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Jay S. Bybee

U.S. Court of Appeals Judge for the 9th Circuit (since 2003)

(Ninth Circuit
Court of Appeals)

Why He Matters

Throughout his career, Bybee, who currently serves as a judge on the 9th Circuit U.S. Court of Appeals, has written hundreds of legal opinions. But he will likely always be remembered for a handful of opinions he approved while serving as head of the Justice Department's Office of Legal Counsel (OLC) for President George W. Bush, none of which he thought would ever become public.

Those opinions are part of the collection of documents informally dubbed the "torture memos," and they outlined the boundaries for enhanced interrogation of suspected terrorist detainees in Bush's war on terror. President Obama's decision in April 2009 to publicly release four of the "torture memos" revived the intense debate over the legality of harsh questioning methods like waterboarding and sparked not only an internal investigation but also a drive by some Democratic lawmakers to impeach Bybee. But the Obama Justice Department declined to recommend sanctions against Bybee in an early 2010 report, saying he exhibited "poor judgment."

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Background

At a Glance

Career History: Senior Fellow at the University of Nevada-Las Vegas School of Law (since 2005); Assistant Attorney General for the Justice Department's Office of Legal Counsel (October 2001 to March 2003); Professor at the University of Nevada-Las Vegas School of Law (1999 to 2001); Professor at the Louisiana State University School of Law (1998); Associate Professor at the Louisiana State University School of Law (1995 to 1998); Assistant Professor of Law at the Louisiana State University School of Law (1991 to 1995); Associate Counsel to the President (1989 to 1991); Appellate Attorney with the Civil Division of the Justice Department (1986 to 1989); Attorney at the Office of Legal Policy (1984 to 1986); Associate at Sidley & Austin LLP (1981 to 1984)
Birthday: Oct. 27, 1953
Hometown: Born in Oakland, Calif., and raised in Las Vegas, Nev.
Alma Mater: Brigham Young University, B.A. (economics), 1977; J.D., 1980
Spouse: Dianna

Religion: The Church of Jesus Christ of Latter-day Saints
Office: Lloyd D. George U.S. Courthouse, 333 Las Vegas Boulevard South, Suite 2058, Las Vegas, NV, 702-388-6355
Email
Web site

Path to Power

Bybee was born in Oakland, Calif., but raised in Clark County, Nev., which includes Las Vegas. Raised Mormon, Bybee served at a mission in Santiago, Chile from 1973 to 1975. He studied economics at Brigham Young University, graduating in 1977, and earned a law degree also from BYU, where he served on the editorial board of the Brigham Young Law Review. Following a clerkship with Donald Russell, a judge on the U.S. Court of Appeals for the 4th Circuit, Bybee took a job in the Washington office of the Chicago-based law firm Sidley Austin.

Reagan and George H.W. Bush Administrations

In 1984, Bybee joined the Reagan administration as an attorney in the Office of Legal Policy at the Justice Department. He later served on the appellate staff of the Civil Division of the Justice Department before joining President George H.W. Bush's White House as an associate counsel to the president.

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Academic

Bybee left the Bush administration in 1991 and moved to Baton Rouge, where he taught law at Louisiana State University. "I'd always wanted to teach," Bybee said. He worked at LSU from 1991 to 1999, when he was asked to join the inaugural faculty of the law school at University of Nevada-Las Vegas. He taught at Nevada for two years and was named professor of the year in 2000.

Office of Legal Counsel

In 2001, President George W. Bush nominated Bybee as assistant attorney general for the Justice Department Office of Legal Counsel (OLC), which advises the attorney general on legal issues. He was confirmed in October 2001. "I suspect the challenge is so great that nobody in my position, from my perspective sitting in my office at UNLV, can imagine the enormity of the task," Bybee said at the time.

2003 Confirmation Hearings

Bybee served in the OLC from October 2001 until March 2003, when he took a job as a judge on the 9th Circuit U.S. Court of Appeals. The Senate confirmed him, 74 to 19, while many other Bush judicial nominees were being threatened with filibuster. "The swift pace of this nomination demonstrates how the process can work when both sides of the aisle work together," then-Senate Minority Leader Harry M. Reid (D-Nev.) said.

Democratic sentiment toward Bybee began to shift in June 2004, when The Washington Post obtained a memo signed by Bybee that provided legal justification for harsh interrogation methods of terrorist suspects. The memo said prosecutions of interrogators "may be barred because enforcement of the [law prohibiting torture] would represent an unconstitutional infringement of the President's authority to conduct war" and was signed by Bybee on Aug. 1, 2002.

In his 2003 confirmation hearings for the federal bench, Bybee did not disclose the existence of such a memo or any overarching legal framework for harsh interrogation methods used on terrorist detainees. At the time, most senators paid little attention to Bybee, whose confirmation hearing was held by the Senate Judiciary Committee the same day that then-Secretary of State Colin Powell briefed the United Nations Security Council on evidence of weapons of mass destruction in Iraq.

In response to all the questions about his work at the OLC, Bybee gave lawmakers a similar answer: "As an attorney at the Department of Justice, I am obligated to keep confidential the legal advice that I provide to others in the executive branch," was his response to Sen. Patrick J. Leahy's question.

Calls for Impeachment

In 2003, the American Civil Liberties Union (ACLU) filed a lawsuit to force the release of the torture memos, but the government claimed attorney-client exemption and a national security exemption. When the case reached the U.S. Court of Appeals for the 2nd Circuit in 2009, the Obama administration decided to release the memos rather than prolong the legal battle.

