Iraq Torture: CIA/LDS Mind Control. Legal Torture Justification Written by LDS Judge Endorsed by Hatch, Reid & Other LDS Politicians
Justification of the "End Justifies the Means" for a One World Order of "Peace" through CONTROL. Former Democrat Utah Legislator, Oscar McKonkie, Jr. Attorney for Gordon B. Hinckley stated before Witnesses: "Right or Wrong We Have the Final Say".

StopZion Bridsingtruth Citiesofpeace

 The LDS Leader's Connection to the CIA(LDS) MKUltra Mind Control Program brought before Congress in the 1977 Congressional Hearings by Senator Frank Church of Idaho.  Senator Church was then politically destroyed for exposing this ongoing, "justified" atrocity. A live footage of this Congressional Hearing can be seen at Mind Justice in a link provided on Item 13. "Best video documentaries": http://www.mindjustice.org/index.htm in a 1979 ABC News Special "Mission Mind Control". This 1979 ABC News Special "Mission Mind Control" provides witnesses and documented evidence of abuse and even the murders of innocent, unknowing individuals caused by the CIA and other secret intelligent organizations by the use of drugs for experimentation for mind control experiments.  When the government was sued for the wrongful deaths, there was massive cover-up by the CIA.  The National Security Act protects murderers, thefts, sexual abusers, pedophiles, etc. in the quest and justification for mind control of the masses. Please read the documented, valiant quest for justice from a mind-controlled victim who experienced atrocities from the tender age of 4; all for "National Security" funded with our tax dollar and carried out by the CIA, and other "patriotic perverts" at:  http://www.wanttoknow.info/nationbetrayed10pg  LDS Judge Bybee endorsed by LDS (Mormon) Members Senator Orrin Hatch, Senator Harry Reid of Nevada, Senator Gordon Smith of Oregon and Senator Micke Crapo of Idaho - Torture and Mind Control is never justified!

It was the "CIA (many LDS members are recruited into the CIA because of their generational "blind obedience" and language skills) that brought in the 'Age of Aquarias'" by the expansive use and distribution of LSD to innocent teenagers and the masses for the CIA's experiments.

(see our exposure of the MKUltra Mind Control in this site) http://www.mormon.citymax.com/page/page/536387.htm

and at this very important site: http://www.wanttoknow.info

BYU law grad prepared torture memo By Adam Liptak
The New York Times
    The Bush administration is distancing itself from a memorandum prepared two years ago by a government lawyer asserting that the president's power to use torture to extract information from suspected terrorists is almost unlimited.
    Some of the officials who received the memorandum worked diligently to elevate the lawyer, Jay S. Bybee, to the federal bench.
    Nominated by President Bush in 2002 and confirmed by the Senate last year, the graduate of Brigham Young University and its law school now sits on the 9th U.S. Circuit Court of Appeals, which is based in San Francisco.
    Former colleagues say the judge, whose chambers are in Las Vegas, is a serious, soft-spoken, reflective man. They say it is difficult to reconcile his discussion of torture in clinical, dispassionate detail with his background.
    Bybee, a former legal academic, told Meridian, an LDS Church online magazine, last year that he hoped to be remembered for his integrity. "I would like my headstone to read, 'He always tried to do the right thing,' " Bybee said.
    The memorandum, dated Aug. 1, 2002, defined torture narrowly under a federal law that prohibits it. Only pain like that accompanying "death, organ failure or the permanent impairment of a significant body function" qualifies, Bybee wrote. It went on to say torture is unlawful only if the infliction of pain is the offender's specific objective. "Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent," Bybee wrote.
    The memorandum also discussed various potential defenses to criminal prosecutions for torture, including necessity and self-defense. Finally, it asserted that the president was free under his authority as commander in chief to order torture, notwithstanding treaties and laws barring it.
    The memorandum said it was addressed to Alberto Gonzales, the White House counsel, in response to his questions. At a briefing on Tuesday, Gonzales specifically disavowed the part of the memorandum discussing the president's authority as commander in chief, saying it was "irrelevant and unnecessary."
    Senior Justice Department officials took a broader view, saying the entire memorandum would be withdrawn.
    Bybee, 50, worked as a law clerk on the U.S. Court of Appeals for the 4th Circuit in Richmond, Va.; in private practice in Washington, D.C.; as a lawyer in the Justice Department and the White House in the administrations of President Reagan and the first President Bush.
    Bybee served as assistant attorney general in charge of the Office of Legal Counsel, a unit of the Justice Department that advises the executive branch on the law, from 2001 until he joined the appeals court last year.
    On Feb. 27, 2003, the Senate Judiciary Committee voted 12-6 to approve Bybee's nomination; all negative votes were cast by Democrats.
**********************

