Torture Pro Judge Bybee Fails Backbone Test

Friends Say Judge Wasn’t Proud of Outcome

bybee

Via his roommate at BYU, this morning’s Washington Post reports that Torture Memo author Judge Jay Bybee is tortured by self-pity.

“Jay would be the sort of lawyer who would say, ‘Look, I’ll give you the legal advice, but it’s up to someone else to make the policy decision whether you implement it,’ ” said Randall Guynn, who roomed with Bybee at Brigham Young University and remains close.

In other words, “Its not my fault those evil men used my advice to justify torture.” Is Bybee then standing by his legal opinion?

Neither Guynn nor his brother, Steve, who also roomed with Bybee, recalled the judge distancing himself from the memos. But in the years since the first memo became public, Bybee left that sense with some.

Where is the personal responsibility?  Where is the moral compass?

Since moving to Utah years ago, I am frequently reminded that without religion there is no morality.

If morality – the sense of  right vs wrong — is derived exclusivily from religion, and Bybee’s religious training is straight from the bosum of The LDS Church…  Is it possible the training at BYU Law School is at odds with religious doctrine?  Or is Bybee a weak-kneed, ambitious, self-serving schmuck with a pretty face?

Bybee’s friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, Guynn said, was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, “Would you be willing to take a position at the OLC first?” Guynn said.

I can only imagine what must be going on in Bybee’s head. “Dang. I got caught.”

Bybee should take this opportunity to become a ‘man.’ Otherwise, he’s going to face the fasted impeachment in history.  Three Senators have already called for his resignation.

What is he waiting for?

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  1. #1 by Shane Smith on April 25, 2009 - 11:50 am

    All to often religion is a lack of morality. It is people who abdicate their moral judgement to someone else in order to not have to think about it themselves. It is “god made rule X, thus I am excused from the hard work of having morals or developing a compass of my own.”

    “Dang I got caught” seems to be the first thought in the head of someone who believes that everything is watched over by an omniscient security guard. Makes no sense at all….

  2. #2 by Cliff on April 25, 2009 - 12:07 pm

    Well said Shane.

    Therein lies the very hypocrisy of religion. There are more varieties of rationalization than Baskin Robbins ice cream.

    …Except of course when it comes to the absolutes like equality for gay folks.

    someone who believes that everything is watched over by an omniscient security guard.

    Sometimes I wonder if all this blood atonement stuff doesn’t extend itself into the justification for causing bad things to happen to ‘other people’ i.e torture.

    It makes me crazy. I mean, I could see if the guy went to Oral Roberts University but this is BYU. But then again, they did have Cheney speak at the last commencement.

    If somehow Church doctrine CAN be construed to allow for torture (at the expense of good law), then we are talking about religious conviction over being a good American and rule of law.

    We certainly know from Okelberries argument which one wins when law and religious doctrine collide.

  3. #3 by Becky on April 25, 2009 - 2:19 pm

    Shane, that has long been my belief – and isn’t it ironic? People are actually more moral when they abandon religious teaching and set out to make up their own minds.

    Cliff, I remember discussion in church classes growing up wherein we were challenged as to whether we each would have enough faith in God to carry out an act, even an illegal and horribly reprehensible one, if commanded to do so by God. This discussion often accompanied the Bible story of Abraham who was commanded by God to sacrifice (kill) his only son, but who was stopped at the last moment, having proven his great faith. The discussion would continue thus: What if the church’s prophet ordered you to kill? The prophet is God’s voice on Earth. Sometimes a lower law must be broken in order to fulfill a higher law. By the time we were through, we were all thoroughly convinced that if ordered to do so by the prophet, we might have to commit what we otherwise considered a grievous sin. And our ability to do so would prove our own great faith.

    Scary stuff, huh?

    By the way, I could never even fool myself into believing I could do such a thing.

  4. #4 by Cliff on April 25, 2009 - 2:30 pm

    What a coincidence. That was the lesson at the priesthood meeting I went to. NOT kidding.

