Editore"s Note
Tilting at Windmills

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April 19, 2009

AN EMBARRASSMENT TO THE JUDICIARY.... The question shouldn't be whether to impeach Jay Bybee, but rather, how quickly the impeachment hearings can begin.

To read the four newly released memos on prisoner interrogation written by George W. Bush's Justice Department is to take a journey into depravity.... In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary. [...]

As Mr. Bush's lawyers were concerned, it was not really torture unless it involved breaking bones, burning flesh or pulling teeth. That, Mr. Bybee kept noting, was what the Libyan secret police did to one prisoner. The standard for American behavior should be a lot higher than that of the Libyan secret police.

Unlike memo authors like John Yoo and Steven Bradbury, Jay Bybee currently enjoys a lifetime appointment on a federal appeals court. The nomination was an insult, and his confirmation was absurd. But as the NYT editorial notes today, "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."

Of course it should. As Jeffrey Toobin noted the other day, Bybee was confirmed before his torture memos became public (though there were serious questions about his White House work at the time), and he "has never answered questions about them, has never had to defend his conduct, has never endured anywhere near the amount of public scrutiny (and abuse) as Yoo."

And while prosecuting top former Bush administration officials may be a contentious point, Senate consideration of Bybee's fate is quite straightforward. As digby noted, judicial impeachments are "not unprecedented." What's more, dday explains that while removing Bybee from his position would be difficult with at least "34 Republicans in the Senate willing to go on record as objectively pro-torture," Congress "should be compelled to do this anyway."

Steve Benen 11:00 AM Permalink | Trackbacks | Comments (19)

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Actually Yoo's position, a tenured Professorship at Boalt Law, is also a life time appointment.

Posted by: gregor on April 19, 2009 at 11:04 AM | PERMALINK

And while I haven't read most of his opinions, I can say that the one that I have read closely, his dissent in the RUI case, shows that he is just as intellectually dishonest when it comes to issues that don't involve life and death as he was in the case of torture. It's a dry issue--the contract clause as applied to local authorities' imposition of living wage requirements on businesses that lease City property--but his logic is, to use a cheap pun, tortured. He's a stain who should be removed.

Posted by: Henry on April 19, 2009 at 11:07 AM | PERMALINK

my friends, if we keep adding sociopaths to the ranks of the political -- and juridical -- leadership of this country, eventually we're really gonna rock n' roll...

Posted by: neill on April 19, 2009 at 11:11 AM | PERMALINK

Having Bybee as a judge in any venue would be an assault on the rule of law. Having him as an appellate judge is, plain and simply, adding insult to assault.

Posted by: Charles on April 19, 2009 at 11:14 AM | PERMALINK

Civil libertarians who want to restore the rule of law and to undo the damage of the past should be careful about taking on battles that are destined to lose. If impeachment proceedings are launched against Bybee and then go on to fail, it will be a devastating precedent that will not soon be forgotten. It will mean that there is simply not a strong majority (or even a majority at all) in the Senate (or god forbid, the House) for basic liberal values. It will put the Congress firmly on record. Acquitting Bybee will represent yet another resounding victory for the "it's not torture/illegal, if the president does it" crowd. Better to let this lie than to go down guns blazing merely to establish the depth and breadth of the weakness of the civil libertarian position in American government and public opinion.

I don't have nearly enough faith in the Congress to believe that it's a wise use of resources to go forward with impeachment proceedings. The chances of successful impeachment are miniscule. To me, it looks like just another occasion for more liberal heartbreak and further degradation of American institutions.

Posted by: Frannie on April 19, 2009 at 11:50 AM | PERMALINK

Funny how lefties love judicial activism until a judge actively tries to keep America safe.

That's a big no no for you guys, isn't it?

Posted by: Myke K on April 19, 2009 at 12:02 PM | PERMALINK

In partial response to Frannie, there is one way this might work: if Obama promises to nominate a conservative picked from a list provided by Orrin Hatch as Bybee's replacement. With the Republicans already banging the war drums over judicial appointments, now is not a good time to be removing Bybee from the court notorious as one of the most liberal in the country. (I don't disagree with that characterization, but I usually don't think it's a bad thing either.) Any other approach would be too easily spun as political payback, but this would allow Obama to boost his bipartisan cred at the same time. He'll need it once he starts making Supreme Court appointments.

Posted by: Nat on April 19, 2009 at 12:08 PM | PERMALINK


Aren't you the least bit concerned that failing to impeach would be viewed as a spectacular win by the authoritarian right?

Posted by: Charles on April 19, 2009 at 12:14 PM | PERMALINK

The New York Times today endorsed Bybee's impeachment.

