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Saturday, April 18, 2009

Impeach Jay Bybee

Jay Bybee is a caring husband, a devout Christian, and a brilliant jurist. He is also the author of a legal opinion that defended the use of water boarding and similar actions.

According to a memo released last week, these actions do not constitute torture.

1. Attention grasp
2. Walling
3. Facial hold
4. Insult slap
5. Cramped confinement
6. Wall standing
7. Stress positions
8. Sleep deprivation
9. Insects placed in a confinement box
10. Water board

Judge Bybee's 18 page memo concludes: "Based on the foregoing, and based on the facts that you have provided, we conclude that the interrogation procedures that you propose would not violate Section 2340A (of Title 18 of the United States Code's prohibition against torture)."

Here is Jay's impressive resume:

Federal Judicial Service:

Judge, U. S. Court of Appeals for the Ninth Circuit
Nominated by George W. Bush on January 7, 2003, to a seat
vacated by Proctor R. Hug, Jr.; Confirmed by the Senate on March 13,
2003, and received commission on March 21, 2003.


Brigham Young University, B.A., 1977
Brigham Young University, J. Reuben Clark Law School, J.D., 1980

Professional Career:

Law clerk, Hon. Donald Russell, U.S. Court of Appeals for the
Fourth Circuit, 1980-1981
Private practice, Washington, D.C., 1981-1984
Attorney, Office of Legal Policy, U.S. Department of Justice,
Attorney, Civil Division, U.S. Department of Justice, 1986-1989
Associate counsel to the president, The White House, 1989-1991
Professor, Paul M. Hebert Law Center, Louisiana State
University, 1991-1998
Professor, William S. Boyd School of Law, University of Nevada,
Assistant attorney general, Office of Legal Counsel, U.S.
Department of Justice, 2001-2002

Based on this description on a
Latter Day Saint's web site, he comes across as likeable and astute, a model jurist.

On the day the U.S. Senate confirmed Jay S. Bybee’s nomination to the Ninth Circuit Court of Appeals, the largest appellate court in the country, this new judge went home to celebrate in his usual unaffected way—by helping his kids with their homework and washing the dishes. This ability to balance priorities in his personal life is a reflection of the balance and perspective that Bybee brings to the law, which leads friends, colleagues and law school students to respect him for his fair-mindedness, scholarship, and decency.

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.

Jay Bybee on the U.S. Capitol steps with his family
left to right: Ryan, Judge Bybee, his wife Dianna, Scott, Alyssa, David

Since he is a Nevada appointee to the Ninth Circuit, he and his wife Dianna Greer Bybee and their four children, Scott (15), David (13), Alyssa (11), and Ryan (9), are in the process of relocating from their home in the Vienna Ward, Oakton Virginia Stake, to their former home in the Sunridge Ward, Henderson, Nevada Anthem Stake. Sister Bybee, the daughter of Harvey and Nada Greer of Fair Oaks, California, is also a graduate of BYU. The couple met at the National Archives in Washington, D.C. at a showing of the film, “Mr. Smith Goes to Washington,” and were married in the Oakland Temple in 1986. She has worked for a public relations firm in Nevada and recently taught family and consumer sciences at Yorktown High School in Arlington, Virginia.

Bybee attributes much of interest in the law to family influence. His grandfather George Hickman was an attorney and city judge in Albany, California, and his parents, Scott and Joan Bybee instilled in each of their children a respect for the laws of the land. Raised in Las Vegas, Nevada, and Louisville, Kentucky, Bybee said his parents encouraged academic excellence with family discussions and games. All four siblings, Jay, David, Karen, and Lynn served missions and married spouses who served missions. Bybee served in the Chile, Santiago Mission from 1973-75 and his wife served in the Paraguay, Asuncion Mission from 1980-81.

The Constitution is the bedrock of Bybee’s professional life, and one of the hallmarks of his career has been articulate and thought-provoking constitutional scholarship. He became interested in the Constitution as a child when a teacher taught him that “the people are truly in charge, that this is a government of the people, not a government of the leaders.”

Regarding the law itself, Bybee said he appreciates the role of law in a society which must ask the fundamental question, “How are we going to conduct ourselves?” He explained that there is a system of rules and standards in the law as well as in our personal lives. In his own home, for example, a standard is, “Be nice,” and a rule to encourage that is, “Don’t hit.” He also pointed out that standards are always harder to enforce because it is difficult to define exactly what the standard is. “How do you define honesty,” he asked, “and who is applying the definition?”

It’s no surprise that Bybee’s interest in the rule of law extends to a study of ancient law, notably in Old Testament times. As the Gospel Doctrine teacher in his ward, he saw parallels in the way people interpreted and applied ancient law to the way many individuals do so today.

“People in the Old Testament were absolutely devoted to the law of Moses and required exact obedience to it,” he explained. “Their main concern was that they not find themselves on the wrong side of the law, and they spent their lives trying to bring themselves and each other into conformity with it. While we should admire their zeal to follow the rule of law, we nevertheless have to recognize that without understanding the spirit or purpose of the law, there aren’t enough rules in the world to make a person be good.”

Bybee believes that society would function better if people demonstrated an attitude of reconciliation rather than revenge. He said some lawyers become entrenched, and instead of finding common ground and shared values between contending parties, such lawyers tend to “litigate to the death.” Bybee has witnessed the effect on those individuals and families who fight over everything and become estranged.

Bybee says he is honored by his new judicial appointment, but feels the tremendous responsibility of his new position. “Talk is cheap,” he says. “There’s a difference between the theoretical discussion of the law and its practice. I take very seriously the fact that I have people’s economic interests, liberty, and very lives in my hands.”

