart enough to be a law professor but not quite intellectually savy enough to know how politics is played in DC or to know what he was affixing his name to? Ladies and gentleman if you check the Urban Dictionary it clearly states this is the definition of a "tool". People...once again street savy does not always correlate to intellect-usually an inverse relationship-and being nice doesn't correlate to good judgement.
Why don't you investigate torture in Nevada prisons in an article, Mr. Coolican?
What about torture such as severe beatings and gunning down prisoners in Nevada's own prisons?
Is a group of prison guards hog tying an unarmed NV prisoner, smashing his head repeatedly into concrete==cracking his skull==torture? Yes.
What about torture such as severe beatings... and the gunning down of prisoners lying face down in Nevada prison yard dirt torture? Yes.
What about prison conditions and lack of care so bad that Nevada prisoners are committing suicide?
Are years and years of solitary confinement torture? Yes. This is also primitive and unworthy of any human support whatsoever... but, Nevada prison officials don't even keep statistics on this subject that the public can review.
Suicides? On the increase with no current statistics available for public scrutiny from the Nevada Department of Corrections. Nevada prison fficials are too busy to provide such data about deaths. Unimaginably callous and irresponsible? Yes.
Is there mental torture for prisoners' loved ones and those who care about human rights for all human beings? Yes.
Are officials denying medical and mental health care to US citizens in Nevada prisons to the point of homicidal neglect?
Are State of Nevada's officials looking the other way... condoning torture? I think so.
Is Nevada's media silence about Nevada's torturing, killing fields in Nevada prisons a big part of this horror? In my opinion, yes.
Isn't it torture for Nevada prison officials to deny correspondence courses, education and skills training, refuse it when parents and loved ones try to get materials inside for prisoners to study==that they pay for? Isn't this torture by thought control... as in George Orwell's 1984?
Most Nevada prisoners return to society in Las Vegas disabled for life... Isn't that the ultimate torture?
FACTS: Medical, mental health care and rehabilitation for prisoners work. Behavior by authorities anywhere that is remotely labeled as possible torture doesn't. It's just more wasted tax money.
Solutions? Yes. Clean house at home first. Be part of making prison officials accountable. Hire new officials that will demand and uphold humane Nevada prisoner treatment, accreditation to professional standards in all prisons.
In short, think creatively. Act for positive change for Nevada's own prisoners first... beginning today. Charity begins at home.
"It seems Mr. Bybee changed the definition of torture as it was defined by the United Nations."
Neither Bybee,nor the U.S., is bound by the UN definition of anything.The UN is a dysfunctional body, not a standard worth quoting in my opinion.
The US is sovereign. It debates and defines its own existence in the world.
Based on the liberal "witch hunt" in the beltway
for the guardians of counter-terrorism policies
under Bush, Bybee is constrained in statements he is at liberty to make on this matter. That's a shame.
OK, let me see if I get this right.
Islamic Terrorists slice off heads and body parts and that makes them acceptable.
US "waterboards" or has naked men stacked like a pyramid and that makes us barbaric.
People, people, while we are whining they are reloading.
We can piss and moan all we want and they could care less. They think we are weak.
Obama sending a "surrender" video to Iran was a nice touch though.
You have the right to remain silent and subsequently brutialized and tortured while exercising it.
Great land of liberty?
getalife; WEAK. REALLY REALLY WEAK.
"Islamic Terrorists slice off heads and body parts and that makes them acceptable."
WHAT THE H..L are you talking about?
To whom do you ascribe such nonesense?
You and Nance sound like little kids.
"the other kids are doin' it mom, why can't we?
It's not FAIR!"
As soon as you start to assign levels and degrees to which you will push the envelope before you call it "torture" you have already signed on to perform such immoral acts.
This traitor was rewarded for legitimizing the former regime's monstrous policy. He now has a lifetime appointment sitting in judgment over all of us in the West.
What does the tell all of you about the quality of our federal judges??
First, I do not know for sure that Bybee, as a federal judge, is supposed to say anything or expected to be silent. I do not know the judicial canons. But that means he COULD be in a different situation than John Yoo in terms of what he can say in public.
