Judge Bybee, Can You Say Panic?

If I had a case before Judge Bybee, I’d ask him to recuse if only because his office appears to be running around like a chicken with its head cut off, worrying about how to respond to Pat Leahy’s invite to come chat. (h/t fatster)

On Thursday, law clerks for the judge said variously that Bybee would respond to an appeal by Chairman Patrick J. Leahy (D-Vt.) to appear before the Senate Judiciary Committee; that he would explain his reasoning in a statement to the San Francisco-based appeals court; and that he would have nothing more to say to anyone on the subject.

"My impression is that there won’t be any further statements," law clerk Keith Woffinden said, apologizing for the contradictory messages being sent by staffers.

Maureen Mahoney? Your client is losing it.

And I like this quote, too, which almost seems like it could be coming from someone who was a source for the WaPo story reporting that Bybee regretted the torture memos–only this time doing so on the record.

"It surprises, concerns, sickens and depresses me," Christopher Blakesley, a law professor at the University of Nevada, Las Vegas, said of Bybee’s defense of the August 2002 memos. "I am surprised that he talked at all at this point."

Blakesley said he was also "saddened because I truly believed from what I know of him over the years that he would have repudiated the memos along with all that surrounded and came from this sordid situation. Perhaps one day he will."

It’s not going to get any better, either, as we draw closer to the release of that OPR report. 

35 replies
  1. klynn says:

    I’ll repost my comment to fatster:

    The fact that the staff responded to the paper as opposed to stating, “No comment,” until Bybee responded in writing to Leahy’s letter first, is beyond unprofessional. Especially, considering Bybee is a Federal judge. Well, that just adds to the list of how far he went away from the law.

    He was not snookered EW.

  2. wavpeac says:

    I tend to believe that natural consequences are a wonderful thing and perhaps as close to “justice” as we can get. Good. Run little chicken…chicken little.

  3. TheraP says:

    Here you have a person who kowtows to authority. Who got along to go along. But now…… suddenly… there is no way out of the pickle he’s gotten himself into. Panic would be one way to describe it. You could end up with a full-blown decompensation. Not sure how he might decompensate. It depends where he started from. But foetal position is one option. Paranoid delusions another. He could flee. He’s likely anxious and depressed.

    I’d recommend he resign and take a nice long vacation with his family. But not abroad!

    • AZ Matt says:

      Spain, he should go to Spain! Nice warm climate and they do have experience with torture.

    • alabama says:

      Reading your post, I think of Tex Watson, the Manson sidekick who went so crazy that he couldn’t stand trial.

      Come to think of it–as one who lived through that whole horrible affair forty years ago–the Bush administration has something of the Manson gang about it. Collective brutishness of the lethal sort.

      • TheraP says:

        NO sign the guy dissociates.

        I actually had a patient once who’d occasionally phone me saying: I don’t know where I am. I don’t know how I got here. I don’t know where my car is.

        I doubt you’d really want to be in that position….

  4. Arbusto says:

    I concerned on the impartiality and conclusions by OPR, if and when the report is released. As I’ve read at FDL & elsewhere, this is the first investigation by OPR that asked for comment from the targets of the report prior to release. That doesn’t bode well for a factual, impartial report, in my jaded thinking.

  5. burqa says:

    I have read that Bybee has had reservations about all this, and so I think he should be the early favorite to play the role of John Dean….

      • readerOfTeaLeaves says:

        Am I completely nuts, or would John Dean actually be a good person to head up a public investigating committee? He’s a clear communicator, methodical, and wiser from experience?

        Or am I just completely nuts?
        …or only partly nuts…?

        • scribe says:

          He might be, but he was disbarred as a result of his conviction and is therefore no longer a lawyer.

          • bmaz says:

            Yeah, I like Dean a lot, but he is getting a little long in the tooth for a demanding deal like this kind of comprehensive investigation as well as the disbarment thing.

            • Funnydiva2002 says:

              I bet we could find him some very eager and competent assistance, though, don’tcha think, Wheelie-Pups?

              You do have a point. Wonder if Jonathan Turley has a sabbatical coming up…I’m sure Fitz has already been suggested.


              • posaune says:

                Fitz filed a case last year re police abuse. I think he got a plea deal from them, but at the time I thought, ” hmmm…. this could be something bigger.”

                U.S. Attorney Patrick Fitzgerald says there’s no place for torture in a police station and there’s no place for perjury in federal lawsuits.
                CHICAGO, Oct. 21, 2008 – Retired Chicago police Cmdr. Jon Burge was arrested at his home near Tampa, Fla., today on charges of lying in a civil case about whether he and other officers under his command tortured and physically abused suspects in police custody dating back to the 1980s, according to the U.S. attorney’s office.

            • scribe says:

              I would want to have him around the Committee, as a resource, because his experience and knowledge of some of the personages would be useful.

              But he’s pushing 70 by now and probably won’t be able to keep up with the pace.

