Jay Bybee

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Following the September 11 attacks, the George W. Bush administration classified detainees as unlawful combatants, claiming they were not protected under the Geneva Conventions as prisoners of war. In late 2001 and early 2002, these detainees were subjected to beatings, electric shocks, exposure to extreme cold, suspension from the ceiling by their arms, and drowning in buckets of water. [12] [13] An unknown number died as a result. [14] In April 2002, the CIA had captured its first important prisoner, Abu Zubaydah, who was transferred to a CIA black site and subjected to sleep deprivation using bright lights and loud music, all prior to any legal authorization from the US Justice Department. [15] Later that April, CIA contractor James Mitchell proposed a list of additional tactics, including locking people in cramped boxes, shackling them in painful positions, keeping them awake for a week at a time, covering them with insects, and waterboarding, a practice which the United States had previously characterized in war crimes prosecutions as torture. [15] [16] [17]

Jose Rodriguez, head of the CIA's clandestine service, asked his superiors for authorization for what Rodriguez called an "alternative set of interrogation procedures." [18] The CIA sought immunity from prosecution, sometimes known as a "get out of jail free card." [19] To this end, CIA acting General Counsel John A. Rizzo requested a legal opinion, which was routed to the OLC by White House General Counsel Alberto Gonzales, who desired the "ability to quickly obtain information from captured terrorists and their sponsors." [20] The CIA requested an interpretation of the statutory term of "torture" as defined in 18 U.S.C.   § 2340, which implements, in part, the obligations of the United States under the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Together with John Yoo, Bybee drafted the Torture Memos, a set of legal memoranda which gave the CIA legal cover to torture detainees using "enhanced interrogation techniques". These techniques are viewed as torture by the Justice Department, [21] Amnesty International, [22] Human Rights Watch, [23] medical experts in the treatment of torture victims, [24] [25] intelligence officials, [26] and American allies. [27]

According to journalist Seymour Hersh, Bybee wrote in a memo that "for an act to constitute torture it must inflict pain...equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." [28] For this and other memos, critics have called for his impeachment or resignation. [29] Bybee and five others, known as the "Bush Six", were the subject of a war crimes investigation in Spain, [30] but the government decided against prosecution in 2011.

A memo declassified in 2012 indicates that some in the Bush State Department believed that the methods were illegal under domestic and international law, and constituted war crimes. [3] Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions, [31] and U.S. Navy general counsel Alberto J. Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" of the memo. [32] Philip D. Zelikow, former State Department adviser to Condoleezza Rice, in 2009 testified to the Senate Judiciary Committee studying the matter, "It seemed to me that the OLC interpretation of U.S. constitutional law in this area was strained and indefensible. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution." Zelikow also alleged that Bush administration officials attempted to destroy his memos alleging fault in Bybee's reasoning. [33]

Human Rights Watch and The New York Times editorial board have called for the prosecution of Bybee for "conspiracy to torture as well as other crimes". [34] [35]

Office of Professional Responsibility investigation

In July 2009, after a five-year inquiry, the Office of Professional Responsibility released a report, later modified by the Justice Department, saying Bybee and his deputy John Yoo committed "professional misconduct" [36] : 260  by providing legal advice that was in possible violation of international and federal laws on torture. [36] : 255–256  The OPR initial report recommended that both Bybee and Yoo be referred to the bar associations of the states where they were licensed for further disciplinary action and possible disbarment. [37] The final recommendations in the report were overruled by Associate Deputy Attorney General David Margolis, who examined the OPR report and wrote that Bybee and Yoo had used "poor judgement" [38] : 68  but did not "knowingly or recklessly provide incorrect legal advice or ... provide advice in bad faith." [38] : 64 

Margolis's decision not to refer Yoo and Bybee to the bar for discipline was criticized by numerous commentators. [39] [40] [41] [42]

Federal judicial service

Bybee was first nominated to the United States Court of Appeals for the Ninth Circuit, the largest U.S. appellate court, on May 22, 2002. The Senate recessed for mid-term elections without acting on the nomination, which was "returned without action" in November 2002 under Senate Rule XXXI, Paragraph 6. [43]

