Judge Voices Regrets Over Selling His Soul

Federal Judge Regrets Selling His Soul

Connecting the Dots of a Judiciary for Sale or Rent

by Franklin N. Brady - April 26, 2009

Federal District Judge Jay S. Bybee is apparently proud of his service on the the federal bench, but no so regarding his prior position as head of the Office of Legal Counsel and his involvement there in the recently made public "torture memos." The following articles explain how connected individuals have arranged protection for each other-- actual, past and anticipated. The "torture memos" scandal is but one example of a systemic national problem of failed  oversight.  Here we see improper actions protectively whitewashed by the government, the judiciary and the attorney bar- each with hands dirtier than the other. The cycle continues.  Is there a solution?

4 articles follow:

• Amind Outcry on Memo, Signer's Private Regret (The Washington Post)
  
• Judge Bybee Lands Pro-Bono Help From Latham's Mahoney (The Wall Street Journal)
  
• White House Release of Interrogation Memos May Turn Up Heat on 9th Circuit Judge (The Recorder)
  
• Ex-Latham Partner Pleads to Fraud Charge (The New York Law Journal)

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Amid Outcry on Memo, Signer's Private Regret
Friends Say Judge Wasn't Proud of Outcome
The Washington Post by Karl Vick - April 25, 2009

LAS VEGAS, NV -- 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 served as his law clerks in the U.S. Court of Appeals for the 9th Circuit, the post Bybee had assumed after two turbulent years at the Justice Department, where as head of the Office of Legal Counsel he signed the legal justifications for harsh interrogations that have become known as the "torture memos." Five years along in his new 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. And then, according to two of his guests, Bybee added that he wished he could say the same about his previous position. It was, in the private room of a public restaurant, 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 that has engulfed Washington. 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 the condition of anonymity while offering remarks that might appear as "piling on." "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, "walling," sleep deprivation and other procedures the Bush administration called "enhanced interrogation methods" -- prompted calls from human rights advocates and other critics for criminal investigations of the government lawyers who generated them.

Of the three former Justice Department lawyers associated with the memos, the public's attention has focused particularly harshly on Bybee because of his position as a sitting federal judge; John C. Yoo, who largely wrote the Bybee memo, returned to academic life, and Steven G. Bradbury, who signed three memos, resumed private practice at the end of the Bush administration. Democratic lawmakers, human rights groups and others have called for Congress to impeach Bybee, complaining that his 2003 Senate confirmation came more than a year before his role in the memos was known. "If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," said Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), adding that "the decent and honorable thing for him to do would be to resign." Democrats blocked the nomination of former Defense Department general counsel William J. Haynes II to the Court of Appeals for the 4th Circuit because of his role in supporting aggressive interrogations of military detainees. Haynes withdrew his nomination in 2007.

The Justice Department withdrew the memos in the closing days of the Bush administration, and as its Office of Professional Responsibility investigates their origin -- and Congress, the American Bar Association and the United Nations mull inquiries -- Bybee is represented by Maureen E. Mahoney, a star litigator at Latham & Watkins. The aura of regret described by Bybee's friends and associates stands in contrast to the demeanor of Yoo, who served under Bybee and has maintained both a public profile and the fearless confidence that informed the memos. "Al-Qaeda in the months after 9/11 was going to carry out follow-on attacks on our country and its citizens," Yoo said Tuesday at a conference at Chapman University, the Orange, Calif., campus where he is teaching this spring. Bybee left the issue behind in 2003, returning to the gated suburban Las Vegas subdivision where he lives with his wife and children. He has said nothing publicly about the documents, a silence associates attributed to the restrictions on a sitting appellate judge, the possible advice of counsel and his own manner.