That April 2009 decision to release four Justice Department memos to the ACLU, including another Aug. 1, 2002 memo signed by Bybee and addressed to the CIA that OK'd certain interrogation methods, incited a Democratic clamor for Bybee's resignation or impeachment. In an April 19, 2009, editorial, the New York Times argued that Bybee was "unfit for a job that requires legal judgment and a respect for the Constitution," and called for his impeachment by Congress.

In April 2009, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) demanded that Bybee testify in front of his panel to explain the memos, and House Judiciary Chairman John Conyers (D-Mich.) and Jerry Nadler (D-N.Y.), chair of the panel's subcommittee on the Constitution, Civil Rights and Civil Liberties, asked for a Justice Department investigation into whether crimes were committed during Bush administration interrogations.

But others argued that Congress couldn't impeach Bybee for something that occurred before he was a federal judge. The Constitution says judges will hold their position "during good behavior," and some scholars argued that good behavior referred only to a judge's behavior while in office. "It's not Jay Bybee's fault that these opinions were not available to the Senate," said Brad Berenson, formerly a lawyer in George W. Bush's White House. "They were highly classified. He could not have spoken about them at the time, even if he wanted to."

Another constitutional question will be whether the courts even have the authority to determine the constitutionality of a Senate impeachment trial. In a 1993 decision in Nixon v. United States, the court said the judiciary cannot rule on Senate impeachments because Article I, Section 3 of the Constitution gives the Senate the "sole Power to try all Impeachments."

Justice Department Investigation

In May 2009, the Justice Department neared the end of its internal investigation into the writing of the torture memos. Bybee and OLC deputy John Yoo were allowed to comment on the draft of the report, written by the Office of Professional Responsibility. The report was expected to refer legal discipline to the state bar associations, which could result in disbarment. But it was also expected to recommend that the Justice Department not pursue criminal prosecutions for any of the lawyers who signed off on the memos, including Bybee.

But in early 2010, the Obama DOJ recommended no kind of sanctions against Bybee or Yoo for their role in the torture debate.

The Issues

On a political level, Bybee is a conservative. At BYU, Bybee was vice president of the College Republicans. During the 2000 election, Bybee served as chairman of Nevada Lawyers for Bush-Cheney. But his former students and fellow judges say he has never been an ideologue. His nomination to the 9th Circuit Court of Appeals, which is the appellate court for most of the West, including California, Nevada, Alaska and Hawaii, was supported by senators from both sides of the aisle, including Democratic Leader Harry M. Reid (Nev.).

Sen. Charles E. Schumer (D-N.Y.) said Bybee's appointment would add "some balance" to the appellate court, which is known as the most liberal appellate court in the U.S. and the one most often overturned by the U.S. Supreme Court. Bybee hasn't written any landmark opinions, but one of his most significant decisions during his few years on the bench was in the 2005 decision Doe v. Kamehameha, in which the court overturned a private school's admission policy that gave preference to native Hawaiians.

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Bybee Memos

Bybee was OLC assistant attorney general when he signed the memos that formed the basis for the George W. Bush administration's prosecution of the war on terror.

As OLC associate attorney general, Bybee had an expansive view of the president's power, particularly during war-time. In February 2002, he gave a speech to the conservative Federalist Society entitled, "War and the Constitution: We are all Hamiltonians now," in which he argued that "federalism must step aside" to allow the president more authority during war-time.

Regarding harsh interrogation methods, one memo summarized, "while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture."

For punishment to be considered torture, this memo argued, "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."

That Aug. 1, 2002 memo to Gonzales also argued that interrogators, could not be prosecuted because those prosecutions interfered with the president's constitutional authority during war-time as commander- in-chief.

A second memo, also dated Aug. 1, 2002, but sent to CIA Acting General Counsel John Rizzo, detailed the interrogation techniques to be used on suspected terrorist Abu Zubaydah. The interrogation team told Bybee that it knew Zubaydah had information regarding terrorist networks, that he had become accustomed to interrogations and that there was increased "chatter" in the atmosphere similar to the pre-Sept. 11th level. This memo said that under those circumstances, it was acceptable to move to an "increased pressure phase," which utilized techniques such as forcing someone to stand with their hands against a wall, insects placed in a confinement box and waterboarding.

Bybee defended the memos. "The central question for lawyers was a narrow one: locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct," he told the New York Times in April 2009.

"The legal question was and is difficult," Bybee said. "And the stakes for the country were significant, no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law."

States' Rights

Bybee has written extensively on federalism and states' rights, including an entire book titled "Powers reserved for the people and the states" on the meaning and history of the Ninth and Tenth Constitutional Amendments, sometimes called the "federalism amendments." He has written that the existence of the Tenth Amendment, which says those powers not designated to Congress are given to the states, "imposes on the Court a duty" to make sure "the states are not relegated to irrelevance and, ultimately, extinction." The states derived their power from the fact that the Constitution enumerates the powers of the federal government but not those of the states, he argues.

The Network

Bybee worked for the last three Republican presidents, in the Justice Department under Ronald Reagan and George W. Bush and in the White House under George H.W. Bush.

Sen. John Ensign (R-Nev.) recommended him for the federal judgeship, and the nomination was supported by fellow Nevada Sen. Harry M. Reid (D).

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