Bybee Memo

The Bybee Memo, also known as the Torture Memo and the 8/1/02 Interrogation Opinion,^[1] was a document prepared by the United States Department of Justice's Office of Legal Counsel (OLC) in response to a CIA request to the White House.^[2] It was submitted on August 1, 2002 and officially titled Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A.^[1][3]

The Bybee Memo

During Jay Bybee's tenure at the OLC, the CIA requested legal advice on detainee interrogation. That request was routed to the OLC by then White House General Counsel Alberto Gonzalez who desired the "ability to quickly obtain information from captured terrorists and their sponsors."^[4] 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 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 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

The OLC drafted a memo in response to the CIA request. Reportedly, the memo was principally authored by OLC lawyer John Yoo with aid from David Addington, legal counsel to then Vice President Dick Cheney.^[4][5][6] The memo describes the limitations on the behavior of U.S. government interrogators outside the United States as governed by the United Nations Convention Against Torture. The Convention's provisions are implemented in the United States by 18 U.S.C. § 2340. After surveying the history of 18 USC 2340, the Convention itself, court decisions regarding the Torture Victims Protection Act (28 U.S.C. § 1350), and the Commander-in-Chief powers of the President, the memo concludes that torture is defined as "acts inflicting...severe pain or suffering, whether mental or physical." Physical pain "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Mental pain "must result in significant psychological harm of significant duration, e.g., lasting for months or even years," as well as be the result of one of the specific causes of mental pain contained in 18 USC 2340, "namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual's personality; or threatening to do any of these things to a third party."

The memo also concluded that even though an act is "cruel, inhuman, or degrading," it does not necessarily inflict the level of pain that 18 USC 2340 prohibits, and thus does not subject an interrogator to criminal prosecution. Additionally, it stated that a defense of "necessity or self-defense may justify interrogation methods" that violate 18 USC 2340.

A second memo signed by Jay Bybee and dated August 1, 2002, entitled "Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency: Interrogation an al Qaeda Operative", was released on April 16, 2009 after years of litigation.^[7] It goes into great detail on ten techniques, a number of which have been referred to as torture, and why they are legal to apply to CIA prisoner Abu Zubaydah, who at the time was held in a covert CIA "black site". This memo's legal analysis has been repudiated by the new management of the Office of Legal Counsel, which simultaneously promised to defend and indemnify any government employee who ever relied on that advice to commit violations of domestic and/or international law.^[8][9]

Responses to the Bybee Memo

Bybee signed that legal memorandum which defined "enhanced interrogation techniques" in ways that are regarded as torture by the current Justice Department,^[10] Amnesty International,^[11] Human Rights Watch,^[12], medical experts in the treatment of torture victims,^[13][14] intelligence officials,^[15] military judges,^[16] and American allies.^[17] This memo has been the source of controversy and calls for his impeachment. Bybee is currently the subject of a war crimes investigation in Spain,^[18] as well as the subject of an investigation by the Justice Department's Office of Professional Responsibility.^[17]

OPR investigation

Reported principal author John Yoo and signatory Jay Bybee^[4][5] are currently under investigation by the Office of Professional Responsibility to determine whether the advice given in the memo "was consistent with the professional standards that apply to Department of Justice attorneys."^[19] At issue is whether "the memo's authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted."^[19] This is in contrast to what the duty of OLC attorneys has long been understood to be: providing an objective, balanced legal opinion, not simply providing support for a government policy. Dating back to George Washington's reported comment to the first Attorney General, Edmund Randolph, he wanted "a skilled neutral expounder of the law rather than a political advisor." Subsequent OLC chiefs such as William Rehnquist, Theodore Olsen, Douglas Kmiec, and Randolph Moss have all supported the concept that the OLC is responsible for providing independent and objective analysis of matters before them for the protection of the rule of law.^[4]

Criticism

The memo has been widely criticized. Yale law school Dean and former Assistant Secretary for Human Rights Harold Koh called it "perhaps the most clearly erroneous legal opinion I have ever read" which "grossly overreads the president's constitutional power."^[20] Former Nixon White House counsel John Dean, whose name was cemented in the national consciousness by his involvement in the Watergate scandal, concludes that the memo is tantamount to evidence of a war crime.^[20] On March 9, 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 around thirty-five protesters.^[21]

Yoo's legal opinions were controversial within the Bush Administration. Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions,^[22], while U.S. Navy general counsel Alberto Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" and dangerous extremism of Yoo's legal opinions.^[23] Philip D. Zelikow, former State Department adviser to Condoleezza Rice, testified to the Senate Judiciary Committee, "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 not only ignored his memos, but attempted to destroy them.^[24]

