New York Times Calls for Bybee Impeachment
Via Faiz Shakir, a New York Times editorial argues that in light of his role as an author of several of the now-infamous “torture memos” congress should impeach Judge Jay Bybee:
These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him.
I completely agree. I’m coming around to the view that criminal punishment for bad actors may be less necessary than it seemed to me in the past, but there definitely needs to be some level of accountability. The idea of the author of one of these memos sitting on the federal bench makes a farce of the whole legal system. One doubts the votes would be there to remove Bybee in the Senate, but even if that’s the case I wouldn’t mind seeing Senators go on record on this issue.
49 Responses to “New York Times Calls for Bybee Impeachment”
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April 19th, 2009 at 1:54 pm
It’s surprising that they did not ask UC Berkeley to fire John Yoo as well. His position there as a Professor of Law is a blot on one of the greatest universities in the world.
April 19th, 2009 at 2:01 pm
Hear, hear. I’m resigned to the fact that Bush, Cheney, and Rumsfeld are unlikely to suffer any real consequences, but Jay Bybee and John Yoo should be at least disbarred. Otherwise, I can picture a decade or two going by, memories fading, another Republican administration coming to power, and those guys being appointed to positions as important as they had under Bush or more so. Look at Elliott Abrams’s career.
April 19th, 2009 at 2:10 pm
There’s now a Facebook group, so presumably he’ll be impeached any day now.
April 19th, 2009 at 2:28 pm
One doubts the votes would be there to remove Bybee in the Senate, but even if that’s the case I wouldn’t mind seeing Senators go on record on this issue.
I agree, though I also thought the same thing about impeaching Deadeye and the Shrub.
April 19th, 2009 at 2:39 pm
Hopefully the OPR review will be released and sufficient to make Bybee’s conviction in the Senate more likely.
April 19th, 2009 at 2:46 pm
NOTHING WILL BE DONE!!! There aren’t 10 Senators in the Congress who’d be willing to vote on this, and less than 50 representatives willing to make them do it.
We live in a country where power is all, and the law nothing. Deal with it.
April 19th, 2009 at 2:59 pm
[...] myglesias placed an observative post today on Matthew Yglesias » New York Times Calls for Bybee ImpeachmentHere’s a quick excerptVia Faiz Shakir, a New York Times editorial argues that in light of his role as an author of several of the now-infamous “torture memos” congress should impeach Judge Jay Bybee: These memos make it clear that Mr. Bybee is unfit for a … [...]
April 19th, 2009 at 3:01 pm
Matt, I kind of think that Obama’s people learned from Clinton’s mistakes with gays in the military.
So they spoke about it during the campaign to rally left wing support, and then shut the fuck up about it once in office.
Or do you not recall how hugely controversial even DADT was?
April 19th, 2009 at 3:28 pm
It’s absurd to even contemplate considering charges against the men and women in the field without first pressing charges on those who actually set the policies and issues the orders that were followed, so all the people complaining about Obama not prosecuting should automatically be behind this.
As for the rest of us, like myself, I’m in favor of targeting those setting the policies and giving the orders, within reason, but I’m unclear about how one would target absurd legal opinions outside of public and professional ridicule (educate me), and I do not support prosecution of anyone down the line unless they acted outside the guidance of the orders and/or committed acts where there is no gray area (legal or otherwise), like murder, rape or threatening family members or loved ones with no known ties to the particular detainee’s activities.
April 19th, 2009 at 3:46 pm
Obviously, it would be easy to set aside any of Bybee’s judgements on cases involving child or spousal abuse based on his known opinions about torture.
April 19th, 2009 at 3:55 pm
This is pretty damning though:
April 19th, 2009 at 4:42 pm
Impeach him for what? For reaching legal conclusions that the NY Tines disagrees with? Hell, if that’s the standard, we could impeach most of the federal bench.
April 19th, 2009 at 4:52 pm
Is this right?
Obama slapped the CIA’s wrist then granted them immunity in the hope that a nasty secret bureaucracy would work for him or, at the very least, not against him.
He released material now with possibly more to come that opens up a free market for possible future prosecutions and justice.