Please sign the petition to encourage our government to impeach this man. http://www.PetitionOnline.com/MpeachJB/

Under Bush, outrage had no impact on government. This is a test to see if anything has changed.

Posted by: jen f on April 19, 2009 at 12:38 PM | PERMALINK

Impeaching Bybee would be good. Prosecuting him for malpractice is more important. Offering a likeminded replacement as a conciliation to the right would be the dumbest thing imaginable.

Posted by: Danp on April 19, 2009 at 12:41 PM | PERMALINK

Don't impeach him as a first resort. First, prosecute him for criminal conspiracy to violate U.S. laws and treaties we've signed and ratified that prohibit the conduct he enabled. The criminal prosecution alone will do more to focus attention on the subject than anything else, and a loss in court would not be a blow to civil liberties (because burdens of proof are higher or legal technicalities may be interposed).

Even a successful defense in a criminal trial is a huge loss- in money, prestige, emotional trauma- and would be a guarantee of removal from office if he's actually convicted.

Posted by: Goose on April 19, 2009 at 1:02 PM | PERMALINK

Attention liberal pantywaists: Jay Bybee is an American hero and patriot who has saved countless lives (including, some of your miserable ones perhaps) with his promotion of energetic interrogation techniques. Don't you bleeding-hearts even recognize the considerate nature of a man who wants the waterboarding machinery to act to prevent drowning? Would you rather those scum perish (most well-deservedly IM"H"O) from our methods or at least have their lives saved by the timely intervention of doctors who might otherwise be spending their valuable time caring for your vaunted, uninsured poor?

Now with our Kumbaya President (so deliriously happy bowing and joking with foreign despots) signaling that captured terrorists will be treated better than the hard-working taxpayers (whose money he is equally-deliriously taking for ACORN and other liberal make-work-for-inept-ex-hippies projects), our enemies will attack us with a sneer both abroad and at home.

Posted by: Al on April 19, 2009 at 1:10 PM | PERMALINK

Jesus, Al...even for you, that's major insane. But you have managed to touch all the nutty bases in one post, linking Hugo Chavez, ACORN, taxes, torture, hippies, and Jay Bybee in one comprehensive, paranoid screed. Well done!

Be careful what you say, however. Janet Napolitano has you in her sights. I think a black helicopter is disgorging jack-booted FEMA storm troopers in your backyard right now. I'll call Michelle Malkin for you.

Posted by: jrw on April 19, 2009 at 1:25 PM | PERMALINK

I thought this post by Andrew Sullivan explains rather clearly the case as to why Bybee deserves impeachment and logically disbarment.

Posted by: tuimel on April 19, 2009 at 2:06 PM | PERMALINK

April 19, 2009

Day 4 since Obama renounced his oath of office to uphold the Constitution and our laws.

It may be politically expedient to not investigate and prosecute crimes, but it is not right.

Posted by: AngryOldVet on April 19, 2009 at 2:51 PM | PERMALINK

I know that Al is a parody but this point:
[...] saved countless lives (including, some of your miserable ones perhaps) with his promotion of energetic interrogation techniques[...]
comes up again and again, on the right. Even Jack Goldberg, who resigned because he couldn't "thole" what was happening, still promotes that BS (he was here, at the U, making that point just a couple of months ago). Yet, Benen's first posting of the day shows us just how "effective" those techniques were.

As for Baybee's fate, I agree with Goose (@13:02). Never mind impeachment; *prosecute* the SOB (and Bradbury too; he was, if anything, worse. And don't let's give a pass to pasty-faced Yoo) and impeachment will take care of itself. As a criminal, there's no way he'd get to keep the job of dispensing justice.

And, if ABA had any balls at all, it would disbar every one of them. That, also, would "take care" of their future.

Posted by: exlibra on April 19, 2009 at 3:18 PM | PERMALINK

I think the Congress should wait until he is disbarred.

Posted by: tomj on April 19, 2009 at 6:44 PM | PERMALINK

Bye-bye Bybee...or so let us hope...but since Rahm Emanuel is so vehemently against holding any Bush officials accountable for their war crimes, as are the ultra-conservative Blue Dog Democrats in Congress, along with all the scum dog conservative Republicans, then one can assume that Bybee will not lose any sleep over talk by patriotic U.S. citizens of impeaching his sorry ass off the federal bench.

Of course, disbarring him might help, yanking his license to practice law, but unless there is a federal law stating that federal judges must have a law license, then Bybee will remain a federal judge.

Posted by: The Oracle on April 20, 2009 at 4:39 AM | PERMALINK

Not often that I agree with the NYT, but today I do: impeach Bybee.

Posted by: Glen on April 20, 2009 at 10:58 AM | PERMALINK



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