Bybee has never been held accountable for his distortions of the law. At the time of his confirmation hearing, news of the torture memos had not yet leaked to the public. When asked about his role in national security matters at his Senate hearing, Bybee stonewalled: "As an attorney at the Department of Justice, I am obliged to keep confidential the legal advice that I provide to others in the executive branch. I cannot comment on whether or not I have provided any such advice and, if so, the substance of that advice."
If the Senate had known the truth, it would have rejected him. The story of William Haynes offers a cautionary tale. As general counsel of the Department of Defense, Haynes also played a key role in authorizing torture; and he was also rewarded by a nomination to a leading appellate court. But before he could be confirmed, the Bush administration's involvement in torture became a matter of public record, and the Senate refused its consent to the nomination. Bybee is a judge today only because of timing and the administration's assertions of executive privilege.
This is unacceptable. The president can rightly claim privilege for his conversations with his confidential advisers. He needs their candid opinions and won't get them if they aren't assured of confidentiality. But Bybee wasn't a presidential confidant. He was the head of a division of the Justice Department that gives authoritative legal guidance to the entire bureaucracy. It goes too far to suggest that the opinions he issued in this role are privileged. This would permit the creation of a world worthy of Franz Kafka—in which the bureaucracy operated under secret rules that bore no obvious relationship to the statutes passed by Congress. Bybee's refusal to reveal his role at his Senate hearing should not insulate his actions from further scrutiny.
Plausible? I don't know. Intriguing? Certainly.