The Jay Bybee Problem
Not a single Democrat questioned Bybee at the session, and the proceedings came to a quick conclusion. The following month he was confirmed by the full Senate.
Just six months prior to the hearing, Jay Bybee had signed legal memos providing cover for CIA agents torturing detainees — yet Congress voted him to a lifetime on the federal bench. How did this happen? And what will become of Judge Bybee now?
The Problem of Jay Bybee
By David Murdock
SCOTT HORTON, ATTORNEY, HARPER’S MAGAZINE CONTRIBUTING EDITOR: When I got those memoranda on April 16, I immediately went to that August 2002 Bybee memorandum, read it. And at the end I remember seeing his signature there and thinking, how could someone who wrote this now be sitting as a federal judge? It’s just astonishing. Jay Bybee held a number of posts in the Bush administration. He comes from a background in Republican politics, and also as a legal academic—he was on the faculty of the University of Nevada at Las Vegas. But he had worked in Washington for a considerable period of time, and his last stop before he went on the bench was as assistant attorney general in charge of the Office of Legal Counsel, which is essentially that part of the Department of Justice that writes the attorney general’s opinions. While he was heading the Office of Legal Counsel, it began to systematically undermine the role of the laws of war—the Geneva Convention, the Hague Convention, and so forth—and also international human rights protection, especially the Convention against Torture. It was within the six weeks after the disclosures of Abu Ghraib. Then a number of publications got their hands on would have [come] to be known as the "torture memoranda." And the first of these, from August 2002, was a memorandum from Jay Bybee to Alberto Gonzalez. When these memos first came out, the defense was immediately that, well, this is just lawyers giving abstract legal advice, no more than that. These lawyers certainly weren’t involved in any intimate way in the process of crafting these techniques for interrogation.
BRUCE ACKERMAN, STERLING PROF. OF LAW AND POLITICAL SCIENCE, YALE UNIV: At that time, I wasn’t really as clear as I am today—or we are since last week, really—as to how serious these memos and how detailed and how particular they were and how much he actually understood. You see, the first memo was full of legal abstractions, but this new memo is full of particulars about how much waterboarding you can do within a day and this kind of thing (only two two-hour sessions and the like) and how precisely you can take a person and bang his head against the wall. Well, this puts a new cast on this.
HORTON: How can you have law issued by the president that’s secret? Here it’s very clear why it’s been kept secret. The instant the legal rationale is exposed to the sunlight, it would immediately be ridiculed; it wouldn’t be able to hold its head up in any sort of legal discourse with legal authorities, as in fact happened with these memoranda. They were eviscerated by the bar and by legal experts instantly when they became public. Even within the Bush administration, they were rescinded on the basis of recognition that they were completely untenable in terms of legal rationale and analysis. They were advancing positions that are completely ridiculous. There are a large array of precedents discussing these techniques, none of which are presented and talked about in the memorandum. So, you know, we have a sort of reverse-engineered memo that has decisions that the administration wants, and then it just cobbled together some sort of completely ridiculous analysis in order to justify those decisions. So that makes them, really, the ultimate crafters of the torture system.
ACKERMAN: Without his authorization, the members of the CIA may well not have done it at all, or if they had, they would be, plainly, subject to criminal responsibility today. So these memos are at the absolute center of the torture activities of the United States government. This is not a minor matter. This is the foundation of our activities. Without these memos, the entire exercise of torture probably would not have taken place.
HORTON: Well, if we go back and check this against the timeline, you see that these memoranda, you know, issued at the beginning of August, prepared perhaps a few weeks before that, this stacks up with the time when Jay Bybee is in transit from the OLC to his judicial position. Congress is reviewing his candidacy, and he’s going through the committee process with the Senate Judiciary Committee. No one is aware, as far as I can see—certainly no one on the Senate Judiciary staff nor members of the Senate Judiciary Committee are aware of this entire controversy or aware of these memos.
February 5, 2003
SEN. ORRIN HATCH (R-UTAH): Having said that, Mr. Bybee, if you could stand and raise your right arm to be sworn, do you swear—.
ACKERMAN: Judge Bybee was greatly advantaged by an accident. His Senate hearing occurred just at the moment when Colin Powell was testifying at the United Nations and giving the American government’s case for, basically, invading Iraq, so almost all the senators were watching the TV outside the hearing room. All the Democrats were. This was of central importance for the Democratic senators in particular to define their position. One could appreciate why they were watching the tube rather than questioning Judge Bybee.
(OFF CAMERA): —finish the hearings as soon as we can, but—.
ACKERMAN: So there was no critical questioning at all at the hearing room, and that does not normally happen.
HATCH: Mr. Bybee, I’ve seen a lot of people around here and a lot of judges, and I don’t know of anybody who has any more qualifications or any greater ability in the law than you have, and that’s counting some pretty exceptional people. And I think that’s one reason why this particular hearing has not been as much an ordeal as some of the ones others have had.
HORTON: Had the Senate known about these memos, there’s simply no way Bybee ever would have been confirmed as a federal judge to begin with.
ACKERMAN: Other nominees who had some relationship to these tragic events were nominated and were not confirmed. The only difference is that the existence and character of the torture memos was not known in 2003 when Judge Bybee was confirmed, and it was known when these other nominees were considered.
HATCH: There is a belief by some that there is a real effort to slow down this process. Now, I would be the last who would think that that has real merit. Come to think of it, there has been some of that. But I’m hopeful that in your case and the case of many, many others, that we can get you through, get you on the bench, and get you doing your life’s work, which is really what that will be, in the best interests of our country. And I have absolutely no doubt that your efforts will be in the best interests of our country.
HORTON: Had all this been out on the record, it’s very clear he wouldn’t have been confirmed. So that means he secured his confirmation to the bench through stealth.
ACKERMAN: Judge Bybee is going to exercise an important position of power in the United States government for the next 25 years. The question is: shall we remove him from the future exercise of power? And to have someone who has violated the war crimes statute, let’s say—let’s say he did. If he did, then to interpret the laws of the United States and to tell other people that they should go to jail, well, this is quite something.
HORTON: There may be very good reasons why a prosecutor in the end of the day would decide not to indict Jay Bybee and take him to trial. I can easily understand these considerations. But that someone like this will be sitting as a federal judge at the highest level of court below the Supreme Court? That’s outrageous. You know. I think that also there’s an obvious solution to this dilemma, and that solution would be for Jay Bybee to resign. And I think if he did so, you’d probably see Republicans applauding along with Democrats. I don’t think it would be a partisan thing.
Please note that TRNN transcripts are typed from a recording of the program; The Real News Network cannot guarantee their complete accuracy.