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Bybee's memo

Published May 5, 2009 6:00 pm

Judge should resign or be impeached
This is an archived article that was published on sltrib.com in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Judges appointed to the federal bench swear to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and to “bear true faith and allegiance to the same... .” It is part of the oath of office taken by Jay S. Bybee, after he had given the Bush administration a sickening shred of legal cover to use “harsh interrogation techniques” that, by U.S. and international laws, amount to torture.

For his efforts at redefining torture so the Bush administration could engage in it, Bybee was rewarded by President George W. Bush, who nominated him to a seat on the 9th U.S. Circuit Court of Appeals. Bybee was confirmed in 2003, a year before the infamous photos of U.S. soldiers brutalizing Iraqi detainees at Abu Ghraib prison came to light.

In 2002, as assistant attorney general in charge of the Justice Department's Office of Legal Counsel, Bybee produced one of the four post-9/11 legal memoranda on interrogations that President Obama ordered released to the public last month over the objections of the CIA.

Bybee's 46-page memo is a painstakingly detailed treatise on how to skirt the laws and treaties that bound previous administrations from engaging in interrogation techniques that ape the torture methods used by the communist Chinese government against captured U.S. GIs during the Korean War, and for which the U.S. and its allies prosecuted Japanese and Nazi interrogators following World War II.

“We conclude that for an act to constitute torture as defined in [U.S. Code], it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” Bybee wrote, giving his blessing to waterboarding and other previously outlawed tactics to be used against captured al-Qaida operatives.

In its damning totality, the memorandum is an indictment of Bybee himself, evidence that he is morally, ethically and legally unfit to serve on the federal bench. His continued presence there is an affront to the integrity of the judiciary, to a nation founded on laws and ideals protecting human dignity, and to all Americans who once believed their government would never indulge in the same human rights violations we have long condemned in other countries.

Bybee, a graduate of Brigham Young University and its law school, should show himself capable of better judgment -- and of remorse -- by resigning his lifetime appointment. If he does not, Congress should begin impeachment proceedings to force him from the bench.