Skip to main content

The ABCs of the Unitary Executive

Addington, Alito

Bradbury, Bybee

Cheney, Card

Our binding sheet the torture memo penned by Jay S. Bybee, now a federal appellate judge confirmed for his seat on the U.S. Court of Appeals for the Ninth Circuit by the Senate on March 13, 2003.

The Bybee memo was a formal legal opinion of the Office of Legal Counsel interpreting the Convention Against Torture and the accompanying criminal provisions enacted by Congress in 1996 to prohibit torture.

The co-author of the memo was Bybee's deputy, John Yoo, now a law professor at Berkeley's Boalt Hall Law School. But who wrote what is unclear. In the end, Bybee was the senior official who signed off on the legal opinion, so the responsibility for its content is his.

Bybee's interpretations guided the Bush Administration for twenty-two months. And a powerful case has been made that Bybee's extraordinary reading of the law led to Americans engaging in torture at Abu Ghraib and elsewhere.

The memo defines torture so narrowly that only activities resulting in "death, organ failure or the permanent impairment of a significant body function" qualify. It also claims, absurdly, that Americans can defend themselves if criminally prosecuted for torture by relying on the criminal law defenses of necessity and/or self-defense, based on the horror of the 9/11 terrorist attacks.

Finally, the memo asserts that the criminal law prohibiting torture "may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President's Commander-in-Chief powers."

In short, the memo advises that when acting as commander-in-chief, the president can go beyond the law.

Return for a moment to those days in March of 2003 when laudatory praise was heaped upon Bybee by a gaggle of interesting senators:

Senators Harry Reid (D-Nevada), John Ensign (R-Nevada), Orrin Hatch (R-Utah), Larry Craig (R-Idaho), and Charles Schumer (D-New York) spoke publicly on his behalf.  Strange bedfellows, what?

At the William S. Boyd School of Law at the University of Nevada at Las Vegas where Bybee was a founding member of the faculty, Dean Richard Morgan called him a "nice, humble, and decent human being, who was also a highly intelligent and accomplished lawyer and teacher."  Morgan added that "in a world of big egos and attitudes, Bybee was a breath of fresh air.". . .

To this influential court comes a husband and father of four, an eagle scout, a returned missionary of the Church of Jesus Christ of Latter-day Saints, and a legal scholar who has been on the fast track since he was a Hinckley scholar at Brigham Young University.  Bybee’s distinguished career already spans academic, private, and governmental arenas, and his legal analyses on such topics as the First Amendment, Separation of Powers, and Federalism have appeared in top law reviews and journals throughout the U.S.  Generally considered a conservative, he is tenacious in his pursuit of careful and precise legal analysis.

My God! Yes! Did you see how carefully and precisely he carved down the legal definition of torture to a narrow stricture allowing everything?

To establish his Mormon vitae, Bybee graduated magna cum laude from Brigham Young University in 1977 and cum laude from BYU’s J. Reuben Clark Law School in 1980. Not to mention his service as a Mormon missionary in Chile.

Curtis M. Brown, the Harvard Crimson, in a witty diatribe describing the attempt of Harvard’s Federalist Society to purify Bybee’s torturous past:

But the Harvard Law School Federalist Society thought nothing of inviting Judge Jay S. Bybee, whose infamous "torture memo" of August 2002 gave the thumbs-up to the degradation of hundreds—if not thousands—of human beings, to give a speech on constitutional law.

By not only hosting Bybee but guaranteeing him a forum free of dissent, the Federalist Society has made Harvard complicit in an ongoing whitewash. To understand how Bybee’s reputation has been laundered, we need to look briefly at the history of the torture memo he authored.

Written when its author was Assistant Attorney General for the Office of Legal Counsel, the Bybee memo guided Bush Administration policy towards detainees for almost two years. When its contents were leaked in the summer of 2004, the memo prompted widespread public disgust and was quickly repudiated by the Bush administration.

The document itself is a 50-page patchwork of frightening absurdities. Ingeniously interpreting existing laws, Bybee reasons that "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." He argues that "the infliction of such pain must be the defendant’s precise objective" for torture to have occurred, adding that "knowledge alone that a particular result is certain to occur" doesn’t suffice. Pain itself—not, say, eliciting information—has to be the animating motive.

Bybee’s sophistries are threaded together with a kind of ghoulish moral imperviousness. He speculates that it is "likely" that a court would find that "electric shocks to genitalia" constitute torture. Describing someone being forced to his knees and kicked in the stomach with military boots, however, Bybee decides that the resulting agony would not amount to "severe pain or suffering"—and would thus be permissible.

