[JURIST] Former head of the Office of Legal Counsel (OLC) [official website] and federal judge Jay Bybee [official profile], who signed off on memos detailing the legal rationale for enhanced interrogation techniques, has declined an invitation to testify [JURIST report] before the US Senate Judiciary Committee [official website], committee chairman Patrick Leahy (D-VT) [official profile] said [testimony] Wednesday. Leahy made the announcement during a hearing [materials; JURIST report] before the Senate Subcommittee on Administrative Oversight and the Courts [official website] on whether Bush administration interrogation techniques constituted torture. Leahy offered no explanation why Bybee chose not to testify, but said:
Since Judge Bybee, through his lawyers, has declined to testify before the Committee at this time about his role in the drafting and authorization of memoranda from the Office of Legal Counsel that permitted torture, I can only presume that he has no exonerating information to provide. Judge Bybee must know that the presumption in our civil law is that when a person fails to come forward with information in his possession that is relevant to a matter, it is presumed to be because the information is negative and not helpful to his cause.As former head of the OLC, Bybee signed off on a recently released [JURIST report] memo [text, PDF] authorizing the use of enhanced interrogation techniques. Leahy called for Bybee's resignation [AFP report] from the US Court of Appeals for the Ninth Circuit [official website] after the memo was released. Bybee also signed off on a previously released controversial memo [text, PDF] that defined torture as physical pain equivalent in "intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death."
Testifying voluntary before the Judiciary Committee about these now-public memoranda is one way in which Judge Bybee could have helped complete the record of what happened and why but he refused. This is especially inappropriate given that Judge Bybee has hardly maintained silence about these matters. He has talked to friends and employees, he has communicated to the press and he has communicated through his lawyers to the Justice Department regarding the Office of Professional Responsibility's review of his actions while a government employee in the Office of Legal Counsel. Apparently the only people he will not explain his actions to are the people who granted him a lifetime appointment to the Federal bench -- the American people through their elected representatives in Congress.