Jay Bybee: Wikis


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Jay Bybee

In office
2003 – present
Nominated by George W. Bush
Preceded by Procter Ralph Hug, Jr.

Born October 27, 1953 (1953-10-27) (age 56)
Oakland, California, USA
Birth name Jay Scott Bybee
Spouse(s) Dianna Greer Bybee (1986-present)
Religion The Church of Jesus Christ of Latter-day Saints
Known for Bybee Memo

Jay Scott Bybee (born October 27, 1953 in Oakland, California) is a federal judge on the United States Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals[1] and taught law school; his primary interests are in constitutional and administrative law. Bybee is currently the subject of a federal investigation by the Justice Department's Office of Professional Responsibility concerning a legal memorandum (the "Bybee Memo" also known as the "Torture Memo") he authorized while serving in the Office of Legal Counsel during the Bush administration, as well as a subject of a war crimes investigation in Spain.


Education and career overview

Bybee graduated magna cum laude and with Highest Honors from Brigham Young University in 1977, majoring in Economics.[2] He earned his Juris Doctor cum laude[3] from BYU's J. Reuben Clark Law School in 1980. While in law school, he served on the editorial board of the BYU Law Review. Thereafter, Bybee spent one year as law clerk to judge Donald S. Russell of the United States Court of Appeals for the Fourth Circuit.

Following three years of private practice in Washington, D.C., Bybee worked for the U.S. Department of Justice from 1984 to 1989, first in the Office of Legal Policy and then in the Civil Division. From 1989 to 1991, Bybee served as Associate Counsel to President George H. W. Bush.

From 1991 to 1999, Bybee was on the faculty of the Paul M. Hebert Law Center at Louisiana State University; subsequently, he taught at the William S. Boyd School of Law at the University of Nevada, Las Vegas. From 2001 to 2003, Bybee served as Assistant Attorney General in the U.S. Department of Justice's Office of Legal Counsel.

President George W. Bush nominated Bybee to the United States Court of Appeals for the Ninth Circuit, and he was confirmed by the United States Senate on March 13, 2003.[4] He received his commission on March 21, 2003, and Justice Sandra Day O'Connor administered the oath of office at the Supreme Court on March 28, 2003.[5]

Personal life

Born in Oakland California, on October 27, 1953, Bybee was largely raised in Clark County, Nevada. His family subsequently moved to Nashville, Tennessee, then Louisville, Kentucky. A lifelong member of The Church of Jesus Christ of Latter-day Saints, Bybee served a mission for the Mormon Church in Santiago, Chile from 1973 to 1975.

Bybee is married to Dianna Greer Bybee, a former high school teacher.[6]

Professor Bybee

From 1991 to 1999, Bybee taught at the Paul M. Hebert Law Center at Louisiana State University; subsequently, he was a founding faculty member of the William S. Boyd School of Law at the University of Nevada, Las Vegas, where he taught from 1999 to 2001. At both schools, he taught constitutional law, administrative law, and civil procedure. In 2000, Bybee was voted Professor of the Year.[6] His particular areas of expertise are Civil Procedure, Constitutional Law, and the Federal Courts.[3]

Legal scholarship

Bybee has co-authored two books, Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments(2006) (with Thomas B. McAffee and A. Christopher Bryant) and Religious Liberty Under the Free Exercise Clause (U.S. Dept. of Justice, Office of Legal Policy 1986) (with Lowell V. Sturgill). Bybee has also written more than 20 law review articles, notes, comments, and book chapters.[1]

Office of Legal Counsel

Bybee served as the Assistant Attorney General for the Office of Legal Counsel (OLC) in the United States Justice Department from November 2001 to March 2003.[7][8]

Bybee memo

During Jay Bybee's tenure at the OLC, the CIA requested legal advice on detainee interrogation. That request was routed to the OLC by then White House General Counsel Alberto Gonzalez who desired the "ability to quickly obtain information from captured terrorists and their sponsors."[9] The CIA inquired whether, after the terrorist attacks of September 11, 2001, it could aggressively interrogate suspected high-ranking Al-Qaeda members captured outside the United States. In effect, the CIA was asking for an interpretation of the statutory term of "torture" as defined in 18 U.S.C. § 2340. That section implements, in part, the obligations of the United States under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

Bybee signed that legal memorandum which defined "enhanced interrogation techniques" in ways that are regarded as torture by the current Justice Department,[10] Amnesty International,[11] Human Rights Watch,[12], medical experts in the treatment of torture victims,[13][14] intelligence officials,[15] military judges,[16] and American allies.[17] This memo has been the source of controversy and calls for his impeachment. Bybee is currently the subject of a war crimes investigation in Spain,[18] as well as the subject of an investigation by the Justice Department's Office of Professional Responsibility.[17]

Recently revealed information indicates that while the use of the interrogation methods in question was a subject of serious contention, even some in the Bush Administration who believed that using tough tactics was a serious mistake agreed the methods themselves were legal.

