Jay Bybee

Jay Bybee
Judge of the United States Court of Appeals for the Ninth Circuit
Incumbent
Assumed office March 21, 2003
Appointed by	George W. Bush
Preceded by	Procter Hug
Assistant Attorney General for the Office of Legal Counsel
In office November 2001[1] – March 2003[1]
President	George W. Bush
Preceded by	Randolph D. Moss
Succeeded by	Jack Goldsmith
Personal details
Born	Jay Scott Bybee October 27, 1953 Oakland, California, U.S.
Spouse(s)	Dianna Greer (1986–present)
Alma mater	Brigham Young University

Jay Scott Bybee (born October 27, 1953) is a federal judge on the United States Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals^[2] and has taught in law school. His primary research interests are in constitutional and administrative law.

While serving in the Bush administration as the Assistant Attorney General for the Office of Legal Counsel, United States Department of Justice, he signed the controversial "Torture Memos" in August 2002. These authorized "enhanced interrogation techniques" that were used in the systematic torture of detainees at Guantanamo Bay detention camp beginning in 2002 and at the Abu Ghraib facility following the United States' invasion of Iraq in 2003.

Education and career overview

Bybee graduated magna cum laude from Brigham Young University^[3] in 1977, majoring in Economics.^[4] He earned his Juris Doctor cum laude^[5] from BYU's J. Reuben Clark Law School in 1980. While in law school, he served on the editorial board of the BYU Law Review. Bybee spent one year as law clerk to judge Donald S. Russell of the United States Court of Appeals for the Fourth Circuit.

Following three years of private practice in Washington, D.C., Bybee worked for the U.S. Department of Justice from 1984 to 1989, first in the Office of Legal Policy and then in the Civil Division. From 1989 to 1991, Bybee served as Associate Counsel to President George H. W. Bush.

From 1991 to 1999, Bybee was on the faculty of the Paul M. Hebert Law Center at Louisiana State University. He then moved to the William S. Boyd School of Law at the University of Nevada, Las Vegas.

In November 2001, Bybee was appointed as Assistant Attorney General, leading the Office of Legal Counsel, U.S. Department of Justice, where he served until March 13, 2003, during the early years of the war on terror.^[1] He served during the 9/11 attacks in the US, US invasion of Afghanistan, construction of the Guantanamo Bay detention camp to hold enemy combatants, and preparation for the US 2003 War in Iraq.

President George W. Bush nominated Bybee to the United States Court of Appeals for the Ninth Circuit, and he was confirmed by the United States Senate on March 13, 2003.^[6] He received his commission on March 21, 2003, and Justice Sandra Day O'Connor administered the oath of office at the Supreme Court on March 28, 2003.^[7]

Human Rights Watch and The New York Times Editorial board have called for the prosecution of Bybee "for conspiracy to torture as well as other crimes."^[8][9]

Personal life

Born in Oakland California, on October 27, 1953, Bybee was largely raised in Clark County, Nevada. His family subsequently moved to Nashville, Tennessee, then Louisville, Kentucky. Bybee is an Eagle Scout.^[10] A lifelong member of The Church of Jesus Christ of Latter-day Saints (LDS Church), Bybee served a mission for the LDS Church in Santiago, Chile from 1973 to 1975.

Bybee is married to Dianna Greer, a high school teacher.^[11]

On November 19, 2013, Bybee's twenty-six-year-old son, Scott Greer Bybee, committed suicide at the Las Vegas Mormon Temple. Judge Bybee's colleague, Milan D. Smith, Jr. released a statement from Jay and Dianna Bybee: "From the time he was a very young man, Jay and Dianna's son Scott has suffered from severe depression. Over the years, Jay and Dianna have sought the best professional advice and treatments available for Scott, and have done all else they could as loving parents to help Scott cope with his struggles. Yesterday evening, however, Scott's sufferings became too great, and he took his own life.

“While Jay and Dianna mourn for Scott, and grieve for their own loss, they are grateful that he is finally released from his sufferings. They have faith that he is in a better place. It will take time for Jay, Dianna, and their other family members, to begin the healing process, but they will be grateful for your prayers and good wishes on their behalf.”