April 19th, 2009 at 5:00 pm
Thomas Says:
“Impeach him for what? For reaching legal conclusions that the NY Tines disagrees with?”
No, I think it’s more about Bybee’s having apparently used refrigerator word magnets to construct his argument.
April 19th, 2009 at 5:10 pm
[...] Mr Paparazzi’s Blog placed an observative post today on New York Times Calls for Bybee ImpeachmentHere’s a quick excerptVia Faiz Shakir, a New York Times editorial argues that in light of his role as an author of several of the now-infamous “torture memos” congress should impeach Judge Jay Bybee: These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the… [...]
April 19th, 2009 at 6:13 pm
While I don’t approve of Judge Bybee’s actions or legal conclusions while at the OLC, I’m not sure that his actions necessarily constitute impeachable behavior.
The Constitution provides that judges “shall hold their offices during good behaviour” and can only be impeached for a few specific crimes (e.g., treason) and all other “high crimes and misdemeanors.” It is not clear to me that Judge Bybee’s actions constituted a high crime or misdemeanor. I’m not saying that it definitely does not fall into this category, but that some effort will have to be made to show this.
April 19th, 2009 at 6:23 pm
What high crime has Bybee committed? Rendering atrocious legal advice–at the instigation of the President and unprecedentedly authority-bearing Vice President? (Did Bybee fulfill his duty as Assistant Attorney General in charge of the Office of Legal Counsel? Of course not. But he was merely a craven servant, little more than a Richard Rich to Thomas Cromwell.)
Historically, we know that impeachments result in acquittals as often as removals. In this case, it’s conceded by all at the outset that removal is unlikely.
What is needful? Surely to find out how it happened, and to establish that it served no good end whatever. So we need to find out just what information was obtained by means of torture, and to determine its value. It looks as if the answer will be: little and virtually none. Then we need to establish who bore primary responsibility for this pointless and illegal infliction of pain and suffering. It looks as if the answer will be: the president and the vice president, the secretary of defense, a couple of others.
Any impeachment of Bybee will impose large opportunity costs by diverting attention from finding out how little of value was learned by means of torture, and from establishing who bore primary responsibility for setting in motion the machinery of torture.
April 19th, 2009 at 7:00 pm
From what I have read of the memos, there is, at the very least, grounds for removal from the Bar. These memos are clearly in the realm of (extreme) legal malpractice, and he can be disbarred on those grounds.
If he is removed from the Bar, then that would provide grounds for impeachment. But I think the Bar Associations have to act first; the arguments for impeachment are very weak if the Bar Associations do not consider these memos to be a transgression of his professional duties.
April 19th, 2009 at 7:23 pm
but I’m unclear about how one would target absurd legal opinions outside of public and professional ridicule (educate me)
Happy to oblige. The most relevant precedent is United States v. Altstoetter, one of the Nuremberg trials (sometimes known as The Justice Trial, it was also the basis for the movie Judgment at Nuremberg).
To briefly summarize the relevant facts, in 1941 Hitler was concerned about the casualties German troops were taking in the occupied territories, so he ordered one of his Field Marshalls to start covertly seizing (aka “disappearing”), summarily trying, and executing political suspects. A group of lawyers drafted a decree to that effect (known as the “Night and Fog” decree), and laid out all the various procedures that should be followed in the course of carrying out this plan. The lawyers argued that the Hague and Geneva Conventions did not apply in the occupied territories, constructing various technical arguments to that effect. Many people were subsequently detained and executed pursuant to this decree.
In relevant part, the prosecutors for the U.S. charged the lawyers with crimes against humanity and war crimes for their role in issuing and implementing the Night and Fog decree. They argued that the lawyers must have recognized that their technical arguments around the Hague and Geneva Conventions lacked merit, and that they must have foreseen the violations of international law (up to unlawful executions) that would occur because of their actions.
The most culpable officials were already dead, but the prosecutors obtained ten convictions (four defendants were acquitted). Four of the convicted were given life sentences, and the other six sentences ranging from five to ten years.
The basic takeaway is that when government officials are committing war crimes through official acts, the lawyers who actively participate in creating the legal regime in which those acts are being committed can be prosecuted as war criminals themselves. Under U.S. law, this would likely be brought as a conspiracy charge, although in Altstoetter they were actually directly charged (there was originally also a conspiracy charge, but it was dismissed for complex and inapplicable jurisdictional reasons).