        • phred says:

          All other considerations aside, there are many people who have not forgiven Dean for his role in Watergate. I went to a dinner last year where he was a keynote speaker. Those of us who have been impressed with his efforts during the Bush period stood to applaud (so yes, for the record I do believe in redemption). Most people did not stand, many did not applaud. Oh, and this was at a dinner for the ACLU. I was a little surprised.

          So I would say your idea is probably a non-starter.

          • readerOfTeaLeaves says:

            Well, my oh my.
            There were that many perfect, unrepentant, unblemished people in the room at that dinner, eh?

            Those folks got nuttin’ on the rigid, inflexible, unforgiving conduct of the GW Bush types of the planet, I suppose.

            Which leaves us with Ben Veniste, and who else…?
            Someone with one hell of a sense of narrative… someone who has teaching experience and a sharp eye for bullshit…

            Where is our Elizabeth Warren of the Torture Timeline…?
            (whistling…. I’m walking around and whistling… walking in circles and whistling… where, or where could America find such a person…?)

            • phred says:

              Yeah, I was pretty surprised, but I also wonder how many folks in that room were simply unaware of what Dean has been doing lately. It may also have been a generational thing, we were a good bit younger than most of the people there. Perhaps their memories of Watergate were stronger than mine. In 30 years I might easily be hard pressed to forgive a member of BushCo.

  6. bmaz says:

    Um, what the hell is his judicial staff doing responding to this, or dealing with it in any manner for that matter? That is not their job and sure isn’t what we pay them for.

    • scribe says:

      I’m gonna be charitable to the Judge.

      Federal appeals court judges ordinarily have three law clerks. These are usually kids a year out of law school – real bright, but not necessarily savvy. In my experience, they do pick up the phone and answer. Appellate judges do not, ordinarily, have courtroom clerks of the experienced civil servant variety, who are usually found in trial courts. After all, the one thing which takes up the least of an appellate judge’s time is sitting on the bench for oral argument. The vast majority of their work is at a desk, reading and/or writing.

      And then there’s a couple secretaries, too.

      So, reporters call chambers and different law clerks and/or secretaries answer each time. Each one gives a different story, either by accident or by design. This would continue until someone tells them to shut up and stop answering the phone.

      That’s how we get three different stories out there.

      So, I’ll say confusion, not panic (yet).

      But, I will say Judge Bybee should have taken his folks aside and introduced them to his defense lawyer, saying “this is my personal lawyer. She will tell you what I want done respecting media contacts about this story involving me prior to my appointment to the bench.” And then he could sit down, close his mouth, let his lawyer talk about media management and not screwing your judge over by talking to reporters, and about passing all inquiries along to her, his lawyer.

      • bmaz says:

        The clerks do come and go and are, usually, fairly unseasoned and loyal as you say. However, I know two 9th Circuit judges well enough to say that their staff other than clerks are remarkably stable; one of them has had the same head secretary since the mid 80s, the other could not have had more than a couple, although there was some flux due to chief judge status for a while. It is not a huge deal, but it does speak to how lame Bybee is. Anybody in their right mind would have standing instructions to all staff not to say a word and refer all calls to an outside counsel or other contact.

  7. Mary says:

    10 It’s not what they should be doing, but you know how some lawclerks are – protective of their judges and starry eyed. He’s not Dean, though, and for that matter, at least Dean had some fight in him in the WH – sounds like Bybee was just an empty suit – wanting his judgeship and naively thinking that there could be a torture cabal in DOJ where he would be the titular head and yet it would all stay secret forever and he would just get away with authorizing what literaly became murder in the Nov after his August opinion.

    OT – There’s a vanity fair piece up now that has a letter exchange from last year with Anita Hill where she offers up Koh as a great pick.


    And it wouldn’t break my heart if someone wanted to go with the white, male, Chemerinsky. It was nice to at least see Koh appearing on some of the lists. Kagan would be a huge disappointment to me.

  8. victoria2dc says:

    Marcy or anyone…

    I have a couple of questions:

    (1) When do we expect the OCR report out? Is that the one that Whitehouse keeps talking about that he expects to be fatal to the Bushies?

    (2) Are there statute of limitations on torture and these other Bush crimes If yes, can we do anything about that?


    • emptywheel says:

      Yes, the OPR report is the one Whitehouse keeps talking about.

      NAL and don’t really know statutes, but somewhere I heard 8 years mentioned. So running out in the next year.

    • Funnydiva2002 says:

      Christy Hardin Smith had a thread on this yesterday.
      One Federal statute has an 8-year limitation, so we’re talking mid-2010 for crimes in 2002. Need to have indictments signed off before the SOL.

  9. Funnydiva2002 says:

    Hey, EW!
    You’re just sah-MOK-in’ this week with the posts! Thanks for staying on this.

    Do you have a go-to source that’s following Al Marri this week?


  10. Dalybean says:

    I do think that people who have publicly spoken out will not be chosen. It’ll be the quiet ones who don’t have a party registration. They maintain this type of status just for these types of jobs.

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