Justifying torture is out, House panel says Associated Press
      WASHINGTON — A House committee voted Wednesday to bar the Justice Department from issuing legal justifications for the U.S. use of torture in the latest congressional reaction to government memos that seemed to permit the practice.
      The Republican-led House Appropriations Committee approved the provision by voice vote after sponsor Rep. David Obey, D-Wis., said the Justice Department has acted in "outlandish fashion" in the episode, which has involved detainees in Iraq and elsewhere.
      The panel used another voice vote to approve nonbinding language by Rep. Maurice Hinchey, D-N.Y., aimed at getting the department to report on all documents it has written supporting practices that would violate the Geneva Convention or other treaties. The report would also have to state how much time the Justice Department spent preparing each document.
      In a sign of the breadth of the congressional uproar over torture and the administration's condoning of the practice, Rep. Frank Wolf, R-Va., released a recent letter he wrote to Justice officials seeking similar information.
      Wolf, chairman of the subcommittee that controls the Justice Department's budget, asked department officials to investigate the Aug. 1, 2002, memo they sent to the White House that critics say helped lead to the mistreatment of Iraqis held at Abu Ghraib prison.
      "The thought of the United States condoning torture is abhorrent," Wolf wrote.
      The provisions were added to a $39.8 billion bill for the Justice, Commerce and State departments for 2005. The overall bill was approved by voice vote.
      The Senate has yet to write its version of the measure.
*****************************

LDS Judge, BYU Graduate Writes Memo Justifying Torture 

 

    WASHINGTON --

Nominated by President Bush in 2001 for a top job at the Department of Justice, Jay S. Bybee was nominated by President Bush in 2001 and endorsed by fellow LDS Senators; Orrin Hatch of Utah, Harry Reid of Nevada, Mike Crapo of Idaho, Gordon Smith of Oregon and Robert Bennett of Utah. LDS member Jay S. Bybee, who follows the direction of LDS Prophet Gordon B. Hinckley, lied to the Senate Judiciary Committee when he said that he would "not trample civil rights in the pursuit of terrorism" and he would "bring additional sensitivity to the rights of all Americans."
    Jay S. Bybee, a notable graduate of Brigham Young University, a private LDS University and its law school received the Senate's political approval. He won a surprisingly strong bipartisan vote of 74-19 two-years later confirming his lifetime appointment to the 9th U.S. Circuit Court of Appeals. He is one of the few fully-endorsed conservative nominees to evade Democrats' filibusters. 
    The pleasing words of Bybee caused members of the Senate Judiciary Committe to praise Bybee's "good" character and to vote for his confirmation.  These same lawgivers are now linking his memo for justifying torture with the Bush administration's political views and commands. Bybee, while he was the assistant U.S. Attorney General over the Office of Legal Counsel signed an August 2002 memo justifying torture.  He gave legal permission for President Bush to order almost any means of "interrogation" to get captured suspects to talk. This legal justification was suppose to protect the commander-in-chief from legal prosecution or congressional repercussions. 
   Because of world-wide outrage, the White House is now publicly disavowing the legal advice given by its own Justice Department, saying it is "abstract academic theory."
Since the Iraq Torture was exposed, the "Bybee memo," is now being blamed for fostering the belief among soldiers at Abu Ghraib prison in Iraq that torture was ordered and encouraged from the uppermost levels of U.S. command and legally justified. 
 To save face politically, t
he White House is distancing itself from Bybee's controversial legal analysis. What is surprising and confirms the sworn loyalty among LDS members and the attitude that the "end justifies the means" is the continued endorsement by LDS Senate Judiciary Committee Chairman Orrin Hatch.  He declared the day after the White House tried to wash their hands of the torture justification that the legal arguments outlined in Jay Bybee's memo "do make sense" and were "well-reasoned opinions." 
   Bybee's legal opinions justifying torture for gathering information have caused a confusion about his character and professorship (UNLV School of Law Professor).  Last year Bybee had near universal praise through the US Senatore confirmation process for his postition on the 9th Circuit Court of Appeals life-time postion back in Las Vegas, Nevada.                              
  New University of Utah President, LDS member Michael Young, also a BYU graduate, wrote to the Senate, a now embarassing, effusive letter of endorsement for Bybee while Michael Young was the law school dean at George Washington University. He said Bybee would be a "superb judge" not only because of his sharp legal mind, but also because he is "entirely transparent about his core values" which, Young said, "are absolutely the right ones."
    "They bespeak a fidelity to law as both a device to ensure that all have the opportunity to reach their fullest capacity, as well as a shield against man's least worthy impulses," wrote Young.
    In another embarassing letter of endorsement for Bybee, University of Nevada-Las Vegas law school dean Richard Morgan said his former peer "is a creative thinker, but one whose creativity is appropriately tempered by rigorous legal analysis. More importantly, he is a compassionate and decent person who will approach his work in humane and very reasonable ways." 
    The former UNLV law professor had critical support from Senate Assistant Minority Leader Sen. Harry Reid, D-Nevada, who, like Bybee, is a member of The Church of Jesus Christ of Latter-day Saints and all temple worthy members have taken a blood oath to sacrifice everything to "support the building up of the kingdom of God on earth". 
    "Why does he have to write so much?" he once complaned to Bybee's wife.  He still urged Democrats to support Bybee's confirmation to the federal bench. 
     Many of those who voted by Bybee are now his worst critics for his atrocity of legalizing torture such as Sen. Charles Schumer, D-N.Y. and Sen. Patrick Leahy, D-VT. Leahy is aggresive in getting a subpoena to disclose more White House interrogation memos. Leahy feared Bybee as a federal judge will "prove to be an ideologically driven conservative activist". Leahy had voted by Bybee because of Reid's endorsement and because "no one has called into question his ability and commitment to setting aside his views as a judge."
    LDS Republicans were unwavering in their praise of Bybee. "I am a personal friend," Hatch said before Bybee's confirmation last March. "I know his quality. I know what a good thinker he is."
    Hatch has led the GOP defensive in blocking Democrats' attempts to subpoena more records and to uncover the truth on the interrogation policy from the White House. Why??? John Yoo, who served as Hatch's general counsel on the judiciary committee in 1995 and 1996 assisted in writing the Bybee memo and was Hatch's deputy at the time,.
    "I know some of the people who actually rendered [the interrogation policy opinions]," Hatch said Wednesday. "They are top notch authorities in these areas. My colleagues might disagree with them, but they cannot necessarily refute them." 
    In total opposition to Hatch's loyal support of fellow LDS Judge Bybee, the White House, does refute the Bybee Memo. Anonymous senior administration officials who spoke to reporters on the condition they not be named confirmed the policy advice in the Bybee memo was undergoing drastic revisions.
    "We're scrubbing the whole thing," a senior Justice Department official told USA Today. "It will be replaced."