President George W. Bush resubmitted his nomination on January 7, 2003. The Senate Judiciary Committee reported favorably on Bybee's nomination by a 12–6 vote (10 Republicans and 2 Democrats for, 6 Democrats against) in late February and forwarded the nomination to the full Senate for consideration. [44] Senate deliberations took place on March 13, 2003. [45] The Senate confirmed Bybee's nomination by a 74-19 vote the same day. [46] Bybee received his commission on March 21, 2003. [47] Justice Sandra Day O'Connor administered the oath of office at the United States Supreme Court building on March 28, 2003. [48]

Democratic Senator Charles Schumer noted that he supported Bybee's confirmation specifically because the judge's conservative views would help to moderate "the most liberal court in the country." [49] Some critics decried his confirmation, calling Bybee "an extremist who takes an overly limited view of federal power" and criticizing his "narrow view of individual rights", including abortion and gay marriage. [50]

Bybee was confirmed in 2003, more than a year before news of his role in the torture memos was revealed. [51] According to Senator Patrick Leahy, "If the Bush administration and Mr. Bybee had told the truth," regarding Bybee's role in the Torture Memos, "he never would have been confirmed." [51]

In July 2019, it was reported that Bybee planned to assume senior status by the end of the year. [52] On September 20, 2019, President Donald Trump announced his intent to nominate Lawrence VanDyke to Bybee's seat. [53] VanDyke was confirmed by the Senate on December 11, 2019. [54] Bybee assumed senior status on December 31, 2019. [47]

Significant opinions

On January 13, 2005, in a 2–1 decision, Bybee wrote for the majority in United States v. Bruce. This case refined the rules for defining whether or not an individual is considered a Native American. The current two-prong Rogers approach requires that the individual's degree of Indian blood as well as his tribal or government recognition as an Indian be taken into consideration. [55]

On August 2, 2005, Bybee was one of three judges on a Ninth Circuit panel that ruled on Doe v. Kamehameha Schools. With Judge Robert Beezer, Bybee voted for the majority decision that the schools' admissions policy constitutes "unlawful race discrimination." The two judges said the private school's policy violates federal civil rights law. Susan Graber issued a partial dissent. That panel's ruling was overturned on December 5, 2006, by an 8–7 decision of the Ninth Circuit's fully active appeals judges en banc, after a rehearing sought by Kamehameha Schools. [56]

On January 10, 2006, in an en banc decision, Judge Bybee wrote the opinion for the majority in the case of Smith v. Salish Kootenai College . In that case, James Smith sought to have a case heard in federal court which he had previously brought in a tribal court. When he disagreed with the tribal court's decision, he claimed that it had had no jurisdiction in the first place. In an 8-3 decision, the Court upheld the tribal court's jurisdiction over the subject matter, thereby strengthening tribal courts' rights to claim jurisdiction. [57] [58]

On September 11, 2006, Bybee wrote the majority opinion in Kesser v. Cambra, granting habeas corpus to the defendant by a 6–5 vote. Richard Kesser had been convicted of hiring a hitman to kill his former wife and was sentenced to life without parole. During Kesser's trial in 1995, the prosecutor had eliminated three Native American jurors and one Asian juror for racial reasons. Effectively granting Kesser a new trial, this decision laid out the current Batson analysis in the Ninth Circuit. [59] [60]

On November 7, 2006, Bybee wrote on behalf of a unanimous three-judge panel in the case of Lankford v. Arave. Mark Lankford had been convicted of murder and sentenced to death nearly two decades earlier. The Ninth Circuit granted habeas corpus based on ineffective assistance of counsel and faulty jury instructions, and noted that there was support for Lankford's theory that his brother committed the murders in question. [61] [62]

