Ninth Circuit Judge Jay S. Bybee responded yesterday to critics about his infamous role in writing some of the torture memos. Notably absent is his earlier denial of being the author of the memos that he signed, according to close friends. He now stands by the torture memos and Rep. Peter King (R., N.Y.) says that Bybee should be given a medal for rationalizing torture. I discussed the Obama press conference and the torture issues on this segment of Rachel Maddow.
Bybee stated “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.” Bybee likes sees little choice but to defend these memos despite their fundamental flaws on the law and critical facts. The memos clearly struggled to come to a conclusion that the torture program was lawful — at a time when Bybee was lobbying for the appointment to the Ninth Circuit from Attorney General Gonzales.
Bybee seems to ask for a bit of a constitutional Mulligan by adding “[t]he legal question was and is difficult. And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.” Notably, while Judge Bybee appears entirely unaware of the fact, but the prohibitions on torture specifically rule out such contextual justifications. For example, the Article 2 of the Convention Against Torture reads in part: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.” By the way, Article 2 also says in direct contradiction of arguments made by both Bush and Obama officials that “An order from a superior officer or a public authority may not be invoked as a justification of torture.”
Perhaps the most interesting a statement in the New York Times from Ninth Circuit Judge Betty Fletcher, who says “I have not talked to other judges about his memo on torture, but to me it seems completely out of character and inexplicable that he would have signed such a document.” That is quite a rebuke from a judicial colleague.
For the full story, click here.
Judge Bybee is trapped. He cannot renounce the memos without subjecting himself to a charge of hypocrisy, or worse. He is thus forced to defend his endorsement of poor scholarship, thereby calling into question his competence. Were I his lawyer, my advice would be to say absolutely nothing, the type of advice most often ignored by clients. He cannot win a public debate on the legal merits of his opinions and his comments will only serve to strengthen the conclusion that he gave the Bush administration what it wanted in return for getting what he wanted. And I believe we all know the value of medals conferred for service during the Bush presidency.
I do not practice in the 9th, but if I did, I would get my digs in every time I was in his court. or at least every time he ruled against my client and it was a close call. From his justifications and knowing that the US is bound by a treaty that has been ratified by congress, I do not in good faith see how this man can justify his decisions.
What this fool calls a close call, is clearly against Art 2 of the CAT. He should take the opposite side on each and every case. That would be expected of him. IMPEACH.
Medal, well, chains around the neck with the head scarf on would look nice. Medal he wants, metal he will have.
And to think, that he makes decisions based upon the law. WOW.
If I were Congress I would not let him resign. I say give him a Trial and learn all of the other dirty little deeds this minion did while in his position, air it public. Make him squirm.
If he did not show up, have it in absentia.
For the folks needing or wanting to know what this means. In the common law system a person could be convicted even when that person is absent from the purview of the court. Thats a trial in which they are not present to answer the charges, is held to be a violation of natural justice.
If I was the chief Judge of the 9th Circuit, I would have every file and or case reviewed to assure that Justice is not for sale to the highest bidder.
I doubt that this venal rationalizer even read the CAT before “torturing” out the opinion that was expected of him by the Bush administration. Any letter of resignation he pens should not be accepted – he should be impeached.
‘Fesser said:
“Bybee seems to ask for a bit of a constitutional Mulligan by adding..” \
________________
You have to be one of the wittiest and most well read men I have ever had the pleasure of reading. Of course, we all know that you are at the pinnacle of legal knowledge and on the intellectual pedestal your profession as a constitutional scholar.
Gems like *Mulligan* intertwined within legal prose are sheer perfection.
JT:
Psst, a little tip from a friend: Please, please, JT don’t trouble Judge Bybee with little trifles like the Convention Against Torture that we helped draft and that St. Ronnie signed. Bybee was a man on a mission to save the Republic like Paul Revere. You wouldn’t stop Paul Revere would you–where would we get cheap cookware if you did? Whatever Bybee did was justified by the ends involved. How dare you spout law to a lawyer or morality to a judge of his fellow man’s action! Everything’s malleable, don’t you see. The legal issue is really tough–if you make it so–and you can’t truly want to hold a nice guy like Jay responsible for a few deaths and some necessary barbarism. Enough already there Pollyanna, let the man administer the law as written until some other threat, real or imagined, strikes his fancy and we can just let his discretion dictate our actions and thus establish our reputations. What do you think this is anyway, a representative democracy? I feel a bit embarrassed having to explain this you, you being a learned colleague and all.
