Mormon Law 2009 Year in Review

Although it is not a court case in the United States on August 24, 2009, Jay Bybee, a Mormon, BYU grad (under and law school), a sitting judge on the 9th Circuit Court of Appeals, had his August 1, 2002 memo advocating torture released. The memo advised that it was legal to utilize waterboarding, walling, cramped confinement, insects in confinement boxes and other torture practices. Makes me proud to be a Zoobie.

In addition to besmirching the premier church university, Bybee finds himself under investigation by the Office of Professional Responsibility and there have been calls for Bybee’s impeachment. Also, a Spanish Court appears to be pursuing Bybee on war crimes charges. The most recent update on the war crimes trial I could find was in September of 2009 and the judge was proceeding with the case.

Frankly, I think this is the top Mormon related legal story of the year.

Jesus wants me to be a sunbeam and waterboard terrorists.

Well you don’t go to court to get rewards for righteousness! This article is another attempt of masking all the good the church has done in the last year with the stains of an imperfect society. Even the Celestial Kingdom had its taste of evil when Lucifer reared his ugly head. What good does it do to focus on negative publicity? For example, what good would it have been to focus so much on why and how Lucifer fell and whose responsibility is must have been for his demise? That catastrophe in heaven or the wrongs committed in the Lord’s church shouldn’t make Heavenly Father or His church a target for continued negative publicity. Remember, Lucifer was a very high ranking angel in heaven. This would have been the equivalent of someone in the quorum of the twelve going bonkers. If someone in those days were to create a forum in heaven speaking about all the negative aspects of God’s plan, which lead His high ranking angel to rebel against Him I am sure that would had been about as ridiculous as this article is. If I am on an anti-mormon site, please let me know. I feel like there are more negative aspects about the church and its leaders portrayed on this site than anything else.

Celestial—the beauty of this site is that you can post your comments telling us how bad we are and we like your comments just like all the others. The variety of comments here provide a nice rainbow of ideas.

Ulysses, putting a guy in a box with a bug is not “torture” under the United States Code.

Bybee’s job, as a lawyer, was to state what the law was. He did that. You don’t like what he found, I take it. Hate the game, not the playa.

“we like your comments just like all the others. ”

Hmmm. They keep deleting mine though.

#4 “putting a guy in a box with a bug is not “torture” under the United States Code.”

It is torture everywhere else or at least in any civilized county.

That has to be extremist talk, to think that putting someone in a box, probably in a too small box, and throwing bugs in there to crawl around him isn’t torture?. Bizarre.

And I’d agree with #1, Baybee should at least be considered as a Mormon related legal story.

#6: If by “extremist,” you mean “contemptuous of shallow moral vanity,” then I’ve got no problem with that.

You’ll concede that the Bugs in a Box trick doesn’t inflict “severe physical pain,” especially if (as Bybee insisted) you use a nice, tame little caterpillar and not a psycho death hornet. So we’re left with the possibility that it might constitute “severe mental pain,” the other side of the relevant statute. Does it? Let’s go to the text:

“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

Nothing in there about giving somebody the heebie-jeebies with a caterpillar. If Joe Terrorist has a phobia of bugs, then maybe he should have thought of that before picking mass murder as a career choice.

You are either for the rule of law — that is, the law as it exists, not as you’d like it to exist — or you are not. I have no patience for people who fantasize about criminalizing political disagreements.

Pow! that was nice…

Thomas #7,

Why wouldn’t telling a prisoner that you are putting a poisonous bug in his cell or box or whatever fall within A) “threatened infliction of severe physical pain or suffering” and C) “the threat of imminent death” that you cited?

#7 Thomas: “If Joe Terrorist has a phobia of bugs, then maybe he should have thought of that before picking mass murder as a career choice”

Excuse commonly used to justify torture.

I believe the guards at Abu Ghraib also thought that way and considered, for example, holding prisoners by a leash as non-torture, since it’s not “severe physical pain” at first. But surely after 4 hours with that leash on or in an uncomfortable small box you do actually experience “severe physical pain” would you not?

I personally find it somewhat disturbing that you would try to justify the mistreatment and torture of prisoners. I used to think that America was better than that, as George Washington once claimed, but then again you still have that barbaric death penalty and just about anyone can keep a gun, even if its an M16 right? America has simply become a violent society that is resembling more and more those days of Noah. So maybe it is me that is wrong here and America, thanks to citizens like you, is simply not better than that.

Maybe soon you can get a ruling Junta to fix things up and eliminate all terrorists? After all a Junta would be much more efficient than any civilian authority, right?