Answering Nance is a little like answering O'Reilly or Hannity or the R-J's editor and publisher: since they know nothing but insist on demonstrating both their lack of knowledge and their hypocrisy, it's a bit like explaining reality to a brick wall. However, for Getalife, I am trying to figure out if you mean that we should become like Islamic terrorists. I thought we were supposed to be better than that. I guess the terrorists DID win, so we really don't even need to discuss it any more.
Houstonjac -- Your ignorance is showing again.
Look up the federal Constitution's Supremacy Clause -- treaties the U.S. signs becomes the law of our land.
For all those who are critical and think the terrorists won because use torture, seriously??, really??
It is absolutely amazing that you can dehumanize americans for using extreme measures to try and save lives and put terrorists on a pedestal.
I know the lib crowd likes to include Abu Ghraib in the "extreme measures" category, again, seriously??, really?? The people at Abu Ghraib were tortured like a frat pledge trying to get into a fraternity.
The terrorists common use of beheadings and suicide bombings look nothing like hazing.
As long as the Coward in Chief keeps sending empty videos to our enemies we will be safe. As long as we can't use "torture" we will grow into a more culturally acceptable citizenry. This is garbage........ we got hit on 9-1-1 because we were looking the other way.
We need to look evil in the eye and stare it down, whatever shape it comes in.
Oh I forgot, this, aren't we better than that crap? We have seriously lost our will to fight and WIN.
We won WWII with a fight and win mentality. We lost Vietnam with a fight and appease mentality.
Comment Part 1:
The top of the legal profession, in terms of intellect, skill, connections and professional prestige, has only three law schools which "count". Harvard and Yale, which draw the "brightest and best" law students, graduate roughly 1000 new lawyers each year, and are the alma mater of anybody who is anybody in Washington, New York, Los Angeles and Chicago legal circles.
Georgetown is the third law school which "counts" in Washington. It's the U.S. Supreme Court's Green Room, where lawyers go to practice their arguments before they are heard by the Supremes, where the Supremes' lawyer spouses are on the faculty, where the Supremes go when they want to "hang out" with their intellectual peers. Georgetown graduates another 600 new lawyers each year.
As a result, if one is not among the 50,000+ Big Three alumni, one's long term options at the top of the legal profession are severely diminished.
In the ethos of intellectual lawyering in Washington, if you didn't go to one of those three law schools, you are a second class citizen. Judges, law professors, Washington lawyers, and alumni from Harvard and Yale turn up their noses when assessing the legal skills of alumni of "lesser law schools".
Law schools in Missippi, Alabama, Louisiana, Utah and Nevada are, in terms of national prestige, the 99 Cent Stores of the legal profession. One can usually overcome the stigma of graduating from UCLA Law School, but lawyers from law schools in backwater states are simply untouchables.
Big Law believes the Big Three law schools are a meritocracy, and that there is "no excuse" for the tip top legal talent attending lesser schools. Big Law believes that if you go to Brigham Young Law School or UNLV Law School, it is because your intellect does not qualify you to be part of Big Law.
No law professor ever forgets that no matter how great his scholarly legal abilities, it is virtually impossible to get a teaching position at one of the "top ten law schools" if one went to the wrong law school. The nation is full of law professors who know, in their heart of hearts, that they are not members of the legal elite. They are not members of the Big Law club. That leads to a chip on the shoulder phenomena, sometimes publicly shown but more often only expressed in the dark recesses of the law professor's consciousness.
Jay Bybee earned his law degree cum laude from BYU's Law School. Bybee was on the editorial board of the BYU Law Review. Bybee was law clerk in the Fourth Circuit Court of Appeals. Bybee became a law professor in Louisiana, and then at UNLV.
Jay Bybee always knew he is not Big Law.
Comment Part 2
For all Bybee's personal accomplishments, in the rarified air of law practice in Washington, Bybee was a pariah, an outsider, a nobody. Bybee was a person whose legal pedigree did not entitle him to even set foot in the Justice Department's Office of Legal Counsel.