Academic career

From 1991 to 1999, Bybee taught at the Paul M. Hebert Law Center at Louisiana State University; subsequently, he was a founding faculty member of the William S. Boyd School of Law at the University of Nevada, Las Vegas, where he taught from 1999 to 2001. At both schools, he taught constitutional law, administrative law, and civil procedure. In 2000, Bybee was voted Professor of the Year.^[11] His particular areas of expertise are civil procedure, constitutional law, and the federal courts.^[5]

Legal scholarship

Bybee has co-authored two books, Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments (2006) (with Thomas B. McAffee and A. Christopher Bryant), and Religious Liberty Under the Free Exercise Clause (U.S. Dept. of Justice, Office of Legal Policy, 1986) (with Lowell V. Sturgill). Bybee has also written more than 20 law review articles, notes, comments, and book chapters.^[2]

Office of Legal Counsel

Bybee served as the Assistant Attorney General for the Office of Legal Counsel (OLC) in the United States Justice Department from November 2001 to March 2003.^[12][13]

Bybee memo

During Jay Bybee's tenure at the OLC, the CIA acting General Counsel John A. Rizzo requested a legal opinion on detainee interrogation. That request was routed to the OLC by the White House General Counsel Alberto Gonzales, who desired the "ability to quickly obtain information from captured terrorists and their sponsors."^[14] The CIA inquired whether, after the terrorist attacks of September 11, 2001, it could aggressively interrogate suspected high-ranking Al-Qaeda members captured outside the United States in ways some regard as torture. In effect, the CIA was asking for an interpretation of the statutory term of "torture" as defined in 18 U.S.C. § 2340. That section implements, in part, the obligations of the United States under the Geneva Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

Bybee signed that legal memorandum which endorsed "enhanced interrogation techniques" as lawful. These same techniques are viewed as torture by the Justice Department,^[15] Amnesty International,^[16] Human Rights Watch,^[17] medical experts in the treatment of torture victims,^[18][19] intelligence officials,^[20] and American allies.^[21] This memo has been the source of controversy; critics of his action have called for his impeachment or resignation.^[22] Bybee and five others, known as the "Bush Six", were the subject of a war crimes investigation in Spain,^[23] but the government decided against prosecution in 2011.

A memo declassified in 2012 indicates that some in the Bush State Department believed that the methods were illegal under domestic and international law, and constituted war crimes.^[24] Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions,^[25] and U.S. Navy general counsel Alberto Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" of the memo.^[26] Philip D. Zelikow, former State Department adviser to Condoleezza Rice, in 2009 testified to the Senate Judiciary Committee studying the matter, "It seemed to me that the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution." Zelikow also alleged that Bush administration officials attempted to destroy his memos alleging fault in Bybee's reasoning.^[27]

Office of Professional Responsibility investigation

In July 2009, after a five-year inquiry, the Office of Professional Responsibility released a report, later modified by the Justice Department, saying Jay Bybee and his deputy John Yoo committed "professional misconduct"^[28] by providing legal advice that was in possible violation of international and federal laws on torture.^[29][30] The OPR initial report recommended that both Bybee and Yoo be referred to the bar associations of the states where they were licensed for further disciplinary action and possible disbarment.^[31] David Margolis, Associate Deputy Attorney General of the Department of Justice, examined the OPR report and wrote that Bybee and Yoo had used "poor judgement"^[32] but did not "knowingly or recklessly provide incorrect legal advice or ... provide advice in bad faith."^[33]

Ninth Circuit Court of Appeals

Bybee was first nominated to the Ninth Circuit Court of Appeals, the largest U.S. appellate court, on May 22, 2002. The Senate recessed for mid-term elections without acting on the nomination, which was "returned without action" in November 2002 under Senate Rule XXXI, Paragraph 6.^[34]

