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Jay Bybee and Me: Our Secret Relationship

By Susan Harman

    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. This is a picture of us, just before he had me arrested for assault.
 Susan Harman
    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 the 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) (emphasis added).  

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 U.S. 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 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!

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Very good article, but I have a "short" comment about it.

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 (my emphasis).

That's refreshing to read, because while Bybee, and John Yoo, acted criminally in so-called legalizing or justifying torture, the anti-torture activist rage about that was always or nearly always about these characters, while omitting that they did "Bush's bidding". Bush was C-in-C and that's where "the buck stops", but the enraged activists omitted this essential part of the picture; always or nearly always naming or targeting only Bybee and Yoo.

If these two characters had been directed to describe torture as illegal and needing to be stopped, then this is what they would've written or done. They worked to keep their jobs, salaries, and so on.

However, when saying that they did "Bush's bidding", I would rather say that they did the "Bush administration's bidding". Bush was little more than a stage puppet and Cheney was more the actual President than Bush was; a feature of this administration that was illustrated multiple times. Bush wasn't the decider and while Cheney wasn't the sole person to make up the real deciding party, he clearly was a key player or member of this party. Bush basically did as he was directed to do and Karl Rove wasn't called "Bush's brain" for nothing or groundless reasons.

When Bush and Cheney refused to be questioned separately, we can be certain that it was not Bush who made this decision. The driver was Cheney, and perhaps Rove and Rumsfeld also weighed in on this decision to commit what I consider to be obstruction to or of due legal process. At one point Bush started softening up about the war on Iraq and Cheney quickly charged forward to strongly voice his decision that the war was going to continue full throttle. It was not Bush who decided he'd go visit some children's elementary school classroom the morning of 9/11. It was not him who decided that he'd fly around the country in AF One that morning after the 9/11 attacks or strikes. It also was not Bush who ordered standdown with respect to AA 77 as it approached or headed to the Capitol; although, whether this order, i.e., triply-repeated order, was for standdown of NORAD interceptors or the Pentagon's anti-aerial attack defense system apparently remains uncertain, except when AA 77 had entered Capitol airspace. We have strong testimony about that order or those three orders from then NTA director Norman Minetta, who testified about this before the 9/11 Commission, and the final report of the Commission completely omits this and other [important] testimonies that were given, but they were provably given and there are videos at Youtube for or of Norman Minetta's testimony.

Bush had little to do with White House decisions. He was the puppet mouthpiece President more than having been really President. One thing he apparently was really responsible for, however, is when a reporter asked him about the Constitution and he replied by saying that it's "just a piece of paper". It's a question the White House decision-makers probably hadn't prepared him to answer, or so I'll guess; but maybe he had heard Cheney, Rumsfeld and Rove, f.e., speak this way about the Constitution and moldable Bush absorded this in his psychological "framework". Or maybe he had heard his father speak, privately, in this way. However this reply came to his mind, he spoke the words and I doubt that he was actually prepared in a planned way for the question. Maybe it was part of the training or "coaching" he had received.

But he wasn't the real decider in the White House. He also didn't pull the strings that got him to not be sent to the Vietnam War. Daddy took care of that little matter.

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.

He is responsible for that, but not solely. He's guilty of having followed criminal directives. It's a very serious crime and it makes him guilty of war crimes, or a war crime anyway; but he's not the sole or top-most guilty character for this crime. To think he was, we'd have to think that the Bush administration didn't realize that they were commanding war of aggression, which is something that the administration inarguably, definitely knew they were doing. If they hadn't known that they were commanding criminal conduct or actions, then they wouldn't have felt a need to lie; and lying is almost the sole thing they did. They [knew] they were lying!

Even if Bybee and Yoo made it so-called legal and justified to commit torture, it was definitely a crime and illegal at the time, the White House administration, Congress, Senate, DoD, Justice Department, and so on [all] knew this, Bush was C-in-C, even if a puppet C-in-C, and so on. And they would've used torture even if they hadn't gotten the 9th Circuit Court to make this so-called legal. That was just for public deception, so a public cover.

Torture and extraordinary renditioning by the US did not start with the Bush Jr-Cheney administration, but it evidently was previously unknown or mostly unknown to the public. The Clinton administration did it and I'd be surprised if earlier Administrations did not also do this. But it evidently wasn't publicly known, so it wouldn't have been decided that it was strategically necessary to do anything to so-called justify these crimes to the public. If they had decided that it was strategically necessary to publicly justify these crimes when the public did not know about these being committed, then this would've "let the cat out of the bag", which is something the makers of wars and other high crimes certainly try to avoid doing.

With the Bush Jr-Cheney administration, these crimes became publicly known, so it became strategically necessary to have two clowns of darkness like Bybee and Yoo fabricate a so-called legal justification in order to try to continue to deceive the public about the Bush Jr-Cheney administration being supposedly innocent of committing or being responsible for these crimes. Meanwhile, Canada, Britain, Spain, Italy, Germany, and maybe other western European allies of the US in these wars, seem to consider these crimes, torture and extraordinary renditioning, as crimes; if I have correctly understood some readings about these governments on these crimes.

It is well known that the US has a long history of covertly committing extreme crimes against humanity and that these were kept secret from most of the public meant that it was not strategically necessary to fabricate bs laws supposedly justifying the practice of these crimes. Torture is a crime that's been practiced for ages and for a very long time by the US, as well.

