Activists Demand that Torture Lawyer Resign



When federal judge Jay Bybee came to Seattle he was greeted with angry protests. Known as the "Torture Lawyer", Bybee issued the 2002 memo that authorized water boarding and other torture techniques. Bybee is currently the subject of a war crimes investigation in Spain and an ethics investigation by the United States Department of Justice.


On September 3rd, a dozen or so people demonstrated outside of the Seattle Federal Courthouse, calling for Bybee's impeachment. The action was sponsored by Washington For Impeachment, PDA, World Can't Wait, Backbone Campaign, Code Pink, and Eastside Fellowship of Reconciliation. The action was scheduled for 10:00-12:30 on a Thursday, so (not unexpectedly) the demonstrators were out numbered by Homeland Security forces. In addition to the usual courthouse security, there were 7 white vans parked near the entrance, each containing uniformed, armed guards. The Backbone Campaign brought a large paper mache statue of Justice. Others held signs showing pictures of Bybee's torture victims.

Although torture is illegal under both United States and international law, George W. Bush relied upon Jay Bybee and other lawyers to construct the legal grounds for allowing the president and his representatives to torture at will. As an assistant attorney general in the Justice Department, Bybee released memos that authorized torture under the guise of "enhanced interrogation techniques". These techniques were used at Abu Ghraib, Guantanamo, and other places. Bybee's torture memos rejected the United Nations Convention Against Torture as too broad. He championed a new litmus test for torture -- the intentional infliction of permanent injury or death. These memos redefined behavior such as threats of execution against detainees and their families, threats to rape a detainee's female relatives, beatings, and waterboarding as permissible behavior. A few months after submitting the torture memos, Bybee was given a lifetime appointment to one of the top judicial benches in the country.

The Bybee Torture Memo was written in August of 2002, but it was only revealed to the public on April 16, 2009, after years of litigation. Upon its release, the New York Times called on Congress to impeach federal judge Jay Bybee. In an editorial, the New York Times declared that Bybee was, "unfit for a job that requires legal judgment and a respect for the Constitution. " In a similar vein, Yale law professor Bruce Ackerman has also asked, "Why should a suspected war criminal serve as a federal judge?"

Despite the many displays of public outrage, little has changed since Bybee's memos were exposed. In an April 25, 2009, Washington Post article, Senate Judiciary Committee Chairman Patrick J. Leahy (D-VT) said: "If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," and that "the decent and honorable thing for him to do would be to resign". Four days later, Senator Leahy sent a letter to Judge Jay S. Bybee inviting him to testify before the Judiciary Committee, however, Bybee did not have the necessary manners -- or decency -- to respond to the invitation. No federal judge has ever been impeached for conduct that took place before taking the bench. So far, the senate has been unwilling to break that precedent.

Immune to criticism, Bybee sits on the United States Court of Appeals for the Ninth Circuit. Headquartered in San Francisco, the Ninth Circuit is the largest of the thirteen courts of appeals, with 29 active judgeships. The court's regular meeting places are Seattle, Portland, San Francisco, and Pasadena. The court arranges its hearings so that cases from the northern region of the circuit are heard in Seattle or Portland. The judges travel around the circuit. Wherever Bybee goes, he is met with protests.

Seattle's action was similar to many others across the west. World Can't Wait and other organizations have called for protest actions to meet Bybee across the Ninth Circuit. Bybee is greeted by courthouse protests whenever the Ninth Circuit Court of Appeals meets. Outside the Seattle courthouse, activists gave speeches and passed out literature about Judge Bybee's role in legalizing torture. At one point the activists broke into the song "Bye Bye Bybee".



Bye Bye Bybee

Pack up all your legal briefs
Your day is done, time to leave
Bye bye Bybee
Defending torture was your game
Call it any other name
Bye bye Bybee
You can call it harsh interrogation
We just call it legal obfuscation
No excuses no delays
There's no believing what you say
Bybee, bye bye


Bybee and Bush's other torture lawyers are the subject of a federal investigation by the Justice Department's Office of Professional Responsibility. The focus of the investigation to determine whether the advice given in the memo "was consistent with the professional standards that apply to Department of Justice (DOJ) attorneys." At issue for the DOJ is whether the torture memo reflects an objective, balanced legal opinion, not simply providing support for a government policy. If Bybee's work is found to be substandard, the DOJ will not impose any penalty. It will simply forward its conclusion to the Nevada bar association. The DOJ is not looking at what Bybee authorized or the consequences for his victims.

Many progressives think that the parameters of the investigation are too narrow, and that any investigation into torture should explore whether there was a criminal conspiracy between the torture lawyers and the high Bush administration officials. For Jay Bybee, this might include whether there was a quid quo pro: providing legal cover in exchange for a judgeship.

The Disbar Torture Lawyers Campaign, a coalition of organizations representing over one million members, has filed disciplinary complaints with state bar licensing boards against the twelve attorneys, including Bybee, who facilitated the torture of detainees during the Bush Administration. The Constitution sets a high standard for removal of a federal judge, requiring conduct amounting to "high crimes and misdemeanors." However, the standard for state bar licensing boards is lower -- and this approach might be more successful.

Unwilling to only have a one track strategy, the Disbar Torture Lawyers Campaign also sent a letter to House Judiciary Chairman John Conyers, asking that he initiate impeachment proceeding against Jay Bybee, based on his testamony to the Senate during his confirmation hearings. In these hearings, Bybee was portrayed a false picture of his legal history failing to disclose the torture memos to Congress.




The UN Convention Against Torture, Article 1.1 forbids:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.


Susan Harman, one of the activists gathered outside the courthouse on September 3nd, went into the courthouse to confront Judge Bybee, telling him, "Shame on you Mr. Bybee. When are you going to resign?"

Susan is from California, and she travelled to Seattle for the Bybee protest. In July of this year, she confronted Bybee at the Court in Pasadena. "The three of use sat quietly through the case that Bybee was hearing," she explained, "When it was finished, I said to Judge Bybee, 'When will you resign? Every senator I've talked to said they would not have confirmed you had they known about the torture memos."

Although Bush has left office, torture is still happening under the Obama administration. Susan believes that as a deterrance against future abuses of executive power, the architects of the torture policy must be pursued. "Obama has already used all the powers that Bush took from the legislative and judicial branches of government," Susan said, "And he's added preventive detention as an executive power which circumvents the judiciary." Susan believes that the best strategy is to go after the second tier of authority. "This means going after and disbarring the twelve lawyers who advocated the torture of detainees during the Bush regime, " she added.

After her peaceful confrontation with Bybee, Susan rejoined the activists in front of the courthouse. As they protested, the activists saw a man with a shaved head photographing them. Susan asked the man who he was with, however, there was no reply or eye contact. "I asked him several times," she said, "Then the cops appeared and said I was under arrest."

In the courthouse she was told that she has the option of paying a fine or going to court. "I will go to court and fight the charge," Susan told the other activists. When asked if she feels that the protests are working, Susan responded, "You can see from the over-reaction from the police that we are having an effect. They are feeling pressure."







An unidentified man takes photos of the protesters. Susan Harmon asks him who he works for. When he does not respond, she asks again. Although there was no physical contact between the two Susan is arrested for assault.





Law enforcement takes her inside the courthouse where she is booked and later released.

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