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9th Circuit

Bybee Colleague Says So-Called Torture Memo Just ‘Got Away from Him’

Posted Apr 27, 2009 6:14 AM CST
By Debra Cassens Weiss

Federal appeals judge Jay Bybee had been a popular law professor at the University of Nevada at Las Vegas before his stint in the Justice Department’s Office of Legal Counsel, winning professor of the year in 2000.

Now Bybee’s colleagues at UNLV and elsewhere are theorizing why he signed an August 2002 memo approving harsh interrogation techniques for terrorism suspects, and saying he apparently has regrets, the Washington Post reports.

UNLV law professor Chris Blakesley is among the former colleagues who spoke to the newspaper. "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?"

The Post article cites a regretful remark by Bybee, first reported by the Recorder, at a dinner for his former law clerks at the San Francisco-based 9th U.S. Circuit Court of Appeals, where he is now a judge. Bybee told the former clerks he was proud of their legal work, then added that he wished he could say the same of his previous position.

Another fellow legal scholar and longtime friend who remained anonymous told the Post about Bybee’s second thoughts. "I've heard him express regret at the contents of the memo," the colleague said. "I've heard him express regret that the memo was misused. I've heard him express regret at the lack of context—of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety."

The lawyer noted Bybee’s explanation for signing. "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."

Comments

1.

B. McLeod
Apr 27, 2009 6:31 AM CST

You do have to wonder how he thought these memos were going to be used, given the questions that were being submitted for response.  More likely (like John Yoo), he simply thought these memos would never see the light of day, and so signed off thinking nobody would ever bring this back to his doorstep.

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2.

Marc J. Randazza
Apr 27, 2009 10:12 AM CST

If he’s ashamed of the memos, that’s a really good start.  Not many in his position would be so contrite, and I’ll make anyone a slap bet that John Yoo never displays such humility.

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3.

J.D.
Apr 27, 2009 10:33 AM CST

This “theorizing” by lib law professors comes down to this: “conservatives (textualists, wink, wink) = bad;” “caterpillars in boxes = torture;” “there’s no such thing as terrorism.”

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4.

JR
Apr 27, 2009 12:32 PM CST

Contrite?  “Theorizing by lib professors”?  Come on, you right-wing apologists.  Mr. Bybee, aware he may end up out of a job, planted these stories to save his skin.
A formalist and textualist would have stood his ground and rejected the tortured logic to allow illegal torture.  I think Mr. Bybee, like many so-called texutalists, an activist in sheep’s clothing, but one who hides behind formalism instead of defending his or her choices.

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5.

D. Bird
Apr 27, 2009 1:08 PM CST

How do you pronounce this guy’s name—BUY-Bee or BIB-BEE?

It seems like an unusual name.

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6.

R
Apr 27, 2009 4:50 PM CST

“Just got away from him.”

Wow. Unbelievable.

But that statement pretty neatly sums up the entire George W. Bush presidency. I can just see The Shrub saying it with his trademark drawl: “Sorry, folks, it just got away from me.”

Look: we - the United States of America - EXECUTED Japanese soldiers for waterboarding our troops in World War II.

I wonder if the defense lawyers for those soldiers thought of using the “it just got away from me” excuse?

You have to look at the memo. Judge Bybee was being asked to provide a detailed legal analysis of one of the most solemn, important issues ever: is, or isn’t, this proposed course of action TORTURE?

The very fact that the first paragraph of the memo focused so much on the captive’s status as a potentially high-up Al Qaeda operative is incredibly telling. If it’s torture, it’s torture: it doesn’t matter who the person is who’s being tortured. The ends do not justify the means.

Bybee provided the ammo for The Shrub to get up there on a stage with his buffoonish smirk and shoulder-shrugging and, in an instant, destroy America’s credibility with his “We don’t torture” comment.

We DO torture. Or at least we have - only until very, very recently. And it will take us years if not decades to get beyond that. In the meantime, captured U.S. soldiers will be put in harm’s way.

“It just got away from me.”

Wow. I’d rather he hadn’t said anything at all.

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7.

General Yamashita (JAG - CWP)
Apr 27, 2009 6:30 PM CST

$6 R - 1 hour, 10 minutes ago
(text deleted)

GY: I agree with “R”: “But that statement pretty neatly sums up the entire George W. Bush presidency.”
—————————
GT: I’m uncertain re hanging for HOHboarding.
Do you have a cite?
The Japanese military was egregiously cruel. According to General Yamashita’s defense counsel, who wrote a book on the court martial, General MacArthur was set to get even for the humiliation suffered when Mac had to “all ahead flank” to Australia. Even a couple of USSC Justices complained.

Our former Congressman was a survivor of the Bataan Death March. I wish my Dad (USN 1932-1946) were alive and healthy. He had a close buddy blown into little pieces in front of his eyes.

Not withstanding the musical South Pacific, the carnage in that theater was so bad that not many survivors talked about it, especially the fixed bayonet hand to hand combat and flame-thrower components.

R. ... the United States of America - EXECUTED Japanese soldiers for waterboarding our troops in World War II.

GY-JAG: Yes, and we hanged Fans Frank, Esq in Germany. In 1942,

Mr. frank was spanked by Hitler for having the temerity to argue that Himmler’s SS had no business usurping judicial functions and that so doing trashed the independence of the judiciary.

MY POINT: Mr. R is correct in his analysis of Bush (a Nero emulator). Those cronies he appointed/hired who have JD’s AND an “Esq” should not be criminally prosecuted.

They SHOULD BE haled before an appropriate bar disciplinary forum and held to answer for their transgressions.

I agree that the Queen of Hearts, “Off with their heads” is a tad harsh and probably bumps Amendment VIII.

But surely at LEAST one of them deserves to be permanently disbarred and many others warrant a penalty calling for an actual suspension up to and including an indefinite suspension.

:-) Rant Mode Off :-)

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8.

J.D.
Apr 28, 2009 8:33 AM CST

During WWII we “executed Japanese soldiers” but today the Left cries when we put caterpillars and state-less jihadists in cardboard boxes together.

If R, above, finds justification in executing soldiers of a recognized foreign country, why does he today not support a little interrogation of state-less bombers who want to kill him?

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9.

John P. Fenner
May 1, 2009 3:46 PM CST

Dear Judge Bybee & Prof. Yoo:

In German, the word for “The Unitary Executive”—the concept you used to justify torture—is “Fuhrerprincep.”

Give up your Bar cards, and go find some honest work.

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