And what kind of judge will he be? Only half in jest, Judge Bybee adds, “I would like my headstone to read, ‘He always tried to do the right thing.’”

Judge Bybee did not do the right thing. He did the wrong thing. Jay did the easy wrong rather than the hard right, by giving specious legal cover for war crimes. This speciousness is most apparent in Bybee's distinctions between pain and suffering, mental suffering and physical suffering, momentary pain and prolonged pain, pain that results in death and pain that does not result in death, and the threat of pain and actual pain. It is frightening word play and people died because of it.

Perhaps Bybee wrote his memo because of his fear that terrorists could decapitate the federal government-- that the United States and its institutions and values were in mortal peril. That fear may have been well grounded but it justifies nothing. The answer to terrorism is not to destroy those very institutions and values that distinguish us from terrorists. This country has encountered and have overcome challenges not less daunting without having to compromise those institutions or values, including the Civil War and World War II.

The best way to understand Bybee is to understand what drove Adolf Eichmann to orchestrate the Final Solution against Jews and other people during World War II. Perhaps, like Eichmann, Bybee was a careerist, willing to abdicate this conscience to advance his career. Eichmann himself said he joined the SS not because he agreed or disagreed with its ethos, but because he needed to build a career.

In Eichmann in Jerusalem, political theorist Hannah Arendt concluded that, aside from a desire for improving his career, Eichmann showed no trace of an anti-Semitic personality or of any psychological damage to his character. She called him the embodiment of the Banality of Evil, as he appeared to display neither guilt nor hatred. Stanley Milgram interpreted Arendt's work as stating that even the most ordinary of people can commit horrendous crimes if given certain incentives. He wrote: "I must conclude that Arendt's conception of the banality of evil comes closer to the truth than one might dare imagine."

Bybee shares the banality of evil that Eichmann manifested with his lack remorse and his lack of self-understanding that he was an instrument of the state in the conduct of crimes against humanity, and his self-reinforcing rationalizations.

What seems to elude Bybee in particular is how profoundly unconstitutional he is, using argument and power to circumvent constitutional and democratic principles of accountability and ethics.

The core principle that Bybee seems to uphold is that the ends do justify the means-- that the protection of his family and the nation from terrorists requires the torture of those he believe are terrorists. And why not? In a ticking bomb situation, in which innocent lives are at risk, why not round up, torture, and kill? It is a question that we need not answer because it is a false choice-- between the absence of law and the preservation of our national security.

The way to see this most clearly is to personalize it. Yes, I would feel good lynching Osama bin Laden, the man who brought so much pain and death to our country, just as I would feel good at hurting anyone who hurt my family. But legal process is just as much a protection for me as it is for bin Laden and anyone else, as some day that process could be turned against me. It is this lack of process that opens the way up to witch hunts and far worse.

Bybee perverts judicial conservatism and the law of the land by making law nothing more or less than a mutable instrument of state power.

Jay Bybee loves his wife Dianna and his children Scott, Ryan, Alyssa, and David. But history tells us that liberty is a fragile flower that can be crushed by personality and expedience. What if the wheel of democracy should someday turn to totalitarianism and Bybee is brought before a Stalanoid kangaroo court? What if he is asked to prove that he is not and never has been a member of al Qaeda? But his persecutors are sure that he is a sleeper and his protests only increase their doubts until their doubts becomes the most compelling fact of his guilt. Would it now be acceptable to introduce to Jay walling and water boarding until he confesses to that which he is not? In Orwell's 1984, Winston has a primal fear of rats, and it was a rat cage of starving rats that turned Winston into a true believer. Everyone has their tipping point, their point of vulnerability, and Stalin, ever the cynic, once said "that if you deliver to me a prisoner, he will be claming that he is the King of England by morning." Perhaps in Bybee's case, it might be the water boarding of Dianna Bybee and their winsome children or their liquidation. For if the ends justify the means, the deaths of Dianna, Ryan, Scott, Alyssa, and David are merely justifiable means to a state-sanctioned end.

Instead of the principle that the ends justify the means, the alternative principle was best stated by 18th century philosopher Immanuel Kant: "Act in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never merely as a means to an end." So, instead of using the name Zubaydah, the operative in question that is sprinkled throughout the memo, let us as a thought experiment now use the name Jay Bybee or Dianna Bybee or Ryan Bybee or Scott Bybee or Alyssa Bybee instead.

Bybee's memo not only fails this test but sweeps away the last 700 hundred years of western jurisprudence. And for this he was nominated to the Ninth Circuit Court?

It is not enough that Bybee thought that he was a patriot and that he thought that he was doing the right thing. The same can be said of every war criminal and of every serial killer almost without exception. Whatever his motivatation, the effect was to undermine respect for the constitution and to provide legal cover for crimes against humanity. By so doing, he did not protect our country and uphold our constitution as was his oath. To the contrary, he provided a recruitment tool for yet more terrorists that exposed our country to yet more peril while eroding all meaning for the constitutional premise of judicial due process.

For these reasons, I agree with Yale professor Bruce Ackerman that Bybee should be impeached. That said, I doubt that he will be impeached, and perhaps it is sufficient that we simply lift the rock and expose the depravity that was the Bush justice policy.

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Anonymous Anonymous said...

Okay seriously, the memo isn't his opinion. There was already a law in place, and his department was asked to interpret the law. Get it right. He and other top lawyers had to make some tough interpretations and were doing their jobs to the best of their ability.

September 30, 2010 at 9:01 PM  

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