Impeach Jay Bybee
ThinkProgress is starting up a campaign to gather petitions in support of the proposition that congress needs to hold impeachment hearings on Judge Jay Bybee, one of the key architects of the Bush-era torture regime. After noting that Bybee authorized various methods of torture, from slapping to “stress positions” to waterboarding we say:
These techniques are illegal by U.S. statute and international treaty to which the U.S. is a signatory. Bybee attempted to give legal cover to illegal acts, and thus broke the ethical, professional, and legal standards that should govern lawyers. For this, Judge Jay Bybee should be impeached. Congress needs to assert some accountability for these heinous acts.
You can sign onto the petition here.
The idea of Bybee sitting in judgment of other people’s alleged transgressions is, frankly, ridiculous. It would be absurd for his colleagues on the Ninth Circuit or the District Court judges he’s empowered to overrule to take his legal “expertise” seriously.
83 Responses to “Impeach Jay Bybee”
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April 21st, 2009 at 11:45 am
Yes, but the fact that some guy in a magazine has written an article saying that conditions in American prisons may sometimes amount to torture means that everyone should get a complete pass for repeated violations of federal and international law. Plus the fact that criminal statutes can’t be written with the precision of a mathematical formula means that they can never be applied against anyone. And if you haven’t personally provided 2/3 of the votes in the Senate you’re obviously not serious about torture. It’s all completely logical!
Just thought I’d save Mixner some time so adults can have a discussion here if they so desire.
April 21st, 2009 at 11:52 am
I agree that Bybee should be impeached, but I question the timing. Personally, I think it could be smarter to wait at least for release of the OPR review, and perhaps also the completion of some of the ongoing congressional committee investigations. That is because I think waiting for those events may maximize the chance of conviction in the Senate.
April 21st, 2009 at 11:54 am
Sure but he can’t be the only one. The WH is now saying it may go after the torture lawyers. Sigh, I think in the end Bybee resigns saying this was a “distraction” for court. We celebrate and then forget. Bybee then goes and writes a book about how he was martyred for “keeping us safe.” Then runs and wins some elected office.
Jeebus, tell me this won’t happen.
April 21st, 2009 at 11:55 am
I have yet to hear or read one legal authority justifying a possible impeachment. The constitution says that federal judges serve during “good behavior.” I can think of no way to credibly argue that a federal judge can be impeached for actions he took prior to his becoming a judge. If someone can tell me why I’m wrong, then great. If not, then liberals should rejoin the reality based community on this and find some other way to make these guys pay, such as pushing to have the California courts/bar association disbar Bybee and Yoo.
April 21st, 2009 at 12:04 pm
As much as I’d love to see Bybee go, I don’t think that impeachment is a good idea. It’s not really clear what crimes he’s committed. I don’t see any evidence of murder, rape, embezzlement, etc. He has written some legally unjustifiable memos, but that just makes him a bad lawyer. And there’s nothing illegal about writing bad opinions. That doesn’t mean he can’t be impeached and convicted by Congress; Congress isn’t really held to the same legal standards as the courts are. But it does mean that the effort will appear to be political, rather than legal. And it will make our efforts to put good judges on the bench even harder by making political grudges seem acceptable.
April 21st, 2009 at 12:13 pm
Lawyers who give advice to clients on how to avoid prosecution for crimes they – they lawyers – know beforehand will be committed are engaging in a criminal conspiracy.
April 21st, 2009 at 12:18 pm
I attempted to sign this petition but I added my own message rather than the canned message. My message was deleted and replaced by a different canned message. I don’t choose to communicate in this way. If you leave me a text box and allow be to write in it, I don’t see where you get off deleting my message.
What I tried to say:
April 21st, 2009 at 12:20 pm
the criminal act is as follows. assuming that he (and others such as john yoo, etc..) are not complete legal morons (and thus unable to perform the actions of a judge) they knowlingly provided FALSE legal opinions for illegal acts and were a part of a conspiracy to deprive individuals of their rights (including the “torturers” who were presented with illegal orders and these illegal justifications, putting them in a no win position of being able to defy the orders based on their illegality). It seems to me that finding out about a criminal act after a judge is sworn in is certainly reason for impeachment and that offerring distorted legal justifications for acts that they knew were illegal are proof of such a conspiracy.
as for the pettition, I am in.
finally, the way to get around the “little fish” is to offer them personal immunity in exchange for truthful testimony regarding the conviction of their superiors, including descriptions of the torture, whether they requested the abiliuty to perform it or were forced to, etc… That way the small fish walk only AFTER being of use and admitting their crimes.
April 21st, 2009 at 12:21 pm
What is hilarious is that Torture Advocate Bybee is on the Ninth Circuit Court of Appeals. That has been one of the most liberal of the Federal Appeals Courts.
Yet yesterday the Ninth Circuit ruled in Nordyke V King that the Second Amendment right to keep and bear arms is BINDING on the STATE Governments as well as on the Federal Government — via the Due Process clause of the 14th Amendment. The Supreme Court in Heller had not gone that far.
In his opinion, Judge Gould noted
“That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived.1 Second, the right to bear arms is a protection against the possibility that even our own government could degenerate
into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence.”
Ref: http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf
————–
So I guess the Ninth Circuit Court of Appeals is saying that if its Judge Bybee tortures you, you can shoot the motherfucker.
April 21st, 2009 at 12:24 pm
I think we should argue for Bybee’s impeachment on the grounds that his presence on the 9th Circuit creates a hostile work environment for his fellow judges, who can’t work without a well-founded fear that he will torture them.
April 21st, 2009 at 12:35 pm
@ #8
t seems to me that finding out about a criminal act after a judge is sworn in is certainly reason for impeachment
Can you cite any authority for that assumption? I researched this stuff a bit the other day. Federal law seems to allow impeachment for judges who have been convicted of a felony, though if the crime was something they did before becoming a judge, I’m not sure they can be impeached, rather they would just stop being a job, and would lose their benefits. It doesn’t seem, however, like Bybee will be convicted of a felony.
