Brief notes on the legal grounds for Bybee’s impeachment

A friend asked me what the charge is under which I propose Bybee be impeached. The short version is “conspiracy to commit war crimes.” The longer version isn’t much more complicated.

The notion of high crimes and misdemeanors is fairly unclear — and, particularly, it’s not clear whether there has to be a specific criminal statute that has been violated, or if gross malfeasance of office is sufficient. The latter has certainly happened — in a position of trust and responsibility Bybee knowingly advised illegal and profoundly immoral acts. And there’s a precedent for treating deeply immoral behavior in wartime as a crime without a specific preexisting statute naming it (Nuremberg).

However, if you want a specific statute on which to hang the impeachment hat, 18 U.S.C. 2441 (war crimes) will do. Note that section (d) specifically prohibits not only committing torture but conspiring to commit torture, although that applies only to “armed conflict not of an international character.” The other relevant section incorporates the “grave breaches” of the Geneva convention, which includes the provisions against torture, and, though I’m not sure whether they explicitly include an anti-conspiracy provision, general criminal law principles are that conspiracy to do X is a crime when X is a crime.

This is enough at least to charge. Bybee will doubtless assert three defenses: 1) that the acts were not torture (or, equivalently, not severe enough to fall under the proscription of the statute), 2) that the statute does not apply because it was neither a war not an armed conflict not of international character, and c) that he isn’t guilty of conspiracy, just of giving legal advice. Obviously, I think those defenses are nonsense ( –1) bullshit, if the memos are the best legal argument for non-torture he can give, it’s all over; 2) the statute should be interpreted s.t. “war” and “armed conflict not of an international character” occupy the whole logical space, and c) see previous remarks.), but even if they’re not, there’s more than enough to send it to the Senate.


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