SIGN IN to access Harper’s Magazine
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
The chief judge of the Ninth Circuit Court of Appeals acted preemptively in an apparent effort to head off challenges to his colleague, torture lawyer turned judge Jay Bybee. On Friday, public interests groups in California filed a judicial misconduct complaint against Bybee based on his focal role in creating legal memoranda designed to protect torturers against criminal prosecution. Judge Alex Kozinski handed down a decision stating that judges of the court of appeals could not be held accountable for any crimes they may have committed before they came on the bench—at least not through the court’s own internal disciplinary mechanisms. Bybee had prepared the torture memoranda for the Department of Justice while his nomination to the federal bench was in the process of being cleared, and some critics have seen evidence of a quid pro quo arrangement under which he prepared the memoranda in order to get the appointment as a federal judge. Bybee is now the subject of a criminal investigation in the Spanish Audiencia Nacional—making him the first American federal appeals court judge to continue on the bench after becoming the subject of a criminal proceeding. John Roemer of the Daily Journal reports:(subscription required)
As pressure grows to discipline 9th U.S. Circuit Court of Appeals Judge Jay S. Bybee for drafting memos authorizing controversial interrogation practices, the circuit’s Chief Judge, Alex Kozinski, published an unusual misconduct order Wednesday that appeared to rule out any action against Bybee for activities he took before being appointed to the federal bench. The order, which doesn’t mention Bybee by name, cited a 1986 order by former Chief Judge James R. Browning considering whether federal judges can be disciplined by the federal courts for acts committed prior to their appointments to the judiciary. The short answer was no.
“The judicial branch has no constitutional role in considering the fitness of an individual to assume judicial office,” Browning wrote. “Congress noted the differing roles of the coordinate branches in relation to judicial fitness, and recognized that ‘because of the separation of powers principle established by the Constitution, these roles must remain separate.’”
The position advanced by Kozinski provides a parallel to arguments advanced by the Bush and Obama Administrations under which their operatives have complete immunity for criminal misconduct relating to the torture issue. Apparently, judges have immunity for their misconduct as well. As America’s legal system is evolving, those who exercise positions of privilege and power are not held to account for even the most serious violations of the criminal law. Accountability, it seems, is reserved strictly for the small fry.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
Estimated cost of the environmental damage caused each year by the world’s 3,000 largest companies:
Two thirds of U.S. teenagers experience uncontrollable rage.
Beekeepers began extracting 1 million honeybees living beneath the siding of a house in New York State.
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”