Promotion shows Bush’s take on torture

Published Wednesday, June 23, 2004

What a revelation to learn that the Department of Justice lawyer who wrote the infamous memo in effect defending torture is now a Ninth District U.S. Circuit Court of Appeals judge. It tells you all you need to know about the sort of conservative to whom George W. Bush is turning in his attempt to pack the federal courts.

Conservatives once were identified with protecting the rights of the individual against the unbridled power of government, but this is not your grandfather’s conservatism. The current brand running things in D.C. holds that the commander-in-chief is above all law and the ends always justify the means. This has paved the way for the increasingly well-documented and systematic use of torture in an ad hoc gulag archipelago for those detained anywhere in the world under the overly broad rubric of the "war on terror."

Those still clinging to the hopeful notion that photographic evidence of beatings, dead detainees, sexual degradation and threats of electric shock were all the work of a few twisted reservists aren’t reading the newspapers. Press accounts are following the paper trail up the chain of command to a heated and lengthy debate about how much cruelty constitutes torture inside the White House.

The Washington Post published on its Web site an internal White House memo from Aug. 1, 2002, that was signed by then-Assistant Attorney General Jay Bybee, which argued darkly that torturing al-Qaida captives "may be justified" and international laws against torture "may be unconstitutional if applied to interrogations" conducted under Bush. The memo then continued for 50 pages to make the case for the use of torture.

Was it as a reward for such bold legal thinking that only months later Bybee was appointed to one of the top judicial benches in the country? Perhaps he was anointed for his law journal articles bashing Roe vs. Wade and legal protection for homosexuals or for his innovative attack on the 17th Amendment to the Constitution, which provides for the popular election of U.S. senators. But it’s hard to shake the notion that his memo to presidential counsel Alberto Gonzales established Bybee’s hard-line credentials for an administration that has no use for moderation in any form.

This president has turned his war on terror into an excuse for undermining due process and bypassing Congress. For Bybee and his ideologue cohorts, however, the U.S. president is now more akin to a king, and legal or moral restraints are simply problems to be overcome later if anybody bothers to question the tactics: "Finally, even if an interrogation method might violate Section 2340A" of the U.S. Torture Convention passed in 1994, "necessity or self-defense could provide justification that would eliminate any criminal liability."

In fact, though, this was an argument of last resort for Bybee, whose definition of torture "covers only extreme acts ... where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. ... Because the acts inflicting torture are extreme, there is" a "significant range of acts that, though they might constitute cruel, inhuman or degrading treatment or punishment, fail to rise to the level of torture."

Bybee’s generous standard should bring comfort to the totalitarian governments that find the brutal treatment of prisoners a handy tool in retaining power or fighting wars. Even Saddam Hussein, who always faced the threat of assassination and terrorism from foreign and domestic rivals, can now offer in his defense Bybee’s memo that his actions were justifiable, on the grounds of "necessity or self-defense."

