Torture Memo Author, Now a Federal Judge, Still Justifying Torture

By Andrew Cohen

Jay Bybee -- who signed off on waterboarding as a Justice Department lawyer -- ruled last week that the government should be immune from liability for torture.

jaybybeeban.jpg
Evan Vucci/AP

Frank Rich is absolutely right. While a relatively small group of civil libertarians, journalists, and lawyers fret over the Obama Administration's "targeted killing" program, and the risible judicial and legislative acquiescence to it, the fact of the matter is that the vast majority of Americans either support the broad use of drone strikes abroad or don't know enough about the issue to have an informed or passionate opinion about it. Those of us sounding the alarm should accept the sad fact that America really doesn't give a crap about how much due process Anwar al-Awlaqi received before he was blown up.

To hundreds of millions of people, whose lives are too busy or jumbled to read "white papers" or OLC memos, the dubious legal justifications the Justice Department's lawyers have ginned up in support of the administration's "lethal operations" are as irrelevant as are the dubious legal justifications many of those same federal officials have offered for keeping scores of terror-law detainees at "Camp Justice" at Guantanamo Bay, Cuba. We don't want to hear the details -- just take care of it, the American people have consistently said to officials of two successive administrations.

Take Thursday, for example. Following a memorable day in which President Obama's choice to head the Central Intelligence Agency was questioned at length by members of the Senate Intelligence Committee, a day during which John Brennan was asked (lamely, but still) about the drone program, the extrajudicial killing of Americans, and waterboarding as torture, CBS News led its evening broadcast with news of a snowstorm heading toward the East Coast. NBC News and ABC News led their broadcasts with news of an unusual manhunt in California -- cops looking for a rogue cop.

At least the networks got around to covering the Brennan hearing. The same can't be said for an atrocious prison ruling last week out of California authored by 9th U.S. Circuit Court of Appeals Judge Jay S. Bybee. You may remember Bybee as the "torture memo" author who did not disclose that fact to members of the Senate Judiciary Committee during his 2003 confirmation hearing.* Today, life-tenured, free from any accountability for one of the most shameful legal episodes in our nation's history, Judge Bybee is still leaving his mark on the law of torture -- still justifying its use and protecting those who torture in our name.

Contraband Watch

On January 31st, in a 2-1 ruling authored by Judge Bybee, the 9th Circuit reversed a federal trial judge's ruling that had permitted a prisoner's civil rights lawsuit to proceed a little further toward trial. The prisoner, Rex Chappell, had alleged that he was tortured by his guards when he was placed on a seven-day "contraband watch." The defendants in the case, federal prison officials, argued that the case had to be dismissed long before trial because as a matter of law they were entitled to immunity from such lawsuits.

Here is the link to the ruling in the case styled Chappell v. Mandeville. From the ruling:

Rex Chappell was a prisoner in California State Prison, Sacramento when his fianceé, Philissa Richard, came to visit him on April 28, 2002. When Richard entered the prison facilities she was wearing a ponytail hairpiece; the next day the hairpiece was discovered in a trash can near the visiting room. Prison officials then searched the entire visiting area and found spandex undergarments in the women's bathroom. Both the hairpiece and the undergarments tested positive for cocaine residue. Richard admitted that the hairpiece was hers, but an investigation did not conclude whether the undergarments also belonged to Richard. A background check revealed that Richard had a long history of felony offenses, including numerous drug offenses.

Prison staff conducted a search of Chappell and his prison cell, during which they notified Chappell that they believed that someone had introduced drugs through a hairpiece. The officials discovered three unlabelled bottles of what appeared to be eye drops in Chappell's cell. The liquid in the bottles tested positive for methamphetamine.

So, on April 30, 2002, Chappell was placed on "contraband watch." The text of the ruling tells us next precisely what that means.

Contraband watch, also known as a "body cavity search," is a temporary confinement during which a prisoner is closely monitored and his bowel movements searched to determine whether he has ingested or secreted contraband in his digestive tract. Under prison procedures, the prisoner is first searched and then dressed so as to prevent him from excreting any contraband and removing it from his clothing. The prisoner is placed in two pairs of underwear, one worn normally and the other backwards, with the underwear taped at the waist and thighs. The prisoner is also placed in two jumpsuits, one worn normally and the other backwards, with the suits taped at the thighs, ankles, waist, and upper arms.

The tape on both the underwear and the jump suits is not meant to touch the skin; it is used to close off any openings in the clothing. The prisoner is then placed in waist chain restraints, which are handcuffs that are separated and chained to the side of the prisoner's waist. This prevents the prisoner from being able to reach his rectum. The waist chain restraints are adjustable and can be lengthened if necessary. The prisoner is then placed in a surveillance cell where prison staff watch the prisoner at all times.

