Analysis: Bybee Vs. Kozinski: A Travesty Of Justice

SACRAMENTO – One authored a memo providing a roadmap by which CIA interrogators could torture kidnap victims ("enemy combatants") at the federal prison at Guantanamo Bay. The other maintained a softcore sex blog. One remains a judge on the Ninth Circuit Court of Appeals, deciding cases which may be of national import, without a single blot or reprimand on his record. The other also remains a judge on the Ninth Circuit Court of Appeals, but is under investigation by a panel of Third Circuit judges for having created the sex blog, which investigation, after 11 months, has produced no results.

The memo's author is Jay Bybee, formerly a Justice Department attorney assigned to the Office of Legal Counsel (OLC), "the president's law firm," which serves in part as the White House's liaison to the U.S. Department of Justice. The sex blog creator is Bybee's putative superior, Alex Kozinski, Chief Judge of the Ninth Circuit, who at one time presided over the First Amendment trial of video retailer Ira Isaacs – a fact which led to the discovery of Kozinski's blog, which in turn led to a disputed mistrial in the Isaacs case.

"You have asked for this Office's views on whether certain proposed conduct would violate the prohibition against torture found at Section 2340A of title 18 of the United States Code," Bybee wrote on Aug. 1, 2002 to then-Acting General Counsel for the CIA John Rizzo.

What worried the CIA in those days was the threat contained in the law that, "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."

Of course, Guantanamo Bay was/is outside the United States, and as Bybee well knew, torture is defined by 18 U.S.C. §2340 as, "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control," with "severe mental pain or suffering" further defined as, "the prolonged mental harm caused by or resulting from the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality."

With that in mind, Bybee advised Rizzo, that since the CIA wanted to "move the interrogations [of suspected terrorist Abu Zubaydah] into what you have described as an 'increased pressure phase'" – which the CIA promptly did, waterboarding Zubaydah 83 times during August, or approximately three times per day – Bybee set forth a list of do's and don't's that supposedly would prevent the interrogators from violating U.S. laws (as well as the Geneva Conventions).

Among the supposedly legal techniques that Bybee endorsed were "walling," where the interrogators would place Zubaydah's heels against a false wall constructed in the interrogation room and "quickly and firmly" push Zubaydah's head into the wall, "creat[ing] a loud sound ... which will further shock or surprise" him; the "facial slap," the "goal" of which "is not to inflict physical pain that is severe or lasting"; "cramped confinement" in a "confined space" that is "usually dark" for up to 18 hours at a time; "wall standing" to produce "physical discomfort associated with muscle fatigue" by either having him "sit[] on the floor with legs extended straight out in front of him with his arms raised above his head" or "kneel[] on the floor while leaning back at a 45 degree angle" – which the interrogators noted that he could do because "he appears to be quite flexible despite his wound"; "sleep deprivation" for "not ... more than eleven days at a time," having already deprived him of sleep for three days straight; placing him in a confinement box with an insect, knowing that Zubaydah was deathly afraid of them; and "the waterboard," where "[a] cloth is placed over the forehead and eyes," then "lowered until it covers both the nose and mouth," so that "air flow is slightly restricted for 20 to 40 seconds," which "causes an increase in carbon dioxide level in the individual's blood" which "produces the perception of 'suffocation and incipient panic,' i.e. the perception of drowning... You have also orally informed us that it is likely that this procedure would not last more than 20 minutes in any one application." [Emphasis added]

"In order for pain or suffering to rise to the level of torture, the statute requires that it be severe," Bybee's memo continues. "As we have previously explained, this reaches only extreme acts... In further drawing upon those cases, we also have found that courts tend to take a totality-of-the-circumstances approach and consider all [sic] entire course of conduct to determine whether torture has occurred... As we understand it, when the waterboard is used, the subject's body responds as if the subject were drowning – even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain [and] does not in our view inflict 'severe pain or suffering.'"

