Noting the need to clarify a number of questions surrounding the legal advice provided by the Office of Legal Counsel under Jay Bybee’s leadership, Senator Patrick Leahy, Chair of the Senate Judiciary Committee sent a letter  today to Bybee inviting him to testify before the committee. In particular, the letter points out press accounts that White House Counsel Alberto Gonzales asked Bybee, who was interested in the seat on the Ninth Circuit Court of Appeals which he now holds, if he would first serve as head of OLC. Leahy offers Bybee the opportunity to “come forward and set the record straight with respect to whether and, if so, how your judicial ambitions related to your participation at OLC.”
Further, noting the contrast between a Washington Post story over the weekend suggesting that Bybee has regrets over the memoranda issued while he headed the Office of Legal Counsel and today’s New York Times  story quoting Bybee as saying that he ‘believed at the time, and continue to believe today, that the conclusions were legally correct,’ Leahy offers Bybee the opportunity to clarify what he meant in his public discussion of these issues. Leahy concludes: “There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated, the considerations that went into it, and the role played by the White House.”
These are excellent questions. The American public deserves to have the answers.
Two August 1, 2002 OLC memos signed by Bybee have been released. One, released in 2004 , concludes that to violate U.S. law against torture, conduct must cause pain equivalent to “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The second, released earlier this month , authorizes the use of coercive interrogation techniques on Abu Zubaydah, including extended sleep deprivation and waterboarding.