06/28/2009 05:12 am ET | Updated May 25, 2011

Second Thoughts on Cheney Indictment: Pardon Him ... And Others Too

I began having second thoughts about last week's column urging the indictment of former Vice President Dick Cheney for approving the use of water-boarding and other forms of illegal torture shortly after it was published and posted last Monday morning -- days before the Obama- Cheney back-to-back speeches last Thursday.

Just to repeat briefly why I wrote that Mr. Cheney should be indicted:

It cannot seriously be disputed that water-boarding is "torture," as that word was defined by Congress in the 1994 federal criminal prohibition against torture: conduct "specifically intended to inflict severe physical or mental pain or suffering." Nor can anyone plausibly disagree that water-boarding intentionally inflicts "serious physical and mental pain." Water-boarding was prosecuted after World War II as torture and has been notorious ever since the Inquisition.

Mr. Cheney admitted he knew about his administrating authorizing water-boarding in last Thursday's speech, pointing out it was used on "only" three terrorists. He then justified its use because it produced important intelligence information.

The former vice president cannot claim that there is partisan division over the definition of "torture" under federal criminal law. In fact, as Mr. Cheney knew in December 2004, it was the Bush-Cheney Justice Department -- both the Office of Legal Counsel (OLC) and the Criminal Division -- that repudiated the now notorious "Bybee-Yoo" OLC memo of August 2002 and reaffirmed that the plain words of the definition of torture in the 1994 Act as quoted above were still the law of the land.

We now know that there is at least circumstantial evidence that this redefinition of torture was influenced, if not ordered, by Mr. Cheney through his powerful chief of staff, David Addington.

In Thursday's speech, Mr. Cheney made no reference to the 1994 Anti-Torture Act. Wonder why. Nor did he refer to the 2004 memorandum or its specific contradiction of his defense of water-boarding because it allegedly produced valuable intelligence information. "There is no exception under the statute permitting torture to be used for a 'good reason,'" it stated categorically.

So I wrote my piece supporting the indictment of Mr. Cheney because I believed his public statements defending water-boarding constituted a challenge (I called it a "dare") to the criminal justice system, going to the heart of our country as a nation of law applicable to all in high office as well as average Americans. And I wrote last week that Mr. Cheney's public challenge needed to be answered with an indictment.

But then came my doubts about this position, fed by some friendly and constructive critics.

The one that bothered me the most was sent half-tongue-in-cheek in an email:
"Someone seems to be sending something out under your name that suggests the government should selectively prosecute only those members of a prior administration who engage in forceful public criticism."

I was selecting out Mr. Cheney for prosecution because of the content of his public speech? Me? A purist First Amendment, free-expression liberal?


The second comment came in an e-mail from a friend who asked me whether I really wanted to put the country through all the distraction and divisions and media circus that a criminal trial of a former vice president would mean.

I thought to myself: Did I really want to do that? My uncomfortable answer was, "no."

The third critique that most bothered me came in through e-mails from mostly from Republican friends, but from some Democrats as well. They asked: "What about Democrats who were briefed, albeit in classified briefings, about the water-boarding? Why are you letting them off so easily?"

There was, of course, a significant distinction between the executive branch that had the power to order "enhanced interrogation techniques" (EITS) and the leaders of the legislative branch from both parties who had been briefed about it under highly classified conditions.

But still, that was not a completely satisfactory distinction to me. Why didn't these congressional leaders who had been briefed and knew that water-boarding had been used do what Rep. Jane Harman of California, the ranking Democrat on the House Intelligence Committee, did in February 2003 after she was first briefed -- send a classified letter to the CIA and express concerns about the legal basis for these techniques?

So these were my three serious doubts about last week's column. What to do?

I still think Mr. Cheney's public dare and defiant defense of what I believe to be criminal conduct on the grounds that it worked needed public accountability under our criminal justice system. But indicting him alone now seems the wrong and unfair answer.

Then, to the rescue, came another friend -- with whom I shared my self- doubts about last week's column -- who gave me an idea that seemed to square the circle for me:

President Obama should pardon not only Mr. Cheney, but everyone else in the prior administration who approved or knew about the illegal water-boarding and other EITs and did nothing to try to stop them.

A pardon by Mr. Obama would be based on his judgment that those in the prior administration had violated the law by authorizing conduct such as water-boarding "specifically intended to inflict severe physical or mental pain or suffering," but that there were important public policy reasons not to prosecute them for their crimes.

And at the same time Mr. Obama announces these pardons, he should also acknowledge that many members of Congress, including leading Democrats, shared some responsibility (though not criminal) for what went wrong when they knew and did nothing about America using torture, contrary to law and its core values.

Such a pardon and acknowledgment would undoubtedly greatly anger the Democrats' liberal base. But it would also be consistent with Mr. Obama's oft-stated principles of looking forward, not backward, at this crucial time in American history. And, to me at least, it would be a profile in courage, as President Kennedy defined it a half-century ago -- as was, in my view, his speech to the nation Thursday striking the difficult but right balance between our commitment to civil liberties, transparency, and the rule of law vs. the need to protect America against terrorist threats.

If and when he announces the pardon of Mr. Cheney and others, Mr. Obama could even use the same words President Ford did on Sept. 8, 1974, when he announced Richard Nixon's pardon:

"My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed. My conscience tells me that only I as president have the constitutional power to firmly shut and seal this book. My conscience tells me it is my duty, not merely to proclaim domestic tranquility but to use every means that I have to insure it."

"I do believe the buck stops here, that I cannot rely upon public opinion polls to tell me what is right."

It's time to move on. But it is also time to hold people accountable to the rule of law, even if they genuinely believed for patriotic and good-faith reasons that illegal torture produced important intelligence. A pardon by Mr. Obama does both.

Lanny J. Davis, a Washington lawyer and former special counsel to President Clinton, served as a member of President George W. Bush's Privacy and Civil Liberties Oversight Board. He is the author of "Scandal: How 'Gotcha' Politics Is Destroying America."

This piece appeared in Mr. Davis' weekly column, "Purple Nation," in the Washington Times and was published on Monday, May 25, 2009.