Legal Ethics

Does Bybee’s ‘Easy Personality’ Explain Why He Signed 'Torture Memos'?

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Some acquaintances wonder why Judge Jay Bybee signed two memos approving harsh interrogations of terrorism suspects when he led the Justice Department’s Office of Legal Counsel in 2002.

The Recorder (sub. req.) partly answers the question, saying the federal appeals judge’s “easy personality” may provide a clue. That personality may also help him recover from this latest setback, the story says.

Bybee, with the San Francisco-based 9th U.S. Circuit Court of Appeals, finds himself at the center of controversy and inquiries into his role in signing the memos at OLC, including a probe ordered by a Spanish investigative judge. Bybee has hired high-profile appellate lawyer Maureen Mahoney of Latham & Watkins to represent him, the Recorder story says.

One of the memos, written by John Yoo, said interrogation techniques could be cruel, inhumane or degrading without constituting torture. Another memo, also written by Yoo, approved a list of interrogation techniques.

Bybee indicated some regret about his work at OLC when he met former judicial clerks at a Las Vegas steakhouse for a five-year reunion, according to former clerk Tuan Samahon, who spoke to the Recorder. Bybee’s telling remark came after he talked about the well-researched memos produced by his judicial clerks, said Samahon, now a professor at the University of Nevada, Las Vegas. Then the judge reportedly added, “I wish I could say that of the prior job I had.”

Another regret concerned Bybee’s decision to attend law school at Brigham Young University, instead of Duke University, to stay close to a girlfriend, according to a friend, lawyer Steven Guynn of Gibson, Dunn & Crutcher. The girlfriend broke off the relationship when Bybee was still a 1L.

Bybee faced other challenges as well, the story recounts. As a Mormon missionary in Chile, he managed to proselytize while avoiding politics and a military curfew. In his 20s, he stepped in to lead his family after his father died from cancer thought to have been caused by his work at the Nevada nuclear test site.

Bybee’s work at OLC has flummoxed his ideological opposite on the 9th Circuit, Betty Fletcher. “It seems completely out of character and inexplicable that he would have signed such a document,” she told the Recorder.

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