The ABCs of the Unitary Executive
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.