"a gentle soul"?

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The definition of torture

UNLV colleagues of man who advised Bush on interrogation techniques agonize as they try to reconcile that work with the legal scholar they knew

By J. Patrick Coolican  The Las Vegas Sun   Mar 22, 2009

Jay S. Bybee is described as a gentle soul. His legal scholarship was considered rigorous and his positions well reasoned and, though conservative, not dogmatic.

Even as he moved up easily through the elite echelons of government and academe, Bybee remained true to his nature, generous and kind.

So how could Bybee, now a judge on the U.S. Ninth Circuit Court of Appeals, sign his name to a legal document that seemed to sanction the use of torture?

This is the question now facing Bybee's colleagues at UNLV's Boyd School of Law, where he remains a tenured professor, and others who have worked with him. How he answers that question, if he ever decides to, will decide his legacy, those colleagues say.

A belief held around the world that the United States government tortured suspected terrorists, including many later found innocent of any crime, has damaged the nation's reputation. And just as photos from Abu Ghraib prison and elsewhere will live on, so too do the words that provided the legal underpinning for what became known in the federal bureaucracy as "enhanced interrogation techniques."

One legal memo in particular is known variously as the "torture memo" or the "Bybee memo" for the man who signed his name to it just a few months before then-President Bush nominated him to a seat on the appeals court, which is one step below the U.S. Supreme Court with jurisdiction over Nevada and eight other Western states.

The memo defined torture narrowly, arguing that only pain associated with "death, organ failure or serious impairment of body functions" constitutes torture.

Bybee signed memos such as this while he was head of the Justice Department's Office of Legal Counsel, an obscure but powerful office usually comprising accomplished legal scholars who offer binding guidance to the government on a range of legal questions. Bybee, 56, held the post from 2001 until his nomination to the bench in early 2003. He took a leave from UNLV for the job and he remains a tenured professor there.

The government began repudiating the memos after Bybee left the OLC to join the court. The Justice Department's Office of Professional Responsibility confirmed last year that it was investigating Bybee and other former OLC lawyers to determine whether the Bybee opinions were consistent with standards of professional conduct. A final report is expected soon.

Recent leaks to the national media suggest that a draft of the report sharply criticizes Bybee, as well his then-colleague John Yoo, who is widely thought to have been the driving intellectual force of the memos.

The final report could be forwarded to the state Bar Association for potential discipline, as well as Congress, which could impeach Bybee and conceivably remove him from the bench.

Both UNLV and the House Judiciary Committee said they are awaiting the report before deciding how to proceed. A spokesman for the House committee said impeachment has not been discussed and has not been ruled out.

The words "Bybee memos" are now yoked to the searing images of the treatment of detainees. Investigative reporter Mark Danner, in The New York Review of Books and The New York Times, wrote about the most recent revelations last week -- a secret report of the International Committee of the Red Cross, including an interview with the notorious terrorist Abu Zubaydah.

"I woke up, naked, strapped to a bed, in a very white room," Zubaydah said.

What followed were days, even weeks, of sleep deprivation, without solid food. He said he was constantly naked, placed in stressful positions, exposed to cold until he turned blue, waterboarded and occasionally beaten.

These accounts, which are consistent with many others, will forever be linked to Bybee -- a fact that has UNLV professors and former law clerks struggling to square with the character of the man they know.

Who is Jay Bybee?

His former colleagues praise him effusively and agonize over his ordeal.

They are puzzled, however, by the memos. Several say the memos legitimize torture and authoritarianism and do so with sloppy legal reasoning.

Bybee consistently declines interview requests, and he did so, through a spokesman, when approached last week by the Las Vegas Sun.

"Judge Bybee has kept silent. I wish he would break that silence," said Lynne Henderson, a UNLV colleague and friend until the two had a falling out after the publication of the memos.

"I wish we knew why he signed those memos, because he's a good person," Henderson said. "But it's his choice."

Tuan Samahon, now on the faculty at Boyd, was Bybee's first law clerk, beginning in 2003. Just before he finished his clerkship, Bybee told Samahon about the memos in the days before they became public in 2004.

"It's been personally difficult because I came at him first as a human being, a judge, and then secondarily through the memos," Samahon said.

Samahon and Bybee are active members of the Church of Jesus Christ of Latter-day Saints. When Samahon's wife gave birth to twins prematurely and the boys were in the neonatal intensive care unit, Bybee was with them. "He was very humane and kind to me," Samahon said.

