What to Do About Judge Bybee?

By Scott Horton

Jay Bybee is a judge of the United States Court of Appeals for the Ninth Circuit, which sits in San Francisco. He is also a suspected war criminal and the author, together with John Yoo, of the most infamous legal memorandum in U.S. history, the torture memo of August 1, 2002. How can a man who might be a war criminal sit on one of the nation’s most important courts? Yale Professor Bruce Ackermann presents the case for Bybee’s impeachment in Slate:

Under the Constitution, impeachment requires a finding of “high crimes and misdemeanors.” This is a high standard. Although Bybee’s opinion fails minimum tests of legal competence, he may have acted in good faith. This should protect him from conviction. But his legal distortions might also be evidence of the abdication of his fundamental legal responsibilities. Instead of engaging in a good-faith interpretation of the War Crimes Act and the Geneva Conventions, he may have merely been responding to political pressures from the White House to liberate the CIA and the military from the rule of law.

Bybee should, of course, be given a full opportunity to clarify this matter at the impeachment proceedings. But at present, his only public explanation is his extravagant appeal to executive privilege. This cannot suffice. He should be required to take personal responsibility for his actions and explain why they don’t make him into a systematic enabler of the war crimes that have disgraced America.