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The Half-Life of Torture
Legal opinions signed by 9th Circuit Judge Jay Bybee helped pave the way for alleged torture during President Bush's war on terror
The Recorder
April 13, 2009
9th Circuit Court of Appeals Judge Jay Bybee
Image: Jason Doiy/The Recorder
Six weeks before Gen. Augusto Pinochet overthrew the Chilean government in 1973, Jay Bybee, a 19-year-old Mormon missionary, disembarked in windswept Punta Arenas, nearly 2,000 miles south of Santiago.
"It was a place where you lean on a 45-degree angle to walk around the corner, and then if you don't change your angle, you fall flat," then-mission-president Roland Glade remembers. "It was a place you send somebody who knows what they're doing."
Bybee wasn't afraid to practice his Spanish, and he entertained by imitating Chicago, New York and "New Joisey" accents, fellow missionary David Magnusson said. After the coup, the missionaries learned to allow enough time to proselytize and make it home before the military curfew.
Talking politics with Chileans was verboten. Though Bybee, now a Bush-appointed 9th U.S. Circuit Court of Appeals judge, liked high school debating, he passed at Brigham Young University, telling Magnusson it was "too contentious."
In the decades to come, Bybee's easy personality would help him recover from life's setbacks -- and serve him well for most of his legal career. But it is also one clue into understanding why Bybee is among the former Bush administration lawyers under review for war crimes by Baltasar Garzon, the same Spanish judge who once ordered Pinochet's arrest.
Bybee has retained Latham & Watkins' Maureen Mahoney to negotiate the European inquiry and other probes of his role at the Justice Department, where he signed off on the so-called torture memos in 2002. During President Bush's war on terror, those legal opinions paved the way for such treatment as wrapping a towel around a detainee's neck and smashing his head against a wall, according to an International Red Cross report made public last week in the New York Review of Books.
Bybee declined to talk about his work at the Office of Legal Counsel. But when he gathered former clerks last year at a Las Vegas steak house for a five-year reunion, he was more revealing.
"He said our work has been well-researched, carefully written, and that he was very proud of the work that we've done and the opinions his chambers has issued," said Tuan Samahon, who was Bybee's first judicial clerk and is now a UNLV professor.
According to Samahon, the judge then added: "I wish I could say that of the prior job I had."
Such sentiments contrast with public comments from John Yoo, Bybee's former deputy at the OLC, who maintains that all of his legal memos were fully vetted by management. That could foreshadow potential finger pointing as the legal process plays out. But whatever the outcome of various probes into his role, Bybee has become a study into how a person behaves when he knows his name will be forever linked with a dark historical episode.
"You can either stew about it and drown in bitterness, or move on and do the best you can. That's what Jay is trying to do," said one longtime friend. "Some people get over it and have a good life. Some people don't."
THE MAKING OF THE MEMOS
Bybee wasn't supposed to run the OLC. In the spring of 2001, Attorney General John Ashcroft and the White House couldn't agree on a candidate. They finally settled on a then-Columbia Law School professor, John Manning, but he pulled out.
Then stationed at UNLV's law school, Bybee had established conservative academic credentials. He also had a friend in the White House: Timothy Flanigan, a fellow BYU grad who was Alberto Gonzales' deputy and who knew Bybee from their time as summer associates at Shearman & Sterling, said Steven Guynn, a mutual friend who is now a deals lawyer at Gibson, Dunn & Crutcher.
Bush nominated Bybee to head the OLC in July, but the professor stayed in Las Vegas to finish a teaching commitment, Samahon said. When the Twin Towers fell, the Senate hadn't yet held a hearing on his nomination. By the time Bybee arrived in November, Yoo, a national security expert, had already issued at least three legal memos broadening the White House's power at its behest.
Even as Bybee settled into the OLC job, a new one beckoned: Procter Hug Jr., a longtime 9th Circuit judge from Nevada, took senior status on Jan. 1, 2002, creating a vacancy in Bybee's home state. In his confirmation documents, Bybee said the White House approached him about the seat that winter, and Bush nominated him in May.
That Bybee would be ready to leave the Justice Department so quickly didn't surprise some Justice Department observers: the OLC had been a traditional launching pad to the federal judiciary's upper reaches. But Bybee's 9th Circuit confirmation took time, and it was the period after his nomination -- but before his Senate vote -- when the most controversial events of his career would transpire.
On Aug. 1, 2002, Bybee signed two memos, both drafted by Yoo. One of them, which has since been publicly released, said interrogation techniques could be cruel, inhumane or degrading and still not rise to the level of impermissible torture. Another memo, which hasn't been made public but has been the subject of news accounts, approved a list of techniques the CIA sought to use.
As the CIA sought legal cover that summer, lawyers advising other national security principals say Yoo was their primary OLC liaison -- a fact which jibes with descriptions of Bybee's management style ("a delegator," Samahon said). A high-level council of lawyers driving the administration's bid for increased authority included Yoo -- and Bybee's friend, Flanigan -- but not Bybee, according to a book by Bybee's successor, Jack Goldsmith.
Flanigan, now at Wilmer Cutler Pickering Hale and Dorr, declined to talk about the judge.
Despite Yoo's heavy involvement, though, the judge's signature on the torture memos weren't perfunctory. According to information Bybee submitted to the Armed Services Committee last fall, as his office prepared the memos, Bybee saw a CIA assessment of the "psychological effects of military resistance training."
