Notes From All Over – thru May 17

51 comments for “Notes From All Over – thru May 17”

1. #37,

   Bybee is in deep doodoo, and he knows it. But sadly, he will survive, and prove to future lawbreakers that they can lawbreak all they want and get away with it.

2. Just want to add, Kent, the reason for the use of torture that Bybee approved. It was to find that link between Saddam and Al-Qaeda. It was in reality, to elicit false confessions (that’s what torture is used for), of a connection between Osama Bin Laden and Saddam Hussein.

   Remember, KSM was waterboarded 183 times in March 2003. And supposedly all torture stopped by 2004. Now, if we’re in constant threat of attack from Al-Qaeda and the only tool keeping them at bay is torture, why would that tool no longer be employed as early as 2004?

   Surely Bybee, smart man that he is, realizes that his employer asked him to rubber stamp torture so that they could elicit false confessions about connections between Saddam and Bin Laden.

3. Off-topic, but I just want to thank Kent for all the work he put into the LDSClerks.org site, which content now has been adopted by the church as a tool for stake and ward clerks and assistants.

   Here is what the church’s LDSTech newsletter said a few days ago:

   Content from LDSClerks.org can now also be found at the LDSTech Wiki. For many years Kent Larsen of New York has funded and maintained a mailing list, discussion forum, and wiki for LDS clerks. We wish to extend our gratitude to this pioneer of clerk training and to the other long-time contributors to LDSClerks. Thank you all for generously donating all of the wiki content, more than 120 pages, to the LDSTech Wiki. This contribution is a great blessing to clerks around the world.

4. I think you post this garbage to provoke me. I will say it again. Bybee is a modern day Captain Moroni. He is a real saint and a real man.

5. Captain Moroni was no lawbreaker. Nor did he torture, or justify torture. There is no comparison. Frankly, I wish that Bybee was more like Captain Moroni. But sadly he wasn’t.

6. Bybee is a bold man of courage. A true saint.

7. no, no he isn’t. If he were courageous, he would not hide from standing for what he believes in front of Congress, come hell or high water.

8. He is a real man. Why should anyone go in front of a Congress that has leaders like Nancy Pelosi? And heaven forbid Harry Reid! What a contrast– Bybee and Reid. Bybee any day over that coward Reid.

9. I will stop here, aloysius. There’s no point continuing. You’re clearly getting aggravated, and I think we all would prefer better language.

10. Ross (3), you’ve made me blush!!

11. Re the “friends of Bybee” website (37), does anyone know who sponsors and funds that site? They are not identified, but the site is hosted and registered in Provo.

    The site is obviously a one-sided advocacy vehicle with a hard-right spin, similar in form and tone to the slick PR sites that crop up pro or con when there is a Supreme Court nomination battle. It’s fine for someone to express an opinion, just as we do here.

    But for a counterpoint, laying out much of what Bybee’s critics in the legal profession find wrong with the legal ethics of his torture opinions, see the testimony of Prof. David Luban of Georgetown University Law Center before a Senate hearing last week.

12. Ross, I found out about the site through an email that I believe originated with those who are either funding or sponsoring the site.

    I replied telling them that I thought the site was a waste of time. It takes the wrong tack in defending Bybee and is likely only to make Bybee’s friends feel like someone is defending him. I don’t think it does anything to help his case or persuade the public that what he did is reasonable.

    To me that seems like a failure — unless you believe, as apparently some here do (Hi Dan), that Bybee’s case is indefensible.

13. Why would anyone want to discuss Bybee when we know that the Sam character on iCarly is played by an LDS actress. That was definitely cool news for me.

    Sam is like Captain Moroni.

14. Kent,

    Yes, his case is indefensible, and it is really because he is a sitting federal judge in a lifetime appointment. Whether or not he wrote those memos of his own free will or was ordered to write them makes no difference. If he wrote them himself without orders from those above him, then it shows a strong lack of insight, research, and knowledge about United States history on torture. One can then question whether he is worthy to sit as a judge over so many people. If he was ordered to write these memos, then even if he revealed that his bosses told him to write memos rubber stamping torture, he is still the one who put his name to these memos. Can we have such a person be a judge in a lifetime position? There’s just something totally wrong about that.