Interesting topic and fun read.

The fourth mentioned the LDS Church in its facts but did not fall into this pattern. It involved a plaintiff who claimed that his colleagues were harrassing him, by teasing and name-calling, and by signing him up for visits from Mormon missionaries and to receive Nazi literature. McWhorter v. Miller, Einhouse, Rymer & Boyd, Inc., 2009 WL 92846 (M.D.Fla. January 14, 2009).

I haven’t read the case but from the summary it sounds to me that the Church or Mormons were not involved in this case at all but rather the (non-Mormon) defendants signed the plaintiff, whom they were teasing, up for visits from the Mormon missionaries as a practical joke in addition to sending the plaintiff Nazi literature. If that is the case, then the original post slightly obscures this by placing the case in the same paragraph with employment discrimination cases in which Mormon defendants are being accused of discrimination or harassment against non-Mormon plaintiffs in the workplace. On a quick read, such placement makes it sound like there was a Mormon employer or Mormon colleagues who sent the plaintiff Mormon missionaries and Nazi literature.

We used to write friends’ names in all the time on temple square asking for missionaries to visit “us”.

#9: The Bybee memo stated that if a terrorist was told that a stinging insect would be placed in the box, the interrogator would have to assure him it was just a garden-variety stinging bug (a bee, for instance), and not the kind that would cause severe pain or death.

While some people might find this kind of argument uncomfortably hair-splitting, I have yet to read a convincing argument that it is not legally correct. That’s the basis for my anger with people who’d like to put Bybee on trial: It shows a lack of respect for the rule of law, and an eagerness to set up kangaroo courts.

#10: Carlos, you will of course understand that I (and the 60% of Americans who agree with me) are not in the least troubled by your being “disturbed” by our thinking. We are reinforced in our confidence that we can safely ignore you, by your barbaric refusal to do justice to murderers, your spotty grasp of the facts (no, you can’t go down to the corner store and buy an M-16), and the ridiculous idea that America has become more “violent” in recent years. (More violent than the America that incinerated whole cities and their inhabitants in the 1940s? More violent than the America of George Washington who hanged British officers caught out of uniform, and ordered the wholesale destruction of Iroquois villages? Violent compared to what? The only portions of America that have increased in violence, are those demographics which embraced the “radical chic” liberals’ exaltation of rage, alienation and aggression as the only authentic response of the purportedly oppressed — and even those groups’ violence has trended generally downwards for the past quarter century.)

The majority of Americans have thought this matter through (with far greater nuance than you bring to the table) and concluded that while there are some things that not even the objective of preventing terrorist massacres could justify (we would not, for example, countenance threatening to kill a terrorist’s child to make him talk, ruat coelum), taking all things into account — the threat to be avoided, the utility of coercive interrogation in averting it, the distinction in international law between lawful and unlawful combatants — applying moderately coercive interrogation tactics to known terrorists is morally preferable to allowing them to kill us. We respect people who take a stricter line against these things — so long as they do not make the ridiculous argument that their thinking is so manifestly superior to justify them posturing as our moral superiors. We have rather less respect for people in the latter category.

Calling your opponents “extremists”, and suggesting they would support a “junta”, is just a cheap way to call them Nazis without committing an actual Godwin’s Law violation. The fact is that it is you who are closer in spirit to “juntas,” with your “never mind what the law says — throw Bybee in jail because I don’t like him” attitude. I take it that you’re not American, and assume from “Carlos” that your nationality is either Spanish or Latin American. The cultures in which your thinking was formed have produced multiple “juntas,” while America has not. Think on that.

The Bybee memo stated that if a terrorist was told that a stinging insect would be placed in the box, the interrogator would have to assure him it was just a garden-variety stinging bug (a bee, for instance), and not the kind that would cause severe pain or death. While some people might find this kind of argument uncomfortably hair-splitting, I have yet to read a convincing argument that it is not legally correct.

And that assurance, coming from a nameless, faceless, rough (shall we say) enemy interrogator, should be enough to persuade the prisoner that no real harm is intended? In real-world situations, Bybee’s argument is nonsensical.
“I’m going to put this stinging insect into the box I’ve confined you to.”
“NO! NO! DON’T!”
“It’s OK, it won’t cause severe pain or death.”
“Oh, OK. I don’t feel threatened with severe pain or death anymore.”

That’s the basis for my anger with people who’d like to put Bybee on trial: It shows a lack of respect for the rule of law, and an eagerness to set up kangaroo courts.