On the medal issue, maybe George Tenet will give Bybee his medal. They both did about the same thing to earn it.
Welp, ‘da judge can always earn a livin’ ‘n prisin’ sewing orange garments for his new signatory sleeper line called:
Beddie-By-Bee Snuggies
For the sophistication and feel any jailbird will luv..and..they come in *buddie* sizes for the cuddly socialization skills needed by friendly couples who reside in big houses.
Seriously, this man resides over MY 9th Circuit and I do not want his style of “jurisprudence” out ‘sheer’ in the Great West.
Judge Roy Bean whould know what to do with such a fellow jurist…
“…there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo. And there are other senior officers who are convinced that the proximate cause of Abu Ghraib was the legal advice authorizing abusive treatment of detainees that issued from the Department of Justice’s Office of Legal Counsel in 2002.”
Statement of Alberto J. Mora, General Counsel of the US Navy (2001-2006)
to the Senate Committee on Armed Services Hearing
on the Treatment of Detainees in U.S. Custody, June 17, 2008
http://armed-services.senate.gov/statemnt/2008/June/Mora%2006-17-08.pdf
ARTIST:
TITLE: Prison Party
Lyrics and Chords
I went to a Prison party to reminisce with my old friends
A chance to share old memories and play our songs again
When I got to the Prison party, they all knew my name
No one recognized me, I didn’t look the same
/ D – G – D – G – / D A Bm – G A7 D – / 1st /
/ D – G – Em7 A7 D – /
{Refrain}
But it’s all right now, I learned my lesson well
You see, you can’t please everyone, so you got to please yourself
/ G A D – G A D – / G – D – Em7 A7 D – /
People came from miles around, everyone was there
Big John brought his walrus, there was snake oil in the air
And over in the corner, much to my surprise
Mr. Big Dude hid in Shelia’s shoes wearing his disguise
{Refrain}
Played them all the old songs, thought that’s why they came
No one heard the music, we didn’t look the same
I said hello to Barry Lou, he belongs to me
When I sang a song about a honky-tonk, it was time to leave
{Refrain}
Someone came out of the closet and out stepped Johnny B. Goode
Playing guitar like a-ringin’ a bell and lookin’ like he should
If you gotta play at garden parties, I wish you a lotta luck
But if memories were all I sang, I rather drive a truck
{Refrain}
Could not resist after the codes were “plained” to me.
Petey King used to be my congressperson. He was a slimy member of the Nassau County Republican political machine typified by former Sen. Al D’Amato. This group, which could serve as a model for sleazy politics anywhere, has waned in its’ power after numerous corruption convictions. To give you an idea civil Servants were made to make part contributions before being promoted. Mr. King has always been a hardliner Republican except of course on matters that affected his own pocketbook.
As I wrote in another thread, I once did some research for a script on the law in Hitlers Germany.
I was surprised to read that this issue has been well researched a long time ago, in regards to Hitlers Germany. Hitler had the judiciary and conservative lawyers giving him ‘law like’ cover and in fact had asked the German equivalent of congress for ‘elasticity’.
History seems to be repeating itself.
Buddha:
this one is for you!
“Rumours of a link between the US first family and the Nazi war machine have
circulated for decades. Now the Guardian can reveal how repercussions of
events that culminated in action under the Trading with the Enemy Act are
still being felt by today’s president
Ben Aris in Berlin and Duncan Campbell in Washington The Guardian, Saturday 25
September 2004 23.59 BST larger | smaller Article historyGeorge Bush’s
grandfather, the late US senator Prescott Bush, was a director and shareholder
of companies that profited from their involvement with the financial backers
of Nazi Germany.
The Guardian has obtained confirmation from newly discovered files in the US
National Archives that a firm of which Prescott Bush was a director was
involved with the financial architects of Nazism.”
I guess it is in the “genes”.
the link is:
http://groups.google.com/group/alt.politics/browse_thread/thread/aa10a3b97c26f5bd
Bron,
This has been known for many years and there were US government records going back to the early 40′s. The media has suppressed the story even though there is no doubt of its’ authenticity. His other partners in the firm were the Dulles Brothers. John Foster Dulles who was Eisenhower’s Secretary of State and Allen Dulles who JFK fired as head of the CIA and who was a leading figure in the Warren Commission Report.
