Thursday, May 7, 2009 | 2 a.m.
As criticism of federal appellate court Judge Jay Bybee mounts for authorizing harsh interrogation techniques as a Bush administration lawyer, the Nevada jurist has reached out to members of the state’s congressional delegation, apparently to tell his side of the story.
The step suggests that Bybee believes maintaining the judicial branch’s customary distance from the political process is no longer in his best interest. Congress has the power to remove him from his seat on the 9th U.S. Circuit Court of Appeals.
Bybee has remained mostly quiet despite his rising profile as the former Justice Department official who, in 2002, signed off on a department memo that sanctioned the practice of waterboarding, which critics say is torture.
After the Obama administration released the memos written by Bybee and two other Justice Department lawyers on April 16, opponents of the interrogation tactics began calling for his impeachment by Congress.
Now Bybee is apparently eager to make his case. The judge, who lives in Southern Nevada and has his office in Las Vegas, reached out to Democratic Rep. Dina Titus, who represents Bybee in Nevada’s 3rd Congressional District. Titus was contacted last month after The New York Times called for Bybee’s impeachment.
Titus said Wednesday that no meeting has been scheduled. But she said she hopes to hear Bybee out — and to share her concerns.
“I’d like to hear from him if he thinks he made the right decision interpreting the law and doing the job as he saw it defined,” Titus said Wednesday. “But I also will not hesitate to make it clear to him that I absolutely disagree with his interpretation. The United States is not a country of torture.”
Titus and Bybee are professional acquaintances. They have served on the faculty at UNLV — Titus is on leave from the political science department and Bybee remains a senior fellow on constitutional law at Boyd School of Law.
Democratic Rep. Shelley Berkley’s office was also contacted by Bybee’s representative in April. Berkley’s spokesman said the two have not met, and he was unsure whether they would.
“This was torture, in her mind,” spokesman David Cherry said. “I don’t know if there’s anything he could say to her at this point that would change her thinking.”
No one in the Nevada delegation has publicly asked Bybee to step off the bench or supported calls for his impeachment.
In fact, Republican Sen. John Ensign has become one of Bybee’s most outspoken supporters in Congress.
“He is a brilliant legal mind, and he simply offered his interpretation of the law,” Ensign spokesman Tory Mazzola said Tuesday.
Senate Majority Leader Harry Reid has said he is waiting for more information. He has not met with Bybee.
Nevada’s senators could not immediately say whether Bybee had sought meetings with them, too.
Bybee broke his silence last week by issuing a statement to The New York Times defending his work.
Even so, Congress has methodically pressed ahead in seeking to review the conduct of the Bush administration’s Justice Department.
House Judiciary Committee Chairman John Conyers of Michigan has asked Attorney General Eric Holder to appoint a special prosecutor to investigate possible federal crimes committed during the interrogations. Conyers also has sponsored legislation to establish various investigatory panels.
Senate Judiciary Chairman Patrick Leahy of Vermont invited Bybee to testify before his committee. A Judiciary subcommittee is to hold a hearing next week on the memos. Bybee is not expected to testify.
The Senate Intelligence Committee is also conducting a review of security policies.
Many lawmakers are withholding judgment, however, until the Justice Department releases the results of its continuing five-year internal ethics review of Bybee and others involved in the memos. The findings are due this year.
The Washington Post and New York Times reported Wednesday that a 200-plus-page draft prepared in January under the Bush administration recommends disciplinary action by state bar associations that license Bybee and the other attorneys involved, rather than criminal prosecution.
Bybee is not a member of the Nevada state bar. Rather, he belongs to the Washington, D.C., bar.
Wallace E. Shipp, counsel for the Washington bar, would not comment on the Bybee matter Wednesday but did explain the process for reviewing claims of misconduct.
If the bar receives a complaint, Shipp and his staff review the matter and determine whether it deserves “docketing,” or a formal investigation. Of 1,200 complaints the bar receives each year, 450 to 550 a year qualify for docketing, Shipp said.
After the investigation, the bar can recommend sending the issue to a disciplinary hearing before a committee made up of two lawyers and a nonlawyer member of the public. The panel makes a recommendation, which goes to a Board of Professional Responsibility. After that, the matter goes to the D.C. Court of Appeals. The process can take one to three years.
If disbarred, however, a federal judge can remain on the bench unless impeached by Congress. Federal judges do not have to be members of the bar to be nominated to the federal bench, at any level, including on the Supreme Court.
Coolican reported from Las Vegas, Mascaro from Washington.