The problem of Jay Bybee

Thinkprogress:

In a new video titled "The Problem of Jay Bybee," American News Project's David Murdoch asks how Bybee could have been confirmed by the U.S. Senate in Feb. 2003 for a lifetime appointment as a federal judge despite authoring memos justifying the legality of torture.

The answer is partly due to the fact that the Senate had no knowledge of Bybee's role in the Bush administration's authorization of torture because no secret memos on the subject had yet to be released. "Had the Senate known about these memos, there's simply no way Bybee ever would have been confirmed as a federal judge to begin with," Harpers editor Scott Horton noted.

Another reason the Senate let Bybee's nomination fly through unchallenged was perhaps due to the fact that on the same day as his hearing, then-Secretary of State Colin Powell was delivering a speech to the United Nations making the case for invading Iraq. "Bybee was greatly advantaged by an accident," Yale law professor Bruce Ackerman noted:

ACKERMAN: So almost all the Senators were watching the TV outside the hearing room. All the Democrats were. This was of central importance for the Democratic senators in particular to define their position, one could appreciate why they were watching the tube than questioning Judge Bybee. So there was no critical questioning at all at the hearing room and that does not normally happen.

Let's flashback to the Senate confirmation hearing of Jay Bybee nominated by Bush as a federal judge in 2003. Here was Senator Leahy's statement on his website on the Bybee's hearing. Leahy wrote:

I am interested in Mr. Bybee’s views on these questions of law, and I am also concerned with any role he has played in perpetuating the culture of secrecy that has enveloped the Justice Department over the last two years. The office which he heads has long been a leader in sharing its work with the American public, and in recent years that office even began publishing its legal opinions on a yearly basis. Many of these opinions are available in legal databases and provide a valuable insight into the legal underpinnings of our government’s policies. But of the 1,187 OLC opinions that have been published on the Lexis legal database since 1996, only 3 are from the period during which Mr. Bybee has headed the office. Up until now, there has also been a history of OLC releasing numbers of opinions on the DOJ website, as well as being made public in litigation and in response to requests by the Judiciary Committee. This practice, too, has ended under Mr. Bybee’s leadership at OLC. This non-disclosure fits a consistent pattern of an expansive view of executive privilege that has marked his time in government, and I look forward to hearing from him on that issue.

Only 3 OLC opinions released by Bybee when he was an employee at OLC. Oh, by the way, Leahy voted for Bybee for the judgeship. Now, Leahy is calling for Bybee to step down. On the other hand, Sen. Russ Feingold opposed his confirmation for just that reason:

March 13, 2003

Mr. President, I will oppose the nomination of Jay Bybee to the Ninth Circuit Court of Appeals. I was not able to attend the hearing that was held on Mr. Bybee because of Secretary Powell's presentation that morning to the United Nations. So I submitted written questions, as did a number of my colleagues. Unfortunately, I have to say after reviewing Mr. Bybee's response to those questions that his unwillingness to provide information in response to our inquiries is striking. On more than 20 occasions, Mr. Bybee refused to answer a question, claiming over and over again that as an attorney in the Department of Justice he could not comment on any advice that he gave at any time. This is unfortunately becoming a very familiar refrain of nominees before the Judiciary Committee....

There is an extensive body of legal work both written by or at least signed off on by this nominee, in this case unpublished Office of Legal Counsel opinions. The administration and the nominee are acting as if they are irrelevant to the confirmation process. A nominee cannot simply claim that he or she will follow Supreme Court precedent and ask us to take that assurance on faith, when there are written records that may help us evaluate that pledge, but the nominee refuses to make those records available.

Only three OLC opinions had been made publicly available since Mr. Bybee's confirmation to head that office. That is extraordinary, given that 1,187 OLC opinions dating back to 1996 are publicly available. This is a dramatic change in the Department's practice, a change that did not occur until this nominee was confirmed to be Assistant Attorney General for the office. While there may be some justification for releasing fewer opinions since 9/11, the wholesale refusal to share with the public and Congress important OLC decisions affecting a wide range of legal matters is, to say the least, troublesome.

Feingold's whole statement. Here was the entire Senate vote tally. Click here. Final count was 74-19.

And here is another nugget: Senate Judiciary Committee confirmation hearing of Gonzo as AG nominee in 2005. Gonzo was asked in the Senate hearing of Bybee memo. Here was an excerpt of the exchange:

SEN. HATCH: Am I correct in my understanding that at no time did the president authorize the use of torture against detainees, regardless of any of the legal memoranda produced by various entities of the U.S. government, including the August 2002 Department of Justice memo, the so-called Bybee memo?

MR. GONZALES: Senator, the position of the president on torture is very, very clear. And there's a clear record of this. He does not believe in torture, condone torture, has never ordered torture. And anyone engaged in conduct that constitutes torture is going to be held accountable.

Yeah right. Currently no one has been held accountable involved in constituting torture. These were the same players not prosecuted yet involved in the authorization of torture and same Senators that questioned these players' opinions on U.S. torture. Now, according to the LA Times, Bybee has expressed regret at the contents of the torture memo according to colleagues. Click here to read more.