« previous | MUCK HOME | next »
Nadler And NYT: Impeach Bybee For Torture Memo
More fallout from last week's release of the Bush DOJ's torture memos...
Both Congressman Jerry Nadler and the New York Times are calling for Jay Bybee, the author of one of the memos, who's now a federal judge, to be impeached.
Nadler, who chairs the Judiciary committee's Constitution, Civil Rights, and Civil Liberties subcommittee, told the Huffington Post that Bybee "ought to be impeached." Nadler continued: "It was not an honest legal memo. It was an instruction manual on how to break the law."
And a Times editorial declared that the memos were written in "the precise bureaucratese favored by dungeon masters throughout history." Later, it added: "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."
In 2003, Bybee was appointed by President Bush to the Court of Appeals for the 9th Circuit.
Both Nadler and the Times also called for investigations into whether Bush officials broke the law in ordering and justifying torture, citing John Yoo as a potential target. The Times added that Steven Bradbury, who wrote the three other memos, should also be a target.
Neither Bybee nor Bradbury has spoken publicly since the release of the memos last week.
Josh
Zachary
This is a good start, but Bybee shouldn't be scapegoated. He was encouraged to write those memos by people who should be dragged into the bright light of public scrutiny -- and shaming -- Rahm's announcement notwithstanding. Follow the money: Let's start with those who championed the reward for his loyalty with high court appointment.
April 20, 2009 3:00 PM | Reply | Permalink
I think that impeaching Bybee would be more significant than the word scapegoating implies. He may have been encouraged, even pressured, to write those memos, but he had the obligation to interpret the law correctly and refuse to excuse torture. Clearly he does not possess the quality of judgment that we need in our federal judges. Besides, I have read that when prosecutors go after organized crime they often reel in the smaller fish first, which then gives them more information and leverage with which to nail the leaders. Holding Bybee responsible for his actions might just be the first step up the ladder.
April 20, 2009 3:21 PM | Reply | Permalink
Yes. Compare him with Jack Goldsmith, who surely felt the same pressures, but acted very differently.
April 20, 2009 3:32 PM | Reply | Permalink
Start at the bottom and start rolling them until they've rolled on the HMFICs!
April 20, 2009 5:27 PM | Reply | Permalink
"I think that impeaching Bybee would be more significant than the word scapegoating implies."
Yeah, me too. He's not just a Federal judge, he apparently got plucked from dungeonmaster and was appointed straight to the Court of Appeals for the 9th Circuit. Upwardly mobile mothafuckah!
Impeaching appeals court judges don't happen every day.
April 21, 2009 12:35 AM | Reply | Permalink
It was President in Fact Cheney, through his then counsel, David Addington, who coerced the sycophantic political appointees at the DoJ and DoD to legally rationalize clearly illegal acts.
Dick Cheney, David Addington, Alberto Gonzales, Jay Bybee, John Yoo, Steven Bradbury, William Haynes, Donald Rumsfeld, Douglas Feith, and probably others should be brought before a war crimes tribunal.
Meanwhile former Navy General Counsel Alberto Mora should be awarded the highest national honors for he "was so concerned in 2002/2003 with the Cheney administration’s torture of prisoners that he went to then Sec. of Defense Rumsfeld’s General Counsel, Stephen Haynes (who along with his boss and many others should be prosecuted for their war crimes), and told Mr. Haynes he was blowing the whistle if Rumsfeld did not withdraw his approval of torture. Rumsfeld promptly withdrew his authorization."
April 20, 2009 3:31 PM | Reply | Permalink
Agreed: Alberto Mora is one of the few standouts in this matter, even though he did not make himself a public target. HE should be awarded the Medal of Freedom -- and all those awarded by Bushit ordered returned with apologies ffor having the gall to accept them in the first place.
As I understand it (from PBS' shown-once-only "Tortured Democracy"), Mora's father was subjected to torture as a prisoner of war during WWII. Mora's clear and unequivocal sttements on the matter were and are inspiring and heartening. Who said there's no one good in gov't?