This view was echoed by others.

"I absolutely think the world of Jay Bybee," said Jeffrey Stempel, another UNLV law professor.

"I think he's one of the most wonderful human beings I've dealt with and one of the best faculty I've ever worked with."

Yet some who know Bybee cannot reconcile the man they know with the memos, which many view as badly reasoned -- and monstrous.

Chris Blakesley, a Boyd professor who has written extensively on the legal issues of the war on terrorism, knew Bybee when they were colleagues at Louisiana State University in the 1990s before Boyd was founded.

Blakesley said Bybee was a good colleague and solid scholar. But as for the memos: "Terrible. Just horrible."

The critique is many-pronged.

First, critics attack the morality of any government lawyer who would so narrowly define torture as to all but encourage acts that had traditionally been defined as torture. As Blakesley noted, Americans have executed enemies for waterboarding American soldiers.

"Anybody who endorses torture of another human being is guilty of a high crime or misdemeanor," Henderson said, using words of the kind often cited in articles of impeachment. "You don't torture other human beings. Ever. Did we learn nothing from Nuremberg?"

Blakesley said sanctioning torture was "the horror of becoming what you claim to hate when you do what they do."

An Aug. 1, 2002, memo also makes a broad claim of presidential authority in wartime, which critics, both conservative and liberal, have called a dangerous nudge toward monarchical government.

The memo sets forth a narrow definition of torture, but then also claims that Congress can't tell the executive branch how to treat detainees.

It is a sweeping claim of executive power, one pushed for decades by a small but powerful group of neoconservatives, many of them tied to former Vice President Dick Cheney.

"That caused the most consternation" among legal scholars, said Samahon, Bybee's former clerk and now a UNLV colleague. Samahon said 90 percent of constitutional scholars would disagree with the Bybee memo on constitutional grounds, arguing that Congress has some authority to set policy on subjects including the treatment of detainees.

Blakesley recently co-wrote a legal paper that attacked Bybee's constitutional argument as deeply at odds with the founders' intentions, mainstream constitutional theory and legal precedent.

About this, there seems to be a fairly broad consensus.

"What's true and what the courts have said is that Congress isn't deciding what armies go where," Blakesley said. "But it's not saying the president has absolute power, even during war. We don't have a king. That's what the American Revolution was about."

Blakesley and other scholars note that the memo makes a glaring omission by failing to refer to a landmark ruling with clear relevance to the issue: Youngstown Sheet & Tube Co. v. Sawyer. In 1952, President Harry Truman ordered the Commerce Department to seize control of the country's steel mills because of the threat of an imminent labor strike during the Korean War.

The Supreme Court ruled against Truman, finding that the president's power to sidestep Congress in an emergency or in war was not absolute.

One constitutional scholar said recently that omitting the case from the August 2002 memo is akin to leaving Brown v. Board of Education of Topeka, Kansas, out of a brief on school desegregation.

The omission goes to the heart of another criticism of the 2002 memo and one that came after: They do not offer unbiased advice and present a full picture of the legal arguments surrounding the given issues. Rather, critics say they are the work of a lawyer whose client, President Bush, told him to produce a document that would enable enhanced interrogation and broadly expand his powers.

Bybee abdicated his responsibility in this, which was not to be the president's lawyer, but a lawyer for the entity that is the United States of America and its system of constitutional laws, those scholars say.

A final critique of the memos is that they are poorly reasoned, an observation that also causes significant angst among those who know Bybee.

Samahon said he is a rigorous and thoughtful jurist, not dogmatic or ideological. His clerks have been conservative, liberal, gay, straight, black, white and Asian, all to better inform Bybee's legal opinions, Samahon said.

But Samahon's colleagues at UNLV and many legal scholars say the memos are sloppy, the work of first-year law students, not accomplished legal scholars.

"If a criminal law student turned that in to me, it wouldn't pass," Henderson said.

Critics cite numerous examples of tendentious reasoning in the August 2002 memo.

The author focuses on the notion that for conduct to classify as torture, it must lead to "severe physical or mental pain or suffering."

To determine what constitutes "severe" physical pain, the memo cites a civil statute governing when hospitals have to treat an emergency patient. The choice of that statute is curious given that many state criminal codes provide a clearer parallel, scholars say. Those codes define torture as an aggravating factor in capital murder cases.

