Signer’s regret on ‘torture memos’

On a Saturday night in May last year, Jay S. Bybee hosted dinner for 35 at a Las Vegas restaurant. The young people seated around him had all served as his law clerks in the U.S. Court of Appeals for the 9th Circuit, the post Bybee assumed after two turbulent years at the Justice Department, where as head of the Office of Legal Counsel he signed the legal justifications that have become known as the “torture memos.”

Five years along in his life as a federal judge, Bybee gathered the lawyers and their dates for a reunion, telling them he was proud of the legal work they had together produced.

Then, according to two of his guests, Bybee added that he wished he could say the same about his previous job.

It was the kind of joyless judgment that some friends and associates say the jurist arrived at well before the public release of four additional memos last week and the resulting uproar. One of the documents, dated Aug. 1, 2002, offered a helpfully narrow definition of torture to the CIA and soon became known as the “Bybee memo,” because it bore his signature.

“I’ve heard him express regret at the contents of the memo,” said a fellow legal scholar and longtime friend, who spoke on condition of anonymity. “I’ve heard him express regret that the memo was misused. I’ve heard him express regret at the lack of context -- of the enormous pressure and the enormous time pressure that he was under.

“And anyone would have regrets simply because of the notoriety.”

That notoriety worsened this week as the documents -- detailing the acceptable application of waterboarding, sleep deprivation and other procedures the Bush administration called “enhanced interrogation methods” -- prompted calls for criminal investigations of the government lawyers who generated them.

Democratic lawmakers, human rights groups and others have called for Congress to impeach Bybee, complaining that his 2003 Senate confirmation came before his role in the memos was known.

The Justice Department withdrew the memos in the last days of the Bush administration. Its Office of Professional Responsibility is investigating their origin.

Bybee, 56, has said nothing publicly about the documents. Still, in the years since the original “Bybee memo” was made public, his misgivings appeared evident to some in his immediate circle.

Tuan Samahon, a former clerk who recalled Bybee’s remarks at the dinner, said in an e-mail that the judge defended the legal reasoning behind the memos but not the policy decision. Bybee was disappointed by what was done to prisoners, saying “the spirit of liberty has left the republic,” Samahon said.