The Bush administration last week revoked its permissive torture policy, refocusing attention on its Nevada author.
The policy was retracted just days before attorney general nominee Alberto Gonzales faced Senate questioning about his espousal of the policy, written by Nevada lawyer Jay Bybee in an August 2002 memorandum.
Bybee, now a judge on the U.S. Court of Appeals for the 9th Circuit, drafted the memo as a lawyer of the Office of Legal Counsel in the U.S. Department of Justice.
When the memo was leaked to the Washington Post on June 13, 2004, it shocked human-rights advocates and especially military lawyers with its contention that nearly anything short of “death or organ failure” was allowable by the United States against suspected-terrorist prisoners. Its approach toward torture issues focused on how to keep U.S. officials out of legal jeopardy.
It also said some types of torture “could be justified” and that, in the case of suspected terrorists, the Geneva prisoner treatment conventions could be suspended. (The Bush administration has consistently opposed participation in an international war crimes tribunal that could act when nations failed to move against their own war criminals.)
Some critics have argued that abuses by the United States in Afghanistan, at Abu Ghraib prison in Iraq, and at Guantánamo Bay in Cuba were all but guaranteed because of the memo’s tone describing the law as allowing anything that could be defended in court. Military officers like former Joint Chiefs Chairman John Shalikashvili and Marine Corps Gen. Joseph Hoar have been in the forefront of criticism of Gonzales because many of them believe the permissive use of torture by the United States would expose U.S. servicepeople to the same thing.
The Washington Post reported last week that Bybee wrote the memo only after there was a full discussion in his office of the kinds of techniques that might be used by the U.S. (and that could then be turned back against U.S. service people): “At least one of the meetings during this period included a detailed description of the interrogation methods the CIA wanted to use, such as open-handed slapping, the threat of live burial and ‘waterboarding’—a procedure that involves strapping a detainee to a board, raising the feet above the head, wrapping the face and nose in a wet towel, and dripping water onto the head. Tested repeatedly on U.S. military personnel as part of interrogation resistance training, the technique proved to produce an unbearable sensation of drowning.”
Born in Oakland in 1953 and raised in Las Vegas and Louisville, Ky., Bybee received undergraduate and law degrees from Brigham Young University. He has taught at law schools in Louisiana and Nevada. He did his first turn at the U.S. Justice Department in 1984 and was associate counsel to the first President Bush in 1989-91.
The New York Times has reported, “When Mr. Bybee was an associate White House counsel in the first Bush administration, he called a federal prosecutor in Atlanta at least twice in 1989 to ask about an investigation she was conducting of loans that were backed by federal agricultural loan guarantees that an Italian bank’s Atlanta office made to Iraq. In 1992, when the calls were disclosed publicly, Mr. Bybee denied trying to influence the inquiry, which was investigating reports that senior Iraqi officials were involved in a multibillion-dollar bank fraud and had used some of the money to build Baghdad’s huge military arsenal.”
Bybee, who has declined interviews, got onto the Court of Appeals with little trouble because Democratic senators hardly asserted themselves during his Senate confirmation process. He was asked a number of general questions about enemy detention and treatment, but they were not well informed or specific and in many cases were in written form and without follow-up.
The Bybee confirmation hearing was on the day of Secretary of State Colin Powell’s now-notorious testimony before the United Nations, and senators kept slipping in and out of the Bybee hearing and then just relied on written questions. In some cases, Bybee simply didn’t answer, as in the case of a written question by Sen. John Edwards about whether he agreed with Bush’s enemy-combatant policies: “[I]t would be inappropriate for me to express publicly a personal view at variance with the president’s position.”
When he was asked why the Office of Legal Counsel had virtually stopped issuing its legal opinions after he joined it, Bybee said, “During my tenure, the process for the review of OLC opinions has been consistent with the long-standing traditions of the office.” However, by one account, the office released hundreds of opinions a year before Bybee joined it, three after he went on board.
U.S. Sen. Harry Reid of Nevada, who cited his and fellow Nevada Sen. John Ensign’s sponsorship of Bybee’s nomination to the court as an instance of bipartisanship, said of Bybee at the time, “He has an in-depth knowledge of the law. He comes with a background from a wonderful family. I am so glad we are able today to confirm this man for a lifetime appointment to the federal judiciary.” When the memo became public after Bybee was already on the court, Reid told the Las Vegas Sun that the nomination would have been handled differently if the senators had known about the memo, but he declined to say if he would have changed his vote on Bybee.
After the memo was leaked, a torrent of denunciation descended on the Bush administration from left and right, with high-ranking military officers especially critical.
One of the most caustic comments came from University of Southern California legal ethics professor Erwin Chemerinsky, who said in a law school commencement address, “History is repeating itself. Just this week, a memo was revealed that a lawyer, and now Ninth Circuit judge, Jay Bybee, wrote justifying torture. In it, he argued that torture of prisoners was justified, despite American law and international treaties to the contrary. His memo said that psychological torture was acceptable unless it went on for months or years. He said that physical torture was acceptable unless it caused body organs to fail or death. In other words, some of the most horrendous forms of torture were acceptable. How could a lawyer write such a memo?
“I know Jay Bybee and think highly of him. He presumably believed that the need to get information from individuals detained in Guantánamo or Iraq justified the disregard of the law and the basic humanity of the prisoners. He was no different than the lawyers who believed that jailing the critics of World War I, or interning the Japanese-Americans, or locking up communist sympathizers in the McCarthy era were justified by the needs of the times.”
The White House and Justice Department distanced themselves from the memo but didn’t revoke it—until this month, when it became clear it would be an issue in Gonzales’ confirmation hearing. That sudden reversal sparked a New York Times editorial: “On Thursday, more than eight months after the rotten fruits of those legal briefs were shown to the world at Abu Ghraib, the Justice Department issued yet another legal opinion. This time it rejected Mr. Bybee’s bizarre notions that the president could be given the legal go-ahead to authorize torture, simply by defining the word so narrowly as to exclude almost anything short of mortal injury. We were glad to see that turnaround, although it was three years too late. Prisoners have already been systematically hurt, degraded, tortured and even killed. The nation’s international reputation is deeply scarred. The new memo said that ‘torture is abhorrent,’ but it raised more questions than it answered, like this one: If Mr. Bybee’s views were so obviously outlandish, why were they allowed to stand for so long?”