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By J. Patrick Coolican (contact) 
, Lisa Mascaro
Thursday, May 7, 2009 | 2 a.m.
Federal appellate court Judge Jay Bybee.
Sun Blogs
Sun Archives
- Former Bush officials trying to help Bybee (5-6-2009)
- A tortured policy (5-1-2009)
- The insect memo (4-20-2009)
- The definition of torture (3-22-2009)
As criticism of federal appellate court Judge Jay Bybee mounts for authorizing harsh interrogation techniques as a Bush administration lawyer, the Nevada jurist has reached out to members of the state’s congressional delegation, apparently to tell his side of the story.
The step suggests that Bybee believes maintaining the judicial branch’s customary distance from the political process is no longer in his best interest. Congress has the power to remove him from his seat on the 9th U.S. Circuit Court of Appeals.
Bybee has remained mostly quiet despite his rising profile as the former Justice Department official who, in 2002, signed off on a department memo that sanctioned the practice of waterboarding, which critics say is torture.
After the Obama administration released the memos written by Bybee and two other Justice Department lawyers on April 16, opponents of the interrogation tactics began calling for his impeachment by Congress.
Now Bybee is apparently eager to make his case. The judge, who lives in Southern Nevada and has his office in Las Vegas, reached out to Democratic Rep. Dina Titus, who represents Bybee in Nevada’s 3rd Congressional District. Titus was contacted last month after The New York Times called for Bybee’s impeachment.
Titus said Wednesday that no meeting has been scheduled. But she said she hopes to hear Bybee out — and to share her concerns.
“I’d like to hear from him if he thinks he made the right decision interpreting the law and doing the job as he saw it defined,” Titus said Wednesday. “But I also will not hesitate to make it clear to him that I absolutely disagree with his interpretation. The United States is not a country of torture.”
Titus and Bybee are professional acquaintances. They have served on the faculty at UNLV — Titus is on leave from the political science department and Bybee remains a senior fellow on constitutional law at Boyd School of Law.
Democratic Rep. Shelley Berkley’s office was also contacted by Bybee’s representative in April. Berkley’s spokesman said the two have not met, and he was unsure whether they would.
“This was torture, in her mind,” spokesman David Cherry said. “I don’t know if there’s anything he could say to her at this point that would change her thinking.”
No one in the Nevada delegation has publicly asked Bybee to step off the bench or supported calls for his impeachment.
In fact, Republican Sen. John Ensign has become one of Bybee’s most outspoken supporters in Congress.
“He is a brilliant legal mind, and he simply offered his interpretation of the law,” Ensign spokesman Tory Mazzola said Tuesday.
Senate Majority Leader Harry Reid has said he is waiting for more information. He has not met with Bybee.
Nevada’s senators could not immediately say whether Bybee had sought meetings with them, too.
Bybee broke his silence last week by issuing a statement to The New York Times defending his work.
Even so, Congress has methodically pressed ahead in seeking to review the conduct of the Bush administration’s Justice Department.
House Judiciary Committee Chairman John Conyers of Michigan has asked Attorney General Eric Holder to appoint a special prosecutor to investigate possible federal crimes committed during the interrogations. Conyers also has sponsored legislation to establish various investigatory panels.
Senate Judiciary Chairman Patrick Leahy of Vermont invited Bybee to testify before his committee. A Judiciary subcommittee is to hold a hearing next week on the memos. Bybee is not expected to testify.
The Senate Intelligence Committee is also conducting a review of security policies.
Many lawmakers are withholding judgment, however, until the Justice Department releases the results of its continuing five-year internal ethics review of Bybee and others involved in the memos. The findings are due this year.
The Washington Post and New York Times reported Wednesday that a 200-plus-page draft prepared in January under the Bush administration recommends disciplinary action by state bar associations that license Bybee and the other attorneys involved, rather than criminal prosecution.
Bybee is not a member of the Nevada state bar. Rather, he belongs to the Washington, D.C., bar.
Wallace E. Shipp, counsel for the Washington bar, would not comment on the Bybee matter Wednesday but did explain the process for reviewing claims of misconduct.
If the bar receives a complaint, Shipp and his staff review the matter and determine whether it deserves “docketing,” or a formal investigation. Of 1,200 complaints the bar receives each year, 450 to 550 a year qualify for docketing, Shipp said.
