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Congressman Calls for Impeachment of Bybee over Torture Memos

Posted Apr 21, 2009 5:32 AM CST
By Debra Cassens Weiss

A Democratic congressman is calling for the impeachment of a federal appeals judge for his Justice Department memos approving harsh interrogations of terrorism suspects.

U.S. Rep. Jerrold Nadler of New York, a member of the House Judiciary Committee, is the first member of Congress to call for the impeachment of Jay Bybee, a judge on the San Francisco-based 9th U.S. Circuit Court of Appeals, according to the Las Vegas Review-Journal and the Deseret News.

The New York Times also called for impeachment in a Sunday editorial.

In a 2002 memo released last week, Bybee gave detailed legal approval for waterboarding and “walling,” in which a suspect’s shoulders are banged against a flexible wall. He also allowed interrogators to exploit an al-Qaida detainee’s fear of insects. The plan was to place a caterpillar in a box with Abu Zubaydah and to tell him the insect could sting. The idea was never carried out.

Nadler called the memo “an instruction manual on how to break the law.”

"Any special prosecutor on torture would have to look at the authors of those torture memos," Nadler said in an interview with the Huffington Post. "And certainly you have real grounds to impeach him once the special prosecutor took a good look at that. I think there ought to be an impeachment inquiry looked at in any event. Which should happen first, I'm not sure."

Legal Pad wanted to know what Republicans think of the impeachment idea. The ranking Republican on the House Judiciary Committee, Rep. Lamar Smith, opposes it.

“If Congress gets into the habit of impeaching federal judges for legal advice provided while serving in the administration, no good lawyer in their right mind would join the administration!” Smith told Legal Pad in an e-mail. “Even government lawyers must be free to provide legal advice and counsel without fear of retribution from politicians. Mr. Bybee was asked to provide his legal—not personal—opinion regarding interrogation techniques. He should not now be punished for doing his job.”

Comments

1.

B. McLeod
Apr 21, 2009 7:06 AM CST

It’s a very nice sentiment, wanting to get Bybee out before he destroys more lives with his ineptness.  However, they really should have addressed this before confirming him.  Now, he’s a federal judge, and I think that whole “good behavior” thing means they can’t impeach him unless he actually commits some misconduct while a judge.

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2.

J.D.
Apr 21, 2009 8:29 AM CST

The ABA is starting to show it’s bias.

(1) The term ‘torture’ is not a legal term; it’s a political term that even CNN is careful about using.

(2) This is not the first time the far-left “Huffington Post” has been cited. When will the ABA cite to National Review Online, or Townhall, or Michelle Malkin?

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3.

DR
Apr 21, 2009 9:01 AM CST

You make a good point, McLeod, and I’m interested in seeing how this plays out and what approach will be taken with regard to this.  What is the process of removal when it is found that judges have committed prior bad acts/crimes?

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4.

Paul the Magyar
Apr 21, 2009 9:54 AM CST

Unfortunately, they could not have addressed this before confirming him because the memo was kept confidential during that process, I understand. 

I think that having the whole story now would change things.  It would seem that a judge’s sordid past should not get a pass if it only comes to light later on.

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5.

Paul the Magyar
Apr 21, 2009 9:57 AM CST

“If Congress gets into the habit of impeaching federal judges for legal advice provided while serving in the administration, no good lawyer in their right mind would join the administration!” Smith told Legal Pad in an e-mail. “Even government lawyers must be free to provide legal advice and counsel without fear of retribution from politicians. Mr. Bybee was asked to provide his legal—not personal—opinion regarding interrogation techniques. He should not now be punished for doing his job.”

This is EXACTLY why Nazi jurists were punished for providing a legal excuse for crimes against humanity.  Those who do not know history are condemned to repeat it.

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6.

Michael
Apr 21, 2009 10:03 AM CST

“...no good lawyer in their right mind would join the administration!”

Regardless of one’s opinion whether he should be impeached or not it’s clear that Bybee is not a good lawyer; he’s an unethical hack.

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7.

