Reid says Bybee shouldn't be punished in 'torture memo' case

WASHINGTON -- Sen. Harry Reid does not believe Las Vegas federal judge Jay Bybee should be disbarred or disciplined for authoring "torture memos" as an attorney in the Bush administration, after a Justice Department internal review concluded the memos were flawed but not unethical, a Reid spokesman said Friday.

The Nevada Democrat was "disturbed" by the memos that gave a green light to CIA interrogators to employ waterboarding and other harsh interrogation tactics on terror suspects that a range of authorities have declared to be torture, according to a statement.

"He believes we must have policies that will prioritize our national security, strengthen our counterterrorism capabilities, and restore the ideals and values the United States has always embodied," it said.

But Reid, who had supported Bybee for a job at the Justice Department in 2001 and had backed his nomination to become a federal appeals court judge several years later, is standing by an internal review released last week that said the memos by Bybee and colleague John Yoo did not amount to professional misconduct.

"Career officials at the Department of Justice made considered judgments about the content of the memos and the discipline Bybee and Yoo should face, and Senator Reid believes it is appropriate to defer to their final decisions," spokesman Jon Summers said in an e-mail.

Bybee was a professor at the Boyd School of Law at the University of Nevada, Las Vegas when Reid and Sen. John Ensign, R-Nev., supported his nomination by President George W. Bush in 2001 to become head of the Office of Legal Counsel at the Justice Department.

In 2003, the senators backed Bybee's confirmation to become a Las Vegas-based judge on the 9th U.S. Circuit Court of Appeals.

Two of the memos were written in the summer of 2002 but did not become public until 2004, when they caused a firestorm, including calls for Bybee to be impeached.

Reid has been critical of the memos on previous occasions and has said Bybee would not be a judge today if the documents had been disclosed during his confirmation hearings.

One memo Bybee signed in August 2002 concluded waterboarding did not rise to the legal definition of torture, prompting some members of Congress to call for him to step down or be impeached as a judge.

A second memo Bybee signed that month opined that the president as commander in chief had broad authority to approve harsh interrogations and that tactics short of "organ failure, impairment of bodily function, or even death" might be defended as legally acceptable.

The techniques, which included sleep deprivation, slams against a wall, face slaps and cramped confinement in boxes, amounted to torture in the view of human rights advocates and a range of interrogation professionals.

The memos later were disavowed by the Bush administration.

Ensign previously has commented that Bybee should not face discipline.

He and others who have defended Bybee and Yoo say they should be commended and not condemned for trying to dissect a thorny legal matter at a time when many believed an incident similar to the Sept. 11, 2001, attacks might be possible.

Reid commented after a hearing Friday in which Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, renewed his call for Congress to investigate the Bush administration's interrogation policies.

The Office of Professional Responsibility did not have the authority to go beyond considering whether Bybee and Yoo violated professional standards and ethics, but Leahy said larger questions still need to be answered.

Leahy said it remains unclear what pressure Vice President Dick Cheney exerted on the attorneys to produce favorable legal advice. He also wonders about claims that e-mails written by Yoo and others in the Office of Legal Counsel from that period might have been deleted.

"These legal memoranda were only a part of the problem," Leahy said. "They were intended to provide a 'golden shield' to commit torture and get away with it."

The Office of Legal Counsel is the elite office that gives legal advice to the White House and the attorney general on security matters.

In a final report sent to Congress on Feb. 19, David Margolis, the Justice Department's top career attorney, concluded that Yoo and Bybee exercised "poor judgment" in producing the series of key legal opinions.

But while the memos were flawed, Margolis said, they did not rise to the level of professional misconduct. The attorneys, who are no longer with the department, would not be recommended for disbarment, he said.

Leahy called for a deeper probe.

"The fundamental question here is not whether these were shoddy legal memos. They were," Leahy said.

"The legal work of Yoo, Bybee and Steven Bradbury, the acting head of OLC who reaffirmed the ... interrogation program, was flawed," Leahy said. "It failed to cite significant case law and twisted the plain meaning of statutes.

"These Bush administration lawyers lost their way," he said.

But John Cornyn, R-Texas, said the Margolis report "should put to rest any notion that Jay Bybee and John Yoo should deserve anything other than the grateful thanks of the nation."

Sen. Jeff Sessions, R-Ala., said attacking the attorneys amounted to "second guessing good people who made tough decisions at difficult times."

Contact Stephens Washington Bureau Chief Steve Tetreault at or 202-783-1760.