Jay Bybee, Federal Judge & War Criminal

The Worst Secret Law That’s Still Secret

By David Swanson

When Bush was president he made laws by asking lawyers to write secret memos “legalizing” blatant crimes, most famously torture.  A lot of people have heard of one of those lawyers, a man named John Yoo.  His boss was Jay Bybee.  Bybee signed the worst of the torture memos and was rewarded with a nomination to a life-time seat as an appeals court judge in the Ninth Circuit (west coast).

In April of this year, when some torture memos were released, Senator Patrick Leahy asked Bybee to come in and testify.  Bybee refused.  Leahy has not subpoenaed him.

President Obama has declared that neither the lawyers like Bybee who wrote the memos nor the former president and vice president and secretary of defense and attorneys general, none of the top culprits, will be prosecuted.  Instead, Obama has given his attorney general permission to consider prosecuting a few low-ranking personnel who strayed from the policies laid out in the illegal memos.  This can only more firmly establish that presidents can legalize crimes by ordering memos written.

Meanwhile Bybee and five of his colleagues are facing a likely indictment in Spain.  And Bybee’s impeachment and/or resignation from his cushy judgeship has been advocated by Congressman Jerrold Nadler, Senator Russ Feingold, the New York Times, the Center for Constitutional Rights, the Courage Campaign, Progressive Democrats of America, Bruce Fein, Common Cause, Democrats.com, People for the American Way, The World Can’t Wait, ThinkProgress, Crooks and Liars, Digby, Scott Horton, After Downing Street, ImpeachBybee.org, Jeremy Scahill, Dave Lindorff, Congresswoman Jan Schakowsky, Senator Patrick Leahy, American Freedom Campaign, National Lawyers Guild, John Podesta, MoveOn, Veterans for Peace, National Accountability Network, Code Pink, Velvet Revolution, and the Salt Lake Tribune, among others.  Political parties and towns have begun passing resolutions calling for Bybee’s impeachment.

Our representatives in Congress earlier this year impeached a judge who had groped employees.  Jay Bybee has arguably done worse, and yet has not been impeached, apparently because he is a former member of the executive branch and a “conservative.”  Seriously.  The word we hear out of the House Judiciary Committee is that they will not impeach Bybee because Fox News would not like it.  This was the same reason that Chairman John Conyers gave us for not impeaching Bush or Cheney.

But our republic’s survival may require impeaching Jay Bybee.  It appears to be the only way that Congress could force the Department of Justice to enforce our laws, the only way Congress can force more information into the public realm, and the only way that Congress can begin to check executive power.

And it’s not just about torture.  Jay Bybee did not just “legalize”
torture.  He also “legalized” aggressive war.

Jay Bybee wrote a memo that nobody has noticed, one purporting to authorize crimes far worse than torture, the same crimes the torture was itself intended to create false justifications for. On October 23, 2002, Assistant Attorney General Bybee signed a 48-page memo to the “counsel to the president” (Alberto Gonzales) titled “Authority of the President Under Domestic and International Law to Use Military Force Against Iraq.” This was another secret law, but instead of authorizing particular uses of torture (which in reality were far exceeded, engaged in prior to the memos, etc.), this one authorized any president to single-handedly commit what Nuremberg called “the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” And while the torture memos extensively and grotesquely limited the days of sleep deprivation and the hours of waterboarding, the aggressive war memo included only a single paragraph at the bottom of page 47 requiring that:

“Were the President to determine that the use of force in self-defense is necessary to counter the threat posed by Iraq’s WMD program, such force should be proportional; in other words, it should be limited to that which is needed to eliminate the threat posed by Iraq.”

When this memo was written, our president, vice president, and top cabinet officials were screaming about Iraq’s vast quantities of weapons, but Bybee was already crafting his justifications around the idea of weapons “programs.”

The result was guaranteed to be massive death, no matter how “proportional” to the nonexistent threat. But the permission was also guaranteed to be wildly exceeded by anybody’s definition. The result has been 1.2 – 1.3 million deaths according to Just Foreign Policy’s updated figure based on the Johns Hopkins / Lancet report, and according to the British polling company Opinion Research Business’s estimate as of August 2007. According to the United Nations High Commissioner for Refugees (UNHCR), the number of Iraqis who have fled their homes has reached 4.7 million. If these estimates are accurate, a total of nearly
6 million human beings have been displaced from their homes or killed.

Many times that many have certainly been injured, traumatized, impoverished, and deprived of clean water and other basic needs, including the need to have parents.

And what has accumulated in the evil of the whole? The current occupation of Iraq has seen the United States target civilians, journalists, hospitals, and ambulances; use antipersonnel weapons including cluster bombs in densely settled urban areas; use white phosphorous as a weapon; use depleted uranium weapons; employ a new version of napalm found in Mark 77 firebombs; engage in collective punishment of Iraqi civilian populations; including by blocking roads, cutting electricity and water, destroying fuel stations, planting bombs in farm fields, demolishing houses, and plowing down orchards; detain people without charge or legal process without the rights of prisoners of war; imprison children; torture; and murder. Michael Haas has published a well-documented book with the clear title: “George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes.”
Jay Bybee’s liability must not be minimized.

Bybee’s memo declares that a president has the power to launch wars.
Period. The “authorization to use force” passed by Congress is treated as gravy on top of this basic power. According to Bybee’s copy of the U.S. Constitution, Congress can “issue formal declarations of war.”

