Bybee, Mormons and Torture, the debate continues

It has been weeks since we first began discussing Judge Bybee’s role in the Bush administration’s rough interrogation tactics but the debate still rages on. Ann Wright recently wrote an article for the Huffington Post; Two Mormons, Two Different Ethics on Torture. Wright says in part;

“In September 2003, another Mormon, a woman soldier U.S. Army Specialist Alyssa Peterson, said she refused to use the interrogation techniques Bybee had authorized on Iraqi prisoners. An Arabic linguist with the U.S. Army’s 101st Airborne Division at Tal Afar base, Iraq, 27-year-old Peterson refused to take part in interrogations in the “cage” where Iraqis were stripped naked in front of female soldiers, mocked and their manhood degraded and burned with cigarettes, among other things. Three days later, on September 15, 2003, Peterson was found dead of a gunshot wound at Tal Afar base. The Army has classified her death as suicide.”

“Jay Bybee, in thanks for his being the loyal soldier to the Bush administration’s policies of torture, was nominated and confirmed by the U.S. Senate as a judge on the Ninth Circuit Court of Appeals, where he sits to this day in his lifetime appointment. Jay Bybee, an author of torture, reportedly has a placard in his home for his children “We don’t hurt each other.”

“Alyssa Peterson, for saying no to torture, is dead, perhaps by her own hand.”

“To help Alyssa Peterson rest in peace, I say we should demand accountability from our officials and impeach the torture judge, Jay Bybee.”

Should the fact that Bybee is Mormon be such a focal point? Are all Christians held to the same standard or is more expected from Mormons?

Ruling for Community of Christ in trademark suit against breakaway church

Those of you familiar with the history of the Mormon Church know that it has a few breakaway groups, the largest of which is known as the Community of Christ. However, until 2001 it was known as the Reorganized Church of Jesus Christ of Latter-day Saints, or RLDS Church, since that title is more than a mouthful. Despite the name change, the Community of Christ maintains the trademark to the RLDS name.

The recent history of the Community of Christ has been one of sweeping policy and doctrinal changes, which have resulted in quite a few breakaway congregations over the years. One recent offshoot is the Devon Park Restoration Branch, which was apparently using the RLDS name and old logo on its signs, stationary, website, etc. The Community of Christ didn’t like this, of course, and sued in federal court for trademark infringement. COC alleged that the Devon Park church violated the copyright (which the COC still maintains) and that the use had a substantial likelihood of confusion.

The federal judge agreed, granting a preliminary injunction. Missouri District Court Judge Gary Fenner wrote that the confusion was particularly great since the Devon Park congregation was located so close to the COC headquarters in Independence, Missouri.

The Community of Christ can fully appreciate the importance of a name. Years ago, before the recent doctrinal changes and attempts to distance itself from the original Mormon Church, the then-RLDS Church offered to deed the Kirtland Temple over to the LDS Church in exchange for the rights to the name “Church of Jesus Christ of Latter-day Saints.”  One person familiar with the offer explained that the LDS Church declined the offer. The logic was that a piece of property can always be acquired later through various means, but losing a name is permanent.

Hat tip: Religion Clause
Photo credit: coolvalley

Should Judge Jay Bybee take the blame for the CIA’s rough interrogation tactics?


Should Judge Jay Bybee be the fall guy for the CIA’s rough interrogation tactics of terror suspects? Yesterday, Time Magazine wrote an article describing Bybee as a “top Justice Department official who approved an array of so-called “enhanced interrogation techniques” against alleged al-Qaeda members that many observers call torture.” The article continues; “though Bybee wasn’t the only person responsible for crafting the Bush administration’s interrogation policy, unlike his erstwhile colleagues he continues to hold public office, sitting on the Ninth Circuit Court of Appeals. He now faces calls for impeachment from Sen. Patrick Leahy, former Obama aide John Podesta and the New York Times editorial board, among other corners. The Justice Department has distanced itself from much of Bybee’s work and is reportedly preparing a scathing internal report that could call for him and others to be reprimanded or even disbarred.”