MikeS:
I am just a “slow” ex-republican, I am taking baby steps and the fact that I was willing to read it and entertain the possibility is mind expanding at least for me (you guys have a little more time invested). Although I tend to believe it because Bush 43 and family seem to be a little too close to the House of Saud. Those apples didnt fall very far from the tree. I suppose the moral of the Bush story is to find a dictator(s) so you can put some cash in your pocket.
Hey Bron, you copy/paste formatting aint up to snuff Sport, get with the program! injuneers is parsnipity folks
__________
By the way folks, these last few days have been good reading without all the bickerin’ and foul language. So let’s all keep in line and if one of us regulars, Including Me, get’s outa-line, let the others ‘whip’ ‘em in line and back on track.
Notice how much more traffic were are getting and less junk? However it is hard for an ‘illitarate’ old man like me to keep up and I lose my posts or think, I thot I sayed that but guess not…
FFLEO:
I think it must have something to do with raster positional orientation and subcognate electrical pathways.
Bron, Okay, sounds good. I never understood rasters but I just loved vectors…
Allen Dulles, the Nazis, and the CIA
Supreme Court Justice Arthur Goldberg once stated that “The Dulles brothers were traitors.” Some historians believe that Allen Dulles became head of the newly formed CIA in large part to cover up his treasonous behavior and that of his clients.
Link
http://www.enter.net/~torve/trogholm/secret/rightroots/dulles.html
Allen Welsh Dulles
From Wikipedia, the free encyclopedia
Jump to: navigation, search
Allen Welsh Dulles
Allen Welsh Dulles
5th Director of Central Intelligence
In office
February 26, 1953 – November 29, 1961
President Dwight D. Eisenhower
John F. Kennedy
Preceded by GEN Walter Bedell Smith, USA
Succeeded by John McCone
Born April 7, 1893
Watertown, New York
Died January 29, 1969 (aged 75)
Allen Welsh Dulles (April 7, 1893 – January 29, 1969) was the first civilian and the longest serving (1953–61) director of central intelligence (de facto head of the U.S. Central Intelligence Agency) and a member of the Warren Commission. Between stints of government service, Dulles was a corporate lawyer and partner at Sullivan & Cromwell.
Link
http://en.wikipedia.org/wiki/Allen_Welsh_Dulles
Is it not amazing what one can find on the I-Net if only give the proper search terms.
I always look forward to listening to your reasoned arguments and commentaries about constitutional issues on MSNBC.
I don’t understand how any citizen of the United States–especially a judge–can justify the torturing of detainees.
Here’s one of my rhyming rants about Jay Bybee:
Bye-bye, Bybee
Bye-bye, Bybee—
You so-and so—
It’s time you were benched.
It’s time to go.
Return your robe—
And your gavel too!
Judgment day is here
For you and Yoo.
You and Yoo,
The infamous two
From the OLC—
The lawyers who
Used tortured logic
And legalese
To circumvent laws…
Two corroborees
Who defined techniques
For interrogation
(Enhanced AND sadistic)
With specification.
You think you did it
For the good of our nation?
You think there truly
Is justification
For waterboarding…
Other tortures as well?
YOU’RE a rotten thing in Denmark
And you’re starting to smell!
Judge Bybee is trying very hard to make everyone believe that he was “just doing his job” as an OLC attorney. That excuse didn’t work at Nuremberg and it won’t fly now.
Rafflaw,
I hope your summation is correct. I say give him his metal as the GOP wants. Make sure it has a nice clasp for the wrist and ankle bracelets.
AY,
A nice perp walk out of the building would be nice too!
Bron,
Thanks for the lovely gift. Now I’ll have a matched set of “Prescott Bush, Nazi Banker” action figures (with briefcase full of loot and “lame wussy white guy” grip). It’s a bit of history I’ve been familiar with since Daddy’s tenure at CIA, but I’m glad you found out about it. After all, it’s one of those things too easy to dismiss as fantastic unless one finds out for themselves. W., as I’ve said before, is an incompetent dry-drunk clown. But he comes from a long line of master villains. They consider themselves “blue bloods” when in fact it is a darker hue still. The color Gene Wolfe calls fugilin, the shade darker than black.
