The assessment came to him in a meeting with Yoo and two other OLC attorneys in July, and Bybee told the committee that it informed the Aug. 1 memo, which is believed to have approved specific interrogation techniques, such as waterboarding. The Obama administration is reportedly split on the question of whether to make that opinion public.
News of the torture memos broke in 2004, toward the end of Bybee's first year on the 9th Circuit. Samahon, his clerk, remembers gathering for the weekly staff meeting.
"He condemned the policy choice to use torture as a tool of interrogation," he said. "It was quite eloquent, something like, 'When the republic would countenance the use of torture as an instrument of forging policy, truly the spirit of liberty has gone out of us.'"
Samahon said he didn't interpret Bybee's use of the word "torture" as a legal term of art. And he acknowledges that in Bybee's approach to the law, a policy choice could be ill-advised, or even abhorrent -- but still constitutional.
Yet Yoo has often gone further, arguing that the administration's aggressive tactics saved American lives. He also points to Bybee in his book, where Yoo describes a standard practice at the OLC in which lawyers submitted their drafts to at least two colleagues, or the chief, for review before being issued.
Neither Yoo nor his lawyer, Gibson, Dunn partner Miguel Estrada, returned messages.
Unlike Yoo, Bybee wasn't a national security expert; as an academic, he'd developed a bit of a specialty in the Establishment Clause. And according to one former lawyer at the OLC, he continued to pursue that interest there.
The former OLC lawyer wouldn't discuss specifics, but shortly after Bybee left, the OLC opined that the Parks Service could give historic preservation grants to the Old North Church in Boston without violating the First Amendment, even though religious ceremonies still took place there.
UNDER A MUSHROOM CLOUD
The judge keeps his chambers in Las Vegas, where his father worked on the Nevada nuclear test site in the 1950s, and the young Bybee witnessed a mushroom cloud from a distance. While he was in his 20s, his father died suddenly from cancer believed to be brought on by the nuclear work, sister Karen Bybee said, adding that her brother immediately stepped in to lead the family.
The judge could have gone to Duke University School of Law, but he stayed at BYU for a girlfriend, said Bybee's friend Guynn. Then, she ended the relationship during Bybee's first semester at law school.
"I still have this image talking to him on the phone, with him sort of lamenting the fact he gave up Duke for a girl, and now he doesn't even have the girl," said Frederick Gedicks, another friend who is now a BYU law school professor himself.
Bybee eventually married a teacher, and they have four children.
"Jay picks himself up and moves on. I would not describe him as stoic, just solid," Gedicks said. "He's not an emoter, but certainly not a stone, either."
The judge worked on appeals for the Justice Department in the 1980s, and then in the White House Counsel's office under George H.W. Bush. His moral barometer sometimes made life complicated, remembers Randall Guynn, a Davis Polk & Wardwell partner who is Steven Guynn's younger brother.
Randall Guynn once prepared a European itinerary for an upcoming trip he and Bybee planned. "He wouldn't allow me to fax it, because he wasn't sure it was appropriate to use government ink and paper for a personal trip," said Guynn, who lived in Paris at the time.
The Davis Polk lawyer instead faxed the document to his firm's Washington, D.C., office, which then messengered it to Bybee.
After Bybee left the Justice Department, his successors withdrew some of the controversial torture memos. Though Bybee acknowledged reviewing CIA briefing material, he didn't provide details for the Armed Services Committee. Some members of Congress have criticized the intelligence agency for downplaying its interrogation program, according to Jane Mayer's account in "The Dark Side."
When it came time for one of Bybee's successors, Daniel Levin, to craft new torture guidelines, Levin arranged to be waterboarded to gain firsthand knowledge, Mayer wrote.
In addition to the Spanish inquiry, the Justice Department's Office of Professional Responsibility has been prepping a much-anticipated dissection of the OLC's legal memos. That report could recommend sanctions against lawyers who were involved; media outlets like Newsweek have reported that the preliminary findings are critical of Yoo and Bybee.
As a judge, Bybee is not regulated by the Nevada Bar Association. And the U.S. Judicial Conference can only bring disciplinary actions for conduct that occurred on the bench, said Arthur Hellman, a University of Pittsburgh School of Law professor.
Thus, short of criminal charges, impeachment is likely the only available domestic remedy for Bybee's critics, and the political will for Congress to undertake that process is far from certain.
What is certain is that Bybee's work for the OLC will follow him.
"I have not talked to other judges about his memo on torture," said 9th Circuit Judge Betty Fletcher, his ideological opposite, "but to me it seems completely out of character and inexplicable that he would have signed such a document."
Last summer, the 9th Circuit convened for a few days of law and golf at its annual conference in Sun Valley, Idaho. One morning, liberal attorneys like Kathleen Sullivan and Seth Waxman ripped the Bush administration at a discussion about executive power. Yoo was supposed to be on the panel, but didn't show -- an organizer joked that he'd been "detained."
One lawyer asked the panelists whether former administration officials should be prosecuted. Sullivan said it would be difficult, suggesting reparations for the victims as an alternative. Throughout, Bybee sat quietly in an aisle seat, listening.
