In an editorial published April 18, 2009, the New York Times sets forth a persuasive case for initiating impeachment proceedings against Jay Scott Bybee, currently a Judge on the Ninth Circuit Court of Appeals. Bybee is, of course, the lawyer who, serving as head of the Office of Legal Counsel (OLC), supervised the development of the sickening memoranda that provided the legal justification for the Bush/Cheney torture agenda. The Times' forthright conclusion:
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. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.
Discussion of the bases for this course of action is below.
The full text of the NYT editorial, "The Torturers’ Manifesto," available at http://www.nytimes.com/... should be accorded a full and careful reading by all. The Times correctly points out that to read the Bybee memos is to embark on a "journey into depravity," and into the perverted thinking favored by "dungeonmasters throughout history."
During his unfortunately truncated confirmation hearings, Bybee avoided any inquiry into his views on torture, and the President's power to engage in it, by stonewalling the Senate Judiciary committee's requests for his work product at OLC, and by affirmatively misrepresenting his views in his responses to written questions propounded by Committee members. (The hearings themselves were ludicrously short, due to the fact that they were scheduled for the day on which Colin Powell made his infamous pitch for war to the United Nations.) According to the LDS online publication, Meridian Magazine:
Finally on February 5, 2003, Bybee and four candidates for district court positions appeared before the Senate Judiciary Committee at a 9:00 a.m. public hearing. Since each hearing is unique with no way to precisely predict its duration or direction, the nominees were told to prepare for a lengthy day of interrogation....
Coincidently, however, the hearing was scheduled on the same day that Secretary of Defense Colin Powell testified before the United Nations about Iraq, so the interviewers were often called away from the room. What originally loomed as a long day of questioning was over by noon. Those senators who did not have a chance to query Bybee during the hearing submitted written questions to him about cases he had worked on, his opinion on specific rulings, and people he admired. His responses became part of the public record.
http://www.meridianmagazine.com/...
After the Bybee torture memos became public, of course, it became clear that Bybee would likely not have been confirmed had he been honest and forthcoming with the Judiciary Committee. As noted in a statement issued in 2004 by Senator Leahy,
Unfortunately, because of his evasiveness, we did not know about a significant part of his record – and his failure to follow the law – prior to his confirmation. Had Mr. Bybee’s role in sanctioning cruel, inhumane and degrading treatment and abandoning the rule of law been known before his confirmation, the Senate would not have accepted his promise that he would simply follow the law. His job at the Justice Department was akin to a judicial role in which he was supposed to advise the President on what the law was, not what the President wanted it to be. Mr. Bybee distorted the law to conclude what he wanted to conclude and give the President unchecked authority to authorize barbaric acts.
http://leahy.senate.gov/...
The Times sticks to the known facts of record in reaching its conclusion. To me, however, the principal advantage of impeachment proceedings is the opportunity they offer, outside the strictures understandably put in place by the Obama administration, to learn the facts we do not yet know. If proceedings were initiated, it would provide a forum -- for example, a Committee of the House of Representatives -- to formally investigate to explore the legal reasoning employed by Bybee (and others in OLC and DOJ), and to discover the precise circumstances under which these torture memos were created so soon after 9/11, and how their architects could so easily and quickly reached such shockingly wrong conclusions.
The known facts strongly suggest that Bybee traded his legal "opinions" for assurances that he would be appointed to the federal bench, which could well be reason enough, in many Senators' eyes, to impeach. These surface facts are: (1) Bybee took his job as head of OLC in November 2001, and served only until early 2003, barely more than 1 year, (2) he signed and issued the various torture memo's in January 2002 (less than 2 months after coming on board at OLC), March 2002 and August 2002, and (3) he was nominated by Bush to an appellate judgeship on May 22, 2002, only 6 months in his position at OLC and while he was right in the middle of developing his "legal" justifications for torture.
Nor does his curriculum vitae prior to taking the OLC gig suggest an overwhelming case for appointment to the tier of courts just below the Supreme Court -- although it certainly does suggest strong political connections. Essentially, the record shows that Bybee knocked around for 20 years following his graduation from Brigham Young law school in 1981, without finding an apparent permanent home or niche of his own.
After graduation, he was an associate lawyer in the D.C. office of a large law firm for 3 years, after which he went to the Justice Dept. This is a rather familiar career path in Washington, D.C. legal circles, and generally would be taken to imply a failure to make the grade to continue up the ladder at the law firm, followed by a convenient (for both the law firm and the attorney) out-placement into a Gov't position, likely with the aid of some political patron. Bybee served in the DOJ for 5 years, followed by 2 more years as counsel in the Bush/41 White House. His next 10 years were spent as a prof. of law at two different and (at the risk of offending loyal alum's) less than first-tier law schools; he left the first school after 8 years, taking a position at a new, start-up law school, again suggesting a failure to achieve tenure or similar high status, and inability to move to a more prestigious school. At both these schools, Bybee taught constitiutional law, administrative law and civil procedure, and he published articles on these subjects, which is pretty much a requirement for anyone hoping to teach law as a career.
I have not tracked down all his his articles, so maybe they reveal a superior legal intellect. In one article, written in 1982, he criticized the IRS decision to deny tax exempt status to Bob Jones University because of its racially discriminatory practices. The article reveals a clear disdain for anti-discrimination policies. In another article, he argued for repealing the 17th Amendment, which provides for the direct election of Senators.
The principal work product Bybee is known for, however, are the torture memos, and these certainly do not reflect a superior intellect, legal or otherwise. Indeed, the reasoning of the principal torture memo authored and/or signed by Bybee was repudiated and withdrawn by the OLC, even during the Bush administration, which nevertheless affirmed Bybee's bottom line. Later, under AG Holder, the entire thing was repudiated, and the OLC expressly disagreed with the memo's conclusions and provided an extensive statement of the reasons why.
So, in May 2002, on the basis of this rather unimpressive body of work to that date, Bybee was plucked from the DOJ, after toiling in his most recent gig in the Republican vineyards for only about 6 months, and selected for the bench of the 9th Circuit Court of Appeals. I am sure that, just as Bush/41 said with respect to his decision to appoint Justice Thomas, Bush/43 would say that Bybee was appointed because he was absolutely, head-and-shoulders the best available person for the job. But it would be interesting to ask Bybee, under oath, during impeachment investigatory proceedings (or otherwise), about any discussions he had with the Bush/43 White House (or maybe Cheney's office?) concerning such topics as (1) what he would do with the torture issue if given the OLC job, and (2) what might be his reward for successfully shepherding the Bush/Cheney torture agenda through the DOJ.