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.

25 thoughts on “Should Judge Jay Bybee take the blame for the CIA’s rough interrogation tactics?”

  1. Jay Bybee lived in a ward in Baton Rouge where I was serving my mission in the early 1990’s. He was a professor at LSU’s school of law. My recollection was that he had worked in the Reagan and/or Bush I White House at some point prior to becomming a law professor. At the time I didn’t really know much about him as a legal professional. He and his family were very warm and always weloming to the missionaries. I ate dinner in this man’s home once a week for three months and enjoyed being around him and his family.

    Having said that, as I look at this situation both as an attorney and as someone who knew Jay Bybee (admittedly, a long time ago), I can’t help but feel some degree of shock that a fellow faithful Latter Day Saint advocated for such treatment of other human beings. In my opinion, it’s irrelevant whether he broke any laws. I agree with the opinion that he did not break any law. Jay Bybee’s legal opinion, as reflected in the newly released memoranda (and it’s also irrelevant whether he actually wrote them or even read them, he signed them), was abjectly immoral and reprehensible from a Gospel standpoint.

  2. For more information on the topic, Salt Lake attorney and former military law professor David Levine has an article in yesterday’s Salt Lake Tribune about Judge Jay Bybee, deputy White House counsel Timothy Flanigan, and two LDS Air Force psychologists that created the CIA interrogation programs.

    My personal opinions is that deplorable though they may be, Judge Bybee’s legal opinions are not sufficient grounds for disbarment. I do find them repulsive, however, and I’m not particularly pleased to be associated with someone who took such a position.

  3. He rendered a legal opinion, not a moral one. Engaging in a line-drawing exercise is not “abjectly immoral and reprehensible from a Gospel standpoint.”

    As a government attorney I can tell you that as much as I’d like to, I don’t get to insert my moral values into the law. If I did I’d be terrible at my job and I wouldn’t keep it very long.

    The laws of our country are not written by God. They are created and enforced outside of what LDS people consider “right” and “wrong.” I try to follow God’s comandments and thus usually operate well inside the boundaries of the law. However, if I am asked to render a legal opinion about where the outside boundary of the law falls, that does not mean I am condoning behavior that pushes those boundaries.

    In this case, the OLC was asked to determine the outside boundary of what was permissible under the law. By the very nature of the analysis the result was certain to fall into a gray area. Bybee never concluded that those tactics were “right,” just that they were at the boundary of what could be considered legal.

    I guess my point is that I just can’t agree with your decision to make a moral judgment about a person based on their analysis of a previously undecided legal issue.

    P.S. – I also served in the GLBRM.

  4. I haven’t done any research on the issue specifically, but it seems that he broke the law if (that’s a big if) he wrote the memo in some sort of bad faith, i.e., knowing/reckless disregard for truth, etc.,that the memo advocated illegal activity).

    Regardless of whether the laws in question are routinely enforced, I’d say that if a lawyer knowingly advocates illegal activity or has a reckless disregard for the legality of his memo, there is some legal culpability, including disbarment, especially if that activity amounts to torture.

    That being said, I agree that the talking heads don’t discuss the issue in terms of bad faith lawyering and generally gloos over the issue. If he wrote the memo in good faith believing that the contents were an accurate reflection of the law, he did nothing wrong.

  5. I believe that Bybee was asked to give his legal opinion of what was torture; not whether torturing terror suspects is moral or wise. Therefore, we shouldn’t assume that he was Okay with what the Bush administration did with the legal analysis he gave them.

  6. clint,

    This sentence of yours sums up the rationale:
    ‘The fact of the matter is, politics are more important to some of our leaders then keeping this country safe.”

