As is now widely known, on August 22, 2002 Jay Bybee signed off on a memo opining that the CIA is free to waterboard, strip naked, douse with cold water and slam into walls its interrogation targets.
On March 21, 2003, Bybee became a federal judge in the 9th Circuit court of appeals.
A year later, in May, 2004, Circuit Judge Bybee was a part of a three-judge panel that heard the asylum case of Luis Reyes-Reyes, a undocumented alien fearing persecution and torture because of his sexual identity should he return to his native El Salvador after 24 years in the US.
UN Convention Against Torture, signed by the United States in 1988 and ratified in 1994, was the foundation of Rayes's case. Remarkably, judge Bybee did not recuse himself. While Bybee agreed with the outcome (ruling against the INS), he refused to join in core parts of the legal analysis. In particular, Bybee did NOT sign off on the language of the opinion author, Circuit Judge McKeown:
Neither the IJ nor the BIA may redefine "torture" in defiance of the explicit text of the regulations and the clear intent of Congress. See Zheng, 332 F.3d. ("The definition of torture has been properly left, not to the INS, but to Congress....").
Still, the most remarkable part is what Bybee did write:
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