April 21st, 2009 at 12:43 pm
@9 don williams: The ruling also precludes allowing me the option of having a nuclear tipped missile in my back yard for home defense. But it leaves a lot of wriggle room. For instance, can I park an M1 Abrams in my garage and drive it to church and back? To protect myself and my family from potential roving bands of terrorists?
April 21st, 2009 at 12:50 pm
“Lawyers who give advice to clients on how to avoid prosecution for crimes they – they lawyers – know beforehand will be committed are engaging in a criminal conspiracy.”
That’s a good argument. I’m not entirely convinced, but I’ll admit to a general belief that conspiracy charges are usually dubious. And this situation seems pretty gray. Was Bybee directly advising anyone, or was he just writing a legal opinion based on a theoretical matter? Wouldn’t you have to prove Bybee knew that the torture was taking place, and that he knew who was doing it? It seems like a hard case to prove in court. Consider a similar issue: Let’s say a law professor writes an article in a legal journal explaining how a murderer might manipulate evidence to beat a murder rap. Is he engaging in a conspiracy? Or is he simply discussing legal theory? It seems that is this case, you’d have to prove a connection between the law professor and a specific murder suspect to prove any conspiracy. I’m not a lawyer, so I’m not really sure about this. I’ll let greater legal minds answer these questions.
April 21st, 2009 at 1:05 pm
Re max424m at 12: “For instance, can I park an M1 Abrams in my garage and drive it to church and back? To protect myself and my family from potential roving bands of terrorists?”
————-
Look at the glass as half full, max.
If some right wing Teabaggers took a shot at you, wouldn’t you want to be able return fire with a machine gun?
April 21st, 2009 at 1:10 pm
Re “You can sign onto the petition here. ”
————
Er.. with regime changes, petitions have a way of ending up as lists of internees to be rounded up for the camps. heh heh
April 21st, 2009 at 1:12 pm
Alan,
The case law on impeachment and removal is actually very thin because it hasn’t happened all that often. But this will almost surely be considered by the courts to largely be a non-justiciable matter for Congress to determine, such that at most Congress will have to comply with a broad interpretation of the text of the Constitution.
And the relevant text is:
Nothing in that text requires that the high crimes and misdemeanors be committed while the person is in office, so I think it is highly likely the courts would decide it was within Congress’s discretion to impeach and remove an official for crimes committed prior to taking office which were only discovered after taking office.
April 21st, 2009 at 1:15 pm
fostert,
Bybee was asked to write an opinion about the techniques being used in interrogations already taking place. He knew that there was nothing hypothetical about what would happen if his memo concluded that these techniques were lawful.
April 21st, 2009 at 1:16 pm
By DAVID B. RIVKIN JR. and LEE A. CASEY
The four memos on CIA interrogation released by the White House last week reveal a cautious and conservative Justice Department advising a CIA that cared deeply about staying within the law. Far from “green lighting” torture — or cruel, inhuman or degrading treatment of detainees — the memos detail the actual techniques used and the many measures taken to ensure that interrogations did not cause severe pain or degradation.
Interrogations were to be “continuously monitored” and “the interrogation team will stop the use of particular techniques or the interrogation altogether if the detainee’s medical or psychological conditions indicates that the detainee might suffer significant physical or mental harm.”
An Aug. 1, 2002, memo describes the practice of “walling” — recently revealed in a report by the International Committee of the Red Cross, which suggested that detainees wore a “collar” used to “forcefully bang the head and body against the wall” before and during interrogation. In fact, detainees were placed with their backs to a “flexible false wall,” designed to avoid inflicting painful injury. Their shoulder blades — not head — were the point of contact, and the “collar” was used not to give additional force to a blow, but further to protect the neck.
The memo says the point was to inflict psychological uncertainty, not physical pain: “the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action.”
Shackling and confinement in a small space (generally used to create discomfort and muscle fatigue) were also part of the CIA program, but they were subject to stringent time and manner limitations. Abu Zubaydah (a top bin Laden lieutenant) had a fear of insects. He was, therefore, to be put in a “cramped confinement box” and told a stinging insect would be put in the box with him. In fact, the CIA proposed to use a harmless caterpillar. Confinement was limited to two hours.
The memos are also revealing about the practice of “waterboarding,” about which there has been so much speculative rage from the program’s opponents. The practice, used on only three individuals, involved covering the nose and mouth with a cloth and pouring water over the cloth to create a drowning sensation.
This technique could be used for up to 40 seconds — although the CIA orally informed Justice Department lawyers that it would likely not be used for more than 20 seconds at a time. Unlike the exaggerated claims of so many Bush critics, the memos make clear that water was not actually expected to enter the detainee’s lungs, and that measures were put in place to prevent complications if this did happen and to ensure that the individual did not develop respiratory distress.
All of these interrogation methods have been adapted from the U.S. military’s own Survival Evasion Resistance Escape (or SERE) training program, and have been used for years on thousands of American service members with the full knowledge of Congress. This has created a large body of information about the effect of these techniques, on which the CIA was able to draw in assessing the likely impact on the detainees and ensuring that no severe pain or long term psychological impact would result.
The actual intelligence benefits of the CIA program are also detailed in these memos. The CIA believed, evidently with good reason, that the enhanced interrogation program had indeed produced actionable intelligence about al Qaeda’s plans. First among the resulting successes was the prevention of a “second wave” of al Qaeda attacks, to be carried out by an “east Asian” affiliate, which would have involved the crashing of another airplane into a building in Los Angeles.
The interrogation techniques described in these memos are indisputably harsh, but they fall well short of “torture.” They were developed and deployed at a time of supreme peril, as a means of preventing future attacks on innocent civilians both in the U.S. and abroad.
The dedicated public servants at the CIA and Justice Department — who even the Obama administration has concluded should not be prosecuted — clearly cared intensely about staying within the law as well as protecting the American homeland. These memos suggest that they achieved both goals in a manner fully consistent with American values.
Messrs. Rivkin and Casey, who served in the Justice Department under George H.W. Bush, were U.S. delegates to the U.N. Subcommission on the Promotion and Protection of Human Rights.