When confronted by the Democrats on the Senate Judiciary Committee with the content of Bybee’s torture defense, Attorney General John Ashcroft responded that the memo did not guide the administration. Yet, the Bybee memo was clearly the basis for the working group report a year later on detainee interrogations presented to Secretary of Defense Donald Rumsfeld. And if Bybee’s work was rejected as reprehensible, why was he rewarded - with Ashcroft’s deepest blessings - with a lifetime appointment on the judicial bench only one level below the U.S. Supreme Court?

Frighteningly, the Bybee memo is not some oddball exercise in moral relativism but instead provides the most coherent explanation of how this administration came to believe that to ensure freedom and security at home and abroad, it should ape the tactics of brutal dictators.


Robert Scheer is a columnist with Creators Syndicate.


http://www.washingtonpost.com/wp-dyn/articles/A54025-2004Jun19.html

http://news.findlaw.com/wp/docs/doj/bybee80102mem.pdf

(Full text of the 50 page legal opinion)

US commanders stop troops from protecting Iraqi torture victims

By James Conachy
12 August 2004

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Last June, senior US officers ordered American National Guard troops in Baghdad to withdraw from a prison where alleged insurgents were being subjected to sadistic torture by security forces of the newly installed interim government headed by Prime Minister Iyad Allawi.

The Oregon National Guardsmen came upon the scene of the torture and intervened to stop the abuse and protect the helpless victims. When word reached senior US officers of the Guardsmen’s intervention, the order quickly came down for the American troops to leave the scene and abandon the prisoners to their fate. The soldiers were ordered to say nothing of the incident.

The episode occurred on June 29, the same day that Washington officially installed Allawi and his interim government in power as the supposedly “sovereign government” of Iraq. In practice, Allawi had been acting since the end of May as the front man for the US occupation, and his cabinet had assumed control of Iraq’s Interior Ministry.

The US military’s intervention to protect the torturers and abandon their victims says a great deal about the American occupation of Iraq. It gives the lie to the claims that the installation of the interim government represents a “transition to democracy” in Iraq, and demolishes the official US position on torture at US-run prisons such as Abu Ghraib—namely, that any incidences of prisoner abuse are aberrations carried out by a few “bad apples,” and not the product of US policy decisions.

The June 29 episode was first reported on August 8 by the Oregonian newspaper, which published an extensive account based largely on testimonials from Guardsmen who were directly involved. The US soldiers, who had acted out of revulsion over the treatment of the prisoners and an instinctive impulse of human decency, were bewildered and angered by the order from above to hand the prisoners back to those who were savagely abusing them. (See original at: http://www.oregonlive.com/special/oregonian/
iraq/index.ssf?/base/frontpage/109196614530740.xml
)

The incident has been barely reported by the major US media.

The report in the Oregonian was based on the written testimony of Captain Jarrell Southall of the 2nd Battalion, 162nd National Guard Infantry—a middle school teacher in civilian life—whose account was supported by other members of the unit. The author of the article is Oregonian reporter Mike Francis, who was embedded with the National Guard unit.

A sentry on guard duty observed and photographed through his telescopic sight the scene of men in plainclothes beating blindfolded and bound prisoners on the grounds of the Iraqi Interior Ministry. The Oregonian has published the photographs. They show numerous prisoners with bright red wounds covering large parts of their body.

The sentry radioed his battalion headquarters to report the abuse. According to the statements of one anonymous soldier, the distressed sentry threatened to begin shooting the torturers if something wasn’t done.

According to Southall’s written account, the commander of the 2nd/162nd, Lieutenant Colonel Daniel Hendrikson, assembled a detachment of his troops and entered the compound in force. The Iraqi Interior Ministry personnel backed down in the face of the US troops.

The Oregon Guardsmen found dozens of prisoners, in various degrees of stress, in the interior ministry courtyard. They moved the men into the shade, cut them loose from their bindings, and provided them with water.

Southall wrote: “Many of these prisoners had bruises and cuts and belt or hose marks all over. I witnessed prisoners who were barely able to walk...” One prisoner, who had fresh bruises covering his back and legs, told the soldiers he was 14 years old.

US military police who arrived on the scene physically disarmed the prison guards and moved them away from the detainees. According to Southall, a “well-dressed obese man,” one of the Iraqi interior ministry personnel, attempted to tell Hendrikson that there “was no prisoner abuse and that everything was under control.”

Rejecting this claim, the Guardsmen searched the facility, leading them to “several small rooms within the building,” Southall recounted. “One room, about 20 by 20 feet squared, contained even more prisoners, all in the same sad shape as the prisoners found in the outer area. There were about 78 prisoners crowded in this little room, with no available furniture, no air conditioner, no water or food or restrooms available.”