According to mine, Congress has the power “to declare war,” as well as every related substantive power. In fact, there are no incidental formal powers anywhere in my copy of the Constitution.

Bybee dismisses the War Powers Act by citing Nixon’s veto of it rather than the law itself, and upholds the “authorization to use force”

without mentioning the requirements it included for the president, requirements he later met by lying about weapons and ties to 9-11. Bybee cites letters written by Bush as authoritative. He even cites a Bush signing statement. And, of course, he cites and relies on previous memos produced by his office, the Office of Legal Counsel in the Department of Justice.

Bybee relies heavily on the “Bill Clinton sort-of did it and might have done it, and therefore it is legal,” argument. For good measure, he throws in Truman and Bush Sr. and Kennedy and Reagan, not to mention an Israeli ambassador’s opinion of a U.N. declaration condemning an aggressive attack by Israel. The thrust of the argument is that, because Bush Sr. and Clinton launched strikes into Iraq it’s OK for Bush Jr. to launch a whole lot of them. This would be the same as arguing that because Bush Jr. and Obama launched strikes into Pakistan, Obama or any future president can launch a full-scale war there. Legally, this is nonsense. The strikes are as illegal as the war would be. Politically, it’s something to consider: do we really want to maintain silent acceptance of such strikes?

Bybee claims not only that a president can simply launch any war he wants, and that the “authorization to use force” somehow adds to that complete and total power, but also that — in terms of international law — attacking Iraq would be justified both as authorized by the UN Security Council and as an act of self-defense. The war would not be so much a new war, Bybee claims, as the suspension of a cease-fire that Iraq suspended first. And the Security Council would have authorized a war even though the Security Council itself might claim otherwise. Bybee redefines self-defense as “anticipatory self-defense” and argues that the authors of the UN Charter could never possibly have meant otherwise.

And he adds that, in an age of nuclear weapons, anticipatory self-defense can justify launching a war against any nation that might conceivably acquire nukes, even if there was no reason to think that nation would use them to attack yours:

“We observe, therefore, that even if the probability that Iraq itself would attack the United States with WMD, or would transfer such a weapon to terrorists for their use against the United States, were relatively low, the exceptionally high degree of harm that would result, combined with a limited window of opportunity and the likelihood that if we do not use force, the threat will increase, could lead the President to conclude that military action is necessary to defend the United States.”

This memo justified a war of aggression and all the crimes and abuses of power abroad and at home that were justified by the war. Jay Bybee has a lifetime appointment as a federal judge wearing black robes drenched in the crimson blood of his victims. His crimes are on paper in black and white for the world to see. If he is not impeached and prosecuted, similar horrors await our planet in the near future.

When Alberto Gonzales resigned his position as attorney general, it was because one random congress member had submitted a 1-sentence bill instructing the House Judiciary Committee to consider his impeachment, and many congress members signed on.  Surely we can find a member of Congress who will introduce the same 1-sentence bill with the name Jay Bybee inserted.

Take Action: http://impeachbybee.org

Judges Above the Law

(Harper’s Magazine) The chief judge of the Ninth Circuit Court of Appeals acted preemptively in an apparent effort to head off challenges to his colleague, torture lawyer turned judge Jay Bybee. On Friday, public interests groups in California filed a judicial misconduct complaint against Bybee based on his focal role in creating legal memoranda designed to protect torturers against criminal prosecution. Judge Alex Kozinski handed down a decision stating that judges of the court of appeals could not be held accountable for any crimes they may have committed before they came on the bench—at least not through the court’s own internal disciplinary mechanisms. Bybee had prepared the torture memoranda for the Department of Justice while his nomination to the federal bench was in the process of being cleared, and some critics have seen evidence of a quid pro quo arrangement under which he prepared the memoranda in order to get the appointment as a federal judge. Bybee is now the subject of a criminal investigation in the Spanish Audiencia Nacional—making him the first American federal appeals court judge to continue on the bench after becoming the subject of a criminal proceeding. John Roemer of the Daily Journal reports:(subscription required)

As pressure grows to discipline 9th U.S. Circuit Court of Appeals Judge Jay S. Bybee for drafting memos authorizing controversial interrogation practices, the circuit’s Chief Judge, Alex Kozinski, published an unusual misconduct order Wednesday that appeared to rule out any action against Bybee for activities he took before being appointed to the federal bench. The order, which doesn’t mention Bybee by name, cited a 1986 order by former Chief Judge James R. Browning considering whether federal judges can be disciplined by the federal courts for acts committed prior to their appointments to the judiciary. The short answer was no.

“The judicial branch has no constitutional role in considering the fitness of an individual to assume judicial office,” Browning wrote. “Congress noted the differing roles of the coordinate branches in relation to judicial fitness, and recognized that ‘because of the separation of powers principle established by the Constitution, these roles must remain separate.’”

The position advanced by Kozinski provides a parallel to arguments advanced by the Bush and Obama Administrations under which their operatives have complete immunity for criminal misconduct relating to the torture issue. Apparently, judges have immunity for their misconduct as well. As America’s legal system is evolving, those who exercise positions of privilege and power are not held to account for even the most serious violations of the criminal law. Accountability, it seems, is reserved strictly for the small fry. (By Scott Horton)

Take Action: http://impeachbybee.org