April 21st, 2009 at 1:21 pm
they knowlingly provided FALSE legal opinions for illegal acts and were a part of a conspiracy to deprive individuals of their rights
I don’t really understand this. What makes the legal opinion “false”? I’m not a lawyer, but from what I’ve read the memos lay out the relevant law and point out where certain interpretations may or may not apply. We may disagree with the moral judgments implicit in the interpretation, but I am not aware of anything factually incorrect in his work. Would be interested in reading any arguments to the contrary.
In any case, why would this be a conspiracy? This is what lawyers do always. Is a criminal defense attorney part of a conspiracy to commit murder if his client is a killer?
April 21st, 2009 at 1:24 pm
To continue my thought, do we prosecute criminal defense attorneys? Of course not, we prosecute the murderers. If we want to go after someone here, don’t focus on the lawyer, focus on the decision-makers.
Bybee may be a slimeball, but guess what — so are most lawyers.
April 21st, 2009 at 1:25 pm
Why don’t we waterboard David Rivkin and Lee Casey and see if they change their minds?
Looks like Ward Churchill was right about at least some of the “little Eichmanns”.
April 21st, 2009 at 1:26 pm
That’s a good argument. I’m not entirely convinced, but I’ll admit to a general belief that conspiracy charges are usually dubious. And this situation seems pretty gray. Was Bybee directly advising anyone, or was he just writing a legal opinion based on a theoretical matter? Wouldn’t you have to prove Bybee knew that the torture was taking place, and that he knew who was doing it?
Just based on what is public so far, we know that CIA people were doing things or ordered to do things that they thought might be torture, which is a Federal felony and a war crime, so they asked DOJ for a legal opinion. So, yes, of course he knew something was going on. Presumably, before writing the memo, he researched the topic, so he knew what was considered torture under the law. He then wrote a long memo in which he is rather obviously is looking for ways to perform various actions (waterboarding, slamming heads against walls, etc.) in such a way that you can make a legalistic defense against the charges of violating the anti-torture laws.
Note that the memo is describing legalistic defenses, not credible legal defense. Under the “reasonable man/woman” principle, which requires that you not pretend to be as gullible as Forest Gump, the memos are obviously intended to allow you to torture someone while providing details to add to the process (having a doctor in the room, using a flexible wall) that will allow you to claim you haven’t actually violated the law.
This is the same principle your mother applied when you claimed that the cookie just fell into your mouth, and since you told her you didn’t really want a cookie, and you made sure idn’t see how the cookie got there, she has to accept your flying cookie argument and can’t punish you for stealing it.
April 21st, 2009 at 1:28 pm
Re right at 19: “Is a criminal defense attorney part of a conspiracy to commit murder if his client is a killer? ”
———–
He is if he advised his client of the best way to go about committing the murder in order to avoid arrest and prosecution.
April 21st, 2009 at 1:29 pm
Remember when even George Bush and Dick Cheney used to say “We don’t torture, America doesn’t torture, this is not American policy?”
Now, their little fanbois show up to talk about how awesome and necessary torture is.
To continue my thought, do we prosecute criminal defense attorneys?
We do, when they provide legal advice intended to advance a criminal conspiracy. One of the Gitmo prisoners’ attorneys is in federal prison right now, because she smuggled out instructions to other terrorists. There was a famous case a few years ago in which a prominent DC attorney went to prison because he assisted in money-laundering and passing messages for a client who was part of a Colombian drug cartel.
April 21st, 2009 at 1:35 pm
Right,
I think the analogy here is much closer to a lawyer telling his client that it is legal for him to commit pre-meditated murder if he sets up a claim of self-defense to hide behind. Such a claim would be false, just as Mr. Bybee’s (forgive the pun) tortured logic to allow what is clearly illegal.
I must say it’s interesting how so many people can fixate on a single tree (ie sorry, he broke the law before he was confirmed as a judge, so there is no accountability), instead of what is really an overwhelming forest of evidence that the Bush Administration committed war crimes and used Lawyers and Doctors who were willing to betray their professional ethics to help them pretend it was “legal.”
April 21st, 2009 at 1:36 pm
Waterboard the pendejo but only after he’s been kept awake for 75 hours. Slap Yoo around as well.
Bybee and his ilk saw their chance to suck the dicks of power and leaped at it. They saw it as their ticket to a free ride for the rest of their lives.
April 21st, 2009 at 1:40 pm
Re @19:
This is exactly the problem. The memos actually leave out lots of important stuff: like the fact that waterboarding was considered torture in previous case law. I dont have the references and Im not a lawyer, but see for instance Senator Whitehouse describing the opinions:
http://www.youtube.com/watch?v=Dp2ruiizJ68
These were not legal opinions – at least in the sense most people understand the words – but rather pieces of paper saying exactly what the Cheney / cia wanted.
As the job of OLC is to prepare legal opinions, not just to be yes-men, you can see where people like Bybee might be in trouble.
April 21st, 2009 at 1:44 pm
“He knew that there was nothing hypothetical about what would happen if his memo concluded that these techniques were lawful.”
I’m sure that’s true, but how do we prove it? Without some other memo informing Bybee of the real nature issue, we would have to prove his state of mind. And that’s hard to do. In the end, my fear is that Bush’s legal team was so effective at exploiting legal gray areas that there may be no real case anywhere. Obviously, to get to actually torturing people, some law must have been broken somewhere along the way. But at which point was that? Instead of having one clear-cut point where a law was broken, we have a long series of legal gray areas. Those gray areas must add up to a violation of the law, but it’s possible that at no single point was a particular law violated. It seems that everyone at every level has just enough uncertainty to weasel out of a criminal charge. And that was obviously by design.
April 21st, 2009 at 1:47 pm
Re JohnnyK at 26: “Bybee and his ilk saw their chance to suck the dicks of power and leaped at it. They saw it as their ticket to a free ride for the rest of their lives. ”
——-
An interesting way of describing how one goes about gaining a lifetime appointment as a federal appeals judge — and the fruits of that process. But largely accurate, in my opinion.
April 21st, 2009 at 1:48 pm
“I have yet to hear or read one legal authority justifying a possible impeachment. The constitution says that federal judges serve during “good behavior.””