    So I think you understand my question. Has the church made any sort of official pronouncement on torture?

    I certainly haven’t seen anything.

    I won’t hold my breath, if they had to work to twist the Bible against gay folks, they won’t even have to TRY to justify torture. Christians too.

    Hey, is that what they mean when the say Christian Nation?

    We might have to query Okelberries on this.

  5. #5 by cav on April 25, 2009 - 3:53 pm

    Becky, you don’t have to DO anything except provide the requisite muscle and what enthusiam you can muster – God will handle the rest.

    What I could never grasp is how not fearing god, following some other rule of conscience be any worse than breaking such a commandment as “Do unto others…?

    I don’t remember it ever beeing stated thus: Do unto others as you would have them do unto you, until some authority figure demands you to be absolutely viscious to them instead. Then, of course, you’ll just be following orders.

    Hope that makes some sense.

  6. #6 by Becky on April 25, 2009 - 5:00 pm

    That does makes sense, Cav, and is so apropos to the topic of this thread — torture, and absolving oneself of responsibility. Just following orders/ just doing my job.

  7. #7 by Richard Warnick on April 25, 2009 - 5:55 pm

    I think it’s interesting to compare Jay Bybee with the story of Alyssa Peterson, a translator with the 101st Airborne who shot herself after being assigned to assist in torturing detainees (we don’t know the details due to a cover-up). She was a Mormon, too. One of the first female soldiers to die in Iraq, in September 2003.

  8. #8 by Cliff on April 25, 2009 - 6:31 pm

    Interesting Richard. As Adam lost his rib to Eve, perhaps Bybee lost his spine to Alyssa.

  9. #9 by Jennifer555 on April 25, 2009 - 7:45 pm

    “Exceptional” young lawyers, from unexceptional law schools, do not make it into the highest echelons of the practice of law without a little help from a “Godfather”.

    Enter Rex Lee, Esq. Mr. Lee graduated first in his class from the University of Chicago Law School in 1963. From law school Mr. Lee went to Washington, DC, to serve as law clerk to Byron White, Associate Justice of the United States Supreme Court. From Washington, DC, Mr. Lee returned to his home state of Arizona, where, as a partner in the Phoenix law firm of Jennings, Strauss & Salmon, he established himself as a lawyer of incredible promise. Within four years of graduating from law school Mr. Lee argued his first case in the United States Supreme Court.

    In 1972 Mr. Lee left his burgeoning legal career to become the founding Dean of the J. Reuben Clark Law School at Brigham Young University in Utah.

    Jay Bybee was a student at that law school between 1977 and 1980. As a bright and articulate graduate of the law school Dean Lee founded, Jay Bybee was brought into the highest levels of lawyering at the Federal level, as a promising example of the quality of BYU’s law students.

    When Dean Rex Lee returned to Washington, he served first as an Assistant Attorney General in charge of the Civil Division in the United States Department of Justice from 1975 to 1976, and then as Solicitor General of the United States from 1981 to 1985. As Solicitor General, Mr. Lee had the opportunity to focus entirely on the legal effort he enjoyed most: briefing and arguing cases in the United States Supreme Court on behalf of the United States of America as his client.

    After having clerked for a Fourth Circuit Court of Appeal judge in South Carolina, and spending 3 years as an associate at Sidley & Austin’s Washington office, in 1984, during Solicitor General Lee’s tenure, Jay Bybee, the “bright young man” from BYU, who was an exemplary product of the law school founded by the Solicitor general, was hired to work for the U.S. Department of Justice. Jay Bybee first worked in the Office of Legal Policy and then in the Civil Division. Then, in 1989, Jay Bybee was appointed as an Associate in the Office of the White House Counsel, during the term of President George H. W. Bush, where Jay Bybee worked until 1991.