IANAL, but I think that the law is not a collection of mechanical technicalities. It recognizes things like “intent” and “pretexts.” There is a very real possibility that Bybee, Yoo, et al. engaged in a conspiracy to invent pretexts allowing the US to torture in defiance of the intent of anti-torture laws and treaties. If they did that, it was a criminal act. A lawyer cannot advise his client to break the law and expect that to exonerate his client if he gets caught. Instead, he can expect that he may be indicted right alongside the client as a co-conspirator.

Thomas,

“by your barbaric refusal to do justice to murderers” Killing a man, even in the name of justice, is what is barbaric. Only you, the Chinese, Iranians and Saudi’s seem to disagree. The only possible justification for killing someone is self defense or defense of others. A life sentence, as they do in MA, is actually adequate to protect innocent citizens.

“you can’t go down to the corner store and buy an M-16” Now I didn’t mention a corner store. You are reading into my words your own prejudices. I wrote that “just about anyone” can own a gun, I understand minors and ex-cons don’t have that right?

“with far greater nuance than you bring to the table” …lovely insult! Nice!

Frankly I am more inclined now to say: leave it as it is and suffer the consequences. There are many prophesies about Americas coming internal conflicts. Problem is that you will probably blame the democrats overlooking your own sins and Bybee’s.

Have a nice day, since we are way off topic here.

“assume from “Carlos” that your nationality is either Spanish or Latin American. The cultures in which your thinking was formed have produced multiple “juntas,” while America has not. Think on that”

Yes, Spanish. And no you aren’t Nazi since this isn’t so much about race. But that paragraph, at the end of #10, was sarcastic. I did mention that I had believed that America was better than that but since GWBush came in it seems to be that you guys are doing all you possible can to go down that same road, the one of rightwing, conservative-God fearing Juntas to fix the terrorism problem. And Bybee is one of those hired guns who can build an argument to justify just about any barbaric action. He has done so with (lets call it) these introductory torture techniques. From that point on you will only go downhill unless someone turns it around and goes back to what GWashington believed in, that is that prisoners should be treated with dignity and respect as he treated his prisoners -even if those prisoners were British!

And before you ask, yes I support Judge Garzon Real. By the way he did put away some terrorists but did so working within the ‘rule of law’. Your judges haven’t done that yet, at least not legally. Guantanamo Bay doesn’t count as a court of law by the way.

Chuck, some friendly advice: If you don’t like being insulted, don’t insult people. And it’s still true that Americans can’t guy M-16s.

Re: “barbaric” capital punishment, you left out the Japanese. A parcel of savages, clearly.

As for “prophecies,” I have a hard time thinking that a God who saw no problem with Nephites poisoning Lamanite prisoners of war as a safety measure (Alma 55:32, one of my all-time favorites), and who couldn’t be bothered to intervene against the by-gum Holocaust, is going to send fire and brimstone after the United States for tolerating (gasp!) Jay Bybee letting somebody put a bug on someone.

chuck???

Yes, Japanese still hang on to the past too. But they will change soon probably before you do.

Its more than just a little bug though. You are in a box which will make you hurt after an hour or so, maybe even less. Cramps, can’t use the bathroom etc, all prove torture not ‘enhanced interrogation techniques’

By the way I wasn’t insulting you, just illuminating your thoughts!

#16: You are sadly misinformed about the nature of the law of armed conflict. George Washington distinguished between legitimate prisoners of war (soldiers captured in uniform) and unlawful combatants, like John Andre, whom he hanged.

(In point of fact, the regular prisoners of war didn’t get all that great a deal, either; lots of them got worked to death in underground salt mines, whereas American prisoners were packed into prison ships and died in their thousands. Ah, the good old days before we all lost our moral compass…)

The Geneva Conventions distinguish between legitimate prisoners of war (to whom you can’t do anything but confine, and ask their name, rank and serial number) and unlawful combatants. That distinction exists for a reason. Until recently, the customary laws of war allowed unlawful combatants to be summarily executed at the point of capture, as were (for instance) German commandoes caught out of uniform in the 1944-45 Ardennes offensive. We’ve gotten so much more “violent” since then that we don’t stop at shooting them: We put bugs on them. Which is clearly much, much worse.

You have made a scientifically-verifiable prediction: America has embarked on a course that is tending towards ever more brutal interrogation practices, and is on a slippery slope towards a “junta.” Let’s place a gentleman’s wager: Absent an American city getting nuked, waterboarding will be the absolute worst interrogation practice America will ever use. And Spain will install an authoritarian regime before America does.