On August 21, 2008, in U.S. v. Craighead, the Ninth Circuit held that the defendant's rights had been violated when he was interrogated in his own home without first being read his Miranda rights. In that case, numerous law enforcement officers had arrived at the defendant's home because he was suspected of having downloaded child pornography. In a decision written by Bybee, the Court held that the defendant's interrogation had been custodial and therefore violated his Fifth Amendment rights. [63]

On November 7, 2008 (but amended twice in January 2009), the Ninth Circuit tackled the issue of due process rights of individuals who were mistakenly placed on the California Child Abuse Central Index (CCACI), a registry for accused and known child abusers. In Los Angeles County v. Humphries , Craig and Wendy Humphries fought to have their names removed from the CCACI after the courts had cleared them completely of abuse charges brought by a rebellious child. Because the state of California had no system in place for removing names that did not belong on the CCACI, the Court held that the CCACI violated the due process rights of those who had been falsely accused but could not get their names removed from the CCACI. [64]

On December 30, 2008, Bybee wrote the opinion for the Ninth Circuit in Gonzalez v. Duncan. In that case, Cecilio Gonzalez had failed to reregister as a sex offender within five working days of his birthday. Because of prior convictions, he had been sentenced to twenty-seven years to life under California's Three strikes law. The Court held that the sentence was grossly disproportionate to the crime. [65]

On August 29, 2012, Bybee, who previously wrote the dissent in a three-judge panel's ruling, authored the majority opinion that found Arizona sheriff Joe Arpaio and special prosecutor Dennis Wilenchik were not entitled to governmental immunity. The case involved the alleged false arrest of two newspaper publishers who had criticized the Maricopa County, Arizona, sheriff. In an 11-judge en banc hearing, the Ninth Circuit reversed the panel's decision and held the two defendants could be civilly tried for a potential award of damages for the arrests, violations of free speech and alleged selective enforcement. [66]

On March 24, 2021, Bybee wrote the 7–4 majority opinion in Young v. State of Hawaii (en banc), a case that upheld Hawaii's law that requires someone to demonstrate the "urgency or need" to openly carry a firearm in order to do so. [67]

Personal life

Bybee is married to Dianna Greer, a high school teacher. [9] On November 19, 2013, Bybee's twenty-six-year-old son, Scott Greer Bybee, committed suicide at the Las Vegas Mormon Temple. [68] [69] A lifelong member of the Church of Jesus Christ of Latter-day Saints (LDS Church), Bybee served a mission for the LDS Church in Santiago, Chile from 1973 to 1975.

