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Think Progress

April 21, 2009

by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Benjamin Armbruster, Ali Frick, and Ryan Powers

JUSTICE

Impeach Judge Bybee

Last week, President Obama released four Bush-era Office of Legal Counsel memos that had authorized torture. "In dozens of pages of dispassionate legal prose, the methods approved by the Bush administration for extracting information from senior operatives of Al Qaeda are spelled out in careful detail -- like keeping detainees awake for up to 11 straight days, placing them in a dark, cramped box or putting insects into the box to exploit their fears," The New York Times writes. The earliest memo, from 2002, was signed by Jay Bybee, then an Assistant Attorney General and now a federal judge on the 9th Circuit Court of Appeals. Bybee's memo provided "a legal authorization for a laundry list of proposed C.I.A. interrogation techniques," including waterboarding. The techniques Bybee approved are illegal by U.S. statute and an international treaty to which the U.S. is a signatory. Bybee attempted to give legal cover to illegal acts, and thus broke the ethical, professional, and legal standards that govern lawyers. For this, Judge Jay Bybee should be impeached. The Progress Report has launched a campaign to persuade the House Judiciary Committee to initiate impeachment hearings against Bybee. Already, more than 3,000 of you have taken action. Join our effort to convince the committee to launch hearings.

WHAT BYBEE APPROVED: "[I]n the finest legalese" and with "grotesque, lawyerly logic," Bybee wrote 40 pages of justification for treatment that clearly constituted "cruel, inhuman or degrading treatment." He approved a method called "walling," which entailed slamming a detainee against a wall. Bybee claimed that "any pain experienced is not of the intensity associated with serious physical injury." He also gave a thumbs up to slapping a detainee's face as long as the interrogator took off any rings. "The facial slap does not produce pain that is difficult to endure," he insisted. And feel free to place detainees in stress positions, Bybee said: these "simply involve forcing the subject to remain in uncomfortable positions." Most notoriously, Bybee declared that waterboarding -- a technique perfected during the Spanish Inquisition that the United States later prosecuted Japanese officers for conducting against U.S. POWs -- was both legal and safe. "The waterboard…inflicts no pain or actual harm whatsoever," Bybee claimed. He said that U.S. law bans only techniques that cause "pain and suffering," a phrase "best understood as a single concept, not distinct concepts of 'pain' as distinguished from 'suffering.'" Since waterboarding causes no "pain," Bybee declares it legal. In fact, he wrote, even one separates "pain" from "suffering," waterboarding would still be acceptable: "The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering."

HOW TO IMPEACH BYBEE:
The Progress Report is asking readers to sign a petition to be sent to the House Judiciary Committee, urging it to hold hearings on Bybee. After the hearings, the Committee would draw up articles of impeachment, and pass them with a simple majority vote. From there, the articles move to the full House, which can also approve them with a simple majority. The House sends two "managers" to serve as prosecutors in the impeachment trial, conducted in the Senate if a majority agrees to move forward. It takes 67 Senators to convict -- and a conviction would remove Bybee from the bench. Calling for his impeachment in January, Yale Law professor Bruce Ackerman wrote, "[Bybee's] impeachment is not a prelude to a sweeping political vendetta. It focuses on a very particular problem: Jay Bybee may serve for decades on one of the highest courts in the land. Is his continued service consistent with his role in the systematic perpetration of war crimes?" The New York Times called for Bybee's impeachment this weekend, writing that the "memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution." "His flagrant contempt for the rule of law is utterly inconsistent with his judicial position and speaks directly to his competency to function in that office," stated the Center for Constitutional Rights. "He ought to be impeached," House Judiciary Committee member Jerry Nadler (D-NY) told the Huffington Post yesterday. "It was not an honest legal memo. It was an instruction manual on how to break the law. "Senate Judiciary Committee member Sheldon Whitehouse (D-RI) agreed that impeachment is "certainly possible." "The idea of the author of one of these memos sitting on the federal bench makes a farce of the whole legal system," wrote the Center for American Progress Action Fund's Matthew Yglesias.