Impeachment isn’t subject to legal constraints: it’s whatever Congress wants
it to be. And since it’s the *only* mechanism to force removal
of a judge with lifetime tenure, it obviously makes sense to use
it in a case like that of Bybee where facts have emerged which
make his position as a judge a huge embarrassment.
However, what I really want is for the buck to stop with G.W.
Bush, who rather evidently authorized all this and then
repeatedly and blatantly lied about it. And I’d also like
everyone to note that Powell and Armitage were in the loop
and knew what was going on and yet rated their status as
loyal Republicans higher than their duty to the Constitution.
If Powell had resigned early in 2004 and campaigned for Kerry,
we would surely have been spared Bush’s appalling second
term. Powell enabled four years of torture. I hope that he
has enough conscience to suffer nightmares every night of his
life for that.
April 21st, 2009 at 1:52 pm
Fostert, I normally like your posts, but you’re being obtuse here.
The memos state, “You’re asking whether you can do X [put the guy in a bug-box, slam his head against the wall, etc.]. I think we can justify that as legal if we do A, B, and C.” You don’t need to understand his “state of mind,” it’s clear beyond a reasonable doubt that he was asked to give opinion on actual techniques the interrogators actually wanted to use.
April 21st, 2009 at 1:55 pm
Impeachment is not removal from a specific office. It is a finding of bad character that eliminates eligibility for all federal civil offices.
Thus, if Bybee is impeached for his actions at justice, he is found to be unworthy of any Civil Office of the United States, which includes federal judgeships.
April 21st, 2009 at 2:00 pm
I’m not a lawyer, but from what I’ve read the memos lay out the relevant law and point out where certain interpretations may or may not apply.
As others pointed out, this is false: the memos omit crucial legal authorities whenever they don’t support the desired interpretation. And in fact, that is one of the crucial pieces of evidence that these memos were offered in bad faith: they didn’t even bother trying to deal with bad precedents, but simply ignored them.
But this is one reason why it may be worth waiting for the OPR review: it should go into this issue in detail.
I’m sure that’s true, but how do we prove it?
It is in the memo itself. The memo starts, “You have asked for this Office’s views on whether certain proposed conduct would violate the prohibition against torture found at Section 2340A of title 18 of the United States Code. You have asked for this advice in the course of conducting interrogations of Abu Zubaydah.” The memo then goes on to detail what the CIA said they had been doing so far and what they were proposing to do.
Instead of having one clear-cut point where a law was broken, we have a long series of legal gray areas.
No, not really. The acts of torture themselves were crimes. Ordering the acts of torture was a crime. Providing bad faith legal opinions and helping design the torture programs was a crime. None of these are actually “gray areas” if you look at the relevant legal precedents.
April 21st, 2009 at 2:00 pm
Re fostert at 28: “Those gray areas must add up to a violation of the law, but it’s possible that at no single point was a particular law violated. It seems that everyone at every level has just enough uncertainty to weasel out of a criminal charge. And that was obviously by design.”
———–
Er.. the standards of a criminal trial are not exactly the same as those for removing someone from a position of trust in the government — or for disbarring them from the practice of law.
OR the standards in some other quarters.
I may be wrong but I suspect that one outcome from this publicity will be that some foreign gentlemen will pay Mr Bybee, Mr Addington and Mr Yoo a visit some dark, foggy night a year or so hence.
http://en.wikipedia.org/wiki/John_Paisley
April 21st, 2009 at 2:01 pm
There’s going to be quite a list
http://www.washingtonpost.com/wp-dyn/content/article/2007/12/08/AR2007120801664.html
Hill Briefed on Waterboarding in 2002
In Meetings, Spy Panels’ Chiefs Did Not Protest, Officials Say
In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.
Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.
Yet long before “waterboarding” entered the public discourse, the CIA gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.
With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter. The lawmakers who held oversight roles during the period included Pelosi and Rep. Jane Harman (D-Calif.) and Sens. Bob Graham (D-Fla.) and John D. Rockefeller IV (D-W.Va.), as well as Rep. Porter J. Goss (R-Fla.) and Sen. Pat Roberts (R-Kan).
Individual lawmakers’ recollections of the early briefings varied dramatically, but officials present during the meetings described the reaction as mostly quiet acquiescence, if not outright support. “Among those being briefed, there was a pretty full understanding of what the CIA was doing,” said Goss, who chaired the House intelligence committee from 1997 to 2004 and then served as CIA director from 2004 to 2006. “And the reaction in the room was not just approval, but encouragement.”
April 21st, 2009 at 2:05 pm
The best approach to impeaching him would actually be for perjury – not violating any oath to tell the truth, but rather violation of his oath of office.
It would entail proving that he did not “well and faithfully discharge his duties”. That would be very difficult to prove.
April 21st, 2009 at 2:06 pm
I also remember when a lot of people thought this was a bad idea
http://www.nytimes.com/1997/03/14/us/house-gop-begins-listing-a-few-judges-to-impeach.html
House G.O.P. Begins Listing A Few Judges to Impeach
I imagine this will go about as far as Tom Delay got with his bright idea
April 21st, 2009 at 2:09 pm
Re Campesino at 36: “The lawmakers who held oversight roles during the period included Pelosi and Rep. Jane Harman (D-Calif.) ”
—————–
Jane Harman. Jane Harman.
Where have I heard that name before?
April 21st, 2009 at 2:12 pm
Campesino,
First, impeachment is for improper conduct related to the powers and duties of an office. If the SecDef wrote the memos, it would not be an impeachable act. Determining legality of a course of action is not part of the duties of a member of congress.
Second, members of congress are not subject to impeachment.
April 21st, 2009 at 2:17 pm
Tom Delay never got around to any “grounds” for impeachment. He didn’t seem to think it was necesssary. He believed disagreeing with their decisions was enough.
April 21st, 2009 at 2:18 pm
The accusations in the article Campesino quoted come from anonymous Bush administration officials. Not a single person was then, is now, or was at any point since then, willing to go on the record to say these briefings occurred.
On the other hand, everyone who has had those charges leveled against them has gone on the record and denied them.
