The nation’s paper of record reviews the latest batch of torture papers and reaches the fairly obvious conclusion that a thorough investigation of this disgraceful episode should start with the lawyers who betrayed their calling by sanctioning criminality. It issues the second call for the impeachment of Jay Bybee, a judge of the United States Court of Appeals for the Ninth Circuit. Considering the gravity of the issues raised by Bybee’s conduct, the call is appropriate. People may have died as a result of the lines he wrote, and the nation’s name and image were dragged in the mud.
From the founding of the republic, only thirteen judges have been impeached and only six have been removed from office by action of the senate. Virtually all of these cases involve misconduct on the bench. It is therefore widely suggested that Bybee is safe from impeachment because his misconduct occurred before he took office. But that seems an unwarrantedly narrow understanding of the impeachment power. The Constitution itself provides very little guidance on the question, only the phrase that judges hold office “during good behavior,” suggesting that “bad behavior” would be grounds for removal. Just what constitutes “bad behavior” would be for the members of Congress to determine given any particular set of circumstances.
Certainly the presumption of the appointments process is that a judicial candidate’s qualifications would be rigorously scrutinized before he is confirmed and takes office. That would support an assumption that the judge is tabula rasa, and his removal should be based only on misconduct as a judge. But what happens if notwithstanding the best efforts of senators and their staff to inquire into a candidate’s background, he clears the confirmation process with a dark secret carefully concealed?
Jay Bybee’s secret was that he had given the green light to torture, issuing a series of professionally incompetent memoranda for the purpose of inducing recalcitrant CIA agents to use techniques which have been universally understood to be torture since the Middle Ages. Bybee must have known that if these facts came out, his nomination would be over—just as his fellow torture-memo writer William J. Haynes II’s nomination to the Fourth Circuit was termed “dead on arrival.”
Now the secret’s out, and lawyers around the world are reading Bybee’s writings and expressing their disgust and anger. In Spain, moreover, Bybee has made his way onto a criminal complaint which is under study by the nation’s central criminal court, the Audiencia Nacional. So does Bybee get a free ride because he successfully hid these facts?
The answer must be “no.” As Raoul Berger noted in his essay on impeachment in the January 1974 Harper’s, impeachment was a process that developed under the English Constitution, reaching its apex during the heady days of the English Civil War. It was that constitutional legacy that the American Constitution writers seized on when they introduced the notion of “impeachment” into the American charter. The historical legacy points to offenses that are essentially political in nature, undermining the constitution and the power it allocates among various institutions. In the case of a judge, nothing could be more fundamental than conduct suggesting that he holds the rule of law in contempt.
That is plainly the case with Jay Bybee. His writings reveal a lawyer prepared to give the President whatever power he chooses to seize for himself, including the power to torture prisoners—notwithstanding the fact that this infringes the Constitution, federal criminal law, and solemn covenants of international law. If Jay Bybee leaves the territory of the United States, he faces the acute possibility of arrest and imprisonment on the soil of many other nations.
The proper next step would obviously be for Jay Bybee to resign his judgeship. But if he fails to do so, the impeachment process must be launched. Failure to do so would be an act of dereliction.