April 21, 2009 11:55 AM | Reply | Permalink
Good luck with that. It now appears highly unlikely that we will ever get the Bush criminals to justice. Let's start with Bybee and his like.
April 20, 2009 3:08 PM | Reply | Permalink
There's a whole mountain of crap here
Step back and look at the larger picture...Look at how the GOP put holds on nominees adn grilled Holder on prosecutions of this sort of crap...Consider Dianne Feinstein's various two steps and the Caught on Tape moments of her best buddy Jane Harman
This could start the Great Unraveling
April 20, 2009 3:22 PM | Reply | Permalink
Dianne and Jane should go, too. And, for good measure, every single Congressocrat who doesn't get behind a thorough investigation and penalty for the participants in this obsenity.
April 20, 2009 3:31 PM | Reply | Permalink
"It was an instruction manual on how to break the law" is the perfect quote that should be endlessly repeated by everyone in public life interested in seeing Bybee removed from his judgeship. It should be quoted and requoted via TV, radio, print media, blogs, texts, tweets, billboards, bumper-stickers, whispering campaigns, shouted from rooftops, hollered out of windows, and blared from loudspeakers until that bastard is booted out of the judiciary. He can go teach cowardice at Regency University.
April 20, 2009 3:26 PM | Reply | Permalink
Start with the lower-level guys (and get him off the BENCH!!!-- then flip him to get the bigger fish. Rinse. Repeat, until you get to Cheney. I'll bet some new information, actionable information, will be uncovered during his impeachment trial, don't you?
Public opinion is important in all of this. And public opinion needs to benefit from a calm disclosure of the facts.
The torture memos are a beginning. A public impeachment of Bybee will give the public more information about the semi-hidden world these neocons live in. Sunshine is the best disinfectant. And public opinion will eventually support the right resolutions. It will just take some time. The last thing we need are the overheated rhetoric of the self-righteous who are out for someone's head. the stakes are bigger than that.
A wall is built one brick at a time.
April 20, 2009 3:27 PM | Reply | Permalink
Start with the lower-level guys (and get him off the BENCH!!!-- then flip him to get the bigger fish. Rinse. Repeat, until you get to Cheney.
Completely agree.
The key thing is that there need to be *serious* charges in the criminal complaint to make them flip. If it's minor, they'll take the fall.
John
April 20, 2009 3:37 PM | Reply | Permalink
And if anyone chooses not to flip can we use the practices that they enabled to coerce their cooperation, right?
April 20, 2009 5:18 PM | Reply | Permalink
Yup! Cheney is the HMFIC I want to see in striped PJs!!
April 20, 2009 5:31 PM | Reply | Permalink
I'm as appalled as anyone that an attorney who condoned waterboarding sits as a federal appellate judge. Nonetheless, removing a judge based on disagreement with his legal opinions strikes me as an extremely dangerous precedent. I could support impeachment hearings, but I don't think the House should vote to impeach unless the hearings reveal evidence that Bybee render his opinions in bad faith as part of a conspiracy to condone torture. (Likewise, I don't think the Senate should vote to convict on the impeachment unless a preponderance of the evidence indicates that Bybee rendered his opinion in bad faith as part of a conspiracy.)
April 20, 2009 3:30 PM | Reply | Permalink
He backed-in his opinions to fit the need of his customer at CIA. That's no an opinion. The conclusions didn't meet the criteria of law or treaty. Besides this Congress is too lazy, corrupt, and divided to impeach; also, impeachment is a political process and they don't have the will to convict let alone impeach.
April 20, 2009 3:48 PM | Reply | Permalink
I also suspect that Bybee rendered a result oriented opinion. I would want the Hearings to uncover evidence that he did so, though, before voting to impeach. Basically, I would want evidence (either documents or testimony) indicating that the Administratrion told Bybee what opinion it needed and that Bybee then conformed his opinion to the Administration's needs. If Bybee did that then in my opinion he went beyond a mere legal advisor and became an actor in a criminal conspiracy.