So Bybee and Yoo are guilty of having committed crimes with their fabrication of so-called legal "justification" for or of torture, and they should be disbarred, held to account, indicted, and so on. They could not have not known that they were acting illegally; that existing justified law or laws could not be overturned based only on a whim. But they were obeying directives and whoever is responsible for those directives is guilty of greater criminality, including treason, which Yoo and Bybee are also guilty of having committed. Everyone who supported these wars and any of the related crimes and who did this while knowing that these were illegal as well as unconstitutional is guilty of [treason], but it's one of the many related crimes. And the controllers or top-most deciders are the most guilty of all of these criminals; these elites and all of the guilty White House officials, military commanders, CIA directors, et cetera.

The latter are guilty of greater criminality than Bybee and Yoo, who did as directed. The others were in command and knew that what Bybee and Yoo were directed to do was criminal, bs, unconstitutional, and so on.

Soldiers have, for first oath, to defend the Constitution and all of these above actors wittingly did the very opposite. They knew the related laws, so they inarguably did wittingly commit these crimes. They can't be excused based on ignorance of the related laws; learning them is part of the training and is an absolute [duty] for these people to know. There is no excusability for any of them, but some were puppets, some more than others; Bush probably, if not surely, having been the dumbest of the puppets. Some weren't puppets. Some, or many, love war, murdering innocent people, committing destruction, working for imperialism, "working" for promotional opportunities for "advancement", and so on.

Legally, Bybee and Yoo can't be ignored. They are to be held accountable for their criminal complicity. But they're not the makers of these wars and/or related crimes. They followed criminal directives, and they did this wittingly. Stopping the directors and preventing people like them from being elected and appointed to positions of direction will permit for Bybee-Yoo stories to not happen again. Going after only these two characters will not stop the crimes.

Stopping accountants and lawyers working for the Mafia won't stop the Mafia.

With the above said, it's still important to stop, indict, prosecute, et cetera, rogue "justices". They're not guilty of the worst crimes, but the system of justice definitely needs to be cleansed of its rogue elements or members. And, maybe, if the DoJ was cleansed of all of its rogue members, or certainly those in high positions, then perhaps establishment of a real DoJ that's truly for justified laws would be able to influence an ending to the war-making and other high crimes. This (hypothetical) DoJ might be able to firmly indict any rogue members of Congress who'd try to obstruct the ending of these wars and other high crimes; I think or will guess, anyway.

A properly cleansed DoJ is clearly necessary, and urgently needed. I just don't know what one would be able to do in terms of influencing the ending of criminal wars and other high crimes, the publicly known, reported crimes that corporate "news" media doesn't report as crimes, anyway.

Covertly committed crimes are another thing that occurs a lot and must be urgently stopped, as well as reparations provided. But, a properly cleansed DoJ might not be expectably aware of these crimes, just like even the best members of Congress evidently are unaware of these crimes; because these people are too intellectually and politically damn lazy to use sources that aren't of the corrupt and extremely negligent corporate media. What do these lazy people know about the extreme crimes of the US, some European countries, Canada and Israel in several or more African countries, f.e.? Corporate media and most "alternative" media don't do [any] qualitative reporting on these covert crimes.

As bad as torture is, the covert crimes of the US, et al, in several African countries, and in other countries, are far worse, but probably a large majority of Americans are unaware of these crimes due to selectively reading only from media that do bullshit reporting about what's really going on in these countries.

And Bybee is said to have so-called justified "aggressive war", but this is like with torture; there's no way that he could really do this. What he wrote in this regard legally was bullshit, and it wouldn't have stopped the wars if he had written that they were or are illegal, criminal. There is no way that a "justice" can overturn just law based on a whim. They can't do that based on directives from the White House or Congress or any other political body, or the top officials of the DoJ. Soldiers explicitly have an oath to defend the Constitution and this might not be an explicit oath of office in the Congress, DoJ, and so on, but if it isn't explicit for these people, then it definitely and inarguably is a necessarily implied and legally enforceable duty. So neither the "justices", nor members of Congress and the White House can legally overturn just laws just because they say it can be and will be done; going ahead with doing that is criminal and rogue. To do that is to be complicit in establishing and maintaining rogue government and that is [treason], which is a crime under US law.

There is [no] legal way for them to roguishly or unjustifiably overturn just laws; simply and absolutely no way! It can only be done in criminal, treasonous terms. That those terms are dressed up or masked in so-called legal mumbo-jumbo doesn't matter, because the principles are simple, straight-forward, clear, any intelligent child can easily understand them, inarguably essential, and so on.

Bybee and Yoo, and ilk "justices", need to be fully held to account and accordingly punished, but achieving this would barely scratch the surface. And "nailing" Bybee for what he wrote in so-called justifying "aggressive war" is hopeless without also "nailing" the Bush administration for commanding war of aggression, totally unjustifiable war that the guilty people in this Administration definitely knew they were basing on lies. The Bush Jr-Cheney administration definitely knew they were commanding unjustifiable war and that they deceived or certainly tried to deceive the public into believing that this was justified; using [lies] that supposedly justified this or these wars.

There is [no] possibility that the Administration did not fully know that they were commanding criminal war(s). They [knew] and they deliberately lied in order to try to deceive us. There's nothing new about that. There are many prior examples and one I was reminded of over the past few days is the criminal war of aggression commanded by then President GHW Bush on Peru in 1989. There's a good documentary about that event and it's entitled, "The Panama Deception". There are clips from the documentary at Youtube and surely other Web sites, and there might be a complete copy that's available for free viewing. I have not viewed the full documentary, yet, but viewed some clips from it and it evidently is very good and important. There's a full copy, in 3 parts, at . IMDB says the full film is 91 minutes. It can be viewed in three different viewer sizes at, is available in 12 parts at Youtube, and so on.

Bybee is guilty of a war crime for having so-called justified aggressive war, but he certainly is not guilty of commanding this war and for carrying it out. His crime in this regard is almost insignificant, comparatively speaking. But he should nevertheless be held accountable, disbarred, and so on.

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