However, some in branches of the Bush administration believed that the techniques were illegal. Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions,[19], while U.S. Navy general counsel Alberto Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" of the memo.[20] Philip D. Zelikow, former State Department adviser to Condoleezza Rice, testified to the Senate Judiciary Committee, "It seemed to me that the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution." Zelikow also alleged that Bush administration officials not only ignored his memos, but attempted to destroy them.[21]

Justice Department's Office of Professional Responsibility Investigation

Following its nearly half-decade-long inquiry, the Office of Professional Responsibility is expected to release its findings regarding the Bybee Memo and other related memos this summer.[22]

Ninth Circuit Court of Appeals

Bybee was first nominated to the Ninth Circuit Court of Appeals, the largest U.S. appellate court, on May 22, 2002. The Senate recessed for mid-term elections without acting on the nomination, which was "returned without action" in November 2002 under Senate Rule XXXI, Paragraph 6.[23]

President George W. Bush resubmitted his nomination on January 7, 2003. The Senate Judiciary Committee reported favorably on Bybee's nomination by a 12-6 vote (10 Republicans and 2 Democrats for, 6 Democrats against) in late February and forwarded the nomination to the full Senate for consideration.[24] Senate deliberations took place on March 13, 2003.[25] The Senate confirmed Bybee's nomination by a vote of 74-19 the same day.[26] Bybee received his commission on March 21, 2003. Justice Sandra Day O'Connor administered the oath of office at the U.S. Supreme Court building on March 28, 2003.[27]

One senator remarked that "the fact that Jay Bybee was confirmed during one of the most contentious periods in the history of the United States Senate in terms of judicial nominees is a credit to his experience and integrity." Democratic Senator Charles Schumer noted that he supported Bybee's confirmation specifically because Bybee's conservative views would help to moderate the increasingly liberal Ninth Circuit Court of Appeals. [28]

Some critics decried his confirmation, calling Bybee "an extremist who takes an overly limited view of federal power" and criticizing his "narrow view of individual rights", including abortion and gay rights.[29]

During his years on the court, Bybee "has become known as one of its brightest and most free-thinking judges," establishing himself as an intellectual heavyweight and "writing some of the court's most significant opinions."[30]

Significant Opinions

On January 13, 2005, in a 2-1 decision, Bybee wrote for the majority in United States v. Bruce. This case further refined the rules for defining whether or not an individual is an Indian. The current two-prong Rogers approach requires that the individual's degree of Indian blood as well as her tribal or government recognition as an Indian be taken into consideration. The Court concluded that Violet Bruce was an Indian.[31]

On August 2, 2005, Bybee was one of three judges on a Ninth U.S. Circuit Court of Appeals panel that ruled on John Doe v. Kamehameha Schools. With Robert Breezer, Bybee argued the majority decision that the schools' admissions policy constitutes "unlawful race discrimination." The two judges said the private school's policy violates federal civil rights law. Susan Graber issued a partial dissent. This ruling however was overturned on December 5, 2006, by an 8-7 decision, when a 15-judge panel of the Ninth U.S. Circuit Court of Appeals heard an appeal by Kamehameha Schools. [32]

On January 10, 2006, in an en banc decision, Judge Bybee wrote the opinion for the majority in the case of Smith v. Salish Kootenai College. In that case, James Smith sought to have a case heard in federal court which he had previously brought in a tribal court; when he disagreed with that court's decision, he claimed that the tribal court had had no jurisdiction in the first place. In an 8-3 decision, the Court upheld the tribal court's jurisdiction over the subject matter, thereby strengthening tribal courts' rights to claim jurisdiction.[33][34]

