Jay Bybee's Latest "It's Not Torture" Decision

Andrew Cohen at the Atlantic writes about Bush Administration torture memo author, now federal judge Jay Bybee's latest decision justifying torture.

[Bybee]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 opinion is here. It's about an inmate in California placed on a "contraband watch." The sickening policy is described in the opinion as: [More....]

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.

...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.

Chappell sued, claiming an 8th Amendment violation of the ban against cruel and unusual punishment. Bybee tossed it, on immunity grounds, but also saying Chappell's treatment wasn't cruel and unusual punishment -- see Andrew's article explaining Bybee's reasoning. Andrew adds:

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.

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    If you mix up the letters in Jay Bybee... (5.00 / 4) (#2)
    by Dadler on Sun Feb 10, 2013 at 06:58:29 PM EST
    ...you can spell "inhumane jerk*ff". Sure you have to twist the letters a bit, maybe even rip a few apart, but no more so than Bybee twists the law with his own addled excuse for a brain.

    A nation in regress. Lovely.

    You don't have to twist the letters... (5.00 / 3) (#3)
    by unitron on Sun Feb 10, 2013 at 08:53:45 PM EST
    ...or rip them apart.

    Just interrogate them in an enhanced manner.


    Godwin's Law again (1.00 / 2) (#5)
    by diogenes on Mon Feb 11, 2013 at 05:58:13 PM EST
    This is not torture, although it is cruel and excessive (perhaps a mattress could have been provided).  Tossing the T word around only cheapens the definition of torture.
    Perhaps the more enlightened criminologists could suggest another way to do the contraband search.  I'd suggest giving a bowel prep so that the bowels are cleared out in 18 hours instead of seven days, but I suppose that you'd say that coercing inmates to take what we all take before a colonoscopy is somehow also violating their constitutional rights.

    And I'd suggest you go and study history (none / 0) (#6)
    by shoephone on Mon Feb 11, 2013 at 06:07:47 PM EST
    because the same "techniques" that are deemed not torture by the likes of you are the same "techniques" that were considered torture for hundreds of years. The same "techniques" for which the Japanese were charged, tried and found guilty of using in WWII.

    And, some were (none / 0) (#7)
    by NYShooter on Mon Feb 11, 2013 at 06:22:10 PM EST
    put to death, if I recall correctly.

    However, it is true that "torture" is a subjective term. Compared to what? in other words. compared to having your fingers, toes, and other extremities snipped off, one by one? having your family members beaten to death, and being forced to watch?

    I don't mean to be gruesome, I really don't; just making a point. I certainly believe what Manning was subjected to was torture. At least compared to the "normal" brutal confinement some of our incarcerated felons are subjected to.

    BTW, is there a standardized glossary of techniques our government considers torture for adjudication purposes?


    I have no idea what the Japanese were found (none / 0) (#8)
    by sarcastic unnamed one on Mon Feb 11, 2013 at 06:37:42 PM EST
    guilty of, and googling has turned up very little info besides this.

    Do you have a link for these techniques you speak of:

    The same "techniques" for which the Japanese were charged, tried and found guilty of using in WWII.

    Here's a couple: (none / 0) (#9)
    by NYShooter on Mon Feb 11, 2013 at 10:41:16 PM EST
    Huffington Post: LINK

    "Following World War II war crime trials were convened. The Japanese were tried and convicted and hung for war crimes committed against American POWs. Among those charges for which they were convicted was water boarding."

    And, Wikipedia LINK

    "The United States hanged Japanese soldiers for water boarding American prisoners of war.[9]"

    And, a little Googling will get you countless more sources and examples


    Where, in this case of a contraband watch, (2.00 / 1) (#11)
    by sarcastic unnamed one on Tue Feb 12, 2013 at 08:45:19 AM EST
    is there any mention of him being waterboarded?

    At it again, sarc? (none / 0) (#13)
    by sj on Tue Feb 12, 2013 at 10:37:33 AM EST
    You didn't like the answer to the question you asked so you just... change the question.  And then pretend that's what you meant all along.

    We notice.