But I guess when you’ve made up your mind to defend torture, taking anonymous Bush administration officials’ leaks as reliable information isn’t too much of a leap. We’re supposed to believe the Bush administration – the most secretive in memory, and one which adopted the most expansive view of what the executive could do in the area of national security, even when it went against the laws passed by Congress – was scrupulously updating the leadership of the opposition minority party about covert operations it claimed the inherent right to perform without Congressional authorization? That’s absurd on its face.
Not to mention, being informed of a crime you have no power to stop isn’t itself a crime.
April 21st, 2009 at 2:21 pm
“Fostert, I normally like your posts, but you’re being obtuse here.”
Well, there’s a good reason for that. I came into this post being very skeptical of the legal claims against Bybee. But as we’ve gone back and forth, I’ve been slowly convinced that there is a genuine criminal case here. But before I change my position on an issue, I want to be very certain that the new position is really the right one. To I tend to put the new position to a higher level of scrutiny. But I’m convinced now about there being a genuine legal case against Bybee. That makes this an historic day for blogging. It is probably the first time in history that someone has changed his position on an issue because of information provided in the comments. I’m still not sure about the political wisdom of impeachment, however.
April 21st, 2009 at 2:21 pm
Second, members of congress are not subject to impeachment.
=========================================================
Certainly, but this puts Pelosi and Harman in the position of voting to impeach Bybee for doing something they approved of in 2002.
April 21st, 2009 at 2:22 pm
Evidence? I don’t need no stinking evidence! I’m a conservatroll!
April 21st, 2009 at 2:24 pm
The accusations in the article Campesino quoted come from anonymous Bush administration officials. Not a single person was then, is now, or was at any point since then, willing to go on the record to say these briefings occurred.
============================================================
BS! If you actually bothered to READ the article you’d see this:
“Among those being briefed, there was a pretty full understanding of what the CIA was doing,” said Goss, who chaired the House intelligence committee from 1997 to 2004 and then served as CIA director from 2004 to 2006. “And the reaction in the room was not just approval, but encouragement.”
April 21st, 2009 at 2:26 pm
Campesino,
Is your point that Pelosi and Harman might be forced to make a political decision? A hypocritical one? That they might have some conflict of interest? In Washington, no less? Heaven forbid. I can totally see why lawyers who enabled lawbreaking should go unpunished.
No, wait. I can’t.
April 21st, 2009 at 2:28 pm
Goss did go on the record, but he is not a disinterested party.
In any event, I fully support an independent investigation of which members of Congress knew what and when.
April 21st, 2009 at 2:30 pm
Campesino,
More to the point, Pelosi and Harmon were being told the programs were carefully vetted and were legal according to the OLC. They weren’t taken through the details of the lawyering and in fact their staffers were kept out of the process. And now we know why. The release of the memos indicates that this was a bad faith assertion based on bad-faith lawyering. They were being lied to by the Bush administration. That’s the whole point of impeaching Bybee, for giving false legal cover so it could be used for things like getting Congressional support.
April 21st, 2009 at 2:43 pm
Not to mention, being informed of a crime you have no power to stop isn’t itself a crime.
=============================================================
Right, committee chairmen in Congress and the Senate are briefed on something they believe is a crime and do nothing about it. No hearings, no nothing
April 21st, 2009 at 2:48 pm
Bullsmith Says:
April 21st, 2009 at 2:30 pm
Campesino,
More to the point, Pelosi and Harmon were being told the programs were carefully vetted and were legal according to the OLC. They weren’t taken through the details of the lawyering and in fact their staffers were kept out of the process
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Staff was involved. You have to READ
U.S. law requires the CIA to inform Congress of covert activities and allows the briefings to be limited in certain highly sensitive cases to a “Gang of Eight,” including the four top congressional leaders of both parties as well as the four senior intelligence committee members. In this case, most briefings about detainee programs were limited to the “Gang of Four,” the top Republican and Democrat on the two committees. A few staff members were permitted to attend some of the briefings.
http://www.washingtonpost.com/wp-dyn/content/article/2007/12/08/AR2007120801664.html
April 21st, 2009 at 2:57 pm
Frankly this appears to be a rather quixotic campaign Matt and Jennifer have embarked on. This has a huge potential to embarrass Democratic leadership in Congress. Can you imagine Pelosi enabling an impeachment process where she would be a star witness?
On this point, that rabid right-winger Glenn Greenwald and I agree
http://www.salon.com/opinion/greenwald/2008/07/15/complicity/
So, of course key Congressional Democrats who were made aware of these illegal torture and surveillance programs are going to protect the Bush administration and other lawbreakers. If you were Jay Rockfeller or Nancy Pelosi, would you want there to be investigations and prosecutions for torture programs that, to one degree or another, you knew about? If you were Jane Harman, wouldn’t you be extremely eager to put a stop to judicial proceedings that were likely to result in a finding that surveillance programs that you knew about, approved of, and helped to conceal were illegal and unconstitutional?
April 21st, 2009 at 3:08 pm
Campy, Campy, Campy… just because the Republicans engaged in a bit of blackmail to implicate the Democrats in the crimes they were committing doesn’t mean we have to go along with it. In fact, I think most of us would laugh in their faces, just as we’re laughing at yours, if they tried to defend themselves saying, “The Democrats didn’t try to go after us at the time!” Torture’s torture. Screw them. Punish those who ordered it and those who wrote the legal justifications for it. I’d like go go after the fools who seem to be using the “Nuremburg defense”, too, but that doesn’t seem like it’s going to happen.
I also suggest mocking and accusing the right-wingers who were bush supporters of being a group of morally defectives for their support of torture, as well. It’s certainly who I regard you, Campesino. You shouldn’t be screaming “look– over there!” at the Democrats, you should be asking for my forgiveness for your abysmal, immoral political judgment and giving me some pretty clear reasons why your opinions should be in any way listened to… after all Campy you endorse the use of torture and voted for Bush. Who the f-ck cares what you think, you disgusting piece of trash? I see Cheney’s shooting his mouth off these days, too. Last I heard, he was regarded positively only by the Crazification Factor crowd.
