The recent release of additional torture memos has spawned calls for the impeachment of Judge Jay Bybee, who signed several of the most egregious of those memos. The case for impeachment has been laid out ably by Prof. Bruce Ackerman (here) and by John Podesta of the Center for American Progress (here). The argument has several grounds. First, Jay Bybee would never have been confirmed as a judge on the Ninth Circuit had the Senate been aware of the memos’ existence. Second, the memos deviate from professional standards so egregiously that the public cannot be expected to have confidence in the integrity and competence of their author.
These are powerful arguments. The torture memos have been sharply condemned by Republican officials, such as Senator Lindsey Graham and former Rep. Bob Barr, and even by former Bush Administration officials, such as Bybee’s successor at OLC Jack Goldsmith. When the first torture memo was leaked the White House immediately repudiated it and in the waning days of the Administration the de facto head of OLC Steven Bradbury wrote a memo to the file condemning it and a number of additional legal opinions of the Bybee era at OLC. This broad-based record of condemnation confirms what any fair reading of the torture memo would conclude: the memo that Jay Bybee signed is far outside the standards of the legal profession. Given the braod condemnation of the torture memo, it is nearly impossible to imagine how Bybee could have been confirmed to his judgeship had the memo’s existence been disclosed to the Senate.
Nevertheless, I do not believe that this provides sufficient grounds for impeachment. (more…)
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The Ambivalent Presidency? Executive Power Under the Obama Administration
May 5, 2009The George W. Bush Administration had the most ambitious view of executive power in history. Bush sympathizers see little difference in the Obama Administration. Bush’s detractors, in some respects, agree.
The truth is probably closer to the following: The Obama Administration has cast aside some of the Bush Administration’s more audacious claims. It is still struggling, however, to find a consistent stance with regard to its philosophy of executive power.
On one hand, the Obama Administration has asserted the state secrets privilege in national security litigation. It resisted judicial review of enemy combatant detention in Afghanistan. It has pursued the Bush Administration’s Status of Forces Agreement with Iraq, even though it was never approved by Congress.
The Obama Justice Department even urged in federal court a newly expansive interpretation of the USA PATRIOT Act. If the argument prevails, it could immunize the federal government from liability under any federal law for warrantless wiretapping.
On the other hand, President Obama revoked President Bush’s obnoxious executive order on presidential records, which seemed to invent the idea of vice-presidential privilege from whole cloth and purported to allow family members of former Presidents to claim privilege in their name. He implicitly repudiated the Bush Administration’s restrictive view of the Freedom of Information Act, and famously released Bush-era OLC memoranda on torture. The Obama order on military interrogations reasserts the applicability of congressional restrictions to the conduct and conditions of military detention.
Equally telling, although arguably more obscure, are the moments in the conduct of national affairs where the Administration’s impulses seem to pull obviously in opposite directions. For example, within his first two weeks in office, President Obama pointedly revoked two Bush Administration executive orders that tightened White House oversight of regulatory policy making by executive branch agencies. In March, however, OMB Director Peter Orszag issued a memorandum reclaiming much of the authority the Obama order seemed to repudiate.
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Posted in Commentary, Executive Branch Power | 1 Comment »