    If he comes clean about who ordered him to write those memos, he will be still asked (and maybe impeached) to step down. If he doesn’t, then it certainly looks like he has something to hide. Impeachment is far stronger an option.

    Either way, he made a very wrong choice back in 2002, and 2003 in writing those memos.

    Now, if he weren’t a federal judge over an Appellate Court, then probably my anger wouldn’t be as visceral against him. But it was clear to me back in 2003 when he got this position that it was a reward from Bush for what he did for Bush. My anger is equal toward John Yoo (probably even more, as this guy is not just unrepentant, but still out there publicly defending torture—he used to make an argument that if the President deemed it, it was okay to crush the private parts of children), but Yoo is a professor at Cal Berkeley. It is for the students and faculty of Cal Berkeley to decide to remove him (which they should do—he is teaching students a very perverted form of constitutional law!).

    But Bybee is a Federal Judge. If he were back at BYU teaching law, I wouldn’t make such a fuss. (maybe I would, but I don’t expect better from BYU these days). I’d make my one comment saying Bybee supported torture, and then he would fade away in anonymity and solitude. But he is not at BYU. He is a federal judge.

15. I’ll stop when you stop Dan. Bybee is a saint.

16. aloysius,

    I’ve stopped responding to you until you make more adult comments.

17. Quit disparaging Bybee and I’ll return to silence on the issue.

18. Kent (13),

    I don’t think Bybee’s situation is absolutely “indefensible.” Obviously, he plans a defense against the ethics charges. There is a high bar for his accusers to meet in state disciplinary proceedings, and impreachment-with-conviction seem out of range politically.

    However, even without seeing the OPR ethics report that reportedly explores the interactions among Bybee and Yoo, the White House and the CIA, I think there is enough known just from the text of the two Bybee torture opinions themselves to know that the honorable course would be for him to resign. (See Prof. Luban’s remarks linked above.) In fact, I think Bybee should have resigned when the first of those secret opinions was disclosed almost five years ago.

    I believe that is what an honorable man who holds the priesthood should have done. His successor at the Justice Department had felt compelled to withdraw Bybee’s formal opinion — and several other opinions from that period — because they did not meet the standards of the Office of Legal Counsel, and Bybee obviously would not have been confirmed a year earlier if his secret torture opinion had been known.

    The primary “defense” of Bybee being mounted right now is purely political — the GOP’s “torture works and besides Pelosi knew about it” strategy, as if that somehow exonerates him. To the contrary, it compounds his dishonor. She and other congressional leaders, just like the entire executive branch, relied on the Justice Department’s word (that is, Bybee’s word) that the torture was deemed to be legal, even though the actual opinons were withheld from them. FWIW, as a moral issue, I think Pelosi should also pay a price for failing to object. But as a legal matter, doing something unlawful and telling Nancy Pelosi about it did not make it lawful.

    This web site is just part of that political battle.

19. “Judge not lest ye be judged” falls easily from left wing lips on all challenges to morality except for offenses against left wing principles which usually are defined as “actions that currently are out of favor with leftwingers”.

    Babies being murdered every day by funds released by Harry Reid. No big deal. Bybee protected us and it took manhood to do it. Now that is really offensive.

20. Kent,

    Let me share with you something else. Let me attempt to put in perspective what Judge Bybee rubber stamped. Marcy Wheeler at Emptywheel has done a fabulous job of reporting on this particular issue, including the one linked. She highlights what happened to a particular detainee who died at Bagram Base in Afghanistan.

    One of the most shocking quotes from the Senate Armed Services Committee torture report came from Jonathan Fredman, then the Counsel for CounterTerrorism Center at CIA, now working for the Director of National Intelligence, told some interrogators at Gitmo, “It is basically subject to perception. If the detainee dies you’re doing it wrong.” Fredman is reported to have said that on October 2, 2002. A month later, on November 1, 2002, the staff JAG for a Special Ops unit in Bagram judged there was a risk to participating in CIA interrogations; “we are at risk as we get more ‘creative’ and stray from standard interrogation techniques and procedures taught at DoD and DA schools and detailed in official interrogation manuals.” A month after that, two prisoners at Bagram died as a result of torture; Habibullah on December 3 and Dilawar on December 9 or 10.

