According to close friends, Judge Jay S. Bybee appears to have adopted the Alberto Gonzalez defense: he is now claiming that he did not write his infamous memo and only signed it. This is similar to the defense that Democrats allowed Gonzales to make on the first torture memo at his confirmation hearing for Attorney General, to wit, he did not read an important policy memo on the commission of a war crime, he just signed it. It is the empty suit defense: I really am not to blame when I sign orders or memos because I just sign things. Bybee has not spoken directly on this matter to the public, but there are now various friends saying that he would like to repudiate the memos and even denies writing the memos.
Bybee’s alleged use of the Gonzales defense at the same time of a dinner for 35 former clerks and friends at a Las Vegas restaurant. While he may have hoped what was said in Vegas stays in Vegas, it did not work out that way. Indeed, it seems that a spontaneous announcement to such a large group was calculated to get out to the wider press and public.
The Washington Post quotes former clerk Tuan Samahon, who said that Bybee used the reunion to defend the legal reasoning behind the memos while saying that he was disappointed by what was done to prisoners, saying that “the spirit of liberty has left the republic.” Hmmm, I wonder how that spirit left the republic when ambitious people like Bybee (who admits that he was campaigning for the judgeship) signed off on a memo defending war crimes based on some of the worst analysis that I have read in a Justice Department memo in my career.
Another friend (and former roommate of Bybee) Steve Guynn recalled that Bybee has told him that he was not responsible for the memo: “I don’t know that he ‘owned it.’ . . . The way he put it was: He was head of the OLC, and it was written, and he was not pleased with it.”
Another friend, University of Nevada law professor Chris Blakesley noted that Bybee indicated that he did sign it but wanted now to repudiate it. That is the account of another friend who insists that “I’ve heard him express regret at the contents of the memo.”
I must confess to be left cold from these accounts. Bybee went to Gonzales to seek the Ninth Circuit judgeship and was asked by Gonzales to serve at the OLC first. He then signed off on a memo endorsing war crimes to Gonzalez’s delight and was later given the judgeship that he sought. Now, he wants to repudiate the grotesque memo that he used to curry favor with Gonzales.
There remains the question of what Bybee lied to Congress in his confirmation hearing, leaving the possibility of impeachment. At a minimum, I agree with Sen. Leahy that Bybee should resign given his role in this infamous program.
For the full story, click here.
FF LEO,
You are most welcome. I wish that people could stay germane to the various issues on a subject and not cross over in other words keep the thread a sewin when we come a talkin.
I know the purpose of Trolls and that is ok, so long as they trolled on the same subject. As much as SR tried to get under my skin I found it fun. Now with FD it is fun. I just wonder if FD and SR are one in the same.
AnonY:
Thank you for your reply, which helps.
FFLEO
From my understanding Congress can act with or with out any charges being filed. Of course with the House filing the charges.
The continuing qualifications to maintain being a licensed attorney to practice in the state or territory is still in effect. They must pay the bar dues and keep up the CLE’s unless excused. So if a complaint is made against a Judge who has to be a licensed attorney it should start with the Displinary Board or what ever the states equivalent is. You can file a complaint and never even have met him.
Also, Yale had an article in 06 I believe that allows congress to summarily remove a sitting Federal Judge without impeachment proceedings
“Given the long tradition of adjudicating misbehavior in the ordinary courts, Congress may enact necessary and proper legislation permitting the removal of federal judges upon a finding of misbehavior in the ordinary courts of law.”
So if he is found guilty of criminal behavior in a court of law he may be summiraly removed from office.
Link: http://www.yalelawjournal.org/116/1/72_saikrishna_prakash_steven_d_smith.html
Side Notes:
With respect to Federal Judges, I am not sure that they have to be licensed attorneys to tell you the truth. I say that because the license and regulation is a pretty new concept in history. I have heard that the first Sct Judges were not licensed they had only and not all had graduated from law school.
You have probably heard of Judge Roy Bean, the Law west of the Pecos. He was real by the way. He was not licensed nor had he gone to law school. He was a Justice of the Peace. Here in Texas they still do not have to be an attorney, you could run.
The Law in Texas used to be an apprenticeship as well as in a number of other states. It was not until the 70s before you had to even graduate from a law school in Texas.
I am of the impression that the US Sct is called by the call of the President. History is full funness, one of the cases that a lot of the power of the Sct rest on is Marberry vs Madison, that was one of the most polictcal cases ever. It is my understanding that they had not been called in to secession for 2 years because of the fueding bewteen the president and congress. That is why you have a blank between 1801 and 1803. Jefferson was not well liked by a number of people.
This fued was further excelled because the President and Veep ran separately and the one with the most votes won. So there was a lot of stagnation between the President and Vice President.
