By Zachary Roth - April 17, 2009
For all the (justified) clamor over the Bush administration's
torture memos that were released yesterday, there's been surprisingly little attention paid to the two authors of those documents.
As officials in the department's Office of Legal Counsel Jay Bybee and Steven Bradbury authored the four memos. The first was written in 2002 by Bybee, and the latter three in 2005 by Bradbury. So: who are Bybee and Bradbury?
Bradbury first. He served as an attorney-adviser in the OLC during the George H. W. Bush administration, before clerking for Supreme Court Judge Clarence Thomas and working for Ken Starr's law firm. Bradbury returned to OLC in 2004, as a Principal Deputy Assistant Attorney General. It was in this capacity that he wrote the three memos released yesterday.
But what happened next is perhaps even more interesting. Shortly after the writing the memos, Bradbury was nominated by President Bush to head the OLC. The previous chief, Jack Goldmsith, had rescinded some of the more sweeping and radical memos DOJ opinions, that, in Goldsmith's view, gave too much power to the executive branch to prosecute the war on terror. Bradbury was seen as a Bush loyalist who would reinstate those opinions.
Senate Democrats blocked Bradbury's nomination. But somehow, the Bush administration kept him as acting head of the OLC -- apparently
in violation of the law -- where he remained until the Bushies left office in January.
In that position, Bradbury compounded the damage he had done with the memos. As
we summarized back in 2007, he argued that the administration was not required to try detainees in federal courts and that detainees were not entitled to
habeas corpus; and that Geneva Conventions language barring "humiliating and degrading treatment" was vague and subject to "uncertain and unpredictable application." And he wrote an opinion declaring that Harriet Miers didn't have to testify in the U.S. attorneys investigation.
It's unclear what Bradbury has been doing since leaving DOJ in January. If anyone knows, we'd be interested...
As for Bybee, he served in the Justice Department during the Reagan administration, then was an associate counsel to President George H. W. Bush. He spent most of the 90s teaching law at Louisiana State University, before in 2001 being appointed an Assistant Attorney General in the Office of Legal Counsel. While there, he wrote four memos, subsequently released by the Obama administration (one yesterday, three last month), justifying the use of harsh interrogation techniques including waterboarding.
In 2003, President Bush nominated Bybee to serve as a
judge on the US Court of Appeals for the Ninth Circuit. After an initial hold up, Bybee was confirmed by the Senate.
Thanks to Bybee's authorship of the memos, a Spanish judge is
considering indicting him -- as well as five other former Bush administration officials -- for war crimes
Bradbury did not respond to an email sent to his personal address. The public relations office of the US Court of Appeals for the 9th Circuit Bybee did not respond to a voice-mail message left about Bybee.
April 16, 2009
The
newest round of “torture memos” have just been released by the Department of Justice. I’m only just beginning to go through them, but I have a preliminary thought.
The first, and very chilling
memo in the group is an analysis of the various techniques that were used by C.I.A. interrogators on Abu Zubaydah. The author of the memo, which is dated August 1, 2002, is Jay S. Bybee, who was the Assistant Attorney General for the Office of Legal Counsel. Bybee concludes that all of these various techniques, including waterboarding, do not constitute torture under American or international law.
Bybee is generally the forgotten man in torture studies of the Bush era. The best known of the legal architects of the torture regime is John Yoo, who was a deputy to Bybee. For better or worse, Yoo has been a vocal defender of the various torture policies, and he remains outspoken on these issues. But whatever happened to his boss?
Today, Bybee is a
judge of the United States Court of Appeals for the Ninth Circuit. He was confirmed by the Senate on March 13, 2003—some time before any of the “torture memos” became public. He has never answered questions about them, has never had to defend his conduct, has never endured anywhere near the amount of public scrutiny (and abuse) as Yoo. It is an understatement to say that he has kept a low profile since becoming a judge.
It’s a lesson in the vagaries of politics, and timing, that Bybee could slip through the cracks of this story so easily.
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