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Thursday, November 19, 2009

Torture Memo Author Sets Up Defense Fund to Fight Possible Impeachment

Michael Isikoff
The federal judge who helped draft Justice Department memos on torture has set up a legal defense fund to pay the costs of defending against possible disciplinary or impeachment proceedings. Jay Bybee, a U.S. Court of Appeals judge in Las Vegas, quietly set up the fund last July following widespread news reports that he and a former deputy, John Yoo, were the focus of a long-running investigation by the Justice Department's internal ethics unit, the Office of Professional Responsibility (OPR), over their role in crafting the memos.

But there were no public references to the fund until this, week when Declassified noticed that a link to the fund had popped up on the Web site of Keep America Safe, an advocacy group set up last month by Liz Cheney, daughter of former Vice President Dick Cheney, that is highly critical of President Obama's national-security policies. The fund is listed as one of Keep America Safe's "causes we support."

The defense fund may be about to become extremely useful for Bybee, who anticipates legal expenses "well in excess of $500,000" as a result of the Justice investigation, according to a letter from the U.S. Judicial Conference ethics committee posted on the fund's Web site. Attorney General Eric Holder told the Senate Judiciary Committee Wednesday that, after a nearly year-long delay and numerous internal reviews, the OPR report into the torture memos was finally slated to be released at the end of this month.

As NEWSWEEK reported last February, the initial draft of the report, completed during the waning days of the Bush administration, concluded that Bybee (at the time assistant attorney general in charge of the Office of Legal Counsel) and Yoo may have violated their professional obligations as lawyers when they drafted a controversial Aug. 1, 2002, memo on torture.

But then-Attorney General Michael Mukasey rejected the draft report and directed that copies of its findings be sent for comment to the targets (including Bybee, Yoo, and Steve Bradbury, who had by then become assistant attorney general for the Office of Legal Counsel). Since then, the report has been redrafted and, after a further round of comments, is now being reviewed for final release by David Margolis, a veteran career prosecutor at the Justice Department.

The initial 2002 memo, signed by Bybee but believed to have been principally drafted by Yoo, concluded that during wartime, President Bush as commander in chief could unilaterally disregard a federal law banning torture in the prosecution of the war on terror. It also concluded that harsh interrogation techniques proposed by the CIA did not constitute torture unless they resulted in the "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." That conclusion opened the door for the CIA to use a wide array of "enhanced" interrogation techniques, including waterboarding, that were approved in a separate memo by Bybee and Yoo on the same day.


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