Here's one highly attractive aspect of this approach: it requires John Conyers to delve deeply into the Bush Administration practices that led to the creation of these memos. Also, because the House Judiciary Committee would be acting pursunt to it's impeachment authority, it would be strongly positioned to overcome any claims of executive privilege.
April 20, 2009 4:26 PM | Reply | Permalink
No competent lawyer considers the Bybee memo to Rizzo (ghosted by John Yoo, at the prodding/bullying of David Addington, according to all reports) to be based on the rigorous due diligence required for evaluating an issue as important as the definition of torture, a crime under International Customary Law, International Treaty (The Convention on Torture) and the U.S. War Crimes Act.
Both Jack Goldsmith and Steven Bradbury, Bybee's successors, withdrew/replaced the Bybee memo because it was not a true legal opinion. The memo simply says to the CIA that, given the assumptions and facts you have stated to me, the waterboard and the other interrogation methods listed would not be torture under the specific intent provision of the U.S. War Crimes Act. The assumptions were absurd on their face: for example, Bybee accepted without question the CIA's representation that the low incidence of severe mental health reactions to SERE training (experienced by trainees who knew that the trainers administering the torture technique had no intention of doing them serious harm) was a reasonable basis for judging the mental health effects of waterboarding on a prisoner in a "black site" who probably knew that CIA interrogators had killed several prisoners in Afghanistan by torturing them.
The Bybee memo also neglected to probe why the CIA interrogators were so concerned - the major reason, of course, was that every one of the interrogators had been trained that the methods for which the CIA sought CYA authority were, by international consensus and long-standing U.S. military doctrine, considered cruel and inhumane treatment and therefore illegal under the Geneva Conventions and other standards establishing international laws of war.
In short, on its face the Bybee opinion is a sham opinion. The lack of good faith is apparent from the repeated recitation of phrases to the effect that "if all your representations are true, then the interrogators will technically not be criminals because they won't have the specific intent to cause severe mental distress..." Of course, these techniques would not be requested except for the fact (as any fool could plainly see, and Bybee's no fool) that the natural consequence of each of the queried techniques, when applied to an isolated prisoner, is precisely to cause severe mental distress and disorientation. The "wink, wink, nudge, nudge" almost leaps off the pages of this depraved document.
April 21, 2009 7:46 AM | Reply | Permalink
I have no interest in trying to defend the legal competency of these memos. I don't, however, think that authoring an incompetent memo alone suffices, or should suffice, to impeach a sitting federal judge. I share your suspicion that there was more here - more rising to the level of a criminal conspiracy - but I think that needs to be proven and cannot simply be inferred from the incompetency of the memos.
On a practical note, I doubt that two- thirds of the Senate will vote to convict on the impeachment regardless. (I suspect there are 35 Jack-Bauer-idolizing Republican senators who think this was justified even if it was torture.) Consequently, as I see it all we gain from attempting to impeach Bybee is the impeachment hearings themselves. So let's define the scope of the inquiry broadly enough to get the most information put of the hearings. Under my interpretation, the House Judiciary committee will need access to every document and every witness even remotely connected to the torture program.
April 21, 2009 11:19 AM | Reply | Permalink
Excuse me? It is acceptable for a sitting judge to author incompetnet legal documents in cases which involve real human beings? Are you out of your mind!?
April 21, 2009 12:05 PM | Reply | Permalink
Authoring a legally incompetent memo (before being seated) is a good argument to vote against confirming a judge. I don't see it as a good argument to vote for impeachment though. A federal judge can only be impeached for “treason, bribery, or other high crimes and misdemeanors.” Impeachment is not, and ought not be treated as, a do-over on confirmation hearings.
Consider the broader picture. The right-wing would love to be able to use impeachment hearings to intimidate federal judges that they consider to be activists (i.e., any judge whose rulings they don't like). Should Democrats weaken the standard for judicial impeachment while they are in the majority, I greatly fear the Republicans will abuse the weakened standard when (if?) they return to the majority.
