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Monday, April 27, 2009

Impeaching the Torture Judge

Jay BybeeJudge Jay Bybee is lying. OK, that may not be extremely fair, but it got your attention, didn't it? The truth is that we don't know if Bybee's lying about writing a memo -- as then-assistant attorney general for the Office of Legal Counsel -- affirming the legality of the torture of suspected terrorist Abu Zubaydah. He may just be negligent. We'll have to wait and see. As is usually the case with a Bush administration scandal, we have to assume that the person at the center of it is either lying or incompetent.

The memo listed ten methods of "harsh interrogation" that could be used against Zubaydah -- including slapping, "cramped confinement," stress positions, sleep deprivation, "insects placed in a confinement box," and waterboarding. The techniques would be used "in some sort of an escalating fashion, culminating with the waterboard, though not necessarily ending with this technique." When this memo was released by the Obama administration, life got a little complicated for Judge Jay Bybee. There is now a serious movement to impeach him and remove him from the Ninth Circuit Court of Appeals.

But Bybee got some friends together to tell the Washington Post the he "regrets" signing the memo -- not writing it, mind you, but signing it. See, he didn't write this memo, he says. He just signed it. Any legal scholar will tell you that signing something doesn't mean anything -- it's just something you do. It's not like signing a document means you're in agreement with it, it just means someone pointed to a blank space and said, "sign here," which you did like a good little monkey. That's why you can break your lease at any moment -- you just signed the lease, you didn't write it, so it doesn't mean crap. You aren't responsible for anything in that lease.

Legal experts, like George Washington University Law School professor Jonathan Turley, point out that this probably isn't the most ironclad argument in the world.

"This is similar to the defense that Democrats allowed [Alberto] Gonzales to make on the first torture memo at his confirmation hearing for Attorney General, to wit, he did not read an important policy memo on the commission of a war crime, he just signed it," writes Turley. "It is the empty suit defense: I really am not to blame when I sign orders or memos because I just sign things. Bybee has not spoken directly on this matter to the public, but there are now various friends saying that he would like to repudiate the memos and even denies writing the memos."

Why did Bybee sign off on a memo he didn't really agree with? Did I mention he's now Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit -- a lifetime appointment second in importance only to the Supreme Court? That probably had something to do with it. Writes Adam Serwer, "Bybee knew he was breaking the law in allowing the use of torture, but you have to understand, he only did it because he really wanted to be a federal judge."

And it wasn't the first time that torture and Jay Bybee's signature showed up in the same memo. In 2004, the Washington Post published what's become widely known as the "Bybee Memo" [PDF], which argued that torture "may be justified" and that international law "may be unconstitutional if applied to interrogations" under Bush. In fact, it argued that the classic definition of torture -- using pain to get someone to do what you want -- wasn't actually torture. Torture had to be really, really bad.

"We conclude that for an act to constitute torture as defined [by US law], it must inflict pain that is difficult to endure," the memo reads. "Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Not that they stuck to this -- waterboarding meets even this extremely narrow definition of torture, since it impairs the bodily function of breathing to the point that the subject becomes afraid they're going to die. For the Bush administration, torture could be defined very simply -- it was that which they were not doing.

"The idea that one of the architects of this perversion of the law is now sitting on the federal bench is very troubling," says Sen. Russ Feingold. "The memos offer some of the most explicit evidence yet that Mr. Bybee and others authorized torture and they suggest that grounds for impeachment can be made."

Bybee knows the opinions in the memos are junk. That's why he running as fast as he can from ownership of them. The Washington Post piece on his "regret" over signing the newly released memo quotes him as telling friends that "the spirit of liberty has left the republic" because of what was done to prisoners like Zubaydah.

And that's real bad news for torture apologists. The person responsible for the legal opinion justifying it is now running around telling everyone that same opinion was a bunch of crap. He's trying to save his career, sure, but even the fact that his career is in danger represents a problem.

That Bybee should be impeached almost goes without saying -- he was willing to say or do anything in order to further his career. He clearly has no real interest in justice, which ought to be the primary job requirement for a federal judge. But we should be careful that he doesn't become the scapegoat, that we don't wind up punishing one man for the crimes of many. Bush's torture policy didn't begin with Jay Bybee and the scandal doesn't end there. If he is impeached, the temptation will be to drop this political hot potato and declare everything all cleared up.

But it shouldn't end there. A crime has been committed that undermines our authority on human rights and international law for decades. It has ruined our reputation as a leader in justice in the world. It will be years before we can stand up for the rule of law or the rights of man without being immediately accused of hypocrisy. This has hurt our nation in ways that will be demonstrated again and again, far into the future. It's endangered our troops in the field, by making it less likely that enemies will surrender out of fear of they'll be tortured. And it's made us less safe at home, since Bush's torture program has become a recruiting tool for terrorists.

Torture is illegal for many reasons, all of them good, and should be treated no differently than any other crime. In the US, the law should apply to all, regardless of how powerful they've become. We should make sure that the law isn't applied only to Jay Bybee.


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