Idaho: The Elephant In The Room

Judge Jay Bybee

From the Ninth Circuit conference in Sun Valley:

As we plopped down in our aisle seat for the first program at the Ninth Circuit conference this morning, Legal Pad noticed Judge Jay Bybee sitting one row immediately behind us. We turned and introduced ourselves, and found Bybee quite friendly. Then, it dawned on us. This is a panel about executive power. Boalt Hall professor John Yoo is on it, opposite Seth Waxman, the former Clinton solicitor general who argued Hamdan for the detainees.

And we're sitting directly in front of Bybee, Yoo's former boss at the Justice Department's Office of Legal Counsel.

Aaaawkward.

Sullivan, Waxman and Starr

Turns out Yoo couldn't make the conference. In the (perhaps unfortunate) words of Judge Connie Callahan, he was "detained." But the panel was still quite good, in addition to Waxman, former Stanford Law School dean Kathleen Sullivan argued against the current president's broad interpretation of the office's inherent authority. Kirkland & Ellis of counsel Ken Starr gave a well thought out historical overview, and former solicitor general Paul Clement stepped in for Yoo. Although, as Clement was careful to note, "I can't really be Yoo, I can only be me."

By far Sullivan received the warmest applause for her thoughts on whether the president has the authority to wiretap without a warrant. "I'm channeling James Madison here: No!"

Then came time for audience questions, and like clockwork, Oregon's federal public defender Steven Wax asked whether the architects of the Bush administration's torture policy should be prosecuted by the next administration. Bybee, of course, signed off on the so-called Yoo torture memos. So as Wax was delivering his question, we turned our head so we could study Bybee's reaction out of the corner of our eye, kind of subtle-like. Bybee didn't flinch at all; he just sat impassively with his hands on his lap.

The victims of unconstitutional policies should be compensated, Sullivan answered, like those Japanese-Americans who were interned during World War II. However, the dean acknowledged that compensation came quite late, and in the torture context, wouldn't exactly benefit those who were killed. At least some of the panelists were aware that Bybee was in the room, and no others stepped up to answer the question.

After the panel, Legal Pad asked Bybee how questions like the one posed by Wax bothered him. To his credit, Bybee didn't avoid us, but he would only be quoted saying: "It's been out there for some time." 

—  Dan Levine