    After resigning as Solicitor General in 1985, Dean Lee returned to teaching at Brigham Young University (BYU) in 1986. Shortly thereafter, he was diagnosed with cancer. Following a year of medical treatment and therapy, Dean Lee recovered, for a time, and was named President of BYU. President Lee served the university community from July 1989 until December 1995, just two and one-half months before he passed away.

    The Department of Justice’s website biography of Solicitor General/Dean/President Rex Lee says that Mr. Lee “built a unique and enduring reputation as a man committed to principle.”

    The modern Church of Jesus Christ of Latter-day Saints, of which Attorney General Lee was, and Judge Bybee is member, is a church whose doctrines are grounded in high moral principle.

    The Church members also well know the ugly history of persecution, torture, imprisonment and killing of church members in the United States during the 1800’s. The Church teaches that true faith was restored to Joseph Smith, Jr. through receipt of a prophecy and the visitation of angels in the early 1800s.
    The death of Joseph Smith, Jr. on June 27, 1844 marked a turning point for the Latter Day Saint movement, of which Smith was the founder and leader. When he was attacked and killed by a mob, Smith was serving as the mayor of Nauvoo, Illinois, and running for President of the United States. He was killed while jailed in Carthage, Illinois on charges relating to allegations that he ordered the destruction of the Nauvoo Expositor, a newspaper whose first and only edition was alleged to have defamed Smith and claimed that he intended to set himself up as a theocratic king. While Smith was in jail awaiting trial, an armed mob of non-Mormon men with painted faces stormed the jail and shot him and his brother Hyrum to death. Latter-day Saints view Joseph and Hyrum as martyrs. Latter-day Saints members who followed the martyred Smiths were subsequently driven out of Illinois and Missouri in what historians now call the Mormon Wars. Ultimately led to Utah by Brigham Young, the Latter-day Saints survived, prospered and live a principled life. The Church now has at least 6 Million members in the United States, being the 4th largest non-Catholic religious denomination in the US. The Church hierarchy seeks acceptance from mainstream Christian denominations and acceptance of the Church’s members into mainstream America.

    Thus, the non-LDS furor over the authorship, editing and/or signature by LDS Church member Judge Jay Bybee on the “torture memos” creates a profound public relations disaster for the Church, and for BYU as Judge Bybee’s alma mater, in dealing with the outside world.

  10. #10 by qqbDEyZW on April 25, 2009 - 7:56 pm

    Bybee taught the following at the College:

    “Following World War II war crime trials were convened. The Japanese were tried and convicted and hung for war crimes committed against American POWs. Among those charges for which they were convicted was water boarding.”

    Now he’s sorry when he knew the United States found water boarding to be torture. He lied under oath to get the Judgeship as he refused to answer questions.

    In the it’s called the Fruit of the poisonous doctrine which means where ever the wrong took place it stops there. Bybee lied when confirmed for the Judgment so he is legally not a Judge. Now it’s nice to hear he regrets what he did, but even the Japanese soldiers we hung would have wished Bybee had spoken up during their hearings when the US called water boarding torture.

  11. #11 by laloomis on April 25, 2009 - 7:58 pm

    Rachel Maddow reporting that Sen. Majority Leader Harry Reid of Nevada supporting Bybee. Maddow wonders why? Try the Mormon connection, Rachel.

  12. #12 by Federal Farmer on April 26, 2009 - 12:38 am

    Shane, that has long been my belief – and isn’t it ironic? People are actually more moral when they abandon religious teaching and set out to make up their own minds.

    Of course, abandoning religion does promote a more moral society: take the Soviet Union or the People’s Republic of China; great examples of societies who abandoned religion in exchange for a superior morality!

    Oh, and just a question. What law did Bybee break by authoring some of the content of the “torture memos?”

  13. #13 by Becky on April 26, 2009 - 6:23 am

    Federal Farmer,

    I’m talking about individuals, not just exchanging one institution for another. I should be more clear though, as I don’t intend to imply that everyone who leaves religion becomes more moral. But those who set out to find for themselves what is moral and what is immoral, while abandoning preconceived ideas, are better able to see the truth without all the dogma.

