Balkinization: Race, Robes, and Responsibility: What About Bybee?

Comments:

This is a very good point. No-one should forget Bybee's involvement. And for those of us who believe that the issuance of the memo cosntitutes a war crime, it would follow that calls for Bybee's impeachment shoudl accompany calls for Yoo's dismissal by Berkeley. These are -- quite literally -- the least that our contry can do right now to signal some kind of non-complicity with the wave of constitutional fascism that continues to wash over us.

My two cents: Few are focusing on Bybee for the very practical reason that, as a sitting federal judge, he is even more immune to sanction than Yoo is. The only viable action to advocate right now would be impeachment, and we know that isn't going to happen (at elast not in this Congress).

# posted by

Ginger Man : 2:32 PM

I agree, hence at the Ratio Juris blog I posted something Bruce Shapiro wrote a few years back that historically connects (former Chief Justice) Rehnquist's white paper, "The President and the War Power," in his capacity as head of the Office of Legal Counsel during the Vietnam War, and Assistant Attorney General Jay Bybee's Torture Memo: http://ratiojuris.blogspot.com/2008/04/office-of-legal-counsel-from-vietnam.html

# posted by

Patrick S. O'Donnell : 2:39 PM

Whatever the reason, it sure does put the 'bye' back in Bybee.

# posted by

"Q" the Enchanter : 3:06 PM

This will undoubtedly sound naive, but what race is Bybee?

I've always assumed that the focus on Yoo was a reflection of what seemed to be his more active role in the actual writing of the memos. That is -- and perhaps I'm wrong -- Bybee "merely" signed off on them without independent verification.

That doesn't excuse Bybee, of course, but it does mean I would allocate more blame to Yoo.

# posted by

Mark Field : 3:33 PM

I would imagine that practicing lawyers, particularly those that might appear before his court, would hesitate to criticize him.

# posted by

Ningen : 3:48 PM

Ali M. Washburn wrote an interesting piece called "Dirty Diversity" at Jurist one time about people of color who willingly carry water for odious things in this administration. We see this continuing with the revelations about Rice and Powell in the National Security Principals torture meetings.

Yoo gets the heat because of his high-profile, but also I am certain it has a race component to it. Absolutely. He is the designated fall guy. While it has gotten him far, the question is whether he is willing to be that guy. He has shown some independence recently objecting to being "the only one" which I think is commendable by him. He is just the cog in a bigger game in which he was willing to participate. A bigger cog then the Abu Ghraib soldiers but a banal cog nonetheless with his responsibility for what occurred.
Best,
Ben

# posted by

Benjamin Davis : 3:59 PM

Mark,

Bybee is white. People might not know Bybee's race, but everyone knows that Yoo is Asian. As I said, my sense is that this is not a factor, but I can't help but wonder.

As for Bybee just "signing off" on the memo, that does not seem an apt description for such a serious piece of work. Or to put it differently, anyone asked to sign such a document would have had a serious gut check moment. And this is not just a matter of hindsight. Every knew the stakes--including Bybee.

Rather than "signing off," Bybee was clearly "signing on" when he issued this memo in his name.

Brian

# posted by

Brian Tamanaha : 4:09 PM

Slightly OT, but using a pathetic analogy, Ruth Marcus in Today's WaPo advocates letting Yoo off the hook, and would probably do the same for Bybee.

"The most useful analogy I’ve read on this subject comes from Princeton professor Deborah Pearlstein, who asked what Berkeley would do if a molecular biology professor “had written a medical opinion while in government employ disclaiming the truth of evolution,” and continued to dispute the theory of evolution once he resumed teaching.

Pearlstein, a human rights lawyer, found Yoo’s memo “blatantly, embarrassingly wrong under the law,” but she conceded that legal conclusions lack the hard certainty of scientific truth. Yoo should no more be removed from a teaching job than a Supreme Court justice who writes a despicable opinion — upholding slavery, allowing separate but equal facilities, permitting the internment of Japanese Americans during World War II — should be impeached"

This analogy fails wherein proponents of creationism are unlikely to authorize acid baths and poking out of eyes.

# posted by

drational : 4:19 PM

Bybee is white. People might not know Bybee's race, but everyone knows that Yoo is Asian.

