Hounding a Torture Judge: A Report by Susan Harman on the Campaign to Impeach Jay S. Bybee


Holding Bush administration officials accountable for torture is an unfashionable thought in Obama’s America, as was signaled even before Barack Obama took office, when he told the New York Times about his “belief that we need to look forward as opposed to looking backwards.”

After a promising early start for those seeking accountability, when the administration obeyed a court order and released four “torture memos” issued in 2002 and 2005 by the Justice Department’s Office of Legal Counsel — one particularly notorious example from August 2002, written by John Yoo and signed by Jay S. Bybee, and three others from May 2005 written by Stephen Bradbury — the shutters went down, and ever since obstruction has been the name of the game.

The long-awaited internal report into Yoo and Bybee’s behavior, examining whether they abused the OLC’s responsibility to provide impartial legal advice to the Executive, was fatally watered down last February, when a senior DoJ official, David Margolis, was allowed — or encouraged — to dismiss the report’s conclusion — that both men were guilty of “professional misconduct” — concluding instead that they had merely exercised “poor judgment.”

Since then, every attempt to produce evidence of torture in a US court has been blocked by the administration, which has cynically invoked the “state secrets” doctrine, as, for example, in the case of five men subjected to “extraordinary rendition” and torture, who tried to sue Jeppesen Dataplan Inc., a Boeing subsidiary, for its role as the CIA’s travel agent for torture but were prevented from doing so by the 9th Circuit Court of Appeals (although the case has now been submitted to the Supreme Court).

In an attempt to keep the issue of accountability for torture in the public eye, I took part in October in a week-long series of events in Berkeley, Californiia, entitled “Berkeley Says No to Torture” Week, in which I joined activists, lawyers, journalists and other experts — including Shahid Buttar, Marjorie Cohn, Barry Eisler, Jeffrey Kaye, Jason Leopold, Ray McGovern, Justine Sharrock, Cindy Sheehan, Debra Sweet, Fr. Louis Vitale and Ann Wright — to raise awareness of the unacceptable presence of John Yoo as a law professor at UC Berkeley School of Law.

One of the organizers was Susan Harman, of Progressive Democrats of America, who has also been involved in a long-standing campaign to highlight another travesty of justice in California — the presence, in the Ninth Circuit Court of Appeals, of Jay S. Bybee, who signed the “torture memos” written by Yoo, and was rewarded by George W. Bush with a job for life as a judge in the court that covers the whole of the western United States.

In the hope of reminding readers of the importance of maintaining the pressure on Yoo, Bybee and other war criminals, I’m cross-posting below an article by Susan Harman about her pursuit of Jay S. Bybee, which was originally published on David Swanson’s website, War Is A Crime.

Jay Bybee and Me: Our Secret Relationship
By Susan Harman, War Is A Crime, December 23, 2010

It’s time the world knew of my secret relationship. It’s been going on discreetly now for a year and a half. Although it’s unrequited, I’m very loyal, and hold firmly to the belief that some day my fidelity will be rewarded. Who’s the recipient of my faithful attentions? None other than Jay Bybee, Judge on the United States Court of Appeals for the Ninth Circuit, appointed by George W. Bush for life, after having done Bush’s bidding as Assistant Attorney General in the Justice Department’s Office of Legal Council.

Why is he the object of my attentions? It was Jay Bybee who signed off on the memos by the notorious John Yoo “justifying” torture, and Jay Bybee who “justified” aggressive war. Since we tortured — not to get real information, but to get the lie that Iraq was involved in 9/11 — I hold Bybee responsible for the deaths of the 5,000 American servicemen and women who’ve died there, as well as the million dead Iraqis.

The 9th Circuit covers Washington, Montana, Oregon, Idaho, California, Nevada, Arizona, Alaska, and Hawaii, and is geographically the biggest of the eleven Circuit Courts. These Courts are the last step before a case goes up to the Supremes; that is, they are very important.

The Court meets most often in Seattle, San Francisco, and Pasadena; it meets less often in Portland, Honolulu, and Anchorage. Occasionally it meets in some out-of-the-way place, like in Pocatello, Idaho last August, and we had a small group there because Bybee was sitting.