"Section 2340 defines severe mental pain or suffering as 'the prolonged mental harm caused by or resulting from' one of several predicate acts," Bybee continues, quoting the above definitions from the law. "Thus, if the methods that you have described do not either in and of themselves constitute one of these acts or as a course of conduct fulfill the predicate act requirement, the prohibition has not been violated... Sleep deprivation also clearly does not involved a threat of imminent death. Although it produces physical discomfort, it cannot be said to constitute a threat of severe physical pain or suffering from the perspective of a reasonable person in Zubaydah's position. Nor could sleep deprivation constitute a procedure calculated to disrupt profoundly the senses, so long as sleep deprivation (as you have informed us is your intent) is used for limited periods, before hallucinations or other profound disruptions of the senses would occur... His mere reduced ability to evade your questions and resist answering does not, however, rise to the level of disruption required by the statute. As we explained above, a disruption within the meaning of the statute is an extreme one, substantially interfering with an individual's cognitive abilities; for example, inducing hallucinations or driving him to engage in uncharacteristic self-destructive behavior."

"We find that the use of the waterboard constitutes a threat of imminent death... Although the waterboard constitutes a threat of imminent death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering. We have previously concluded that prolonged mental harm is mental harm of some lasting duration, e.g., mental harm lasting months or years... In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture within the meaning of the statute.... Please let us know if we can be of further assistance."

According to an article in the New York Times, Bybee stated that he "continued to believe that the memorandums represented 'a good-faith analysis of the law' that properly defined the thin line between harsh treatment and torture."

"The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is," Bybee told Times reporter Neil A. Lewis. "I believed at the time, and continue to believe today, that the conclusions were legally correct."


"To read the four newly released memos on prisoner interrogation written by George W. Bush’s Justice Department is to take a journey into depravity," stated The Times in an April 19 editorial. "Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect — all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners... These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values."

"It was not an honest legal memo," charged Rep. Jerry Nadler (D-N.Y.), chair of the House Judiciary Committee's Constitution, Civil Rights, and Civil Liberties subcommittee. "It was an instruction manual on how to break the law."

Indeed; "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires," states Article 8 of the 1945 Charter of the International Tribunal at Nuremberg.

"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him," states Principle IV of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Nuremberg Tribunal, adopted by the International Law Commission of the United Nations, 1950.


(Readers may be able to do something about that here and here.)

Contrast Bybee's "situation" with that of Kozinski, who recused himself from the Isaacs trial after a Los Angeles Times article accused him of hosting an "extensive" website that included "images of masturbation, public sex and contortionist sex," "a slide show striptease featuring a transsexual," a folder containing "a series of photos of women's crotches as seen through snug fitting clothing or underwear," as well as "themes of defecation and urination." Kozinski's response also included a request that a panel of judges from outside of his own circuit conduct a "misconduct probe" to determine if he should be censured or worse for having posted the sexual material to the Internet.

AVN has already written about the material on Kozinski's site, the details of which had been analyzed by a Los Angeles prosecuting attorney who blogs under the name "Patterico."

"[W]here the Times charged that Kozinski's site contained 'images of masturbation, public sex and contortionist sex,'" we wrote, "Patterico found one 87-second video containing about 30 seconds of what may be a British woman giving a handjob to the passenger in the front seat of her car; 60 seconds of what appears to be a gymnasium full of nude Asian couples, each woman riding her partner cowgirl style but with no hardcore visible; a distant shot of a clothed couple in the top row of seats at a stadium, with the woman apparently having reverse cowgirl sex with her partner, helping him zip up after they're done, and putting on her own panties - again with no hardcore or sexual organs visible; and 24 seconds of a couple performing 69, but with the woman sucking off the guy upside down - that is, with her back towards his front."

Patterico also found a short video slideshow of various women's "cameltoes" played to a parody of the Beach Boys' tune "Kokomo"; a PowerPoint presentation of a woman shaving her pubic area; a 20-second video of a familiar-looking woman with very large tits taking a shower; the face of Homer Simpson superimposed over a woman's pussylips; Canadian currency with naked women added to the designs; a photo of four clothed 20-somethings, one of whose dress is hiked up enough to see her pussy (dimly); a photo of a woman's shaved pussy (un)covered by a dental-floss thong, with the legend, "Democrats New Slogan: Read My Lips ... No More Bush"; an animated .gif of a woman undressing, labeled "wall-mart-greeter"; and a few more equally innocuous photos and vids.

