Here’s a prediction. The fallout from the release of the OLC Memos will be an impeachment inquiry into Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit, who signed the 2002 memo authorizing waterboarding and other enhanced interrogation techniques. I am not advocating Judge Bybee’s impeachment. I am merely saying that this where the political train is heading.
Put bluntly, there is no appetite in Washington to prosecute those involved in alleged torture. Every word and gesture from the President indicates that he’d like the problem to go away and leave him alone. Moreover, there is understandable unease about setting a precedent whereby officials from one Administration throw members of the prior one (of a different party) in jail over an issue that is partly based on policy disagreements. On the other hand, a decision not to prosecute those who formulated the interrogation regime leaves them unaccountable for their actions. What is the solution?
An impeachment investigation of Judge Bybee is a compromise that may prove irresistible. First, this would not involve criminal punishment. Impeachment convictions carry a maximum sentence of loss of office (in this case, removing Bybee from his judgeship) and a bar against serving in public office again. This does not sting as much as prison and hence might be a more acceptable sanction. Second, there is a substantial question about whether Bybee would have been confirmed to the Ninth Circuit had the Senate known about the memo when he was under consideration. Third, an impeachment inquiry is completely within the control of Congress (thus the President’s lukewarm views carry less weight) and can be as broad as the Legislature wants it to be. One problem with Senator Leahy’s idea of a “Truth Commission” is that this would be an ad-hoc body that would lack a clear constitutional mandate. No such issue arises with respect to an impeachment, which is a procedure specified in Article One.
Since Judge Bybee has never talked about his role at OLC, it is impossible to say whether he has committed an impeachable offense. (As a side note, one would think that the Judge will be getting a lot more recusal requests from now on. If you were representing a prisoner in California bringing an Eighth Amendment claim challenging the conditions of your confinement as “cruel and unusual”, how would you feel about having Judge Bybee on the panel?) Moreover, the downside of an impeachment proceeding is that it could well be an exercise in scapegoating, given that it would exclusively on one person and blame him for everything. But that sounds like something that Congress does.