Jay Bybee Suggests He Wouldn’t Recuse on Ghost Detainee Case

When Jerry Nadler asked Jay Bybee whether or not it would legal to disappear someone for three years, the Appeals Court Judge refused to answer, saying he might have to rule on such an issue.

Nadler: Let’s assume you had been asked the question, would it be legal to keep people incommunicado in solitary confinement for over 3 years with no knowledge of where they were being held, with no contact with anyone other than the interrogators for 3 years?


Nadler: I’m asking under the laws of the United States generally, is it legal or illegal in your opinion to do what I just described?

Bybee: I don’t think I can answer it. I’m very hesitant to speculate because these are the kinds of questions that may come up before my court. I don’t want to be prejudging.

So the guy whose signature set up our entire detainee abuse regime pretends, at least, that he might rule on the issue of ghost detainees as a Judge.

Anyone need any more reasons why Jay Bybee should no longer serve as an Appeals Court Judge?

  1. klynn says:

    Anyone need any more reasons why Jay Bybee should no longer serve as an Appeals Court Judge?

    Pretty much asked this question in your previous post.

  2. BoxTurtle says:

    Why limit it to appeals court judge? If he won’t recuse on this issue, I wouldn’t even want him in divorce court.

    Boxturtle (I think the reason he was appointed was so he COULD rule on this issue)

  3. JohnForde says:

    Is the problem Bybee’s recusal or simply not being able to answer such a clear legal question?

    Could any freshman law student evade this question and still pass the course?

  4. TarheelDem says:

    Impeachment. He has abused the public trust and should never hold a position of public trust again. Not even dogcatcher.

  5. phred says:

    Does the House have to initiate impeachment for federal judges? Would it be as simple as getting Nadler to bring it up for a vote?

    • bobschacht says:

      Does the House have to initiate impeachment for federal judges?

      Yes, I believe so.

      Would it be as simple as getting Nadler to bring it up for a vote?

      Ha! Nothing is ever that simple in Nancy Pelosi’s House. Nadler is certainly on the right (sub)committee. He also could have brought up impeaching Bush or Cheney for a vote. But Nancy wouldn’t let him.

      Why is Speaker Nancy Pelosi the Obstructionist in Chief?

      Bob in AZ

      • bmaz says:

        No, they most certainly will not. However, to be correct there is a mechanism where the 9th Circuit Judicial Council can refer for impeachment. The process involves filing a complaint with the Chief Judge of the circuit. If the Chief Judge finds sufficient cause the matter is referred to a specially formed committee. If that committee agrees there is cause, it is referred to the judicial council for the circuit which then imposes either censure, reprimand, temporary suspension (which actually can be rather long), and/or the transferring of cases on the judge’s docket to others on the court; if the circuit judicial conference finds impeachable conduct, the matter is referred to the US Judicial Conference headed by the Chief Justice for determination whether to make such a recommendation to the House of Representatives Judiciary Committee.

        • JasonLeopold says:

          That is great info! Thanks for explaining this. I’m going to cite that in a follow up piece on the Judiciary Committee’s decision not to impeach (after I put another story to bed) and link back to you if you don’t mind.

          • phred says:

            Sorry I didn’t get back to this yesterday, so you may not see this, but I wanted to thank you for asking the committee members about impeachment. Thanks also to bmaz for the additional info…

            And hcgorman, good luck to you! And if you need any help with embarrassing those who so richly deserve it, please let me know how I can be of service : )

          • cpapermaster says:

            Jason, bmaz,
            1. Please, let’s NOT say that the Judiciary Committee HAS DECIDED not to impeach. They MAY decide to impeach Bybee if enough pressure is brought to bear, or new information becomes available, or they grow a spine. Let’s say instead, as the New York Times did on April 19, 2009 that “Judge Jay Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him.”
            There are over a hundred thousand signatures on petitions to impeach Bybee. Many groups and prominent legal lights have called for his impeachment. Nadler could and should introduce a resolution to impeach Bybee. Any Representative could introduce that resolution. We MUST MAKE THEM DO THIS.
            2. I filed a 60-page complaint against Bybee with the Ninth Circuit in June 2009, asking them to recommend his impeachment to the House Judiciary Committee for judicial misconduct that lowers the public’s confidence in the court– the only misconduct rule I could find that applies to Bybee. Several months later Chief Judge Kozinski responded, saying that the misconduct had to have occurred while Bybee was a judge. I appealed that ruling on the basis that the misconduct rules don’t mention that requirement anywhere, whereupon the Judicial Council responded that they agreed with Kozinski’s ruling. David Swanon posted the complaint, I believe. I can send it to you if you wish.
            3. However, Kozinski’s stance appears to be the standard; from the blog at http://yglesias.thinkprogress.org/2009/04/jay_bybee/:”The U.S. Judicial Conference can only bring disciplinary actions for conduct that occurred on the bench, said Arthur Hellman, a University of Pittsburgh School of Law professor”.
            4. Finally, from the same blog:”Thus, short of criminal charges, impeachment is likely the only available domestic remedy for Bybee’s critics, and the political will for Congress to undertake that process is far from certain.”
            [email protected]

        • cpapermaster says:

          bmaz, please see my comment (#15). I’d really like to know for certain if Kozinski is right that misconduct has to have occurred while on the bench in order to be considered judicial misconduct. There’s no rule stating this! Scott Horton wrote re. my complaint (see below).
          Re. recusal, in my complaint, to support my argument that Bybee hurts the 9th Circuit’s standing, I cite an instance where plaintiff’s lawyer asked Bybee to recuse himself from a police brutality case because he clearly believes in torture. He didn’t recuse himself.

          Bybee Avoids Judicial Complaint, By Scott Horton

          As head of the Justice Department’s Office of Legal Counsel, Jay Bybee issued a series of memoranda—rescinded by the Justice Department before Bush left office—purporting to legalize the torture and mistreatment of prisoners held in the war on terror. His conduct is potentially chargeable under the War Crimes Act and the Anti-Torture Act. But the Ninth Circuit doesn’t consider it worth serious consideration in the context of a judicial misconduct complaint. The Ninth Circuit’s Judicial Council has turned back a complaint directed against Judge Bybee based on his key role in crafting torture policy. The decision, issued by Judge Alex Kozinski, did not deal with the merits of the accusations leveled against Bybee, or the claim that Bybee never would have been confirmed by the Senate had it been informed of his role in the torture scandal. The complaint was “dismissed for failure to allege judicial conduct prejudicial to the effective and expeditious administration of the business of the courts” because the misconduct that was its subject occurred before Bybee became a circuit judge.

          Bybee currently remains on the bench, notwithstanding the fact that he is the subject of a criminal investigation overseas and cannot travel abroad without risking arrest and imprisonment.

          Activists seeking Bybee’s removal have one more card to play: impeachment. The record is clear that judges may be impeached and removed for crimes committed before they came on the bench. The question now passes to John Conyers and the House Judiciary Committee.

          • bmaz says:

            I think Kozinski is right. I also believe the Judiciary Committee is quite done with any thought of impeachment (if they ever had one to begin with, which I am not sure they ever really did).

  6. hcgorman says:

    Federal judges have the first say in whether they should recuse themselves but it is not the end of the story….I am not sure with an appellate judge where you take it up next but if I had a case that involved any of these issues and it was assigned to a panel with Bybee on it I would sure fight the long fight to keep him off…In fact, I would probably ask to keep him off even before I knew that he was assigned to the case. But that’s just me.
    Until we can impeach all we have is embarrassment.

  7. timbo says:

    It is not legal to “disappear” anyone for any significant length of time. Too bad he couldn’t actually answer with what the law and our own legal traditions indicate would be the correct answer. These thugs seek to change our legal system so that it only caters to the powerful and the venal, without regard to actual human dignity.