April 19th, 2009 at 7:39 pm
Max242,
That’s about right, though I’d add: in doing so, he took the “you’re attacking the troops!” arrow out of the torture defenders’ quiver.
Remember Dick Durbin, being forced to walk back and apologize for his criticism of our torture techniques as something the Khmer Rouge or Nazis would do? “You’re saying our troops are like Nazis!” Well, no more of that.
April 19th, 2009 at 7:43 pm
Maybe Bybee could just recuse himself from cases in which someone wants the right to commit acts of torture.
April 19th, 2009 at 8:01 pm
18 USC 4
April 19th, 2009 at 10:07 pm
What high crime has Bybee committed?
Taking part in a conspiracy to illegally detain and torture several hundred people in violation of the constitution, the legal code, Common Law, and two hundred years of American legal and cultural tradition.
Don’t you read the papers? Sheesh.
Bybee served the same function as a mob lawyer, concocting ridiculous legal sophistries to provide cover for clients who blatently violated a number of American laws and several international treaties that that have the force of law in the United States.
April 19th, 2009 at 10:34 pm
@20: If the country doesn’t hand back power to these clowns, these guys are on the defensive from here on out. Progressive groups will hound them the rest of their days.
The cat is out of the bag. Imagine, thanks mostly to Cheney, the idea that waterboarding is dribbling water on someone’s head is still held by a significant percentage of Americans. That ludicrous notion will be put to rest.
The debate will soon settle, completely, on torturers and the efficacy of torture. We will no longer have to waste time on the torture vs enhanced interrogation debate/charade.
April 20th, 2009 at 12:25 am
Disbarment followed by impeachment should each be steps along the way towards Bybee standing for war crimes.
I read a blogger yesterday who asked why there weren’t street protests already, as if that proved people don’t care or an’t tracking this issue.
It takes a bit of time, just ask the teabaggers.
April 20th, 2009 at 12:38 am
Instead of impeaching Bybee, suppose the appropriate bar disciplinary committee took steps to disbar him for unethical behavior? Isn’t DOJ’s Office of Professional Responsibility already looking into this?
What would the 9th Circuit do with a disbarred judge? Maybe it would push the House a little.
April 20th, 2009 at 2:53 am
Two points, seemingly contradictory:
First, believe it or not, Bybee isn’t a bad draw for a criminal defendant, an immigrant or a civil rights plaintiff. Beats almost everyone else GWBW has put on the Ninth, and more than a handful of Clinton’s compromise appointees. Maybe he’s doing penance.
Second, there was an article on the wsj law blog that said Bybee was accepting pro bono representation on this matter from Maureen Mahoney of Latham & Watkins. http://blogs.wsj.com/law/2009/04/17/judge-bybee-lands-pro-bono-help-from-lathams-mahoney/ They try to justify it ethically by saying that Latham will recuse from any Judge Bybee case.
But that’s not enough. A federal judge can’t take a gift (like the legal services of a partner who ordinarily charges nine hundred bucks or so an hour) from anyone with business before the court on which they serve, not just lawyers appearing before them. (See here, at section five of the regulations: http://www.uscourts.gov/library/conduct_gifts.html.) Latham is a mega-firm based in LA–the largest city in the Ninth. Chances that they are giving up their whole Ninth Circuit practice to rep Bybee for free are just about zero.
Is this the same kind of sin as, say, writing an “opinion” on the limits of unilateral executive power without citing Youngstown? Maybe not. But a clear violation it is.
April 20th, 2009 at 5:33 am
How severe are the potential penalties for some of these underlings? Are they severe enough that they might be willing to cooperate and make deals by incriminating or testifying against superiors?
April 20th, 2009 at 6:46 am
How severe are the potential penalties for some of these underlings?
Violations of the War Crimes Act, 18 USC 2441, are punishable up to life in prison, or the death penalty if death results to the victim.
Violations of the federal torture statute, 18 USC 2340, are punishable up to 20 years, or the death penalty or life imprisonment if death results to the victim.