In an office, the Guardsmen found a group of Interior Ministry personnel seated at a table. “There was a tightly bound and gagged prisoner at the feet of these men,” wrote Southall.

According to the Interior Ministry officers, the prisoners had been arrested three days before as part of a crackdown on crime in Baghdad, which had been ordered by Allawi. The Guardsmen were told by the Interior Ministry interrogators that the prisoners were “all dangerous criminals, and most were thieves, users of marijuana, and other types of bad people.”

Southall recounted that as the Guardsmen’s search produced further evidence of abuse and their anger rose, the prison guards began to get “defiant and hostile.” The US troops discovered within the complex “hoses, broken lamps and chemicals of some variety,” which they believed were being used to inflict the torture.

Hendrikson contacted his commanders in the Army First Infantry Division. To the shock of the Oregon Guardsmen, the order that came back to Hendrikson was to immediately withdraw his troops from the prison and return the custody of the prisoners to the interior ministry personnel. An unnamed soldier told Oregonian reporter Francis, “The guys were really upset.”

The Guardsmen do not know who in the US command gave the order to withdraw, and Hendrikson has thus far obeyed the gag order imposed on him by his superiors.

In response to questions from the Oregonian, the US embassy in Iraq confirmed that the incident occurred and issued a statement praising the National Guardsmen for “acting professionally and calmly to ease tensions and defend prisoners who needed help.”

The praise is utterly cynical. Not only were the soldiers ordered to stop protecting the prisoners and leave them in the hands of their tormentors, there is no report of an official protest by the US government to the Iraqi Interior Ministry, no suggestion of an investigation into the incident, and no indication that any of the torturers have been removed from their positions or charged with any wrongdoing.

The Oregonian report follows the allegations by two unnamed eyewitnesses, published July 17 in two Australian newspapers, the Sydney Morning Herald and the Age, that Allawi personally carried out the extra-judicial execution of six prisoners at the Al-Amariyah security center in Baghdad.

These charges against Allawi have been largely censored in the US media, in particular, by the New York Times and the Washington Post. Neither of these newspapers has reported the account by the Oregon National Guardsmen.

See Also:
Murder allegations against Iraq’s Allawi: an exchange of letters with the New York Times’ public editor
[3 August 2004]
US torture in Iraq, Afghanistan: Authorized at the highest levels
[15 June 2004]
“Bush and the Democrats are responsible for torture in Iraq”
[1 May 2004]

Torturing the Law
The Justice Department's Legal Contortions on Interrogation

By Kathleen Clark and Julie Mertus
Sunday, June 20, 2004; Page B03

Two years ago, while government interrogators were attempting to wring information from alleged al Qaeda members imprisoned at Guantanamo Bay, Cuba, and elsewhere, the Justice Department prepared a legal memorandum on the use of torture during interrogation. The CIA had sought guidance from the White House because it wanted to conduct more aggressive interrogations than those allowed before Sept. 11, 2001. As we now know, the White House in turn requested the legal opinion from the Justice Department. In August 2002, Justice's Office Of Legal Counsel, led by Jay S. Bybee, produced a 50-page memo that essentially said the president could authorize torture even though our laws and treaties prohibit it. Bybee reached this conclusion, quite simply, by distorting the law .

We often think of lawyers as advocates, such as courtroom lawyers who make zealous arguments that may or may not convince a judge. But the Department of Justice lawyers who wrote the memo on interrogation and torture were acting as advisers. As such, their responsibility was to advise their "client," the executive branch, as to what the law requires. Lawyers routinely provide clients with such "opinion letters" to help sort out whether proposed conduct is legal, illegal or somewhere in between.

The Justice Department memo assured the Bush administration of three things: First, that interrogators could cause a lot of pain without crossing the line to torture. Second, that even though the United States criminalizes torture and has signed a treaty outlawing it, interrogators could torture prisoners as long as the president authorized it. Third, that even if those interrogators were later prosecuted for engaging in torture, there were legal defenses they could use to avoid accountability.

Bybee's conclusions rest upon three stunning legal contortions, requiring no less than an entirely new definition of torture, a distortion of fundamental constitutional law and a new approach to the application of international law.

The first contortion redefines torture in a manner wholly divorced from U.S. and international practice. Bybee came up with what he called an "aggressive interpretation as to what amounts to torture," asserting that for an act to constitute torture, it must be of an "extreme nature" in that it "must inflict pain that is difficult to endure." His memo explains that "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The memo would, if applied, severely limit the possibility that mental pain or suffering can amount to torture, stating that "it must result in significant psychological harm of significant duration, e.g., lasting for months or even years." This extreme definition departs radically from both U.S. and international understandings of the prohibition against torture.

