Reminder: Bybee Was Too Busy Protecting Big Oil to Oversee Torture

Jay Bybee just gave a speech at University of Utah on the Constitution at which he tried to claim the torture memos that bear his name included constraints that no one else has been able to find.

One middle-aged man stood to the side of the classroom with a sign reading “Torture Is a War Crime.” A woman of a similar age next to him tried to ask Bybee about executive branch power and “the secret torture of Muslims.” The moderator from the Federalist Society cut her off before she finished the question.

“That question is way beyond my ability to predict,” Bybee then replied.


After the question-and-answer period, Irvine approached Bybee and tried to ask more about the memos.

Bybee pointed to a section in one memo telling the CIA that if the facts change, to notify the Justice Department for an updated opinion. Bybee also invited Irvine to his offices in Las Vegas to discuss the issue further.

Irvine said he would visit Bybee the next time he is in Las Vegas.

Irvine said moments later that the speech didn’t make him feel better about the memos, though he found it interesting when Bybee described the constrictions on presidential power.

“That is not what I read in that [2002] memo,” Irvine said.

It’s worth remembering, however, that Bybee claims — and the record supports his claim — that he wasn’t all that involved in writing the torture memos that bear his name. According to his own attorney, Maureen Mahoney, he swooped into the memo-writing process just weeks before they were finalized.

The reason she gave for why Bybee was so uninvolved in the nitty gritty of rubber stamping torture is worth noting. Jay Bybee was too busy protecting the secrecy of Cheney’s sweetheart Energy Task Force to oversee his nominal subordinate John Yoo on torture.

I wanted to draw attention to a footnote she includes to–apparently–explain that Jay Bybee was a very busy man at the time when he was supposed to be overseeing John Yoo’s attempts to legalize torture in the summer of 2002. (This is on PDF page 19)

Judge Bybee’s role in reviewing the memo began in earnest around mid-July, roughly two weeks before he signed them.5

5 During the summer of 2002, in addition to his work on national security issues, Judge Bybee, as head of OLC, was also heavily involved in a number of other difficult and pressing legal matters. Of particular note, Judge Bybee was engaged in the district court litigation in Walker v. Cheney, No. 02-340 (DD.C.). The attorneys in that case were working closely with the Department’s Civil Division and the Solicitor General’s Office. The legal issues involved in the case were peculiarly within Judge Bybee’s expertise because his scholarly research had been cited as authority by both sides. See Jay S. Bybee, Advising the President: Separation a/Powers and the Federal Advisory Committee Act, 104 Yale L.J. 51 (1994).

Walker v. Cheney, of course, is the suit the GAO took against Cheney’s office to try to force it to turn over documents relating to his Energy Task Force. After District Court Judge John Bates ruled against GAO in December 2002, it ended one of the more important efforts to subject Cheney’s office to Congressional oversight. Furthermore, this effort must be regarded as Cheney’s first attempt to assert that his was a Fourth Branch, exempt from oversight but also executive regulation.

How interesting, then, that Mahoney highlighted Bybee’s role in helping Cheney succeed in winning this suit to argue that Jay Bybee was doing what he should have been doing in summer 2002.

All one OLC office’s work of expanding Executive Authority to coddle corporations and torture prisoners.


23 replies
  1. galljdaj says:

    Seems to me and my memory, the white paper I saw and read fully, was signed by mr. bybee and bearing his signature is dated earlier! Late 2001 early 2002 and was accompanied with documentations, he was lil bush’s ‘legal council’.

    I am sure there are copies that the lil bush and lil obama have not been able to destroy. Those copies are headed to the ICC AND THE War Crimes trials. There is a professor in or near S.C. that I’m sure has copies. He also has a great search system to locate them. That whole gang has plenty to worry about!

  2. phred says:

    Just one quibble EW, I would rephrase that last sentence to say “torture prisoners”, since not everyone tortured was a terrorist.
    It amazes me that Bybee hasn’t been disbarred. But then that whole “rule of law” business tends to be oversold.

    • RUKidding says:

      What is this “rule of law” of which you speak? Links, please! /s
      I’ve worked in the legal field most of adult working life (not an attorney), and although the “rule of law” was always, shall we say, very *flexible,* it’s now just a joke. Doesn’t exist anymore.
      Shit flows from the top, and Bybee is one top dog from which a whole lotta shit flows. Should be charged with War Crimes, for sure, but I won’t hold my breath.

