Congress shouldn't impeach Judge Jay Bybee.

The law, lawyers, and the court.
April 24 2009 4:57 PM

Congress Shouldn't Impeach Bybee

Much as he deserves it.

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Still, Bybee's torture memos were so reprehensible that I would give much to see him removed from office. And so I would support his impeachment if, during his confirmation hearings, he had lied about the memos. In that case, he would have obtained his office by fraud, and "during good behavior" is surely elastic enough to embrace the confirmation process. But Bybee didn't lie. The judiciary committee requested the OLC memos he wrote and approved. Bybee asserted executive privilege and refused to answer questions about his national security role in the Bush administration, but the Senate declined either to challenge that claim in court or withhold approval of his nomination pending satisfactory answers.

In his Slate piece, Ackerman implied that Bybee should be impeached because the privilege claim was unjustified. But if making overbroad claims of executive privilege were in itself a high crime or misdemeanor, every president since Nixon should have been impeached and most of their lawyers barred from ever holding federal office.

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Finally, even if the Constitution could be stretched to accommodate Bybee's impeachment, Congress has, I think, forfeited its moral authority to proceed. Ackerman asserts that Bybee should be impeached for concealing the torture memos because, had the Senate "known the truth, it would have rejected him."

But by March 2003, the administration's blessing of abusive interrogations was not an executive branch secret. In 2002, the White House briefed Sens. Bob Graham and Richard Shelby and Reps. Porter Goss and Nancy Pelosi, the chairs and ranking members of the Senate and House intelligence committees. The briefings included the use of water-boarding and the fact that the Justice Department approved it. Yet when Bybee was nominated and refused to answer questions about his national security role, these four members of Congress with special knowledge said nothing.

Nor did Congress express concern about abusive interrogation in the context of other appointments. In June 2004, news broke of the existence, contents, authorship, and effect on official policy of the 2002 torture memos. But in January 2005, Alberto Gonzales, who as White House counsel requested the 2002 torture memos and collaborated on their content, was nominated to be attorney general. The Senate confirmed him 60-36.

Torturing prisoners or providing specious legal cover for doing so is a crime. But the moral, legal, and political responsibility for the American policy of torture in the Bush years is broadly shared by all those in the executive branch who urged or authorized torture, and those in Congress who winked at horrors they could and should have stopped. If the torture memos are an impeachable offense today, they were an impeachable offense when first publicly disclosed in 2004. If any impeaching was to be done, it should have been done during the long years from 2004-08, while those responsible for torture still occupied the offices that gave the power to order it.

If ordering the forms of abuse detailed in the torture memos was a crime, then let's have criminal trials of everybody directly involved, from Bybee to Bush. If prosecution is too traumatic, then let's have a truth commission. But let's reserve impeachment for its proper constitutional function of protecting the republic from those who are abusing the offices they occupy.

Frank Bowman is a law professor at the University of Missouri-Columbia.

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