William Stanley Daniel
Apr 21, 2009 10:55 AM CST

No good lawyers in their right minds would have
ever written those unconstitutional memos back
in 2002 “approving” the torture treatments of
“waterboarding” and “walling”.

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8.

Resign v. Disbar v. Hang ? (JAG in Ohio)
Apr 21, 2009 11:47 AM CST

Hmm. If his colleagues are unable to get him to resign, why not get him disbarred for the past conduct?
To me, the kindest thing that can be said about his past conduct was that it was beyond egregious.
I am less than enthused on Senate impeachment and House conviction. Those men and women have far more important matters that need attention. Besides, there are too many, inbcluding myself, who are against him, but who would argue AGAINST impeachment, let alone conviction.

Justice Fortas was persuaded to resign, albeit concerning conduct as a Justice, for far less “evil” than judge Bybee.

Hans Frank, Esq., was hanged. I believe, but am uncertain, that he did not PERSONALLY kill Jews.

Obviously, hanging Judge Bybee would be overkill (pun INtended).

Just Another Guy in Ohio

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9.

J.D.
Apr 21, 2009 12:28 PM CST

“The CIA stands by the assertion made in a May 30, 2005 Justice Department memo that the use of ‘enhanced techniques’ of interrogation on al Qaeda leader Khalid Sheik Mohammed (KSM)—including the use of waterboarding—caused KSM to reveal information that allowed the U.S. government to thwart a planned attack on Los Angeles.
“Before he was waterboarded, when KSM was asked about planned attacks on the United States, he ominously told his CIA interrogators, ‘Soon, you will know.’”

And he was right—soon after the water dunking, we DID know. And we stopped it. And lives were spared.

Why does this make the Left mad? Isn’t it odd that both liberals and jihadists are simultaneously frustrated about the same thing?

(I would love to provide a link from the NYT, but this information doesn’t fit the narrative.)
http://www.cnsnews.com/public/content/article.aspx?RsrcID=46949

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10.

DR
Apr 21, 2009 1:53 PM CST

“Why does this make the Left mad? Isn’t it odd that both liberals and jihadists are simultaneously frustrated about the same thing?”

I think it’s odd that a human being would jump out of a 100 story building (resulting in sure death) to escape fire.  Decisions, decisions!  But then again, I heard that it is instinctive for living things to recoil from pain and seek any alternative to escape it.

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11.

B. McLeod
Apr 21, 2009 6:26 PM CST

The CIA is desperate to make itself look less impotent and ineffectual, after eight years of being completely incapable of tracking down Osama Bin Laden.  So, of course it “stands by the assertion” (which is simply that) that torturing this prisoner helped thwart an attack.  I equally thwarted 50 attacks only yesterday.  The attacks did not happen, ergo, something must have “thwarted” them, and if I say it was me, I have as much proof of that as the CIA has for its bullshit claims.  These “intelligence” operatives are just trying to deflect public attention from their own, total worthlessness.

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12.

I.J.
Apr 22, 2009 12:08 AM CST

Bybee worked on the government team representing the U.S. when Japanese Americans brought suit against the U.S. for FDR’s decision to take farms in California and put them on internment camps.  He, as a lawyer for the government, had to make arguments supporting the racist decision of the FDR administration, particularly General DeWitt’s racism.  Interestingly though, little justification existed for robbing Japanese Americans of their farms and homes.  Investigations showed that the Japanese Americans did not pose an imminent threat on the western seaboard.  The decision to imprison the Americans was based on racial prejudices.

Here, now, after Bybee had been trained to work his extreme legal talent to aggrandize the Executive, he is now being targeted as the fall man for having drafted a legal opinion.  The opinion is not his moral stance, nor authorization to use waterboarding.  Rather, the opinion is one crafty legal mind’s understanding of statutes without much interpretation.  To criminalize such act would be a severe blow the legal profession.

Should judge’s, who interpret the Copyright BERNE convention statutes be hauled into international courts for their faulty interpretations of the BERNE convention when looking at the statutes within the larger framework of the law within the U.S.?  These judges do more to authorize violation of international treaties than an inter-office memorandum that closes with caution that the opinion expressed in the memorandum may not be valid.

