Impeachment of Bybee a Problem for Obama

>> Tuesday, April 21, 2009

First off, Jay Bybee deserves to lose his judgeship. The memo's he authored in favor of torture are reprehensible. This diary discusses the rationale for impeachment. Evicting Bybee from his cushy and prestigious job as a federal circuit court judge would be a great success for those who are anti-torture and pro-morality. However the successful impeachment of Bybee would present a political problem for President Obama.

The impeachment of Bybee based on a charge that the memo's he authored were a gross distortion of the law would affirm that laws were broken when the waterboarding and room 101 tactics were employed. The non-prosecution of those who relied on those memo's is not unexpected as the law protects those who rely on authoritative statements by the government on what the law is. That is why the OLC memo's were sought as CYA.

This is where the problem arises with going after Bybee and Yoo over the memos. What contact did they have with the administration regarding the torture policies? That remains the big and potentially explosive question. Were Bybee and Yoo supporting the administrations torture policies simply because they agreed with them or were they getting additional guidance from the white house?

It is very unlikely that there is any record of the white house simply telling these lawyers to find justifications for the policies. However that possibility is still a non-zero value. If a communication directing Bybee and co to find legal protection for torture does exists somewhere then that leads an investigation into the Bush white house. This is not at all what Obama seems to want. He has never been particularly supportive of a scouring of the Bush abuses committed in the area of civil liberties or detainee rights. Obama seems to be content with the "its all in the past" approach. If an investigation leads into the Bush white house you can bet that it will become the dominant story of Obama's presidency and overshadow the reforms that Obama wants to make.

It appears that the administration views all of the Bush abuses as a can of worms. The impeachment of Bybee is the possible beginning of a serious inquiry into the origination of the torture regime.

2 comments:

Transplanted Lawyer April 21, 2009 at 6:35 AM  

As I wrote last evening, I find the idea of prosecuting Yoo, Bradbury, and Bybee very troubling and the question leaves me conflicted. But is it a good reason -- a just reason -- not to prosecute because it creates political problems for those who authorize the prosecution?

The Gaucho Politico April 21, 2009 at 1:57 PM  

No its not just at all. The post is more about why its simply not going to end up happening. Pragmatism and practical concerns will be used as justifications for avoiding the prosecutions.

I think if you gave obama a choice between the energy and health care reforms and the prosecution of the torture authorizers then he is going to choose the reforms.

im less troubled with prosecuting lawyers who you can prove intentionally distorted the law to justify torture. proving the mens rea is the issue but i think it can be done.

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