#14: “There is a very real possibility that Bybee, Yoo, et al. engaged in a conspiracy to invent pretexts allowing the US to torture in defiance of the intent of anti-torture laws and treaties.”

Intent or no intent, if conduct does not fall within the scope of the actual text of a statute, there can be no criminal liability. That’s basic due process. In addition, under the Rule of Lenity, if there is any ambiguity in a penal statute, the ambiguity must be resolved in favor of the defendant.

Whether or not you believe a terrorist will likely trust his interrogator, the fact remains that if the interrogator has not actually stated he will cause severe physical pain or death, or otherwise manifested an intent to do so, he has simply not “threatened” to cause severe physical pain or death, and therefore not violated the statute. The terrorist’s subjective fear is irrelevant.

I suppose you could make a convoluted argument that the terrorist ought to assume the interrogator is lying, and therefore the statement “This won’t hurt much” should be presumed to mean “This will by absolutely agonizing or fatal.” But that would be a stretch. Certainly, your argument would not be so manifestly obvious that it would be unreasonable for Jay Bybee to take the more straightforward interpretation that to “threaten” severe pain, you have to actually, objectively manifest your intent to cause it. No “conspiracy to invent pretexts” needed.

I think the argument that this whole process — a painstaking analysis of exactly where the line between “torture” and “not torture” — is a slippery slope towards worse practices, is about as credible as the notion that recognizing gay marriage will lead to homosexuality becoming mandatory, or that allowing early-term abortion is the first step on a slippery slope towards legalizing infanticide up to age four. And I think that this solicitude for some truly evil people, going well beyond what the customary laws of war have ever mandated, bespeaks a certain moral confusion. They ought to be grateful for anything more lenient than the hanging George Washington or FDR would’ve given them without batting an eye.

You’re arguing as if the Bybee memo is widely seen as solid legal reasoning but only disliked because of political correctness. That’s not the case. It’s widely seen as abysmal legal reasoning, on both the left and the right.

I suppose you could make a convoluted argument that the terrorist ought to assume the interrogator is lying, and therefore the statement “This won’t hurt much” should be presumed to mean “This will by absolutely agonizing or fatal.” But that would be a stretch.

I would have said “That would be common sense” during rough interrogations.

Certainly, your argument would not be so manifestly obvious that it would be unreasonable for Jay Bybee to take the more straightforward interpretation that to “threaten” severe pain, you have to actually, objectively manifest your intent to cause it.

Again, you’re missing the point that Bybee’s argument is nonsensical in real-life situations. Prisoners aren’t in a position to parse the law or decide whether intentions are being “objectively manifested” during rough interrogations. The concept is silly.

And I think that this solicitude for some truly evil people, going well beyond what the customary laws of war have ever mandated, bespeaks a certain moral confusion.

Of course, I think your adherence to the idea that torturers (or almost-but-not-quite-if-you-parse-the-law-carefully-enough torturers) and the people who enable them are not necessarily “truly evil people” bespeaks a certain moral confusion on your part. I don’t suppose there’s any way to reconcile these different points of view.

Now I didn’t mention a corner store. You are reading into my words your own prejudices. I wrote that “just about anyone” can own a gun, I understand minors and ex-cons don’t have that right?

Carlos,
Private citizens in the USA are not allowed to own fully-automatic weapons such as M-16s. Depending on what kind of gun one buys, where one buys it, and who one buys it from, there are various laws and regulations that must be complied with, and there may be paperwork such as background checks, permits, and registrations.

I enjoy this discussion (and please keep it up). In my original post, the Bybee issue did not make it onto my radar because he wasn’t mentioned in a 2009 case opinion (the body of an opinion, as opposed to as a judge), nor was his religion.John Yoo has been sued by Jose Padilla (in a development I referred to elsewhere as absurd). Perhaps 2010 will warrant Jay Bybee as an mention. For what it’s worth, I hope not.The Church (which I follow and write about, even as as a non-member) does not need more negative publicity.

Kuri… yeah it is legal for private citizens to own fully automatic weapons, unfortunately it’s a real hassle and pretty expensive…

Also… I hope nobody thinks this torture stuff is something new… No doubt people were getting tortured while Jimmy was pres and Bill Clinton probably still are…

#4
You are wrong. This is no game and torture is a violation of the United States Code. Bybee’s tortured interpretation of the code aside, as an attorney and later as a judge, Bybee had to swear an oath to uphold the United States Constitution. Similarly, under the 12th Article of Faith, he has an ostensible religious belief to follow the laws of the land. Bybee’s memo creates a legal justification for an administration to ignore the Geneva Convention, ignore treaties, ignore the plain meaning of statutory construction, ignore the laws of the United States and ignore the Constitution of the United States and commit torture against other human beings. The guilt of the people actually tortured as a result of Bybee’s memo would never have their guilt determined by fair, public judicial due process guaranteed by the Constitution.