Jay Bybee got his job because the Bush White House was tired of lawyers from the elite law schools. David Addington, the powerful force in White House lawyering, was a Georgetown undergrad who never made it into Harvard, Yale or Georgetown law schools. Addington graduated from Duke Law. Addington had a huge chip on his shoulder because despite his intellectual prowess, his pedigree excluded him as a member of Washington's legal elite Big Law.
Under Addington's guidance, the Bush Justice Department brought in hundreds of young lawyers from fourth rate, bargain basement law schools, as a means of flipping the bird to the intellectuals at the top of the legal establishment, Big Law. Filling the role of an older, experienced, senior level Justice Department lawyer Jay Bybee had the perfect conservative anti-Big-Law resume. White House flipped the bird at Big Law by hiring Bybee to head the Office of Legal Counsel.
Ever burdened by his third rate legal pedigree, and having his nose rubbed in it every day, Jay Bybee let John Yoo do his thinking.
John Yoo was a quirky part of Big Law. Yoo graduated from Yale Law, but Yoo was an intellectual outsider, an extremist in his views, in comparison with the rest of the legal elite. Yoo had been a law clerk to Justice Clarence Thomas, whose work on the Supreme Court generates smirks and guffaws among Big Law members. That is why Addington advocated hiring Yoo, to flip the bird at Big Law once again.
Jay Bybee's self esteem was boosted, tremendously, by his high level position in the Justice Department. He wasn't part of Big Law, but by golly, he was important! Bybee had a position which salved his wounded inner soul, a position that vindicated his feeling of self-worth as a lawyer. Bybee thought he had risen above Big Law.
So Bybee signed whatever John Yoo and his intellectually deficient assistants wrote.
Comment Part 3
Back in the days of Watergate, as the White House's senior lawyers were being indicted, the White House legal fraternity protected their young from public scrutiny and indictment, by hiding them in obscure Federal agency legal departments. As the Bush Administration's legal team came under increasing scrutiny in private Big Law circles, the White House did not try to hide its legal miscreants in obscure Federal agencies. Instead, they were nominated for Federal judgeships providing "life time tenure" which could not be eliminated except by impeachment.
Jay Bybee was rewarded for his cooperation with the White House's legal strategy by his appointment to the Ninth Circuit Court of Appeals.
In the Federal judiciary's own circle of Big Law members, Nevada is considered the armpit of the illustrious Ninth Circuit. No self respecting Big Law-yer would associate with a Brigham Young Law School educated lawyer who had been a UNLV law professor. Such a pedigree is simply too tasteless, just too close to the 99 Cents Store. In the view of Big Law, no lawyer or judge with such a pedigree deserves to be a Ninth Circuit Court of Appeal Judge.
Thus, Jay Bybee's appointment to the Ninth Circuit was yet another "flipping of the bird at Big Law" by David Addington and his fellow lawyers in the Bush White House.
And God bless Harry Reid, in his youthful naivete, he picked the wrong law school, missing the mark, in terms of joining Big Law, by the mere two miles between Georgetown and the far-less-esteemed George Washington Law School. As a result, Senator Reid did not share Big Law's academic sensibilities, and he did not oppose Jay Bybee's nomination.
As a result, Jay Bybee's mere presence as a Judge of the Ninth Circuit Court of Appeals is, to Big Law, an outrage. Jay Bybee has not been successfully hidden or protected from scrutiny for his activities at the Justice Department. Instead, he grabbed the golden ring, and took his Ninth Circuit appointment as a reward for his work on behalf of the Bush White House.
Big Law will ultimately work to insure that Judge Bybee resigns. If he refuses to comport himself in a "tasteful manner" by resigning, Big Law will insure that he is impeached.
Big Law exists because it does represent the most intellectually gifted lawyers in the United States. Big Law is now a meritocracy. Jay Bybee privately plugged the holes in his own self esteem by taking a sacred legal office that is rightly reserved for those with the intellectual capacity to become part of Big Law. Ultimately Jay Bybee will pay a very big price for his presumptuousness and intellectual sloth. Big Law's Washington connections will make sure of that.