By the way, conspiracy to violate the torture statute is subject to the same penalties as direct violation of the torture statute, except for the death penalty.
April 20th, 2009 at 6:54 am
We all know the reason why Holder is not going to prosecute the actual torturers; there would be a revolt by Republican yobs. They also may feel that they have to keep the CIA happy at a time when more reliance is being placed on intelligence and less on raw force.
I would hope that the Spanish force Holder’s hand by indicting Gonzalez, et. al., and requesting extradition.
April 20th, 2009 at 7:38 am
Disbarment really is the place to start. It focuses on the behavior, not his current position.
This, along with a few medical licenses lifted (participating in torture sessions? Seriously …) could have a clarifying effect.
April 20th, 2009 at 8:01 am
We all know the reason why Holder is not going to prosecute the actual torturers; there would be a revolt by Republican yobs. They also may feel that they have to keep the CIA happy at a time when more reliance is being placed on intelligence and less on raw force.
Barring the Orbital Mind Control Lasers, that’s the most plausible answer to the bizarre contrast behind Holder and Obama taking a position on prosecution so flagrantly in contradiction to their ethical positions on other issues now and throughout their careers.
It doesn’t come up often as issue because it seems so obvious, but the first and foremost duty of a government leader is to keep the the government functioning. Obama has to avoid, at least for the next several months, any action that paralyzes the senate and the national intelligence apparatus. Both of them are loaded down with potential monkey-wrenchers.
April 20th, 2009 at 9:31 am
We won’t get a national consensus on torture without prosecutions. In the former Eastern bloc, the people as a whole were, and knew they were, the population that this could happen to. Of course having rights is better than not having rights. Here, the problem is things being done to other people, in the context of a conceived war. It’s not the same.
Torture of enemies in time of war isn’t magically conclusively wrong in isolation; it becomes conclusively wrong because the laws of war and the Nuremberg precedents are important. If we wave the latter away as paper matters that we can’t afford to bother ourselves with right now, that bolsters the idea – which is quite prevalent – that the infractions are in reality unimportant carping, and also bolsters the idea that the alleged grievous infractions are actually lies and misrepresentations. We could win this matter if we prosecute; we will not win it if we do not.
And we substantially undo Nuremberg if we do not. And we set a precedent that forays into war crimes in the future for whatever pressing reasons will be safe and will be treated by subsequent Administrations as being merely “policy differences.”
Someone has to be prosecuted. If the actual people who relied on the memos won’t be, and if the biggest fish are “too difficult”, then the writers of those memos are the ones.
I do agree with DTM that United States v. Altstoetter is the precedent for prosecuting lawyers who write dishonest, enabling nonsense and then presume that lawyers can’t be prosecuted for how they construe.
April 20th, 2009 at 9:34 am
The first order of business is for the legal and medical professions, which regulate themselves, to deal with the clear malpractice that has occurred. Bybee and Yoo need to be disbarred, and the doctors who aided in torture need to have their licenses revoked.
Impeachment and criminal charges can and should follow, but the first thing that needs to be established is that enabling torture is not acceptable legal professional practice. And there is a special place in Hell for the doctors, boy.
April 20th, 2009 at 11:31 am
“MY sez “punishment for bad actors may be less necessary” You fucking douchebag, MY. You gonna start supporting the invasions of Afghan. and Iraq as consensus building exercises too? I am sure the world can appreciate the benefits of consensus building in gov’t – Look at all the great things happening in N.Korea and China All that great consensus building that brought us NAFTA/PATRIOT ACT/Drug War makes such great POLICY. You fucking disgust me some days . . . . . .
April 20th, 2009 at 12:52 pm
WHY IS OBAMA ADMINISTRATION MAKING THE SAME ARGUMENT TO IGNORE OUR LAWS THAT BUSH AND CHENEY MADE TO VIOLATE THEM?
It’s not “looking to the past” to ENFORCE the LAW. Since WHEN is NOT enforcing the law an acceptable option in AMERICA? It is “ignoring the law” to choose to ALLOW LAWBREAKERS TO GO UNPROSECUTED FOR THEIR CRIMES. Since WHEN is the POLITICAL ramifications of prosecution an acceptable or relevant argument?
