Jay Bybee

Jay Scott Bybee (born October 27, 1953) is an American lawyer and jurist serving as a senior U.S. circuit judge of the Court of Appeals for the Ninth Circuit.

He has published numerous articles in law journals and has taught as a senior fellow in constitutional law at William S. Boyd School of Law.

His primary research interests are in constitutional and administrative law.

He graduated magna cum laude with a Bachelor of Arts degree from Brigham Young University (BYU) in 1977, majoring in economics.

He earned his Juris Doctor cum laude from BYU's J. Reuben Clark Law School in 1980.

While in law school, he served on the editorial board of the BYU Law Review.

Bybee spent one year as law clerk to Judge Donald S. Russell of the United States Court of Appeals for the Fourth Circuit.

The CIA requested an interpretation of the statutory term of "torture" as defined in, which implements, in part, the obligations of the United States under the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Together with John Yoo, Bybee drafted the Torture Memos, a set of legal memoranda which gave the CIA legal cover to torture detainees using "enhanced interrogation techniques".

These techniques are viewed as torture by the Justice Department, Amnesty International, Human Rights Watch, medical experts in the treatment of torture victims, intelligence officials, and American allies.

According to journalist Seymour Hersh, Bybee wrote in a memo that "for an act to constitute torture it must inflict pain...equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

For this and other memos, critics have called for his impeachment or resignation.

From 1991 to 1999, Bybee taught at the Paul M. Hebert Law Center at Louisiana State University.

Subsequently, he was a founding faculty member of the William S. Boyd School of Law at the University of Nevada, Las Vegas, where he taught from 1999 to 2001.

At both schools, he taught constitutional law, administrative law, and civil procedure.

In 2000, Bybee was voted Professor of the Year.

His particular areas of expertise are civil procedure, constitutional law, and the federal courts.

Bybee served as the assistant attorney general for the Office of Legal Counsel (OLC) in the United States Justice Department from November 2001 to March 2003.

Following the September 11 attacks, the George W. Bush administration classified detainees as unlawful combatants, claiming they were not protected under the Geneva Conventions as prisoners of war.

In late 2001 and early 2002, these detainees were subjected to beatings, electric shocks, exposure to extreme cold, suspension from the ceiling by their arms, and drowning in buckets of water.

An unknown number died as a result.

While serving in the Bush administration as the assistant attorney general for the Office of Legal Counsel, Bybee signed the controversial "Torture Memos" in August 2002.

These authorized "enhanced interrogation techniques" that were used in the systematic torture of detainees at Guantanamo Bay detention camp beginning in 2002 and at the Abu Ghraib facility following the United States' invasion of Iraq in 2003.

These actions have been considered war crimes by other former members of the Bush administration.

Born in Oakland, California, Bybee was raised in Clark County, Nevada.

His family subsequently moved to Nashville, Tennessee, then Louisville, Kentucky.

In April 2002, the CIA had captured its first important prisoner, Abu Zubaydah, who was transferred to a CIA black site and subjected to sleep deprivation using bright lights and loud music, all prior to any legal authorization from the US Justice Department.

Later that April, CIA contractor James Mitchell proposed a list of additional tactics, including locking people in cramped boxes, shackling them in painful positions, keeping them awake for a week at a time, covering them with insects, and waterboarding, a practice which the United States had previously characterized in war crimes prosecutions as torture.

Jose Rodriguez, head of the CIA's clandestine service, asked his superiors for authorization for what Rodriguez called an "alternative set of interrogation procedures."

The CIA sought immunity from prosecution, sometimes known as a "get out of jail free card."

To this end, CIA acting General Counsel John A. Rizzo requested a legal opinion, which was routed to the OLC by White House General Counsel Alberto Gonzales, who desired the "ability to quickly obtain information from captured terrorists and their sponsors."

Bybee has co-authored two books, Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments (2006) (with Thomas B. McAffee and A. Christopher Bryant), and Religious Liberty Under the Free Exercise Clause.

Bybee has also written more than 20 law review articles, notes, comments, and book chapters.

Philip D. Zelikow, former State Department adviser to Condoleezza Rice, in 2009 testified to the Senate Judiciary Committee studying the matter, "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 attempted to destroy his memos alleging fault in Bybee's reasoning.

Human Rights Watch and The New York Times editorial board have called for the prosecution of Bybee for "conspiracy to torture as well as other crimes".

In July 2009, after a five-year inquiry, the Office of Professional Responsibility released a report, later modified by the Justice Department, saying Bybee and his deputy John Yoo committed "professional misconduct" by providing legal advice that was in possible violation of international and federal laws on torture.

Bybee and five others, known as the "Bush Six", were the subject of a war crimes investigation in Spain, but the government decided against prosecution in 2011.

A memo declassified in 2012 indicates that some in the Bush State Department believed that the methods were illegal under domestic and international law, and constituted war crimes.

Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions, and U.S. Navy general counsel Alberto J. Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" of the memo.