Getalife, sometimes one only has to look outside ones own backdoor.
So, OldEnvironmentalLawyer guy, I guess what y'all said was the man is about to get his comeuppance.
The Reaper is coming!
Not so sure about "Big Law" and all, but Bybee can only be removed by an act of Congress, including a 2/3's majority vote by the Senate which is highly unlikely.
I am not sure on how Mr. The War is Lost would have gone in the legal profession. That is not a sure sign of great thinking skills.
Personally, I believe that they should give Bybee a medal.
The water boarding has resulted in the potential savings of thousand of American civilians and American soliders.
I'm with GETALIFE. All of you who are so against torture - let those islamic terrorists come knocking on YOUR door and take YOU and YOUR family hostage and terrorize you in unspeakable ways, then we'll see how you feel about the US torturing terrorists. They could care less about how "humane" we are because they wouldn't think twice about chopping your head off and videotaping it or detonating a bomb that kills thousands of people. Wait....hopefully this no torturing rule won't come back and bite us where the sun doesn't shine.
This just illustrates how cowardly the right has become.
They have become so willing to throw our Constitution and ideals out the window in service of their own paranoid fears. They see nothing wrong in stripping away essential liberties and protections for the illusion of "safety."
Their main argument is that, since the terrorists are evil, we should abandon everything, all that this country has fought to create and protect. Someone evil decapitates someone, thus there should be no bounds on our own actions. "We should sink to their level," is there essential argument.
If we do that, then we become no better than those we are fighting. Their argument is that we should BECOME terrorists, inflicting terror out of vengence or superiority. They lack the intestinal fortitude to stand up for what is right. Rather, they abandon our ideals for what SEEMS easy.
They ignore the consequences of that thought process. Their cowardly blood lust and mistreatment of others gives cause for other states to act similarly toward our own troops. It's the double standard of those cowards: our troops should be treated humanely, but our enemies should not. They cannot even consider this, as they are unwilling or unable to hold a mirror up to their own actions.
Their argument lacks any fundamental morality. They abdicate all morality; biblical, cultural, and intellectual.
They think war is an excuse for their actions. That any action is justified, as long as we "win."
What they don't realize is that they have played directly into the hands of the true terrorists. Their rampant paranoia and skin-deep moral codes emboldens the terrorist. This paranoia and irrationality, hallmarks of an elementary-level understanding, is exactly what the terrorists wanted to provoke.
What the terrorists have done is wrong. If we follow their actions as an example, then we become no better than they are. We give up any moral standing and we weaken the structure of our own culture.
The right's cheerful delight in abandoning that which defines our culture is repulsive and cowardly.
Wow, pro-torture? Is that like being pro-life? Perhaps! And since when did waterboarding save lots of lives. It appears that reality is that torture results in lies and the mental torture of sorting those out.
Ok, so instead of the Islamic folks being demeaned - let's figure out how we can get along. Let's understand that the center of the Islamic faith is peaceful. Let's remember that some folks from the Christian right have become convinced that murder is ok when directed against doctors who may have performed abortions. Let us remember that lots of Christians have lynched others and that the standard during the second world war among European religious groups resulted in a pretty low level of resistance to Hitler.
Let's hold all to a very high standard. Perhaps the released gitmo folks could have a call in show? Hmmm - couldn't be any worse than the current crop. I think the time is coming when we all will be counted and it appears to me that there will be a lot of folks judged to be black sheep and not so many white ones. Ok, may tomorrow be a better day and may your mean spirits be spirited away.
It's amazing what little a government has to do to make many believe.
OldEnvironmentalLawyer, you're the kind of person with the big picture we need to hear more from... to understand Big Law. Thank you. Now, remember those fighting the system to get decency inside Nevada prisons. Please help stop torture in NV prisons through Nevada prison reform.
OELaywer, Ksand99 and, Revtomperl, fremmasmind, killerB, come to the NV prison commissioners' meeting 14 April 2009 at the Sawyer Building Las Vegas or in the state building in Carson City! Speak out against torture in Nevada prisons. You understand.
filmmaker -- exactly what "torture in NV prisons" am I supposed to "understand"?