Blakesley and others also argue that the discussion of criminal intent to break the torture statute is at odds with accepted law.

The memo reads: "A defendant could negate a showing of specific intent ... by showing he had acted in good faith that his conduct would not amount to the acts prohibited by the statute."

Blakesley objected: "Since we're telling them it's not against the law, they can never have specific intent" because they would always be acting in good faith.

This goes to a larger point: The document "doesn't sound like neutral advising," Samahon said. "It sounds like a criminal defense brief."

Samahon speculated that one reason the memos read this way is that the CIA had begun using the "enhanced interrogation" techniques, so the White House wanted a legal document that would offer a shield to the agency and the interrogators.

The Justice Department would ultimately have to prosecute anyone accused of torture, and because Office of Legal Counsel opinions are binding and have the force of law, the memo seems to make a prosecution all but impossible.

Danner reports it was referred to by some as a "golden shield."

But the memo can also be read another way:

"It's a road map," Blakesley said. The August 2002 memo offers several real-life examples of torture in rather graphic detail, and explains why each example would fairly be considered torture or not.

As Danner noted in The New York Times last week, John Kiriakou, a CIA officer who helped capture Abu Zubaydah, said that each time a new technique was to be used, it had to be cleared by Washington, which suggests the memos were an important reference of sorts to determine what was and wasn't legal.

Despite the fairly broad consensus in the legal community that the memos amount to a misreading of the law, lawyers and judicial experts are divided about what should be done next.

Some legal scholars, including Yale University's Bruce Ackerman, think Bybee should be impeached.

Others say doing so would force government lawyers to be cautious, and perhaps overly so, in the advice they give their clients.

To which the other side responds: Good.

The rough consensus among Bybee's UNLV colleagues is that he should remain on the faculty unless there was significant misconduct, "on the order of moral turpitude," Stempel said.

Bybee's colleagues also are offering a potential defense of him: He wasn't really running things.

They note that he wasn't on the job until late 2001, and that he was a consensus candidate and not the White House's first choice. John Yoo was a tenured Berkley professor with a history of fierce advocacy for executive power and had written a memo after 9/11 that laid out an expansive vision for the executive branch in a time of war.

David Addington, then-counsel to Cheney, a fierce believer in executive prerogative, had begun to impose that constitutional vision on the government.

He and Yoo sat on a "war council" at the White House that didn't include Bybee.

A close observer of the intelligence community, who asked not to be named, said the argument that Bybee was not deeply involved in the drafting of the memos could very well be true. An observer close to the Office of Legal Counsel describes Bybee as out of his depth on national security issues and disinterested in them. He also lacked the stomach or acumen for bureaucratic infighting that was second nature to Yoo and Addington, the observer said.

Writing in The New York Times Magazine, Jeffrey Rosen said, "Bybee ... had little experience with national-security issues, and he delegated responsibility for that subject matter to Yoo, giving him the authority to draft opinions that were binding on the entire executive branch."

(Yoo did not respond to an e-mail from the Sun.)

Many people interviewed by the Sun offered another defense of Bybee's actions. After 9/11, the country was gripped with understandable fear and dread.

"I know what it must have been like in D.C. in that time, it must have been terrifying," Henderson said.

Still, Blakesley believes Bybee has a duty to help the country understand what happened and why.

"I'm torn by it because I think he is a good person," he said.

"I think he in the long run, for his own personal well-being needs to be repudiate it," Blakesley said. "And I wish he'd come forward and talk about what happened to show what the others did. I believe he was set up to be a guy who would sign it. And sadly, he did. There's got to be accountability."

Samahon suggests that Bybee may be coming to terms with his role in the war on terrorism.

He said when Bybee told him about the memos, he defended them as law, but said as policy, the presence of torture suggested "the spirit of liberty has left the republic."

Later, according to Samahon, at a reunion dinner for his old law clerks, Bybee thanked the clerks and said he was proud of the jurisprudence they had helped to produce. He then told them he wished he could say the same about his last appointment -- when he was head of the Office of Legal Counsel.

Depending on the findings of Justice Department and a decision by Congress, Jay Bybee may not have much more chance at jurisprudence.

For now, he remains on the bench and on the faculty at UNLV.

He teaches a constitutional law seminar once a year, on the separation of powers doctrine.

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