Publications

See also

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References

  1. ↑ "The Honorable Jay S. Bybee". William S. Boyd School of Law . UNLV. Retrieved October 20, 2021.
  2. 1 2 "Bybee publication list at University of Nevada, Las Vegas". Archived (PDF) from the original on June 6, 2010. Retrieved September 19, 2021.
  3. 1 2 Ackerman, Spencer (April 4, 2012). "CIA Committed 'War Crimes,' Bush Official Says". Wired.
  4. ↑ James, Randy (April 28, 2009). "Jay Bybee: The Man Behind Waterboarding". TIME. Archived from the original on May 1, 2009.
  5. ↑ Irvine, David (April 29, 2009). "LDS lawyers, psychologists had a hand in torture policies". Salt Lake Tribune . Archived from the original on March 1, 2012.
  6. ↑ "WhoRunsGov: The best political profiles on the web". Archived from the original on November 25, 2009.
  7. 1 2 "Jay Bybee description from University of Nevada, Las Vegas". Archived from the original on April 10, 2009. Retrieved February 27, 2009.
  8. ↑ "Jay S. Bybee Biography". Federal Judicial Center. GPO. Archived from the original on January 17, 2006.
  9. 1 2 Johnson, Page (2003). "Jay S. Bybee Named to Ninth Circuit Court". Meridian Magazine. Archived from the original on June 28, 2008. Retrieved January 28, 2009.
  10. ↑ Bush, George W. (July 10, 2001). President intends to nominate Jay S. Bybee to be Assistant Attorney General for the Office of Legal Counsel . Retrieved April 26, 2009– via National Archives.{{cite book}}: |work= ignored (help)
  11. ↑ "Senate Judiciary Committee Hearings, Jay S. Bybee Nomination to OLC". Congressional Record. Library of Congress. October 23, 2001. Archived from the original on January 13, 2016. Retrieved April 29, 2009.
  12. ↑ Philip Zelikow (April 21, 2009). "The OLC "torture memos": thoughts from a dissenter". Foreignpolicy.com. Retrieved June 16, 2015. The focus on waterboarding misses the main point of the program. Which is that it was a program. [The program was to] disorient, abuse, dehumanize, and torment individuals over time.
  13. ↑ CBS News (March 28, 2008). "Ex-Terror Detainee says U.S. Tortured Him". 60 Minutes . Retrieved October 26, 2014.
  14. ↑ Glenn Greenwald (June 30, 2009). "The Suppressed Facts: Death by U.S. Torture". Salon . Retrieved October 26, 2014.
  15. 1 2 Risen, James; Apuzzo, Matt (December 15, 2014). "C.I.A., on Path to Torture, Chose Haste Over Analysis". The New York Times . Retrieved December 16, 2014.
  16. ↑ Eric Weiner (November 3, 2007). "Waterboarding: A Tortured History". NPR . Retrieved December 15, 2014.
  17. ↑ Glenn Kessler (December 16, 2014). "Cheney's Claim that the U.S did not prosecute Japanese soldiers for waterboarding". The Washington Post . Retrieved December 16, 2014.
  18. ↑ Stahl, Lesley (April 29, 2012). "Hard Measures: Ex-CIA head defends post-9/11 tactics". 60 Minutes . CBS. Retrieved July 25, 2018.
  19. ↑ Pugliese, Joseph (2013). State Violence and the Execution of Law: Biopolitical Caesurae of Torture, Black Sites, Drones. Routledge. p. 278. ISBN   978-0415529747.
  20. ↑ Schwarz, Frederick August Otto; Aziz Z. Huq (2007). Unchecked and Unbalanced: Presidential Power in a Time of Terror. New York City: The New Press. pp.  78–81. ISBN   978-1-59558-117-4. OCLC   71286622.
  21. ↑ Stout, David (January 15, 2009). "Holder Tells Senators Waterboarding Is Torture". New York Times . Retrieved April 21, 2009.
  22. ↑ "Amnesty International: Waterboarding Is Never Acceptable Regardless of the Circumstances". Reuters . February 5, 2009. Archived from the original on January 21, 2010. Retrieved May 24, 2009.
  23. ↑ "Open Letter to Attorney General Alberto Gonzales". Human Rights Watch. April 5, 2006. Retrieved April 17, 2009.
  24. ↑ Mayer, Jane (February 14, 2005). "Outsourcing Torture". The New Yorker . Retrieved April 17, 2009.
  25. ↑ "Former member of UN Committee Against Torture: 'Yes, waterboarding is torture'" (Press release). International Rehabilitation Council for Torture Victims. February 12, 2008. Archived from the original on May 2, 2009. Retrieved April 21, 2009.
