Bye-Bee?

This weekend, the New York Times published an editorial calling for the impeachment of Ninth Circuit Court of Appeals Judge Jay Bybee. This followed the release last Thursday of a new batch of torture memos, including one authored by Judge Bybee. The impeachment concept subsequently caught fire, even in somewhat improbable (and near and dear) quarters. The most comprehensive analysis of why this is such a big freaking deal is here.

I am very, very hesitant to say that the legal analysis of a sitting federal judge is stupid. But for current purposes, I'll stipulate that the legal opinions presented in the memo make rocks look smart and, if set forth in a law school exam answer, could get their author kicked out of school.

But does the act of authoring the memo constitute a high crime or misdemeanor? Let's think about that for at least a couple of days. A couple of days? Yeah: take a deep breath. Assignment of criminal responsibility to the author of even a poorly reasoned and generally deficient written legal opinion is still the assignment of criminal responsibility to the author of a written legal opinion. And that's a huge deal.

But so, in the end, is torture. Some guy somewhere put it in a simple and straightforward way: The United States "does not torture people." Maybe Judge Bybee didn't get that particular memo.

Some Tea Leaves

If you want to know why it will be more or less impossible to succeed in bringing claims against U.S. government employees for based on being tortured while in U.S. custody, read Harbury v. Hayden, D.C. Cir. No. 06-5282. The case stems from U.S. meddling in Guatemala in 1992.

Key takeaway: regardless of what the law says, regardless of what the cases say, courts are going to resolve every question in favor of letting the government off the hook. Noted, as they say, without comment.