Bybee’s Lawyer: Bybee Distracted from Torture Memo because Protecting Cheney’s Energy Task Force

I’ll have more on Maureen Mahoney’s first response on behalf of Jay Bybee to the OPR report later today. But I wanted to draw attention to a footnote she includes to–apparently–explain that Jay Bybee was a very busy man at the time when he was supposed to be overseeing John Yoo’s attempts to legalize torture in the summer of 2002. (This is on PDF page 19)

Judge Bybee’s role in reviewing the memo began in earnest around mid-July, roughly two weeks before he signed them.5

5 During the summer of 2002, in addition to his work on national security issues, Judge Bybee, as head of OLC, was also heavily involved in a number of other difficult and pressing legal matters. Of particular note, Judge Bybee was engaged in the district court litigation in Walker v. Cheney, No. 02-340 (DD.C.). The attorneys in that case were working closely with the Department’s Civil Division and the Solicitor General’s Office. The legal issues involved in the case were peculiarly within Judge Bybee’s expertise because his scholarly research had been cited as authority by both sides. See Jay S. Bybee, Advising the President: Separation a/Powers and the Federal Advisory Committee Act, 104 Yale L.J. 51 (1994).

Walker v. Cheney, of course, is the suit the GAO took against Cheney’s office to try to force it to turn over documents relating to his Energy Task Force. After District Court Judge John Bates ruled against GAO in December 2002, it ended one of the more important efforts to subject Cheney’s office to Congressional oversight. Furthermore, this effort must be regarded as Cheney’s first attempt to assert that his was a Fourth Branch, exempt from oversight but also executive regulation.

How interesting, then, that Mahoney highlighted Bybee’s role in helping Cheney succeed in winning this suit to argue that Jay Bybee was doing what he should have been doing in summer 2002.

  1. scribe says:

    Well, the outcome of that case surely didn’t have any influence on his being named a judge, I’m sure.

    Though being willing to be – in effect – part of Cheney’s legal team might have.

    • emptywheel says:

      Yeah. Maybe she’s setting up the defense that he wasn’t bribed for the TORTURE memo with the judgeship. He was bribed in exchange for setting up the Oversight free zone.

      I also think this paragraph may have been a warning shot, though I don’t know who would have seen it as such in DOJ last May.

  2. klynn says:


    I posted some important information here, which I think explains this response from Bybee’s lawyer.

    It’s regarding the released info on the renditions to Poland.

    Where is Cheney today?

  3. earlofhuntingdon says:

    Protecting Cheney’s legal ass is likely to be a full-time occupation, one his daughter and clone is already engaged in.

  4. qweryous says:

    The Torture Memo Author You’ve Never Heard Of:

    The name was Jennifer Koester until her marriage when it became Jennifer Hardy.

    Others posted on Koester on the thread “OPR Report Working Thread” as did I. LINK:

    My posts on that thread concerning Jennifer Koester describe her activities in what amy or may not be a different area. My posts on Koester there:

    The post begins @222. LINK:

    The post continues @ 223. LINK:

      • qweryous says:

        Others of similar nature to be found elsewhere in the past few days.

        There are so many threads that I wonder how it all happens here at emptywheel.

        • fatster says:

          First of all, it happens because of EW. Secondly, this site has the darndest way of attracting so many very knowledgeable, wise, aware and deeply committed folks. Now, what time are you posting that article?

    • emptywheel says:

      Actually, I’d love if you did a Seminal diary on that–documenting what you found.

      One of OPR’s mistakes was NOT to go after her. By not going after her for her crappy-ass inability to do a Lexus search, they significantly weakened their case against Yoo.

      • qweryous says:

        “Actually, I’d love if you did a Seminal diary on that–documenting what you found.”

        OK- Ask and ye shall receive.

        “One of OPR’s mistakes was NOT to go after her. By not going after her for her crappy-ass inability to do a Lexus search, they significantly weakened their case against Yoo.”

        I’m not sure how that fits- with the proposed topic-but if it should I’ll figure it out.

        Could either get it up asap with minor added context so people know what it is about, or with additional digging which may find?. My preference is for asap- what do you say on this?

        EDIT_ preference is post asap then do more digging-I think it is maybe productive and seems unexplored.

          • qweryous says:

            It will be ready in a few hours- and can be posted when ready or held for later post.

            Let me know.

            EDIT: Is there something about posting times that matters? If so I don’t know about it.

  5. GeraldWeinand says:

    Most people don’t realize that dictatorships have the legal backing of their courts. It just involves installing sympathetic friends on the bench.

  6. Gitcheegumee says:

    Addington began his first big legal battle, in early 2001, after Cheney refused to release documents relating to a controversial energy task force that he headed.
    Two private watchdog groups and Congress sued to find out whether energy industry lobbyists improperly sat on the task force and influenced administration policy.
    In a series of letters to David Walker, the comptroller general of the Government Accountability Office, the investigative arm of Congress, Addington argued that neither Congress nor the courts could “intrude into the heart of executive deliberations,” because it would inhibit the “candor” necessary to “effective government.” Addington argued strenuously that no matter what the political or policy outcomes, protecting the information sought by the task force was the right thing to do. “They gave up short-term political expediency,” Berenson says, “for the larger constitutional principle.” More than three years later, Addington’s judgment was vindicated by the Supreme Court, which refused to order the Bush administration to release the documents.

    USNews and World Report

    NOTE: Bybee allegedly was doing some clean up work for Addington on the Cheney energytask force matters.

  7. Gitcheegumee says:

    David Addington is the most powerful man you’ve never heard of …Cheney’s Guy.

    He’s barely known outside Washington’s corridors of power, but David Addington is the most powerful man you’ve never heard of. Here’s why: … › Home › Nation & World – Cached – Similar