  14. #14 by rmwarnick on April 26, 2009 - 10:44 am

    Federal Farmer (what kind of farming?) asked a good question. What are the grounds for impeaching Jay Bybee and removing him from the Ninth Circuit Court, aside from the fact that Congress would never have confirmed his appointment if they had known about the torture memos in 2003?

    Bybee is guilty of conspiracy to commit war crimes, in violation of 18 U.S.C. 2441. One statutory definition of a war crime is a grave breach of the Geneva Conventions.

    No doubt Bybee’s defense will be that he isn’t guilty of conspiracy, just of giving legal advice. This is bullshit because lawyers must give legal advice in good faith. The torture memos themselves document the awareness that the U.S. criticizes other countries on moral and legal grounds for the exact same torture practices described in the memos, indicating that the Bush administration lawyers were absolutely not acting in good faith.

  15. #15 by Cliff on April 26, 2009 - 10:52 am

    Federal Farmer,

    I don’t accept the premise that the Soviet Union and Chinese society became less moral when they got less religious. How do you measure that?

    One thing IS for sure, there is probably less hypocrisy in practice in those societies. i.e child molesters weren’t putting on collars and cassock and giving sermons to the kids’ parents.

    And of course, we wouldn’t be having a conversation about government lawyers from Religious Law Schools condoning torture on behalf of presidents who claim divine dispensation.

  16. #16 by Federal Farmer on April 26, 2009 - 1:51 pm

    Federal Farmer (what kind of farming?)

    Ha ha! Well, to be honest I did live on a small farm in the Ozarks for a part of my childhood… but the “Federal Farmer” has always been a favorite of mine (Anti-Federalist Papers)… I believe that it was Richard Henry Lee.

    No doubt Bybee’s defense will be that he isn’t guilty of conspiracy, just of giving legal advice. This is bullshit because lawyers must give legal advice in good faith. The torture memos themselves document the awareness that the U.S. criticizes other countries on moral and legal grounds for the exact same torture practices described in the memos, indicating that the Bush administration lawyers were absolutely not acting in good faith.

    Interesting points here. I never thought of it that way, but you are right about the “good faith” part! lol!

    I think that the debate will stray into a discussion over what protections these detainees truly had/have internationally and in American society. It is an interesting debate, although I suspect we completely disagree about what protections these individuals have or ought to have.

    I don’t accept the premise that the Soviet Union and Chinese society became less moral when they got less religious. How do you measure that?

    It is similarly obtuse to believe that morality is somehow linked to a deterioration of religious institutions.

    One thing IS for sure, there is probably less hypocrisy in practice in those societies. i.e child molesters weren’t putting on collars and cassock and giving sermons to the kids’ parents.

    And of course, we wouldn’t be having a conversation about government lawyers from Religious Law Schools condoning torture on behalf of presidents who claim divine dispensation.

    Hypocrisy is not a religious phenomenon, Cliff. There are those who directly violate their religious beliefs in the same way that there are individuals who act against their secular ethics.

    Cliff, the only way we “wouldn’t be having a conversation” about this issue was if everyone in the world was forced to adopt your viewpoint. The fact is, morality isn’t simply a product of religion. All of us, at some point, violate our most fundamental moral beliefs, religious or secular. There are many Mormons, including Church leadership, who are firmly opposed to the reasoning behind these memos.

  17. #17 by Richard Warnick on April 26, 2009 - 4:30 pm

    In a NYT op-ed, Frank Rich cites Jay Bybee as an example of the banality of evil:

    Judge Bybee’s résumé tells us that he has four children and is both a Cubmaster for the Boy Scouts and a youth baseball and basketball coach…

    Yet he supported an effort by the Bush administration to step up the torture of detainees in the hope of extracting false information that could be used to justify the illegal invasion of Iraq.

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