April 21, 2009 12:34 PM | Reply | Permalink
Torture, not being a misdemeanor, is a high crime. "Only" rationalizing it by means of a conscious falsification of the laws is not an exemption.
April 22, 2009 8:08 PM | Reply | Permalink
To hold these attorneys accountable, you need to do more than just cry: "TORTURE." You need to make the argument that they weren't just giving legal advice, they were actively facilitating the crime.
Think about it this way: Suppose you go to your lawyer and ask him if something is illegal. Your lawyer is a lazy idiot who doesn't bother to do any research and gives you an answer that is completely wrong. If you then break the law relying on your lawyer's advice, that doesn't make your lawyer a criminal. He's just a lazy idiot who ought to be disbarred for malpractice.
On the other hand, suppose you go to your lawyer and tell him that you are having trouble convincing people to help you do something because they think its illegal. Your lawyer is an amoral shyster who knows full well that what you want to do is illegal. Nonetheless, he gives you an opinion saying that what you want to do is legal is that you can convince the others to help you. Now your lawyer is an accomplice in your crime.
The question here is whether Bybee is the lazy idiot or the amoral shyster. Like you, I suspect that he is the amoral shyster, but the memos alone aren't enough to prove that; the memos could have been authored by the lazy idiot. So we need to gather evidence.
April 23, 2009 9:41 AM | Reply | Permalink
The Bybee memo/es were not INCOMPETENT; they were CONSCIOUS AND DELIBERATE BAD FAITH.
April 21, 2009 12:07 PM | Reply | Permalink
I suspect you are right, but suspicions ought not suffice for impeachment. Let's have a thorough investigation by the House Judiciary Committee to find evidence that the memos were authored in bad faith as part of a criminal conspiracy.
April 21, 2009 12:38 PM | Reply | Permalink
I want as thorough and complete investigation as is humanly possible. I want to be certain everyone knows all that happened -- and that the prosecution and conviction of the Bushit criminal enterprise is not political but wholly justified -- and compelled -- by law.
April 22, 2009 8:10 PM | Reply | Permalink
It is far from being a "disagreement over legal opinions". The memoes are clearly a conscious and deliberate subversion and circumvvention of the KNOWN law. Ethics require a lawyer to inform his client of the law as it is, and the likelihood of a change in the law as a matter of argument. A lawyer is PROHIBITED helping his client VIOLATE THE LAW.
The reality -- and law -- is that torture is not a "controversy" or "opinion" subject to debate. Waterboarding, as example, is defined IN LAW as being T-O-R-T-U-R-E. Calling it anything else is to lie.
Bybee is a thug no less putrid than Cheney. And Yoo. And Feith. Etc.
April 21, 2009 12:02 PM | Reply | Permalink
If the House voted to impeach just on the basis of the legal analysis in the memos, then I think it would be impeachment over a disagreement on a legal opinion. Like you, I think that legal analysis is incompetent and I think that Bybee failed in his ethical duties as an attorney. No matter how bad that analysis was though (and this one was atrocious), it is still a disagreement over legal analysis, and I don't think that suffices, or ought to suffice, for impeachment. I would want to see evidence that Bybee deliberately signed off on an incompetent analysis to provide legal cover for criminal acts of torture. I suspect that is exactly what happened, but as I've argued above suspicions ought not suffice for impeachment.
April 21, 2009 12:52 PM | Reply | Permalink
No, it is not a disagreement over legal analysis -- that is a false representation by the Republicans. It would be an impeachment over OBVIOUS misrepresentations of the law that could ONLY be DELIBERATE.
But that would be only one element in the matter. As you subsequently note, evidence that dissent existed, was known, but was suppressed is coming out -- none of it actually new, at least in general: it's long been publicly known that JAG opposed the torture regime, and that they were, therefore, cut out of the loop.
Etc.
