Bybee Avoids Judicial Complaint

Source: Harpers

Bybee Avoids Judicial Complaint

By Scott Horton

As head of the Justice Department’s Office of Legal Counsel, Jay Bybee issued a series of memoranda—rescinded by the Justice Department before Bush left office—purporting to legalize the torture and mistreatment of prisoners held in the war on terror. His conduct is potentially chargeable under the War Crimes Act and the Anti-Torture Act. But the Ninth Circuit doesn’t consider it worth serious consideration in the context of a judicial misconduct complaint. The Ninth Circuit’s Judicial Council has turned back a complaint directed against Judge Bybee based on his key role in crafting torture policy. The decision, issued by Judge Alex Kozinski, did not deal with the merits of the accusations leveled against Bybee, or the claim that Bybee never would have been confirmed by the Senate had it been informed of his role in the torture scandal. The complaint was “dismissed for failure to allege judicial conduct prejudicial to the effective and expeditious administration of the business of the courts” because the misconduct that was its subject occurred before Bybee became a circuit judge.

Bybee currently remains on the bench, notwithstanding the fact that he is the subject of a criminal investigation overseas and cannot travel abroad without risking arrest and imprisonment.

Activists seeking Bybee’s removal have one more card to play: impeachment. The record is clear that judges may be impeached and removed for crimes committed before they came on the bench. The question now passes to John Conyers and the House Judiciary Committee.

Read more: http://harpers.org/archive/2009/10/hbc-90005918

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http://harpers.org/media/image/blogs/misc/2009-10-09_9th_circ_discipline_complaint_bybee-dismissed.pdf

This judge is an abomination.

The precedent would be disastrous in the long run for the apolitical judiciary.

but we'll never know, will we?

That is what the precedent would be and we certainly do not want that to happen.

And a judge who is the equivalent of a Nazi Gestapo torturer should be removed from the bench - new Congress and President - or not.

You actually disagree with this?

uphold Roe for potential accessory to murder. When you attempt to criminalize opinion, you get all sorts of unintended consequences.

Prostituting the legal system to enable atrocities is a crime. It's not that difficult to discern what "opinion" is criminal, and what opinion should be protected. And in this case, it's a no-brainer.

Can you cite a USSC precedent that such an opinion is criminal? If not, it's just your opinion that it could constitute a criminal act and you won't go to jail for being wrong.

It takes an overt act to cross the line of criminality.

For example, I can lawfully hold the opinion that robbing banks is perfectly legal because I judge that the law prohibiting bank robbery is unconstitutional. I can even take out full page ads in the NYT professing that belief to the world. And if I hold that belief as an attorney, I'm a crappy one and my client could sue me for malpractice. But unless I personally act on that opinion, I have committed no crime. Nor am I criminally responsible because my client acted on shoddy advice and robbed a bank. I may go broke trying to get more clients, but I won't go to jail.

...but is this really an opinion in the sense you're describing? I think it's more like a conspiracy to carry out a crime. Bybee's role was to provide legal cover for a crime in the same sense that a "lookout" in a convenience store robbery is a participant in a crime.