Jay Bybee

Jay S. Bybee (born October 27, 1953 in Oakland, California) is a federal judge on the United States Court of Appeals for the Ninth Circuit. He was originally nominated by President George W. Bush on May 22, 2002 and was confirmed by the United States Senate [http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=108&session=1&vote=00054 74-19] on March 13, 2003.

Bybee graduated "magna cum laude" from Brigham Young University where he earned his Juris Doctor from the J. Reuben Clark Law School at BYU. He served as the Assistant Attorney General for the Office of Legal Counsel ("OLC") in the United States Justice Department from October 2001 to March 2003.

Prior to going to the Justice Department, he was on the faculty of the Paul M. Hebert Law Center at Louisiana State University and was a founding faculty member of the University of Nevada, Las Vegas law school faculty.

He has published numerous articles in law journals and is interested primarily in constitutional and administrative law.

During Bybee's tenure, OLC authored the controversial August 2002 Bybee memo on detainee interrogation, more commonly known as the "Torture Memo," a Justice Department memo interpreting the statutory term of art "torture" as defined in 18 U.S.C. 2340. The "Bybee memo," was reportedly written in large part by his Deputy Assistant Attorney General John Yoo. The memo was a response to a CIA request for legal advice, a request routed to OLC by then White House General Counsel Alberto Gonzalez. The CIA inquired whether, after the September 11, 2001 attacks, it could aggressively interrogate suspected high-ranking Al-Qaeda members captured outside the United States. Section 2340 implements, in part, the obligations of the United States under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

Among other things, the memo concluded that "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." It also concluded that for purely mental pain to constitute torture it "must result in significant psychological harm of significant duration, e.g., lasting for months or even years."

The memo has prompted widespread and vociferous criticism. Yale Law School dean and former Assistant Secretary of State for Human Rights Harold Koh called it "perhaps the most clearly erroneous legal opinion I have ever read" and “a stain upon our law and our national reputation.” [http://judiciary.senate.gov/testimony.cfm?id=1345&wit_id=3938] Former White House counsel John Dean has called for Bybee's impeachment. [http://writ.news.findlaw.com/dean/20050114.html] On 9 March 2006, after emerging from a closed talk at Harvard Law School sponsored by the student chapter of the Federalist Society, a legal organization, Bybee was confronted by protesters. [http://www.thecrimson.com/article.aspx?ref=512052]

Jack Goldsmith, Bybee's successor to head OLC, found the memo "deeply flawed" and withdrew it in 2004. On October 17th, 2007--under questioning by Senator Patrick Leahy of the Senate Judiciary Committee--Attorney General-designate Michael Mukasey repudiated Bybee's memo on torture. stating that it "was worse than a sin, it was a mistake." He further criticized it by saying that "it purported to justify measures based on broad grants of authority that were unnecessary." [http://www.boston.com/news/nation/washington/articles/2007/10/17/mukasey_would_end_white_house_meddling/?rss_id=Boston.com+%2F+News]

References

* [http://www.fjc.gov/servlet/tGetInfo?jid=2981 Federal Judicial Center Profile]
* [http://www.usdoj.gov/olp/bybee.htm US Department of Justice, Office of Legal Policy] -Resume and biography of Jay S. Bybee
* [http://news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf "Bybee memo"]
* [http://www.newsweek.com/id/42694 "The Law Required It"]
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