Alberto Mora will without doubt testify, and he likely made certain to keep good records.
April 22, 2009 8:14 PM | Reply | Permalink
By the way, looks to me like the sort of additional evidence that I think necessary for impeachment is already starting to surface. According to Philip Zelikow the administration actively suppressed dissenting opinions. I don't think that's enough yet, but if that sort of information is already coming out, I bet there's a lot more to be uncovered by House impeachment hearings.
April 21, 2009 1:33 PM | Reply | Permalink
The wheels in question turn slowly; and I can live with that. Note that I specify that they must be allowed to turn.
A nice, slow, grind is what I have in mind.
No rush to judgement; let us take our time, examine minutely the events and proceedings, acquit ourselves with a discourse of reason as we inquire:
"Is that a mens rea?"
April 20, 2009 3:33 PM | Reply | Permalink
Here's a solution for testing 'good faith'--Have Bybee, Yoo, Addington and Bradfbury defend the legality of their methods in front of Balthazar Garzón.
April 20, 2009 3:36 PM | Reply | Permalink
The American reporter Roxan Saberi, who has been charged with "spying" in Iran..("spys" are routinely tortured in "third world" countries) is exactly why President Obama must prosecute those who ordered, commited and kept quiet about torture under the Bush Administration...it is international law...and since we have laws about it and signed the international treaties...shouldn't it include the U.S.A...?
Bybee should not only be impeached, he should also be dis-barred (for life) and prosecuted along with all the rest who were involved....(the list is almost endless!)...
April 20, 2009 3:37 PM | Reply | Permalink
I await the issuance of a Strongly-Worded Letter, followed by ... nothing.
April 20, 2009 4:12 PM | Reply | Permalink
Doofus,
EXACTLY! Its deja vu all over again. It will be another horse and pony show as the Democratic Committee Chairs bloviate and bang their desks
again.
April 21, 2009 10:01 AM | Reply | Permalink
Why doesn't Nadler take whatever action is necessary to begin the impeachment process instead of just talk about it? Impeaching Bybee is a fine idea, but what delicious irony it would be if Congress impeaches this creep eh? Obama's effort to protect the criminals and keep it all out of the partisan arena would have backfired to the maximimum extent possible given that the impeachment process and trial would be by far the most partisan and theatrical method to use in addressing the crimes.
April 20, 2009 4:33 PM | Reply | Permalink
If President Obama thinks that not going after those that were the architects of torture will not hurt him with his supportors, he could not be more wrong. We stomached the illegal wiretaps, but this is one of the most crucial tenants of what this country represents. We will not foregive him if he does not defend the Constitution and the rule of law. Either he told us the truth during the campaign or he lied. This will be the line in the sand.
April 20, 2009 4:33 PM | Reply | Permalink
Thank you for that! I so agree.
April 20, 2009 5:29 PM | Reply | Permalink
Yup. This will lead to nowhere. The lame Democratic Congress will do nothing about Bybee (just like the Senate did nothing about Bybee when he was nominated). Sorry folks. I would love to try to join this bandwagon, but my sense is that you get what you pay for. We knew Bybee was difficult; he ignored the Constitution; we still confirmed him.
Don't worry. These guys -- led by Chuck S and Dianne F -- will resist impeachment.
April 20, 2009 4:39 PM | Reply | Permalink
I don't think impeachment is an option. Article III, section one, says that federal judges shall hold their offices during good behavior, which seems to me to mean good behavior while a judge. Bybee's memo was written before he became a judge. As I recall, during the Bybee confirmation process, the Senate knew he'd written a memo on torture, knew they weren't going to be allowed to see the memo, but voted to confirm him anyway. And as I further recall, everyone who was paying attention had a strong inkling that the memo gave a legal blessing to the "enhanced interrogation techniques" (a/k/a torture) that were being practiced at the time. I just don't see how Congress gets a do-over in these circumstances, particularly in light of Article III.
