WASHINGTON — Nominated by President Bush in 2001 for a top job at the Department of Justice, Jay S. Bybee promised the Senate Judiciary Committee he would “not trample civil rights in the pursuit of terrorism” and he would “bring additional sensitivity to the rights of all Americans.”
The standout graduate of Brigham Young University and its law school got the Senate’s approval for that job. Two years later, he won a surprisingly strong bipartisan vote of 74-19 confirming his lifetime appointment to the 9th U.S. Circuit Court of Appeals, one of the few unabashed conservative nominees to avoid Democrats’ filibusters.
Today, many of the same lawmakers who praised Bybee’s integrity and decency and voted for his confirmation are now using him as a battering ram against the Bush administration. As the assistant U.S. Attorney General over the Office of Legal Counsel, Bybee signed an August 2002 memo advising President Bush he could order just about any means of interrogation necessary to get captured suspects in the war on terror to talk, and the commander-in-chief would be immune from legal prosecution or congressional repercussions.
Now widely known as the “Bybee memo,” the advice is being blamed for fostering a belief among soldiers at Abu Ghraib prison in Iraq that torture was not only legally justified, it was encouraged from the uppermost levels of U.S. command. The White House has consistently denied Bush ever endorsed torture, and this week took the highly unusual step of publicly disavowing the legal advice given by its own Justice Department, calling it “abstract academic theory.”
Bybee’s path from bipartisan poster child to pariah has been surprisingly rapid. The White House effort to distance itself from Bybee’s controversial legal analysis has left even some of Bush’s most loyal supporters in Congress headed in the opposite direction.
A day after the White House denunciation, Senate Judiciary Committee Chairman Orrin Hatch took to the Senate floor to declare the legal arguments outlined in the Bybee memo “do make sense” and were “well-reasoned opinions.”
“For somebody to say carte blanche that the Geneva Conventions apply and should apply to everything, that flies in the face of not only international law, it flies in the face of what is happening in this situation,” said the Utah Republican, who added he didn’t necessarily agree with all the arguments in the memo.
The confusion over whether Bybee’s legal opinions are fundamentally defective is in sharp contrast to the near universal praise he received last year when he was wading through the confirmation process for his spot on the 9th Circuit, a seat open due to a Nevada judge’s retirement.
New University of Utah President Michael Young, also a BYU graduate, wrote an effusive letter to the Senate on behalf of Bybee while Young was law school dean at George Washington University. He said Bybee would be a “superb judge” not only because of his sharp legal mind, but also because he is “entirely transparent about his core values” which, Young said, “are absolutely the right ones.”
“They bespeak a fidelity to law as both a device to ensure that all have the opportunity to reach their fullest capacity, as well as a shield against man’s least worthy impulses,” wrote Young.
In another letter for Bybee, University of Nevada-Las Vegas law school dean Richard Morgan said his former faculty member “is a creative thinker, but one whose creativity is appropriately tempered by rigorous legal analysis. More importantly, he is a compassionate and decent person who will approach his work in humane and very reasonable ways.”
Despite some Democrats’ concerns that Bybee’s views on federal laws regarding domestic violence, gays and religious expression were too far to the right, the former UNLV law professor had critical support from Senate Assistant Minority Leader Sen. Harry Reid, D-Nevada, who, like Bybee, is a member of The Church of Jesus Christ of Latter-day Saints.
While Reid was somewhat pained over Bybee’s well-publicized opinions — “Why does he have to write so much?” he once asked Bybee’s wife — he urged Democrats to support his confirmation to the federal bench.
Confirming a conservative allowed Democrats to counter Republican campaign claims that they were obstructionist in blocking Bush’s right-leaning nominees. Plus, they recognized putting Bybee on the famously liberal 9th Circuit Court would not swing the ideological balance, since an overwhelming majority of the sitting justices were named by Democratic administrations.
“If he were nominated to another court, I might have evaluated this differently,” said Sen. Charles Schumer, D-N.Y., who voted for Bybee to “provide some balance” to the 9th and is now one of the outspoken critics of the Bush administration’s deliberations over legalizing torture.
Another Democrat leading the charge to subpoena more White House interrogation memos, Sen. Patrick Leahy of Vermont, also voted to confirm Bybee last year. Leahy acknowledged misgivings, saying several senators didn’t attend his confirmation hearing to ask questions and he feared Bybee will “prove to be an ideologically driven conservative activist” on the federal bench.
But Leahy voted for Bybee on the floor, citing Reid’s endorsement and because “no one has called into question his ability and commitment to setting aside his views as a judge.”
Republicans were unwavering in their praise of Bybee.
“I am a personal friend,” Hatch said last March before Bybee’s confirmation. “I know his quality. I know what a good thinker he is.”
Hatch has led the GOP defensive in blocking Democrats’ attempts to subpoena more records on interrogation policy from the White House. The Bybee memo was written with his deputy at the time, John Yoo, who served as Hatch’s general counsel on the judiciary committee in 1995 and 1996.
“I know some of the people who actually rendered [the interrogation policy opinions],” Hatch said Wednesday. “They are top notch authorities in these areas. My colleagues might disagree with them, but they cannot necessarily refute them.”
The White House, however, can and has. During a background briefing this week by senior administration officials who spoke to reporters on the condition they not be named, they confirmed the policy advice in the Bybee memo was undergoing drastic revisions.
“We’re scrubbing the whole thing,” a senior Justice Department official told USA Today. “It will be replaced.”
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