    As she notes, this is not news, and was reported back in 2002 and onwards. I remember those incidents. The gloves were indeed taken off, and detainees were murdered by our CIA officers. She quotes, however, from the report on those murders, something which ties it back to Bybee:

    In December 2002, two detainees were killed while detained by CITF-180 at Bagram. Though the techniques do not appear to have been included in any written interrogation policy at Bagram, Army investigators concluded that the use of stress positions and sleep deprivation combined with other mistreatment at the hands of Bagram personnel, caused or were direct contributing factors in the two homicides. 1174 In the wake ofthe deaths of Habibullah and Dilawar, CITF-180 and the SMU TF began developing written standard operating procedures (SOPs) for interrogations.

    Stress positions and sleep deprivation used in combination with other mistreatment caused the deaths of these detainees. This highlights how poorly written Bybee’s memos are (because he wasn’t ordered to really make a treatment on torture, but just to rubber stamp them). See, in his memos, he stated, circularly, that the CIA tells him the techniques are not harmful to the detainees, therefore, Bybee concludes they are not harmful. But Bybee doesn’t consider carefully that if you combine the techniques (which most certainly the CIA was doing, and were going to continue to do), you will do permanent harm, heck, even “organ failure”—Bybee’s original definition of torture (his August 2002 memo since discredited).

    Marcy continues the logical conclusion. Sleep deprivation isn’t just keeping someone up with loud music or coming in and shaking the detainee to keep him up all night. No, it is:

    Rather, “sleep deprivation” is the excuse for shackling prisoners, in the case of Dilawar, hanging him from the ceiling by his arms.

    That October 8, 2004 criminal investigation report, then, was effectively an admission that the “sleep deprivation,” as practiced, combined with other harsh treatment (in the case of Dilawar, extensive beatings to his legs while he was hanging from his arms), could kill.

    Shackling prisoners, hanging them from the ceiling in just the right position so that any attempt at nodding off will be hurtful to their arms or legs, and that keeps them up. It ended up in the death of a couple of detainees (and probably more that have not been accounted for yet). This was what the CIA meant by “Sleep Deprivation.” But this is not what they told Bybee when he asked them. They told him it was something nice that you might do your friend. It wasn’t hurtful. It wasn’t going to do lasting damage.

    Kent, Bybee has failed morally to stand for what is right when it counted, and heck, even now. He fails to do so. These actions by the CIA are not right, are not moral, and are not in line with the Gospel of Jesus Christ, or heck, the morals of the United States of America. And he wants to continue on as a taxpayer financed federal judge? Hell no!

21. aloysiusmiller (19),

    If your rant is directed at me, it is quite off base. By no means are my politics “left wing.” In fact, for me this is not primarily a left-right political issue at all, but one of the rule of law.

    There is nothing “conservative” about abetting felonies or violating legal ethics. Quite the contrary. Legal conservatives traditionally revere the rule of law and institutional ethics. Bybee violated those lawful norms, and did great damage to the very machinery of the law while in a position of trust at DOJ.

    I don’t see him as Captain Moroni at all, but as a member of a secret combination. Now exposed, he should resign.

22. Dan (14) and Ross (18), I didn’t mean to imply that I thought Bybee was indefensible. I AM trying to say that, IN THE COURT OF PUBLIC OPINION, the torture memos are indefensible.

    Bybee can defend himself by claiming that the memos are the direct orders of his superiors and that he was put into a difficult position, from which the memos were the only way out.

    I just don’t think Bybee’s friends should be trying to defend the torture memos on their website.

23. Kent (22): Bybee can defend himself by claiming that the memos are the direct orders of his superiors and that he was put into a difficult position, from which the memos were the only way out.

    Actually that would be no legal defense at all, and hence no moral defense. In Bybee’s position as head of the Office of Legal Counsel, he was not supposed to be following orders at all, but rendering an independent and objective legal opinion.

