I was at Cal’s School of Law this morning to cover arguments to a 9th U.S. Circuit Court of Appeals panel in the federal civil rights lawsuit brought against San Francisco and its police department in the “fajitagate” case. Sitting on this three-judge panel was Circuit Judge Jay S. Bybee, an Oakland native who maintains his chambers in Las Vegas.
As John Roemer reported in Monday’s edition of the Daily Journal legal newspaper, attorney Dennis Cunningham, representing plaintiff Jade Santoro, filed a motion last Thursday asking Bybee to recuse himself on the basis of an August 1, 2002 memo he signed while serving as the assistant attorney general in charge of the U.S. Justice Department’s Office of Legal Counsel.
That memo narrowed the definition of torture, concluding “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.” It also concluded that for purely mental pain to constitute torture it “must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”
President Bush announced Bybee’s nomination to the 9th Circuit bench in May 2002 and sent it to the Senate in January 2003; the Senate confirmed him that March. The Washington Post broke the story on the leaked “Bybee memo” — reportedly written in large part by Deputy Assistant Attorney General John Yoo, now a Cal law professor — more than a year later, in June 2004.
Cunningham’s motion argued Bybee shouldn’t hear Wednesday’s case involving police officers with a history of excessive-force accusations because “unnecessary, and gratuitous, and so often sadistic, uses of force” are among “domestic forms of torture.”
Bybee issued an order last Friday refusing to recuse himself; Cunningham filed another motion Monday asking the court to disqualify Bybee, but Senior Circuit Judge John Noonan and Circuit Judge Sidney Thomas — the other two judges on today’s panel — denied that motion Tuesday.
After hearing the case Wednesday, the panel took questions from the student audience; one young man asked whether it’s possible to predict a judge’s actions by noting the president by whom he or she was appointed. The three judges’ consensus was that it’s not, and Bybee volunteered essentially that having a lifetime appointment means never having to say you’re sorry if your rulings don’t hew to the philosophy of the president who appointed you.