On September 11, 2006, Bybee wrote the majority opinion in Kesser v. Cambra, granting habeas corpus to the defendant by a 6-5 vote. Richard Kesser had been convicted of hiring a hit man to kill his former wife and was sentenced to life without parole. During Kesser's trial in 1995, the prosecutor had eliminated three American Indian jurors and one Asian juror for racial reasons. Effectively granting Kesser a new trial, this decision laid out the current Batson analysis in the Ninth Circuit. [35][36]

On November 7, 2006, Bybee wrote on behalf of a unanimous three-judge panel in the case of Lankford v. Arave. Mark Lankford had been convicted of murder and sentenced to death nearly two decades earlier. The Ninth Circuit Court of Appeals granted habeas corpus based on ineffective assistance of counsel and faulty jury instructions and noted that there was support for Lankford's theory that his brother actually committed the murders in question.[37][38]

On August 21, 2008, in U.S. v. Craighead, the Ninth Circuit Court of Appeals held that the defendant's rights had been violated when he was interrogated in his own home without first being read his Miranda rights. In that case, numerous law enforcement officers had descended on the defendant's home because he was suspected of having downloaded child pornography. In a decision written by Bybee, the Court held that the defendant's interrogation had been custodial and therefore violated his Fifth Amendment rights.[39]

On November 7, 2008 (but amended twice in January 2009), the Ninth Circuit Court of Appeals tackled the issue of the due process rights of individuals who found themselves inaccurately placed on the California Child Abuse Central Index (CCACI), a registry for accused and known child molesters. In Humphries v. County of Los Angeles, Craig and Wendy Humphries fought to have their names removed from the CCACI after the courts had cleared them completely of abuse charges brought by a rebellious child. Because the state of California had no system in place for removing names that did not belong on the CCACI, the Court held that the CCACI violated the due process rights of those who had been falsely accused but could not get their names removed from the CCACI.[40]

On December 30, 2008, Bybee wrote the opinion for the Ninth Circuit Court of Appeals in Gonzalez v. Duncan. In that case, Cecilio Gonzalez had failed to reregister as a sex offender within five working days of his birthday and, because of prior convictions, had been sentenced to twenty-seven years to life under California's Three Strikes law. The Court held that the sentence was grossly disproportionate to the crime.[41]


  • Jay Bybee, Thomas B. McAffee and A. Christopher Bryant. Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments. (Westport, Conn.: Praeger Publishers, 2006.) ISBN 0313313725
  • Jay Bybee, Religious Liberty Under the Free Exercise Clause. (Washington, D.C.: Office of Legal Policy, Dept. of Justice, 1988)
  • William Rehnquist, the Separation of Powers, and the Riddle of the Sphinx, 58 STAN. L. REV.1735 (2006) (with Tuan N. Samahon).
  • Judging the Tournament, 32 FLA. ST. U. L. REV. 1055 (2005) (with Thomas J. Miles)
  • Of Orphans and Vouchers: Nevada’s “Little Blaine Amendment” and the Future of Religious Participation in Public Programs, 2 NEV. L.J. 551 (2002) (with David W. Newton)
  • Printz, the Unitary Executive, and the Fire in the Trash Can: Has Justice Scalia Picked the Court’s Pocket?, 77 NOTRE DAME L. REV. 269 (2001)
  • Common Ground: Robert Jackson, Antonin Scalia, and a Power Theory of the First Amendment,75 TUL. L. REV. 251 (2000)
  • The Tenth Amendment Among the Shadows: On Reading the Constitution in Plato’s Cave, 23 HARV. J.L. & PUB. POL’Y 551 (2000)
  • Domestic Violence Clause, in ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION (Leonard W. Levy et al. eds., 2d ed. 2000)
  • Child Support Recovery Act (1992), in ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION (Leonard W. Levy et al. eds., 2d ed. 2000)
  • Agency Expertise, ALJ Independence, and Administrative Courts: The Recent Changes in Louisiana’s Administrative Procedure Act, 59 LA. L. REV. 431 (1999)
  • The Equal Process Clause: A Note on the (Non).Relationship Between Romer v. Evans and Hunter v. Erickson, 6 WM. & MARY BILL RTS. J. 201 (1997)
  • Insuring Domestic Tranquility: Lopez, Federalization of Crime, and the Forgotten Role of theDomestic Violence Clause, 66 GEO. WASH. L. REV. 1 (1997)
  • Who Executes the Executioner? Impeachment, Indictment and Other Alternatives to Assassination, 2 NEXUS 53 (1997)
  • Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment, 91 NW. U.L. REV. 500 (1997)
  • Substantive Due Process and Free Exercise of Religion: Meyer, Pierce and the Origins of Wisconsin v. Yoder, 25 CAP. U.L. REV. 887 (1996)
  • Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 VAND. L. REV. 1539 (1995)
  • Advising the President: Separation of Powers and the Federal Advisory Committee Act, 104 YALE L.J. 51 (1994)
  • George Sutherland, in THE SUPREME COURT JUSTICES: ILLUSTRATED BIOGRAPHIES, 1789-1993 (Clare Cushman ed. 1993)
  • Owen J. Roberts, in THE SUPREME COURT JUSTICES: ILLUSTRATED BIOGRAPHIES, 1789-1993 (Clare Cushman ed. 1993)
  • Utah’s Horseman: George Sutherland, 13 SUP. CT. HIST. Q. 14 (No. 2, 1992)
  • Note, Reverse Political Checkoff Per Se Illegal as Violation of Federal Election Campaign Act, 1980 BYU L. REV. 403
  • Comment, Profits in Subrogation: An Insurer’s Claim to Be More Than Indemnified, 1979 BYU L. REV. 145, reprinted in 30 FED’N INS. COUNS. Q. 249 (1980)