"Judge Bybee tends to be a very private person, even when he's not in the newspapers," said Ann S. Jarrell, law librarian in the downtown U.S. courthouse where he keeps his chambers. Neither Bybee nor Mahoney would comment for this article. Still, in the years since the original Bybee memo was made public, his misgivings appeared evident to some in his immediate circle. "On the primary memo, that legitimated and defined torture, he just felt it got away from him," said the fellow scholar. "What I understand that to mean is, any lawyer, when he or she is writing about something very complicated, very layered, sometimes you can get it all out there and if you're not careful, you end up in a place you never intended to go. I think for someone like Jay, who's a formalist and a textualist, that's a particular danger."

Tuan Samahon, a former clerk who recalled Bybee's remarks at the reunion 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 that "the spirit of liberty has left the republic," Samahon said. "Jay would be the sort of lawyer who would say, 'Look, I'll give you the legal advice, but it's up to someone else to make the policy decision whether you implement it,' " said Randall Guynn, who roomed with Bybee at Brigham Young University and remains close. Jameel Jaffer, director of the ACLU's National Security Project, which filed a freedom-of-information request regarding the latest memos, said any distinction Bybee may make between the logic of the memos and their application in secret prisons is theoretical at best. "I don't think the August 2002 memos reflect serious attempts to grapple in good faith with the law," Jaffer said. "These are documents that are meant to justify predetermined ends. They're not objective legal memos at all."

Neither Guynn nor his brother, Steve, who also roomed with Bybee, recalled the judge distancing himself from the memos. But in the years since the first memo became public, Bybee left that sense with some. "I got the impression that he was not pleased with that bit of scholarship," said an associate who asked not be identified sharing private conversations. "I don't know that he 'owned it.' . . . The way he put it was: He was head of the OLC, and it was written, and he was not pleased with it." "But he signed it," said Chris Blakesley, a friend and fellow professor at the University of Nevada at Las Vegas Boyd School of Law who was outraged by the memo, which was leaked in May 2004. "The very evening it came out, we were going to dinner, and I told him how awful it was and I hoped he got a chance to repudiate it," Blakesley said. "He didn't say very much, and it was kind of awkward because our families were there." "Getting to the personal side of him, my sense is he would love to repudiate them all," Blakesley said. "Which gets to: Why'd you sign it?"

Bybee had worked in Washington before. During the 1980s he was in the civil and legal policy divisions at the Justice Department, then served as associate White House counsel under President George H.W. Bush. During the Clinton years, he went from Louisiana State to UNLV, whose law school was so new it was located in an old elementary school across Tropicana Avenue. Through the thin walls of the annex, constitutional law specialist Tom McAffee would hear Bybee working the phones. But he struck none of his colleagues as an ideologue. "I have colleagues with reputations as indoctrinators," said McAffee, who has known Bybee 30 years and co-authored a book with him on the Ninth and 10th amendments. "Bybee was the opposite end of the spectrum. He was more interested in getting people to think about things."

Students enjoyed Bybee, voting him professor of the year in 2000. "He was 'The Great Professor,' " said Briant S. Platt, who worked as his research assistant and later clerk. "He was quite self-deprecating: 'You get a root beer float in me and I'm a lot of fun.' " Bybee still occasionally teaches a course at UNLV on separation of powers. "The whole idea that the Constitution is based on a kind of wariness of mankind's tendency to grab power, that is an idea I got from Jay," McAffee said. "So the whole idea of uninhibited executive power, from him, does seem passing strange." Bybee's friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, Guynn said, was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, "Would you be willing to take a position at the OLC first?" Guynn said. Being unable to answer for what followed is "very frustrating," said Guynn, who spoke to Bybee before agreeing to be interviewed. "If they end up having hearings," he said, "they're going to have a very difficult time trying to square him with their judgments about the memo." Staff writer Ashley Surdin contributed to this report.

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Judge Bybee Lands Pro-Bono Help From Latham’s Mahoney
The Wall Street Journal by Ashby Jones - April 17, 2009

Ninth Circuit judge Jay Bybee got some good news yesterday, when the Attorney General in Spain rejected prosecutors’ decision to bring criminal charges against him and five other former Bush officials over the treatment of prisoners at Guantanamo Bay. But his celebration was likely dampened a bit with word that the Justice Department had released detailed memos penned by former Bush administration lawyers describing the harsh techniques used by CIA operatives on detainees from 2002 to 2005. Bybee, then an assistant attorney general, authored one of the memos. Click here for coverage from the NYT, here for the documents, courtesy of the NYT, and here for the WaPo’s take.