The lights are kept on in the cell to allow staff to see the prisoner. To prevent the inmate from concealing contraband, the cell does not have any furniture other than a bed without a mattress. The prisoner is given a blanket, and receives three meals a day and beverages. When the prisoner needs to defecate he must notify the prison staff who will bring him a plastic, moveable toilet chair. Once he uses the chair, the staff will search the waste to determine if it contains contraband.

Chappell generally confirmed that these policies were applied to him while he was under contraband watch. In addition to these procedures, Chappell claims that he was also placed in ankle shackles, and chained to the bed. He complains that the waist restraints were not loosened for meals, forcing him to "eat [his] food like a dog; the temperature in the cell was very high; the cell was unventilated; and the lights were "very bright." Chappell alleged that the conditions "did in fact torture [him] mentally" and he felt like he "deteriorat[ed] mentally" during contraband watch. After having three bowel movements that did not reveal contraband, Chappell was released from contraband watch on May 6, 2002.

The Lawsuit

Chappell sued, claiming that his Eighth Amendment right to be free from "cruel and unusual" punishment had been violated by the "contraband watch" and that he had a due process right to be heard before he was placed on the watch. The second argument Chappell made was weak. But the first one raised profound questions about how far prison officials can go in their zeal to secure their facilities from drugs -- and how far the courts can go in providing some oversight over those prison officials when their treat inmates the way Chappell was treated.

Prison officials said they were immune from the lawsuit because the United States Supreme Court has long recognized that government officials are protected from civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." To be held liable, a prison guard has to have "fair warning" that his actions are unconstitutional and if he instead "reasonably believes" that his conduct complies with the law he may be protected by the courts (citations omitted).

You don't need a law degree to read the above language and immediately understand that the Supreme Court, and lower federal courts, have consistently construed these governmental immunity principles to broadly protect prison guards and to broadly deny even the reasonable claims of inmates. Close cases almost always turn in favor of the guards, not the prisoners, who rarely are able to get their cases even to trial. Congress acquiesces to this legal imbalance because the prison lobby is powerful and the inmate lobby, obviously, is not.

The Judge

The same year that Rex Chappell was being treated like a dog by his guards, Jay Bybee was an assistant attorney general in the Bush Administration. One of his jobs was to identify legal justifications for what his colleagues wanted to do to terror detainees who had been captured, or who would be captured, in the newly-minted war on terror. As a signator of the so-called "torture memos," Bybee was directly responsible for the policy that begat, among other political and legal disasters, the torture of Iraqi prisoners at Abu Ghraib.="#p=1">

Here's how the editorial writers of the New York Times once (in 2009, when the scope of Bybee's work became clear) described the memos and Bybee's role in writing them:

Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect -- all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners.

In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary.

These memos are not an honest attempt to set the legal limits on interrogations, which was the authors' statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country's most basic values.

Read anything familiar in that passage? Justifying the official, systemic use of torture -- and then granting torturers legal immunity for it -- was the essence of Bybee's most important job during his brief time in the Bush Administration. Those two components also are the essence of the pending case brought by Rex Chappell. If Judge Bybee had any sense of shame, or even just a sense of regret, he long ago would have recused himself from this case, recused himself under federal judicial ethics rules which state that a judge "shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."

But Judge Bybee did not recuse himself from the Chappell case. Even though it should be clear to any reasonable observer that Judge Bybee long ago came to his own conclusions about the efficacy of torture, and the concomitant need to immunize torturers, Judge Bybee instead made sure he was around to make sure that Rex Chappell would never be able to bring his torture allegations to a jury (never mind get a jury verdict). This is just another one of the prices America continues to pay for "looking forward," not back, on our torture policies.

The Ruling

To deny Chappell's claims, Judge Bybee broke down the allegations. First, he addressed the issue of the continuous lighting, which prison officials claimed was necessary to ensure that Chappell, chained, would not somehow hide any contraband (which, it turns out, he did not have) that he was defecating out of his body. In the majority's view, it was not necessary to determine whether Chappell's treatment was unconstitutional on its merits. It was enough that the guards did not have any reasonable reason to believe it was. Judge Bybee wrote:

Since, at the time Chappell's contraband watch took place, no court had ruled on whether contraband watch constitutes a legitimate penological purpose that would justify continuous lighting, and Chappell was subjected to continuous lighting for only seven days and did not claim that he was deprived of sleep or intentionally kept awake, [prison officials] Mandeville and Rosario did not have fair notice that their actions were unconstitutional.

