Bybee Defends Torture Memos While Ranking Republican Says He Should Be Given Medal

180px-bybee1Ninth 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.

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35 thoughts on “Bybee Defends Torture Memos While Ranking Republican Says He Should Be Given Medal”

  1. I may have missed something in this discussion thread, but I would suppose that as long as the present regime is in power Judge Bybee has nothing at all to worry about except the opinion of decent people.

  2. The spin off on the Bushes and the Nazis is fascinating; Bybee is terrifying.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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. . .

  8. 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?

  9. 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?

  10. 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.


    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.

  11. 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.

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