The Alberto Gonzales Defense: Judge Bybee Reportedly Denies That He Wrote Infamous Memo

According to close friends, Judge Jay S. Bybee appears to have adopted the Alberto Gonzalez defense: he is now claiming that he did not write his infamous memo and only signed it. This is similar to the defense that Democrats allowed Gonzales to make on the first torture memo at his confirmation hearing for Attorney General, to wit, he did not read an important policy memo on the commission of a war crime, he just signed it. It is the empty suit defense: I really am not to blame when I sign orders or memos because I just sign things. Bybee has not spoken directly on this matter to the public, but there are now various friends saying that he would like to repudiate the memos and even denies writing the memos.

Bybee’s alleged use of the Gonzales defense at the same time of a dinner for 35 former clerks and friends at a Las Vegas restaurant. While he may have hoped what was said in Vegas stays in Vegas, it did not work out that way. Indeed, it seems that a spontaneous announcement to such a large group was calculated to get out to the wider press and public.

The Washington Post quotes former clerk Tuan Samahon, who said that Bybee used the reunion to defend the legal reasoning behind the memos while saying that he was disappointed by what was done to prisoners, saying that “the spirit of liberty has left the republic.” Hmmm, I wonder how that spirit left the republic when ambitious people like Bybee (who admits that he was campaigning for the judgeship) signed off on a memo defending war crimes based on some of the worst analysis that I have read in a Justice Department memo in my career.

Another friend (and former roommate of Bybee) Steve Guynn recalled that Bybee has told him that he was not responsible for the memo: “I don’t know that he ‘owned it.’ . . . The way he put it was: He was head of the OLC, and it was written, and he was not pleased with it.”

Another friend, University of Nevada law professor Chris Blakesley noted that Bybee indicated that he did sign it but wanted now to repudiate it. That is the account of another friend who insists that “I’ve heard him express regret at the contents of the memo.”

I must confess to be left cold from these accounts. Bybee went to Gonzales to seek the Ninth Circuit judgeship and was asked by Gonzales to serve at the OLC first. He then signed off on a memo endorsing war crimes to Gonzalez’s delight and was later given the judgeship that he sought. Now, he wants to repudiate the grotesque memo that he used to curry favor with Gonzales.

There remains the question of what Bybee lied to Congress in his confirmation hearing, leaving the possibility of impeachment. At a minimum, I agree with Sen. Leahy that Bybee should resign given his role in this infamous program.

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