Opinion
Published on February 18, 2015
This is an excerpt from The Salt Lake Tribune
This Thursday at 12:15 p.m., in Room 106 at the University of Utah Law School, Judge Jay Bybee of the Ninth Circuit Court of Appeals will be speaking on the ironic topic of “Observations on the Constitution as Written and the Constitution as Taught.”
Ironic, because as assistant attorneys general in the Justice Department’s Office of Legal Counsel, he and John Yoo crafted and issued the infamous classified memoranda that green-lighted American torture.
Bybee’s Aug. 1, 2002, memorandum redefining torture was so bizarrely unconventional that even the Bush administration later repudiated it. According to Bybee’s unique interpretation of the Constitution, the federal anti-torture statute and the International Convention Against Torture are loopholed into virtual non-applicability.
And, even if there could be any odd circumstance where ICAT might apply to prohibit waterboarding, rectal rehydration or genital mutilation (under Section 2, Article VI, treaties made the United States become “the supreme law of the land”), that constitutional provision is trumped by the president’s war powers under Section 2, Article II.
Bybee fully subscribed to Richard Nixon’s 1977 claim that, “When the president does it, that means that it’s not illegal.” Nixon conveniently ignored the landmark Supreme Court decision in Youngstown Sheet and Tube, which rebuffed President Truman’s interpretation of commander-in-chief power during the Korean War, absent express constitutional authority under Article II or express statutory authority. Bybee’s torture memorandum also ignores Youngstown, as well as military decisions treating waterboarding as a war crime.