President George W. Bush resubmitted his nomination on January 7, 2003. The Senate Judiciary Committee reported favorably on Bybee's nomination by a 12-6 vote (10 Republicans and 2 Democrats for, 6 Democrats against) in late February and forwarded the nomination to the full Senate for consideration.^[35] Senate deliberations took place on March 13, 2003.^[36] The Senate confirmed Bybee's nomination by a vote of 74-19 the same day.^[37] Bybee received his commission on March 21, 2003. Justice Sandra Day O'Connor administered the oath of office at the U.S. Supreme Court building on March 28, 2003.^[38]

Democratic Senator Charles Schumer noted that he supported Bybee's confirmation specifically because the judge's conservative views would help to moderate "the most liberal court in the country."^[39]

Some critics decried his confirmation, calling Bybee "an extremist who takes an overly limited view of federal power" and criticizing his "narrow view of individual rights", including abortion and gay marriage.^[40]

Bybee was confirmed in 2003, more than a year before news of his role in the torture memos was revealed.^[41] According to Senator Patrick Leahy, "If the Bush administration and Mr. Bybee had told the truth," regarding Bybee's role in the Torture Memos, "he never would have been confirmed."^[41]

Significant opinions

On January 13, 2005, in a 2-1 decision, Bybee wrote for the majority in United States v. Bruce. This case further refined the rules for defining whether or not an individual is a Native American or an American Indian. The current two-prong Rogers approach requires that the individual's degree of Indian blood as well as her tribal or government recognition as an Indian be taken into consideration. The Court concluded that Violet Bruce was an Indian.^[42]

On August 2, 2005, Bybee was one of three judges on a Ninth U.S. Circuit Court of Appeals panel that ruled on John Doe v. Kamehameha Schools. With Robert Beezer, Bybee issued the majority decision that the schools' admissions policy constitutes "unlawful race discrimination." The two judges said the private school's policy violates federal civil rights law. Susan Graber issued a partial dissent. That panel's ruling was overturned on December 5, 2006, by an 8–7 decision of the Ninth Circuit's fully active appeals judges en banc, after a rehearing sought by Kamehameha Schools.^[43]

On January 10, 2006, in an en banc decision, Judge Bybee wrote the opinion for the majority in the case of Smith v. Salish Kootenai College. In that case, James Smith sought to have a case heard in federal court which he had previously brought in a tribal court. When he disagreed with the tribal court's decision, he claimed that it had had no jurisdiction in the first place. In an 8-3 decision, the Court upheld the tribal court's jurisdiction over the subject matter, thereby strengthening tribal courts' rights to claim jurisdiction.^[44][45]

On September 11, 2006, Bybee wrote the majority opinion in Kesser v. Cambra, granting habeas corpus to the defendant by a 6-5 vote. Richard Kesser had been convicted of hiring a hit man to kill his former wife and was sentenced to life without parole. During Kesser's trial in 1995, the prosecutor had eliminated three American Indian jurors and one Asian juror for racial reasons. Effectively granting Kesser a new trial, this decision laid out the current Batson analysis in the Ninth Circuit.^[46][47]

On November 7, 2006, Bybee wrote on behalf of a unanimous three-judge panel in the case of Lankford v. Arave. Mark Lankford had been convicted of murder and sentenced to death nearly two decades earlier. The Ninth Circuit Court of Appeals granted habeas corpus based on ineffective assistance of counsel and faulty jury instructions, and noted that there was support for Lankford's theory that his brother committed the murders in question.^[48][49]

On August 21, 2008, in U.S. v. Craighead, the Ninth Circuit Court of Appeals held that the defendant's rights had been violated when he was interrogated in his own home without first being read his Miranda rights. In that case, numerous law enforcement officers had arrived at the defendant's home because he was suspected of having downloaded child pornography. In a decision written by Bybee, the Court held that the defendant's interrogation had been custodial and therefore violated his Fifth Amendment rights.^[50]

On November 7, 2008 (but amended twice in January 2009), the Ninth Circuit Court of Appeals tackled the issue of the due process rights of individuals who were mistakenly placed on the California Child Abuse Central Index (CCACI), a registry for accused and known child abusers. In Humphries v. County of Los Angeles, Craig and Wendy Humphries fought to have their names removed from the CCACI after the courts had cleared them completely of abuse charges brought by a rebellious child. Because the state of California had no system in place for removing names that did not belong on the CCACI, the Court held that the CCACI violated the due process rights of those who had been falsely accused but could not get their names removed from the CCACI.^[51]