Mandy -- what actual American family did all this happen to? My advice to you -- get rid of your TV and read the Bill of Rights. Then maybe you can post a comment worth taking seriously.
ksand, the people we have at Gitmo and other facilities were not watching "the view" or basking in false Obama worship.
These people were "enemy combatants", I know I am being targeted by the fearsome left because I used those words.
When they capture me and then ask me please with sugar on top, I am going to spill the beans. I might be so afraid I"ll piss my pants, FOREVER.
As for torture in the Nevada prison system, really??, who cares? If you can't do the time don't do the crime. It's called prison for a reason, now if it were called summer camp, you would have a point.
I know because I disagree with you Liberal type I am going to be called names and told I am uneducated.
News flash! So what! If I agree with you I am educated and my I.Q. goes up 25 points. You folks are desperate to "save" humanity from anybody that disagrees with you.
Guess what, your religion of love and peace (radical Islam) would enslave you in a heartbeat.
The only way to "get along" with radical islamists is to join their faith. No thanks I am busy on that day.
There were four police officers slain today by ex-con in Oakland, was the ex-con just misunderstood as well.
ksand, this one is for you.
"What the terrorists have done is wrong. If we follow their actions as an example, then we become no better than they are. We give up any moral standing and we weaken the structure of our own culture."
Are you so far gone that you actually believe the terrorists walk into a crowded market and conduct a "moral standing" survey? Then, when they find nobody of upstanding moral character they hit the detonator. Come on.
You can intellectualize this all you want, but here is another news flash, if they capture an america soldier they will torture that soldier. They don't pull out a "moral compass" to decide what to do, they do it.
I will agree that two wrongs don't make a right, but this is where the conjecture hits the road.
John Yoo (UC Berkeley) and Jay Bybee (UNLV) are not the only public advocates of torture. Don't forget Alan Dershowitz (Harvard Law professor) who has long been an advocate of "torture warrants". According to the Dershowitz plan, when the government wants to torture a suspect, they would get a warrant to perform the torture. This little legal trick would legalize torture without repealing the Bill of Rights or the framework of constitutional law. And the torturers would be legally safe because they tortured within the law.
If they ever set up such a system of torture warrants, do you think a judge would dare to refuse a prosecutor's request for a torture warrant? Me neither.
A couple of years ago, The Nation magazine had a cover story about torture and its public advocates. Worth reading!
Most of you seem to forget they didn't invade us, we invaded them, and since there were no WMD or actual terrorists (a convenient term which includes our own Revolutionary War Minutemen), no real justification. Then check out some truth at taxitothedarkside.com for a chilling documentary on what has actually been happening.
Get it, watch it, THEN come back here and tell us you still have the same opinion about justifying torture and why the world hates us/U.S.
"Most of you seem to forget they didn't invade us"
Hmmmmmm.....I think they attack us several times before we attacked them.
But of course, the left is always are cheering for the enemy and praising them while attacking our forces all the time.
Wrong URL for "Taxi to the Dark Side" ... who woulda thought. A good start is http://en.wikipedia.org/wiki/Taxi_to_the... before you skip off to Google it.
jfnance, name one actual attack. Who we invaded has yet to be conclusively determined to have caused 9/11. There's just way too little real proof, that packed joke of a commission's report notwithstanding.
I see you've gone back to the labels. Pity, since you've been making some sense lately for the most part. I urge you to check out the other side of this controversy, "Taxi" being an excellent start, then think it through before you open your "POST A COMMENT" box again.
Uhhhh....you are forgotting about the 1st World Trade center attack and the attack on the Cole and the attacks on the embassies. If you want to go back into time and look at the whole history of attacks by the extreme Muslims on USA then we can.
Of course, George Bush did the attack on 9/11. It was just him and Cheney. Both men are super genius. They planned the whole attack in Bush's bat cave. Bush actually flew all the planes on that day. The people on the planes were all actors. They are still alive. They were not really planes. The World Trade Center is actually still standing. It was all special effects.
