A week ago, the New York Times joined the growing chorus of commenters calling for Judge Jay Bybee’s impeachment. Is impeachment really going to happen? And what should we think about the issue?
Initial caveat: I’m not a con law expert; I do think that I have an adequate understanding of the legal standards here, but I’m happy to take suggestions or clarifications on the issues.
Unless you’ve been living in a cave, you know the basic facts by now. Jay Bybee worked in the Justice Department’s Office of Legal Counsel from late 2001 to early 2003. In 2002, the OLC was asked to provide legal advice on detainee interrogation. The result was a series of memos which suggested that many actions, including waterboarding, were not be covered under the legal definition of torture. The primary author of the memos is believed to be OLC attorney John Yoo. One of the memos, authorizing certain types of actions, was signed by Bybee (and came to be known as the Bybee Memo). In early 2003, Bybee left the OLC when he was appointed to the Court of Appeals for the Ninth Circuit.
In 2004, the memos were discussed extensively and eventually posted online by the Washington Post. Several commenters stated that the legal conclusions in the memos had flimsy support, and that the memos were ex post attempts to justify existing torture policies, rather than legitimate attempts to answer legal questions ex ante. At the time, various proposals for legal or professional actions against torture memo authors (including Bybee) were discussed; nothing came of them.
Recent developments have put the issue back into the spotlight. Opinion on the memos had been shifting slowly, as the extent of the damage caused to the war effort became clear. The process picked up steam in the past year, which saw Democrats pick up control of the Presidency and both houses of Congress. In one of its first acts following the Presidential inauguration in January 2009, the OLC formally repudiated the prior memos. The Obama administration also released additional memos and details, bringing renewed attention to the issue.
First off, remember that impeachment means bringing a formal claim against an official (such as a judge); however, this just sets the trial process in motion. From there, the official must be convicted in order to be removed.
Another initial note, the law on impeachment is extremely spotty and hard to define, because there have been so few impeachments. There’s not a lot of precedent here.
The rule seems simple enough. The basic rule is that Federal judges are subject to impeachment for “treason, bribery, or other high crimes and misdemeanors.” However, this turns out to be a ambiguous in practice.
On the face of it, that description sounds like it refers to crimes. However, the standard has been interpreted much more broadly. Judges have been impeached for non-criminal reasons — insanity, drunkenness, and even disagreement with case rulings. (And I think that there are good reasons to view the standard more broadly than crime. I don’t _want_ an insane person to be permitted to continue as a judge, even if insanity isn’t a crime.)
However, those impeachment cases are two centuries old. No judge has been impeached in the past 200 years for anything but alleged criminal action, and attempts to impeach judges over the content of their opinions have not succeeded lately, and have in fact been very unpopular.
(Here, the usual alignment of politics and views on founding fathers views may be reversed. The founders clearly had no problem impeaching for all sorts of offenses; but later generations have viewed the standard more narrowly. To some extent, it is Bybee’s critics who are relying on founding-era cases, while his defenders cite later precedents.)
What are some of the relevant arguments for or against impeachment?
1. Criminal action
This is the easy one. If Bybee is convicted of a crime for his actions, then the case for impeachment immediately becomes much stronger. However, at present it appears that there is little likelihood of criminal prosecution for his actions regarding the torture memo.
2. General unfitness
Since a conviction is unlikely, many calls for impeachment have focused on the idea of general unfitness. For instance, the NYT editorial notes,
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.
That’s not a claim of criminal action, but of very very bad judgment. Similarly, in its call for impeachment, the editorial states that, “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.”
But this raises the question of whether general unfitness should be an impeachment offense. And, as noted above, this isn’t really clear. On the one hand, there are some precedents for this. On the other hand,they’re all 200 years old. In the past two centuries, impeachment has come to be equated with criminal action. An impeachment for non-criminal action would push the boundaries of impeachment law significantly. No judge has ever been impeached for legal opinions written prior to swearing in.
Impeachment seems possible on these grounds, but not particularly likely; conviction seems even less likely.
Another possible ground for impeachment is deception. Bruce Ackerman has argued that if Bybee’s participation in the creation of the memos was known at the time of his confirmation, he never would have been confirmed. Patrick Leahy has made just this argument recently, stating that “if the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed.”
It’s not clear how strong that argument is. During his confirmation hearings, Bybee claimed executive privilege for memos written while at the OLC, and he was appointed anyway. He didn’t tell any known outright lies under oath. It’s not clear that he had a duty to say more than he did.
Finally, there may be concerns with impeaching Bybee for pre-appointment actions. Frank Bowman at Slate has argued that this may violate the “during good behavior” language of Article III, because Bybee’s actions took place prior to confirmation. .
I’d say that Bybee is unlikely to be impeached and even less likely to be convicted.
However, he’s become a political lightning rod. Leahy has stated that “the decent and honorable thing for him to do would be to resign.” That may be the politically astute option, too.
Are there broader ethical or moral issues at play as well?
In 2004, Times and Seasons guest blogger Dan Burk stated, “I cannot believe that the practice of torture is acceptable to anyone who claims to be a disciple of Jesus Christ,” kicking off a lengthy discussion of whether it would ever be acceptable for a church member to legally support these kinds of actions. Those questions remain as current today as they were in 2004. It’s highly uncertain whether Bybee’s actions are consistent with LDS values. I think that there can be some room for disagreement on the topic, and he can be defended on some grounds; but it’s also true that a strong moral case can be made against Bybee. (Peggy Fletcher Stack wrote about this divide in the Salt Lake Tribune in 2004.)
What should a church member do, when asked to condone torture? At least one LDS soldier chose to kill herself rather than participate in torture. I don’t know that that’s always the answer; but there are serious problems with condoning torture. Dan Burk asked, “at what point does a Latter-Day Saint governmental official have, like Mormon of old, the moral obligation to resign his position rather than participate in the conduct of his superiors?” Five years later, that’s still the question we have to ask.