Torture Memo Author Not Seen As Ideologue

Correction May 27, 2009

We referred to a forum last week at "Chapman College in Southern California." The school, in Orange, Calif., is actually called Chapman University.

Two Justice Department memos written in 2002 determined that certain harsh interrogation practices like waterboarding were not torture. The documents were signed by Jay Bybee, then the head of the Justice Department's Office of Legal Counsel. Today Bybee is a federal judge on the 9th Circuit Court of Appeals.

There is nothing out of the ordinary about Bybee's six years on the bench, says Douglas Kmiec, a professor of law at Pepperdine University. He is efficient, moderately conservative and issued no landmark rulings. But the recently released memo that Bybee signed when he ran the Office of Legal Counsel? That's another matter, says Kmiec.

"It's a very disturbing memo," Kmiec says. "I don't think there's any member of the American public — let alone the legal profession — who would not be disturbed by what's described there."

But Kmiec says he has special reason to be disturbed — he himself was once head of the Office of Legal Counsel, during the administrations of Ronald Reagan and George H.W. Bush, and he thinks the memos' detailed description of how each mode of harsh interrogation may be legally used suggests that the CIA was already engaged in the practices the memo approved.

"The look of the opinion — that it was written to justify after the fact — is a breach of the practice of that office," he says.

Before Bybee headed that office, he was a law professor, first at Louisiana State University, then at the law school at the University of Nevada, Las Vegas.

"He was an excellent, excellent teacher," says Michael Higdon, who is now himself a professor at UNLV. Students knew that Bybee was a conservative, he says, but he was never an ideologue in class. As an example, Higdon recalls the time he picked a Supreme Court ruling in a famous gay rights case as his class project.

"As a gay student, I was very passionate about the case and I wanted to talk about it," Higdon says. "And I had this fear that he was going to say 'Well, the Supreme Court was wrong, and you're wrong.' But he really made me feel like my opinions and my thoughts were valid, even though I doubt deep down he agreed with them."

There are old friends who wonder if Bybee deep down agreed with the contents of the memos that bear his signature.

Thomas McAffee first met Bybee 20 years ago because of their shared faith. McAffee had written an article for a Mormon publication, and Bybee was his editor. More recently, they were on the law school faculty together at UNLV and co-authored a book on the Ninth and 10th amendments to the Constitution.

"When we were working on the book together, it was clear to me that he thought it was important that the Constitution limited power and checked it in various ways," McAffee says.

So McAffee doesn't understand how Bybee could write a memo saying that the U.S. law banning torture may be unconstitutional because it would infringe on the president's authority to conduct war. John Yoo, Bybee's deputy at the time, defended that position just last week at a forum at Chapman University in Orange, Calif.

"The Supreme Court itself says that no branch of government has to obey an unconstitutional law," he said.

The expansion of presidential power in wartime is one of Yoo's signature issues. Bybee may have trusted his deputy too much, says Kmiec.

"It's like lending your car to a co-worker and coming down to the garage at the end of the day and discovering it to be a wreck," Kmiec says. "You would want to ask a few questions."

But Bybee tended to avoid confrontations, says another longtime friend, Christopher Blakesley. The two men taught at two law schools together, first at Louisiana State and then UNLV.

"He's a guy who's very kind on an individual basis, but he can't stand a fight," Blakesley says. "He'll do anything to avoid a fight."

Blakesley last saw Bybee in 2004 — that was the day that the first of the so-called torture memos Bybee authored was leaked to the public.

"And it just so happened we were having dinner that night with the family. I had to tell him I found it abhorrent, and how could he sign it?" Blakesley says. What did he say? "I think he said, 'It's an awful situation — I can't talk about it.' "

And Bybee's not likely to be talking about it anytime soon, not with government investigations, possible criminal charges and calls for impeachment hanging over his head.

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