There may still be a day when the name Bush is as socially unacceptable as the hosts of German names reduced to hushed family secrets in the wake of WWII. I certainly hope so.
As for Bybee, there simply is no defense for what he has done. A 2L with head trauma knows better. If he’s not impeached or forced out otherwise, just you wait for the paperwork maelstrom he’s going to get asking for his recusal on EVERY case that comes before him.
Raff,
When the ocean calms enough for me to return to sleep, I just want you to know I’ll be counting perp walks in my head like little handcuffed sheep. It’s a happy thought.
One question about Jonathan’s article – it referenced the Convention Against Torture but the United States has not ratified this yet. The U.S. has signed but not ratified. As such, can Bybee’s memo be held to the convention’s requirements?
PC
Why does the U.S. have to comply with the Convention Against Torture?
Because the U.S. ratified the treaty in October 1994, it is obligated to comply with the provisions of the treaty just as it would any other domestic law. The U.S. Constitution itself makes clear that treaties are “the law of the land.”
Maybe Bybee was just dreaming that he needed to figure out if it was torture or not, what ya say?
PC
Update for you. FYI, I know you want to know.
Does the Convention apply only to U.S. actions abroad?
No. The Convention Against Torture applies to all U.S. actions inside the United States and all U.S. actions outside the United States wherever the U.S. exercises effective control. For example, the Convention applies to the actions of U.S. officials at U.S. detention facilities in Guantanamo Bay and Iraq.
Do you think this could be any plainer?
Does the Convention apply only to the federal government and its officials?
No. The Convention applies to all government entities and agents, including all state and local governments in the United States. The Convention thus applies to government actions in all prisons and jails in the U.S., and to all police departments and other state and local law enforcement agencies. The Convention also applies to private contractors who carry out government functions.
I suppose this even applies to Blackwater, KBR, Me, You and who ever is acting under the guidance of the government. I think that I read that it even applies if it happens and not at the direction of the Government. . .
Well said AY. Buddha, I like the vision of handcuffed Bush officials jumping over the fence at Gitmo instead of sheep to put all good girls and boys to sleep at night.
Rafflaw,
You know they say Catherine the Greats Mount was riding her well until the harness broke. What ever that means.
Now I have read that this has been a myth. Oh well, I guess that gives a new meaning to Naybor. But the again, some would complain that there goes the Nayborhood.
Bringing in the Sheep, Bring in the Sheep, here we come rejoicing until they let out a peep.
Excellent!!
http://www.npr.org/templates/story/story.php?storyId=103606406
Philippe Sands – Spanish Court To Investigate Bush’s ‘Torture Team’on NPR (audio)
In his book Torture Team, Philippe Sands alleges that the use of harsh interrogation tactics against detainees constitutes a “betrayal of American values.”
Detainees Can Pursue Suit Against CIA
by: Carol J. Williams
The Los Angeles Times
The US government cannot avoid trial by claiming the state
secrets privilege in the lawsuit brought by ex-Guantanamo
detainee Binyam Mohamed and four others, who allege they
were tortured.
The president cannot avoid trial of a lawsuit brought by
five former CIA captives, who allege they were tortured,
by proclaiming the entire case a protected state secret,
a federal appeals panel ruled today.
Both former President George W. Bush and President Obama’s
Justice Department lawyers had argued before federal
courts that a lawsuit brought by former Guantanamo prisoner
Binyam Mohamed and four others should be dismissed in the
interests of national security.
I have appeared before numerous appellate panels for oral argument over the years. On each of those occasions I have been asked to defend legal positions asserted in my written briefs. That is how it works. I can recall no instances in which I have felt compelled to provide the Bybee response, which, translated into plain English, goes something like this. “Okay, I’ll grant you it is not a defensible opinion. But it was a dangerous time, I was under pressure to support my client’s decision and I did that the best that I could, which meant that I had to completely ignore all contrary legal authority.” If a lawyer were to give a similar answer to a Ninth Circuit panel, his future credibility with that court would be rightfully destroyed, unless of course he were to be given a position on that court. As we see, there is a creative solution for every problem.
The spin off on the Bushes and the Nazis is fascinating; Bybee is terrifying.