Amidst the uproar over the torture memos, it’s important not to lose sight of a crucial fact: its responsible author, Jay S. Bybee, is now a federal appeals court judge.
Thus, apart from any issue of criminal prosecution, he can be impeached by the House and removed by the Senate.
This would be appropriate. Having judges declare that torture is legal does not serve as a good precedent. Perhaps more significantly, the memo’s legal analysis was so shockingly incompetent that Bybee’s successor, Jack Goldsmith, withdrew it, noting subsequently that he was appalled by its incompetence.
What’s more, DOJ’s Office of Professional Reponsibility might find that by taking orders from the White House to reach a preordained legal conclusion, Bybee violated professional ethics rules.
Regardless of the Obama Administration’s decision on prosecution, then, impeachment hearings and a Senate trial for Bybee would signal a necessary reassertion of Congresional authority and would ensure at least some minimal accountability.
Alas, emphasis there should be on the “minimal.” I would hope that the House would impeach, but Senate Republicans would clearly vote no to prevent removal.
I don’t know how the politics work on this. The Beltway media will clearly spin this as the Democrats obsessed with the past and not concerned about the supposedly grave national security implications. On the other hand, Republicans would be forced to defend an incompetent, ethically-challenged judge.
But maybe, given how unclear the politics are, it might be best to do, you know, the right thing. John Conyers should start scheduling preliminary hearings right away.