Either you believe in America or you don’t. Fundamental concepts fought for and incorporated into the Constitution with the Bill of Rights, provided for fundamental legal protections of due process, jury trial, public trials, and prohibitions of cruel and unusual punishment. This is the foundation of American justice. The argument over whether Bybee was correct legally, is the wrong argument. The question is whether he was following the basic concepts of American jurisprudence — and without doubt he wasn’t.

Even a rudimentary knowledge of history will show that the provisions in the Constitution were designed as a limit on State power — a rebellion against the abuses of power by the British Empire. Bybee’s memo is an increase of executive power in violation of those basic concepts. Even insects in a box is cruel and unusual. Anyone who has ever been arrested understands the invasiveness of the removal of personal freedom. The only thing standing between the captured and the guns is the words in the Constitution that Bybee spat upon. Part V of his Memorandum is a tract on unlimited executive power to invalidate the United States Code. This argument is based solely on the President’s powers in time of war. A power so broad that by simply naming someone an enemy combatant allows the president to consider the law against torture unconstitutional. Yet, if it is a war, then the Genevea Convention applies. If there isn’t war the President doesn’t have the power to incarcerate individuals. You can’t have your war cake and eat it too. Those damn laws are so inconvenient to the full exercise of executive power.

Maybe it boils down to what we are most afraid of. Are you more afraid of the terrorist who has “chosen mass murder as a career choice” or more concerned about a politician who has chosen mass murder as a career choice? I know how to defend myself against criminals and terrorists, it is the rule of law. I don’t know how to defend myself against someone who is going to ignore the rule of law with state sanctioned power.

Lest you think I’m being over dramatic, the battle is on the domestic front, along with its justification for bugs and water boarding. Let me end with some words from the memo of Judge Bybee, currently of the United States Ninth Circuit Court of Appeals and formerly of BYU:

“We have also discussed the President’s constitutional authority to deploy the armed forces domestically to protect against foreign terrorist attack. . . The Justice Department and the FBI have launched a sweeping investigation in response to the September 11 attacks, and last fall Congress enacted legislation to expand the Justice Department’s powers of surveillance against terrorists. This spring, the President proposed the creation of a new cabinet department for homeland security to implement a coordinated domestic program against terrorism.”

So… how would you personally stop a guy from blowing up a civilian passenger plane, Ulysseus?

The way to stop terrorism is to be true to our American ideals, not abandon them.
I’m consistently baffled by the so-called right, conservatives who willingly abdicate to government authority. Democracy and American ideals require a duty of the citizens to fight to insure that government does not step out of bounds. Governments exist for the purpose of insuring our rights, not infringing on them. When they do, we have a duty to speak up and call them on the carpet for their abuses. Why do I think this is the American way? Because I just paraphrased the Declaration of Independence.

The most effective way to fight terrorists, personally and as a society:

1. Vigilant citizens who are actively involved.
2. No search and seizure without warrants.
3. Public trials.
4. Right to confront and cross examine witnesses.
5. No cruel and unusual punishment.
6. Judges, Presidents and legislators who are concerned about how to abide by the rule of law, not circumvent it.

This is the country I want to live in. Not a surveillance society. Not a country where our President’s lawyers try and figure out a way how he can torture people and use surveillance and troops domestically.

#25 #27 Ulysseus,

Congratulations Ulysseus. You are restoring my faith in the US, that it still holds the same ideals that it has always claimed. I hope that rejection of torture and the mistreatment of criminals will continue to grow in your country, even if those criminals are terrorists.

So we should let anyone on a plane and count on vigilant citizens wearing loose enough pants to round-house kick bomb detonators out of terrorists hands seconds before activation.

Didn’t spain pretty much invent torture.

Sunn –

I think you are operating under the mistaken assumption that I am more frightened of terrorists than people who think like you.

And CarlosJC, Thank you for the kind words. America the ideal crosses countries boundaries, ethnicity and religions. The ideals are all that really stand between us and humanity’s violent tendencies.

Ideals and not being afraid don’t stop people from blowing up planes full of civilians. How do you feel about gun control laws?