Bruce Ackerman made the case very well a couple of weeks ago in aÂ Slate articleÂ called "Impeach Jay Bybee: Why should a suspected war criminal serve as a federal judge?" Ackerman wrote:
"Jay Bybee is currently sitting on the 9th U.S. Circuit Court of Appeals in San Francisco. As assistant attorney general in President George W. Bush's Justice Department, he was responsible for the notorious torture memos that enabled the excesses at Abu Ghraib, Guantanamo, and other places. While John Yoo did most of the staff work for Bybee, Yoo was barely 35 years old -- and his memos showed it. They not only took extreme positions; they were legally incompetent, failing to consider many of the most obvious counterarguments. Bybee was 49. He was the grown-up, the seasoned jurist. He had been a law professor and had served as associate counsel to President Bush. When he was promoted to head the Justice Department's Office of Legal Counsel, he became the final judge of legal matters within the executive branch. Yet his opinion on torture was so poorly reasoned that it was repudiated by his very conservative successor, Jack Goldsmith."
Ackerman points out that when Bybee was confirmed by the Senate, his role in promoting the use of torture and other criminal acts was not known, and he absurdly claimed the right to keep his work secret. When torture teammate William Haynes was later considered for a similar appointment, the widespread use of torture had become known, and the Senate rejected him. That's the same Senate, although slightly improved by recent elections, that would have to convict Bybee in an impeachment trial.
A lot of Americans have probably never heard of Bybee, but that may help Congress members find the nerve to impeach him. Everyone in the world had heard of Bush and Cheney. And everyone SHOULD hear about Jay Bybee. PBS's Frontline echoes a common view when itÂ reports:
"The most notorious document among the memos drafted by President Bush's legal advisers as they analyzed how far the U.S. could go to extract intelligence from those captured in the war on terror is known as the 'Bybee memo.' (PDF File) Some call it the 'torture memo.' The Aug. 1, 2002, memo, sent from Assistant Attorney General Jay S. Bybee to Alberto R. Gonzales, counsel to the president, parsed the language of a 1994 statute that ratified the United Nations Convention against Torture and made the commitment of torture a crime. To be torture, the memo concluded, physical pain must be 'equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.' And inflicting that severe pain, according to the memo, must have been the 'specific intent' of the defendant to amount to a violation of the statute."
That's the part that some people have heard about. But Frontline goes on to explain:
"This very narrow definition of torture was only one part of the memo, which largely was written by Assistant Attorney General John Yoo. It also asserted that the U.S. ratification of the 1994 torture statute could be considered unconstitutional because it would interfere with the president's power as commander in chief."
Just as that memo is called the Bybee memo (there were actually two such "Bybee memos" that same August day) and Yoo may have played a role, Bybee almost certainly had a hand in various "Yoo memos" as well. The first was a September 25, 2001, memo declaring that the president has the power to make war all by himself if he's so inclined. To get the full picture of how Bybee and Yoo and their colleagues twisted our system of government beyond all recognition requires reviewing a large stack of memos. Fortunately,Â ProPublica has postedÂ them all in chronological order, including what is known of memos that have not yet been released (but which President Obama could release in accord with his professed policy of openness if he chooses).
Just take a look at the memos officially attributed to Bybee, and consider whether we can maintain any sort of legitimate government without impeaching him, and whether we want him overruling decent honest judges for the next 30 years. Bybee gave President Bush, upon request, "legal opinions" that a president can ignore international laws, that laws do not apply to various groups of people, that a president can kidnap, detain, and ship off to other lands human beings with no due process, and that Congress has no power to interfere with anything a president does.
Congress has pretty well accepted that last point. But perhaps it is not too late for Congress to start down a path of rehabilitation by daring to interfere with the actions of a desk-chair war criminal like Jay Bybee.
The Senate Armed Services Committee has already releasedÂ a reportÂ that discusses a number of Bybee's memos at length, including the two from August 1, 2002. The committee pieces together the story well enough to make clear that these memos were requested as cover by those engaged in crimes, and that the memos were used to justify criminality. When the full Senate tries Bybee following his impeachment, these words from the committee's report may be of help:
"The other OLC opinion issued on August 1, 2002 is known commonly as the Second Bybee memo. That opinion, which responded to a request from the CIA, addressed the legality of specific interrogation tactics. While the full list of techniques remains classified, a publicly released CIA document indicates that waterboarding was among those analyzed and approved. CIA Director General Michael Hayden stated in public testimony before the Senate Intelligence Committee on February 5, 2008 that waterboarding was used by the CIA. And Steven Bradbury, the current Assistant Attorney General of the OLC, testified before the House Judiciary Committee on February 14, 2008 that the CIA's use of waterboarding was 'adapted from the SERE training program.'
"Before drafting the opinions, Mr. Yoo, the Deputy Assistant Attorney General for the OLC, had met with Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, to discuss the subjects he intended to address in the opinions. In testimony before the House Judiciary Committee, Mr. Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the memos were being drafted. When asked whether he had discussed SERE techniques with Judge Gonzales, Mr. Addington, Mr. Yoo, Mr. Rizzo or other senior administration lawyers, DoD General Counsel Jim Haynes testified that he 'did discuss SERE techniques with other people in the administration.' NSC Legal Advisor John Bellinger said that 'some of the legal analyses of proposed interrogation techniques that were prepared by the Department of Justice... did refer to the psychological effects of resistance training.'
"In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released. Judge Bybee also recalled discussing detainee interrogations in a meeting with Attorney General John Ashcroft and John Yoo in late July 2002, prior to signing the OLC opinions. Mr. Bellinger, the NSC Legal Advisor, said that 'the NSC's Principals reviewed CIA's proposed program on several occasions in 2002 and 2003' and that he 'expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations.'"