April 21st, 2009 at 3:12 pm
after all Campy you endorse the use of torture
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Please supply a quote from one of my comments. Link required
April 21st, 2009 at 3:16 pm
Campesino,
I propose that the key congressional staff were prevented from vetting the OLC interpretations of the law, and you come back with “A few staff members were permitted to attend some briefings.”? Come on, do better than that.
My point isn’t that the gang of four’s Democrats weren’t complicit in okaying whatever the Bushies wanted to do. It’s that unless you have evidence otherwise, I think it is very very credible to believe that the Bush admin presented them with lies and falsehoods. And the Bybee memos are a very good example of one way they did it- by writing phony dishonest law and then classifying it and so even if anyone ever saw it they couldn’t talk about it. The fact that Harman is compromised doesn’t in any way defend Bybee.
In practical terms I’m not suggesting Bybee would need to be fully impeached, not that it’s really possible politically. But the simple fact is that Bybee is just like Harmon, very very vulnerable to being forced from office by scandal at this point. And the way to do that is to push for impeachment. I have no doubt Harman and Pelosi will throw him overboard if it is in their interest to do so just as quickly as any other Washington Pol.
April 21st, 2009 at 3:39 pm
Bullsmith Says:
April 21st, 2009 at 3:16 pm
Campesino,
I propose that the key congressional staff were prevented from vetting the OLC interpretations of the law, and you come back with “A few staff members were permitted to attend some briefings.”? Come on, do better than that.
My point isn’t that the gang of four’s Democrats weren’t complicit in okaying whatever the Bushies wanted to do. It’s that unless you have evidence otherwise,
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You said staff weren’t involved and the article says staff were in the briefings. How could the Democrats NOT be complicit in something everyone is saying is a war crime if they were briefed on it 30 times over a period of years and did nothing. What further evidence do you need? Who knew the Chairman of the Senate Intelligence Committee and the Minority Leader of the House were such powerless people?
You are working overtime trying to invent excuses for these folks.
Maybe impeachment is the right way to go. Can you imagine Pelosi, Graham, Rockefeller, Goss et al deposed under oath on this?
That’s why it
April 21st, 2009 at 3:39 pm
That’s why it will never happen. oops
April 21st, 2009 at 3:41 pm
Campesino Says:
April 21st, 2009 at 3:12 pm
after all Campy you endorse the use of torture
===================================================
Please supply a quote from one of my comments. Link required
++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Tyro is busy working his fingers to nubs doing Google searches
April 21st, 2009 at 3:46 pm
Campesino asks;
” How could the Democrats NOT be complicit in something everyone is saying is a war crime if they were briefed on it 30 times over a period of years and did nothing.”
1. They were lied to. Staffers were allowed to hear some of these lies but not view documents or even take notes. Is that so hard to understand?
2. Those few who were briefed (with lies that the programs were legal, remember) were prevented from speaking about classified information. Republicans leaked security issues for political gain, Democrats by and large were afraid to.
3. The believed in the integrity of the OLC and people like Jay Bybee. The proof of that is his confirmation.
4, The Democrats didn’t kick and scream as much as they should’ve, but that hardly means they were really in the loop. These people are politicians. Do you really think they would’ve exposed themselves to being in favor of insect-filled coffins if they knew they might one day be held to account. That one’s all Bybees until someone proves otherwise.
April 21st, 2009 at 3:51 pm
Hmmm. First the CQ leak about Jane Harman-Haim Saban yesterday — and now this Washington Post article from Campesino. Some little bees have been busy. (See my comment regarding “counterbattery fire” in the earlier thread.)
I like Shakespeare’s tragedies and this is shaping up like one. You just know there are going to be several bodies lying on the stage by the time the curtain comes down.
April 21st, 2009 at 4:06 pm
“Among those being briefed, there was a pretty full understanding of what the CIA was doing,” said Goss
1. Goss is, himself, implicated in these torture-crimes, as he was head of the CIA under Bush, so his credibility here is called into question.
2. Even here, Goss doesn’t say the Congressional leaders were informed about the practices, just offers his opinion, without providing any evidence, that they already understood.
As I wrote already, not a single person will go on record about any Congressional leaders being briefed on the practices used.
Right, committee chairmen in Congress and the Senate are briefed on something they believe is a crime and do nothing about it. As I wrote already, there is no evidence (beyond the words of anonymous Bush administration sources) that they were ever briefed on anything they believed to be a crime.
How could the Democrats NOT be complicit in something everyone is saying is a war crime if they were briefed on it 30 times over a period of years and did nothing. Because there is absolutely no evidence that they were ever briefed on the practices that were being used. I repeat, there is no evidence beyond the assertions of Bush administration officials who refuse to go on record to suggest that anybody in Congress was ever informed about the use of torture, and the Congressmen in question have denied that they were ever so informed.
The Bush administration lied about the use of torture for eight years to the public, and assured the members of Congress that the practices being used were legal, but we’re supposed to believe that they leveled with Democrats in Congress about torturing people?
No, Campy, I’m not buying that bridge you want to sell.
April 21st, 2009 at 4:08 pm
Those few who were briefed (with lies that the programs were legal, remember) were prevented from speaking about classified information. Republicans leaked security issues for political gain, Democrats by and large were afraid to.
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Congress has classified hearings all the time. The Intelligence Committee works with classified data every day. The classied information prohibition is a BS excuse.
The lie was “our lawyers have reviewed this and think it’s legal”. Hell, they are all lawyers, do you think they are that intimidated by a legal opinion? You must think Rockefeller and Pelosi are sheep
And next you are going to tell me some Republican leaked classifed information on the NSA wiretaps
April 21st, 2009 at 4:27 pm
No no no. The lie was “All of the practices that were used are legal.” Once again, and again, and again, there is no evidence whatsoever that anyone in Congress was ever told what practices were being used. They were, however, told that the unnamed practices were legal.
April 21st, 2009 at 4:41 pm
2. Even here, Goss doesn’t say the Congressional leaders were informed about the practices, just offers his opinion, without providing any evidence, that they already understood.
