John Yoo's boss

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Release of new torture memos puts Jay Bybee on hot seat

By Carol Eisenberg


April 20, 2009 at 11:30am

Jay S. Bybee has been the forgotten man among the legal architects of the torture policies of the George W. Bush administration.

But the release Thursday of several additional memos by the Justice Department puts Bybee, then an assistant attorney general for the Office of Legal Counsel, front and center. He is the author of an August 2002 memo, to CIA General Counsel John Rizzo, concluding that waterboarding, among other enhanced interrogation techniques, did not meet the legal definition of torture.

see also Jay S. Bybee: It's Not Torture If You Use A Caterpillar

and Impeach Bybee: The Growing Movement to Unseat Bush Torture Lawyer Turned Federal Judge

(continuation of "Release of new torture memos puts Jay Bybee on hot seat"): 

The 18-page memo authorizes such methods in language that is stunning for its detailed description, yet simultaneous detachment. As the New York Times wrote of the four memos in its lead editorial Sunday:

Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect - all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners.

In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary.

Until now, the best known legal architect of the Bush administration policies on interrogation methods had been John C. Yoo, a deputy to Bybee, who has vigorously defended his judgments that techniques like waterboarding did not violate the Geneva Conventions. Yoo is now a law professor at the University of California, Berkeley.

But Bybee has remained in the background - a fact which helped propel his career. In March, 2003, before any memos had been made public, he was confirmed as a federal judge with lifetime tenure for the Ninth Circuit Court of Appeals, the largest appellate court in the country with jurisdiction over California, Oregon, Montana, Nevada, Washington, Arizona, Alaska and Hawaii.

The Times, in its editorial, called for his investigation and impeachment by Congress, saying the memos "make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution."

Moreover, Bybee has not joined the public debate the way Yoo and other Bush loyalists have to defend the administration's broad view of executive power, not to mention its positions about enhanced interrogation.

A profile of him shortly after his confirmation as a udge, described him as a devoted father of four, a former Eagle Scout, returned missionary of the 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.

"Generally considered a conservative, he is tenacious in his pursuit of careful and precise legal analysis," wrote Meridian magazine, a publication of the Church of Jesus Christ of Later-day Saints.

Bybee, who was born to Mormon parents in Oakland, CA, attributed his interest in the law to his family. He told Meridian that his grandfather George Hickman had been an attorney and city judge in Albany, California.

Raised in Las Vegas, Nevada, and Louisville, Kentucky, he said his parents had encouraged academic excellence - and participation in their church. Bybee and all three of his siblings served as missionaries with the Latter-day Saints - Bybee in Chile, Santiago from 1973-75.

After graduating from Brigham Young University's law school in 1980, Bybee spent three years as an associate with a private law firm, Sidley & Austin, before joining the Department of Justice in 1984, where he worked in the Office of Legal Policy and the Civil Division.

During the administration of George H.W. Bush, he became associate counsel to the president.

For the decade afterwards, he worked as a law professor at the Paul M. Hebert Law Center at Louisiana State University, and then, the William S. Boyd School of Law at the University of Nevada, teaching constitutional law, administrative law, and civil procedure.

But with the election of George W. Bush, Bybee returned to Washington, accepting a position in 2001 as assistant attorney general in the Office of Legal Counsel.

Asked what kind of judge he hoped to be, Bybee told Meridian: "I would like my headstone to read, 'He always tried to do the right thing.'"

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This page contains a single entry published on April 20, 2009 8:56 AM.

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