As head of the Justice Department’s Office of Legal Counsel, Jay Bybee issued a series of memoranda—rescinded by the Justice Department before Bush left office—purporting to legalize the torture and mistreatment of prisoners held in the war on terror. His conduct is potentially chargeable under the War Crimes Act and the Anti-Torture Act. But the Ninth Circuit doesn’t consider it worth serious consideration in the context of a judicial misconduct complaint. The Ninth Circuit’s Judicial Council has turned back a complaint directed against Judge Bybee based on his key role in crafting torture policy. The decision, issued by Judge Alex Kozinski, did not deal with the merits of the accusations leveled against Bybee, or the claim that Bybee never would have been confirmed by the Senate had it been informed of his role in the torture scandal. The complaint was “dismissed for failure to allege judicial conduct prejudicial to the effective and expeditious administration of the business of the courts” because the misconduct that was its subject occurred before Bybee became a circuit judge.

Bybee currently remains on the bench, notwithstanding the fact that he is the subject of a criminal investigation overseas and cannot travel abroad without risking arrest and imprisonment.

Activists seeking Bybee’s removal have one more card to play: impeachment. The record is clear that judges may be impeached and removed for crimes committed before they came on the bench. The question now passes to John Conyers and the House Judiciary Committee.