Jay Bybee

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"In the wake of the September 11 attacks, there had been much debate inside the administration about what was permissible in the treatment of prisoners and what was not. The most suggestive document, in terms of what was really going on inside military prisons and detention centres, was written in early August 2002 by Jay S Bybee, head of the justice department's office of legal counsel. "Certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within [a legal] proscription against torture," Bybee wrote to Alberto R. Gonzales, the White House counsel. "We conclude that for an act to constitute torture, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." [[1]

Bush Administration War on Terror Memos

ProPublica notes that "the Bush administration’s "war on terror" - including its controversial policies on detentions, interrogations and warrantless wiretapping - were all underpinned by legal memoranda. While some of those memos have been released ... the former administration chose to keep many others secret, citing security and confidentiality concerns. The decision to release them now lies with President Obama. To help inform the debate - and inject an extra dose of accountability - we’re posting a list of the relevant memos, both public and secret." [2]

Memo authors include John C. Yoo, Steven G. Bradbury, Jay Bybee, James B. Comey, Robert J. Delahunty, Jack Goldsmith, James Ho, Daniel Levin, Patrick Philbin, legal architects (and some internal critics) of the Bush Administration's use of torture and detention policies now being reversed or reviewed by the Obama Administration.

Biographical Information

Nominated by George W. Bush to the United States Court of Appeals for the 9th Circuit, Jay S. Bybee was confirmed on March 13, 2003.

  • Serves as the assistant Attorney General under John Ashcroft, a position in the Justice Department that advises the president on the constitutionality of legislation. Supreme Court Justices William Rehnquist and Antonin Scalia held the same position before their respective Supreme Court nominations.
  • In August 2002, he authored a lengthy memo to White House counsel Alberto Gonzales in which he searches for loopholes and makes extreme legal interpretations that would enable legal torture of suspects in the "war on terror".
  • In Gibson v. Matthews (F.2d, 1991), Bybee argued that a pregnant woman serving time in federal prison for bank robbery had no constitutional right to have an abortion.
  • In Bowen v. Kendrick (1988), Bybee defended the Adolescent Family Life Act, which "provides grants to public and private agencies for services for pregnant adolescents and adolescent parents." The act funds religious as well as public organizations with the restriction that the funding will be used for "counseling and educational services for adolescents, including abstinence only policy, but not including family planning services or abortion services." Bybee argued that awarding grants to religious groups does not violate the constitutional requirement of separation between church and state.
  • In High-Tech Gays v. Defense Industrial Security Clearance Office (F.2d, 1990) Bybee defended a mandatory screening process for all "known or suspected [to be]" gay employees arguing that their participation in "acts of sexual misconduct or perversion [are] indicative of moral turpitude, poor judgment, or lack of regard for the laws of society."
  • He has also argued in a law review article that "homosexuals" are "emotionally unstable" and that banning discrimination based on sexual orientation creates "preferences" favoring "homosexuals," instead of protecting them. (a)
  • As a states' rights advocate, Bybee argues that because "the federal courts have an affirmative obligation to enhance state powers and limit Congressional power," acts such as the Violence Against Women Act and the Americans with Disabilities Act are unconstitutional. (b)
  • Bybee disagrees with the 17th Amendment, which calls for the popular election of senators, claiming it is a "failed system gone awry" that can only be remedied by "returning to election of the U.S. Senate by state legislatures." (b)
  • In an amicus brief, he supported the tax exempt status of Bob Jones University, despite its discriminatory policy barring interracial dating. (b)
  • Member of the Federalist Society.


(a) Jay S. Bybee, The Equal Process Clause: A Note On The (Non)Relationship Between Romer v. Evans 116 US 1620 (1996) and Hunter v. Erickson 89 US 557 (1969).
(b) Committee for Judicial Independence

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