  3. Don Bacon says:

    “.. he swooped into the memo-writing process just weeks before they were finalized.”
    I guess it takes a long time to write a legal memo to justify obviously illegal acts. “Just weeks” isn’t enough time.
    I imagine that Obama has a similar “legal memo” justifying his non-action on torture, whereas action is required by treaty.
    Crime is Legal if the government does it. OLC lawyers say so.

  4. galljdaj says:

    A lot of truths are coming to the ‘front’ these days, and a picture of the histories as to how we got here were put together thus bringing into the ‘state’ we are in, and CounterPunch has published today three articles that tie together enough to see back into the 1990’s when the PNAC Gang were publishing their white papers as to what was needed to achieve their goals(Today)!

    I’ve read every PNAC White Paper. Put them all together and they are the ‘map’ of how we traveled from the 1990’s to Today mess. All the goals set out by those White Papers are road signs that our Govt has taken and is taking in its attacks on Peoples all over the World . And! Here in the US AGAINST THE US WORKERS!

    Sopme enterprising folks need to publish those White papers along with the list of the PNAC MEMBERS, and how they all have reaped or raped into their pockets!

    • Don Bacon says:

      It’s not only PNAC. The “Progressive Internationalists” had their plan too, and its principles were nearly identical to PNAC’s. And they still are.

  5. galljdaj says:

    I have no knowledge of the Progressive Internationalists, having only seen the words a few times in the last few months, and a vague recollection of the early report and no details of that. I searched on your posting, but found almost nothing like the organization of the PNAC OF THE 1990’S. That organization scared the shit out of me. And. I HAVE BEEN OPPOSED TO EVERYTHING the PNAC gang has written ever since. Clearly they have no belief in law and order or rule of law save to use the law as a weapon against Peoples for profits. They twist every ‘event’ to be used for just the fewest of peoples. Never the Common Good, which they hold to be their worst enemy!

    The Progressive Internationalists may be more hidden in nature than the PNAC WAS IN THE 90’S The lil bush gang pushed the PNAC into hiding wiping out all the plans of hundreds of White Papers all similar to jay bybee’s just different subjects. All working against democracy for all Peoples!

    • Don Bacon says:

      Joe Biden (Obama’s minder) gave a speech on October 30, 2003 at Will Marshall’s Progressive Policy Institute, the think-tank of the DLC. He asked a question and responded: “Do we need to fashion a broad, integrated plan,” the answer is a resounding, yes, we need to fashion a broad, integrated plan. That’s exactly what I think this work offers: a comprehensive strategy to make us all more secure, consistent with our values and with this country’s extraordinary potential. . .If we adopt the broad priorities set out in this paper, if we fashion a strategic approach to our security that’s been recommended by these fine people here today, I think we can seize the opportunity before us and bring the world together in a way it hasn’t been in over a hundred years.”
      The world was “together” over a hundred years ago? Never mind. The plan Joe referred to was entitled: Progressive Internationalism: A Democratic National Security Strategy
      These are the main principles of this strategy:
      * Democrats will maintain the world’s most capable and technologically advanced military, and we will not flinch from using it to defend our interests anywhere in the world.
      * Democrats believe that America should use its unparalleled power to defend our country and to shape a world in which the values of liberal democracy increasingly hold sway.
      * We stand for equal and expanding opportunity at home and abroad. That is why we favor vibrant, entrepreneurial markets, open trade, and active governance to ensure honest competition.
      * Democrats believe energetic U.S. leadership is integral to shaping a world congenial to our interests and values. World order doesn’t emerge spontaneously; it must be organized through collective action by the leading powers, in particular the leading democracies.
      Compare the Dem “Progressive Internationalism” principles to the principles of the neocon PNAC:
      • we need to increase defense spending significantly if we are to carry out our global
      responsibilities today and modernize our armed forces for the future;
      • we need to strengthen our ties to democratic allies and to challenge regimes hostile to our interests and values;
      • we need to promote the cause of political and economic freedom abroad;
      • we need to accept responsibility for America’s unique role in preserving and extending an international order friendly to our security, our prosperity, and our principles.
      All links are broken.

    • Don Bacon says:

      Many of these issues can be reduced to a US political staple — American Exceptionalism (AE). Nobody doesn’t like AE.
      And we might add a corollary: Exceptional Americans to conduct the AE, because while we’re all equal, some are more equal than others.
      So Hamiltonianism wins over Jeffersonianism.
      And so much for Common Good, let the “exceptional” prevail both domestically and internationally. Repubs, Dems, it makes no difference.

  6. galljdaj says:

    Thank you for the post Don. All kinds of shit to bury the working peoples that make the profits. They were called slaves in the period biden holds dear to himself! Had not seen/read this info, but am aware that the so called leaders of the lil obama gang are the same peoples of the PNAC, gilt covered to hide the truth. I believe the ‘two parties’ are dictators that see themselves born by the gods, each claiming only one god, to rule. Democracy totally gone!

