Bybee said Yoo was "at the White House on a regular basis" and was responsible for all of the discussion with the Bush administration on matters relating to torture. Bybee said Yoo never disclosed to him that he had been participating in top-secret White House "war planning."
Last year, a report released by the inspectors general of the CIA, National Security Agency, Justice Department and Defense Department said Bush justified his warrantless wiretapping in the United States by relying on Yoo's theories of unlimited presidential wartime powers and started the spying operation even before Yoo issued a formal opinion.
Bybee was quoted in that report as saying that Yoo was "the White House's guy" on national security issues and complained that Yoo was "read into" the secret details of the classified Presidential Surveillance Program, while Bybee, was kept out of the loop.
In his interview with the Judiciary Committee, Bybee said he was concerned that "John was involved with the White House in a number of apparently war-planning things" that Bybee "was not aware of" at the time. Yoo, now a law professor at the University of California at Berkeley, did not respond to email queries for comment.
Rep. Jerrold Nadler (D-New York) chairman of the subcommittee on the Constitution and Civil Rights, said Yoo's "close relationship" with Bush's White House "warrants further investigation."
Despite the widespread criticism of the legal quality of the torture memos, Bybee still defended the work. "We might have been clearer in some places," Bybee said. "But, in terms of the analysis, I am going to stand by the memo."
Bybee's May 26 interview with the House Judiciary Committee was treated as a closely guarded secret. Yet, it was unclear why Rep. John Conyers (D-Michigan) committee chairman, decided to conduct the interview privately rather than have Bybee testify publicly. Bybee's status as a sitting federal judge may have been a factor.
MadDog, a regular commenter at Marcy Wheeler's blog, Emptywheel, noted that a May 4 letter Conyers sent to Bybee's attorney, Maureen Mahoney, released with Bybee's interview transcript, indicates the Judicary committee reached an agreement with Mahoney to have Bybee speak to the committee privately. Conyers' letter refers to an April 27 letter Mahoney sent the committee, which appears to center around the JudiciaryCommittee's interest in interviewing Bybee. A copy of the April 27 letter was not included in the batch of supporting documents Conyers' office released Thursday.
Conyers' May 4 letter to Mahoney said, "Although Committee staff and I do not agree with the characterizations in your April 27 letter, the Committee is willing to proceed as described below."Conyers then goes on to state, "...As with most such Committee interviews, [Bybee's] interview will not be announced publicly in advance""
Bybee sat down with committee members about three months after the Justice Department's internal watchdog, the Office of Professional Responsibility (OPR), issued a long-awaited report on the legal advice that Bybee and Yoo provided to the White House on so-called "enhanced interrogation techniques."
That report concluded that the legal advice that Yoo and Bybee gave the White House warranted stern punishment, including a recommendation to their state bar associations for possible disbarment.
In the OPR report, Yoo was found to have "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice."
Bybee was said to have "committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice."
But the judgment was softened by career prosecutor David Margolis, who was put in charge of the final recommendations. Margolis said he was "unpersuaded" by OPR's "professional misconduct" conclusion and changed the "misconduct" findings to "poor judgment," thus avoiding the referral to state bar associations.
OPR investigators said their probe was hampered by the fact that Yoo's emails from July 2002 through August 5, 2002, were deleted and "reportedly" not recoverable. Bybee said he could not recall whether he took steps to make sure Yoo preserved his emails as required by federal law.