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The Bybee Question

You’ve got to go pretty far back in U.S. history to find someone impeached for conspiracy to commit torture. Actually, you need to go over the pond to Britain in 1649, when King Charles was impeached. I’m thinking if they could impeach a King back in the 17th century, we should be able to impeach a judge in the 21st. The Alliance for Justice convened a panel of experts on impeachment, ethics and torture to discuss whether it would be appropriate to impeach Judge Bybee for his work at the Office of Legal Counsel.

You can view the panel here.

Bill Yeomans, Legal Director at AFJ opened the discussion, noting that the very question was troubling – the United States engaged in torture, justified by the legal memoranda approved by a man who now sits at the 2nd highest level of our federal judiciary… and we need to ask if this man should be impeached?

Bill gave a helpful summary of the development of the torture program, concluding that despite President Obama’s protestations to the contrary, we can’t move forward without full disclosure, and if we do not punish those responsible, we can’t be sure that a future president will not pursue torture.

The panel followed a question and answer format. Nan Aron, the President of AFJ asked the questions.

Given that the public has known about the torture memos for five years, why are they so high-profile now?

Scott Horton – We now understand the role that the memos played. When the first memo was released in the summer of 2004, Bybee et al claimed that they were only working on abstract questions of law. We now know that was not true. In fact, the torture program was in place when the memos were written, but push back against the program was coming from within the ranks of the CIA. Some agents understood that the techniques they were being asked to use were illegal. The memos were written to quell this dissent.

And the questions the OLC answered were hardly ‘abstract’. With the release of the memos on April 16, it has become evident that OLC staff were “dancing a tango with the interrogators themselves.” In fact, Horton said, “They knew with moral certainty” that if they approved a technique to be used a certain way on a certain detainee – it would be used.

What is the standard for impeachment?

Michael Gerhardt, a constitutional law professor and expert on impeachment, took us back to the Constitutional Convention to understand that “nothing is more serious than impeachment” and the founding fathers intentionally set a high bar for impeachment. That said, Gerhardt noted that impeachment does NOT require and indictable offense, but if a judge breaks the public trust impeachment is justified.

Among Gerhardt’s arguments for impeachment: Bybee’s judgement to approve the memos was sooo bad; pernicious advice does fall under ‘high crimes and misdemeanors’ (again, Gerhardt referred back to the Constitutional Convention to make his case); it would be a bad precedent not to impeach; and, impeachment might be the only way to correct the confirmation process (if Senate had known what Bybee did, they would not have approved his nomination)

Still, Gerhardt raised a concern, based on the fact that Bybee’s misconduct happened before he was on the bench, which may make it difficult to remove him. Gerhardt cited the case of Robert Archibald, a Commerce court judge who was impeached for misconduct both before and during his time on the bench. In the end though, the Senate removed him only for the misconduct while he was on the bench, not the misconduct before.

Other arguments against impeachment we face include the proposition that there are other avenues to hold him accountable, and that Bybee may not have been the ‘final authority’ on the memos.

What are the other avenues for accountability?

Specifically, the Office of Professional Responsibility could refer the Bybee matter to the DC and Nevada bars, which could disbar Bybee. Michael Frisch, an ethics expert, explained that this is not a good option for accountability because the process could take years and the proceedings could well remain confidential. And, in fact there are many sanctions that fall short of disbarment, including reprimand or suspension for a limited time period.

Is there enough evidence for a criminal investigation and who should conduct the investigation?

The White House has reversed itself three times on this question, by Horton’s count, and now it is in Holder’s hands. But the crux of the matter is that we are obligated, as a party to the Convention Against Torture, to investigate. Horton pointed out that going all the way back to Jefferson, the U.S. has championed a treaty against torture, but it took Ronald Reagan to usher it through Congress.

Horton pointed out that we have an obligation to investigate, but not prosecute. The treaty gives the prosecuter discretion to decide if an indictment is called for.

Horton argued that the investigation starts with the crime, not with particular individuals. He suggested a good starting point, the case of al Jamadi, who was tortured to death while in CIA custody in Iraq. An Army investigation recommended prosecution but the DOJ has done nothing. Why? Horton took a guess: defendants charged with homicides that resulted from procedures approved by the White House would certainly use the OLC memos as a defense.

In answer to a question from the audience, Horton noted that in D.C., the issue of accountability is about looking forward vs. backward, or vengeance and retribution. But to the rest of the world, it is about the Convention against Torture, and whether it can hold up. How will a third world despot be held accountable when we won’t do it in the U.S.?

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