Thanks. Got it.

As for Bybee just "signing off" on the memo, that does not seem an apt description for such a serious piece of work. Or to put it differently, anyone asked to sign such a document would have had a serious gut check moment. And this is not just a matter of hindsight. Every knew the stakes--including Bybee.

Don't get me wrong; I agree with this. I'd impeach Bybee assuming the facts are as they appear to be. It's just that as between two people who did something horrifying, Yoo's conduct strikes me as more active and thus more blameable.

I get your point, though, that it may not be useful to compare evil at this level.

# posted by

Mark Field : 4:32 PM

I get your point, though, that it may not be useful to compare evil at this level.

I'd leave that to the jury ...

As for impeachment, tenure of judicial office is contingent on "good behavior," right?

On that basis, I think there's a stronger argument for Bybee than for Yoo that Bybee would have to be convicted of something before removal from office became appropriate.

That's not b/c I'm more solicitous of judges than of law profs, just how I read the Constitution.

# posted by

Anderson : 5:04 PM

Bybee is hiding in the shadows hoping no one will notice (but we are) and I feel certain he has legal representation. Matthew Waxman thinks he is sitting pretty at Columbia while he desperately tries to reinvent himself... but it will not work...
Gonzales is busy looking for a job but he is also busy talking with his lawyers.
It will take time but there are many of us out there who are not willing to forget...

# posted by

H. Candace Gorman : 5:08 PM

First, Ms. Gorman, thank you for your work and writing. You're a credit to the profession.

For everyone, I have some questions:

Should the California Bar be concerned because Yoo is training lawyers who will practice in California?

Should the American Bar Association be concerned because it accredits Boalt Hall?

Is this more of an issue for the Pennsylvania Bar than for Berkeley, because he was acting as a lawyer not a scholar?

The same for Bybee - he did this before becoming a judge so I wonder if impeaching him for it is the right first step, rather than his Bar investigating.

# posted by

Ningen : 6:12 PM

Just read Bybee's memo - I didn't realize how much of Yoo's memo came from Bybee's memo. In his recent Jurist article, Professor Davis dealt with Yoo's sleight of hand in citing a medical statute defining "severe pain" to support his own definition not in the statute. Bybee did the same thing.

Bybee's definition is horrible - he's basically saying that torture is fine as long as it leaves no marks. The emergency medical benefits statute covers a completely different idea - did the person appear, to a reasonable lay person, to be in need of emergency treatment?

I'm not a physician, but Bybee's definition appears to be nonsense and a lie - organ failure, impairment of bodily function, and death are not necessarily accompanied by intense pain or any pain. What Bybee is really saying is that any degree of pain is fine as long as it causes no permanent damage. An objective standard, yes, but useless in stopping torture.

Nazi doctors showed how to cause pain without permanent damage, and I don't doubt that such techniques have been refined since then, perhaps in the Phoenix Program.

# posted by

Ningen : 6:48 PM

It seems to me that there is, of course, a wider conspiracy, involving, the President, the Vice-President, the National Security team, the Vice President’s clique of advisers, Cabinet Officers and their staffs and specialists, the CIA and foreign nationals in friendly or bought and paid for governments and security services around the globe.

We will probably learn the names of the principal US participants from the list of presidential pardons when Bush leaves the White House.

Only one candidate, Senator Obama, has spoken of an investigation. That is principled, but politically very dangerous. I would hope that an incoming administration could be persuaded that the only possible way to do this would be to appoint a special prosecutor, preferably a Republican of undoubted integrity and tenacity.

The worrying thing for those who serve the law, must be how the climate developed in which those who practice law would be prepared to involve themselves in the whole sordid conspiracy and what can be done to persuade the public that lawyers are an honourable profession.

I can only offer the following as thoughts of an outsider from another jurisdiction where we also have problems, although not on the scale the US profession seems to be facing.

For me the problem starts with the infamous Powell Memorandum written shortly before he was nominated to the Supreme Court which persuaded the far right wing foundations to make a deliberate effort to shift the legal consensus to the right.

It continued with law schools accepting monies from the foundations on the express or tacit understanding that they would appoint teachers of the neoconservative originalist persuasion to posts of influence and with the pernicious influence of the new so-called think tanks and pressure groups, such as the Heritage Foundation, the American Enterprise Institute and the Federalist Society.

