Stain Removal in the Ninth Circuit: The Bybee Challenge

In December 2001, an appellate judicial panel in the state of New
York ruled that Yonkers City Court Judge Edmund G. Fitzgerald had to
step down from his bench and leave his position following his
disbarment for allegedly "misusing" $9000 in a client's account prior
to his election as a judge. In 2007, the North Carolina courts faced
something of a dilemma when state judge James Ethridge, who had been
disbarred the prior October by the North Carolina State Bar for
"swindling an older woman of her house and savings" as an attorney six
years earlier, refused to quit his judicial position. Under state law
in North Carolina, judges are required to be licensed lawyers, so Judge
Ethridge was barred from holding court or signing court orders, but he
continued to collect his salary. Only the state's Judicial Standards
Commission, or the state legislature, through an impeachment, could
remove him from his job.

Judge Bybee, who sits on the Ninth Circuit Court of Appeals in
Nevada, could eventually present the federal judicial system with a
similar dilemma. Bybee, prior to his short tenure as an Appellate Judge
which began in 2003, was assistant attorney general in the Department
of Justice's Office of Legal Counsel, where he wrote a lengthy memo for
the White House justifying the use of torture techniques such as
waterboarding, sleep deprivation, body slamming and other measures on
captives in the Bush/Cheney so-called "War" on Terror.

It is now being reported that the Justice Department is about to
release a review of the department's ethics unit, the Office of
Professional Responsibility, which will report on that memo, as well as
other memos written by Bybee's then colleagues in the Office of Legal
Counsel, John Yoo, now a professor of law at Berkeley University's law
school, and Steven Bradbury, and that the report will recommend
disbarment for the three men. That would put the matter in the hands of
the states where each man is licensed to practice law-in Bybee's case,
the state of Nevada. According to the New York Times, the
220-page internal review of Bybee's, Yoo's and Bradbury's actions as
counsel to the White House will say that they amounted to "serious
lapses of judgment" that could warrant reprimands or disbarment. (Talk
about euphemistic language! Remember, even the government admits that a
majority of those held at Guantanamo, and probably elsewhere, are
actually innocent of being terrorists or criminals of any kind, and
among those who were tortured, there have been as many as 100 deaths,
so Bybes's Yoo's and Bradbury's counsel actually led to acts of murder
at the hands of American personnel.)

What sets Bybee apart from the other two men is that after his work
in the Bush/Cheney administration, he went on to become a federal judge
with a lifetime appointment. Furthermore, unlike North Carolina, and
many other states, there is no requirement that a federal judge have a
law degree or be a lawyer , much less be a licensed one. While every
judge on the federal bench is, in fact, a lawyer in good standing with
their state bar, technically they do not have to be.

Judges in many state courts can be removed from office by the
judicial conduct committees operated by those states' supreme courts,
but federal judges can only be "disciplined" by the federal judicial
system's office of judicial conduct, not removed from office. A
disciplined judge might be prevented from hearing cases or from signing
court orders, but removal from office, under the Constitution, requires
impeachment by a majority of the House of Representatives, and
conviction by a two-thirds vote of the US Senate.

At the same time, it would likely be a huge embarrassment to the
judicial system if Judge Bybee were to be disbarred for ethical lapses
and for what the forthcoming Justice Department investigation is
reportedly calling "serious lapses of judgment," and then continued to
serve as a judge in one of the second highest courts in the land.

Prof. Deborah Rhode, director of the Center for the Legal
Profession at the Stanford University School of Law, commented, "I
would imaging that anything that would be enough to disbar you would be
enough to remove you from the bench," when asked what the impact of a
disbarment of a judge would be in the federal courts.

Certainly, if Judge Bybee were to be disbarred by the Nevada court,
there would be mounting calls for his impeachment by Congress. It is
certainly possible too, that if Bybee didn't simply resign at that
point, the House, heavily Democratic, could initiate impeachment
proceedings and that he would be impeached, since not only would he
have been disbarred and criticized strongly by the Justice Department
Office of Professional Responsibility, but his actual memo, released by
the Obama White House, has him offering legal cover for clear
violations of the US Criminal Code and the Geneva Conventions, to which
the US is a signatory.

Whether House prosecutors could convince all Senate Democrats, plus
independent Sen. Joe Lieberman (I-CT) and seven Republicans to reach
the required 67 votes needed to convict (assuming no abstentions), is
an open question.

Marjorie Cohn, a professor of law at Thomas Jefferson Law School in
San Diego, who is head of the National Lawyers Guild, notes that while
the Constitution says judges may only be removed from office by the
process of impeachment, it also says: "The Judges, both of the supreme
and inferior courts, shall hold their Offices during good Behavior."

Bybee in his 2002 memo (actually largely written by his subordinate
at the time, John Yoo, but approved and signed by Bybee), tries to
argue that what the Geneva Conventions and the US Criminal Code define
as torture-namely "cruel, inhuman or degrading treatment,"-actually is
only "torture" if it is "equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment
of bodily function, or even death," a patently absurd interpretation
since it would be impossible to imaging "degrading treatment" rising to
that level of pain. Bybee's memo went on to say that even if US
personnel did actually torture a captive, it would not be a violation
of the law or the conventions if the torturer didn't have a "specific
intent" to cause pain. Going even further, he wrote that even if the
torturer had a specific intent to cause pain, "a showing that an
individual acted with a good faith belief that his conduct would not
produce a result that the law prohibits negates specific intent."

As I wrote in an article on April 20 on this website,
Judge Bybee himself, in an opinion written in 2006, mercilessly mocked
this kind of legal sophism, saying: "The only thing we have to enforce
our judgments is the power of our words. When these words lose their
ordinary meaning-when they become so elastic that they may mean the
opposite of what they appear to mean-we cede our own right to be taken
seriously." (Amalgamated Transit Union Local 1309 v. Laidlaw Transit Services, Inc.)

It seems clear that acting as a "mob attorney" for the White House,
artfully misinterpreting a criminal statute (Sections 2340-2340A of
title 18 of the United States Code implements the provisions of the
Geneva Conventions, making them an integral part of US law) outlawing
any form of torture in order to provide legal cover for criminal
behavior by American forces and the CIA towards captives in the "War"
on Terror would meet the definition "Bad Behavior," warranting
impeachment.

Whether Democrats in Congress, who in recent years have
demonstrated an astonishing lack of courage and respect for the
Constitution, will rise to the occasion is another matter, especially
with a new Democratic president who has made it clear he is loath to
hold the prior administration to account for any of its crimes or
clearly unconstitutional behavior.

Which, of course, would leave us with the sad situation where the
federal courts would be seen having lower ethical and professional
standards than some of our state courts.