WASHINGTON — Low-key Las Vegas federal judge Jay Bybee may be back in the news soon. And it may not be pretty.
For some months, the Justice Department’s Office of Professional Responsibility was investigating Bybee and John Yoo, former senior Justice attorneys associated with explosive legal opinions in 2002 and 2003 that provided an underpinning for the Bush administration’s use of waterboarding and other controversial interrogation practices.
Bybee, a former professor at UNLV’s Boyd School of Law, signed what came to be known as the "Torture Memo" as head of the Office of Legal Counsel in August 2002.
Among other points, it concluded that for something to be considered torture it had to be as bad as "the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
Investigators were looking into whether Bybee and Yoo violated professional legal standards in how they formed the opinions, which came to light through a leak to the Washington Post in 2004 and were later withdrawn by the Justice Department.
Citing unnamed sources, Newsweek this week says a draft of the ethics report is sharply critical and if approved by Attorney General Eric Holder it could be forwarded to state bar associations for possible disciplinary action.
Newsweek also says then-Attorney General Michael Mukasey objected to the draft in the final weeks of the Bush administration, and his deputy wanted to include detailed responses from the attorneys, as well as a third, Stephen Bradbury, who is covered in the report.
This week Sens. Richard Durbin, D-Ill., and Sheldon Whitehouse, D-R.I., were trying to shake the report free from Justice.
Bybee returned to Las Vegas after he was nominated by President Bush and confirmed in March 2003 to become a judge on the 9th U.S. Circuit Court of Appeals. He has declined to comment on the memos.
Nevada’s senators cleared a path for his confirmation, although Sen. Harry Reid, D-Nev., since has said Bybee would not be a judge today if the memos had come to light earlier.