Ideally, law schools should be to the left of the Courts – agents for change and reform - with the Courts moving at a slower and more deliberate pace.

Above all, it seems that the professions problems start from the bar associations having far too weak a role in legal education and too weak a system of self-regulation.

Perhaps the beginning is for the state bars to work together to ensure that a law degree is a only a start point on the road to obtaining a licence to practise law on one’s own account.

There should be a requirement for internship (pupillage, articles) under the supervision of a qualified practitioner for a minimum of two years before being permitted to practice as a principal. Thereafter there should be compulsory continuing professional development.

Above all there should be disciplinary procedures with teeth and with Courts being encouraged to refer for discipline practitioners whose standards do not merit the privileges afforded to officers of the court.

Perhaps there should be an end to partisan appointments in the government legal service below the rank of Attorney-General – with all the others being career public servants with entry selected by competitive examination.

These are just thoughts – I shall be interested to watch matters develop. Good luck.

# posted by

Mourad : 6:56 PM

Powell's manifesto seems hysterical - was the free enterprise system really at risk?

http://reclaimdemocracy.org/corporate_accountability/powell_memo_lewis.html

Poweel said: "There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism)."

He should have been more worried about the corporatists and the the military industrial complex, as Eisenhower warned. We don't have a free enterprise system, we have socialism for the military and military contractors.

# posted by

Ningen : 7:23 PM

"Bybee is white. People might not know Bybee's race, but everyone knows that Yoo is Asian. As I said, my sense is that this is not a factor, but I can't help but wonder."

I don't think race enters in. I think it's simply that he's made himself available to TV programs on which to express his formidable [lack of] espertise on military strategy as context for his views on torture.

And to defend his actions. Which has included op eds.

He's simply given himself a high profile.

And he is the one credited with writing and signing the memo.

"As for Bybee just "signing off" on the memo, that does not seem an apt description for such a serious piece of work. Or to put it differently, anyone asked to sign such a document would have had a serious gut check moment."

I don't think Chertoff would have had such a "check". And there needs to be exploration of his role in all this: he is one of the "reliable" fellow nut-jobs which constitutes the criminal enterprise, and as I understand it he was at DOJ before he became the highly successful head of Homeland Security overseeing proper ideological non-response to major national disasters.

"Rather than "signing off," Bybee was clearly "signing on" when he issued this memo in his name.

"Brian"

Then he's on the list. But Yoo, obviously proud of himself, has made of himself a high profile public figure. It seems at present Feith may take that same route, for lack of sufficient attention to and praise of his brilliance and enormous competence in all things overseen by dedicated chickenhawks.

"# posted by Brian Tamanaha"

I especially appreciated your article distinguishing between instrumental and non-instrumental memos, Prof. Tamanaha.

# posted by

JNagarya : 11:04 PM

What did Yoo say that Bybee didn't?

# posted by

Ningen : 1:19 AM

# posted by

Unknown : 8:34 PM

One can speculate that Yoo is being treated differently on account of his race.

But one might as well speculate that Bybee could be singled out on account of being Mormon.

After all, his people wear curious undergarments, have strange pasty skin, and already fill the ranks of the shadowy federal agencies that operate near the legal limits (or outside them).

The reactions I've seen have tended to excuse Yoo and Bybee's culpability on account of their authoritarian cultural backgrounds, rather than exaggerating it.

# posted by Matt

Same goes for Gonazles: he can't get a job not because of his ethnicity -- that is irrelevant as compared with position and pull -- but because he was seen on TeeVee world-around lying his teeth loose. Any law firm knows that were they to hire him, and put him in a court representing a client, they'd be cited for contempt for disrupting the sobriety of the court by causing everyone present to roll on the floor laughing, and perhaps causing series injury to the judge who fell off the bench in med-guffaw.

No, people are after Yoo for what he did -- and for being rather public about his lack of conscience and remorse. Better: his public sociopathy.

And currently we have Doug "Stupidest Person on the Planet" Feith making the rounds bumming his apologia and blaming everyone else for screwing up his brilliant plan for democratizing the Middle East in spite of such as Dough Feith.

# posted by

JNagarya : 9:01 PM