Alaska Employment Law

9th Circuit Judge Jay Bybee’s August 1, 2002, memo on torture, written when he was employed by the Department of Justice’s Office of Legal Counsel, concludes that “severe mental pain or suffering” requires pain for “months or years.” 

Although the waterboard constitutes a threat of imminent death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering.  See Section 2340A Memorandum at 7.  We have previously concluded that prolonged mental harm is mental harm of some lasting duration, e.g., mental harm lasting months or years.  See id.  Prolonged mental harm is not simply the stress experienced in, for example, an interrogation by state police.  See id.  Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged mental harm would result from the use of the waterboard.  Indeed, you have advised that the relief is almost immediate when the cloth is removed from the nose and mouth.  In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture within the meaning of the statute.

08/01/02 DOJOLC Memo. at p. 15.  The OLJ rescinded the Bybee memo in 2004.  Pres. Obama released the memo yesterday.   Bybee joined the 9th Circuit in March of 2003. 

The Wall Street Journal’s Law Blog has more on possible legal proceedings against Bybee.  

And the intelligent people at Volokh Conspiracy comment on Bybee’s reasoning.

04/29/09 update: Judge Bybee’s response to the controversy is here.