April 20, 2009 4:55 PM | Reply | Permalink
One of LBJ's SC nominees was forced to withdraw for things he alleged had done while not on any bench.
If Bybee committed murder -- torture is a felony punishable by death -- ten years ago, would he be eligible to sit on the bench because he wasn't on the bench at the time?
Only trolls post such lame nonsense. Trolls piss on the rule of law because they are America-haters.
April 21, 2009 12:13 PM | Reply | Permalink
The Dems are gutless wonders. I could roll them anytime on any topic. They knew full well what I was doing through their reps on the security committees and now they'll cover things up to save their own skins. They are complete chickens. heh, Heh!!
April 20, 2009 5:14 PM | Reply | Permalink
If you know Goldsmith's name you should have read his book.
In it you would have noted that Bybee was only briefly the head of OLC, and even while he was there he was not part of what Goldsmith called the "War Council" which directed legal policy in connection with the War on Terror.
John Woo wrote the Memos that Bybee signed as head of OLC. Woo was a much-published author on issues of Presidential War Powers, where Bybee had no such background. Woo met regularly with Gonzalez, Addington, the DOD General Counsel and Gonzalez's top deputy. That was the War Council. Bybee was not a participant, he didn't influence the policy, he simply signed the Memo as the head of OLC that was written by Woo, one of the deputies.
April 20, 2009 6:00 PM | Reply | Permalink
That's John Yoo.
I think you're under stating Bybee's involvement, he not only signed the memos (which makes him ultimately responsible) but attended meeting to discuss the use of SERE interrogation techniques. Survival Evasion Resistance and Escape (SERE) is the program of training of USA military personnel to resist torture techniques.
From the Executive Summary of the Senate Armed Services Committee report on its inquiry into torture.
April 20, 2009 6:57 PM | Reply | Permalink
Quite alarmed, have you read the Bybee memo? Surely the proof you're asking for is contained in the specious and nonsensical 'reasoning' contained in that opinion, no? The reasoning in that memo literally made_no_sense. The document itself is evidence that Bybee was either utterly incompetent (an assertion which I don't believe is sustained by the facts) or engaged in a deliberate attempt to misrepresent the state of the law in order to provide legal cover for his clients. Either way, it should be enough to justify impeachment proceedings...
April 20, 2009 8:24 PM | Reply | Permalink
Nominee for U.S. Attorney under fire for role in Postville Iowa raid (Waterloo Courier, April 5, 2009)
Let’s hope the Obama Administration takes a lesson from this embarrassment and immediately stops a very troubling U.S Attorney nomination that would only serve to further damage our international reputation for the humane treatment of prisoners. As the May 12th anniversary of the Postville Iowa Agriprocessors ICE raid nears, we all should be reminded of the outrageous way immigrants working in Postville were treated: first like slaves and then denied any form of justice in swift and chaotic criminal court proceedings orchestrated by the Northern Iowa United States Attorney’s office. Unbelievably now Stephanie Rose one of top federal prosecutors responsible for the egregious and inhumane Postville, Iowa prosecution has been recommend to be promoted to the powerful position of United States Attorney for the Northern District of Iowa.
Postville was a massive failure on many levels, not the least of which was a failure of prosecutorial judgment. The fact that Ms Rose played a “central role” in this travesty and considers it a “success story” is very disturbing. Her role in Postville should render her unfit to be a viable candidate to serve as a USA in the Obama Administration.
April 21, 2009 1:16 AM | Reply | Permalink
"Immigrants"? Don't you mean illegal immigrants?
April 22, 2009 8:28 AM | Reply | Permalink
Even if he remains on the bench, how effective can he be?Couldn't a (future) defense counsel cite Bybee's famous memos as evidence of his unfitness to judge a case?
I'm not a lawyer, what do you think?
April 21, 2009 9:35 AM | Reply | Permalink
I'd love to see lawyers dealing with torture cases appeal them to Bybee. Would he recuse himself? Or continue to falsify the law?
April 21, 2009 12:17 PM | Reply | Permalink