    Legal analysis aside (you can “legalize” all forms of murder of innocent life including the bombing of tens of thousands on our Iraq/Afghanistan revenge tour), but when our safety and our well-being is the controlling factor then we have gone over to the dark side. No thoughtful christian would have lent their pen nor their mind to such blatant nonsense and immoral behavior (who would have Christ tortured or authorized to torture to protect himself or those that would follow his example). We have incrementally become more and more the corporate suits for authority—check out pre-war Nazi Germany. The saints were befriended by Hitler while the JWs and Seventh Day adventists were sent with Jews to the concentration camps. WHy because in not qualifying the 12th article of faith with the natural v. positive law distinctions found in DC 134 we have come to believe we must follow authority even if it means denying Christ. THis memo is a denial of Christ and his teachings. Legally analyze that…

  7. Two things:
    1. Legally, Bybee is completely fine even though I disagree with where he ends up in his memo. Having actually studied National Security Law in Law School (and therefore, my future legal career dependent on my knowledge of the subject) there is little question that where Bybee comes out is within the law. The defect is in the torture statute, not in Bybee’s legal analysis.

    2. Those of you who are judging Bybee based on their measurement of a “christian”, I would ask you to remember a certain scripture “He that is without sin among you, let him first cast a stone at her.” (John 8:7)

  8. I’m rather disappointed by what I find on this blog. The original post and most of the comments above, frankly, seem not to rise above the level of a dormroom bull session, with not much thought or research behind them.

    There actually are some very serious issues on the table here — not just about torture, national security and public policy, but also about the rule of law, and about how government lawyers at the OLC are supposed to act. The head of that office has a weighty responsibility to opine objectively and independently, because his memos are controlling law within the executive branch.

    On the question of possible prosecutions — of lawyers or others — see this heated debate at the Federalist Society site.

    On the question of professional ethical performance, at this point the venue is DoJ’s Office of Professional Responsibility. We await its report. See earlier stories in Newsweek and the Washington Post.

  9. Each of the U.S. laws that I’ve read only proscribe penalties to the person who actually did the “torturing”.Remind me never to hire you as my criminal lawyer. The very section to which you link includes a conspiracy offense. It carries the same penalties, other than death, that are set out for the underlying offense of torture.

    I’m not saying there is evidence that Bybee is guilty of that offense.

    As for disbarment or other ethical censure, let’s wait and see what the OPR investigation concludes about the good- or bad-faith process Bybee and the other OLC lawyers followed, and whether their work was properly independent of White House influence. (They had a duty to tell the president “no” if that’s what the law is, not just to advocate his preferred policy.)

    Maybe they’ll all get gold stars and a pat on the back.

  10. To the anonymous commentor who said they would never hire me to defend them in a criminal case: I still stand by my comment that the laws I have seen proscribe penalties only to the person(s) who actually do the “torturing”. I believe you misinterpreted USC Title 18 Part 1 Chapter 113C Section 2340A. When you read the statute in its interity (see below) there is a penalty to person who is conspiring to torture another. Again, this law is only applying to someone does the torturing or is attempting to do the torturing. Paragraph “c” refers you to the crime described in “a”.
    (a) Offense. – Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
    (b) Jurisdiction. – There is jurisdiction over the activity prohibited in subsection (a) if –
    (1) the alleged offender is a national of the United States; or
    (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
    (c) Conspiracy. – A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

  11. Clint Dunaway,

    See WHITFIELD V. UNITED STATES 543 U.S. 209 (2005):

    As we explained in Shabani, these decisions “follow the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms. See Molzof v. United States, 502 U.S. 301, 307—308 (1992). We have consistently held that the common law understanding of conspiracy ‘does not make the doing of any act other than the act of conspiring a condition of liability.’ ” 513 U.S., at 13—14 (quoting Nash, supra, at 378).

  12. Two quick comments:

    Clint’s original post shows a common misconception many people seem to have about treaties. Clint seems to imply that ratified treaties are not “U.S. Laws.” This is completely wrong. The US Constitution designates treaties as the supreme law of the land, just like acts of Congress. Article VI says: “This Constitution, and the Laws of the United States . . . and all Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land.” This idea is not controversial, and is completely accepted by judges and legal scholars of all political stripes. It has been this way since the Constitution was adopted 220 years ago.

