Should Torture Memo Author Be Accountable

Cross post from Nan Aron on Huffington Post.


One clear message from voters in the 2008 elections was that Americans want accountability from those at the top, whether it's the President of the United States, members of Congress, or corporate CEOs.

That's one reason it's so important to have an open debate about how to hold Jay Bybee accountable for authoring a memo that gave the Bush White House permission to illegally torture detainees.

As the Washington Post reported on April 25, Bybee flew to Washington early in the Bush administration to be interviewed by then-White House counsel Alberto Gonzales for a possible opening on the Ninth Circuit Court of Appeals. Gonzales reportedly told him that while they waited for an expected retirement on that circuit, the White House would like Bybee to head up the Office of Legal Counsel in the Justice Department. That office is supposed to be the legal watchdog that gives impartial and professional analysis about whether executive orders or other actions by the administration are legal and constitutional.

In other words, Bybee knew that if he did the Bush administration's bidding he had a prestigious judgeship waiting for him. Asked to come up with some legal theory for why the administration could engage in illegal torture, Bybee complied, producing a memo that objective observers say would not be worthy of a first-year law student.

Sure enough, Bybee was then rewarded a few months later with that lifetime seat on the Ninth Circuit, with the enthusiastic support of members of the U.S. Senate.

So now come the questions that will be debated by a panel of scholars and legal experts on May 13 at the National Press Club.

Can a judge be impeached for conduct that occurred before he or she was named to the bench?
Are there consequences for the independence of the judiciary in pursuing impeachment for this conduct?

Can the public have confidence in a judge who was willing to torture the law, apparently for personal gain?

Was the memo written in good faith as Bybee's true legal analysis, or is there evidence that he knew at the time that his job was simply to reach a predetermined conclusion?

An investigation by the Justice Department's Office of Professional Responsibility into the internal process that led to the Bybee torture memo is expected to be completed soon. It may shed important light on what really went on behind closed doors.

The best remedy will have to be determined once all the facts are in, but one principle is already clear. If high-ranking officials order or produce a memo authorizing illegal activity, they must be held accountable.