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.