One last thing, not only the politicians in Washington are trying to throw Bybee under the bus, his colleagues at Boyd School of Law at UNLV, where he teaches, have also started to go after him.  A professor of professional responsibility at Boyd especially targeted Judge Bybee and his memo, requiring students to draft memoranda on the PR issues with writing the famous torture memo. 

Hopefully Bybee prevails through the current rush of blind idealism.

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13.

B. McLeod
Apr 22, 2009 1:17 AM CST

From what people who know him are saying, this Bybee is a likeable sort, though obviously very sloppy in his legal reasoning.  I don’t know that it matters, one way or the other, as I think, under the plain language of Article III, he simply can’t be removed from the bench for his pre-confirmation abuses.

The tie to the sad internment cases also is interesting.  Those people who were penned up in camps were, for the most part, extraordinarily devoted to this country.  My personal view has also long been that Americans of that time did not understand the Japanese people here or the Japanese people in Japan (our staunch allies in what Britain had called the Great War of 1914 to 1918).  In the 1930’s, FDR wanted very much to be in the war against Hitler.  To achieve that end, he very cynically and deliberately pushed Japan toward the Axis alliance, and then repeatedly antagonized the Japanese government to bait them into the attack on the United States.  Of course, it swept isolationist sentiment aside, and led to the defeat of the Nazis.  FDR was a man of great calculation, and great will and foresight.  He did not seem to be worried about Stalin, or the Soviet Union.  He cemented the arrangement with the Saudi royal family which continues to this day.  Sometimes, I revisit his writings and press statements, and they cause me to wonder if he foresaw even what is happening now, and if the pattern he so carefully set in motion has not yet played out.

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14.

Horace
Apr 22, 2009 9:36 AM CST

Should the members of Congress with whom waterboarding and other “harsh interrogation techniques” were discussed in a private CIA briefing in the wake of 9/11 (Nancy Pelosi, Jane Harman et al.) and who acquiesced in the use of the techniques and asked whether the techniques were harsh enough (see The Washington Post, Dec. 9, 2007) also be impeached for high crimes and misdemeanors?

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15.

J.D.
Apr 22, 2009 9:37 AM CST

Today, politicians not only have to fight against foreign powers, they also have to fight against the subversive enemy within which tries to undermine the war effort. Many of these enemy sympathizers work in the media.

If the media of today was around decades ago, the Japanese would have bombed San Francisco and San Diego, and Europe would be united under one flag—a red, white, and black one.

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16.

B. McLeod
Apr 22, 2009 10:23 AM CST

“The republic is in danger.  Yes, danger from within and from without.  We must restore law and order.” —A. Hitler, 1933.

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17.

J.D.
Apr 24, 2009 8:56 AM CST

McLoed’s version of “law and order” is allowing muslims to fly more planes into more buildings. Good luck with that.

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18.

B. McLeod
Apr 24, 2009 11:57 PM CST

No.  Although I don’t believe J.D.‘s apparent, general hatred and distrust of all Muslims is a wise approach, I do not advocate allowing anyone to fly planes into buildings.  On those occasions when I am an airline passenger, I actually take certain, quiet preparations, in case I may ultimately find myself invited to physically rise to the defense of my country on that day.

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19.

Paul the Magyar
Apr 27, 2009 8:42 AM CST

Except for explosives and fire, the boxcutter hijacker paradigm is obsolete.  It has been since 9/11.  See, once hijckers took planes to bargain lives.  Now, they take planes to use as guided missiles.  So, no one will sit quietly and wait for the authorities to intervene.  The fate of hijackers today is to be stomped to death in the aisles of the plane by any folks who survive the nail clippers.

Second, only a very small percentage of the world’s approximately 1,300,000,000 muslims are terrorists.  If you think internment camps in World War II were a good idea, then the grouping of all muslims as terrorists should be fine for you as well.

Finally, at Nuremburg the attorney-apologists and attorneys who authorized torture were held accountable.  Providing legal cover is historically an act which gives rise to culpability.

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20.

Paul the Magyar
Apr 27, 2009 6:41 PM CST

If opposing torture and upholding the United States Constitution is “subversive” count me in.

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