  26. ↑ Grey, Stephen (2006). Ghost plane: the true story of the CIA torture program. New York City: St. Martin's Press. p.  226. ISBN   0-312-36023-1. OCLC   70335397. As one former CIA official, once a senior official for the directorate of operations, told me: 'Of course it was torture. Try it and you'll see.' Another, also a former higher-up in the directorate of operations, told me: 'Yes, it's torture'
  27. ↑ Williams, Carol (May 1, 2009). "Jay Bybee Silent on Interrogation Memos". Los Angeles Times . Retrieved May 24, 2009.
  28. ↑ Hersh, Seymour (2013). "Chain of Command". The Physics Teacher. 51 (4): 4. Bibcode:2013PhTea..51..248K. doi:10.1119/1.4795376.
  29. ↑ Vick, Karl (April 25, 2009). "Friends Say Judge Bybee Regrets Interrogation Memo He Signed" – via washingtonpost.com.
  30. ↑ Abend, Lisa (March 31, 2009). "Will a Spanish Judge Bring Bush-Era Figures to Justice?". Time . Archived from the original on April 3, 2009. Retrieved May 24, 2009.
  31. ↑ Isikoff, Michael (May 17, 2004). "Memos Reveal War Crimes Warnings". Newsweek .
  32. ↑ Mayer, Jane (February 27, 2006). "The Memo: How an Internal Effort to Ban the Abuse and Torture of Detainees was Thwarted". The New Yorker . Retrieved April 22, 2009.
  33. ↑ Eviatar, Daphne (May 13, 2009). "Philip Zelikow: OLC Interpretation Would Allow Waterboarding of U.S. Citizens". The Washington Independent. Archived from the original on May 26, 2009. Retrieved June 9, 2009.
  34. ↑ "No More Excuses: A Roadmap to Justice for CIA Torture". hrw.org. Human Rights Watch. December 2015. Retrieved December 2, 2015.
  35. ↑ "Prosecute Torturers and Their Bosses". The New York Times . December 21, 2014. Retrieved April 17, 2015.
  36. 1 2 Department of Justice Office of Professional Responsibility (July 29, 2009). Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists (PDF) (Report). United States Department of Justice. Archived from the original (PDF) on October 26, 2020. Retrieved May 29, 2017.
  37. ↑ Johnson, Carrie (January 31, 2010). "No sanctions for Bush lawyers who approved waterboarding, report will say". Washington Post. Retrieved September 2, 2011.
  38. 1 2 Margolis, David (January 5, 2010). "Memorandum of Decision Regarding the Objections to the Finding of Professional Misconduct in the Office of Professional Responsibility's Report of Investigation into the Office of Legal Counsel's Memoranda Concerning Issue Relating to the Central Intelligence Agency's Use of 'Enhanced Interrogation Techniques' on Suspected Terrorists" (PDF). U.S. House of Representatives House Committee on the Judiciary. Archived from the original (PDF) on May 5, 2010.
  39. ↑ Luban, David (February 22, 2010). "David Margolis Is Wrong". Slate . Archived from the original on December 1, 2018. Retrieved December 1, 2018.
  40. ↑ Lithwick, Dahlia (February 22, 2010). "Torture Bored: How we've erased the legal lines around torture and replaced them with nothing". Slate . Archived from the original on December 1, 2018. Retrieved December 1, 2018.
  41. ↑ Cole, David D. (2010). "The Sacrificial Yoo: Accounting for Torture in the OPR Report". Journal of National Security Law & Policy. 4: 477. Archived from the original on December 1, 2018. Retrieved December 1, 2018.
  42. ↑ Horton, Scott (February 24, 2010). "The Margolis Memo". Harper's Magazine . Archived from the original on December 2, 2018. Retrieved December 1, 2018.
  43. ↑ "Senate Judiciary Committee, Jay S. Bybee Nomination to 9th Circuit Court Returned". Congressional Record. Library of Congress. November 20, 2002. Archived from the original on January 13, 2016. Retrieved April 29, 2009.
  44. ↑ "Senate Judiciary Committee Hearings, Jay S. Bybee Nomination to 9th Circuit Court". Congressional Record. Library of Congress. February 27, 2003. Archived from the original on December 21, 2014. Retrieved April 29, 2009.
