California group presses for impeachment of judge who wrote torture memo

By Frank Davies, Mercury News

WASHINGTON — For six years, a little-known federal judge, Jay Bybee, has worked in a Las Vegas courtroom, hearing cases for the 9th U.S. Circuit Court of Appeals. Now, a furious debate over the use of torture by the Bush administration, fueled by the release of a memo written by Bybee giving legal protection to harsh interrogation tactics, has led to calls from liberal groups for his impeachment.

"He authorized illegal, unconscionable acts, and he should be held accountable," said Rick Jacobs, who chairs the Courage Campaign, a progressive grass-roots group in California. His group launched a petition drive seeking impeachment, and he hopes to spur the California Democratic Party to endorse that position at its convention this weekend in Sacramento.

Impeachment of a federal judge is the longest of long shots, but it illustrates the intense controversy in recent days over what to do about the Bush administration's interrogation methods — including simulated drowning, sleep deprivation, being slammed against walls and confinement in small boxes — used on suspected terrorists.

President Barack Obama repudiated and banned those tactics, and last week declassified several memos, including one by Bybee, to shed light "on a dark and painful chapter in our history."

As head of the Justice Department's Office of Legal Counsel, Bybee in August 2002 advised the CIA in an 18-page memo that it could use harsh tactics against Abu Zubaydah, an al-Qaida leader. The methods did not constitute torture, he found, because there was "no intent to cause severe pain or suffering" as defined by anti-torture statutes.

His approval allowed simulated drowning, or waterboarding, a practice U.S. officials maintained was torture when the Japanese military used it during World War II.

Obama has expressed a desire to put the torture issue to rest, but his release of the memos ignited a new round of controversy. Conservative critics said the release made the nation less safe and gave al-Qaida valuable information. Some Democrats said they showed the need for a special prosecutor, or truth commission, to investigate potential crimes and establish a clear public record. Obama said he is open to such an idea.

The lawyers who wrote the memos — Bybee, John Yoo and Steven Bradbury — already are the subjects of a coming report by the Justice Department's ethics office that is expected to be critical. It could recommend disbarment or other penalties.

In a debate Tuesday in Orange, Yoo, a law professor at University of California-Berkeley who is currently a visiting professor at Chapman University, defended the interrogation tactics as appropriate and constitutional in the wake of the Sept. 11, 2001, attacks.

The Oakland-born Bybee, 45, is the one memo author who holds public office — lifetime tenure as a federal appellate judge. Liberal groups say Bybee's decisions amount to severe misconduct that rises to the level of "high crimes and misdemeanors," the grounds for impeachment and removal.

Bybee wrote "an instruction manual on how to break the law," said Rep. Jerry Nadler, D-N.Y., a member of the Judiciary Committee who favors impeachment.

Senate Democrats have been more cautious. Sen. Pat Leahy, D-Vt., who chairs the Judiciary Committee, said "the decent and honorable thing for him to do would be to resign."

But Leahy and Sen. Dianne Feinstein, D-Calif., who also is on the Judiciary panel, sidestepped questions about impeachment.

"Had this been known at the time, he most likely would not have been confirmed," Feinstein told NBC. Asked about impeaching Bybee, she added, "I'm not prepared to get into that at this time."

Sen. John Ensign, R-Nev., said calls for Bybee's removal were "outrageous."

"To call for him to be impeached when he was trying to give the proper legal advice is just ridiculous. It would be like impeaching a member of Congress for voting the wrong way," he said.

Impeachment requires a majority vote in the House, leading to a trial in the Senate. Removal from office requires a two-thirds Senate vote.

Many legal experts say Bybee's actions were legally faulty, even unethical and unprofessional, but that impeachment is an extreme remedy.

Obama clearly has no interest in impeachment. White House spokesman Robert Gibbs said Wednesday that Obama was focusing on his ambitious agenda, and "the memos and their release should be a moment for us to reflect, but not a moment for retribution."

Liberal activists disagree. "It's never a distraction to hold officials accountable," Jacobs said.

Contact Frank Davies at fdavies@mercurynews.com or 202-662-8921.