[2] While serving in the Bush administration as the assistant attorney general for the Office of Legal Counsel, Bybee signed the controversial "Torture Memos" in August 2002.
These authorized "enhanced interrogation techniques" that were used in the systematic torture of detainees at Guantanamo Bay detention camp beginning in 2002 and at the Abu Ghraib facility following the United States' invasion of Iraq in 2003.
Bybee spent one year as law clerk to Judge Donald S. Russell of the United States Court of Appeals for the Fourth Circuit.
[7] Bybee has co-authored two books, Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments (2006) (with Thomas B. McAffee and A. Christopher Bryant), and Religious Liberty Under the Free Exercise Clause.
[2] Bybee served as the assistant attorney general for the Office of Legal Counsel (OLC) in the United States Justice Department from November 2001 to March 2003.
[10][11] Following the September 11 attacks, the George W. Bush administration classified detainees as unlawful combatants, claiming they were not protected under the Geneva Conventions as prisoners of war.
In late 2001 and early 2002, these detainees were subjected to beatings, electric shocks, exposure to extreme cold, suspension from the ceiling by their arms, and drowning in buckets of water.
[15] Later that April, CIA contractor James Mitchell proposed a list of additional tactics, including locking people in cramped boxes, shackling them in painful positions, keeping them awake for a week at a time, covering them with insects, and waterboarding, a practice which the United States had previously characterized in war crimes prosecutions as torture.
A memo declassified in 2012 indicates that some in the Bush State Department believed that the methods were illegal under domestic and international law, and constituted war crimes.
[3] Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions,[31] and U.S. Navy general counsel Alberto J. Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" of the memo.
[32] Philip D. Zelikow, former State Department adviser to Condoleezza Rice, in 2009 testified to the Senate Judiciary Committee studying the matter, "It seemed to me that the OLC interpretation of U.S. constitutional law in this area was strained and indefensible.
[36]: 255–256 The OPR initial report recommended that both Bybee and Yoo be referred to the bar associations of the states where they were licensed for further disciplinary action and possible disbarment.
[48] Democratic Senator Charles Schumer noted that he supported Bybee's confirmation specifically because the judge's conservative views would help to moderate "the most liberal court in the country.
With Judge Robert Beezer, Bybee voted for the majority decision that the schools' admissions policy constitutes "unlawful race discrimination."
That panel's ruling was overturned on December 5, 2006, by an 8–7 decision of the Ninth Circuit's fully active appeals judges en banc, after a rehearing sought by Kamehameha Schools.
[56] On January 10, 2006, in an en banc decision, Judge Bybee wrote the opinion for the majority in the case of Smith v. Salish Kootenai College.
The Ninth Circuit granted habeas corpus based on ineffective assistance of counsel and faulty jury instructions, and noted that there was support for Lankford's theory that his brother committed the murders in question.
[65] On August 29, 2012, Bybee, who previously wrote the dissent in a three-judge panel's ruling, authored the majority opinion that found Arizona sheriff Joe Arpaio and special prosecutor Dennis Wilenchik were not entitled to governmental immunity.
In an 11-judge en banc hearing, the Ninth Circuit reversed the panel's decision and held the two defendants could be civilly tried for a potential award of damages for the arrests, violations of free speech and alleged selective enforcement.