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Go read the article. He was one of the Congressional leaders who RECEIVED the briefings, starting in 2002, before he left the House. He wasn’t giving the briefings
Again, I think you should read what those dizzy right-wingers Glenn Greenwald and Jane Mayer (author of “The Dark Side”) think about this:
UPDATE: Jane Mayer appeared for a Washington Post chat today and the following exchange occurred:
New York, N.Y.: In your interview with Harper’s yesterday, you said this about why war crimes prosecutions are unlikely: “An additional complicating factor is that key members of Congress sanctioned this program, so many of those who might ordinarily be counted on to lead the charge are themselves compromised.”
What did you mean by that? Who specifically is compromised “who might ordinarily be counted on to lead the charge” — Nancy Pelosi, Jane Harman, Jay Rockefeller? — and how are they “compromised”?
Jane Mayer: The ranking members of the Senate and House Intelligence Committees were briefed dozens of times about the CIA’s interrogation and detention program over the past seven years — so any member who has held one of those posts has arguably been complicit. Some say they tried to object, internally. But either because of the threat of violating national security, or, because of the fear of the political price of dissent, these figures in both parties would find it very hard at this point to point the finger at the White House, without also implicating themselves.
That’s rather definitive. Nancy Pelosi, Jane Harman and Jay Rockefeller were all previous ranking members of the Intelligence Committee, all received these briefings, and were thus “compromised” and “complicit” in exactly the way that Mayer just described, because — as Mayer put it — they “would find it very hard at this point to point the finger at the White House, without also implicating themselves.” That is one very significant reason why so many Congressional Democrats — including the leadership — are so supportive of immunity for Bush lawbreakers and the blocking of any investigations into the lawbreaking.
http://www.salon.com/opinion/greenwald/2008/07/15/complicity/
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Mayer researched this for years. Go argue with her
April 21st, 2009 at 4:41 pm
Campesino,
“Congress has classified hearings all the time. The Intelligence Committee works with classified data every day. The classied information prohibition is a BS excuse.”
How is it BS? Since when are members of the Intelligence Committee allowed to discuss classified information? I suggest that the Bush administration wrongly classified information to keep it from the public, and to keep even those who were briefed on it to be able to discuss it openly.
See the point you refuse to accept here is that what Bybee did was ABUSE his responsibilities and that the Bush administration ABUSED the process of briefing congress, in both cases in oder to provide cover for their illegal activities. You try to lay the blame with Congress for being the subject of this abuse. Not the strongest argument I could think of.
April 21st, 2009 at 4:43 pm
Once again, and again, and again, there is no evidence whatsoever that anyone in Congress was ever told what practices were being used.
Utter nonsense. From the Washington Post:
April 21st, 2009 at 4:50 pm
How is it BS? Since when are members of the Intelligence Committee allowed to discuss classified information? I suggest that the Bush administration wrongly classified information to keep it from the public, and to keep even those who were briefed on it to be able to discuss it openly.
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They discuss classified information all the time. That’s how they do their job. They get classified briefings and have classified hearings that aren’t public. Get a clue
http://www.rawstory.com/news/2006/Senate_Dems_push_for_Iran_oversight_0622.html
Congress quietly holds classified briefings on Iran as Democrats seek access to intelligence
April 21st, 2009 at 4:52 pm
What Mayer and Greenwald are pointing out is that some in Congress are complicit in enabling the torture regime and that the Bushes very cleverly boxed the members of the intelligence oversight groups into impossible boxes of conflicted interest, (Again in large part by lying to them.) Yes this makes it harder for Pelosi, Harman and Rockefeller as individuals to lead the charge against torture, but it is further evidence of the guilt and duplicity of the Bush administration, not in any way evidence that should protect them from investigation.
Personally I see a strong argument for trying to force Harmon and Rockefeller to resign as well as Bybee, but that does not in any way make them comparably complicit. They were craven politicians who were played like fiddles. Bybee personally enabled torture and was the cause of murders. ( Pelosi, in denying Harmon the seat she sought, has shown some ability to resist the compromises being foisted upon her.) To simply point out that Congress is (yet again) failing in its duty doesn’t change what that duty is. Bybee has done everything and more to merit impeachment. In 1946 the penalty was death.
April 21st, 2009 at 4:59 pm
Campesino,
Are you stupid or just trolling? My point about the classification issue is very simple. Unlike normal classified hearings-
1. In this case the very subject of what the law on torture was in America was classified. This is not normal.
2. The classified memos lied about the law and were kept from Congress. They were just told everything was legal. Turns out it wasn’t. Turns out the Bushes knew that and that is why the classified their bogus law memos.
3. Due to the abuse of the classification process, those briefed were prevented from publicly raising any concerns they had with the issues they were being briefed on.
I don’t believe you can’t see what the issue is in this instance versus, say, a classified briefing on Iran, so I have to assume you’re not being honest.
April 21st, 2009 at 4:59 pm
UN Special Rapporteur on Torture, Manfred Nowak, said last week that Obama’s decision not to prosecute CIA officers who ordered and conducted torture is a violation of international law and U.S. treaty obligations.
Glenn Greenwald says the text of the laws “leaves no doubt” that Nowak’s claim is correct. Andrew Sullivan agrees.
Matthew, why aren’t you calling for the impeachment of President Obama for his violation of international law?
April 21st, 2009 at 5:04 pm
Once again, we don’t really know who in Congress was told exactly what at what time, and I again fully support investigating that matter fully.
However, it should be noted that the legalities are complex, to say the least. If, for example, a member of Congress was told about a criminal act being committed covertly by the government, but they were told by the DOJ that the act was not illegal, and they were also told the information was related to national defense and they would be prosecuted if they revealed this information to anyone not authorized to have it (see below), it would be very difficult to successfully prosecute them for any crimes arising out of their failure to disclose that information.
Indeed, ordinarily the most on point law would be 18 USC 4, which states:
But here the people in authority already knew, and the question would then become whether concealment alone was enough to trump 18 USC 793(d):
And my guess is probably not.
April 21st, 2009 at 5:06 pm
See the point you refuse to accept here is that what Bybee did was ABUSE his responsibilities and that the Bush administration ABUSED the process of briefing congress, in both cases in oder to provide cover for their illegal activities. You try to lay the blame with Congress for being the subject of this abuse. Not the strongest argument I could think of.