Next, Judge Bybee rejected the idea that Chappell's guards should have known that depriving the inmate of a mattress for seven days violated his Eighth Amendment rights. Then, he ruled that the trial judge, who in turn had adopted the findings of a magistrate judge, had erred when he had declared that the combined conditions of Chappell's confinement "had the 'mutually enforcing effect of sleep deprivation that any reasonable officer would know compromised unconstitutional conditions of confinement.'"

How did Judge Bybee justify this conclusion? "Some conditions of confinement may establish an Eighth Amendment violation 'in combination' when each would not do so alone," he conceded (emphasis in original). "But," he added, "this only applies when the conditions 'have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth or exercise -- for example, a low cell temperature at night combined with a failure to issue blankets." Then the judge wrote:

Chappell has not alleged the deprivation of any such need here. He did not specifically claim that he was sleep deprived during the contraband watch, but only that he was "deteriorating mentally" and had to "attempt to sleep that way."

This is how a federal appellate judge, who once wrote memos which justified the torture of terror detainees and the need to immunize officials who engaged in the torture, came to conclude as a matter of law that a man shacked at his wrists and shackled by his ankles to his bed, without a mattress, in a cell lit continuously for seven days, who was forced to eat his food like a dog because of his shackles, did not have a constitutional right to present the evidence of this confinement to a jury.

The Dissent

There was a dissent, written by 9th U.S. Circuit Court of Appeals Judge Marsha Berzon, an appointee of Bill Clinton, who must have been mortified at the cavalier manner in which the majority dismissed Chappell's claims. She wrote:

On this record, there are disputed issues of fact concerning: (a) the impact of the lighting, in combination with other conditions (e.g., lack of a mattress, waist restraints, etc.), on Chappell's sleep; and (b) the legitimate need for a twenty-four hour bright light in Chappell's cell (as opposed to a dimmed light) for surveillance, given all the other restrictions on his movement.

We resolve all factual disputes and draw all reasonable inferences in favor of Chappell, the non-moving party, and "look at the purely legal question of whether the defendant[s'] alleged conduct violated [Chappell's] clearly established constitutional rights...."

But contrary to the majority's suggestion... officials do not enjoy qualified immunity simply because the precise facts at issue in their particular case have not been addressed previously. Officials can "still be on notice that their conduct violates established law even in novel factual circumstances." If new facts alone triggered qualified immunity, then officials would rarely if ever be held accountable in cases involving "fact-driven" claims, such as the Eighth Amendment claim at issue here.

We therefore must begin with what was the clearly established Eighth Amendment law regarding prison conditions at the time of Chappell's contraband watch, and then proceed to determine whether a reasonable prison official could have considered the conditions of Chappell's contraband watch constitutional in light of those precedents.

In April-May 2002, it was clearly established that it is unconstitutional to cause a prisoner harm by subjecting him to constant lighting.... Moreover, it was clearly established law that conditions having the mutually reinforcing effect of depriving a prisoner of a single basic need, such as sleep, may violate the Eighth Amendment [citations omitted by me].

Postscript

Because of the holding, and because of the judge who wrote it, this is a case that cries out for en banc review by the 9th Circuit. Because if this ruling is allowed to stand it will mean that the warped mentality that wrought the torture memos has been transplanted, in the form of Judge Bybee, to domestic criminal law, to non-terrorism cases involving American prisoners who, we all can agree, are supposed to have stronger constitutional rights than the men and women who Jay Bybee once authorized to be tortured.

Those who will defend this result, and thus Judge Bybee's ruling, no doubt will declare that the judge was simply applying the skewed balancing test that the Supreme Court (and Congress) long have authorized in these prison lawsuit cases. Fair enough. It's not all Judge Bybee's fault. But, as Judge Berzon pointed out in her dissent, Judge Bybee contorted legal precedent to block this case from proceeding toward trial. It's unjust enough that prisoners like Chappell rarely can get their cases heard by juries. It's even worse when judges take broad immunity principles and extend them to the absurd length seen here.

America never wanted a debate about the torture of foreign terror suspects like Khalid Sheikh Mohammed. But American prisoners like Chappell -- and for that matter the men at the federal prison facility in Florence, Colorado -- also claim torture, alleging levels of systemic abuse and mistreatment that warrant serious oversight by Congress and an honest review by our federal courts. What about that debate? Oh, that's right. I forget. The snow has started to fall. And the airports are closing. And there's a cop on the loose in the mountains out West.


*In fact, you could reasonably argue that Bybee's circuit court nomination by President George W. Bush, who at the time did know that Bybee had authored perhaps the worst of the torture memos, was the most pernicious act of a most pernicious administration, an act even more duplicitous than the false assertions about weapons of mass destruction in Iraq.

This article available online at:

http://www.theatlantic.com/national/archive/2013/02/torture-memo-author-now-a-federal-judge-still-justifying-torture/272998/