Might there be ramifications for Jay Bybee, whose memo sanctions waterboarding because it does not inflict “prolonged mental harm?” An article today in the Recorder examines the issue. “As we understand it,” Bybee wrote, “when the waterboard is used, the subject’s body responds as if the subject were drowning — even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain.” The Obama Administration assured CIA employees Thursday that they would not be prosecuted, but the White House has offered no cover to Bybee or other government lawyers. So for now, Bybee is on his own. The good news, however, he’s got a nationally recognized lawyer on his side, Latham & Watkins’s Maureen Mahoney, who’s handling the case pro bono. In an e-mail Thursday, Mahoney said Bybee has recused himself from Latham cases, but offered no further comment on his case.

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White House Release of Interrogation Memos May Turn Up Heat on 9th Circuit Judge
The California Recorder by Dan Levine - April 17, 2009

The Obama administration released graphic legal memos Thursday that authorized specific interrogation techniques against CIA-held prisoners in the war on terror. Ninth U.S. Circuit Court of Appeals Judge Jay Bybee signed one of those memos on Aug. 1, 2002, when he worked as chief of the Justice Department's Office of Legal Counsel. The substance of the document -- which allows waterboarding because it does not inflict "prolonged mental harm" -- had been reported. But the memo's details may well ramp up public pressure on President Obama to take action against Bush administration lawyers, who already face an internal Justice probe and possible indictment by Spanish authorities. While the White House assured CIA employees Thursday that they would not be prosecuted, the president offered no cover to Bybee or other government lawyers. And where the Justice Department will represent any CIA employee in any U.S. litigation -- or appoint a lawyer to deal with proceedings "in any international or foreign tribunal" -- the Obama administration's promise also did not extend to former Bush administration lawyers.

Latham & Watkins partner Maureen Mahoney represents Bybee. Mahoney, a nationally recognized advocate, is working pro bono, according to one person familiar with the matter. Such gratis fee arrangements are common for government employees under investigation by the Justice Department's Office of Professional Responsibility, say several lawyers who have represented clients in similar situations. Part of the reason these attorneys cite for waiving their fee -- beyond public service -- is the limited resources of the clients. Bybee -- a longtime government lawyer and academic before joining the court -- does not enjoy the wealth of big-firm practitioners. During his confirmation proceeding in 2003, the judge reported a net worth of $457,000, with more than half of that in a retirement account. Bybee, 55, also has four children.

A Westlaw search shows that Bybee recused himself from the only three published cases involving Mahoney's firm since 2007; the last time Bybee presided over a matter where Latham was involved was in 2004. In an e-mail Thursday, Mahoney said Bybee has recused himself from Latham cases, but offered no further comment on his case. The Obama administration released the memos Thursday to meet a deadline in open records litigation brought by the American Civil Liberties Union. Its decision came after what other published reports have described as a fierce battle within the administration, with Attorney General Eric Holder and White House counsel Gregory Craig pushing for release, and CIA Director Leon Panetta resisting.

Bybee's August 2002 memo notes that his legal opinions are based on the CIA's description of the interrogation techniques it sought permission for in July of 2002. "As we understand it," Bybee wrote, "when the waterboard is used, the subject's body responds as if the subject were drowning -- even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain." Bybee's successors withdrew portions of his legal analysis. But Obama also made public Thursday a set of memos written by then-OLC chief Steven Bradbury in 2005 that reinstated some of that reasoning.