  45. ↑ "Senate Floor Statements, Jay S. Bybee Nomination to 9th Circuit Court". Congressional Record. Library of Congress. March 13, 2003. Archived from the original on January 13, 2016. Retrieved April 29, 2009.
  46. ↑ "On the Nomination (Confirmantion Jay S. Bybee, Of Nevada, To Be U.S. Circuit Judge)". March 13, 2003.
  47. 1 2 Jay Bybee at the Biographical Directory of Federal Judges , a publication of the Federal Judicial Center .
  48. ↑ Tetreault, Steve (March 29, 2003). "Nevadan sworn in as U.S. judge". Las Vegas Review Journal. Archived from the original on April 16, 2003. Retrieved November 18, 2021.
  49. ↑ Batt, Tony (March 14, 2003). "Bybee OK'd for federal judge post". Las Vegas Review-Journal. Archived from the original on April 11, 2003. Retrieved October 20, 2021.
  50. ↑ Ofgang, Kenneth (March 14, 2003). "Assistant Attorney General Jay Bybee Confirmed as Ninth Circuit Judge". Metropolitan News-Enterprise . Archived from the original on January 26, 2021. Retrieved November 18, 2021.
  51. 1 2 Vick, Karl (April 25, 2009). "Friends Say Judge Bybee Regrets Interrogation Memo He Signed". Washington Post. Retrieved November 18, 2021.
  52. ↑ Cutler, Joyce E. (July 2, 2019). "Trump To Get Another 9th Circuit Appointment: Jay Bybee Seat Opening". biglawbusiness.com. Retrieved October 20, 2021.
  53. ↑ "President Donald J. Trump Announces Judicial Nominees and United States Marshal Nominee". whitehouse.gov . September 20, 2019. Retrieved September 20, 2019– via National Archives.
  54. ↑ Martin, Gary (December 11, 2019). "Lawrence VanDyke confirmed to appellate court bench". Las Vegas Review-Journal. Retrieved December 30, 2019.
  55. ↑ Circuit., United States Court of Appeals, Ninth (January 1, 2004). "394 F3d 1215 United States v. Bruce". F3d (394): 1215.{{cite journal}}: Cite journal requires |journal= (help)CS1 maint: multiple names: authors list (link)
  56. ↑ "'John Doe v. Kamehameha Schools'". The Honolulu Advertiser. August 3, 2005. Archived from the original on February 20, 2009.
  57. ↑ Circuit., United States Court of Appeals, Ninth (January 1, 2005). "434 F3d 1127 Smith v. Salish Kootenai College". F3d (434): 1127.{{cite journal}}: Cite journal requires |journal= (help)CS1 maint: multiple names: authors list (link)
  58. ↑ "Archived copy". Archived from the original on July 21, 2011. Retrieved June 11, 2009.{{cite web}}: CS1 maint: archived copy as title (link) CS1 maint: bot: original URL status unknown (link)
  59. ↑ "Law.com".
  60. ↑ "Ninth Circuit Blog: September 2006".
  61. ↑ Federal Defender Newsletter at the Wayback Machine (archived February 24, 2012) (December 2006), Federal Defender for the Eastern District of California (archived from the original on 201-02-24)
  62. ↑ "Ninth Circuit Reverses Death Sentence for Attorney Incompetence".
  63. ↑ "U.S. v. Craighead". Archived from the original on December 6, 2010.
  64. ↑ "FindLaw's United States Ninth Circuit case and opinions" (PDF).
  65. ↑ "Cecilio Gonzalez v. W. A. Duncan, No. 06-56523 D.C. No. CV-04-09786-DOC Opinion" (PDF). 9th Cir. December 30, 2008. p. 16829.
  66. ↑ "Arpaio must stand trial for alleged false arrest of newspaper publishers". law.com. August 29, 2012. Retrieved October 20, 2021.
  67. ↑ "Young v. State of Hawaii" (PDF). cdn.ca9.uscourts.gov. March 24, 2021. Retrieved May 18, 2021.
  68. ↑ Ritter, Ken (November 21, 2013). "Suicide at Vegas Mormon temple was federal judge's son". The Salt Lake Tribune . Associated Press . Retrieved October 19, 2021.
  69. ↑ Berry, Andrew (November 20, 2013). "Judge Son Suicide: Son Of Federal Appeals Court Judge Jay Bybee Commits Suicide Outside Las Vegas Mormon Temple" . Retrieved October 19, 2021.
Jay Bybee
Assistant Attorney General Jay Bybee, official portrait.jpg
Bybee in 2002
Senior Judge of the United States Court of Appeals for the Ninth Circuit
Assumed office
December 31, 2019
Legal offices
Preceded byJudge of the United States Court of Appeals for the Ninth Circuit
2003–2019		Succeeded by
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