DISBARRED? DISBARRED!? All these talking heads keep saying that Bybee has broken both International and U.S. laws but SHOW ME what laws he has broken. I’ve looked and I can’t find a single law of the United States that he broke. Each of the U.S. laws that I’ve read only proscribe penalties to the person who actually did the “torturing”. Let’s be honest the Bush administration was going to interrogate terror suspects anyway they wanted, regardless of what their lawyers told them. Additionally, are we really going to “reprimand” or “disbar” a United States Circuit Judge over the “standards” of an international treaty? Give me a break! Our country signs a treaty a day that we don’t abide by. Why start now? And with a Federal Judge?

The fact of the matter is, politics are more important to some of our leaders then keeping this country safe.

Bybee received his B.A., from Brigham Young University in 1977, graduating magna cum laude. He went on to receive his Juris Doctorate from BYU’s J. Reuben Clark School of Law three years later. He served his mission for the Church of Jesus Christ of Latter-day Saints in Chile from 1973- 1975.

Nordyke v. King: Right holding, wrong reasoning

A unanimous Ninth Circuit panel of judges recently held that the Second Amendment was incorporated (or applied) against state and local governments in the case Nordyke v. King. I haven’t read the whole opinion yet, but it looks like I agree with the outcome of the case, if not the methods the court used to reach the conclusion.

(I should mention at the outset that I don’t see Second Amendment issues as having a particular “Mormon” component. Firearms are not permitted in Mormon houses of worship, but the LDS Church has never taken a position on the appropriateness of gun control laws. My anecdotal experience with other Mormons has shown that there is a wide range of opinions on this subject within the Church. For my part, my interest in the Second Amendment is almost purely legal — I don’t own a firearm and I have never had any interest in hunting.)

The Second Amendment has a strange history with respect to state and local governments. The Supreme Court has chosen to incorporate constitutional amendments selectively against the states, usually under the Due Process Clause. Under this approach, constitutional provisions are incorporated when they involve “fundamental liberties.” In Nordyke, the Ninth Circuit panel held that the Second Amendment right to bear arms “ranks as fundamental, meaning ‘necessary to an Anglo-American regime of ordered liberty.'” In its decision the court specifically references District of Columbia v. Heller , the D.C. handgun ban case.

I agree with the court in Nordyke. I think the Second Amendment clearly should be incorporated against state and local governments to prevent unconstitutional restrictions on a constitutional right. But I, along with many legal scholars, disagree with the approach the Supreme Court has taken since the first incorporation case, Duncan v. Louisiana (1968). Justice White’s opinion for the Court in Duncan held that the defendant in that case was wrongfully convicted without a jury trial, and incorporated the Sixth Amendment jury protections against the states. However, Justice White’s opinion held that only fundamental rights within the system of Anglo-American jurisprudence could be incorporated. This produced a series of Supreme Court cases that have one-by-one incorporated almost all of the Bill of Rights against the states. The most notable exception is the Second Amendment, but there are others, including the quartering of troops, and a right to a jury in civil trials.

My thinking follows that of Justice Black, whose strident dissent in Duncan is just as valid today as it was in 1968. Justice Black asked, if only “fundamental” rights are incorporated, what determines whether a right is “fundamental”? This inevitably leads to reliance on extra-constitutional sources (such as history, cultural norms, etc.) which Justice Black thought were unreliable, easily manipulated, and unpredictable. I think this is exactly right, and I think this has opened the door for reading new and unintended rights into the U.S. Constitution, such as the ill-defined “right to privacy”. I agree with Justice Black that a better approach would be to incorporate the Bill of Rights in its entirety against state and local governments using the Privileges and Immunities Clause. The selective incorporation approach has reached similar results to that advocated by Justice Black, since almost all the Bill of Rights is now incorporated. But the Second Amendment is an obvious example of how this approach is inconsistent, so I disagree with the court’s reasoning in Nordyke.

To be clear, my quarrel really isn’t with the Ninth Circuit panel. The judges there followed the selective incorporation doctrine because they were thus bound by precedent. But as an armchair quarterback watching these cases without the burden of stare decisis, I think selective incorporation is hopelessly flawed. The good news is that the recent spat of gun control challenges is likely to result in a Supreme Court case that could overturn selective incorporation.