On December 30, 2008, Bybee wrote the opinion for the Ninth Circuit Court of Appeals in Gonzalez v. Duncan. In that case, Cecilio Gonzalez had failed to reregister as a sex offender within five working days of his birthday. Because of prior convictions, he had been sentenced to twenty-seven years to life under California's Three strikes law. The Court held that the sentence was grossly disproportionate to the crime.^[52]

On August 29, 2012, Bybee, who previously wrote the dissent in a three-judge panel's ruling, authored the majority opinion that found Sheriff Joe Arpaio and special prosecutor Dennis Wilenchik were not entitled to governmental immunity. The case involved the alleged false arrest of two newspaper publishers who had criticized the Maricopa County, Arizona, sheriff. In an 11-judge en banc hearing, the Ninth Circuit Court of Appeals reversed the panel's decision and held the two defendants could be civilly tried for a potential award of damages for the arrests, violations of free speech and alleged selective enforcement.^[53]

Bibliography

• Jay Bybee, Thomas B. McAffee and A. Christopher Bryant. Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments. (Westport, Conn.: Praeger Publishers, 2006.) ISBN 0-313-31372-5
• Jay Bybee, Religious Liberty Under the Free Exercise Clause. (Washington, D.C.: Office of Legal Policy, Dept. of Justice, 1988)
• "William Rehnquist, the Separation of Powers, and the Riddle of the Sphinx," 58 STAN. L. REV.1735 (2006) (with Tuan N. Samahon).
• "Judging the Tournament," 32 FLA. ST. U. L. REV. 1055 (2005) (with Thomas J. Miles)
• "Of Orphans and Vouchers: Nevada’s “Little Blaine Amendment” and the Future of Religious Participation in Public Programs," 2 NEV. L.J. 551 (2002) (with David W. Newton)
• "Printz, the Unitary Executive, and the Fire in the Trash Can: Has Justice Scalia Picked the Court’s Pocket?," 77 NOTRE DAME L. REV. 269 (2001)
• "Common Ground: Robert Jackson, Antonin Scalia, and a Power Theory of the First Amendment," 75 TUL. L. REV. 251 (2000)
• "The Tenth Amendment Among the Shadows: On Reading the Constitution in Plato’s Cave," 23 HARV. J.L. & PUB. POL’Y 551 (2000)
• "Domestic Violence Clause," in ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION (Leonard W. Levy et al. eds., 2d ed. 2000)
• Child Support Recovery Act (1992), in ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION (Leonard W. Levy et al. eds., 2d ed. 2000)
• Agency Expertise, ALJ Independence, and Administrative Courts: The Recent Changes in Louisiana’s Administrative Procedure Act, 59 LA. L. REV. 431 (1999)
• The Equal Process Clause: A Note on the (Non).Relationship Between Romer v. Evans and Hunter v. Erickson, 6 WM. & MARY BILL RTS. J. 201 (1997)
• Insuring Domestic Tranquility: Lopez, Federalization of Crime, and the Forgotten Role of theDomestic Violence Clause, 66 GEO. WASH. L. REV. 1 (1997)
• Who Executes the Executioner? Impeachment, Indictment and Other Alternatives to Assassination, 2 NEXUS 53 (1997)
• Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment, 91 NW. U.L. REV. 500 (1997)
• Substantive Due Process and Free Exercise of Religion: Meyer, Pierce and the Origins of Wisconsin v. Yoder, 25 CAP. U.L. REV. 887 (1996)
• Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 VAND. L. REV. 1539 (1995)
• Advising the President: Separation of Powers and the Federal Advisory Committee Act, 104 YALE L.J. 51 (1994)
• George Sutherland, in THE SUPREME COURT JUSTICES: ILLUSTRATED BIOGRAPHIES, 1789-1993 (Clare Cushman ed. 1993)
• Owen J. Roberts, in THE SUPREME COURT JUSTICES: ILLUSTRATED BIOGRAPHIES, 1789-1993 (Clare Cushman ed. 1993)
• Utah’s Horseman: George Sutherland, 13 SUP. CT. HIST. Q. 14 (No. 2, 1992)
• Note, Reverse Political Checkoff Per Se Illegal as Violation of Federal Election Campaign Act, 1980 BYU L. REV. 403
• Comment, Profits in Subrogation: An Insurer’s Claim to Be More Than Indemnified, 1979 BYU L. REV. 145, reprinted in 30 FED’N INS. COUNS. Q. 249 (1980)

