Judge Bybee Gets an Earful

By Cynthia Papermaster, National Accountability Action Network & CODEPINK

Susan Harman and I sat in Courtroom 2 at the Ninth Circuit for three hours on Wednesday morning in order to speak to Judge Jay Bybee and his two fellow judges at the conclusion of their hearing. I quietly held up a Bybee "wanted poster" advertising a $3,000 bounty for his arrest and conviction for war crimes and crimes against humanity. I was hoping Bybee could see it from the bench. It surprised me that the four or five U. S. Marshals didn't come over and ask me to put it away. Susan was staring intently at Bybee most of the time.

In the past we've had only a few seconds to say something before Bybee disappeared at the end, but this time we caught a break when the gavel came down. Proctor Hug, the first of the three judges headed for the exit, was moving very slowly, leaving Bybee waiting and fully exposed for at least three minutes, during which time Susan and I loudly told him he's a war criminal for authorizing aggressive war and torture, he's not fit to be a judge, he should resign and should be impeached. During this time the marshals just stood in front of us. They didn't ask us to leave or be quiet. I think this is due to the face-to-face discussions Joe in Portland and Susan have had with Chief Judge Kozinski and Cathy Catterson, the circuit and court of appeals executive, over the issue of rough treatment of protestors in the past.

Susan and I went outside where World Can't Wait was setting up giant signs listing "enhanced interrogation techniques" approved by Bybee and photos of torture victims at Abu Graib. There were four Homeland Security vehicles on the scene. One of the officers told WCW to remove their signs but they insisted on exercising their first amendment rights and the signs remained in place.

Nate, Holly, Henry, Susan, Brad, Les, Martha and I held a pink "IMPEACH BYBEE" banner and Bybee Wanted Posters, and we sang "Bye Bye Bybee". Stephanie Tang from World Can't Wait spoke about Bybee's crimes and the continuing American torture situation. We had a statement from DisbarTortureLawyers.com to give the media (see the statement below).

Then Susan and others went to the Clerk's office to deliver letters to all the Ninth Circuit judges asking them to invoke their mandatory judicial misconduct rule to refer Bybee for impeachment to the Judicial Conference of the United States and the House Judiciary Committee. That's right-- it's mandatory for the Ninth Circuit to refer Bybee for impeachment if there might be grounds for impeachment: "A judicial council must refer a complaint to the Judicial Conference if the council determines that a circuit judge may have engaged in conduct that might constitute ground for impeachment”, Rule 20(b)(2)(A). See Susan's letter below.

Statement from Disbar Torture Lawyers ( http://www.DisbarTortureLawyers.com )

When he was employed at the United States Department of Justice, Jay Bybee signed memos that were used as secret laws to legalize blatant crimes. This amounts to an attack on the idea of the rule of law. Our opinion is that such a person should not be a lawyer, let alone a judge.

We at Disbar Torture Lawyers filed complaints with the Bar of the District of Columbia last year and did so again recently after the Justice Department finally released its reports.

The memos that Jay Bybee signed authorized aggressive war and torture, which constitutes clear grounds to investigate whether he is guilty of a felony of conspiracy to torture. We don't want Mr. Bybee investigated because we dislike him, but because the illegal wars and the torture policies are continuing. We believe that the Justice Department should be pursuing prosecution, the United States Congress should be pursuing impeachment, the Bar Association should disbar him, and the Ninth Circuit should remove Mr. Bybee from the bench. Those who have cases brought before him should request that he be removed from hearing their cases. Everyone who is concerned about the future of our country should be raising their voices in protest.

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March 10, 2010

Judge Stephen Roy Reinhardt
United States Court of Appeals for the Ninth Circuit

Dear Judge Reinhardt:

As you know, on February 19, the Justice Department finally released the report of the Office of Professional Responsibility on the role played by Jay Bybee (and others) in this country’s embrace of aggressive war, torture, and other war crimes. Despite heavy redaction, enough is revealed in the report to impeach Mr. Bybee. We ask you to refer him to the Judicial Conference for impeachment forthwith.

Michael Frisch, Georgetown law ethics professor, argues that under Rule 1.2(d) there is sufficient evidence to conclude that Yoo, Bybee, and Bradbury actually counseled a crime: their advice was designed to facilitate torture, torture is a felony, and multiple players putting a scheme in place to torture is a conspiracy to torture.

The New York Times said, “Mr. Yoo and Mr. Bybee were not acting as fair-minded analysts of the law but as facilitators of a scheme to evade it. The White House decision to brutalize detainees already had been made. Mr. Yoo and Mr. Bybee provided legal cover.”

And the report itself says Bybee "should have recognized and questioned the unprecedented nature of the Bybee Memo's conclusion that acts of outright torture could not be prosecuted" (pp. 256-57); "[Bybee] endorsed legal analyses that justified acts of outright torture"(p.255); "[Bybee] acted in reckless disregard of his professional obligations" (p.256) and “of his obligation to provide thorough, objective and candid legal advice" (p.257); "Bybee should have known about the serious flaws in the memoranda" (p.257); and "given the importance of the matter, [Bybee's] actions were objectively unreasonable under the circumstances" (p.257).

You have the power to redress the grievous wrongs visited upon this country by Mr. Bybee. The Rules for Judicial Conduct give your judicial council discretion to “refer the complaint to the Judicial Conference of the United States with the council's recommendations for action” Rule 20(b)(1)(C). In addition, they mandate referring “a complaint to the Judicial Conference if the council determines that a circuit judge or district judge may have engaged in conduct that “might constitute ground for impeachment” Rule 20(b)(2)(A). Mr. Bybee’s actions are impeachable (see footnote).

One or more formal judicial misconduct complaints have been filed against Mr. Bybee; legal professors, lawyers, and the New York Times have called for his impeachment; the Chair of the Senate Judiciary Committee has called for his resignation; and the House Judiciary Committee has 140,000 signatures of citizens calling for Bybee to be impeached. You have a duty to invoke rule 20(b)(2)(A).

Sincerely,

CodePink, National Accountability Action Network, Progressive Democrats of America, World Can’t Wait, Voters for Peace, Velvet Revolution, Bill of Rights Defense Committee, AfterDowningStreet

Please reply to ---------------------.

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“The U.S. Criminal codes say “Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.… [At least one hundred prisoners have died under torture.] (c) Conspiracy. A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.” U.S. Torture Statute TITLE 18 PART I CHAPTER 113C § 2340A.