Photo credit:  Kevitivity.

BYU Law prof Larry EchoHawk to head Bureau of Indian Affairs

President Barack Obama has nominated BYU Law professor Larry EchoHawk as the head of the Bureau of Indian Affairs, a sub-agency that is part of the Department of the Interior. Professor EchoHawk is a former Attorney General and State Representative for the State of  Idaho. EchoHawk is a member of the Pawnee Nation and has a long history of connections with BYU. He played varsity football for BYU in undergrad, has taught at the law school since 1994, and is currently serving as a BYU stake president. Congratulations to Professor EchoHawk. It seems that BYU’s loss is the Bureau’s gain.

Legal topics abound at LDS International Society Conference

On April 6, the day after General Conference, the LDS International Society is holding its 20th Annual Conference.  The topic this year is “The Church and the Global Community,” and several of the sessions feature interesting legal issues and presentations by well-known LDS attorneys.

  • Diane Card, the lead international attorney for the Perpetual Education Fund, will speak on some of the legal issues and obstacles associated with administering a program with thousands of donors and recipients in different countries.
  • Professor Cole Durham of the BYU Law School will speak on current initiatives related to religious liberties.
  • Attorney Roger Baker will moderate a panel discussion entitled “Poverty Relief Initiatives: Looking Forward.”

The International Society Conference will be held in the Hinckly Alumni and Visitors Center on Brigham Young University campus. The conference is open to the public, and other than the luncheon, there is no charge to attend any of the sessions.  Also, if you cannot attend, the proceedings of each year’s conference are made available free of charge to members of the International Society.

Photo credit: crsflick.

LDS International Society 20th Annual Conference Agenda (PDF)

Legal highlights of LDS General Conference

This weekend is the LDS Annual General Conference, and there will be various events for just about everyone to participate in. The J. Reuben Clark Law Society is hosting a reception in between the morning and afternoon sessions of conference on Saturday, April 4, in the Joseph Smith Memorial Building. All JRCLS members are invited to attend, and you can register here.

If you aren’t a JRCLS member or can’t attend, you can still see some exciting legal events throughout the weekend on the sidewalks surrounding Temple Square. Every year dozens of protesters turn out to condemn Mormons as they attend the conference, so you’ll have a front row seat to the clash of prescient legal issues like free speech, property law, defamation, and separation of church and state.

However, if you’re like most of us, you won’t be anywhere near Salt Lake City this weekend. I’ll be watching General Conference online, and maybe on TV if I can find it on satellite somewhere. The Mormon blogging scene (sometimes known as the “Bloggernacle,” a term I dislike) always goes into overdrive over Conference Weekend. Some of the well-known Mormon blogs like Times & Seasons and By Common Consent usually carry open comment threads for communal live-blogging. They’ve been pretty entertaining in years past, so check them out.

As far as the actual conference itself, the lawyer-types can look forward to addresses by Elders Dallin Oaks, Todd Christopherson, and Quentin Cook. Their addresses are always interesting to me because of the occasional use of legal language or metaphors that add an additional subtext. And if you’ve ever seen a transcript of one of Elder Oaks’ talks, you know that they almost resemble law journal articles, complete with Roman numeral headings and extensive footnotes. One of the highlights of this conference will inevitably be the announcement of a new Mormon Apostle to replace Joseph B. Wirthlin who died late last year. Last time there were vacancies in the Quorum of the Twelve they were replaced by two attorneys. That probably won’t happen again, however. Some might say that there aren’t any good attorneys left.

Photo credit: Geoff Belknap

Utah governor vetoes video game bill

Various tech blogs are reporting that Utah Governor Jon Huntsman has vetoed a bill that purported to impose harsh penalties on retailers that sold M-rated video games to underage buyers. Among other penalties, the bill would have provided for seller liability in a civil suit. However, as critics of the bill have pointed out all through the legislative process, the proposed provision had a gaping loophole that would have allowed retailers to opt out of the ratings system altogether. In addition to ineffective problems, the bill likely would not have passed constitutional muster because the language was so imprecise and was not content-neutral. That was the reason cited by Governor Huntsman when he vetoed the bill yesterday. In his accompanying letter (PDF), Huntsman specifically stated his opinion that the bill violated the Dormant Commerce Clause and/or the First Amendment.

