WASHINGTON -- A former UNLV law professor who signed a controversial memo regarding interrogations of suspected terrorists would not have become a federal appeals judge in Las Vegas if the Senate had known about the memo, said Senate Majority Leader Harry Reid of Nevada.
Five years ago, Reid and Sen. John Ensign, R-Nev., promoted the confirmation of Jay Bybee to the 9th U.S. Circuit Court of Appeals. He was approved by the Senate on March 13, 2003 by a vote of 74-19.
But Reid says Bybee would not have been nominated if his role in defining "torture" for suspected terrorist prisoner interrogations had been known.
"I wish we had had the information about his being one of the people who prepared the torture memos," Reid said in brief interview last week.
Reid was referring to the "Bybee memo," which Bybee signed in August 2002 when he was an assistant attorney general in charge of the Office of Legal Counsel at the Justice Department.
The memo was a formal legal opinion saying the torturing of suspected terrorists captured overseas "may be justified," and criminal law prohibiting torture "may be unconstitutional if applied to interrogations" conducted under the president's powers as commander in chief.
At a hearing this week, the Senate Armed Services Committee sought to examine the origins of harsh interrogation techniques like waterboarding and sleep deprivation that were used by the CIA and the Pentagon in the aftermath of the Sept.11, 2001 terrorist attacks.
John Yoo, a deputy to Bybee who is now a law professor at the University of California at Berkeley, is believed to have written most if not all the memo, which was crafted for the CIA and sent to the White House.
Bybee, as the head of the legal counsel's office at the Justice Department, signed it.
The memo caused a furor when it came to light in June 2004, a year after Bybee had been installed as a federal judge.
"We didn't have that (information)," Reid said. "Had that happened, (Bybee's nomination) would never have been brought up."
The Bybee memo was later revised by the Bush administration.
Bybee's confirmation hearing before the Senate Judiciary Committee occurred Feb. 5, 2003, the same day Secretary of State Colin Powell appeared at the United Nations to present the case for going to war in Iraq.
Reid opposed last year's nomination of U.S. Attorney General Michael Mukasey because Mukasey would not condemn waterboarding, an interrogation procedure that simulates drowning.
Asked if he regrets supporting Bybee's nomination, Reid said, "I regret not having the information beforehand."
David J. Madden, a spokesman for the 9th U.S. Circuit Court of Appeals, said Bybee was unavailable for comment.
A founding faculty member of the Boyd Law School at UNLV, the 54-year-old Bybee earns $179,500 annually as a U.S. circuit judge. As a federal judge, Bybee will be entitled to retire at full pay.
Unlike Reid, Ensign said he does not have any second thoughts about supporting Bybee. "He's one of the best jurists we've ever had," Ensign said. "So I stand by him. Period."
As for the Bybee memo, Ensign said, "It's a legal opinion. He was giving his best legal advice. That does not take away from his brilliant mind."
Asked if he is troubled by the interrogation techniques employed since the Bybee memo, Ensign said, "Well, since they're classified, I don't know what techniques that they used."
As the senior Republican in the congressional delegation, Ensign did not have to seek Reid's cooperation in nominating Bybee. But the Nevada senators consult on most federal appointments and worked cooperatively on Bybee.
Ensign said Reid's latest comments on Bybee do not bother him. "That's his opinion, and I have mine," Ensign said.
Sen. Orrin Hatch, R-Utah was chairman of the Senate Judiciary Committee when Bybee was confirmed on a 12-6 vote. Hatch said he does not believe Bybee wrote the memo, and Senate Democrats are exploiting it for political gain.
"They never miss a chance to raise issues that really are peripheral to what should be considered for a person to be a judge," Hatch said.