Having whittled the criminal definition of torture down to a nullity, Bybee then argues that the president can order it done anyway. "Executive officials can escape prosecution if they are carrying out the president’s orders as commander in chief," Bybee writes, invoking the infamous defense the United States had rejected for Nazi war criminals at Nuremberg.

Harold H. Koh ’75, a dean and professor of international law at Yale, described the Bybee memo to the Senate Judiciary Committee as "the most clearly erroneous legal opinion I have ever read," noting that it so "grossly overreads the President’s constitutional power" that it could even be used to justify genocide. "Experts in the law of war say his memo is evidence suggesting he participated in a war crime," wrote John Dean, former counsel to the president during the Nixon Administration.

"We’re scrubbing the whole thing. It will be replaced," one Department of Justice official told USA Today, aptly if unwittingly evoking the coming whitewash. The White House and the Department of Justice distanced themselves from Bybee’s memo. But this cold-shoulder treatment was almost entirely without consequence: even as the memo’s interpretations were publicly renounced, they were quietly transferred—whole paragraphs verbatim—into subsequent memos, which are still operative.

As for Bybee himself, the Senate had already confirmed him for a lifetime seat on the Ninth Circuit Court of Appeals by the time the torture memo was leaked. Gonzales was less fortunate in his timing, and faced numerous questions about the memo during his confirmation hearings for Attorney General. Not having authored it, however, he simply disowned it—an illuminating case study in how deniability supplants accountability.

The Federalist Society has now effectively enlisted Harvard in the process of "scrubbing the whole thing" from Bybee’s résumé. The Alliance for Justice in the Middle East (which I am a member of) and the Law School Advocates for Human Rights together decided to ensure that those who came to hear Bybee speak would not remain in the dark about his background. It should be stressed that we neither planned nor carried out a "disruptive" protest, as has been falsely claimed by the Federalist Society. We didn’t even enter their meeting; we demonstrated outside, and waited respectfully until it was finished to do so.

It is indeed the Federalist Society’s skulking, furtive handling of the event—misleading the public about a cancellation "due to a scheduling conflict" while convening elsewhere in secret, refusing to stand behind their speaker and face legitimate dissent in the customary manner—that is perhaps most encouraging. As the show trials of various "bad apples" continue, those who cultivate them are honored with speaking engagements. But the evident shame of everyone involved in the Bybee appearance may be an indication that the scandal of torture cannot survive its disclosure forever.


There he, Bybee, rests securely on the U.S. Court of Appeals for the Ninth Circuit, unassailable, untouchable. . . But, let us never forget the complicitness of Harry Reid and Charles Schumer in seating him there.

Originally posted to Karen Hedwig Backman on Sun Oct 21, 2007 at 08:20 AM PDT.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Colleges of ??? (4+ / 0-)

    Brigham Young University. Regent College.

    So much to do about the Justice Department.

  •  Torturecrats (1+ / 0-)
    Recommended by:

    That's what I called them once. The name should stick to them.

    Breadth of view is one of the essentials of our profession. The interplay of ideas and the oblique uses of knowledge are often of extraordinary interest. S.H.

    by Carnacki on Sun Oct 21, 2007 at 08:48:57 AM PDT

  •  Good diary (0+ / 0-)

    Love this passage...

    Return for a moment to those days in March of 2003 when laudatory praise was heaped upon Bybee by a gaggle of interesting senators:

    Senators Harry Reid (D-Nevada), John Ensign (R-Nevada), Orrin Hatch (R-Utah), Larry Craig (R-Idaho), and Charles Schumer (D-New York) spoke publicly on his behalf.  Strange bedfellows, what?

    I don't trust any of them as far as I can throw them.  They are unwillingly tolerated.

    / Makes me wanna holler and throw up both my hands. -- Marvin Gaye /

    by Sagittarius on Sun Oct 21, 2007 at 09:00:21 AM PDT

  •  In view of (0+ / 0-)

    the kind of dem leader Reid has shown himself to be, I'm not so sure the bedfellows are all that strange

    Senators Harry Reid (D-Nevada), John Ensign (R-Nevada), Orrin Hatch (R-Utah), Larry Craig (R-Idaho), and Charles Schumer (D-New York) spoke publicly on his behalf.  Strange bedfellows, what?

    People who have no hope are easy to control and those who have the control have the power. Neverending Story

    by choppycursur on Sun Oct 21, 2007 at 09:20:09 AM PDT

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site