In 2003, when he was nominated to a seat on the Ninth Circuit Court of Appeals, Bybee invoked executive privilege to avoid revealing the torture memo to the Senate Judiciary Committee. He could have discussed the memo privately with senators, almost all of whom have security clearances. But the memo's descriptions of torture are so shocking—and a bipartisan consensus of legal scholars found its legal reasoning so specious and results-oriented—that no one associated with it would have been confirmed to the federal bench. Leahy now wants Bybee back before the committee, under oath.

Leahy says the honorable solution for Bybee is resignation. Progressive groups, such as the Center for Constitutional Rights and People for the American Way, are pushing for his impeachment. Bybee's position will become more tenuous after the Justice Department's Office of Professional Responsibility (OPR) releases its report on the authors of the torture memos—which almost certainly will recommend disbarment proceedings for Bybee and his coauthor John Yoo. Yoo can continue to teach law at Berkeley even if he is disbarred. And Bybee can remain on the bench, even if he is barred from practicing law.

In the House, New York Democrat Jerrold Nadler has his own solution. "While the OPR report has not yet been released," Nadler said, "I think it is critical to stress that a finding of wrongdoing by Justice Department attorneys in authorizing the use of torture dramatically bolsters the need to appoint a special counsel…. The law requires that all people involved in torture or the authorization of torture be investigated and, if warranted, prosecuted."

Judge Bybee's memo was essential to "the authorization of torture."

Attacking the Speaker—Former Republican Speaker of the House Newt Gingrich is calling for current Speaker Nancy Pelosi to resign over the waterboarding issue. "I don't think the Speaker of the House can lie to the country on national security issues," Gingrich said. "This is really, really dangerous and is going to get a lot of people killed if we don't call a halt to it." This calculated attempt to shift responsibility for torture from Bush-Cheney to Pelosi isn't new. We first reported it here on May 15, 2008 (in "Prelude to a Prosecution"), quoting Arizona Republican Congressman Trent Franks, who argued that Pelosi was almost as responsible as George W. Bush and Dick Cheney for making torture policy—because she had been briefed on waterboarding in 2002. Darrell Issa (R-CA) joined Franks, describing Pelosi and Jane Harman (D-CA) as "knowing accomplices…to waterboarding and all the other techniques." Issa repeated the now-discredited claim that Abu Zubaydah was waterboarded "for approximately one minute." He even suggested that Pelosi might be a candidate for the blanket pardon Democrats feared Bush would extend to all the torture perps.

Their claims were based on a December 2007 Washington Post article that quoted Porter Goss, the Republican Congressman from Florida whom George W. Bush appointed to direct the CIA. (Goss's brief tenure at the agency was a disaster.) Other sources for the story were anonymous. Read carefully, the Post article was a skirmish in a much larger institutional fight over responsibility for torture, with Goss and unnamed administration sources dragging Pelosi, Harman, and Democratic Senators Jay Rockefeller (WV) and Bob Graham (FL) into the Bush-Cheney torture cabal.

Since the Republicans again went on the attack in mid-May of this year, Pelosi has done a dreadful job of vindicating herself, in particular in failing to explain what she knew and when she knew it. She did, however, make two important points at her twenty-minute press conference on May 14. "[Torture] is a policy that was conceived and implemented by the Bush administration," Pelosi said. A critical point that she failed to make: She (and House and Senate Democrats) are all calling for a bipartisan truth commission, something to which Republicans in Congress are unanimously opposed.

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