The Justice Department construction of torture also creates a truly remarkable "self-defense" exception for torture. It reasons that if a U.S. interrogator "were to harm an enemy combatant during an interrogation . . . he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network." An interrogator's actions, it says, would be "justified by the executive branch's constitutional authority to protect the nation from attack." This is utter nonsense. An individual cannot invoke the executive branch's authority to torture because the executive itself lacks that authority. There is no self-defense exception to torture, either by an individual or by the state. While there may be some debate around the edges concerning what constitutes torture, there is consensus on its basic elements, which distinguish torture from other forms of abuse. These elements are defined by the international Convention Against Torture, to which the United States is a party. They include: the infliction of "severe" pain and suffering with the intention of doing harm for a specific purpose (such as obtaining information during interrogations), carried out by "a public official or other person acting in an official capacity," such as in a prison.

By ratifying the Convention Against Torture in 1994, the United States committed itself to criminalizing torture, in addition to providing civil remedies for torture victims. The Bybee memo subverts that commitment by adopting an unsupported, narrow definition of torture. Under the convention, this country also undertook to prevent "cruel, inhuman or degrading treatment" that falls short of torture. There are no exceptions. And yet the Justice Department memo reads like an invitation to engage in exactly that kind of conduct.

The second contortion would take U.S. constitutional law back 800 years, to a time before the Magna Carta, and create an executive office that can act arbitrarily, beyond the control of Congress. The memo asserts that the president can act however he sees fit during war, even if U.S. law and international treaties prohibit such conduct. It zeroes in on a single constitutional phrase -- "The President shall be Commander in Chief of the Army and Navy" -- and boldly asserts that the president is all-powerful in things military. "The president enjoys complete discretion in the exercise of his commander in chief authority," it says, and "Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

But Bybee could have reached these conclusions only by ignoring the rest of the Constitution, including the numerous military-related roles that it assigns to Congress, such as making rules "concerning captures on land and water" and "for the government and regulation of the land and naval forces."

This way of thinking, which we have come to think of as the "absolute commander-in-chief argument" also flies in the face of years of Supreme Court precedent in which the court has repeatedly rejected expansive claims of unilateral control by the executive branch. In Youngstown Sheet and Tube Co. v. Sawyer, for example, the Supreme Court rejected President Harry S. Truman's unilateral attempt to take over steel mills during the Korean War. While the president has significant latitude in the conduct of foreign affairs, such latitude has been constrained by congressional legislation and judicial decisions. The Justice Department memo ignores this history.

The final contortion concerns the memo's overall assertion that the president is above international law. Nothing could be further from the truth. Under the Constitution, the president and members of the executive branch are bound to faithfully execute the law, including international law to which it has agreed. This is not optional.

The Convention Against Torture provides that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture." And Common Article 3 of the Geneva Conventions provides that the rights and duties concerning fundamental humane treatment apply whether a person detained is a prisoner of war, unprivileged belligerent, terrorist or ordinary civilian.

It's hard to believe that the memo was poorly researched, so it makes one wonder whether the Justice Department was being disingenuous. A lawyer who is arguing to a court is allowed to be disingenuous because it is up to the judge to evaluate that argument against the adversary's and decide what the law is. But a lawyer who is writing an opinion letter is ethically bound to be frank.

How could Bybee have written such a scandalous opinion? Lawyers who tell their clients what they want to hear -- rather than the advice they need -- are sometimes rewarded with career advancement. Last year, Jay Bybee was appointed to the U.S. Court of Appeals for the 9th Circuit.

There is a proud tradition of lawyers bravely telling clients not what they want to hear, but what the law requires. Judge Bybee's actions stand in stark contrast to the best traditions of the bar.

Authors' e-mails:kathleen@wustl.edu

mertus@american.edu

Kathleen Clark is a professor of legal ethics at Washington University in St. Louis. Julie Mertus is an associate professor and co-director of the ethics, peace and global affairs program at American University and the author of "Bait and Switch: Human Rights and U.S. Foreign Policy" (Routledge).

© 2004 The Washington Post Company

Memo on torture stokes ethics-versus-faith debate  By Peggy Fletcher Stack and Pamela Manson     The Salt Lake Tribune