Since June, 2009, when a group of us filed a Judicial Misconduct suit against Bybee, a coalition of groups, including CodePink, World Can’t Wait, Progressive Democrats of America, and veterans’ groups, have been protesting outside the court in large and small numbers. For almost that long, at least one or two of us have gone inside, sat quietly through the cases until the gavel comes down, and then, as the black-robed judges file out, stood up and loudly spoken our pieces. As best I can recall, I’ve sat in his courtroom 13 times so far. I try to stare unblinkingly at him the entire time, boring into his dark soul.

Our most intimate time together was when the Court held a demonstration session at the University of Nevada Law School in Las Vegas. Bybee, a Mormon, lives outside Las Vegas, and several people in the line going through security claimed to know — and admire — him. When the testimony was over, the court opened itself up to questions from the law students in the very large audience. I asked:

“Mr. Bybee, given the new information that’s come out in the Office of Professional Responsibility Report, and the information in the missing emails, which we will surely find, what will your defense be to prosecution for conspiracy to commit the felonies of aggressive war and torture?”

He replied, “I’m not answering that.”

A year ago we held a big protest in Seattle, including Bill Moyer and the Backbone Campaign’s Miss Liberty, who is about ten feet tall. There was a man in a black suit taking pictures of us and I asked him who he worked for. He refused to acknowledge me, much less answer my question. The picture at the top of this article is of the two of us, just before he had me arrested for assault.

We’ve usually been treated quite civilly by the marshals, but occasionally they’ve removed us from court quite roughly. To my surprise, they manhandled us last week in Pasadena, and I wrote to the Chief Justice, Alex Kozinski, to complain.

Dear Judge Kozinski:

I think you know all this already from Eve Fisher, but I need to put it in writing.

As soon as you concluded the en banc session last Wednesday, my friend and I stood up and spoke out about Jay Bybee, as usual. Two of the Court Security Officers, Mr. Moore and Mr. Ballantyne, grabbed me very tightly and roughly around both my upper arms, and pushed and shoved me out of the courtroom and into the hallway. They paid no attention to my demands that they not assault me, or that they let me get my coat and purse from the courtroom. I have bruises on both arms.

You and I had an agreement that, as long as we don’t disrupt proceedings, we are free to speak out without being abused by the Security Officers and marshals. Athough we have scrupulously kept our side of the agreement (as I’m sure you know), your Security Officers violated both me and our agreement last Wednesday.

The groups that work with us are all very distressed about this unpleasant abrogation of our First Amendment rights. We need to re-establish a guarantee of our safety, since we will continue to protest Bybee’s presence on the court until he is impeached and/or imprisoned, according to the law of this land.

Susan Harman

He replied:

Susan:  I was distressed to learn of the incident, which runs contrary to the instructions I have given that protesters be left alone, so long as they do not disrupt court proceedings.  All I can say is that communications are sometimes difficult in a large organization and apparently not everyone got the message. I am making sure that there will be no further misunderstandings and can only apologize for this slip-up.  It will not happen again.

Wishing you and yours a happy and healthy new year.

Ciao.  AK

We’ve sent two letters to every judge on the 9th Circuit. Here’s our November 2009 letter:

Dear Judge ——–:

We respectfully request that you urge your colleague, Torture Judge Jay Bybee, to resign from the Ninth Circuit immediately. Here are the reasons:

1. He has “engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.” (Judicial Conduct and Disability Act, 28 U.S.C. §§ 351-364. ARTICLE I. GENERAL PROVISIONS, 1. Scope)

2. He was confirmed by the Senate without their knowledge of his misconduct, which had it been revealed to the Senate Judiciary Committee would very likely have resulted in non-confirmation to the Ninth Circuit, and

3. He engaged in misconduct by acting unethically, and his misconduct harms the Ninth Circuit as defined in Rule 3(h) (2) of the Rules for Judicial Conduct and Judicial Disability Proceedings:

Cognizable misconduct “is conduct occurring outside the performance of official duties if the conduct might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.”

There is widespread opposition to his position on the Court. Last May 140,000 people signed the MoveOn/People for the American Way petition to the House Judiciary Committee demanding his impeachment. The New York Times and several Congresspeople have called for his impeachment. He is being indicted in Spain. Velvet Revolution and Voters for Peace have filed a complaint with the District of Columbia Bar. His memos were so bad they were thrown out by the Bush administration.

He not only wrote and approved the torture memos; he also signed the “aggressive war” memo, unconstitutionally authorizing the president to launch wars.

