Torture Memo Author Not Seen As Ideologue Two Justice Department memos written in 2002 determined that certain harsh interrogation practices were not torture. Those memos came to be known as Bybee 1 and Bybee 2 — named for the man who signed them. He is Jay Bybee, and he was the head of Justice's Office of Legal Counsel. He is now a federal appellate court judge.
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Torture Memo Author Not Seen As Ideologue

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Torture Memo Author Not Seen As Ideologue

Torture Memo Author Not Seen As Ideologue

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Two Justice Department memos written in 2002 determined that certain harsh interrogation methods, including waterboarding, were not torture. The documents were signed by Jay Bybee, then the head of the Justice Department's Office of Legal Counsel. Today he's a federal judge on the 9th Circuit Court of Appeals. NPR's Ina Jaffe has this profile.

INA JAFFE: There's nothing out of the ordinary about Jay Bybee's six years on the bench, says Douglas Kmiec, a professor of law at Pepperdine University. He's 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.

Professor DOUGLAS KMIEC (Law, Pepperdine University): It's a very disturbing memo. I don't think there's any member of the American public - let alone the legal profession - that would not be disturbed by what's described there.

JAFFE: But Kmiec says he has special reason to be disturbed - he was once head of the Office of Legal Counsel himself during the administrations of Ronald Reagan and the first President Bush. He thinks the memo's 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.

Prof. KMIEC: The look of the opinion, as if it was written to justify after the fact, is a breach of the practice of that office.

JAFFE: 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.

Professor MICHAEL HIGDON (University of Nevada, Las Vegas): He was an excellent, excellent teacher.

JAFFE: Says Michael Higdon, who is now himself a professor at UNLV. Students knew that Professor 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.

Prof. HIGDON: As a gay student, I was very passionate about the case and I wanted to talk about it. And I just sort of had this fear that he was going to be like, well, the Supreme Court got it wrong, you know, and you're wrong. But he really made me feel like my opinions and my thoughts were valid, even though I sort of doubted deep down he agreed with them.

JAFFE: 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.

Professor THOMAS MCAFFEE (University of Nevada, Las Vegas): When we were working on the book together, it was very clear to me that he thought it was important that the Constitution limited power and checked it in various ways.

JAFFE: So McAffee doesn't understand how Bybee could write a memo saying that the United States 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 College in Southern California. [POST-BROADCAST CORRECTION: The school is actually called Chapman UNIVERSITY.]

Mr. JOHN YOO (Former Deputy Assistant Attorney General): The Supreme Court itself says that no branch of government has to obey an unconstitutional law.

JAFFE: The expansion of presidential power in time of war is one of John Yoo's signature issues. Jay Bybee may have trusted his deputy too much, says Douglas Kmiec.

Prof. KMIEC: It's a like bit 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. You would want to ask a few questions.

JAFFE: 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.

Professor CHRISTOPHER BLAKESLEY (University of Nevada, Las Vegas): He's a guy who is very kind on an individual basis, but he can't stand a fight. You know, he'll kind of do anything to avoid a fight.

JAFFE: Blakesley last saw Bybee in 2004 - it was the day that the first of the torture memos Bybee authored was leaked to the public.

Prof. BLAKESLEY: And it just so happened we were having dinner that night with family. And I had to tell him I found it all so abhorrent and how could he sign it?

JAFFE: What did he say?

Prof. BLAKESLEY: I think he said, you know, it's an awful situation - I can't talk about it.

JAFFE: 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.

Ina Jaffe, NPR News.

NORRIS: Tomorrow we'll profile the top lawyer at the CIA, John Rizzo. Several of the torture memos were addressed to him.

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