Predictably, Jay Bybee, a judge on the U.S. Circuit Court of Appeals for the 9th Circuit since 2003, when he received his appointment as a payoff for doing the Bush administration's bidding by clearing the way for torture, has declined, through his high-powered Washington attorney, the invitation of Senator Patrick Leahy, Chair of the Senate Judiciary Committee, to testify voluntarily before that Committee.
So, what's next? Let's discuss.
I say "predictably," because lawyer Bybee has himself lawyered up, retaining the services of a politically well-connected Washington attorney, and there are only two circumstances under which Bybee will ever testify under oath: one is if he is awarded a grant of immunity to testify, and the other is if he decides he has to in order to keep his job. Immunity for Bybee is unthinkable. Accordingly, the only viable course open would appear to lie through the House Judiciary Committee, the body to which proposals to impeach particular individuals are typically referred. The Chair of that Committee, John Conyers, has already indicated his intention to investigate the role of Bush lawyers in developing the bogus case for torture, but has not said whether that investigation will, as to Bybee, be conducted in the context of impeachment proceedings:
House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) announced Tuesday he would hold a hearing looking into the role Bush administration lawyers played in justifying torture. Some lawyers, Conyers told the Huffington Post, were engaged in honest analysis of the law. Others, he said, were simple law breakers.
"There are some who tried to do a get-out-of-jail-free card. Obviously, there are some that that's all they were thinking," said Conyers, declining to name specific names, citing his upcoming hearings.
But he has a few in mind. "We're coming after these guys," he said.
http://www.huffingtonpost.com/...
A senior member of the Committee, Jerrold Nadler (D-NY), is less reticent, openly calling for Impeachment proceedings for Bybee:
Nadler already has said he’d push for impeachment proceedings against Bybee. Other Democratic House members and even some senators have said they are open to the idea, which was urged by the New York Times.
http://www.irnnews.com/...
Nadler's position is significant because he was apparently one of those responsible for bottling up impeachment proceedings against any Bush officials while they were in office.
Other significant pressure to commence impeachment proceedings include the successful efforts of dday and others to get a resolution, CALLING FOR THE INVESTIGATION OF JUDGE JAY BYBEE AND OTHERS FOR THEIR ROLE IN ALLOWING TORTURE AS PART OF "ENHANCED INTERROGATION," passed by the California Democratic Party. Following this action, the plan was to present the Resolution to the 6 California members of the House Judiciary Committee, as well as Speaker Pelosi, which I think we can safely assume has now been done.
The rest of us should follow the lead of the California Democrats, whether as individuals or, even better, as members of the groups we are members of. The House Judiciary Committee has certainly indicated that it intends to do something: it has, for example, stated that, after receipt of the Report of the DOJ Office of Professional Responsibility on the circumstances surrounding the creation of the Torture Memos, it will hold its own hearings on the Torture Memos, adding that, if OPR's report is further delayed, it will simply proceed in advance of its issuance. Conyers and 15 other Democrats on the Committee have also called for the appointment of a Special Prosecutor.
But there is no reason to delay the initiation of impeachment proceedings as to Bybee. No investigation of his role -- beyond what he himself may be willing to add -- is needed. There is no need to defer to a Special Prosecutor for many years while Bybee continues to issue rulings from a court only one rung below the Supreme Court. Doing so will only diffuse and dissipate whatever energy there now is behind the call for action.
Beyond the key evidence against him -- the recently-released Bybee Torture Memos themselves -- two other sets of facts and circumstances support the initiation of impeachment proceedings now.
First is the strong circumstantial link between the creation of the Memos and Bybee's appointment to the bench. Bybee was, and is, a second-rate legal talent who had spent a decade teaching at less than first-tier law schools and who had no significant scholarship to his credit; when he did make an attempt at "scholarship," he tended to write on right-wing themes; for example, he authored a law review article in which he criticized the Supreme Court’s decision striking down Colorado’s constitutional amendment barring enactment of gay rights laws, and he has written extensively on topics such as states' rights under the 9th and 10th Amendments and religious freedom. He is viewed as "an extremist who takes an overly limited view of federal power vis-à-vis the states and an overly narrow view of individual rights, particularly with regard to abortion."
Second is Bybee's stonewalling of the Senate Judiciary Committee at the time it considered Bybee's nomination to the bench, which resulted in his confirmation without any of his work on torture coming before the Committee. Had Bybee been forthcoming at the time of his confirmation, he would not have been confirmed. His duplicity during the confirmation process alone is sufficient reason to turn him out of office.
Let's briefly look at each of these reasons is some more detail.
1. The quid pro quo
Senator Leahy's invitation to Bybee to come before the Senate Judiciary Committee and testify was issued after Bybee, break ing a 6-year silence since his elevation to the bench, issued statements to the WaPo and NYT, both in his own name and through friends and supporters, purporting to express his "regret" over the manner in which his Torture Memos were applied by the Bush administration. But the friends and supporters messed up Bybee's attempt at media management by making clear, in their comments to the press, the link between Bybee's desire to be appointed to the bench and then White House Counsel Alberto "Fredo" Gonzales' desire to move forward with the illegal torture of detainees.
Bybee's friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, Guynn said, was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, "Would you be willing to take a position at the OLC first?"
http://www.washingtonpost.com/...
Bybee, it turned out was willing, and then some. He took up his post at OLC in November 2001; although he had no prior experience or expertise in the use of torture or other mixed issues of national security law ans international law and treaties, he had soon affixed his signature to memos redifining "torture" and approving the use of methods of torture long regarded as torture under both our own law and international law. He was at least a careful enough lawyer to ensure that he got his own fee in advance: the Bush administration sent his nomination as an appellate judge to the Senate on May, 22, 2002, well before Bybee signed off on his principal Torture Memo on August 1, 2002.
2. The confirmation scam
Having received the nomination of this undistinguished OLC short-timer, the Senate Judiciary Committee naturally was interested in what Bybee had been up to at OLC. What was undoubtedly Bybee's principle work during the period in question, his work justifying the use of torture, was, of course, not provided. Moreover, Bybee was the beneficiary of extremely fortunate (for him) timing: his confirmation hearing was held on the day Secretary of State Powell addressed the United Nations on the basis for the war on Iraq, and was apparently not attended by many mambers. The confirmation was primarily conducted through the submission of written questions to Bybee, which were of course not substantively answered with respect to the Torture Memos.
For some Senators, the stonewalling alone was sufficient to reject Bybee's nomination -- he was approved by the Committee by a vote of 12-6, and 19 Democrats voted against Bybee's confirmation on the Senate floor. After the Torture Memos were leaked in 2004, Senator Leahy issued a statement indicating that he would not have voted in favor of confirmation and called on him to do the "honorable" thing:
"The fact is, the Bush administration and Mr. Bybee did not tell the truth. If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," said Leahy, chairman of the Senate Judiciary Committee.
"The decent and honorable thing for him to do would be to resign. And if he is a decent and honorable person, he will resign," he said deliberately.
http://www.huffingtonpost.com/...
Further proof that putting the Torture Memos on the table would have been fatal to Bybee's nomination came when other nominees with known connections to torture justification, such as Stephen Bradbury, came before the Senate.
A full list of the members of the House Judiciary Committee, as well as other suggestions for talking points when contacting them, was previously provided by dday.
Let's put these materials to good use.