AnonY,
Your link provides names but not the process as per my questions above, q.v. Are you aware of an explanation of what the process is if/when Judge Bybee is investigated and then given any options to resign or removed?
Unfortunately FRCP 11 only applies to papers filed with the court. However this goes to the fitness to act as an attorney and more so his propensity to lie when pressed to do the right thins which go more towards his fitness as a officer of the court hence a judge.
“Judge Jay S. Bybee appears to have adopted the Alberto Gonzalez defense: he is now claiming that he did not write his infamous memo and only signed it.”
DUTY TO READ.
Thanks AY.
As was pointed out by Atticus, Judge Bybee’s execution of the document constituted a representation by him that it fairly and accurately set forth the state of the law on the subject of the memorandum. That he may not have personally done the drafting or any of the research is wholly immaterial. I seriously doubt that he would ever publicly espouse this so-called “defense” because that would only intensify the criticism. I don’t imagine that he wishes the label of “hypocrite” to be added to the descriptions of his work.
Judges Impeached by the US House and Tried by the Senate.
http://www.fjc.gov/history/home.nsf/page/topics_ji_bdy
Ain’t the internet wonderful.
Atticus,
Is your name based on Atticus Finch? Mockingbird was one of my favorite “attorney” stories.
Bybee would never get away with that defense if he was arguing it in front of a real judge. It is way past time that Bybee should be brought up on impeachment charges. Can anyone tell me if a sitting judge can be brought up on criminal charges or does he have to be impeached first?
I reside under the 9th Circuit’s jurisdiction. I request some information on Judge Bybee’s status if an investigation ensues.
Are ‘appointed for life’ judges subject to administrative leave during criminal investigations of them?
If so—or if Judge Bybee resigns—who fills his position and what is the process?
Are any pre-investigation/prosecution decisions rendered by the 9th circuit ‘tainted’ if Judge Bybee is investigated, prosecuted and then found guilty?
Judge Bybee should be familiar with Federal Rule of Civil Procedure 11.
“The empty suit” or empty principle defense.
Which time was it, when he wrote down his principles, let someone else write his principles for him, or when he would not stand up for his principles?
This is the getaway car driver explaining to the judge that he did not pull the trigger and therefore the charges should be dismissed.
Pathetic.
If he in fact did what he claims to have done, is there anymore grounds for Impeachment by Congress? Is this not an ineffective counsel defense that can be used? Would he just sign documents that come across his desk, the bench?
However, I believe a request for Investigation can be asked for in the state in which he is licensed as well as the Judicial Tenure Commission or what ever is the same type of agency that polices Judges and Lawyers in the state that he is licensed.
FRANK RICH
The Banality of Bush White House Evil
Torture was a tool in the campaign to exploit 9/11 so that fearful Americans would support a war that had nothing to do with Al Qaeda.
http://www.nytimes.com/pages/opinion/index.html
“click the second link on the page in the middle.”
Rich: The Banality of Evil
The statments of Bybee are not credible. If he did not want to sign the memo he had the option of resigning. He did not take that option. To not resign would be dereliction of duty. He knew exactly what he was signing, he just didn’t care. Now he’s caught and his career is jeprodized. He’s doing what the rest of these awful people are doing–throwing out one excuse after another, hoping one of them will work.
These people are all cowards, They claim to “love” America. If Dick Cheney loved America he would say: “I broke the law because I thought it was the only way to go. Now I am willing to submit myself before a court of law to answer for my crimes. I see him spouting part A everywhere, just as Pat Buchannan did in the Hardball interview. What I see none of these supposed patriots saying is the corrollary to their argument. They do not say I believe in the rule of law so strongly that I will submit myself immediately to the court for judgement. That gives the lie to any sincereity of their so called patriotism.
Let me be clear. It is my recollection that:
– The chairs and the ranking minority members of the House and Senate intelligence committees, known as the Gang of Four, were briefed that the CIA was holding and interrogating high-value terrorists.
– We understood what the CIA was doing.
– We gave the CIA our bipartisan support.
– We gave the CIA funding to carry out its activities.
– On a bipartisan basis, we asked if the CIA needed more support from Congress to carry out its mission against al-Qaeda.
I do not recall a single objection from my colleagues.”
^^^Porter Goss public statement.
Bybee is just doing what they all do. Lie,lie,lie backed up by deny,deny,deny.
We have been lead to believe so many things over the last 8 years, plus 100 days that it really makes alot of sense. From WMD’s to Obama being a teacher of constitutional law. As Mr. T use to say, “I pity the fools”. Lying is just not for breakfast anymore, it’s become the main course.
Well, wouldn’t you? Or maybe the good jurist was willing to sell his soul by simply writing his name and leaving the deed to some anonymous underling bent of climbing down his own neo-con ladder to hell–but I doubt it.