Annals Of Impeachment: Oust Bybee?

Jay Bybee, a federal judge on the Ninth Circuit Court of Appeals has been criticized for his role in forumlating Bush administration torture policy. The New York Times called for his impeachement in a April 19, 2009 editorial. Official photo

The New York Times - and not the Congress or the Obama Administration - has just determined where the American torture story will go in the wake of last week's momentous turns in the tale. In one of its house editorials Sunday, the Times declared that torture-memo author Jay Bybee, now a federal appeals court judge, should be impeached for his role in formulating the Bush administration's (probably) illegal, (apparently) unsuccessful, and (certainly) odious "enhanced interrogation" rules.

"These [newly-released] memos make it clear," the Times noted, "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."

Of course the American people can "handle" an honest review of the Bush administration's torture policies and practices, whether it comes in the form of an impeachment trial for Bybee, a criminal prosecution of fellow memo-drafter John Yoo, or a "Torture Commission" christened with subpoena power by Congress. Indeed, it seems that millions of Americans are clamoring for such action. The outcry from civil libertarians and others late last week, when it became clear that the White House would not prosecute former officials over torture, was nothing short of fierce - fiercer by far than the criticism of the Obama Administration for releasing the memos in the first place.

The Times' editorial merely reflects a measure of the frustration felt this weekend by White House supporters who expected more from this administration. The problem here for the Obama Administration - and let's be frank this now is a problem for the administration - is that neither the White House nor the Justice Department seems willing or able to explain or justify the gulf between Attorney General Eric Holder's talk about the government's recommitment to the "rule of law" and President Barack Obama's talk about the need for "reflection and not retribution" against former officials who may have broken the law.

If we believe that our "rule of law" looks backward, at past conduct to determine whether it warrants "retribution" in the form of punishment, then surely Judge Bybee and Alberto Gonzales and John Yoo and Steven Bradbury and others deserve to be held accountable for the way they twisted the law to "legalize" torture. And if you believe, as the President seems to suggest, that our "rule of law" should look forward, too, then how do you argue against empanelling a blue-ribbon commission to ensure that we know how to deal with the torture issue should it be raised again in the future? Would that not be a "reflective" act?

Until the Obama administration explains that gulf it is going to continue to have problems with and pressure from critics (and friends) on the torture issue. It's an issue that goes directly to the heart of a major campaign theme - transparency - and it obviously cannot be resolved merely by releasing old, outdated memos that "no longer reflect" the views of the government. In fact, it's the power of the details contained in the memos themselves that make the administration's lack of desire to investigate, never mind prosecute, so disturbing to so many people looking for answers.

All of which brings us back to Judge Bybee. Here is a good account of what he did and did not say during his 2003 confirmation hearing for judgeship. Remember, at the time he was sworn to tell the truth to Senate Judiciary Committee members and had already penned the torture memos (the existence of which did not become public until 2004). Not only did he not share that information with the Committee - at least not on the public record - he consistently demonstrated during his hearing that he was unrepentant about the extraordinary level of secrecy employed by the White House in waging war against terrorism and downright contemptuous of Congressional oversight.

It's detestable - but not impeachable. If the Congress and the White House are going to do something about this mess, and only one thing, I hope they don't spend time and energy trying to impeach Judge Bybee. It would quickly devolve into a partisan mess the country cannot afford. That's the same reason why I have consistently argued against indictment and prosecution for these venal men and in favor of a bipartisan commission endorsed by the Administration, controlled by Congress, and filled with wise men and women who can help us both "reflect" on how we came to torture and prove our willingness going forward to adhere to the rule of law.

The Bush Administration put us in this untenable, awkward position by hiding secret policies and stretching the law beyond where it was designed to go. The Obama administration is keeping us there by praising transparency even as it takes active steps to avoid it. The torture story shouldn't end before we know the truth, the whole truth, and nothing but the truth - and the responsibility for making that happen now rests squarely with the Democrats in the White House, the Justice Department and the Congress.

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