The Torture Memo By Judge Jay S. Bybee That Haunted Alberto Gonzales's Confirmation Hearings

By JOHN W. DEAN
Friday, Jan. 14, 2005

White House Counsel Alberto Gonzales now has had his confirmation hearing, and is on his way to becoming the new Attorney General of the United States. In that position, he can serve as a firewall for the president.

As confirmation hearings go, this was about as uneventful as they come, which is exactly what the White House wanted: no new headlines.

Recognizably, after four years in Washington, Gonzales has learned the craft of the non-responsive answer. His practice hearing sessions before traveling to Capitol Hill prepared him well to speak naught.

Actually, Gonzales, it turns out, was not the only focus of attention at his confirmation hearings. Time and again, one heard the name Jay S. Bybee - now a federal appellate judge. Bybee was confirmed for his seat on the U.S. Court of Appeals for the Ninth Circuit by the Senate on March 13, 2003.

The reason Bybee's name came up so frequently was that he signed and sent the now-infamous August 1, 2002 torture memorandum to Gonzales. At the time, Bybee was Assistant Attorney General for the Office of Legal Counsel (OLC) - an office once called the conscience of the Justice Department.

The memo leaked during the summer of 2004, so it was notably absent from Bybee's own confirmation hearing. And he stonewalled questions about advice relating to the war on terror. But his memo played a prominent role in Gonzales's - as well it should have.

This document is the most alarming bit of classified information to surface during wartime since the 1971 leak of the Pentagon Papers relating to the war in Vietnam.

Bybee's memorandum, however, is far more insidious than any of that material.

The Bybee Memo: Enabling Torture

The Bybee memo was a formal legal opinion of the Office of Legal Counsel interpreting the Convention Against Torture and the accompanying criminal provisions enacted by Congress in 1996 to prohibit torture.

The co-author of the memo was Bybee's deputy, John Yoo, now a law professor at Berkeley's Boalt Hall Law School. But who wrote what is unclear. In the end, Bybee was the senior official who signed off on the legal opinion, so the responsibility for its content is his.

Bybee's interpretations guided the Bush Administration for twenty-two months. And a powerful case has been made that Bybee's extraordinary reading of the law led to Americans engaging in torture at Abu Ghraib and elsewhere.

The memo defines torture so narrowly that only activities resulting in "death, organ failure or the permanent impairment of a significant body function" qualify. It also claims, absurdly, that Americans can defend themselves if criminally prosecuted for torture by relying on the criminal law defenses of necessity and/or self-defense, based on the horror of the 9/11 terrorist attacks.

Finally, the memo asserts that the criminal law prohibiting torture "may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President's Commander-in-Chief powers."

In short, the memo advises that when acting as commander-in-chief, the president can go beyond the law.

The White House Leaves Bybee Twisting In The Wind, But Safe on the Bench

Not unpredictably, there was widespread outrage when Bybee's memo leaked -- particularly on the part of lawyers, those concerned with human rights, and retired members of the American military who recognized that these distortions of the law could ultimately backfire to hurt American soldiers.

But by then, Bybee was safely seated, and secured for life, on the Ninth Circuit bench (in Las Vegas). So after his memo leaked, the White House hung Judge Bybee out to dry.

Being in the middle of a reelection campaign, the White House staff wanted to make this problem go away. So, on June 22, 2004, they had a document dump. The release of documents was calculated to overwhelm the press with information, and allow the White House to then clam up - directing the press to the documents it had just released.

The document dump was accompanied by an opening statement by Alberto Gonzales. In his statement, Gonzales tried to distance the White House from Bybee's legal advice. He said the memo had gone beyond the request for information about the torture conventions and statute. As for the substance of the memo, Gonzales said he did not want to get into "the merits of the opinion" because the Justice Department was holding a briefing later that afternoon.

That Justice Department briefing, however, was a "pen-and-pad" backgounder, available only to persons with "valid media credentials." No record or transcript is publicly accessible. The senior offical who delivered the briefing has not been identified (but I would wager is was the Deputy Attorney General James Comey).

Is this an unusal way to conduct business in a democracy? You bet, but not for the Bush Administration. As I discussed in a prior column, the Administration favors secrecy, just as it does the centralization of power in the President. The combination has been toxic.

The Justice Department, Too, Repudiated the Bybee Memo

Not only the White House, but, in addition, the Department of Justice sought to shift full responsibility for the memo onto Bybee alone - and distance itself from the memorandum's analysis and conclusions.

USA Today reported that a "high official" at Justice had said of Bybee's memo, "We're scrubbing the whole thing. It will be replaced." According to this report, the official called the analysis "overbroad," "abstract academic theory" and "legally unnecessary."

The St. Louis Post Dispatch similarly reported that an anonymous "senior official at the Justice Department" was telling reporters that Bybee's memo would be replaced "with analysis limited to the legality of actual al-Qaida interrogation practices within the torture statute and other applicable laws." (Emphasis added.) The official added, "It is an opinion that strikes me as over-broad [with] a lot of unnecessary academic discussions . . . that can be misinterpreted and misread."