    There can be some question, however, about whether a treaty is self-executing, and thus domestically enforceable without further implementing legislation. When the Senate ratified the torture convention, it did so with the reservation that it was not self-executing. The United States, however, has enacted implementing legislation to fulfill its obligations under the treaty. Moreover, when the Senate ratified the treaty, it stated that it was bound by Article 16, “which requires states to prevent lesser forms of cruel and unusual punishment that do not constitute torture,” but only to the extent that such treatment was prohibited by the 5th, 8th, or 14th amendments. (see this report from the Congressional Research Service: http://www.au.af.mil/au/awc/awcgate/crs/rl32276.pdf ).

    None of what I have said means that I think Bybee would be guilty of violating any laws, I just think that for us to have an informed debate, we all need to understand that treaties ARE U.S. law.

    Personally, I think that a ticking time bomb scenario may justify coercive interrogation methods. I also think, however, keeping secrets is poisonous to any organization or society and that our strength as a society comes from our openness and the free flow of information. I agree with Alan Dershowitz, that if extreme methods of interrogation are going to be used, it is not a good idea to just leave it up to the discretion (exercised in secret) of anonymous executive branch officials, but that there should be some established process to get permission to do so and that, as Dershoqitz says, “it ought to be done openly, with accountability.” To ensure this. Dershowitz talked about setting up a system that requires government officials get a “torture warrant,” possibly from either the President or a Supreme Court justice.

  13. From today’s New York Times:

    WASHINGTON — An internal Justice Department inquiry has concluded that Bush administration lawyers committed serious lapses of judgment in writing secret memorandums authorizing brutal interrogations but that they should not be prosecuted, according to government officials briefed on its findings.

    The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask state bar associations to consider possible disciplinary action, which could include reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said. …

    The draft report is described as very detailed, tracing e-mail messages between the Justice Department lawyers and officials at the White House and the Central Intelligence Agency. Among the questions it is expected to consider is whether the memos were an independent judgment of the limits of the federal anti-torture statute or were deliberately skewed to justify the use of techniques proposed by the C.I.A.And from the Washington Post:

    A draft report of more than 200 pages, prepared in January before Bush’s departure, recommends disciplinary action, rather than criminal prosecution, by state bar associations against Yoo and Bybee, former attorneys in the department’s Office of Legal Counsel, for their work in preparing and signing the interrogation memos. State bar associations have the power to suspend a lawyer’s license to practice or impose other penalties.

  14. James R.,

    I think you are correct about treaties in general, and the Convention Against Torture in particular.

    However, Bybee’s controversial memos did not concern the treaty directly, but expressly concerned the Torture Act, 18 USC 2340 et seq, which was enacted pursuant to CAT. And a key question is whether at least some of what Bybee found not to rise to the level of “torture” under that statute actually did fit the definition. (I think the preponderance of informed legal opinion is that Bybee was wrong on the merits of that, although there remains a contrary view.)

    But there is another issue that the CAT raises: It obligates signatory nations not only to criminalize torture, but to prosecute credible allegations that torture has occurred.

    One of those who take Bybee’s side on the merits of whether waterboarding comprises torture is Prof. Jeffrey F. Addicott of St. Mary’s University School of Law. He so testified today at a Senate Judiciary subcommittee hearing on the subject. But Addicott also said:

    “In conclusion, those who order, approve, or engage in torture must be criminally charged. If the United States determines that waterboarding as practiced by the CIA is torture, there is no option. Under the Torture Convention violators must be prosecuted. Similarly, lawyers at the Department of Justice who approved the practice must also be prosecuted. As discussed, however, the CIA enhanced interrogation techniques approved in the subject legal memorandums puts one in an ambiguous zone, a zone unknowable without firm judicial guidance.”

    I happen to disagree with Bybee and Addicott on the merits. I think waterboarding clearly is torture. More importantly, so does the attorney general of the United States.

    Given that state of affairs, do you think the CAT treaty forces prosecutions? (I am not sure that there is not room for proseecutorial discretion, since the treaty language actually commits us to “submit the case to its competent authorities for the purpose of prosecution.” Assigning a special counsel, I think, would satisfy that requirement even if he brought no indictments.)

    Ultimately, interpreting the statutory definition of torture is for the courts to settle. All that is lacking is an upstanding defendant willing to bet his case on the merits of Bybee’s opinion. There seem to be no volunteers.

