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Impeach Judge Bybee

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by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Benjamin Armbruster, Ali Frick, and Ryan Powers

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Last week, President Obama released four Bush-era Office of Legal Counsel memos that had authorized torture. "In dozens of pages of dispassionate legal prose, the methods approved by the Bush administration for extracting information from senior operatives of Al Qaeda are spelled out in careful detail -- like keeping detainees awake for up to 11 straight days, placing them in a dark, cramped box or putting insects into the box to exploit their fears," The New York Times writes. The earliest memo, from 2002, was signed by Jay Bybee, then an Assistant Attorney General and now a federal judge on the 9th Circuit Court of Appeals. Bybee's memo provided "a legal authorization for a laundry list of proposed C.I.A. interrogation techniques," including waterboarding. The techniques Bybee approved are illegal by U.S. statute and an international treaty to which the U.S. is a signatory. Bybee attempted to give legal cover to illegal acts, and thus broke the ethical, professional, and legal standards that govern lawyers. For this, Judge Jay Bybee should be impeached. The Progress Report has launched a campaign to persuade the House Judiciary Committee to initiate impeachment hearings against Bybee. Already, more than 3,000 of you have taken action. Join our effort to convince the committee to launch hearings.

WHAT BYBEE APPROVED: "[I]n the finest legalese" and with "grotesque, lawyerly logic," Bybee wrote 40 pages of justification for treatment that clearly constituted "cruel, inhuman or degrading treatment." He approved a method called "walling," which entailed slamming a detainee against a wall. Bybee claimed that "any pain experienced is not of the intensity associated with serious physical injury." He also gave a thumbs up to slapping a detainee's face as long as the interrogator took off any rings. "The facial slap does not produce pain that is difficult to endure," he insisted. And feel free to place detainees in stress positions, Bybee said: these "simply involve forcing the subject to remain in uncomfortable positions." Most notoriously, Bybee declared that waterboarding -- a technique perfected during the Spanish Inquisition that the United States later prosecuted Japanese officers for conducting against U.S. POWs -- was both legal and safe. "The waterboard...inflicts no pain or actual harm whatsoever," Bybee claimed. He said that U.S. law bans only techniques that cause "pain and suffering," a phrase "best understood as a single concept, not distinct concepts of 'pain' as distinguished from 'suffering.'" Since waterboarding causes no "pain," Bybee declares it legal. In fact, he wrote, even one separates "pain" from "suffering," waterboarding would still be acceptable: "The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering."

HOW TO IMPEACH BYBEE: The Progress Report is asking readers to sign a petition to be sent to the House Judiciary Committee, urging it to hold hearings on Bybee. After the hearings, the Committee would draw up articles of impeachment, and pass them with a simple majority vote. From there, the articles move to the full House, which can also approve them with a simple majority. The House sends two "managers" to serve as prosecutors in the impeachment trial, conducted in the Senate if a majority agrees to move forward. It takes 67 Senators to convict -- and a conviction would remove Bybee from the bench. Calling for his impeachment in January, Yale Law professor Bruce Ackerman wrote, "[Bybee's] impeachment is not a prelude to a sweeping political vendetta. It focuses on a very particular problem: Jay Bybee may serve for decades on one of the highest courts in the land. Is his continued service consistent with his role in the systematic perpetration of war crimes?" The New York Times called for Bybee's impeachment this weekend, writing that the "memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution." "His flagrant contempt for the rule of law is utterly inconsistent with his judicial position and speaks directly to his competency to function in that office," stated the Center for Constitutional Rights. "He ought to be impeached," House Judiciary Committee member Jerry Nadler (D-NY) told the Huffington Post yesterday. "It was not an honest legal memo. It was an instruction manual on how to break the law. "Senate Judiciary Committee member Sheldon Whitehouse (D-RI) agreed that impeachment is "certainly possible." "The idea of the author of one of these memos sitting on the federal bench makes a farce of the whole legal system," wrote the Center for American Progress Action Fund's Matthew Yglesias.

A PATH TO ACCOUNTABILITY: In 2003, Bybee was nominated by President Bush and approved by the Senate to sit on the 9th Circuit Court of Appeals. During his confirmation hearing, Bybee refused to answer questions, citing executive privilege at least 20 separate times. "If the Senate had known the truth, it would have rejected him," Ackerman wrote. Launching the impeachment process would force Bybee to finally answer questions. And with the Obama administration hesitant to launch prosecutions of any kind, an impeachment hearing might be the closest thing Americans get to a full accounting of Bush's torture program. Indeed, when pressed yesterday on why Obama was refusing to hold Bush administration lawyers who authored the torture memos "accountable," White House press secretary Robert Gibbs stated simply, "The president is focused on looking forward. That's why." Looking forward, however, "it is simply obvious that, if there is no accountability when wrongdoing is exposed, future violations will not be deterred," House Judiciary Committee Chairman John Conyers (D-MI) said yesterday. Sign our petition here.