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:
INS's regulations implementing the Convention Against Torture define torture as severe pain or suffering, intentionally inflicted on a person "at the instigation of or with the consent of or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. § 208.18(a)(1) (2004). The regulations further provide that "[a]cquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity." Id. § 208.18(a)(7).
(Opinion is here).
<h2>Champion of the Tortured?</h2>
Probably a third to half of all cases heard by the appellate courts (certainly this holds for the 9th circuit) are immigration appeals. Most of the petitioners seeking asylum claim fear of persecution in their native countries and get railroaded by the INS (ICE) and then by the immigration judges.
Since being sworn in for his judgeship, Bybee reviewed at least a dozen of such cases. Nearly invariably, Bybee found against the INS and the Justice Department, and for the petitioner.
These are:
ABEBE v GONZALES 432 F.3d 1037, a Female Genital Mutilation case;
KALUBI v ASHCROFT, 364 F.3d 1134; GHAZARYAN v GONZALES, 04-71956; DUMANGAS v GONZALES, 03-70827; OMONDIAGBA v MUKASEY, 04-73961; CHHOEUNG v MUKASEY, 04-74811; MAHARAJ v. GONZALES, 03-71066, 03-73995;
These are the relevant results of a Google search with string:
Bybee Convention Against Torture "United States Court of Appeals", "Ninth Circuit", "Argued and Submitted"
His record on CAT appeals is arguably better than anyone else's on this relatively liberal circuit, and certainly contrary to what I would expect from a Republican appointee. He may have done some serious thinking.