The video game bill, HB353, had very broad support in both the Utah House and Senate, so there is still a chance of a legislative override. However, I hope that isn’t the case. Legislation like this is often popular in conservative jurisdictions like Utah, but there’s no point in passing an unconstitutional law that won’t accomplish anything. Additionally, this bill has a strange pedigree, as it was purportedly drafted by Jack Thompson, a controversial disbarred Florida lawyer who has campaigned in several states for laws against video games.

Does the Mormon Church have a position on Internet filtering?

Over the weekend I ran across an article, awkwardly entitled “Mormons demand ICANN plugs net smut hole.” Curious, I clicked on the link, but I almost closed it again when I saw that the article was from The Register. Fortunately, I kept reading and found some interesting tidbits. The article talked about how ICANN, the non-profit organization that controls much of the structure of the Internet, has received a petition (PDF) from a group called CyberSafety Constituency. The organization hopes to be accepted as the newest constituency recognized by ICANN, with the purpose of representing the interests of “families, children, consumers, victims of cybercrime, religions, and cultures.” This is mostly a policy issue, but as is often the case, it is hard to separate law from policy. I realized that ICANN policies are not technically laws — they might even be illegal, since ICANN was not created to make policy decisions — but inasmuch as it controls the architecture of the Internet, ICANN’s word is law.

Kevin Murphy, the author of the article, doesn’t do a particularly good job explaining the situation. He apparently concludes that this is a Mormon initiative becuase the proposal is being led by Ralph Yarro III, a well known (and sometimes controversial) Internet and technology figure who is CEO of the Utah-based SCO Group, Inc. The proposal was authored by Cheryl Preston, attorney for CP80, a Utah-based group that proposes “zoning” online adult content to certain ports. Murphy further points out that many of the commenters in the public comment phase have cited their location as Utah. And as he points out, Utah is 58% Mormon. Boom! It must be a Mormon initiative. (Murphy also throws in a superfluous jab against the Mormon church, citing a recent study (PDF) that found that Utah led the nation in online adult content consumption.)

Kevin Murphy did not mention that Cheryl Preston, the CyberSafety Constituency petitioner, is also a BYU law professor. I think this is probably the strongest argument that this ICANN petition is Mormon-supported, although it still isn’t dispositive — individual Mormons are active in a broad array of organizations or causes. To my knowledge, the LDS Church has never taken a position on how the Internet should be governed, or what architecture mechanisms should be used. Even if the Mormon Church supported some sort of protocol that facilitated content filtering, it isn’t clear what level of filtering it would advocate. One the one hand, the Church generally opposes pornography, but it also has vested interest in maintaining strong First Amendment rights for its own free exercise of religion. I don’t believe there is an official Mormon position on how that balance should be maintained.

For my part, I am reluctant to alter current architecture in the way CP80 proposes. I can see the value in adopting mechanisms that would make it easier for parents to control the content or security threats exposed to their children. But all of these proposals run up against a definitional problem. Even if a functional filtering process is put into place, who decides what content belongs in what “channel”? It’s a problem reminiscent of Justice Potter Stewart’s famous concurrence in Jacobellis v. Ohio, calling it “trying to define what may be indefinable.” I also have some reservations about the proposed CyberSafety Constituency’s purpose and scope, because the purpose cited in the petition is colossally broad and potentially contradictory. But the bottom line is that this initiative is not supported by the Mormon Church. Not all Mormons would support it, and most Mormons have probably never heard of any of the proposed constituency or its supporting organizations.

J. Reuben Clark Law Society Broadcast tonight

Here’s a reminder that the 2009 J. Reuben Clark Law Society Annual Broadcast is tonight at 8:00 PM EDT (rebroadcast at 9:30 PM EDT for the western time zones) . The speaker will be Elder Quentin L. Cook of the Quorum of the Twelve Apostles, who had a successful career as a corporate attorney prior to his call to full-time church service.

Many local attorney and student JRCLS chapters have organized events around the broadcast this evening; check the full listing of scheduled events to find one in your area.