Legal News

Judge Jay Bybee to NYT: ?The Conclusions Were Legally Correct.?

By Ashby Jones

Of the handful of individuals caught up in the controversy over the Bush administration memos that sanctioned the use of waterboarding and other coercive interrogation practices, the case of Jay Bybee has for some been the most perplexing. While others, like Berkeley professor John Yoo, have defended the legal opinions contained in the memos, Bybee’s been largely mum. Furthermore, as a judge on the Ninth Circuit (Bush appointed the Nevadan in 2003), Bybee’s still firmly positioned in a seat of power.

But in recent days, thanks to two articles — one in the Washington Post and another in the New York Times — a clearer picture has started to emerge.

The Washington Post article, published last Saturday, quotes several friends and colleagues of Bybee’s, who say he expressed misgivings for the ways in which the memos were translated into practice. For example, Tuan Samahon, a former law clerk, said the judge defended the legal reasoning behind the memos but not the policy decision. Bybee was disappointed by what was done to prisoners, saying that “the spirit of liberty has left the republic,” Samahon said.

Added Randall Guynn, who roomed with Bybee at Brigham Young University: “Jay would be the sort of lawyer who would say, ‘Look, I’ll give you the legal advice, but it’s up to someone else to make the policy decision whether you implement it.”

But on Tuesday, Bybee broke his silence, and spoke to the NYT. While he didn’t appear to say much about the coercive techniques themselves and expressed some misgivings about the opinions, he largely defended them, saying that he continued to believe that the memorandums represented "a good-faith analysis of the law" that properly defined the thin line between harsh treatment and torture.

He said: "The central question for lawyers was a narrow one: locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct."

Bybee said he would have done some things differently, however, like “clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions.”

Full post as published by Law Blog - WSJ.com on April 29, 2009 (boomark / email).