In June 2004, the memo was rescinded by Jack Goldsmith, who had taken over OLC in 2003.^[19] He called the memo "deeply flawed" and "sloppily reasoned."^[19] Nevertheless, Goldsmith has asserted that he "hadn't determined the underlying techniques were illegal."^[25] He continues, "I wasn't in the position to make an independent ruling on the other techniques. I certainly didn't think they were unlawful, but I couldn't get an opinion that they were lawful either."^[25]

Goldsmith has defended the memo's authors. "I don't impugn the integrity of anyone. I really do believe that everyone, both me and the people I disagreed with, were acting in good faith. And it's quite possible that I made mistakes as well. We were all acting under intense pressure" in the post 9/11 climate.^[25] Douglas Kmiec, a law professor at Pepperdine University, has stated that ultimately the memo "caused no long-term legal damage because it was redrafted and is not legally binding."^[26] Even John Dean noted that after the memo leaked, "the White House hung Judge Bybee out to dry."^[20]

Robert Scheer asked if Bybee's appointment to a lifetime job as a federal judge was reward for writing the torture memo. In his column in the Los Angeles Times in 2004, Scheer asked, "Was it as a reward for such bold legal thinking that only months later Bybee was appointed to one of the top judicial benches in the country?" and then goes on to proclaim, "The Bybee memo is not some oddball exercise in moral relativism but instead provides the most coherent explanation of how this Bush administration came to believe that to assure freedom and security at home and abroad, it should ape the tactics of brutal dictators".^[27]

In March 2009 Baltasar Garzón, a Spanish judge who has considered international war crimes charges against other high-profile figures, considered whether to allow charges to be laid against Bybee and five other former officials of the George W. Bush administration.^[28] On April 17, 2009, Spain's Attorney General Cándido Conde-Pumpido issued a non-binding recommendation against the investigation.^[29]

On April 19, 2009 an editorial in The New York Times said that Bybee is "unfit for a job that requires legal judgment and a respect for the Constitution" and called for Bybee's impeachment from the federal bench.^[30] Friends of Bybee have indicated that the jurist privately regrets the controversial memo's inadequacies and growing notoriety.^[31] In response to the criticism, Bybee told the New York Times his signing of the controversial opinions was "based on our good-faith analysis of the law." In addressing the reports of his regrets, he explained in the same article that he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions in retrospect.^[32]

In an April 25, 2009 Washington Post article, Senate Judiciary Committee Chairman Patrick J. Leahy (D-VT) is quoted: "If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," adding that "the decent and honorable thing for him to do would be to resign [from the U.S. Court of Appeals for the 9th Circuit]".^[31] Four days later, Senator Leahy sent a letter to Judge Jay S. Bybee inviting him to testify before the Judiciary Committee in connection with his role in writing legal memoranda authorizing the use of harsh interrogation techniques while serving as the Assistant Attorney General of the Office of Legal Counsel (OLC).^[33] Bybee "declined to respond" to the letter".^[34]

Judge Betty Fletcher, a member of the United States Court of Appeals for the Ninth Circuit for 30 years, is quoted from a statement: “He is a moderate conservative, very bright and always attentive to the record and the applicable law. I have not talked to other judges about his memo on torture, but to me it seems completely out of character and inexplicable that he would have signed such a document”.^[32]

Subsequent OLC opinions

The superseding OLC opinion of 30 December 2004, "Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A"^[35] written by Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, noted that "[w]hile we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum."^[35][36]

In the 15 January 2009 Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001,^[1] Steven G. Bradbury, Principal Deputy Assistant Attorney General, of the OLC stated,

We have also previously expressed our disagreement with the specific assertions excerpted from the 8/1/02 Interrogation Opinion: The August 1, 2002, memorandum reasoned that "[a]ny effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." I disagree with that view.

and further that

The federal prohibition on torture, 18 U.S.C. §§ 2340-2340A, is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation of detainees conducted pursuant to the President's Commander in Chief authority. The statement to the contrary from the August 1, 2002, memorandum, quoted above, has been withdrawn and superseded, along with the entirety of the memorandum, and in any event I do not find that statement persuasive. The President, like all officers of the Government, is not above the law. He has a sworn duty to preserve, protect, and defend the Constitution and faithfully to execute the laws of the United States, in accordance with the Constitution.

See also

• Blue sky memo
• Bush-Blair memo
• Downing Street memo
• John Yoo
• Waterboarding
• Waterboarding in the 21st century

References

External links

• The Missing Memos Special Project ProPublica's tracking table of both released and yet to be released OLC memos.
• Office of Legal Counsel Memos The ACLU's page dealing with the OLC memos. Table (PDF) of released and un-released memos available there.
• A PBS article about the memo.
• Office of Legal Counsel
• US Code
• Full text of Bybee Memo (2,671K pdf) from Findlaw
• December 30, 2004 OLC memo