Friends Say Judge Bybee Regrets Interrogation Memo He Signed
Saturday, April 25, 2009
LAS VEGAS -- On a Saturday night in May last year, Jay S. Bybee hosted dinner for 35 at a Las Vegas restaurant. The young people seated around him had served as his law clerks in the U.S. Court of Appeals for the 9th Circuit, the post Bybee had assumed after two turbulent years at the Justice Department, where as head of the Office of Legal Counsel he signed the legal justifications for harsh interrogations that have become known as the "torture memos."
Five years along in his new life as a federal judge, Bybee gathered the lawyers and their dates for a reunion, telling them he was proud of the legal work they had together produced.
And then, according to two of his guests, Bybee added that he wished he could say the same about his previous position.
It was, in the private room of a public restaurant, the kind of joyless judgment that some friends and associates say the jurist arrived at well before the public release of four additional memos last week and the resulting uproar that has engulfed Washington. One of the documents, dated Aug. 1, 2002, offered a helpfully narrow definition of torture to the CIA and soon became known as the "Bybee memo," because it bore his signature.
"I've heard him express regret at the contents of the memo," said a fellow legal scholar and longtime friend, who spoke on the condition of anonymity while offering remarks that might appear as "piling on." "I've heard him express regret that the memo was misused. I've heard him express regret at the lack of context -- of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety."
That notoriety worsened this week as the documents -- detailing the acceptable application of waterboarding, "walling," sleep deprivation and other procedures the Bush administration called "enhanced interrogation methods" -- prompted calls from human rights advocates and other critics for criminal investigations of the government lawyers who generated them.
Of the three former Justice Department lawyers associated with the memos, the public's attention has focused particularly harshly on Bybee because of his position as a sitting federal judge; John C. Yoo, who largely wrote the Bybee memo, returned to academic life, and Steven G. Bradbury, who signed three memos, resumed private practice at the end of the Bush administration.
Democratic lawmakers, human rights groups and others have called for Congress to impeach Bybee, complaining that his 2003 Senate confirmation came more than a year before his role in the memos was known. "If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," said Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), adding that "the decent and honorable thing for him to do would be to resign."
Democrats blocked the nomination of former Defense Department general counsel William J. Haynes II to the Court of Appeals for the 4th Circuit because of his role in supporting aggressive interrogations of military detainees. Haynes withdrew his nomination in 2007.
The Justice Department withdrew the memos in the closing days of the Bush administration, and as its Office of Professional Responsibility investigates their origin -- and Congress, the American Bar Association and the United Nations mull inquiries -- Bybee is represented by Maureen E. Mahoney, a star litigator at Latham & Watkins.
The aura of regret described by Bybee's friends and associates stands in contrast to the demeanor of Yoo, who served under Bybee and has maintained both a public profile and the fearless confidence that informed the memos. "Al-Qaeda in the months after 9/11 was going to carry out follow-on attacks on our country and its citizens," Yoo said Tuesday at a conference at Chapman University, the Orange, Calif., campus where he is teaching this spring.
Bybee left the issue behind in 2003, returning to the gated suburban Las Vegas subdivision where he lives with his wife and children. He has said nothing publicly about the documents, a silence associates attributed to the restrictions on a sitting appellate judge, the possible advice of counsel and his own manner.