    The writing you posted could be straight out of a PNAC brain or copied.

  7. Peterr says:

    Looks to me as if Bybee was working for the Fourth Branch on two cases, then.
    But Mahoney ought to be careful with her footnotes and explanations. If she is saying “he was too busy to give it the attention it deserves,” that could get him into a lot of trouble. At a bare minimum, it calls into question his professional judgment. I can see the appellate lawyer now, making her pitch . . .
    “May it please the court. In the appeal of the judgment ordered by Judge Bybee, I must respectfully and regretfully point out that Judge Bybee has a history of not giving full attention to matters of ultimate importance. As he demonstrated with the infamous Torture Memo, Judge Bybee played fast and loose with the law, arguing later that he did so only because he was otherwise occupied and gave the work of his staff only a relative cursory exploration. Sadly, I fear that the same has happened in this case, because Judge Bybee has seriously erred in the case now before this court on appeal . . .”

    • wallace says:

      appellate lawyer:

      quote“May it please the court. In the appeal of the judgment ordered by Judge Bybee, I must respectfully and regretfully point out that Judge Bybee has a history of not giving full attention to matters of ultimate importance. As he demonstrated with the infamous Torture Memo, Judge Bybee played fast and loose with the law, arguing later that he did so only because he was otherwise occupied and gave the work of his staff only a relative cursory exploration. Sadly, I fear that the same has happened in this case, because Judge Bybee has seriously erred in the case now before this court on appeal . . .” unquote

      Judge: “Bailiff, arrest the appellate lawyer, and get him outta my sight before I push my machine gun button”

      ps.. Don’t laugh. I worked as a detailer for an Architectural mill, that manufactured court room interiors, including the Judges bench. I saw what he ultimately has at his command. At least the ones I worked on. Don’t EVER underestimate what is behind a Judges bench front apron. Notwithstanding his authority to order human law enforcement intervention, if push comes to shove, in certain cases, by virtue of a switchboard at his command, I am sure he can call on lethal support in the event of court room chaos, as part of the designs, hidden machine gun ports around the room were within the scope of the fixturing and interior design millwork package blueprints. What was intriguing at the time, is the court location was secret, and another company was contracted to install. Perhaps I will be arrested for sharing this tidbit of confidentiality. However, I never signed any legal paper saying I promised not to divulge information pertaining to this subject. So fuck em. Perhaps it was for a foreign court room. Who knows. All I knew was it was a mind fuck for me.

  8. wallace says:

    ps.. we all know Bybee is a scum sucking authoritarian who succumbed to the rewards of subservience to current Legal Imperialism in power. Unbeknownst to him..history has a way of judging those as what they truly are. After only has to view the History of the British Monarchy to finally understand, notwithstanding the Vatican. In reality, I have $1k that says his great great grandchildren will spit on his grave.

  9. Stephen says:

    The op-ed David Irvine wrote for the Salt Lake Tribunal and published on Feb 20 is also worth reading in relation to this.
    “In 2010, I spent several hours in London interviewing three former Guantanamo prisoners who were recipients of the torture Bybee blessed. Omar Deghayes told of an effort by guards to blind him while he was pinned to the floor in his cell. ‘Push harder,’ an NCO yelled. ‘I’m pushing as hard as I can,’ responded the guard who had a finger in each of Deghayes’ eyes. Mr. Deghayes lost his sight in one eye.”

  10. Not Digby says:

    Keep in mind that the secret Energy Task Force was meeting at the same time that California was going through a critically serious electrical energy shortage due to 1) many power plants being down for maintenance at unusual times and 2) energy suppliers witholding electricity from the California market. This shortage magically evaporated after the Dem governor of California was recalled by the electorate and a Republican governor was voted in. I am sure that both crises were just coincidental to the Energy Task Force, even though some of the members of the Task Force were strongly implicated as being part of the energy crisis when the phone recordings were released in the ensuing investigation. Yes, I’m sure it was just a coincidence that needed legal counsel to protect the content of the Task Force’s discussion.

  11. galljdaj says:

    Stephen, bybee’s White Papers says that eye event and outcome would not be torture because the event was “not life threatening”.

  12. galljdaj says:

    The White Paper also claims, ‘it matters not what the victim’s mind believes as that is the point.’

  13. bloopie2 says:

    As to Holder’s comments on press freedom, someone should ask him whether he is speaking as a representative of the government, or as a representative of the people.

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