See also

• Bush Six
• John Yoo

References

1. Weaver, Christopher (2009-01-28). "The Men Behind the Memos". propublica.org. ProPublica. Retrieved 2016-11-01.
2. "Bybee publication list at University of Nevada, Las Vegas" (PDF). Retrieved 27 February 2009.
3. Irvine, David "LDS lawyers, psychologists had a hand in torture policies", Salt Lake Tribune April 29, 2009]
4. WhoRunsGov: The best political profiles on the web
5. "Jay Bybee description from University of Nevada, Las Vegas". Retrieved 27 February 2009.
6. Dean, John W. (14 January 2005). "The Torture Memo By Judge Jay S. Bybee That Haunted Alberto Gonzales's Confirmation Hearings". Writ. Retrieved 28 February 2009.
7. "Jay S. Bybee Biography". Federal Judicial Center. GPO. Archived from the original on 2006-01-17.
8. "No More Excuses: A Roadmap to Justice for CIA Torture". hrw.org. Human Rights Watch. Retrieved 2015-12-02.
9. "Prosecute Torturers and Their Bosses". The New York Times. 2014-12-21. Retrieved 2015-04-17.
10. James, Randy (April 28, 2009). "Jay Bybee: The Man Behind Waterboarding". TIME.
11. Johnson, Page. "Jay S. Bybee Named to Ninth Circuit Court". Meridian Magazine. Archived from the original on June 28, 2008. Retrieved 28 January 2009.
12. Bush, George W. (July 10, 2001). President intends to nominate Jay S. Bybee to be Assistant Attorney General for the Office of Legal Counsel. White House. Retrieved April 26, 2009.
13. "Senate Judiciary Committee Hearings, Jay S. Bybee Nomination to OLC". Congressional Record. Library of Congress. 23 October 2001.
14. Schwarz, Frederick August Otto; Aziz Z. Huq (2007). Unchecked and Unbalanced: Presidential Power in a Time of Terror. New York City: The New Press. pp. 78–81. ISBN 978-1-59558-117-4. OCLC 71286622.
15. Stout, David (15 January 2009). "Holder Tells Senators Waterboarding Is Torture". New York Times. Retrieved 21 April 2009.
16. "Amnesty International: Waterboarding Is Never Acceptable Regardless of the Circumstances". Reuters. 5 February 2009. Retrieved 24 May 2009.
17. "Open Letter to Attorney General Alberto Gonzales". Human Rights Watch. 5 April 2006. Retrieved 17 April 2009.
18. Mayer, Jane (14 February 2005). "Outsourcing Torture". The New Yorker. Retrieved 17 April 2009.
19. "Former member of UN Committee Against Torture: 'Yes, waterboarding is torture'" (Press release). International Rehabilitation Council for Torture Victims. 12 February 2008. Archived from the original on May 2, 2009. Retrieved 21 April 2009.
20. Grey, Stephen (2006). Ghost plane: the true story of the CIA torture program. New York City: St. Martin's Press. p. 226. ISBN 0-312-36023-1. OCLC 70335397. As one former CIA official, once a senior official for the directorate of operations, told me: 'Of course it was torture. Try it and you'll see.' Another, also a former higher-up in the directorate of operations, told me: 'Yes, it's torture…'
21. Williams, Carol (1 May 2009). "Jay Bybee Silent on Interrogation Memos". la times. Retrieved 24 May 2009.
22. http://www.washingtonpost.com/wp-dyn/content/article/2009/04/24/AR2009042403888.html
23. Abend, Lisa (31 March 2009). "Will a Spanish Judge Bring Bush-Era Figures to Justice?". Time. Retrieved 24 May 2009.
24. Ackerman, Spencer (4 April 2012). "CIA Committed 'War Crimes,' Bush Official Says". Wired.
