Bybee Defends Signing Interrogation Memos

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The New York Times

Bybee Defends Signing Interrogation Memos

by
Neil A. Lewis

WASHINGTON - Judge Jay S. Bybee broke his silence on Tuesday and defended the conclusions of legal memorandums he had signed as a Bush administration lawyer that allowed use of several coercive interrogation practices on suspected terrorists.

Judge Bybee, who issued the memorandums as the head of the Office of Legal Counsel and was later nominated to the federal appeals court by President George W. Bush, said in a statement in response to questions from The New York Times that he continued to believe that the memorandums represented "a good-faith analysis of the law" that properly defined the thin line between harsh treatment and torture.

As the head of the Office of Legal Counsel at the Justice Department, Mr. Bybee signed two memorandums in August 2002 that discussed the legal limits on American interrogators seeking to apply pressure on captured operatives of Al Qaeda.

The two memorandums, which provided a basis for the use of techniques like waterboarding, sleep deprivation and isolation under certain restrictions, provoked a storm of controversy and a debate about whether Bush administration lawyers had provided legal cover for torture.

Until recently, Judge Bybee had been a largely unseen figure in the debate. In contrast, John Yoo, his deputy at the Office of Legal Counsel, who is generally believed to have been the memorandums' principal author, has defended them regularly. But Judge Bybee has come under renewed attention. Some people have called for his impeachment, he is being investigated by the Justice Department on his professional standards, and he has even become estranged from friends.

Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect. Given the widespread criticism of the memorandums, he said he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions.

But he said: "The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct."

Other administration lawyers agreed with those conclusions, Judge Bybee said.

"The legal question was and is difficult," he said. "And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law."

Prof. Christopher L. Blakesley, a colleague on the law school faculty at the University of Nevada, Las Vegas, said that after the first memorandum was released, he was unable to restrain himself from expressing disagreement at a 2004 dinner at a restaurant that included their wives.

"I asked him how he could sign such an awful thing," Professor Blakesley recalled in an interview.

He said the judge replied that he could not talk about the matter. The dinner proceeded awkwardly, Professor Blakesley said, and they have not spoken since.

Professor Blakesley said that while he liked Judge Bybee, "he has some basic flaws including being very naïve about leaders."

"He has too much respect for authority and will avoid a confrontation no matter what," the professor continued.

In March 2004, before the first memorandum was disclosed, Judge Bybee spoke to about two dozen law clerks at the federal courthouse in Pasadena, Calif. It was part of a program in which judges discussed their earlier careers, and some of the clerks present said Judge Bybee talked about his time in the Bush Justice Department.

Two of the clerks recall his saying that much of the work was dull but that some concerned matters "so awful, so terrible, so radioactive" he doubted that the administration would ever disclose it. Tuan Samahon, a professor at the U.N.L.V. law school who was a clerk to Judge Bybee in his first year on the bench, said he was initially puzzled by those comments but understood a few weeks later when the first of the memorandums was made public.

Professor Samahon said he interpreted Judge Bybee's remark to "refer to the nature of the advice sought and not his office's work product."

Another clerk at the luncheon, Nina Rabin, who now runs an immigration clinic at the University of Arizona, said she found Judge Bybee's remarks troubling because he suggested that his role as a lawyer could be divorced from whatever policy was being pursued. "He definitely offered a view that was sanitized," she said, "and I thought that was disingenuous in that it removed any responsibility on the part of the lawyer for what was happening."

In a reunion of law clerks last May at a Las Vegas restaurant, first reported by The Recorder, a California legal newspaper, Judge Bybee also spoke about his work at the Office of Legal Counsel, first saying he was proud of the work he had done as a judge and the help given him by his clerks. He then said, according to several witnesses, "I wish I could say that of the prior job I had."

Judge Bybee, whose chambers are in Las Vegas, is generally well-regarded by his colleagues on the United States Court of Appeals for the Ninth Circuit, which spans several Western states.

Judge Betty Fletcher, a member of the court for 30 years, said in a statement: "He is a moderate conservative, very bright and always attentive to the record and the applicable law. I have not talked to other judges about his memo on torture, but to me it seems completely out of character and inexplicable that he would have signed such a document."

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