After the investigation, the bar can recommend sending the issue to a disciplinary hearing before a committee made up of two lawyers and a nonlawyer member of the public. The panel makes a recommendation, which goes to a Board of Professional Responsibility. After that, the matter goes to the D.C. Court of Appeals. The process can take one to three years.
If disbarred, however, a federal judge can remain on the bench unless impeached by Congress. Federal judges do not have to be members of the bar to be nominated to the federal bench, at any level, including on the Supreme Court.
Coolican reported from Las Vegas, Mascaro from Washington.
The judge should take his views and gently place them where the sun does not shine.
Jay Bybee's actions are totally defensible, and his letters were accurate. He rendered his opinion on the threshold for torture. His opinion was accurate. If the facts in the matter
indicate that any laws were broken then the correct process is to submit the matter to the legal process for review and action. This man is innocent until proven guilty. Those on a liberal witch hunt need to shut their mouths until the legal process has reached a decision. Bybee and the others, including Pelosi, are innocent until proven guilty. That's the way we treat people in this country--except that's not the way many loud mouthed liberals treat people with whom they disagree!
If I thought the sheik knew about another plot to ram a building with an airplane he would like waterboarding as a break from Harsh Interrogation Techniques.
Bybee should be given a medal.
He did his job and gave a sound legal advice on the law.
"Read the statutes, 18.USC.2340, 18.USC.2441"
Obviously, you have not read that law.
It does not prohibit pain and suffering and only prohibits severe pain and suffering that has an expected result in long term mental harm.
Many of our troops get water boarded.
Even reporters have been water boarded.
Obviously, water boarding does not have an expected result in long term mental harm for we would not water board our own troops nor would reporters ask to be water boarded.
"Read Common Article 3"....the law of the land when Bybee wrote that memo stated that that non-state actors were not covered at all by Article 3. The Supreme Court ruled since the writing of the memo that non-state actors that are only from countries that are signees of the convention are covered and only when very specific terms and conditions are met.
Democrats are clearly hypocrites on this "war crimes" nonsense and other similar nonsense.
Obama has ordered that persons held be denied habeas corpus access to the courts just like Bush ordered and for the exact same reason. The Democrats said Bush violated the Constitution. Now we hear silence from the same people.
Obama orders the death of suspected terrorists along with their wives and children. They are living in an allied soverign country where we have no clear "legal" basis to take away their lives without due process of law. Normally, Democrats would be demand why Bush did not ask the foreign allied soverign country to arrest the people. Why kill them without due processs of law?
Did we hear cries of "war crimes" about Obama? No, we only hear silence from the crazed Democrats.
They are hypocrites. They are not concerned about princples which they clearly have none. They are only concerned about labels like the R label vs the D label.
Bybee is a traitor who should get the treatment he helped Bush and his thugs justify.
The last thing we need is him continuing to teach doublethink to new future Bar members.
Again, you failed to understand the law.
18 USC Sec. 2340 clearly defines torture and it does not prohibit pain and suffering. It does prohibit severe pain and suffering that expected result is long term mental harm.
Water boading does not have a expected result in long term mental harm for many our own troops get water boarded during training and even reporters have been water boarded.
When the memo was written, the law of the land (court rulings and previous justice department policy before Bush) stated that Section 3 of the Geneva Convention did not cover any non-state actors. In 2006, the Supreme Court create new precedent in this area and that changed the law of the land but that was after the memo was written. It is still disputed if Article 3 prohibits harsh interrogration techniques on non-state actors even after the ruling.
Even the Obama adminstration is considering harsher interrogration techniques that is beyond just asking nice questions to the terrorists while drinking coffee and eating donuts.
"Waterboarding has been successfully prosecuted as "torture." "
Actions that included water torture has been successfully prosecuted in the USA only once that I know of and not under 18 USC Sec. 2340 or 18.USC.2441. The one case that I know of is of military person that was convicted of various crimes under military law but not specifically for a "war crime" of torture. I do not even think any of charges specifically listed the word "torture".
Water torture was successfully prosecuted in Japan after the war but not under 18 USC Sec. 2340 or 18.USC.2441. Subjecting POW's (not non-state actors) to water torture or even water boarding or even making forcing them to listen to evelator music is prohibited by the Genevation Conventions.
Water boarding and water torture are two totally different things.