After AVN's article appeared, however, Patterico delved further into the CD of Web material from Kozinski's site which had been provided to him by attorney Cyrus Sanai, a long-time enemy of Kozinski; Patterico's researches this time specifically dealing with the question of the "themes of defecation and urination."

"I have now reviewed most of the material on the CD I received from Cyrus Sanai, and I can confirm what you had probably already guessed: that any references to urination or defecation on the server/website were humorous," Patterico wrote on June 22, 2008. "See, the newspaper told readers that the 'themes of urination and defecation' were not presented in a sexual context. But the paper did not explain that these themes always appeared in a humorous context. There is a tremendous difference between material that alludes to urination and defecation in a humorous context — 'pee-pee/doo-doo' humor — and material that depicts urination and defecation in a non-humorous context. Pee-pee/doo-doo humor is everywhere. By contrast, many folks would consider non-humorous depictions of urination or defecation to be perverted." [Emphasis in original]

Patterico provided several examples, including a photo with the caption, "Parking at amusement park: $8. Bungee jump: $40. Having your picture put up on the worldwide web after you shit yourself on the jump ... PRICELESS"; a video from an Australian version of  a "Funniest Home Videos" program showing a woman displaying how docile her horse is by crawling between its hind legs – only to have the horse defecate on her head; a comedy skit from a TV show with several men standing at a urinal, visible only from the waist up, who wind up "holding each other’s penises, to free up their hands to drink beer and smoke"; and a photo (reproduced above) from a file labeled "Women's Bathroom" – and that's the "worst" of it.

"The line about the 'themes of urination and defecation,' together with the line about a 'half-dressed man cavorting with a sexually aroused farm animal,' certainly made it sound like the judge was presiding over a trial about bestiality and defecation, while possessing images that appeared to relate to the same topics," Patterico concludes. "That's the conclusion I came to in my initial post... That's what they wanted me to think. And it worked. I'm so ashamed."

And for that, Kozinski is being investigated for misconduct by a panel appointed on June 18, 2008 by Anthony J. Scirica, chief judge of the Third Circuit Court of Appeals, under the direction of U.S. Supreme Court Justice John Roberts. The panel consists of Third Circuit Judges Marjorie Rendell (wife of Pennsylvania Gov. Ed Rendell) and Walter Stapleton; Chief Judge Harvey Bartle III of U.S. District Court in Philadelphia; and Chief Judge Garrett Brown Jr. of U.S. District Court in New Jersey. According to a report in the Philadelphia Inquirer, "The panel will issue a report to the Third Circuit's judicial council, which will then determine whether Kozinski engaged in misconduct and whether he should be punished."

It's noteworthy that the entire contents of Kozinski's website have been available to the panel for 11 months now, and while there are several hundred images and videos, the entire site couldn't take more than a week to view ... yet no report has issued, no determination made and no punishment meted out – a far cry from how a June 23, 2008 editorial in the Wall Street Journal described the genesis of the situation: "Even scandals now operate at Internet speed. Ten days ago, it looked as if an investigative reporter had uncovered a pornographic Web site operated by a federal judge. By last week, the case instead showed how easily privacy is breached online, how mainstream media botch a story, and how bloggers can redeem journalism by reporting facts."

On the other hand, the Bybee memo, along with three others from fellow former OLC attorney Stephen Bradbury, have been available online for almost a month – and those of OLCer John Yoo for nearly three months – yet no one in the Justice Department has made a move either to investigate whether the OLC attorneys are guilty of conspiracy to violate §2340A, not to mention the Geneva Conventions and the International Convention Against Torture (signed by Ronald Reagan in 1988; ratified by the U.S. Senate in 1994), nor to appoint a Special Prosecutor to take similar action.

Maybe there's a lesson here for anyone who's followed the intricacies of the politics of porn: Create a sexy website – have your life turned upside down by a panel of appeals court judges. Create a memo giving legal cover to the torture of dozens of political prisoners, some of them unquestionably innocent – get a life tenure as one of those same appeals court judges!

What's wrong with that picture?