    In this case, that would have meant telling the president “no.” Does anyone believe that if Bybee had done that he would have received his coveted judicial appointment? He acted according to his interests, and issued the secret opinions that could not stand up in the light of day when the secret combination was exposed.

24. Bybee is nearly vindicated. Here is the first JournoLista article advancing the need for harsh techniques. I am sure that you’ll all soon be persuaded.

    http://www.washingtonpost.com/wp-dyn/content/article/2009/05/18/AR2009051803126.html

25. Ross (23), I’m NOT suggesting that it is a legal defense. I am suggesting that this defense works better politically than claiming that the torture memos are correct.

26. Sorry, Aloysius, I don’t think this article says what you say it does.

    I didn’t see anything in the article that says that harsh techniques are needed.

27. aloysiusmiller (24): …advancing the need for harsh techniques …

    Which is entirely beside the point about Bybee’s ethical performance as a lawyer and the legal culpability of any number of persons in this scandal.

    Sorry. You can have whatever sophomoric, dorm-room bull sessions you want about whether torture and cruel treatment are a good idea.

    But as a matter of law — it’s all about the law — our nation has already settled that argument: We ratified the Geneva Conventions and the U.N. Convention Against Torture (promoted and signed by that famous “lefist,” Ronald Reagan). We also enacted the Torture Act and the War Crimes Act (cosponsored by that famous “leftist” Jesse Helms), which together make felonies out of torture, as well as cruel, inhuman and degrading treatment, and conspiracy to commit such acts.

    Criminalizing Torture — Not Just a Good Idea, It’s the Law

28. It’s worse than that, Ross, the Bush administration used torture to try and find that false connection between Saddam and Al-Qaeda. They waterboarded KSM 183 times in March 2003. The detainees at Gitmo were interrogated over ties between Al-Qaeda and Iraq.

    All of this comes because we renditioned a guy named al-Libi to Egypt to be tortured in December 2001. Under torture, specifically waterboarding, al-Libi said Iraq and Al-Qaeda had connections. He of course was lying, telling the Egyptians what he thought they wanted to hear. The Bush administration, upon learning that waterboarding gave them exactly what they wanted to hear said, “you know what, forget this rendition stuff, let’s do this ourselves and see what we get.” They waterboarded Zubaydah in 2002 and didn’t get the connection between Al-Qaeda and Iraq that they wanted to hear. They waterboarded him 86 times. He told them wild and fancy things, but never considered giving them Iraq, because it just wasn’t true. Then they captured KSM on March 1, 2003. Considering that Bush wanted to invade Iraq that month, the CIA dispensed with the rapport-building that usually happens in proper interrogation and waterboarded him 183 times in March 2003. The Bush administration desperately wanted a senior Al-Qaeda official to confess to a connection between Al-Qaeda and Iraq. It would make the Iraq war justified, instead of the illegal war it was.

    They tortured to try and find a connection that never existed.

29. oh, and if the use of torture was indeed to “protect America” then why would they stop the use of torture by 2003? There is no indication in any reports that from 2004 onward the CIA employed torture. It seems they stopped torture by the time it was no longer important to justify invading Iraq…

30. We as a nation was ready to beat maim kill whatever it took to whoever was around after 9-11. Were they wrong to torture yes but we wanted vengeance more than anything else in 2002 and 2003 and very few were willing to go public in speaking out for the detainees rights. The democrats in congress wanted heads to roll for allowing this to happen and now they want heads to roll for the reaction to the pressure they applied. I do not agree to the means used but I certainly understand that where pressure is applied people do not always react as they would outside of the pressure cooker. To ignore that we as a nation demanded idiot Bush and Cheney to do something and now trying to criminalize the decisions and for doing what the public wanted done is just as ridiculous.

    How many times they were pounded for ignoring 1 line in 1 threat assessment? I have seen good people make bad decisions with a lot less pressure than this. I think the magnitude of their mistakes is dwarfed by the magnitude of the public pressure to use whatever means necessary to prevent this from happening again. I really think we (as a nation) got what we asked for. Just watch 24 and then read the viewers reactions to it.

