Tuesday, June 15, 2004 | 11:03 a.m.
WASHINGTON -- U.S. senators got few answers from Jay Bybee about his work at the Justice Department while evaluating his nomination to be a judge on the 9th U.S. Circuit Court of Appeals.
Now the former University of Nevada, Las Vegas, law professor is in the spotlight because his signature is on a 50-page memo from August 2002 offering a justification of the use of torture in some circumstances.
Bybee has not responded publicly to the document and, given his lifetime appointment to the bench, there's little the Senate can do.
Sen. Harry Reid, D-Nev., said if news of the memo had come before his nomination hearing to the 9th Circuit, it probably would have been handled differently, but there is little that can be done now.
"I don't want to get into hypotheticals," Reid said, when asked if he still would have supported Bybee if this memo came out prior to his confirmation.
The Washington Post made the memo from Justice Department's Office of Legal Counsel, with Bybee's signature, public Sunday on its Web site. Bybee was an assistant attorney general for the Office of Legal Counsel from October 2001 until he was confirmed as an appellate judge in March 2003. Bybee starting teaching at the UNLV Boyd School of Law in 1999.
Bybee wrote the memo based on the Central Intelligence Agency inquiry on whether it could have authority to conduct more aggressive interrogations of suspected al-Qaida members caught outside the country than allowed before the Sept. 11, 2001, terrorist attacks.
The White House nominated Bybee to the 9th Circuit Court on May 22, 2002, prior to the memo's completion, but Bybee dodged questions asked by several senators during and after his Feb. 5, 2003, confirmation hearing.
Bybee gave the Senate few clues about what he felt during his confirmation hearing.
During the hearing, Sen. Mike DeWine, R-Ohio, wanted to explore what was going on at the Justice Department under Bybee's control and asked Bybee if he felt he had the authority to answer such questions or if he could talk about this recommendation to the attorney general.
Bybee said it "would be inappropriate for me as an attorney to reveal the conversations or confidences that have been placed in me by my client."
In written questions, Sen. Patrick Leahy, D-Vt., the top Democrat on Senate Judiciary Committee, directly asked Bybee about the office's advice to the administration that it did not need to declare al-Qaida and Taliban detainees as prisoners of war under the Geneva Convention.
"Some argue that not declaring these individuals POWs also could affect the treatment of our own soldiers if they are captured in hostile countries," Leahy wrote.
Leahy asked if Bybee personally felt that the State Department was wrong about the need for official prisoner of war status for Guantanamo Bay detainees.
"The president has declared the administration's position with respect to POW status for the detainees at Guantanamo Bay," Bybee wrote, according to the hearing record. "As a member of the administration, it is my responsibility to support the president's decision. To the extent that I have a different personal view on this matter (or any other matter of administration policy), it would be inappropriate for me to express publicly a personal view at variance with the president's position."
He also would not answer Leahy's question on what type of advice his office gave regarding the detainees or if he advised the administration on trying terrorist suspects in military tribunals, instead of district courts and others.
"As as attorney at the Department of Justice, I am obligated to keep confidential the legal advice that I provide to others in the executive branch," Bybee wrote. "I cannot comment on whether or not I have provided any such advice and if so the substance of that advice."
Leahy also asked Bybee why there was a "virtual termination in the routine publication of opinions" from the Office of Legal Counsel since Bybee came to office. Leahy said the office published three opinions since Bybee's confirmation in 2001, but 1,187 opinions were available online since 1996. "A government works best when it is open and answers questions, and I am worried that we see a change from both Republican and Democratic administrations of openness, and if we go to this nondisclosure, then I think it follows this pattern of an expansive view of executive privilege that has marked the time that Mr. Bybee has been in government," Leahy said.
"The Office of Legal Counsel does not make its opinions public as a matter of course," Bybee said, according to the hearing record. "The office has a well-established procedure for reviewing opinions for publication. That process gives consideration to the interests of our clients, the interests of other executive agencies that might benefit from the advice we have given and the interests of the public. In no case will OLC (Office of Legal Counsel) make its opinions public without client consent. During my tenure, the process for the review of OLC opinions has been consistent with the long-standing traditions of the office."
Leahy said he was concerned about a "disturbing pattern" in Bybee's record that indicates Bybee did not believe the people have a right to know what the administration is doing.
Also in written questions, Sen. John Edwards, D-N.C., asked if Bybee had advised the administration on its "enemy combatant" policy or if he agreed with the administration's stance.
But Bybee also did not answer this question saying he "cannot comment on whether or not I have provided such advice and, if so, the substance of that advice." He said he had a responsibility to support the president and that "it would be inappropriate for me to express publicly a personal view at variance with the president's position."
He gave similar answers to the questions of Sen. Russ Feingold, D-Wis., about who can be detained as enemy combatants and his on his role in a Federal Bureau of Investigation plan to begin counting mosques and Muslims in their areas. He also gave similar answers to Sen. Edward Kennedy, D-Mass., about his work on an Office of Legal Counsel memo that allows state and local officers to make arrests for immigration violations.
But when Feingold asked a question comparing Jose Padilla, a suspected terrorist, who Feingold said the administration argues has no right to counsel and can be held until the war on terrorism is over, to Japanese-Americans held in interment camps during World War II, Bybee wrote:
"Without commenting on any individual cases, I can state that individual citizens who conspire to wage war on the United States may properly be treated differently from those who have not been accused of any wrong-doing," according to the hearing record.
Bybee said in October 2001 at his Senate confirmation hearing to serve as Assistant Attorney General in the Justice Department's Office of Legal Counsel that he "would bring an additional sensitivity to the rights of all Americans and a resolution not to trample their civil rights in the pursuit of terrorism."
He said later in the hearing that he had written articles on Congress' power to address crime, but "has not done quite frankly ... a lot in the area of terrorism."
Sen. Herbert Kohl, D-Wis., asked Bybee what he would do if he had a personal conflict or if he was "deeply troubled with the direction of the attorney general and/or the president," could he object to it even if the attorney general disagreed.
Bybee said talks with the White House counsel's office and the attorney general "made it very clear" to him that they wanted his "objective, frank and honest legal opinion."
"We let the chips fall where they do after that," Bybee said. "I would continue the tradition of that office to offer my best legal advice. And I will leave to others to figure out the policy that conforms with the law."