    You should probably stop "noticing" (none / 0) (#16)
    by sarcastic unnamed one on Tue Feb 12, 2013 at 11:36:10 AM EST
    so much, and start reading more.

    Let me help.

    diag's comment on the topic of this thread - the contraband watch - was that the techniques used weren't torture.

    Shoephone responded that the Japanese used the same techniques in WWII and they were determined to be torture and that the Japanese were convicted of these same techniques.

    I then asked for a link to show that these "same techniques" used in the contraband watch were what the Japanese were convicted of.

    The responses to that question are all about waterboarding, which isn't a technique that was used in contraband watch that we're discussing on this thread.

    And then of course you chimed in showing your ignorance of the conversation.


    Okay, I'll buy (none / 0) (#17)
    by sj on Tue Feb 12, 2013 at 11:49:50 AM EST
    that it was the question you intended to ask or thought you were asking.  It wasn't, however, the question you actually asked.  To find the question as you say you meant I have to look at it sideways while closing one eye.  I'll own my ignorance if you'll own your sloppy interrogatives.

    It is the question I asked (none / 0) (#18)
    by sarcastic unnamed one on Tue Feb 12, 2013 at 12:03:06 PM EST
    Do you have a link for these techniques you speak of:


    The same "techniques" for which the Japanese were charged, tried and found guilty of using in WWII.
    OK, in retrospect I guess I could have bolded the word "same" or something, though I still don't see how, apparently, no one but me understood shoephone's claim and why I/anyone would question it.

    So sure, I could have been more clear.

    Still waiting on shoephone to show us the support for his/her claim that the contraband watch techniques are the same techniques the Japanese were convicted of war crimes for doing.


    Waterboarding, in particular, (none / 0) (#10)
    by shoephone on Mon Feb 11, 2013 at 10:51:28 PM EST
    which even John McCain (in 2007) rightly described as an act of torture that the Japanese were held accountable for. And Politifact deemed his statements to be true:

    McCain is referencing the Tokyo Trials, officially known as the International Military Tribunal for the Far East. After World War II, an international coalition convened to prosecute Japanese soldiers charged with torture. At the top of the list of techniques was water-based interrogation, known variously then as "water cure," "water torture" and "waterboarding," according to the charging documents. It simulates drowning.

    Some of the Japanese soldiers were found guilty and hanged.

    But NYSHooter is right that there are many examples you can find just by googling.


    in the case of contraband watch that this thread is about.

    Finally, (none / 0) (#19)
    by NYShooter on Wed Feb 13, 2013 at 01:09:53 AM EST
    you've made a correct statement.

    Nobody commenting on this site has said that Manning was subjected to waterboarding.

    Now, I could take you by the hand and walk you through the comments and show you where your reading comprehension failed you, but since it was you that made the error I think it should be you that expends the time to correct yourself.


    I usually ignore you (none / 0) (#14)
    by sj on Tue Feb 12, 2013 at 10:49:56 AM EST
    Because typically it is your pattern to throw out a single bomb filled comment based on ignorance and indifference to others.  You don't usually hijack a thread, so from my perspective you're simply a very minor nuisance.

    Having said that, this is one of the sickening, skin-crawling comments you have ever made.  Upon consideration, I suggest you put your premise to the test and give yourself one of those "bowel preps" that lasts seven days.  Don't forget to have yourself diapered and shackled.

    I await your report.  


    Stronger Constitutional Rights? (none / 0) (#1)
    by unitron on Sun Feb 10, 2013 at 06:45:42 PM EST
    I thought the rights existed for all humans just because they are human, and that the stuff in the Constitution was just codifying some of the ways in which the government may not violate them.

    And, what (none / 0) (#4)
    by NYShooter on Mon Feb 11, 2013 at 12:16:58 AM EST
    was the contraband they were looking for? A tightly wrapped joint?

    Now it makes sense.

    The contraband... (5.00 / 1) (#15)
    by kdog on Tue Feb 12, 2013 at 11:32:54 AM EST
    they were looking for was the man's last shred of human dignity.  They found it and stomped it out but good.