Apparently intrigued by certain tantalizing public statements issued by 9th Circuit Judge Jay Bybee within the past week, Senator Leahy has invited him to come in and share his thoughts in greater detail, in testimony before the Senate Judiciary Committee. As reported in the WaPo on Apr. 30,
"There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated . . . and the role played by the White House," Leahy said in his letter to the judge.
http://www.washingtonpost.com/...
More details below the fold.
Bybee is, of course, the lawyer who took what might charitably be described as a non-traditional path to a federal judgeship, trading his sign-off on a legal memo justifying torture (issued on Aug. 1, 2002) in exchange for his appointment to the bench (made by Bush in May 2002 -- Bybee had the good sense to get payment in advance). Judge Bybee took his seat on the 9th Circuit in early 2003, where he has, for the past six years, perfected the fine art of keeping a low profile, issuing few if any decisions of any consequence. Perhaps more to the point, he has, until recently, said absolutely nothing concerning his role in drafting the famous Torture Memo used by the Bush administration to justify its correctional practices at Gitmo, Abu Ghraib and various black holes located god-knows-where around the globe.
Recent press reports, which appeared to have been instigated as part of a PR offensive by the Judge and his advisers to counter recent criticism of his legal acumen, not to mention his morality and indeed his humanity, indicated that the Judge has expressed "private regrets" about the Torture Memos in such venues as dinners with his law clerks and conversations with friends. But, in connection with those efforts, one of those friends let slip a particularly telling anecdote recounting how Judge Bybee came to accept his position as head of OLC in the Bush Justice Department.
Bybee's friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, Guynn said, was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, "Would you be willing to take a position at the OLC first?" Guynn said.
http://www.washingtonpost.com/...
So there you pretty much have it in a nutshell: Jay Bybee, professor of law at a somewhat less than first-rate law school in Las Vegas, travels to D.C. to present his rather thin resume and lay out his case to Gonzales as to why the Bush White House should appoint him to a treasured seat expected to be opening soon, upon the retirement of one of the 9th Circuit judges. Gonzales gently inquires as to whether Bybee would be interested in another job, a very key job to the process of obtaining the necessary legal vetting of policy changes, the head of OLC -- until the 9th Circuit vacancy opens up, of course. Bybee agrees, and his nomination is sent to the Senate Judiciary Committee, which holds hearings on Bybee on October 4, 2001. The hearings were uneventful, and Bybee is approved in the Senate by a voice vote and is in the OLC job by Nov. 2001.
Then, things move a little too quickly perhaps. For one thing, the administration, soon after 9-11, had captured some folks that it really wanted to try out the new, "enhanced" interrogation techniques on. For another, the vacancy on the 9th Circuit materializes rather quickly. As a result, Bybee's considered views on a very difficult subject had to be produced on a very tight timetable. And they were: Bybee condensed his views into a remarkably compact 18-page Memo, which he duly signed and issued on August 1, 2002. Some time before that date, it seems, relevant personnel throughout the Administration had been alerted to expect it, and told that they were authorized to proceed when it was in hand. Indeed, it seems that some personnel did not even await receipt of Bybee's analysis, but had already begun implementation of "enhanced interrogation techniques."
But, in any event, one thing is clear about the timetable: before he issued the August 1 Torture Memo, Bybee had firmly in hand what he wanted and what he had come to Washington, D.C. for -- George W. Bush had submitted his name in nomination for the 9th Circuit bench on May 22, 2002. Bush was apparently awed by the quality of the legal work Bybee had done in the less than six months he had, to that date, occupied the position of head of the OLC.
Bybee's attorney was identified in the WaPo article first mentioned above as Maureen Mahoney. I take this to be a reference to Maureen E. Mahoney, a partner in the Washington, D.C. office of Latham & Watkins, LLP. Ms. Mahoney is a litigator and the head of her Firm's Appellate and Constitutional practice. Ironically, while Ms. Mahoney's resume is many times more distinguished than that of her client, she was far less successful in her own judicial aspirations. As the bio on her web page notes, after a short tour of duty in the Solicitor General's Office of the First Bush Administration, Ms. Mahoney was nominated to the bench -- albeit only to the U.S. District Court in Alexandria, Va. -- but time ran out on the First Bush Administration before the Senate acted on her appointment, and she returned to L&W. One wonders what Ms. Mahoney's private thoughts might be on the strategy used by her distinguished client to ascend so quickly to his seat on the august 9th Circuit appellate bench.
However, that's not the real question Ms. Mahoney has to grapple with, is it? The real issue for her, and her client, is what to do about Sen. Leahy's kind "invitation." First, will Bybee decide that his best course is, ultimately, to testify or not to testify? Invoking the 5th Amendment may not be a big help to his desire to retain his seat, but when you are looking at potentially many years in the far less salubrious surroundings of one or another Club Fed, silence may be the best option. If his choice is, however, to testify, he will have to decide whether to go before Leahy (whose Committee he bamboozled into approving him by stonewalling its requests for info on what he had been doing over at OLC to so impress the Bush folks) or to wait for the "invitation" that might be the one that really counts -- the subpoena from the House Judiciary Committee charged with investigating the basis for impeachment proceedings against the Honorable Judge.