POWs and non-state actors have different rights under the Geneva Convention and in the USA non-state actors were not considered to be covered by Article III of the Geneva Convention until the 2006 Supreme Court decisions. Even that decision says that sometimes non-state actors are not covered by Article III of Geneva Convention and there is dispute on the application of that decision anyway.
Water torture in the above cases lasted for a long time session by session. Water was allowed to enter the lungs. The subjects were almost drowned. Many of them passed out from the lack of air.
Water boarding last less than one minute. Water is prevented from entering the lungs because the physics of placing the chest and lower body above the head. None of the subjects passed out from the lack of air and none were even remotely close of drowning.
Many of our troops are water boarded during training.
Reporters have been water boarded.
"And, I have not the slightest doubt that, were YOU subjected to it, you'd be screamin' for Momma and for your "rights" within the first few seconds"
That would not satisfy the legal definition of toture as listed under 18 USC Sec. 2340. Under that section, the expectation of long term mental harm must be believed for torture to occur as defined by that law.
I probably be screaming of momma if they just put me in hand cuffs.
You might be screaming for momma if they put underwear on your head.
None of those satisfy the legal definition of toture as listed under 18 USC Sec. 2340.
Also, we held a terrorist. Ask him questions the nice way for a while and got very little or any useful information. Then we waterboarded him. Then he gave us information that lead to the capture of a terrorist cell and the break of that Asia terrorist cell that once was tasked with a 9/11 style attack on the west coast of the USA.
Thank you Bybee.
You deserve a medal.
"18 USC Sec. 2340 clearly defines torture and it does not prohibit pain and suffering. It does prohibit severe pain and suffering that expected result is long term mental harm."
Reading jfNance32, one might be under the impression that Sec. 2340 ONLY prohibits severe pain and suffering that expected (sic) result is long term mental harm."
Unfortunately for jfNance32, there is this pesky ADDITIONAL PART of 2340:
"severe mental pain or suffering" means the prolonged mental harm caused by or resulting from-- (c) the threat of imminent death."
Waterboarding simulates drowning, and thus, the threat of imminent death. If jfNance32 wants to parse words, he should be careful not to cherrypick 1 passage out of the entire code. That's disingenuous and misleading. In fact, in the Red Cross report, both Abu Zubaydah and Khaled Sheik Muhammad reported that they feared they were going to suffocate.. that's the "the fear of imminent death" part.
As far as not causing severe pain? Hmmm. Not according to the Red Cross, who reported that Abu Zubaydah vomited several times, as he was waterboarded shortly after undergoing surgery.
"Water boarding last less than one minute." When it is done correctly, waterboarding can last longer than a minute. jfNance32 lacks any proof that the waterboarding sesssions that were done lasted less than a minute. In fact, the Red Cross reports indicates that some sessions lasted as long as two minutes. And what about those interrogation tapes that the Bush administration had destroyed? What do you think was on those tapes?
"What we did was morally wrong, illegal, and tactically counterproductive."
100% correct. Our mistreatment of detainees was one of the greatest recruitment tools for the insurgents in Iraq and Afghanistan. Our mistreatment of detainees stoked the flames of anti-Americanism and led to the type of anger that caused the deaths of American troops and civilians.
And jfNance32 thinks we should give medals for that? That's sick and wrong. No morals, no ethics, just blind support for Dick Cheney and George W. Bush.
" that some sessions lasted as long as two minutes"
OH MY GOD!!!!!
TWO FREAKING MINUTES........
LOL...........proves how stupid the leftist have become with trying to prove that water boarding is torture.
Just listening to their arguments is torture.
"Our mistreatment of detainees was one of the greatest recruitment tools for the insurgents in Iraq and Afghanistan. "
This is can not be proven to be true unless you have person information on every terrorist recruitment. What do you get Terrorrist Are US Weekly or something?
There hatred of Israel and the US support of Israel has been the number one recruitment tool and will be the number one recruitment tool. Proof: When they do their special web videos they do not talk about Gitmo or waterboarding or the lack of habeas corpus access to the courts.
just remember, whats good for the goose...
how many of our fine troops will be tortured in retaliation for our "techniques"?
and nance, who put you in charge of the waterboarding propaganda campaign? Jeez, you sure know how to pick em;
Jim Gibbons Fan Club President and Waterboarding Apologist/ Specialist for the USA. Nice Resume!
