The Obama administration released graphic legal memos Thursday that authorized specific interrogation techniques against CIA-held prisoners in the war on terror.
Ninth U.S. Circuit Court of Appeals Judge Jay Bybee signed one of those memos on Aug. 1, 2002, when he worked as chief of the Justice Department's Office of Legal Counsel. The substance of the document -- which allows waterboarding because it does not inflict "prolonged mental harm" -- had been reported.
But the memo's details may well ramp up public pressure on President Obama to take action against Bush administration lawyers, who already face an internal Justice probe and possible indictment by Spanish authorities. While the White House assured CIA employees Thursday that they would not be prosecuted, the president offered no cover to Bybee or other government lawyers.
And where the Justice Department will represent any CIA employee in any U.S. litigation -- or appoint a lawyer to deal with proceedings "in any international or foreign tribunal" -- the Obama administration's promise also did not extend to former Bush administration lawyers.
Latham & Watkins partner Maureen Mahoney represents Bybee. Mahoney, a nationally recognized advocate, is working pro bono, according to one person familiar with the matter.
Such gratis fee arrangements are common for government employees under investigation by the Justice Department's Office of Professional Responsibility, say several lawyers who have represented clients in similar situations. Part of the reason these attorneys cite for waiving their fee -- beyond public service -- is the limited resources of the clients.
Bybee -- a longtime government lawyer and academic before joining the court -- does not enjoy the wealth of big-firm practitioners. During his confirmation proceeding in 2003, the judge reported a net worth of $457,000, with more than half of that in a retirement account. Bybee, 55, also has four children.
A Westlaw search shows that Bybee recused himself from the only three published cases involving Mahoney's firm since 2007; the last time Bybee presided over a matter where Latham was involved was in 2004.
In an e-mail Thursday, Mahoney said Bybee has recused himself from Latham cases, but offered no further comment on his case.
The Obama administration released the memos Thursday to meet a deadline in open records litigation brought by the American Civil Liberties Union. Its decision came after what other published reports have described as a fierce battle within the administration, with Attorney General Eric Holder and White House counsel Gregory Craig pushing for release, and CIA Director Leon Panetta resisting.
Bybee's August 2002 memo notes that his legal opinions are based on the CIA's description of the interrogation techniques it sought permission for in July of 2002.
"As we understand it," Bybee wrote, "when the waterboard is used, the subject's body responds as if the subject were drowning -- even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain."
Bybee's successors withdrew portions of his legal analysis. But Obama also made public Thursday a set of memos written by then-OLC chief Steven Bradbury in 2005 that reinstated some of that reasoning.