Yes We Can Impeach Jay Bybee
As we read with growing horror the most recent torture memos, knowing that there are more revelations to come, I think a lot of us are asking the question that mcjoan asked yesterday. "Now what?" How can we address this moral rot that continues to eat away at our legitimacy? What can be done? Mcjoan offers a couple suggestions.
The process by which our government came not only to torture, but through torturous logic try to convince themselves that it was legal is not just the product of evil. It's the product of excessive, unchecked power that has proven far too easy to seize, to hold, and to exercise.
And we can't allow that to happen again.
That's why, at the very least, there must be investigations. Whether through the special prosecutor that the ACLU has called for, or Senator Leahy's proposal for a commission of inquiry, America has to know how this happened, gruesome step by gruesome step. There is no other way to prevent it from happening again.
Mcjoan is right that our corroded, accountability-free zone in Washington will require an incredible amount of effort just to bring us to these steps. We need to counter the establishment pressure to move away from this evil with our own pressure, to support the rule of law, to recognize that justice delayed is justice denied, and that a failure to hold accountable these acts will result in them returning, in spades, in the future. Without this accounting, in a very real sense our democracy dies.
And there is an actual mechanism, a way to leverage grassroots anger and push the elected officials who can make these decisions, at least in one case. We can prove the desire for accountability in the country and take a systematic approach to restore democracy and the rule of law. And it starts with Jay Bybee.
As many people noted yesterday, Jay Bybee, the former head of the Office of Legal Counsel whose name appears as the author of the August 1, 2002 memo justifying and authorizing clear acts of torture by the CIA (some argue that John Yoo wrote the memo, but Bybee signed it), now works as a federal judge on the 9th Circuit Court of Appeals in San Francisco, with a lifetime appointment. He sits in judgment when we have clear evidence that his judgment is fractured. In just this particular memo, he agreed that waterboarding "constitutes the imminent threat of death" and still allowed its use. He twisted the research of sleep deprivation experts to justify the torturous delivery of harm to prisoners through this technique. He found the rationales to explain away his own legal exposure and that of his superiors, while clearly understanding these techniques to be wrong when applied by other countries.
And that's just this memo. More are expected.
One focus of scrutiny could be the period from April to August of 2002, when C.I.A. officers interrogated Abu Zubaydah before the Justice Department gave its official written endorsement of the interrogation program. According to a Justice Department inspector general’s report, F.B.I. officials who watched some of the interrogation sessions in a Thailand safe house reported that the C.I.A. interrogators had used several harsh techniques.
The Justice Department is also expected make public an internal ethics report that officials say is highly critical of top Bush lawyers who drafted the interrogation memos, including Jay S. Bybee, John C. Yoo and Steven G. Bradbury. Legal experts said there is an outside chance that the report could include referrals to state bar associations, which have the power to reprimand or disbar their members.
Because Bybee holds a lifetime appointment conferred by the Senate (by a 74-19 vote), I would argue it is the requirement of the Congress to act and right this horrific wrong. Bybee was confirmed in March 2003, well before these memos came to light. This new information alone should be grounds for an impeachment and removal of Jay Bybee from the 9th Circuit Court.
Impeachment would require a majority vote in the House, and removal would need a 2/3 vote in the trial in the Senate. I agree with Jonathan Zasloff that there are likely 34 Republicans in the Senate willing to go on record as objectively pro-torture, and thus removal would be less likely to be successful. I also agree that the Congress should be compelled to do this anyway.
Regardless of the Obama Administration's decision on prosecution, then, impeachment hearings and a Senate trial for Bybee would signal a necessary reassertion of Congresional authority and would ensure at least some minimal accountability.
Alas, emphasis there should be on the "minimal." I would hope that the House would impeach, but Senate Republicans would clearly vote no to prevent removal.
I don't know how the politics work on this. The Beltway media will clearly spin this as the Democrats obsessed with the past and not concerned about the supposedly grave national security implications. On the other hand, Republicans would be forced to defend an incompetent, ethically-challenged judge.
But maybe, given how unclear the politics are, it might be best to do, you know, the right thing. John Conyers should start scheduling preliminary hearings right away.
As it happens, the California Democratic Party can speak with one voice about this next week. Grassroots activists submitted a resolution to be decided at next week's convention in Sacramento that would call for the impeachment of Jay Bybee from the 9th Circuit. This resolution has already been accepted, UNANIMOUSLY, by the Los Angeles County Democratic Party. It can pass at the state level.
Resolutions are somewhat toothless unless used properly AFTER the fact. In the resolution (which I'll put below), it is stipulated that "a copy of this resolution with its original authorization be sent to the Office of the Speaker of the United States House of Representatives, the Chair of the House Judiciary Committee, and the Majority Leader of the United States Senate, and that copies of the signed resolution be sent to each member of the California delegation to the United States Senate and House of Representatives." California members of the HJC include Zoe Lofgren, Maxine Waters, Howard Berman, Brad Sherman, Adam Schiff and Linda Sanchez. The last five, at least, have part or all of LA County in their districts, and could be told RIGHT NOW that their local party has resolved unanimously to impeach Bybee. Should the entire state party agree, all the California members, including the Speaker of the House, and the two Senators (both of whom voted against confirming Bybee) can be told the same. And resolutions like this could spring up all over the country, increasing pressure from the bottom up for the Congress to act.
It starts next week in Sacramento. The Resolutions Committee meeting will be held at 3:00 on Friday, April 24, at the Sacramento Convention Center, 1400 J St., Sacramento, CA. If you're in the area or if you are a delegate, you can come to the meeting and advocate for the resolution. But the decision will likely be made beforehand. Only a few resolutions get out of committee and to the floor of the convention, and the others are tabled, or combined, or referred to a separate committee. We CANNOT let this happen. The ledership of the California Democratic Party needs to hear from constituents on this issue.
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I've also created a petition at Petition Online urging the CDP to pass this.
We have an opportunity to use the party apparatus to push for accountability and send it up to leaders in Washington. I urge everyone to get on board with this. Thanks.
RESOLUTION TO IMPEACH JUDGE JAY BYBEE
Passed Unanimously by LACDP, 4/14/09
Whereas, the 1st Amendment to the United States Constitution guarantees the people a right to petition the government for a redress of grievances; and,
Whereas the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment, the supreme law of the land under Article VI of our Constitution, requires the prosecution of those who authorize torture, waterboarding is torture, and both former President George W. Bush and former Vice President Richard B. Cheney have admitted to authorizing waterboarding; and,
Whereas former Assistant Attorney General, and current Federal Judge of the Court of Appeals for the Ninth Circuit Jay Bybee signed the "Bybee Memo," or "Torture Memo" of August 1, 2002, which advised the C.I.A. that "cruel, inhuman or degrading" treatment was at times allowable under U.S. law, and authored, co-authored and signed other memos on "extraordinary rendition" and "enhanced interrogation," more of which are being currently revealed to the American public as the new administration brings them to light; now,
Therefore be it resolved that the Los Angeles County Democratic Party urges that the United States House of Representatives begin impeachment proceedings against Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit, charging him with facilitating the authorization of torture while employed by the United States Department of Justice; and,
Therefore be it further resolved that a copy of this resolution with its original authorization be sent to the Office of the Speaker of the United States House of Representatives, the Chair of the House Judiciary Committee, and the Majority Leader of the United States Senate, and that copies of the signed resolution be sent to each member of the California delegation to the United States Senate and House of Representatives.