  15. I am not a lawyer, I’m a writer, and I know lawyers are trained to think differently, yet I think perhaps some of the legal minds might benefit from my humble perspective. If I write an article on fishcakes and submit that article to an editor to correct my work and make sure it falls with perimeters my intended publisher wants, though that editor might hate fishcakes and may gag through the whole disgusting ordeal, I did not ask him to expound on his personal like or dislike of fish cakes. I just want to make sure my article is within the perimeters my intended publisher has set forth. So… as a good editor is suppose to do, he corrects my errors and offers suggestions without destroying my original intent and gives me the article back. Now let’s say, someone reading the printed article gets sick from the recipe I’ve included. That person may write back a disparaging comment about me, but would he be right to go after my editor, which totally agrees with the complaint of the disgusting fishcakes, yet was bound by his profession to do nothing more than correct my grammatical errors?

  16. I am not a lawyer, I’m a writer, and I know lawyers are trained to think differently, yet perhaps some of the legal minds might benefit from my humble perspective. If I write an article on fishcakes and submit that article to an editor to correct my work and make sure it falls with perimeters my intended publisher wants, though that editor might hate fishcakes and may gag through the whole disgusting ordeal, I did not ask him to expound on his personal like or dislike of fishcakes. I just want to make sure my article is within the perimeters my intended publisher has set forth. So… as a good editor is suppose to do, he corrects my errors and offers suggestions without destroying my original intent and gives me the article back. Now let’s say, someone reading the printed article gets sick from the recipe I’ve included. That person may write back a disparaging comment about me, but would he be right to go after my editor, which totally agrees with the complaint of the disgusting fishcakes, yet was bound by his profession to do nothing more than correct my grammatical errors?

  17. kclady53,

    I don’t quite follow the fishcakes-and-editors parable.

    A more apt analogy would be that of a judge, who has an obligation to examine the arguments on all sides and rule objectively on what the law is, not what he or those who appointed him think the law ought to be. That was effectively the duty Bybee had in his particular office of the Justice Department, because his opinion was binding law within the executive branch.

    For an understanding of what some legal ethicists allege Bybee did wrong, see this testimony of David Luban, a Georgetown U. law professor, before a Senate Judiciary subcommittee hearing last week.

    For details of what the Justice Department’s Office of Professional Responsibility found wrong or right with Bybee’s conduct, we await its report.

  18. How Ironic. It is not illegal because he writes the legal escape clause.

    Get off the grass people. I’m in Australia anbd I know enough of your counstitution. Isn’t there something about cruel or unusual punishments in there?

    Beyond that is humanity, clearly some lack it in legal defense of obscene justifications for physical abuse.

    What was his name, was it

    I’m sure Zeezrom would have made a great case for King Noah to burn Abinadi at the stake…”you’re the king, nothing in our statutes suggesting this is an illegal action Noah.

    At least Zeezrom left teh dark side and did some good. How about some of you here who do know better?

  19. Trust lawyers to be able to split hairs when any person with common sense would be able to say "This is wrong and I will not be a party to it." Their craft is inherently dishonest and immoral, should it therefore surprise us that they are able to put any ethics on hold while excusing torture? And as Bybee does not think that any of these techniques as described in his memo are torture, then he would not object to using them for a year on his wife and kids.

  20. I think that some of the reasons why more and more Americans are becoming so disenfranchised with discrepancies in the justice system. Between the rich and the poor and the rule of law that no longer seem to pertains to the leaders and upper class of these United States. Are represented by some of the comments I have seen posted here.
    Brother Bybee will stand before his creator, and may have to explain that crucifixion was never intended to fall under the umbrella of "enhanced interrogation techniques."

  21. Political figures should be held responsible for what they take part in. If he did in fact approve of or take part in a bill that un-constitutionally infringed on personal freedoms than he is responsible. It is a politicians responsibility to our communities to know what they are involved. We are a Republic, with freedom for everyone equally. We have a due process of law for good reason. The Patriot act and other similar restrictions on freedom are putting into writing and made legal when Bolshevik Russia or Nazi Germany just did without asking. It is far more tenacious and dangerous to try and integrate these ideals into our concepts of freedom by making them legal.

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