As the controversy over the Bush administration's regime of detainee torture continues to fester, the fate of appeals court Judge Jay Bybee hangs in the balance. Even as the torture memo author lobbied his Nevada Congressional delegation to come to his defense, New York Republican Peter King declared, "Judge Bybee should be given a medal for what he did." And while many are calling for his impeachment and prosecution, a draft of an internal Justice Department report purportedly recommends that at most he and other Bush torture architects be disbarred.
Which is to say, for proclaiming that in George W. Bush's America, torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," Jay Bybee would be treated like Bill Clinton.
On the last full day of his tenure in the White House, President Bill Clinton signed an agreement with independent counsel Robert Ray that brought an end to the inquisition over what "the meaning of the word 'is', is." As the New York Times reported on January 20, 2001, Ray halted any prosecution over the Lewinsky affair in exchange of an admission from Clinton that "certain of my responses to questions about Ms. Lewinsky were false." In addition, Clinton paid a $25,000 fine to the Arkansas Bar Association, which revoked his law license for five years:
On Jan. 19, the last full day of his presidency, Mr. Clinton reached an agreement on the fine and suspension with Robert W. Ray, the independent counsel. Mr. Ray had been investigating whether to charge Mr. Clinton with crimes like perjury and obstruction of justice because of his sworn testimony about his relationship with a White House intern.
The agreement ended any criminal liability for Mr. Clinton in the collective matters known as Whitewater, and ended the wide-ranging, $60 million investigation that plagued Mr. Clinton and his wife, now Senator Hillary Rodham Clinton of New York, for much of their time in the White House.
The agreement also satisfied a legal effort by the Arkansas Supreme Court Committee on Professional Conduct to disbar Mr. Clinton for giving misleading testimony in the Paula Jones sexual harassment case.
Clinton's payback didn't end there. At the start of its term in October 2001, the United States Supreme Court suspended the ex-President from practicing law in its chambers. Richard Nixon, who was disbarred in New York in 1976 two years after stepping down over the Watergate scandal, resigned from the Supreme Court bar before action could be taken against him. Ultimately, Bill Clinton went the same route in November 2001, choosing to resign rather fight the suspension.
As for John Yoo and Jay Bybee, even those legal sanctions seem unlikely. As the Washington Post reported Thursday, the penalties for the 9th Circuit Court of Appeals supposedly recommended by the DOJ's Office of Professional Responsibility may prove prohibitively difficult to carry out:
Law professors and legal practitioners who have handled such cases said the difficulty of gathering witnesses and evidence could present "nearly insurmountable challenges" for state investigators who may wish to pursue a case against the lawyers, John C. Yoo and Jay S. Bybee...
Stephen Gillers, a professor of legal ethics at New York University, said state bars have no subpoena power to compel the Justice Department to make sensitive documents or key witnesses available.
The core question, Gillers said, is whether state lawyers could prove that Yoo and Bybee ran afoul of professional rules.
"The only theory on which [a case] could proceed would be if lawyers violated their duty to a client...by giving the White House an opinion in which they did not actually believe," Gillers said.
On this question, Jay Bybee left very little doubt that he was a true believer. In his one public statement on his legal reasoning which authorized potential war crimes, Bybee calmly declared "the conclusions were legally correct."
Of course, that all depends of what the meaning of the word "torture" is.