The New York Times
June 24, 2004
The Bush administration is distancing itself from a memorandum prepared two years ago by a government lawyer asserting that the president's power to use torture to extract information from suspected terrorists is almost unlimited.
Before the recent controversy concerning his work, however, some of the officials who received the memorandum worked diligently to elevate the lawyer, Jay S. Bybee, to the federal bench. Nominated by President Bush in 2002 and confirmed by the Senate last year, he now sits on the United States Court of Appeals for the Ninth Circuit.
Former colleagues say the judge, whose chambers are in Las Vegas, is a serious, soft-spoken, reflective man. They say it is difficult to reconcile his discussion of torture in clinical, dispassionate detail with his background. A former legal academic, Judge Bybee told Meridian, a Mormon magazine, last year that he hoped to be remembered for his probity.
"I would like my headstone to read, `He always tried to do the right thing,' " Judge Bybee said.
The memorandum, dated Aug. 1, 2002, defined torture narrowly under a federal law that prohibits it. Only pain like that accompanying "death, organ failure or the permanent impairment of a significant body function" qualifies, Mr. Bybee wrote. It went on to say torture is unlawful only if the infliction of pain is the offender's specific objective. "Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent," he wrote.
The memorandum also discussed various potential defenses to criminal prosecutions for torture, including necessity and self-defense. Finally, it asserted that the president was free under his authority as commander in chief to order torture notwithstanding treaties and laws barring it.
The memorandum said it was addressed to Alberto R. Gonzales, the White House counsel, in response to his questions. At a White House briefing on Tuesday, Mr. Gonzales specifically disavowed the part of the memorandum discussing the president's authority as commander in chief, saying it was "irrelevant and unnecessary."
Senior Justice Department officials took a broader view, saying the entire memorandum would be withdrawn.
Judge Bybee, 50, served as assistant attorney general in charge of the Office of Legal Counsel, an elite unit of the Justice Department that advises the executive branch on the law, from 2001 until he joined the appeals court last year. Among his predecessors in the office were William H. Rehnquist, now the chief justice, and Antonin Scalia, the associate justice.
The Office of Legal Counsel "is informally called the attorney general's lawyer," said Douglas W. Kmiec, who ran the office in the administrations of President Reagan and the first President Bush. "We used to call it the conscience of the Justice Department."
Justice Department officials said that the memo had been sent directly from the Legal Counsel's office to the White House and that they did not believe it had required the approval beforehand of Attorney General John Ashcroft or his chief deputy at the time.
A former lawyer in the Legal Counsel's office said the memorandum "went through the usual channels."
Those channels would include the attorney general, said Walter Dellinger, who was in charge of the office in the Clinton administration.
"I would be flabbergasted if a memo of this singular importance was not submitted to the attorney general as well as the White House," he said. "If it was not, I am not sure what the attorney general was supposed to be doing."
President Bush apparently never saw the memorandum. "I don't believe the president had access to any legal opinions from the Department of Justice," Mr. Gonzales said Tuesday.
Senators on the Judiciary Committee who voted on Mr. Bybee's nomination were aware that as head of the legal counsel's office he would have played an important role in establishing the legal underpinnings of the fight against terror. But the lawmakers were refused access to the office's opinions on the subject.
In response to written questions posed by several senators on Feb. 21, 2003, Mr. Bybee declined to comment on the advice given by his office. Asked by Senator Patrick J. Leahy, Democrat of Vermont, to discuss his thinking about the status of detainees, Mr. Bybee responded: "As an attorney at the Department of Justice, I am obligated to keep confidential the legal advice that I provide to others in the executive branch. I cannot comment on whether or not I have provided any such advice and, if so, the substance of that advice."
In an interview yesterday, Mr. Leahy said the White House had withheld important information.
"If his nomination were up today," the senator said, "knowing now what we weren't permitted to know then, the Senate — this senator included — might not be so willing to give him the same benefit of the doubt for this lifetime appointment."
On Feb. 27, 2003, the Judiciary Committee, in a vote of 12 to 6, approved Mr. Bybee's nomination, with all of the votes against him cast by Democrats. Two Democrats voted in favor of Mr. Bybee, one of them Charles E. Schumer of New York. Mr. Schumer said later that the vote showed that he was willing to approve nominees whose views were inconsistent with his own.
The memorandum itself was unusual, former lawyers in the office said.
"What's depressing about the memo is not that parts of it appear to be wrong," Mr. Dellinger said. "What's depressing is that it's such a one-sided advocacy document."
Through a spokesman, Judge Bybee declined requests for an interview. A former deputy, John Yoo, now an international law professor at the University of California in Berkeley, also contributed to the August 2002 memorandum. He said he could not comment on it, citing his ethical obligations.
But he said generally that the question of what conduct constitutes torture is an important and legitimate one. A good analogy, he said, was the legal advice police officers receive on the use of force.
"This is an unprecedented conflict with a completely new form of enemy that fights in unconventional ways that violate the very core principles of the laws of war by targeting civilians," Professor Yoo said in an interview yesterday. "We should want the executive to ask what rules apply to that conflict before they enact policy, not after."
A graduate of Brigham Young University and its law school, Judge Bybee worked as a law clerk on the United States Court of Appeals for the Fourth Circuit, in Richmond, Va.; in private practice in Washington; as a lawyer in the Justice Department and the White House in the administrations of President Reagan and the first President Bush.
But his main work in the decade before he rejoined the Justice Department in 2001 as assistant attorney general was academic. He taught at the law school of Louisiana State University and the University of Nevada, specializing in constitutional and administrative law and civil procedure.
Legal experts said they suspected that Professor Yoo was the primary author of the memorandum, given his background in international law. But a former official said that gave Judge Bybee too little credit.
"He's not an autopen machine," the official said of Judge Bybee. "He's a law professor and federal judge."
Judge Bybee is not, however, a dominant personality.
"He is a pretty gentle soul," Professor Kmiec said. "If you wanted to compare him to a personality, it would not be Donald Rumsfeld. He would be quieter, more reflective, quite temperate."
The judge is not without a playful side.
"He has a kazoo collection," said N. Gregory Smith, a former colleague on the law faculty at Louisiana State. "He'd get a little ensemble of kazoo enthusiasts together and play. They would occasionally perform the `1812' Overture."
Eric Lichtblau, David Johnston and Richard W. Stevenson contributed reporting for this article.