Put another way, the official took the position that the Bybee memo was not "within" the applicable laws, and thus stated a position that was outside the law - counseling that illegal acts could be legally performed.

The Boston Globe reported, to the same effect, that the Justice Department had "disavowed its own controversial Aug. 1, 2002, legal analyses that argued President Bush has far-reaching powers to authorize physical coercion." It also reported that "a senior official with the Justice Department said these opinions . . . were unnecessary for analyzing the legality of any Al Qaeda interrogation practices authorized by the executive branch."

These reports are truly extraordinary - for in them, the Department of Justice is publicly repudiating one of its own.

More recently, on December 30, 2004 -- just before the Gonzales confirmation hearing - the Justice Department did the same thing once again. By releasing a new legal opinion that "supersedes the August 2002 Memorandum in its entirety," it once again tried to shift blame entirely to Bybee and his memorandum, by publicly repudiating both.

Gonzales Flip-flopped On The Bybee Memo In Order To Try to Repudiate It

Of course, Gonzales was asked about the Bybee memo during his confirmation hearing. At first, he more or less embraced the memo.

Senator Leahy asked Gonzales if he agreed with the memo's definition of torture -- as requiring "organ failure, impairment of bodily function or even death." At first, Gonzales tried to dodge, answering, "Senator, in connection with that opinion, I did my job as counsel to the president to ask the question."

But ultimately, not only Senator Leahy, but almost every member of the committee, directly or indirectly quizzed Gonzales on the memo. Still, his position remained less than clear.

So near the end of the hearing, the committee's chairman, Senator Arlen Specter, tossed Gonzales a softball question to allow him to clarify his position: "Do you agree with the statement in the memo, quote, 'The Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield,' close quote?"

Specter -- a skilled attorney and former prosecutor -- was plainly trying to rehabilitate his witness, and allow Gonzales to improve on his earlier half responses. Almost certainly realizing what the chairman was doing, Gonzales unhesitatingly responded, "I reject that statement, Senator."

By these words, then, Gonzales too repudiated the Bybee memo.

In fact, not a single person connected, or formerly connected, with the Bush Administration has, to my knowledge, publicly defended the memo -- with the single exception of Bybee's co-author, law professor John Yoo.

Little wonder. There is good reason to keep a distance from this memo. It is "smoking gun"-level evidence of a war crime.

Experts Have Made Clear that the Bybee Memo Evidences War Crimes

Following Gonzales's appearance before the Senate Judiciary Committee, a panel of experts testified. The panel included former Admiral John Hutson, the head of the Navy's Judge Advocates General Corps, and Harold Koh, a former Assistant Secretary for Human Rights, who worked in the Office of Legal Counsel during the Reagan Administration. Koh, an expert in international human rights, is now the Dean of Yale Law School.

Both of these witnesses decimated Bybee's legal interpretations. For example, Dean Koh minced no words when he stated, "in my professional opinion as a law professor and a law dean, the Bybee memorandum is perhaps the most clearly legally erroneous opinion I have ever read." And he proceeded to spell out no less than "five obvious failures" within the memo.

According to Dean Koh, the memo's blatant flaws include its ignoring the existing "zero tolerance policy" on torture, and its defining torture so loosely that it would tolerate "the things that Saddam Hussein's forces did" such as "beating, pulling out a fingernail, burning with hot irons, suspension from ceiling fans" to name a few. Also, Koh noted, the memo so "grossly overreads the president's constitutional power" that, under its logic, the president could "order genocide or other kinds of acts" and neither Congress nor the courts could stop him.

Additionally, the memo's advice that "executive officials can escape prosecution if they are carrying out the president's orders as commander in chief" is, Koh noted, the same I-was-following-orders "defense which was rejected in Nuremberg and is at the very basis of our international criminal law." Finally, Koh noted, Bybee's memo tolerates "cruel, inhuman or degrading treatment," which is contrary to the existing law.

Other international law, and law of war, experts tell me that Bybee's memo (not to mention a few others) is damning evidence suggesting a common plan on the part of the Administration to violate the laws of war. Strikingly, such a "common plan," or conspiracy, is itself a war crime.

Is A War Crime An Impeachable Offense? Why Bybee Should Not Be on the Bench

A war crime must surely be a "high crime or misdemeanor" under our Constitution. Accordingly, I thought that, during the Gonzales hearings, the attorney general-designate might well be asked if the House of Representatives should initiate impeachment proceedings against Judge Bybee.

The question, however, was never voiced. And even if it had been, it would doubtless have elicited from Gonzales only non-answer he was, by then, practiced at providing.

The question still lingers, though, for the public: Even according to the Administration for which he once worked, Bybee wrongfully counseled that cruel illegalities were perfectly legal. Experts in the law of war say his memo is evidence suggesting he participated in a war crime. In light of these facts, why does Bybee remain on the federal bench?


John W. Dean, a FindLaw columnist, is a former counsel to the president.