    No excuse to keep doing it though and trying to take whatever steps we can to prevent it is also good but in a similar situation expect the rules to be thrown out and the same type of thing to hapeen again. Hopefully we elect more less reactionary people in the future.

31. Jerry (30) : To ignore that we as a nation demanded idiot Bush and Cheney to do something and now trying to criminalize the decisions and for doing what the public wanted done is just as ridiculous.

    The flaw in that argument is that torture was, literally, criminalized years before 9/11 when the statutes were passed. Decisions made in violation of existing criminal law were not just “decisions,” they were crimes.

    There was no exception in that statute that said, “It’s okay to torture if that’s what the public wants done.”

    You are describing political expediency driven by fear and by the mob, which is what the law is there to prevent. It was certainly not Bybee’s duty to follow public opinion; it was his duty as a Justice Department official to declare what the law required. He failed in that duty, and he should resign.

32. When we demand our leaders do something or we will get rid of them you should continue to look for rules to be reviewed and overwritten with new arguments how do you think this country actually works? What are elections for?

    The fact is very few of the Middle East countries consider anything we did to the detainees as torture when they want information out of someone in their custody. So it isn’t hard to find reason to redefine this as allowable. We like to think we are above this but clearly they did what most countries would do and what they wanted to do and most sadly what we wanted them to. My point is they acted on our national anger.

33. Jerry (32) : My point is they acted on our national anger.
    

    I understand that is your point.

    But Bybee’s duty in that Justice Department job, just as in his current job as a judge, was not to “act on our national anger.” It was to apply the law. That duty required him to say “No. The law is the law.” He failed in that duty, and he should resign.

34. Jerry,

    If the Bush administration should not be punished for breaking the law because America was angry, then anyone who is angry and kills someone else should not be punished under the law. Anger means little if nothing in law. As Ross noted, America had already decided before 9/11 that torture was illegal and immoral for this nation. If Bush and his cohorts felt they needed to employ torture to protect America, then by all means, change the law! Get it passed through Congress, and make it legal. But don’t do it in the shadows where the law has no hold!

    The reason Bush and his supporters wanted torture to be kept secret is because they all knew it was illegal, and they knew they could not change the law to make it legal, because that would just be ludicrous. So they willfully broke the law and then attempted to cover up their crimes.

35. Jerry,

    As I said before, we as a nation already committed in advance — by formal adoption of the U.N. Convention Against Torture and anactment of implementing statutes — that events such as 9/11 absolutely could not be used to justify torture.

    Here is what Article 2, Paragraph 2 of that treaty says:

    No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

    There is no exception for getting angry.

36. We as a nation are willing to kill millions of babies a year because they are inconvenient to our life style. I can’t cry about the rough handling of a few murderous thugs who were plotting to kills thousands and who woulk like to kill millions.

    Bybee is a hero and a saint.

37. Jerry,

    Aloysiusmiller obviously provides a case in point about unrighteous anger. (Thanks for the object lesson, BTW)

    But even when there are enough such angry people to make up a national mob, those in trusted positions of authority are supposed to enforce the law.

    It was Bybee’s job to apply the law, mob or no mob. He breached the public trust and failed in his legal duty. He should resign.

38. Ross thank goodness for morally superior people who can apply the word “unrighteous” with such clarity and accuracy.

    Bybee is a saint.

39. aloysiusmiller,

    Achieving clarity is really not difficult in this case. At the point when anger leads someone to break the law, as you seem to favor, it is unambiguously unrighteous.

    There is no doubt that torture is against the law. Bybee’s job at the Justice Department was to protect the nation from your kind of anger — to say, “No. We can’t do that. It is against the law.”

    He failed in his duty as a lawyer and an official with an important public trust, and should resign.

40. Ross, he helped save the country. He is a courageous man and he is a saint.

41. aloysiusmiller,

    I have seen no evidence of courage in Bybee’s behavior. I have seen circumstantial evidence of corrupt self-interest:

    1) He interviewed with Alberto Gonzales in 2001 to seek appointment to a judicial appointment on the Ninth Circuit.

