Torture Memo Author Sets Up Defense Fund to Fight Possible Impeachment

The federal judge who helped draft Justice Department memos on torture has set up a legal defense fund to pay the costs of defending against possible disciplinary or impeachment proceedings. Jay Bybee, a U.S. Court of Appeals judge in Las Vegas, quietly set up the fund last July following widespread news reports that he and a former deputy, John Yoo, were the focus of a long-running investigation by the Justice Department's internal ethics unit, the Office of Professional Responsibility (OPR), over their role in crafting the memos.

But there were no public references to the fund until this, week when Declassified noticed that a link to the fund had popped up on the Web site of Keep America Safe, an advocacy group set up last month by Liz Cheney, daughter of former Vice President Dick Cheney, that is highly critical of President Obama's national-security policies. The fund is listed as one of Keep America Safe's "causes we support."

The defense fund may be about to become extremely useful for Bybee, who anticipates legal expenses "well in excess of $500,000" as a result of the Justice investigation, according to a letter from the U.S. Judicial Conference ethics committee posted on the fund's Web site. Attorney General Eric Holder told the Senate Judiciary Committee Wednesday that, after a nearly year-long delay and numerous internal reviews, the OPR report into the torture memos was finally slated to be released at the end of this month.

As NEWSWEEK reported last February, the initial draft of the report, completed during the waning days of the Bush administration, concluded that Bybee (at the time assistant attorney general in charge of the Office of Legal Counsel) and Yoo may have violated their professional obligations as lawyers when they drafted a controversial Aug. 1, 2002, memo on torture.

But then-Attorney General Michael Mukasey rejected the draft report and directed that copies of its findings be sent for comment to the targets (including Bybee, Yoo, and Steve Bradbury, who had by then become assistant attorney general for the Office of Legal Counsel). Since then, the report has been redrafted and, after a further round of comments, is now being reviewed for final release by David Margolis, a veteran career prosecutor at the Justice Department.

The initial 2002 memo, signed by Bybee but believed to have been principally drafted by Yoo, concluded that during wartime, President Bush as commander in chief could unilaterally disregard a federal law banning torture in the prosecution of the war on terror. It also concluded that harsh interrogation techniques proposed by the CIA did not constitute torture unless they resulted in the "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." That conclusion opened the door for the CIA to use a wide array of "enhanced" interrogation techniques, including waterboarding, that were approved in a separate memo by Bybee and Yoo on the same day.

Since then, there have been calls for Bybee's impeachment from some liberal advocacy groups and law professors. "He's the only person holding an office that could be the target" of impeachment, said Nan Aron, president of Alliance for Justice, a liberal advocacy group that has campaigned for "accountability" over the use of torture techniques during the Bush era.

But legal sources familiar with the OPR report (who asked not to be identified discussing it because the process is ongoing) say it is believed to have undergone numerous revisions since the original draft and that it is far from clear what its final conclusions will be. Maureen Mahoney, Bybee's lawyer, declined to comment on the specifics of the report but said, "If DOJ follows settled rules of law, it cannot possibly conclude that Judge Bybee's conduct was unethical."

Bybee, who served in the Justice Department under both Ronald Reagan and George H.W. Bush, was President George W. Bush's first nominee to be assistant attorney general in charge of OLC, the office that effectively serves as legal adviser for the entire federal government. He was then nominated by Bush to the 9th Circuit Court of Appeals and confirmed in March 2003—well before the existence of the torture memos or the CIA's use of waterboarding had become publicly known.
 
The letter sent to Bybee in May by the chair of the U.S. Judicial Conference's Committee on Codes of Conduct gave approval for the judge to set up the fund based on a set of facts he had presented. Those include the OPR inquiry, and the possibility that the Justice Department might launch investigations into torture and that "some members of Congress have indicated impeachment may be considered."

The letter, from Judge M. Margaret McKeown, approves the creation of a defense fund in which "others may solicit contributions," provided it adheres to rules that the committee has laid down for other judicial funds in the past, namely that the list of contributors be "blind" so that Bybee never learns their identities, and it not include lawyers who have cases before the judge.

James Spears, a Washington lawyer who is one of three trustees of the fund, declined to comment on how much the fund has raised. But the former Justice Department colleague of Bybee's did say, "We're confident that he'll be vindicated."

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