A PATH TO ACCOUNTABILITY: In 2003, Bybee was nominated by President Bush and approved by the Senate to sit on the 9th Circuit Court of Appeals. During his confirmation hearing, Bybee refused to answer questions, citing executive privilege at least 20 separate times. "If the Senate had known the truth, it would have rejected him," Ackerman wrote. Launching the impeachment process would force Bybee to finally answer questions. And with the Obama administration hesitant to launch prosecutions of any kind, an impeachment hearing might be the closest thing Americans get to a full accounting of Bush's torture program. Indeed, when pressed yesterday on why Obama was refusing to hold Bush administration lawyers who authored the torture memos "accountable," White House press secretary Robert Gibbs stated simply, "The president is focused on looking forward. That's why." Looking forward, however, "it is simply obvious that, if there is no accountability when wrongdoing is exposed, future violations will not be deterred," House Judiciary Committee Chairman John Conyers (D-MI) said yesterday. Sign our petition here

UNDER THE RADAR

ENERGY -- HEARINGS ON CLEAN ENERGY BILL START TODAY: Today, the House Energy and Commerce Committee will begin four days worth of hearings on a draft of The American Clean Energy and Security Act of 2009. The bill requires utilities companies to generate 25 percent of their power from renewable sources by 2025; promotes carbon capture and sequestration for coal plants; increases incentives for electric vehicles; and requires energy savings in buildings, manufactured homes, industry, and government. Most importantly, it creates a cap-and-trade system, ensuring that carbon emissions that are 83 percent lower in 2050 than in 2005. Tomorrow, Secretaries Steven Chu (Energy) and Ray LaHood (Transportation), as well as EPA Administrator Lisa Jackson, will testify; on Thursday, Al Gore will address the panel. A wide variety of government and business leaders will also talk about green job opportunities and local steps to addressing climate change. Recent statements from GOP congressman could serve as a preview of their witnesses' views. Just this weekend, House Minority Leader John Boehner (R-OH) nonsensically declared that "it's almost comical" to think carbon dioxide emissions are dangerous, claiming that since humans exhale carbon dioxide, it could never be dangerous, no matter how large the dose. Rep. John Shimkus (R-IL) recently said the planet is "carbon-starved" and wondered, "If we decrease the use of carbon dioxide, are we not taking away plant food from the atmosphere?" Yet just last week, the EPA reported that "the case for finding that greenhouse gases in the atmosphere endanger public health and welfare is compelling and, indeed, overwhelming."

ETHICS -- NEW YORK TIMES ACKNOWLEDGES THAT HARMAN URGED THE PAPER TO HOLD WIRETAPPING ARTICLE IN 2004: Yesterday, CQ's Jeff Stein reported that in 2005 Rep. Jane Harman (D-CA) was "overheard on an NSA wiretap telling a suspected Israeli agent that she would lobby the Justice Department [to] reduce espionage-related charges against two officials of the American Israeli Public Affairs Committe." In exchange, Harman asked for help lobbying Rep. Nancy Pelosi (D-CA) to "appoint her chair of the Intelligence Committee after the 2006 elections, which the Democrats were heavily favored to win." Stein also reported that contrary to previous reports that an FBI probe into Harman had been dropped due to "lack of evidence," it was actually then-Attorney General Alberto Gonzales who intervened on Harman's behalf in mid-2005 to stop the FBI's investigation because he needed her help selling the Bush administration's warrantless wiretap program. According to Stein, Gonzales told then-CIA Director Porter Goss that Harman had helped persuade the New York Times to hold a story on the wiretapping program before the 2004 elections. In an initial statement to The Plum Line's Greg Sargent yesterday, New York Times executive editor Bill Keller said "Ms. Harman did not influence my decision. I don't recall that she even spoke to me." But in a second statement yesterday, Keller acknowledged that "Harman called Philip Taubman, then the Washington bureau chief of The Times, in October or November of 2004" and "urged that The Times not publish the article." Harman's office released a statement yesterday as well, arguing "the CQ Politics story simply recycles three year-old discredited reporting of largely unsourced material." Harman said that she "never contacted the Justice Department" about the prosecution. Harman's statement did not address whether she had "contacted anyone at the White House."

JUSTICE -- ORDER FOR BUSH TO TESTIFY IN LAWSUIT AGAINST SMU RELATED TO ACQUISITION OF LAND FOR BUSH LIBRARY: After weeks of legal battles to keep President Bush out of court, Texas district judge Martin Hoffman ruled last Friday that Bush could be deposed in a lawsuit against Southern Methodist University (SMU). The case was brought by two condominium owners near SMU who are claiming "the university bullied owners into selling without disclosing plans to build a presidential library at the site." Hoffman ruled that Bush can be deposed because he has "clearly relevant and material information about the central issues of the case," including if SMU shared building plans with him before buying the land. The plaintiffs have already received statements from Dallas businessman Ray Hunt and former White House counsel Harriet Miers. Still, Larry Friedman, the lawyer representing the condominium owners, said in response that this new development is "monumental for our case. We've been seeking transparency." Immediately following the ruling, however, Bush's lawyers said they will file a claim that the judge "abused his discretion" in ordering the former president to testify. Judge Hoffman stated in his ruling that he would not enforce the order while Bush's legal team sustained such an appeal. A sitting or former president has been called to testify in a civil court case only three times. Yet as Judge Hoffman said, "Presidents are not immune from the judicial process."


