Overruled


Impeaching Jay Bybee
April 19, 2009, 7:15 pm
Filed under: Ian | Tags: , , ,

bybeeI’m pleased to see that Senator McCaskill is open to the idea of impeaching torture memo author (and now Ninth Circuit Judge) Jay Bybee and removing him from the bench.  McCaskill is one of the more conservative members of the Democratic caucus, and she is close with President Obama, so if she were to support removing Judge Bybee it would go a long way in convincing her colleagues to do the same.

Equally interesting, however, is Lindsay Graham’s response to McCaskill in the same interview.  Graham broke out what I can only assume are the approved Republican talking points on this issue: arguing that Judge Bybee should not be removed from office because doing so would be punishing Bybee for offering legal advice to his former client.

Senator Graham’s talking points are wrong for at least two reasons.  First, it seems to me that the Republican talking points ignore the unique nature of the Office of Legal Counsel.  As I’ve written about before, OLC attorneys are not like other Executive Branch officials because their job is not to advance the President’s agenda or to defend the government’s actions.  Rather, the purpose of OLC is to give neutral, disinterested opinions about what the law does or does not require.  In this sense, the relationship between an OLC attorney and the President is more like that between a judge and a litigant than it is like that between an attorney and a client.

So Bybee’s memos instructing Executive Branch members that they could exploit a captive’s fear of stinging incects by locking him in a coffin with bugs, or nearly drown that captive, or deprive him of sleep for 11 days at a time, were not simply a lawyer offering incompetent advice on how his client could comply with the law.  Rather, these memos were a total abdication of his unique role as an OLC attorney—to tell the President “no” when the law clearly and unambiguously says that what the President wants to do is illegal.

Which brings me to the second problem with Lindsay Graham’s talking points.  Even if Bybee were simply an attorney advising his client on how to commit an illegal action, his advice in this case was so impossibly bad that it is difficult to understand it as legal advice at all.  If my client informs me that he intends to murder his boss, and I provide him with detailed instructions on how to commit the murder in a way that minimizes the likelihood of his being convicted, I would not expect the courts to treat me kindly if I later claimed immunity to prosecution because I am an attorney and the murderer is my client.  The fact that I have a law license is not a defense if I am an accessory to murder, or a part of a conspiracy to commit murder.

Bybee’s case strikes me as similar.  The Federal Torture Statute prohibits U.S. officials outside of the United States from inflicting “the threat of imminent death” on another person within his custody.  Yet Bybee specifically advised the Bush Administration that they could waterboard detainees; an act which, by definintion, is intended to cause its victim to believe that they are in imminent danger of death by drowning.  In other words, it is very unlikely that Bybee was actually providing legal advice to the Bush Administration—if he was, that he should be disbarred for sheer incompetence—and far more likely that he was simply seeking to apply the patina of legitimacy which an OLC opinion provides to the Adminstration’s pre-selected policies.  He was far more an accomplice than an advisor.

So I don’t find the argument that Bybee is above the law because he was acting within an attorney/client relationship terribly compelling.  As I’ll explain in a later post, the case for removing Judge Bybee is not a slam dunk because of the precedent provided by the impeachment of Justice Samuel Chase.  But if Lindsay Graham really wants to defend Bybee’s continued presence on the federal bench, he needs to come up with better talking points.


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[…] I’ve explained before, Bybee’s justification of torture is inexcusable even under a textualist understanding of the l…, but if we take at face value the statement that textualism and formalism might lead to an […]

Pingback by No Sympathy for the Devil « Overruled

[…] you wonder what kind of legal advice Bybee is receiving.  If I was potentially on the hook for illegally authorizing the use of torture, I would much rather have potential jurors think that I was simply guilty of gross negligence, than […]

Pingback by Bybee Keeps Digging « Overruled




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