25. Isikoff, Michael (May 17, 2004). "Memos Reveal War Crimes Warnings". Newsweek.
26. Mayer, Jane (February 27, 2006). "The Memo: How an Internal Effort to Ban the Abuse and Torture of Detainees was Thwarted". The New Yorker. Retrieved April 22, 2009.
27. Eviatar, Daphne (2009-05-13). "Philip Zelikow: OLC Interpretation Would Allow Waterboarding of U.S. Citizens". The Washington Independent. Retrieved 2009-06-09.
28. Office of Professional Responsibility (2009). Report Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists. United States, Department of Justice. Accessed September 2, 2011. page 260
29. OPR 2011 page 255
30. OPR 2011 page 256
31. Johnson, Carrie (January 31, 2010). "No sanctions for Bush lawyers who approved waterboarding, report will say". Washington Post. Retrieved 9/2/2011. Check date values in: |access-date= (help)
32. Margolis, David (2010). Memorandum of Decision Regarding the Objections to the Findings of Professional Misconduct in the Office of Professional Responsibility's Report of Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists. United States, Department of Justice. Accessed September 2, 2011. page 68
33. Margolis 2011 page 64
34. "Senate Judiciary Committee, Jay S. Bybee Nomination to 9th Circuit Court Returned". Congressional Record. Library of Congress. 20 November 2002.
35. "Senate Judiciary Committee Hearings, Jay S. Bybee Nomination to 9th Circuit Court". Congressional Record. Library of Congress. 27 February 2003.
36. "Senate Floor Statements, Jay S. Bybee Nomination to 9th Circuit Court". Congressional Record. Library of Congress. 13 March 2003.
37. U.S. Senate Roll Call Vote #54 - 108th Congress - 1st Session, 13 March 2003, Confirmation of Jay S. Bybee To U.S. 9th Circuit
38. Tetreault, Steve (29 March 2003). Nevadan sworn in as U.S. judge. Las Vegas Review Journal.
39. Search | Las Vegas Review-Journal
40. Ofgang, Kenneth (14 March 2003). Assistant Attorney General Jay Bybee Confirmed as Ninth Circuit Judge. Metropolitan News-Enterprise.
41. Vick, Karl (25 April 2009). Friends Say Judge Bybee Regrets Interrogation Memo He Signed. Washington Post.
42. 394 F3d 1215 United States v. Bruce | OpenJurist
43. "'John Doe v. Kamehameha Schools'", The Honolulu Advertiser
44. 434 F3d 1127 Smith v. Salish Kootenai College | OpenJurist
45. Archived July 21, 2011, at the Wayback Machine.
46. 9th Circuit Finds Racial Motives in Juror Dismissals
47. Ninth Circuit Blog: September 2006
48. Federal Defender Newsletter at the Wayback Machine (archived February 24, 2012) (December 2006), Federal Defender for the Eastern District of California (archived from the original on 201-02-24)
49. Ninth Circuit Reverses Death Sentence for Attorney Incompetence
50. U.S. v. Craighead
51. HUMPHRIES v. COUNTY OF LOS ANGELES, No. 05-56467., January 15, 2009 - US 9th Circuit | FindLaw
52. http://www.ca9.uscourts.gov/datastore/opinions/2008/12/30/0656523.pdf

External links

• 4 Torture Memos Released 16Apr2009 in response to FOIA suit by ACLU.

• Jay Bybee at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
  
• "Bybee memo"
• "The Law Required It", Newsweek interview with OLC's 2003 replacement, Jack Goldsmith.
• "Sen. Ensign Floor Statement", March 13, 2003
• "Jay Bybee". The Center for Torture Accountability. Retrieved 2009-06-04.