    Dan Burk doesn't see how anyone with a conscience could tolerate, let alone defend, the use of torture -- even in extreme cases.
    But Burk, a law professor at the University of Minnesota, was especially incensed to discover that just such a defense was launched by a member of his own LDS faith.
    Jay Bybee, a devout Mormon who in 2002 was head of the Justice Department's Office of Legal Counsel, signed an August memorandum that year that said certain interrogation techniques could be used legally as long as the pain involved was less than that accompanying "serious physical injury, such as organ failure, impairment of bodily function or even death."
    If the intent is to gain information, not just to cause harm, the memo reasoned, these techniques fall outside the legal definition of torture forbidden by international law.
    The controversial memo, since disavowed by the White House, has sparked a lively Internet debate among LDS lawyers about whether Bybee violated his professional and religious ethics while writing it.
    Burk started the conversation last month when he posted a stinging critique on http://www.timesandseasons.org, which has frequent comments by lawyers who are members of The Church of Jesus Christ of Latter-day Saints.
    "I cannot believe that the practice of torture is acceptable to anyone who claims to be a disciple of Jesus Christ," wrote Burk. "At what point does a Latter-Day Saint governmental official have, like Mormon of old, the moral obligation to resign his position rather than participate in the conduct of his superiors?"
    Burk's incendiary comment produced more than 100 responses, with pro and con arguments built on everything from New Testament mandates and Book of Mormon stories to the philosophers Immanuel Kant and John Stuart Mill.
    Fred Gedicks, a Brigham Young University law professor who has known Bybee for 30 years, doesn't necessarily agree with the memo's conclusions, but he believes the bloggers misunderstand Bybee's motives. The timing of the memo indicates it was aimed at dealings with al-Qaida in the aftermath of Sept. 11 and the Afghanistan war, he said.
    The anti-torture comments mirror earlier discussions about the problem of unilateral disarmament, Gedicks says. "It's fine to talk about the teachings of the Savior about peace, but when the other side is not living those teachings, there are real risks by living them unilaterally."
    He adds: "I don't think my answers about torture would have been the same as his, but the idea that the memo shouldn't have been written at all is not compartmentalization. It ignores the new reality." Nationally, lawyers have decried the memo as chillingly narrow. While acknowledging his exact assignment is unknown, critics assail Bybee for failing to include ethical, moral and even practical context.
    Michael K. Young, George Washington University law professor who is the incoming president of the University of Utah, said he took such a broader approach when he was a deputy legal adviser in the State Department during the first Bush presidency. He not only told government officials what they could do legally, he said, but also told what they should do morally.
    "You can often go beyond that and say that while technically one is prepared to do this, there are a whole lot of reasons you don't want to do this, some of them morally based," said Young, who is also LDS.
    It is not unethical for a lawyer to ignore the religious or ethical implications when giving advice to clients, says Professor Michael Ariens of St. Mary's University School of Law in San Antonio, Texas. "The real question is, are you sacrificing something in the relationship by ignoring those values? Would advice be better by saying this decision has profound legal and moral consequences?"
    For Mormon lawyers the memo is more than theory. It's personal.
    Bybee, now a judge on the 9th U.S. Circuit Court of Appeals, earned his undergraduate and law degrees from LDS Church-owned Brigham Young University. He served a two-year mission for the church in Chile.
    He's had a fascination with biblical laws, he told Meridian Magazine, an independent LDS online magazine.
    "People in the Old Testament were absolutely devoted to the law of Moses and required exact obedience to it," he said. "While we should admire their zeal to follow the rule of law, we nevertheless have to recognize that without understanding the spirit or purpose of the law, there aren't enough rules in the world to make a person be good."
    Bybee has declined to comment on the memo. Young says he doesn't pass judgment on Bybee's motives or arguments, but at a BYU conference last year suggested Mormon lawyers would be better off if they connected their professional and religious selves.
    "It does matter that we are LDS and academics at the same time," he told a roomful of BYU lawyers in his keynote address.
    And that is what many of the Mormon bloggers were looking for, too. They appealed to LDS scriptures to build their arguments.
    There's Jesus' admonition that "inasmuch as ye have done it unto the least of these, my brethren, ye have done it unto me," Burk wrote to The Salt Lake Tribune.
    The Book of Mormon, which Latter-day Saints believe is the record of an ancient civilization in the Americas, tells of the destruction wrought by "warfare and genocide," Burk wrote. "The record repeatedly warns against the human propensity to develop a taste for violence and atrocity."
    Others argue worst-case scenarios. Suppose there is a ticking time bomb set to go off in an orphanage and troops capture the bomber. Wouldn't physical torture be worth it if you get information to abort the tragedy?
    "Does the Gospel commit us to a particular ethical approach?" wrote attorney Nate Oman on the timesandseasons blog. "For example, torturing the guy with the information in the ticking-bomb case may well be morally justifiable if we are utilitarians. It is probably not morally justifiable if we are Kantians. Dan seems pretty confident that good Mormons must be Kantians. On the other hand, one can point to fairly utilitarian moral claims in scripture."
    Kaimipono David Wenger, a New York City lawyer who regularly participates in the Mormon blog, found himself in the middle of the debate.
    "I would personally be uncomfortable writing a memo on how the administration could legally justify torture of people, but I don't think it's against the tenets of our faith," Wenger told the Tribune. "One might believe that the value of ready access to torture-obtained intelligence outweighed the negative."
    For Wenger, "it's something you would have to work out with God."
    pstack@sltrib.com
    pmanson@sltrib.com