    2) Gonzales said that there was no vacancy on the court yet, but asked Bybee to take the key Justice Department job first.

    3) Bybee and the office under his supervision then bent the law to rubber-stamp the White House program — not only including torture, but also illegal surveillance, which had been approved before Bybee arrived but continued during his tenure. Their secret opinions also adopted a breathtaking theory that the president could disregard the law if he chose — the threshold of tyranny in violation of our Constitution’s separation of powers.

    4) As an apparent reward, Bybee got the judical nomination, and was confirmed before those secret opinions were disclosed.

    That is certainly not a story of moral courage. It is the story of a secret combination corrupting the judgment seat itself.

42. Ross,

    Aloysius is a troll on this issue. He has nothing of substance to add. He will keep on repeating “Bybee is a saint” because that’s the only thing he can say. Don’t feed this troll.

43. Dan,

    I know he is a troll. But he is an incompetent troll who happens to be representative of a lot of wrongheaded opinion out there. (People need not even read the “friends of Bybee” web site. The troll’s comments encapsulate its propaganda perfectly.)

    Those comments actually have provided me an opportunity to lay out many of the issues about Bybee, which otherwise would have required a single long blog post to explain.

    So if aloysiusmiller did not exist, I would wish that someone invent him. I have no delusion that he will ever be persuaded. But as the archetype of mindless propaganda on this matter, he is a useful tool.

44. Ad hominem attacks are just fine if they are aimed in the right direction.

    Bybee is a saint.

45. aloysiusmiller,

    Thanks again for the opportunity to discuss Bybee in context.

    Just as an aside to you, an ad hominem attack evades the substance of an argument while attacking the source. In your case there is no substantive argument at all, just your own ipse dixit attestations about Bybee’s character. Since you are your only source for those attestations, pointing out your own lack of credibility is quite fair.

    Meanwhile, let’s return to your wholly unsupported claim that Bybee was “courageous.” I have already explained above how the circumstances of his employment show the very opposite pattern. Now let’s look at an example what real moral courage by Justice Department lawyers in his position looked like:

    When Bybee’s successor at OLC — Jack Goldsmith, a solidly conservative Republican lawyer — saw all those secret legal opinions, he was aghast at many of them. He rescinded Bybee’s torture memo to the White House, and several other secret memos we haven’t even seen yet. One of those opinions supported the early version of an NSA surveillance program, which Goldsmith found to be illegal.

    OLC chief Goldsmith, and his solidly conservative superiors (Atty. Gen. John Ashcroft, who was critically hopitalized at the time, and Deputy Atty. Gen. James Comey) dramatically confronted the White House over it in 2004. They, FBI Director William Mueller and more than 20 other senior Justice Department lawyers all threatened to resign if the program remained in effect. Bush backed down and modified the program. (To this day, we don’t know the details of what that egregiously illegal surveillance program actually was, but it had been operating from late 2001 through March 2004.)

    That was moral courage. Bybee apparently had none of it. He just went along in secret and got his lifetime appointment to the bench.

46. Ross and AM, please calm down.

47. A calm correction to my 1:35 p.m. comment: It should have read “FBI Director Robert Mueller,” not William.

48. Kent,
    I know this is a more recent note, but isn’t Bachman still LDS? I thought it was his son who left the church.
    Wikipedia isn’t much help to me here, but my understanding is that Randy Bachman is still a practicing member.

49. Tim, I remember reading somewhere a few years ago that Randy followed Tal out of the Church. Proximate cause was DNA and the Book of Mormon.

    I was very disappointed to learn this, which is probably why it stuck in my mind, I think. I like Bachman, and read a biography several years ago. He has a great story, and I’ve always felt that the LDS community has never given him the attention he deserved, given his notariety.

50. Kent,

    I recommend you watch “Taxi to the Dark Side” and see exactly what Bybee authorized. Just know, the documentary holds nothing back and can be very disturbing. Dark Side indeed.

51. They say such nice things about people at their funerals that it makes me sad to realize that I’m going to miss mine by just a few days.
    http://apotut.ifrance.com/health-literacy-definition.html – health literacy definition

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