Actually, the whole thing on 9/11 was targeted to do only one thing.....destroy building #7.
Did I miss any goofy conspiracy theories????????
OldEnvironmentalLawyer. . . This is shameless trolling for Georgetown Law. Claiming that Georgetown is more respected in Big Law than Stanford, NYU, et. al. is pure flame. Nice try, though.
getalife, your argument boils down to: "Terrorists are evil, the only way to fight them is to adopt their practices."
Yes, I am going to "intellectualize" this, because there are gigantic flaws in your approach. You seem to be so comfortable with the notion of terrorism, you feel we NEED to torture (aka, terrorize) people in order to succeed. It's a foolhardy and cowardly way of fighting a war, and ineffective.
If it's evil for a terrorist to do so, why is it NOT evil when we perpetuate the same horrors? Your double standard is aggregious and obvious.
Yes, the United States MUST have the moral high ground. You would cede that authority in employing your tactics. You would be happy to watch our country abandon its ideals and principles.
Furthermore, you legitimize their tactics with your histrionics and fear-mongering. "We have to torture, cause they're coming to kill us in our homes!" Don't you realize, that's the GOAL of the terrorists. They want you to FEAR. They want you to be paralyzed by DOUBT and TERROR, to give up your essential liberties.
The United States MUST NOT condone torture, nor abide those who do condone torture. To do so is to blur the line between ourselves and our enemy. We must not adopt the tactics of our enemy BECAUSE those tactics are evil. We ARE better than that.
I suppose you gravely disagree with David Petraeus, who said, "Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right. Adherence to our values distinguishes us from our enemy. This fight depends on securing the population, which must understand that we - not our enemies - occupy the moral high ground."
Can you understand that? Your urge to torture actually works against us in Iraq.
Why would you choose to use methods that were not only morally repugnant, but tactically ineffective? You didn't bother reading the SASC report on the treatment of detainees in U.S. custody?
http://armed-services.senate.gov/Publica...
In it, 25 committee members (about evenly divided between Rs and Ds) found, unanimously:
"Using those techniques for interrogating detainees was also inconsistent with the goal of collecting accurate intelligence information, as the purpose of SERE resistance training is to increase the ability of U.S. personnel to resist abusive interrogations and the techniques used were based, in part, on Chinese Communist techniques used during the Korean War to elicit false confessions. "
Get that? It doesn't work. Throw our morals out the window and adopt Communist techniques for bad intel? That's brilliant.
(Removed by the site staff)
Remember, the U.S. attacked Iraq. Bad intelligence was the reason. We did not act in a ressponsible way as a super power. Over a million Iraqis have been murdered during our occupation. The U.S. has been terrorising the Iraqis for over 6 years.
nance,No one has forgot a thing as they did not forget Germany and Japan's sins. Your logic is so wrong it can not be defined logically. Are you so lame as to believe 911 and some Saudi's divided us? Just how old are you? Only someone who was not around for WWII or Vietnam could make that statement. Some of your posts contain merit, these are disgusting and this kind of dictatorship thinking will only make America worse. Is it any wonder Bush had better be very careful where he travels? He can be arrested and tried for war crimes for similar thinking. There are countries that have suffered because of this logic that will gladly try him. Only immaturity and extremest thinking could come to a conclusion like this. I don't believe you really feel this way from some of the better posts you have made.
homer......I think you and fremmasmind need to go to AA for kool-aid addiction.
1 million Iraq murdered???? I have not see anything like that. It is page 1 on the DailyKos. I saw where the UN said Hussein (not our President) murdered over 600,000.
But thanks for giving an A-1 example of the left cheering for the enemy and working against the USA. You could be the spokesperson for Bin Laden. Calling our soliders murderers. I am sure Bin Laden loves you.
homer, what the hell are you talking about?
Both in Germany and Japan fronts, US and allied forces regularly beat up POW's to find locations of MG and antit-tank nest.
There is a reason why so few POW's in Japan front were captured and it was not because all of them wanted to die.
Hell, we bombed any cities to dust full of children and mothers.
