06/08/2009 05:12 am ET | Updated May 25, 2011

The Torture of Impeachment

Next week, a panel of Deep Thinkers in Washington will consider whether Judge Jay Bybee of the U.S. Court of Appeals for the Ninth Circuit should be impeached and removed from office.

His potentially impeachable offense? Writing one of the Justice Department memoranda in 2002 that approved interrogation techniques that include waterboarding and other forms that only can be described as torture.

Now, there are some threshold problems with the Bybee impeachment scenario. First, the torture memoranda were written a year before Bybee actually became a judge, at a time when he was in charge of the Justice Department's Office of Legal Counsel.

The Senate has conducted more than a dozen impeachment trials. All have involved conduct undertaken while in federal office. Moreover, the key description of an impeachment offense in the Constitution -- "high crimes and misdemeanors" -- has always seemed to reflect some notion of abuse of the office from which the defendant may soon be ejected.

Still, this consideration is more awkward than disabling for those who dream of impeaching Judge Bybee. If a federal judge turned out to have been a serial killer before taking the bench, Congress would swiftly impeach and remove him. The question for Bybee will still come down to whether his 2002 conduct is "bad enough" to warrant impeachment. The opaque, antique language of the Constitution (high crimes and misdemeanors) makes that question a very subjective one.

Second, Bybee, by most accounts, is a pleasant person who seems (to friends) to be somewhat remorseful about the torture memorandum that he signed. Truth be told, the impeachment squad would probably prefer to take out after John Yoo, the principal draftsman of the memorandum and Bybee's deputy in 2002. Yoo still defends that memorandum without apology, insisting that the president's war power trumps any delicate sensibilities based on the requirements of the Geneva Convention on the treatment of prisoners.

But Yoo is a professor at Boalt Hall Law School at the University of California at Berkeley, beyond the reach of any would-be impeachers, so it's Bybee who ends up on the hot seat.

Three factors are likely to play a significant role in any determination of Bybee's future. First, some are troubled by evidence that the Justice Department memorandum was an after-the-fact repair job, undertaken to approve interrogation techniques that were already under way. To the extent that Bybee and Yoo knew that key fact, yet wrote a memorandum that did not disclose it, their integrity as advisers to the president will be called into question.

Also, there is the simple horror of the practices approved. A 2005 Justice Department memo reveals that one terrorism suspect was waterboarded 83 times and another 183 times. Considering that waterboarding simulates suffocation by drowning, the uninitiated wonders why a dozen or so applications of the technique might not be sufficient. More relevant to an impeachment inquiry, could not Bybee foresee the potential for abuse of the practices they were approving?

When giving advice, every lawyer has to think through the potential consequences of conduct she is saying is legal. When handing down a decision, every judge must think through how her ruling might be applied in the future. What, exactly, did Bybee expect? And how could he not foresee abuses?

Ultimately, though, the most telling question may simply be whether Bybee and Yoo genuinely and reasonably believed in the advice they were giving. Simply put, lawyers and judges will be wrong, sometimes terribly so, especially in times of national crisis.

In Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court approved the forced detention of Japanese-Americans in camps during World War II. The six-member majority included highly-respected judges venerated by liberals then and since -- William O. Douglas, Hugo Black, Felix Frankfurter, Harlan Stone, and Wiley Rutledge. Yet Korematsu has been widely reviled since Republican President Gerald Ford pronounced it wrong in 1976.

When the Supreme Court decides whether to hear a case or not, one of the common reasons not to review a decision is because it was "merely wrong" -- that is, wrong without being important.

For Bybee, some version of the merely-wrong standard should apply. Without a demonstration that his torture memorandum deceptively concealed existing practices, or knowing envisioned greater abuses than he meant to approve, Congress should move on.