Judge Jay Bybee should resign from the 9th U.S. Circuit Court of Appeals

JAY Bybee has been a judge of the United States Court of Appeals for the 9th Circuit since 2003. We believe he should resign.

President George W. Bush appointed Bybee as a reward for his service in the Office of Legal Counsel in the Department of Justice, where he was an assistant attorney general.

We now know the full nature of his service. In August 2002, Assistant Attorney General Bybee signed two memorandums providing legal cover for our government's use of torture against persons seized in the "War on Terror."

Bybee's first legal memorandum concluded that the prohibition against torture reaches only the most "extreme" acts. Vice President Dick Cheney, Defense Secretary Donald Rumsfeld and others relied upon this conclusion to endorse actions now widely condemned as war crimes.

But Bybee went far beyond merely putting a scholarly gloss on criminal misconduct. The Obama administration recently released Bybee's second torture memo, providing chilling insight into the fear- and pain-inducing interrogation techniques used against captured al-Qaida operative Abu Zubaydah.

In his memo, Bybee ratified severe interrogation techniques, including waterboarding, face slapping, wall-slamming and placing a detainee inside a cramped confinement box with live insects said to be poisonous. After a CIA briefing on each method, in specific and gruesome detail, Bybee knew exactly how these techniques were inflicted on an individual detainee, several times per day, over a period of several weeks. Yet he concluded that the repeated use of these interrogation methods does not constitute the crime of torture under federal law.

All lawyers take an oath to uphold the rule of law. Even a private lawyer may not advise a client on how to commit a future crime. But Bybee was not acting as a mere private lawyer advising a private client, and his opinion does not involve conduct undertaken merely for his own financial gain. As assistant attorney general, Bybee had a higher calling.

He authored these memorandums to provide legal guidance to the highest officials in the executive branch. He knew that his justifications of waterboarding and other tortures gave these officials legal license to engage in specific acts against a specific individual — acts that flouted this country's commitment to the Constitution's prohibition against cruel and unusual punishments, its treaty obligations and human-rights laws.

Bybee's torture memo casts substantial doubt on whether he could fairly and impartially uphold fundamental constitutional rights in a case involving an individual's claim of physical abuse at the hands of state or federal law enforcement. Simply put, he did not recognize heinous torture when he saw it.

His endorsement of these interrogation methods also calls into question his fitness to serve as a federal judge because he has encouraged criminal misconduct and has undermined public confidence in the integrity of the judicial system. Judge Bybee should resign from the 9th Circuit Court of Appeals.

One of the hallmarks of our constitutional structure of government is an independent judiciary. The Constitution sets a necessarily high standard for removal of a federal judge, requiring conduct amounting to "high crimes and misdemeanors." But there is ample reason for inquiry into whether Bybee's endorsement of criminal misconduct or his statements to the Senate during his confirmation process may meet that high standard. If he will not resign, these inquiries should be pursued.

As lawyers, we have a special role in preserving the integrity of our system of justice. Silence would only serve to make us complicit in the wrongs of those entrusted with preserving the rule of law. We ask our colleagues, our bar associations and our legal professional organizations to call for Judge Bybee's resignation or removal from the 9th Circuit Court of Appeals. Removing a judge who has endorsed torture would be a small but necessary step in restoring the American justice system to its rightful place among civilized societies.

Michael King, Howard Goodfriend, and Kenneth Masters are appellate attorneys practicing in Seattle. Helen Anderson, Robert Aronson, Phillip Buri, Neil Fox, Phillip Ginsberg, Julia Ann Gold, Stuart Jay, Kenneth S. Kagan, Keith Loveless, Sylvia Luppert, Deborah Maranville, Ann Pearl Owen, Michael Schein, Ronald C. Slye, Catherine Wright Smith, John Strait, Lea B. Vaugn also support this statement.