Sen. Patrick Leahy, D-Vermont, chair of the Senate Judiciary committee, called for his resignation. “If the White House and Mr. Bybee told the truth at the time of his nomination, he never would have been confirmed,” Leahy said. “So actually, the honorable and decent thing for him to do now would be to resign. If he’s an honorable and decent man, he will.” Please use your influence to make this happen.

For more information, please see our complaint #09-90138 filed against Judge Bybee, and this site. Thank you.


CodePink, National Accountability Action Network, Progressive Democrats of America

In June 2010 we sent them this letter:

Dear Judge ——–:

We have written to you before, urging you to recommend to Congress that they impeach Jay Bybee. We are writing again because new evidence highlights the seriousness of the claims against him.

Last week Physicians for Human Rights (PHR) released a report accusing the Bush administration of conducting illegal and unethical human experimentation and research on prisoners in CIA custody at Guantanamo, Abu Ghraib, Bagram airbase, and elsewhere. The report charges that medical personnel turned detainees into research subjects and collected data in order to study and refine their torture techniques — under the guise of trying to protect the health of the detainees. For example, they conducted waterboarding “experiments” to determine whether it is better to induce drowning through the use of plain water or salt water.

The PHR Report states that one purpose for the human experimentation was to create a legal defense for individuals engaging in acts that arguably constituted torture, and Bybee and his subordinate, John Yoo, stated that efforts to refine waterboarding and other tortures would support a “good faith” defense for interrogators charged with torture. Bybee and Yoo put forth the novel argument that interrogators must specifically intend to cause harm to have violated the anti-torture statute, and that medical experimentation on human subjects could remove the element of intent to cause harm. A memo written by John Yoo, while under Bybee’s supervision, states:

“A defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience … All of these steps would show that he has drawn on the relevant body of knowledge concerning the result proscribed by the statute, namely prolonged mental harm.” Memorandum from John C. Yoo, Deputy Assistant Attorney General for William J. Haynes II, General Counsel of the Dept. of Defense (14 Mar. 2003).

Based on the legal advice provided by Yoo and Bybee, medical professionals conducted experiments on humans. We enclose an article about the report, and the fact that Senator Feinstein intends to include its findings in her Intelligence Committee’s ongoing investigation.

As you probably also know, there are hundreds, if not thousands, of Freedom of Information Act requests filed with various government agencies, many of which will reveal even more scandalous evidence against Bybee. His presence on the Ninth Circuit continues to jeopardize the respectability of the Court.

Once again, we remind you that you have the power — and the legal and moral obligation — to refer Bybee to Congress for impeachment. The United States legal system has been held up around the world as a model of justice. It is time to stop turning a blind eye to government-sanctioned torture and denial of habeas corpus rights. As legal professionals, you understand the grave implications of violating the Geneva Conventions and US domestic law. The people of the United States expect judges in its highest courts to understand and uphold our American principles. Your actions on this matter will show whether torture and human experimentation have become American principles.


CodePink Golden Gate, National Accountability Action Network, Progressive Democrats of America, World Can’t Wait, National Lawyers Guild San Francisco Bay Area Chapter’s Committee Against Torture, Bill of Rights Defense Committee

When we speak out in court, we’ve said Bybee justified torture, which is always and everywhere illegal, and that he should be impeached and imprisoned.

We’ve said he disgraces the Court.

When the story broke about human experimentation at Guantanamo, I called out that he was channeling Josef Mengele, the Nazi who experimented on human beings.

While Omar Khadr was on trial, we accused him of torturing children.

Most recently, I said, “In his new book, George Bush confesses to authorizing torture, and says his lawyers told him he could do it. Jay Bybee was chief among those lawyers. He is a war criminal and you need to refer him to Congress for impeachment. Now!”

Obviously, if you don’t live near the cities where the 9th Circuit meets, you can’t organize your own Bye-bye Bybee protests. But go to this page and find a war criminal near you. If there isn’t one physically nearby, then pick one at random and start a long-distance letter-writing, phone-calling campaign to make his/her life miserable.

We cannot let these people carry on as if they have done nothing immoral or illegal.

If our government won’t enforce the law, we must.

I promise you’ll enjoy your special relationship!

Andy Worthington

Andy Worthington is an investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers). Worthington is the author of "The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison"

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