WHERE does President Obama draw the line when it comes to IGNORING illegal acts? Is it EVERYONE in AMERICA who broke the law during Bush’s/Cheney’s reign; or is it ONLY those who were active participants in AIDING and or ABETTING Bush and Cheney? Since WHEN is someone who aids and abets a crime not subject to CRIMINAL prosecution?
The precedents that President Obama would set in failing to hold Bush administration appointees and or employees legally accountable for their illegal actions if FAR MORE DANGEROUS TO AMERICA’S FUTURE than whatever POLITICAL COST we might pay.
How can a Constitutional Law Professor advocate IGNORING the reasons that America was founded as a NATION OF LAWS instead of a NATION OF MEN?!
President Obama is WRONG to PREVENT the prescribed enforcement of our laws. In making the argument that “we have more pressing matters to consider”, he is making the SAME ARGUMENT to IGNORE our laws that the Bush administration made to VIOLATE them. The ends DO NOT justify the means!
April 20th, 2009 at 12:59 pm
Face it folks, criminal punishments won’t even do anything to these people, let alone the ignominy of civil reprocussions like impeachment. Just look at how many of the bad actors in Nixon’s cabinet went on to successful careers in government (including Cheney and Rumsfeld). Or check out Casper Weinberger or Oliver North’s fantastic careers following their conviction and subsequent pardons relating to Iran-Contra. Newt tells us all about the affair he was having while spearheading Clinton’s impeachment for doing the SAME THING, and he’s a hero to the right.
Washington is so locked up and exclusive, not even jail for war crimes would prevent these scumbags from long and prosperous careers within the GOP, with a subsequent whitewashing and appointment or election to positions of power in government. Get it through your bloggy little heads – Washington is a cesspool that protects its own. No matter what.
April 20th, 2009 at 1:08 pm
As far as I’m concerned, Bush, Cheney, and Rumsfeld are, for the most part, fairly innocuous at the moment. But Bybee holds the fate of others in his hands and Yoo is in the business of shaping young minds. They MUST be removed from those positions, at any cost!
April 20th, 2009 at 1:12 pm
One doubts the votes would be there to remove Bybee in the Senate, but even if that’s the case I wouldn’t mind seeing Senators go on record on this issue.
That was just as true of Shrub while he was in office. Shrub also should have been impeached, simply as a matter of record. No, he would not have been removed from office, but the Congress should have weighed in on the matter, given the number and profundity of the crimes that took place.
As Sully has suggested (& as Orwell did decades ago), not prosecuting war crimes such as these is a good way for a democracy to die.
April 20th, 2009 at 1:15 pm
Face it folks, criminal punishments won’t even do anything to these people, let alone the ignominy of civil reprocussions like impeachment. Just look at how many of the bad actors in Nixon’s cabinet went on to successful careers in government (including Cheney and Rumsfeld). Or check out Casper Weinberger or Oliver North’s fantastic careers following their conviction and subsequent pardons relating to Iran-Contra.
None of those people except Oliver North were actually convicted of any crimes. We now have in place a thirty-some year old precedent that the crimes of the executive branch are immune from prosecution.
That is not what the founding fathers had in mind. It is the flushing down the toilet of the rule of law.
April 20th, 2009 at 1:32 pm
Like it or not, Obama (and his Dept. of Justice) has the prosecutorial discretion to NOT prosecute these crimes, and there is some justification for that decision since the torturer in chief is beyond our grasp now that he is out of power, and to prosecute those below him (he was, after all, the decider) seems to have some claim on being an injustice. That being said, there is no reason why these individuals should not be pursued by other means. Bybee is the most vulnerable since he got the best job out of the group, lifetime tenure as a US judge. Congress has the power to impeach the SOB no matter what Obama decides about criminal prosecution. They should do so. All the memo drafters are, we assume, attorneys, so the state bars to which they belong should all start immediate actions to disbar all those concerned. They have shown that their having a license to practice law makes them a danger to society. In John Yoo’s case, some enterprising students at UC Berkley should start up a movement to boycott his classes. If nobody is willing to take a class with him, the University will be forced to remove him.
That this crew is allowed to continue to be employed is an abomination.
Just saying.
