Bybee Must Go

George W. Bush and Dick Cheney were allowed to leave office undisturbed by anything but their limited capacities for pangs of conscience over the morally repugnant treatment of terrorism detainees. The other architects of a system that violated the Constitution, the Geneva Conventions and the most basic precepts of human decency also have for the most part left the public sphere.

With one notable exception: Jay Bybee, a Bush Justice Department official who authored some of the memos that stretched the concept of acceptable maltreatment so far as to approve waterboarding — the simulated drowning of a prisoner. He is now a federal judge with lifetime tenure. He deserves to be removed.

Bybee sits on the 9th U.S. Circuit Court of Appeals, whose jurisdiction includes California and eight other Western states. Bybee exercises enormous power to decide the fate of millions of Americans — including those with claims about their treatment at the hands of law enforcement — and others with civil grievances who have no place to turn but the federal courts.

He is expected, in other words, to bring keen judgment and impartial reasoning to ensure that justice is served.

It is astonishing that someone who has proved in his memos to be so lacking in judgment and so ideologically twisted in his reasoning that he laid a blanket of legal immunity over those who wanted to torture now holds one of the most powerful and prestigious seats a lawyer can attain. It is equally remarkable — but entirely expected — that partisans already are lining up to protect Bybee on the grounds that he shouldn’t be removed from the bench for memos he wrote while he was at the Justice Department’s Office of Legal Counsel. That was then, the argument goes. This is now.

This deliberately ignores a crucial point: Had the Senate Judiciary Committee known about Bybee’s pivotal role in giving legal cover to clearly illegal — and inhumane — conduct, it is quite unlikely it would have moved his nomination forward. It is even less likely that the full Senate would have confirmed him.

To examine the Bybee confirmation process is to discover an exercise in official deception.

At the time — March 2003 — all that senators knew about the detention policies was that the Bush administration claimed it could hold suspected terrorists indefinitely and without charge, even if the suspect was an American citizen picked up on American soil. This was sufficiently controversial to provoke unease. Sen. Patrick Leahy of Vermont, then the ranking Democrat on the judiciary panel, asked Bybee about the Bush administration’s abandonment of the Geneva Conventions, the detention without charge of an American citizen — Jose Padilla — and the unusual secrecy in which the Office of Legal Counsel had begun cloaking its work. “I am concerned [about] the role he may have played in perpetuating the culture of secrecy that has enveloped the Justice Department over the past couple of years,” Leahy said.

Sens. John Edwards, D-N.C., and Russ Feingold, D-Wis., asked about the policy on “enemy combatants,” and the administration’s assertion that they could be held without charge. They wanted to know whether Bybee had a role in developing this novel legal theory, which the Supreme Court has since ruled to be unconstitutional.

To these and related questions about the administration’s terrorism policies, Bybee had the same response: He could not reveal the advice he may have given the administration. “I am obligated to keep confidential the legal advice that I provide to others in the executive branch. I cannot comment on whether or not I have provided any such advice and, if so, the substance of that advice,” he wrote.

Some of the advice Bybee would not divulge was his point-by-point approval of such interrogation “techniques” as fitting a prisoner with a collar to be used in smashing him against the wall; holding prisoners in tiny boxes; depriving them of sleep; and waterboarding, which Bybee described in a memo as “simply a controlled, acute episode” that did not induce “suffering.”

The legal advice by senior Bush officials such as Bybee was cited by President Obama as reason not to prosecute the intelligence officers who actually carried out the torture, but did so believing they were following the rules.

But what of a man who carefully constructed these odorous rules — then pointedly refused to disclose them in order to secure a federal judgeship? Should he remain a judge? Through a court spokesman, Bybee declined to comment.

If he does not resign in the interest of justice, the House should impeach him.

Marie Cocco’s e-mail address is mariecocco(at)washpost.com. © 2009, Washington Post Writers Group