I'm glad you agree that your original assertion that it only happened for less than a minute has no proof, jfNance32. I'm also glad that you had no rebuttal for the fact that the impending threat of death constitutes torture. You've undercut your own argument.
"I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans. "
These are the words of an interrogator who questioned detainees in Iraq. Something tells me he knows FAR MORE about what's in the minds of the terrorists than poor little Bush-Cheney toture cheerleader jfNance32.
That jfNance32 would deny that scenes from our abuse and mistreatment of detainees helped recruit fighters against the United States is truly tone deaf. He must think those images made insurgents just LOVE LOVE LOVE us. How foolish.
Well, if Sean Hannity would keep his word--that would be a first, wouldn't it--and submit to waterboarding for charity, we could see it first-hand. Or maybe Nance would like to volunteer?
By the way, we sent a Japanese officer to prison for 15 years of hard labor for waterboarding because we defined it as torture. We also do not know whether waterboarding produces accurate information, or more accurate information than we would otherwise obtain.
Finally, to sound like a bleeding-heart, if you become what your enemies are, you are no better than they are. Some here apparently would have no problem killing large numbers of people because they don't like them. After all, that's what the terrorists did.
"If you become what your enemies are, you are no better than they are."
Mr. Green, THAT is how I was brought up in the good old U.S.A.
This topic would NEVER have been publicly discussed years ago. Why? Because we all took it for granted that there were certain things that set the United States, and Democracy in general, apart from "the commies". #1 amongst them; Simple human decency. The moral high-ground.
Yes, we had the high-ground during WWII.
That is why we fire bombed cities with no military installations in Europe and Japan full of civilans, includig women and children, of which 100,000's of them would die in a single night.
That is why we starved to death tens of thousands of German POWS in our POW camps in Europe.
That is why we imprisoned thousands of our citizens just based on their race.
That is why FDR when the USA captured some German saboteurs on US soil (some even had US citizenship) that he categorized them as enemy non-combatants and denied them habeas corpus rights to the US court system, gave them a quick military tribunal, found them quilty, and quickly shot them dead.
Yep, water boarding 19 terrorists for less than one minute a session is much worse than all that.
After being water boarded the terrorists generated information that lead to the capture of other terrorists and the disruption of a terrorist cell that was previous tasked with a 9/11 style attack on the west coast.
Yes, FDR is the father of the modern Democratic Party and he is their grand hero.
Yet, they place Bush on the same level in war crimes as Hilter.
Hmmmmmm....curious belief system that they have.
Perhaps it is mainly based on the R vs D labels.
Jay Bybee sold his "soul" for a seat on the Ninth Circuit Court of Appeals -- duh. He should be prosecuted.
Bybee should be given a medal.
Bybee was bush-whacked (or, more accurately cheney-whacked) into coming up with language that cheney/bush could use to defend their decisions and to avoid prosecution for their actions.
Just another one of the MANY corrupt and illegal actions of cheney and bush. Hope they swing for everything they have done.
I'd be the first one to tell Judge Bybee that waterboarding isn't enough when interrogating captured Al Qaida jihadists. I'd like to suggest some more techniques to use on the perps.
For jfnance32, If you let people like Bybee Ensign walk all over the constitution you may be the next victom of waterboarding .
For jfnance32, hey you are such a export on torture, maybe you should try a few 2 minute sessions.
Reading most of the replies; it does appear you're a bunch of lunatic leftist.
If anyone of you feel weatherboarding is torture then you might want to try for yourself and see exactly how it feels. The people this was used on come from a very different lifestyle that we're accustomed to in America's way of life. These people are 2 legged animals who have one desire, kill Americans and kills Jewish people. America needs to change our method to attain usable information to protect America.
This has been bred into them for thousands of years and America won't change their mindset. We can use history and you can see that Jimmy Carter, Bill Clinton, and all other leftist lunatics can't and won't secure America. We're going to be attacked under Obama and more innocent lives will be lost just have they've been under previous Democrat presidents.
I for one do believe in doing whatever it takes to protect America. I'm not going to war to loose, I go to win. Collateral damage will occur, I will win sobeit, the local population and their leadership have allowed for generations and for more generations to follow that killing America's and Jewish people is okay and they're rewarded for this.