THINK FAST

The debate over health care reform is intensifying as liberals are warning their Democratic allies to resist caving. Recently, more than 70 House Democrats "warned party leaders that they will not support a broad health reform bill that does not offer consumers a government-sponsored policy, and two unions withdrew from a high-profile health coalition because it would not endorse a public plan."

A new poll released yesterday found that 67 percent of Cuban-Americans "now support the removal of all restrictions for travel to Cuba, an 18-point increase from three years ago, when the same question was asked." Despite the community's "reputation for loyalty to Republicans, the poll found widespread approval for Mr. Obama," with 67 percent having a favorable or somewhat favorable opinion of the president.

"House leaders in both parties were publicly mum" in the wake of a CQ report yesterday alleging that Rep. Jane Harman (D-CA) "engaged in a quid pro quo with a suspected Israeli agent to advance her stature in Congress." Further, "the Republican messaging machine, usually quick to churn out e-mails alerting reporters to every alleged ethical misstep by a Congressional Democrat, stayed silent on the news."

Three Bush administration lawyers who signed the OLC torture memos -- John Yoo, Jay Bybee, and Steven Bradbury -- "are the subjects of a coming report by the Justice Department’s ethics office that officials say is sharply critical of their work." The office has the "power to recommend disbarment or other professional penalties or, less likely, to refer cases for criminal prosecution."

As of 8 a.m. ET this morning, more than 3,000 of you have taken action to urge the House Judiciary Committee to begin impeachment hearings against Jay Bybee. Please join our campaign by clicking here.

CongressDaily reports that, "despite criticism of earmarks by House Republican leaders during completion of the FY09 appropriations process," many are still requesting them. Reps. Jerry Lewis (R-CA) and Bill Young (R-FL) are among those in the Republican leadership still asking for and receiving millions in earmarks.

Yesterday, Secretary of State Hillary Clinton called for the "speedy release" of Iranian-American journalist Roxana Saberi, who has been convicted of spying by a court in Tehran. Iranian Nobel Peace Prize laureate Shirin Ebadi has agreed to take up Saberi's defense, and the head of Iran's judiciary, Ayatollah Mahmoud Hashemi Shahroudi, has spoken out calling for a fair trial.

On Thursday, President Obama will meet with credit card executives "to tell them to support strict measures that curb lending abuses or face the wrath of angry consumers and a determined Congress." Lawmakers are launching efforts "to crack down on credit card companies for such practices as arbitrarily raising interest rates on existing balances...and charging interest on debt that was paid on time."

A TARP watchdog report said "the Treasury should take steps to better manage its financial-rescue effort so that taxpayer dollars are safeguarded and programs are more fraud-resistant, accountable and transparent." The report also said the total bailout price tag could reach $3 trillion "when Federal Reserve loans, Federal Deposit Insurance Corp. guarantees and private money are factored in."

And finally: George W. Bush has "gone from commander-in-chief to chief pooper-scooper." Speaking to an audience in China on Saturday, Bush recounted how he recently took his beloved Scottish terrier Barney on a walk -- and brought along his own baggies to clean up the mess. "I was picking up what I had been dodging for eight years," Bush said, "scoring laughs" from the crowd.



GOOD NEWS

Today, President Obama is expected to sign a bill expanding the AmeriCorps program which will provide more funding to help more Americans mentor children, clean up parks, or build and weatherize homes for the poor.

BLOG WATCH

THINK PROGRESS: Newt Gingrich falsely claims U.S. presidents don't "smile and greet" Russian leaders.

WONK ROOM: Steel town mayor to testify on behalf of green jobs during whirlwind week of clean energy hearings.

YGLESIAS: The United States is falling behind in the development of clean energy technology.

GLENN THRUSH: Rep. Ron Paul (R-TX) defends Texas secession as "very much an American principle."

STATE WATCH

FLORIDA: "A top House Republican will unveil legislation Tuesday that could open the door to the first oil and gas drilling off Florida's coast in decades."

NEW YORK: Gay rights groups are angry with former New York City mayor Rudy Giuliani's war on same-sex marriage.

TEXAS: State Senate goes against Gov. Rick Perry (R) on unemployment aid in the federal stimulus.

DAILY GRILL

"He's just an entertainer."
-- Rep. Todd Tiahrt (R-KS), 4/14/09, referring to right-wing radio host Rush Limbaugh

VERSUS

"The congressman believes Rush is a great leader of the conservative movement in America."
-- Tiahrt's spokesperson, 4/19/09

INTERNSHIPS

The research team that brings you The Progress Report and ThinkProgress.org needs summer interns! Click here for more information.


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