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Not at all. The point I’m trying to make is that impeachment of Bybee will go nowhere because it would be embarrassing to Democrats who knew all about what transpired and did nothing to stop it.
Goss, Hayden and Mukasey (WSJ last week) have all gone on the record saying the briefings took place and who was in them. If they aren’t afraid of being deposed about it, there’s something there
I find it surprising that ThinkProgress is so hell bent on something that could hurt the party leadership.f
April 21st, 2009 at 5:18 pm
Just so people aren’t misled:
Under the Convention Against Torture, we have an obligation to investigate where there is reasonable grounds to believe that an act of torture has been committed. Obama has not promised there will be no investigations.
With respect to the DOJ’s decision to prosecute or not following such an investigation, the CAT would require the DOJ to “take their decision in the same manner as in the case of any ordinary offence of a serious nature” under U.S. law. Accordingly, it is not a treaty violation for Obama to announce that generally applicable U.S. laws would apply to decisions as to whether or not to prosecute in given cases.
April 21st, 2009 at 5:19 pm
Bullsmith Says:
April 21st, 2009 at 4:59 pm
Campesino,
Are you stupid or just trolling? My point about the classification issue is very simple. Unlike normal classified hearings-
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What’s a “normal” classified hearing? The point is, Rockefeller was chairman of the committee. If he had doubts about what was going on he could have had classified hearings at any time to get more information or ask questions. He’s empowered to do so and it’s his job. It is just not true that he was helpless, couldn’t say anything or do anything.
He CHOSE not to. You trying to make excuses for him doesn’t change that.
Google around and see. When he is directly asked if the briefings occurred he either claims he can’t talk about it or tries to change the subject by complaining that the whole committee wasn’t briefed (no one ever said they were).
April 21st, 2009 at 8:37 pm
It’s just adorable that charles still treats unsourced assertions from anonymous Bush administration officials as meaningful.
April 21st, 2009 at 9:31 pm
joe from Lowell Says:
April 21st, 2009 at 8:37 pm
Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill.
It’s just adorable that charles still treats unsourced assertions from anonymous Bush administration officials as meaningful.
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Well here’s a sourced assertion from two Bush administration officials (former AG and DCI) who signed their names to the op-ed saying the same thing. Go cross-examine them.
http://online.wsj.com/article/SB123993446103128041.html
Details of these successes, and the methods used to obtain them, were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006. Any protestation of ignorance of those details, particularly by members of those committees, is pretense.
April 21st, 2009 at 9:39 pm
Under the Convention Against Torture, we have an obligation to investigate where there is reasonable grounds to believe that an act of torture has been committed. Obama has not promised there will be no investigations.
DTM again misrepresents the facts. Obama stated that the torturers who tortured in “good faith” on the legal advice in OLC memos will not be prosecuted. There is no “good faith” exception in the Convention Against Torture. Why isn’t DTM demanding the impeachment of Obama for violating international law?
It’s just adorable that charles still treats unsourced assertions from anonymous Bush administration officials as meaningful.
More lies from joe from Lowell. As campesino noted, Goss, Hayden and Mukasey have all gone on the record saying the briefings took place and who was in them.
April 21st, 2009 at 10:26 pm
Well here’s a sourced assertion from two Bush administration officials (former AG and DCI) who signed their names to the op-ed saying the same thing. Go cross-examine them.
I’d love to. And I hope someone gets the chance.
April 21st, 2009 at 10:38 pm
There is not a single word in that editorial about briefings given to anyone in Congress. I think you’re a little confused, boys.
April 21st, 2009 at 10:51 pm
http://www.washingtonpost.com/wp-dyn/content/article/2007/12/08/AR2007120801664.html
April 21st, 2009 at 11:08 pm
There is not a single word in that editorial about briefings given to anyone in Congress. I think you’re a little confused, boys.
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Need to work on your reading comprehension. Look at the part where it says:
Details of these successes, and the methods used to obtain them, were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006. Any protestation of ignorance of those details, particularly by members of those committees, is pretense.
http://online.wsj.com/article/SB123993446103128041.html
April 22nd, 2009 at 12:18 am
Obama stated that the torturers who tortured in “good faith” on the legal advice in OLC memos will not be prosecuted….Why isn’t DTM demanding the impeachment of Obama for violating international law?
As I’m sure you know, the Convention requires its signatories to implement its provisions in their criminal law, and to prosecute violations according to their established regimes of law enforcement.
Obama would be impeachable if U.S. federal law enforcement vested the President with final prosecutorial discretion in this matter.
Now, as it happens, an item in wide circulation today contains news which is relevant here: the President pointed out that federal law enforcement procedure vests prosecutorial discretion not with him, but with the Attorney General, and further that he wants not to “prejudge” a decision which is properly Attorney General Holder’s.
Taking the President to mean that the Attorney General has the matter under review, his administration is in compliance – for the moment at least – with its enforcement obligations under the Convention (roughly speaking, to address seriously any credibly reported violations of its provisions under our established regime of criminal law enforcement).
April 22nd, 2009 at 2:22 am
There is a Facebook group now. Check it out.
http://www.facebook.com/group.php?gid=93093458451#/group.php?sid=59ca112ecf95e5b565d6bec037258a2f&gid=93093458451&ref=search
April 22nd, 2009 at 7:57 am
By the way, the problematic part of the Convention Against Torture for Obama’s stated position is not the duty to investigate (Article 12) or duty to submit the case for a decision about prosecution (Article 7), which he is very likely going to comply with. The problematic part is Article 2, which specifically rules out certain defenses:
Now the defense Obama has cited is not actually a version of the defense ruled out in Clause 3, a confusion which has regrettably been a bit common. But the problematic part is that Clause 2 rules out a justification that was cited in some of the OLC memos. Therefore, it may have been unreasonable to rely on those memos to the extent they depended on a justification clearly ruled out by the Convention Against Torture.
As yet nothing Obama has said implies we will not take this issue into proper account whenever we do make prosecutorial decisions. But the bottomline is that it may cut back substantially on the degree to which the Convention would allow the OLC memos to provide legal cover.