 

Former Utah prison boss defends his rebuilding mission in Iraq By Greg Burton      The Salt Lake Tribune

    The subject of a New York congressman's repeated criticism and a Department of Justice internal investigation into U.S. prison policy abroad, Utah prison executive O. Lane McCotter on Thursday defended his record on inmate rights and the process by which he was selected by U.S. Attorney General John Ashcroft to help rebuild Iraq's prison system.
    "I have always acted in fairness and have done nothing that would even begin to constitute inhumane treatment to anyone or the violation of inmate constitutional rights," McCotter said in a series of written answers to questions submitted by The Salt Lake Tribune.
    For the first time, McCotter outlined how he says the Bush administration picked him for the rebuilding mission in Iraq.
    He also clarified his role in securing spots for two of three other Utahns selected to join the small team of U.S. prison officials who reopened Iraqi prisons such as Abu Ghraib.
    McCotter and former Utah prison boss Gary DeLand spent the fall of 2003 opening Abu Ghraib, but they left Iraq days before the military took control of the facility and a month prior to the torture of prisoners there.
    While McCotter and DeLand were in the United States when the torture began, two other former Corrections officials from Utah, Terry Bartlett and Richard Billings, were just arriving in Iraq. None of the four Utahns, however, has been implicated in the military orders or actions that were exposed when photographs taken inside Abu Ghraib were published by American journalists.
    Of several ongoing Abu Ghraib-related investigations in Congress, Sen. Charles Schumer, D-N.Y., is focusing his attention on Ashcroft's selection of McCotter, DeLand, Terry Stewart, formerly of the Arizona Department of Corrections, and John Armstrong, the former head of Connecticut's Corrections Department. Schumer believes the four, because of their roles in prior prisoner abuse scandals, should have been disqualified from the mission in Iraq.
    Around the time of the fall of Baghdad in April 2003, U.S. Department of Justice officials began assembling a list of people who were willing, and had the expertise, to install Western-style courts and judiciary, police squads and prisons while working in a war zone.
    McCotter's name appeared on two lists, he says he was told: one prepared by the Justice Department's Federal Bureau of Prisons (BOP) and the other by the National Institute of Corrections, which is an agency under the BOP and its director is appointed by Ashcroft. There were 10 names altogether on the lists, he said.
    "I have no direct knowledge of specifically why I was recruited by the DOJ, other than the fact my record of military service in the field of corrections, coupled with my leadership of three state prison systems following my military career is well-known and highly respected by my professional colleagues around the country," said McCotter, a former Corrections director in Texas, New Mexico and Utah, where he now is employed by the country's third-largest private prison company, Centerville-based Management & Training Corporation.
    During the end of McCotter's military service, he spent two years as commandant of the military's maximum security prison at Fort Leavenworth, Kan. McCotter was at the facility in the early 1980s, which was the same time U.S. Secretary of State Colin Powell was deputy commander of the Kansas Army base. Also working at Fort Leavenworth at the time, as McCotter's security director, was Bartlett, who followed McCotter to Utah as his second-in-command and then to Iraq, where Bartlett continues to assist in the reconstruction of Iraq's prison system and the training of civilian Iraqi guards, just as McCotter had.
    "Terry Bartlett was recruited [to Iraq] at my request by DOJ for the replacement team that arrived in Iraq in late September 2003," McCotter said. "He presently still serves on the DOJ team in Iraq, to date."
    Billings was McCotter's SWAT commander at the Utah Department of Corrections but he did not recruit Billings for Iraq, he said. "[H]owever, I was asked and gave a positive recommendation to DOJ for his selection." Billings, now in Greece working on the 2004 Summer Olympic Games, says he did not witness prisoner abuse while in Iraq. Bartlett has been unavailable for comment.
    gburton@sltrib.com

Hatch under pressure



    Trying to run a worldwide war on terror unfettered by Congress and the courts or the wisdom of the Constitution is clearly more than the Bush administration and its defenders can handle. Utah's Orrin Hatch is not the only one who is clearly starting to crack under the pressure.
    Hatch has yet to crumble to the depths reached Tuesday by Vice President Dick Cheney, who summed up an informal Senate floor argument with a Democratic critic by uttering the witty riposte, "f--- yourself." But he's getting close.
    Last week, confronted by previously docile Senate Democrats who are finally taking seriously their constitutional duty "to make rules for the government and regulation of the land and naval forces" (Article One, Section Eight), the normally decorous Hatch derided a motion to subpoena relevant documents from the Justice Department as "a dumbass thing to do."
    Thursday, the cognitive dissonance of ignoring more than 200 years of constitutional principles, American statutes and international treaties apparently fused a few more of Hatch's circuits. The senator expected his colleagues to simply accept his word that interrogations he recently witnessed at a newly se