April 20th, 2009 at 1:34 pm
Don’t kid yourself, this has done huge damage to Bybee’s reputation as a jurist. It’s never going away. Just imagine when he attends one of these judicial conferences in Europe or Asia, it’s going to color the view of him. And this doesn’t take into account the 9th Circuit which is very liberal. Ask the WSJ ed page. He could ultimately leave the bench. It has happened because at the end of the day federal appeals court judges don’t earn all that much relative to their worth in the open market. If someone like the Koch’s find a berth for him it could be very attractive. I actually think Obama has handled this brilliantly. Done the right thing, forever stained the reputation for decency and honesty of Bush/Cheney, covered his flank with the intelligence community and dinged the careers of all these lawyers who were complicit. He’s right to avoid show trials all it would do would be to create little martyrs like North. Obama has bigger fish to fry than this.
April 20th, 2009 at 1:38 pm
I’m sure nothing will happen to him, although there undoubtedly will be a large number of motions by criminal defendants to remove him from their any appellate panels. I expect any written opinions by the court on these motions will be sympathetic to Bybee, but you never know. Whether he’s impeached or not I imagine he’ll retire in the next few years to pursue a career in dispute resolution.
April 20th, 2009 at 2:32 pm
He’s protected by tenure. Besides, if Cal fires Yoo, he’ll probably just get a job at AEI or the Hoover. That said, people could make life hard for him, and they should.
April 20th, 2009 at 2:53 pm
An impeachment trial would be fine with me, as would convening a grand jury to hand down criminal indictments, the higher up the food chain the better.
The sanctimony expressed on the issue is tiresome, however. Many of the same people expressing outrage on humanitarian grounds, or out of ostensible concern for the rule of law, have been mostly silent when their political allies engage in behavior just as heinous. Hell, Matthew thinks Eliot Spitzer should be politically rehabiliated, because, in Matthew’s opinion, it’s not a big deal for a guy to be a customer of a prostitution ring while putting people in prison for operating a prostitution ring. This is a bit silly, but the really heinous berhavior of Spitzer was in his threatening the accused with criminal violence in the New York prisons that Sptizer had the duty to enforce the law within.
When Spitzer said, as Attorney General, in regards to someone he accused of engaging in criminally fraudulent behavior….
“This is state time…State prison has a certain edge to it that is not always present in the federal system. These prisons are not country clubs.”
….in the context of a New York correctional system in which it has been established that rape and beatings are used by correctional officers to control the prison population, I’ve had people who denounce the Bushies say to me that Spitzer was just referring to poor food or bad recreational facilities, compared to Federal lock-ups. I’ve had people who denounce the Bushies tell me that credibly threatening the accused with rape and other criminal violence inside a state prsion is just part of effectively operating the criminal justice system. I’ve had people who denounce the Bushies tell me that if the convicted wanted to avoid getting raped or beaten in prison, then they should not have committed the crime.
I wonder what such people would have said, in response to a Bush quote, directed at an accused Al Queda member, “Our CIA black sites have a certain edge to them not typical of a POW camp. These are not country clubs.” Well, I do know that some of these folks have explained to me that because the torture which occurs in American prisons mostly is physically done by other inmates, and not the correctional officers themselves, it is more acceptable for the Attorney General of New York to threaten the accused with torture. Really, they have written this to me.
Denial on the issue of torture is a bi-partisan phenomena. The degree of outrage provoked by the institution is mostly a matter of which politician is participating in the institution.
April 20th, 2009 at 3:51 pm
I’m pretty sure these guys would in fact find lengthy prison sentences to be punitive. They key would be not pardoning them/commuting their sentences.
April 20th, 2009 at 4:31 pm
[...] his impeachment are starting to sprout. The Times editorial page called for impeachment yesterday. Matt Yglesias and Scott Horton have concurred, as did Emily Bazelon at Slate, who writes: It would be a start. [...]
April 20th, 2009 at 6:08 pm
[...] Matt Yglesias likes the idea. [...]
April 20th, 2009 at 7:57 pm
John @42, it’s very likely that Bybee will not be attending any conferences outside of the country. Certainly, not if there’s even a remote possibility that he’d be arrested.