Las Vegas Sun

November 16, 2018

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Former LV law professor questioned on legal views

WASHINGTON -- Former Las Vegas law professor and federal judge nominee Jay Bybee found himself today facing renewed questions about his role in a 1989 federal investigation of loans made to Iraq.

The Senate Judiciary Committee today held a hearing for Bybee, but Democrats who were expected to grill Bybee on some of his writings, and possibly on his role in the Iraqi loan investigation, did not show. Only Sen. Ted Kennedy, D-Mass., and Sen. Patrick Leahy, D-Vt., appeared briefly and did not question Bybee at the hearing, which was held at the same time Secretary of State Colin Powell was on television making his case against Iraq at the United Nations.

Bybee was first recommended last year by Sen. John Ensign, R-Nev., and nominated by President Bush for a seat on the 9th U.S. Circuit Court of Appeals. The nomination died after it was tied up in partisan wrangling over judicial nominees, and Congress must now reconsider Bybee.

Bybee has not been a controversial candidate until this week, when reports of the 14-year-old Iraqi loan investigation resurfaced.

At issue is a investigation conducted in 1989 by a federal prosecutor in Atlanta into loans made by an Italian bank to Iraq for humanitarian programs -- loans backed by the U.S. Department of Agriculture. The investigation was designed to find out if Iraq was actually funneling the money to its military.

Bybee was then a White House lawyer for then President Bush and called the federal prosecutor to inquire about the investigation.

Bybee insisted then that he was merely trying to find out background information about the case that was already public and in no way intended to influence the inquiry. Ultimately Bybee wanted to know if there was information available that would embarrass the White House if it approved more loan guarantees to Iraq. The federal prosecutor backed Bybee's account.

Two federal investigations in 1992 said Bybee in no way intended to -- or actually -- influenced the investigation.

Bybee today told the Sun he could not comment on the investigations, long since closed.

Sen. Orrin Hatch, R-Utah, Judiciary Committee chairman, had high praise for Bybee, and appeared angry that the controversy had resurfaced, hinting that a committee staffer may have inappropriately leaked confidential information to the media in an effort to smear Bybee. The New York Times ran a short story about Bybee and the Iraq investigation today.

"This is wrong," Hatch said. "It's outrageous, and it's dirty politics. This is the worst I've seen since the Clarence Thomas hearings."

Hatch said Bybee was one of the most qualified candidates for the federal bench he had ever seen.

Bybee also enjoys support from Sen. Harry Reid, D-Nev., as well as Ensign, who testified on his behalf today.

"We fully expect to see him confirmed," Ensign said after testifying.

Hatch vowed that his committee could approve Bybee as soon as next week, setting up a full Senate vote to confirm him.

But several Democratic senators, including Kennedy and Leahy, the top panel Democrat, are likely to submit written questions to Bybee before they offer him their vote.

Leahy said today he was concerned that Bybee in his current job as an assistant attorney general and constitutional law adviser in the Department of Justice, was part of a troubling "culture of secrecy that has enveloped the Justice Department over the last two years."

Leahy said he was interested in Bybee's position on issues that trouble civil rights activists, including the Justice Department's stance that terrorist suspects be tried in military tribunals; the department's use of local police to make arrests for civil violations of immigration laws; the department not detaining al Qaida suspects under rules of the Geneva Convention; and "who knows how many other controversial policies."

Bybee also found himself the target of several liberal-leaning legal groups.

The Alliance for Justice, which analyzed Bybee's legal writings, said Bybee would push a state's rights agenda "far beyond even the conservative Supreme Court" and curtail the ability of Congress to protect civil rights.

Bybee has a "pattern of hostility to civil rights" and has not protected the rights of gays and lesbians, the group said.

Ensign and Reid dismissed the groups' concerns.

"You can't please everybody," Reid said.

Ensign said Bybee enjoys support from a number of liberal and conservatives that have worked with him closely over the years.

"Some of these charges are ridiculous," Ensign said. "Professor Bybee is the pride of the Boyd School of Law."

Bybee left the University of Nevada, Las Vegas for the post in the Justice Department in November 2001. Bybee taught constitutional law, civil procedure and administrative law.

Bybee spent much of his childhood in Las Vegas. He got his undergraduate degree in economics and law degree from Brigham Young University.

The 9th Circuit Court hears federal appeals cases that originated 11 Western states, including Nevada, and has one of the largest caseloads of any federal court.