While I disagree w/ the WH's decision to immunize CIA agents who carried out interrogation techniques authorized by Bush DOJ memos, I (relucantly) understand why the decision was made. I cannot, however, remotely comprehend why an author of one of the memos authorizing those techniques continues to hold a lifetime seat on a federal appellate court.
The logic behind the immunity grant is that the agents in question were acting under color of law. That logic should, accordingly, lead to investigations and prosecutions of the authors of the memos granting the agents that color of law. It should surely lead to those authors being removed from positions of trust w/i the federal govt.
Back in 2005, John Dean effectively demolished the memo that Bybee approved as AAG for the Bush Office of Legal Counsel. The high points of that demolition were:
Following Gonzales's appearance before the Senate Judiciary Committee, a panel of experts testified. The panel included former Admiral John Hutson, the head of the Navy's Judge Advocates General Corps, and Harold Koh, a former Assistant Secretary for Human Rights, who worked in the Office of Legal Counsel during the Reagan Administration. Koh, an expert in international human rights, is now the Dean of Yale Law School.
Both of these witnesses decimated Bybee's legal interpretations. For example, Dean Koh minced no words when he stated, "in my professional opinion as a law professor and a law dean, the Bybee memorandum is perhaps the most clearly legally erroneous opinion I have ever read." And he proceeded to spell out no less than "five obvious failures" within the memo.
According to Dean Koh, the memo's blatant flaws include its ignoring the existing "zero tolerance policy" on torture, and its defining torture so loosely that it would tolerate "the things that Saddam Hussein's forces did" such as "beating, pulling out a fingernail, burning with hot irons, suspension from ceiling fans" to name a few. Also, Koh noted, the memo so "grossly overreads the president's constitutional power" that, under its logic, the president could "order genocide or other kinds of acts" and neither Congress nor the courts could stop him.
Dean goes on to note that the Bybee memo expressly adopts the Nuremberg Defense:
Additionally, the memo's advice that "executive officials can escape prosecution if they are carrying out the president's orders as commander in chief" is, Koh noted, the same I-was-following-orders "defense which was rejected in Nuremberg and is at the very basis of our international criminal law." Finally, Koh noted, Bybee's memo tolerates "cruel, inhuman or degrading treatment," which is contrary to the existing law.
Anyone in a position of authority who had such a memo issued in his name has permanently forfeited his right to serve in the federal judiciary. If a federal judge wrote a memo authorizing tax evasion, drug smuggling, prostitution, or other criminal behavior before taking his/her seat on the bench, impeachment proceedings would almost certainly ensue. That same standard applies to this memo.
I guess I can live w/ not prosecuting the torturers. I might even be able to live w/ not prosecuting the authors of the memos authorizing the torture. I can't, however, live w/ one of those authors sitting on a court that's one step below the SCOTUS w/ life tenure.
Attempts to impeach W never got off the ground. Same thing goes for Cheney. Gonzo waa allowed to slither out of town before impeachment proceedings started. As distasteful as those developments were, allowing Bybee to continue to hold his judicial seat now is far more distasteful.