Bush was a boy scout compared to what FDR and Lincoln did to win their wars.
I am sure that you would be demanding their arrest too.
I only wished that you guys would run commericals on TV and be sure to say that you are big time Democratic and Obama supporters.
More on this in Friday's Washington Post: "Ex-Bush admin official: Many at Gitmo are innocent" at http://www.washingtonpost.com/wp-dyn/con...
Look for the bottom line: "We can't try them because we tortured them and didn't keep an evidence trail."
The Bush Regime operatives didn't even do the basics of competent police work. Even when faced with the realization many of them were innocent. More on the same site shows the feds can't even find their files http://www.washingtonpost.com/wp-dyn/con...
No wonder the world hates the U.S.
Killer, they hate the US because we can choose what we dress ours dogs in and have flushing toilets.
The torture thing probably isn't on their radar.
By the way, nice try on the freedom fighter angle, another misguided holy warrior blew his self up today.....at a funeral.
Bybee must go. Big law or small law. Who cares? The man is a fascist and should not be making any decisions for our society.
I did go to law school (small law!). Law school is the most anti-intellectual academic experience I've had. Maybe it is the lack of critical thinking inherent in the study of law that makes morons think it's ok to torture. In the U.S. the study of law is memorizing rules. I am not surprised that these fascists are first lawyers.
Nance You and your koolaid. You must be mixing again. If a foreign entity attacked the U.S. and was creating havoc and destruction throughout our country for no reason, this would be considered an attack on our country and we would fight back. Now, if American civilians were to pick up weapons and fight these invaders, would we be considered insurgents, terrorists? If Canadian citizens would pick up weapons and help the U.S. fight these invaders, would they be considered insurgents, terrorists? you have got to come off your high horse and let people express themselves without your distorted comebacks. Last week I was making comments to an article and you were attacking me with your rhetoric. It was obvious what you were saying had no credence as to what I had written. You babble on and on with your nance crap. You seem pretty inteligent, start acting it.
killerbee"Houstonjac -- Your ignorance is showing again.
Look up the federal Constitution's Supremacy Clause -- treaties the U.S. signs becomes the law of our land."
And you really believe that we would allow our sovereignty to be trumped by a treaty if it conflicted with our national defense interests. You got to be smoking something.
It never ceases to amaze how ignorant some among us can be. Do you realize that these acts you so vehemently describe as "torture" are a key part of military training of our troops? Here is the difference between us and most of the rest of the world... we don't shoot our troops in the kneecaps in training, we don't use thumbscrews in training and we don't gouge people's eyes out, in training. Why, because those treatments all do lasting damage to the subject. On the other hand, US military POW resistance training routinely uses sleep deprivation, temperature change, electric shock/stun-gun, and yes, that terrible waterboarding. The reason these get used is that although they are (no argument here) highly, highly unpleasant, they don't do any lasting damage to the subject. Since our military doesn't consider this "torture" treatment anything that your average 20 yr old soldier can't handle, why would we see it as treatment that your average terrorist couldn't handle? Bottom line, we treat them way better than they deserve to be treated!
Your prisons let people rot to death from gangrene! Inside Nevada prisons people are routinely beaten while fully restrained. Sexual abuse is rampant. People who are dying of organ failure are dragged around by chains. Yes, right here in Nevada.
Why? Because people like some of the people leaving comments here not only allow torture but condone it. Even if you believe that "terrorists" or "criminals" should be tortured, who is to decide? Get rid of the kool-aid! This is America! ....isn't it?
Don't break the law and you'll have nothing to worry about, I promise :)
xie, I think your definition of torture includes being denied cable TV and steak dinners. I do not condone mistreatment of civilian prisoners but have no problem condoning enhanced interrogation techniques used on enemy combatants.
So that level of torture for anyone convicted of a crime is ok with you?
"Don't break the law and you'll have nothing to worry about, I promise :)"
Tell it to Dilawar's family. You should recognize that name by now. http://en.wikipedia.org/wiki/Dilawar_(hu...)
Bybee is a gentle soul and Hitler loved animals. So what.