See also


  1. ^ a b "Bybee publication list at University of Nevada, Las Vegas". http://www.law.unlv.edu/files/Bybee_publications.pdf. Retrieved 27 February 2009.  
  2. ^ [1]
  3. ^ a b "Jay Bybee description from University of Nevada, Las Vegas". http://www.law.unlv.edu/faculty/jay-bybee.html. Retrieved 27 February 2009.  
  4. ^ Dean, John W. (14 January 2005). "The Torture Memo By Judge Jay S. Bybee That Haunted Alberto Gonzales's Confirmation Hearings". Writ. http://writ.news.findlaw.com/dean/20050114.html. Retrieved 28 February 2009.  
  5. ^ "Jay S. Bybee Biography". Federal Judicial Center. GPO. http://www.fjc.gov/servlet/tGetInfo?jid=2981.  
  6. ^ a b Johnson, Page. "Jay S. Bybee Named to Ninth Circuit Court". Meridian Magazine. http://www.meridianmagazine.com/people/030708jayprint.html. Retrieved 28 January 2009.  
  7. ^ Bush, George W. (July 10, 2001), President intends to nominate Jay S. Bybee to be Assistant Attorney General for the Office of Legal Counsel, White House, http://georgewbush-whitehouse.archives.gov/news/releases/2001/07/print/20010710-10.html, retrieved April 26, 2009  
  8. ^ "Senate Judiciary Committee Hearings, Jay S. Bybee Nomination to OLC". Congressional Record. Library of Congress. 23 October 2001. http://thomas.loc.gov/cgi-bin/ntquery/z?nomis:107PN0095900:.  
  9. ^ Schwarz, Frederick August Otto; Aziz Z. Huq and Brennan Center for Justice (2007). Unchecked and Unbalanced: Presidential Power in a Time of Terror. New York City: The New Press. pp. 78–81. ISBN 978-1-59558-117-4. OCLC 71286622.  
  10. ^ Stout, David (15 January 2009). "Holder Tells Senators Waterboarding Is Torture". New York Times. http://www.nytimes.com/2009/01/16/us/politics/16holdercnd.html?scp=3&sq=Eric%20Holder%20torture&st=cse. Retrieved 21 April 2009.  
  11. ^ "Amnesty International: Waterboarding is Never Acceptable Regardless of the Circumstances". Reuters. 5 February 2009. http://www.reuters.com/article/pressRelease/idUS261101+05-Feb-2008+PRN20080205. Retrieved 24 May 2009.  
  12. ^ "Open Letter to Attorney General Alberto Gonzales". Human Rights Watch. 5 April 2006. http://www.hrw.org/en/news/2006/04/05/open-letter-attorney-general-alberto-gonzales. Retrieved 17 April 2009.  
  13. ^ Mayer, Jane (14 February 2005). "Outsourcing Torture". The New Yorker. http://www.newyorker.com/archive/2005/02/14/050214fa_fact6. Retrieved 17 April 2009.  
  14. ^ International Rehabilitation Council for Torture Victims (12 February 2008). "Former member of UN Committee Against Torture: 'Yes, waterboarding is torture'". Press release. http://www.irct.org/Default.aspx?ID=3558&M=News&NewsID=1236. Retrieved 21 April 2009.  
  15. ^ Grey, Stephen (2006). Ghost plane: the true story of the CIA torture program. New York City: St. Martin's Press. p. 226. ISBN 0-312-36023-1. OCLC 70335397. "As one former CIA official, once a senior official for the directorate of operations, told me: 'Of course it was torture. Try it and you'll see.' Another, also a former higher-up in the directorate of operations, told me: 'Yes, it's torture…'"  
