An alleged Nevadan now serving as a federal judge is again facing scrutiny for his role in enabling the use of torture by the Bush administration.
Newsweek reports that the Office of Professional Responsibility (OPR) of the U.S. Department of Justice (DOJ) began preparing a report while George Bush was still in office that harshly criticized two former DOJ lawyers, John Yoo and Jay Bybee.
Bybee, supposedly a Nevada resident and judge on the U.S. Court of Appeals for the Ninth Circuit, was an assistant attorney general in the DOJ’s Office of Special Counsel when he wrote memos that were used as legal justification for the administration’s activities (“Tortuous policy,” RN&R, Jan. 13, 2005).
The report calling for action on the lawyers was stalled by the DOJ at the behest of Bush Attorney General Michael Mukasey, Newsweek reported, until the new president took office. The report calls for the conduct of the lawyers being referred to state bar associations for discipline.
There is more than one memo on the subject of torture signed by Bybee, but the most well known—to the point that it is referred to as the Bybee memo—analyzed the United Nations Convention Against Torture, which are codified in U.S. law at 18 U.S.C. section 2340. The memo concluded that torture could be defined by the administration as “acts inflicting … severe pain or suffering, whether mental or physical”—and only if that was the specific intent of the person inflicting the pain.
The memo effectively said that it is permissible to abuse a person up to the point where it becomes a level of pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The memo offered no guidance to how such thresholds could be determined. Inflicting treatment that is “cruel, inhuman, or degrading” does not necessarily make it illegal, the memo opined. Critics have said the Bybee reading of the U.N. Convention effectively circumvents its real meaning.
The memo enraged Pentagon officials—who felt it would sanction the same kind of abuse of U.S. military servicemembers—and (after it became publicly known) embarrassed leaders of the legal community.
The memo was disclosed to the public by the Washington Post on June 13, 2004. The policy effect of the memo was then cancelled by DOJ official Jack Goldsmith, who called it “sloppily reasoned” but nevertheless defended its author or authors. There is some debate about whether the Bybee memo was actually drafted by Bybee or by John Yoo, but its content was approved by Bybee, who signed it. Other memos from Bybee and Yoo said that a president could ignore laws against torture passed by Congress.
Bybee was not available for comment. However, in a May 23 speech last year, Mukasey—who was then still attorney general—defended the Justice Department lawyers:
“Today, many of the senior government lawyers who provided legal advice supporting the nation’s most important counterterrorism policies have been subjected to relentless public criticism. In some corners, one even hears suggestions—suggestions that are made in a manner that is almost breathtakingly casual—that some of these lawyers should be subject to civil or criminal liability for the advice they gave. The rhetoric of these discussions is hostile and unforgiving.
“The difficulty and novelty of the legal questions these lawyers confronted is scarcely mentioned; indeed, the vast majority of the criticism is unaccompanied by any serious legal analysis. In addition, it is rarely acknowledged that those public servants were often working in an atmosphere of almost unimaginable pressure, without the academic luxury of endless time for debate. Equally ignored is the fact that, by all accounts I have seen or heard, including but not limited to Jack Goldsmith’s book [The Terror Presidency], those lawyers reached their conclusions in good faith based upon their best judgments of what the law required.”
Critics of the lawyers, however, say that it’s exactly when “unimaginable pressure” creates hysteria that restraint and perspective are needed.
The memo had not yet become known at the time of Bybee’s Senate confirmation for the Ninth Circuit judgeship, though some Democrats asked some of the right questions at his confirmation hearing. But Bybee replied like this: “As an attorney at the Department of Justice, I am obliged to keep confidential the legal advice that I provide to others in the executive branch. I cannot comment on whether or not I have provided any such advice and, if so, the substance of that advice.” And Democrats did not make their votes contingent on turning over requested documents.
When the Bybee memo became known, there were calls for Bybee’s impeachment, including one from Yale law professor Bruce Ackerman, who wrote, “Under the Constitution, impeachment requires a finding of ‘high crimes and misdemeanors.’ This is a high standard. Although Bybee’s opinion fails minimum tests of legal competence, he may have acted in good faith. This should protect him from conviction. But his legal distortions might also be evidence of the abdication of his fundamental legal responsibilities. Instead of engaging in a good-faith interpretation of the War Crimes Act and the Geneva Conventions, he may have merely been responding to political pressures from the White House to liberate the CIA and the military from the rule of law.”
The Bybee memo did become a principal topic of contention in the Senate confirmation hearings of Alberto Gonzales for attorney general.
If Bybee is reported to his home bar association, it will not be the State Bar of Nevada. In the course of researching this story, the RN&R encountered wide belief in the legal community that Nevada was deprived of one of its seats on the Ninth Circuit by machinations designed to invent Bybee as a Nevadan.
Various attorneys described an unusually long search period for candidates for the seat, during which some leading Nevada lawyers were put through scrutiny that turned out to be a charade. One source said that eight Nevada attorneys, none of them Bybee, were on the final list compiled by Nevada’s senators John Ensign and Harry Reid, and that all of them were interviewed at the White House, but none were selected. Instead, after a long delay, Bybee was nominated. “This is not a Nevada seat anymore,” one leading attorney said. “We are owed a seat.” (Seats on the Ninth Circuit are informally allocated to the states in the circuit.) Bybee was nominated to the seat by George Bush on Jan. 7, 2003 and approved for the appointment by the U.S. Senate on March 13, 2003.
State Bar of Nevada records say Bybee is not a member. He is listed as a “non-member subscriber.” A spokesperson said Bybee was admitted to the bar by the Nevada Supreme Court while he taught at UNLV’s law school.
Bybee’s official biography on the Ninth Circuit website lists only one connection to Nevada—teaching for a year at the Las Vegas law school, 1999-2000. His next position listed is the post of assistant attorney general. He is a member of the District of Columbia bar, but not of Nevada or California bars.
Two Nevada judges contacted said they never heard of Bybee until he was nominated for the Ninth Circuit seat.
“He came out of nowhere,” one judge said. “I’d never heard his name before.”
Bybee is still listed as a faculty member at the UNLV law school, but his bar membership has long since lapsed. There have been calls for Yoo to be removed from the Berkeley law faculty but no such call is known to have been made in Bybee’s case.