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Friends Say Judge Bybee Regrets Interrogation Memo He Signed

Jay S. Bybee, shown teaching at the University of Nevada at Las Vegas in 2001, is now a federal judge on the Court of Appeals for the 9th Circuit. In 2002, while at the Justice Department, he signed a memo narrowly defining torture.
Jay S. Bybee, shown teaching at the University of Nevada at Las Vegas in 2001, is now a federal judge on the Court of Appeals for the 9th Circuit. In 2002, while at the Justice Department, he signed a memo narrowly defining torture. (By Jeff Scheid -- Associated Press)

"Judge Bybee tends to be a very private person, even when he's not in the newspapers," said Ann S. Jarrell, law librarian in the downtown U.S. courthouse where he keeps his chambers. Neither Bybee nor Mahoney would comment for this article.

Still, in the years since the original Bybee memo was made public, his misgivings appeared evident to some in his immediate circle.

"On the primary memo, that legitimated and defined torture, he just felt it got away from him," said the fellow scholar. "What I understand that to mean is, any lawyer, when he or she is writing about something very complicated, very layered, sometimes you can get it all out there and if you're not careful, you end up in a place you never intended to go. I think for someone like Jay, who's a formalist and a textualist, that's a particular danger."

Tuan Samahon, a former clerk who recalled Bybee's remarks at the reunion dinner, said in an e-mail that the judge defended the legal reasoning behind the memos but not the policy decision. Bybee was disappointed by what was done to prisoners, saying that "the spirit of liberty has left the republic," Samahon said.

"Jay would be the sort of lawyer who would say, 'Look, I'll give you the legal advice, but it's up to someone else to make the policy decision whether you implement it,' " said Randall Guynn, who roomed with Bybee at Brigham Young University and remains close.

Jameel Jaffer, director of the ACLU's National Security Project, which filed a freedom-of-information request regarding the latest memos, said any distinction Bybee may make between the logic of the memos and their application in secret prisons is theoretical at best.

"I don't think the August 2002 memos reflect serious attempts to grapple in good faith with the law," Jaffer said. "These are documents that are meant to justify predetermined ends. They're not objective legal memos at all."

Neither Guynn nor his brother, Steve, who also roomed with Bybee, recalled the judge distancing himself from the memos. But in the years since the first memo became public, Bybee left that sense with some.

"I got the impression that he was not pleased with that bit of scholarship," said an associate who asked not be identified sharing private conversations. "I don't know that he 'owned it.' . . . The way he put it was: He was head of the OLC, and it was written, and he was not pleased with it."

"But he signed it," said Chris Blakesley, a friend and fellow professor at the University of Nevada at Las Vegas Boyd School of Law who was outraged by the memo, which was leaked in May 2004.

"The very evening it came out, we were going to dinner, and I told him how awful it was and I hoped he got a chance to repudiate it," Blakesley said. "He didn't say very much, and it was kind of awkward because our families were there."

"Getting to the personal side of him, my sense is he would love to repudiate them all," Blakesley said. "Which gets to: Why'd you sign it?"

Bybee had worked in Washington before. During the 1980s he was in the civil and legal policy divisions at the Justice Department, then served as associate White House counsel under President George H.W. Bush.

During the Clinton years, he went from Louisiana State to UNLV, whose law school was so new it was located in an old elementary school across Tropicana Avenue. Through the thin walls of the annex, constitutional law specialist Tom McAffee would hear Bybee working the phones. But he struck none of his colleagues as an ideologue.

"I have colleagues with reputations as indoctrinators," said McAffee, who has known Bybee 30 years and co-authored a book with him on the Ninth and 10th amendments. "Bybee was the opposite end of the spectrum. He was more interested in getting people to think about things."

Students enjoyed Bybee, voting him professor of the year in 2000. "He was 'The Great Professor,' " said Briant S. Platt, who worked as his research assistant and later clerk. "He was quite self-deprecating: 'You get a root beer float in me and I'm a lot of fun.' "

Bybee still occasionally teaches a course at UNLV on separation of powers.

"The whole idea that the Constitution is based on a kind of wariness of mankind's tendency to grab power, that is an idea I got from Jay," McAffee said. "So the whole idea of uninhibited executive power, from him, does seem passing strange."

Bybee's friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, Guynn said, was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, "Would you be willing to take a position at the OLC first?" Guynn said.

Being unable to answer for what followed is "very frustrating," said Guynn, who spoke to Bybee before agreeing to be interviewed.

"If they end up having hearings," he said, "they're going to have a very difficult time trying to square him with their judgments about the memo."

Staff writer Ashley Surdin contributed to this report.

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