Judge Bybee Needs to Go

Obama and Podesta

John Podesta wants Judge Bybee impeached for the torture memo he wrote.

Podesta letter: Impeach Bybee

John Podesta, the head of a left-leaning think tank who ran the Obama transition team, is calling for the impeachment of Jay Bybee, a federal judge (ninth circuit) and former Bush administration official who wrote one of the “torture memos” made public last week.

In a letter to House Judiciary Committee Chair John Conyers (D-Mich.), Podesta says that since he has “issued opinions that violate the Constitution and concealed relevant aspects of his legal views and professional conduct from the Senate, Bybee has neither the legal nor moral authority to sit in judgment of others.”

Podesta becomes one of the most prominent Democrats to push for Bybee’s impeachment. The former Clinton chief of staff runs the influential Center for American Progress, and is close to the Obama administration. Obama has left open the door to prosecutions of the authors of the memos that authorized harsh interrogation techniques, even as the president has tried to tamp down calls for a congressional commission to investigate the matter.

The move suggests that the administration sees this as a way to take a specific and concrete action without opening the door to either a truth commission or prosecution of former Bush officials. It’s also a middle road that’s unlikely to appease either side.

Conyers last week announced that he would hold hearings on the memo writers, and told Huffington Post that while some of the authors were engaged in honest analysis, others were law breakers. He did not specify names, but warned, “We’re coming after these guys.”

Judge Bybee probably will be impeached because he makes a great scapegoat. He’s not famous or important and he did write an abhorrent torture memo.  (Download the pdf:   18-page memo, dated August 1, 2002, from Jay Bybee, Assistant Attorney General, OLC, to John A. Rizzo, General Counsel CIA. [PDF].)  But everyone should lower expectations for John Conyers, because Conyers has been saying he’ll get the ‘bad guys’ for at least four years.  He probably won’t do anything in this case either, and there are at least 10 theories as to why he’s never done anything to seriously go after the Bush administration criminals, including blackmail, but it doesn’t matter. Conyers won’t do anything. He never wanted to do anything to anyone, or he would have done it by now. Conyers is all talk, no action and I’m tired of hanging onto his every word, looking for clues or signs of action. Forget it.

Don’t trust Podesta to do anything either, because he’s with the more conservative members of the Dems and doesn’t want the regular old war criminals prosecuted, just the judge will be fine. In fact, my crystal ball says there will be exactly ZERO actual prosecutions for torture, torture orders or anything else involving war crimes among those in the Bush administration, in this country.  Spain, though, might do something on their own.  Judge Bybee will be impeached and get another career but he won’t be prosecuted for anything.

If you think it might matter, you can sign a  petition. The Center for American Progress is calling for Congress is also circulating an online petition calling for Bybee’s impeachment.

Here is what Judge Bybee wrote about waterboarding in his 2002 memo — declaring it was not torture, despite decades of history where it had been determined to be  torture.

“Although the waterboard constitutes a threat of imminent death, prolonged mental harrn
must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or
suffering.  . . . we have previously concluded that prolonged
mental harm is mental harm of some lasting duration, e.g., mental harm lasting months or years,
. . . Prolonged mental harm is not simply the stress experienced in, for example, an
interrogation by state police. See id. Based on your research into the use of these methods at the
SERE school and consultation with others with experience in the field of psychology and
interrogation, you do not anticipate that any prolonged mental harm would result from the use of
the waterboard. Indeed, you have advised us that the relief is almost immediate When the cloth is
n.:moved from the nose and mouth, In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture within the meaning of the statue.”

Nevermind that the U.S. has prosecuted people for  waterboarding, and foreign soldiers were even executed for torturing using waterboarding.  I thought precedent meant something to judges.

From Overruled, below is the monster known as Judge Bybee, (and remember he was far from the only person writing these legal memos.)  His buddies are giving out a fascinating excuse for why he was forced by his philosophy to write that torture was legal.  Amazing.

The Washington Post quotes several friends of torture memo author Jay Bybee who say that Bybee feels really, really bad about the fact that he personally authorized the use of torture, and who offer various defenses of the war criminal’s character.  Among those defenses is this gem:

What I understand that to mean is, any lawyer, when he or she is writing about something very complicated, very layered, sometimes you can get it all out there and if you’re not careful, you end up in a place you never intended to go. I think for someone like Jay, who’s a formalist and a textualist, that’s a particular danger.

Formalism is the belief that the law consists of a series of rules which must be applied unwaveringly to all cases, without considering concepts like equity or substantive justice.  Textualism is a kind of formalism which says that these rules derive from the text of the law itself, and that sources outside of the text’s plain meaning should not be considered.  So Bybee’s friend is essentially saying “hey, don’t blame Jay, he didn’t want to torture people, he just couldn’t stop himself from torturing people because his formalistic philosophy didn’t allow him to say ‘no’ to torture.”

Judge Bybee should be impeached then, just for the simple reason that he’s insane, or at least possesses no common sense whatsoever.  That’s my version of informalism.  Any judge that thinks like this, adhering to some weird philosophy that the text of the law is Gospel and he can never waver from it no matter what, does not have his head planted in reality.  He’s a delusional man and needs to be removed from the bench.