  16. ^ Bell, Nicole (2 November 2007). "Retired JAGs Send Letter To Leahy: 'Waterboarding is inhumane, it is torture, and it is illegal.'". Crooks and Liars. http://www.crooksandliars.com/2007/11/03/retired-jags-send-letter-to-leahy-waterboarding-is-inhumane-it-is-torture-and-it-is-illegal/. Retrieved 17 April 2009.  
  17. ^ a b Williams, Carol (1 May 2009). "Jay Bybee Silent on Interrogation Memos". la times. http://www.latimes.com/news/nationworld/nation/la-na-bybee-memo1-2009may01,0,4424427.story. Retrieved 24 May 2009.  
  18. ^ Abend, Lisa (31 March 2009). "Will a Spanish Judge Bring Bush-Era Figures to Justice?". time. http://www.time.com/time/world/article/0,8599,1888572,00.html. Retrieved 24 May 2009.  
  19. ^ Isikoff, Michael (May 17, 2004). "Memos Reveal War Crimes Warnings". Newsweek. http://www.newsweek.com/id/105057.  
  20. ^ Mayer, Jane (February 27, 2006). "The Memo: How an Internal Effort to Ban the Abuse and Torture of Detainees was Thwarted". The New Yorker. http://www.newyorker.com/archive/2006/02/27/060227fa_fact. Retrieved April 22, 2009.  
  21. ^ Eviatar, Daphne (2009-05-13). "Philip Zelikow: OLC Interpretation Would Allow Waterboarding of U.S. Citizens". The Washington Independent. http://washingtonindependent.com/42763/philip-zelikow-olc-interpretation-would-allow-waterboarding-of-us-citizens. Retrieved 2009-06-09.  
  22. ^ [2]
  23. ^ "Senate Judiciary Committee, Jay S. Bybee Nomination to 9th Circuit Court Returned". Congressional Record. Library of Congress. 20 November 2002. http://thomas.loc.gov/cgi-bin/ntquery/z?nomis:107PN0177800:.  
  24. ^ "Senate Judiciary Committee Hearings, Jay S. Bybee Nomination to 9th Circuit Court". Congressional Record. Library of Congress. 27 February 2003. http://thomas.loc.gov/cgi-bin/ntquery/z?nomis:108PN0000400:.  
  25. ^ "Senate Floor Statements, Jay S. Bybee Nomination to 9th Circuit Court". Congressional Record. Library of Congress. 13 March 2003. http://thomas.loc.gov/cgi-bin/query/R?r108:FLD001:S03678.  
  26. ^ U.S. Senate Roll Call Vote #54 - 108th Congress - 1st Session, 13 March 2003, Confirmation of Jay S. Bybee To U.S. 9th Circuit
  27. ^ Tetreault, Steve (29 March 2003), Nevadan sworn in as U.S. judge, Las Vegas Review Journal, http://www.reviewjournal.com/lvrj_home/2003/Mar-29-Sat-2003/news/20995147.html  
  28. ^ [3]
  29. ^ Ofgang, Kenneth (14 March 2003), Assistant Attorney General Jay Bybee Confirmed as Ninth Circuit Judge, Metropolitan News-Enterprise, http://www.metnews.com/articles/bybe031403.htm  
  30. ^ [Freethinking Judge Brings Controversial Past, Los Angeles Daily Journal, October 3, 2007, p.1]
  31. ^ [4]
  32. ^ John Doe v. Kamehameha Schools in The Honolulu Advertiser
  33. ^ [5]
  34. ^ [6]
  35. ^ [7]
  36. ^ [8]
  37. ^ [9]
  38. ^ [10]
  39. ^ [11]
  40. ^ [12]
  41. ^ [13]

External links

Preceded by
Procter Ralph Hug, Jr.
Judge of the U.S. Court of Appeals for the Ninth Circuit
Succeeded by

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