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Ex-Latham Partner Pleads to Federal Fraud Scheme 
Ex-Latham Partner Pleads to Fraud Charge
The New York Law Journal by Anthony Lin - March 31, 2008

A former partner at Latham & Watkins pleaded guilty Friday to defrauding both clients and his own firm by charging them more than $300,000 in personal or false expenses. Samuel A. Fishman, a mergers and acquisition specialist in Latham's New York office from 1993 to 2005, was designated billing partner for a number of firm clients. According to prosecutors at the Southern District U.S. Attorney's Office, Mr. Fishman, 51, used his position to carry out a fraudulent scheme over the course of several years. Responsible for supervising and approving invoices sent to clients, Mr. Fishman added to the bills a number of inappropriate items, mischaracterizing them as charges for photocopying or express mail. He also fraudulently sought reimbursement from his firm for a number of personal expenses he claimed were for business. The U.S. Attorney's Office did not identify Latham as Mr. Fishman's firm in a criminal information filed with the guilty plea, nor was the firm's name mentioned in court yesterday afternoon when Mr. Fishman entered his plea to one count of mail fraud. But in a statement yesterday, the firm acknowledged Mr. Fishman as a former partner and said his misconduct had come to light in 2005. Latham "immediately acted to protect our clients fully, and disclosed the matter to appropriate law enforcement authorities," said David Gordon, Latham's New York managing partner. "Mr. Fishman resigned from the firm at the time the issues were discovered. Since that time, we have cooperated fully with the investigation." In announcing Mr. Fishman's guilty plea, prosecutors noted that the firm had reimbursed its clients hundreds of thousands of dollars that had been fraudulently charged. A firm spokesman yesterday declined to identify the clients defrauded by Mr. Fishman.

The criminal information said Mr. Fishman's clients were in the banking, utilities, telecommunications and entertainment industries. He has previously acted as lead counsel for companies including movie theater chain AMC Entertainment Inc. and JPMorgan Partners, the private equity arm of JPMorgan Chase & Co. Accompanied at yesterday's hearing by defense lawyer Jack Litman of Litman, Asche & Goiella, Mr. Fishman expressed remorse to Southern District Judge Victor Marrero. "I am very sorry for what I did," he told the judge. Mr. Fishman's sentencing is scheduled for June 27. The mail fraud charge carries a maximum sentence of 20 years in prison. Mr. Fishman also has agreed to forfeit $350,000 in ill-gotten wealth. He also faces likely disbarment. A number of major firms have had to deal in recent years with fraud by partners, though most instances have resulted in disbarment or other disciplinary sanction as opposed to criminal prosecution. In 2006, former WilmerHale intellectual property partner William P. DiSalvatore resigned from the bar after admitting to a litany of misconduct, including falsifying expense reports and assigning associates to perform "pro bono" work for friends and family. He claimed more than $109,000 in false personal expense. (NYLJ, Aug. 14, 2006) Willkie Farr & Gallagher and the former Kronish Lieb Weiner & Hellman are two other firms that have also terminated partners for fraudulently seeking reimbursement for personal expenses. (NYLJ, July, 31, 2006 and June 19, 2002)

In most such cases, including that of Mr. Fishman, the defrauded amounts have been small compared to what the perpetrators earn as partners. Last month, Latham said it had profits per partner of $2.3 million in 2007. Steven Lubet, a legal ethics professor at Northwestern University School of Law, said he always found it "incredible" that highly paid partners would resort to fraud. He said he could only imagine that such people were overspending trying to emulate the lifestyles of those they represented. "The clients have that kind of money, the lawyers don't," said Mr. Lubet. "Sometimes, lawyers decide they want to live like their clients and that extra money has to come from somewhere." Perhaps the most well-known case of a lawyer bilking his clients and firm was Webster Hubbell, the former associate attorney general under President Bill Clinton. Mr. Hubbell was forced to resign his position in 1994 after his former partners at Arkansas' Rose Law Firm discovered billing irregularities. He later pleaded guilty to fraudulently charging almost $500,000 for personal expenses and legal work never actually performed. He served 16 months in prison. - Anthony Lin can be reached at alin@alm.com. Additional reporting by Mark Hamblett.

CLICK HERE TO SEE RELATED LATHAM STORY, "NY Ethics Scandal Tied to International Espionage Scheme."