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?
Ouch.
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.
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Lanny, Lanny, Lanny... what're ya thinking?
You didn't argue for the selective prosecution of Cheney because of his -- ahem -- "forceful public criticism" (read: confession to have been War Criminal-In-Chief), but rather because he decided to order the commission of war crimes and now he's bragging about it -- challenging both law enforcement and the successor administration -- from every media platform he can gain access to.
Next: The threatened "media circus."
Why is that red herring even a consideration? Do you really believe that there is a special, political class which is immune from criminal culpability and accountability, simply because they can threaten a "media circus" which makes you uncomfortable? Do you not remember that the Republicans in Congress held no such reservations about making a "media circus" -- over nothing impeachable -- yet the country continued to function just fine.
Do not be intimidated by such threats. Big crimes will always require big, distracting trials. So what? Our government, under the orders of Dick Cheney, committed torture, rape, and murder. Pardons are unacceptable.
Next: What about Democrats?
This is why a full, open, and all-encompassing investigation is required. Let the chips fall where they may. If there are Democrats in Congress who had responsibilities which they abrogated... if any are culpable or even complicit, then we need be rid of those Democrats.... immediately, if not sooner.
This really isn't as complicated as you are trying to make it.
The old everybody does so why am I being prosecuted. The refusal of Obama to presecute or follow this up in a meaningful way just shows that America has not learned and will in the future once again step hard on the world's toes. It is an America with no real morals except situational. The victim was just as gulity of provoking the crime.
Fine. Hand him over to the Hague. Our international treaties require it, and we're spared the cost.
If the president handed out pardons it would be a bigger travesty than when Ford did it.
"Proclaim domestic tranquility" indeed. As if it's something that can be.
In their use of signing statements, their contempt of congress in the matter of congressional supbeonas, in domestic wiretapping, in the fabrications they developed to mislead this country and other countries into the war in Iraq, the Bush Administration showed contempt that we cannot allow to stand and cannot excuse for
the rule of law
The Bush Administration so expanded the powers of the Presidency - so developed the Nixonian "If the President does it is not illegal" ethic, that our constitutional checks and balances are in peril.
We teeter on the edge of a gang-like democracy - or serial elected monarchy - where whoever gets elected does whatever they want - unchecked. And the "correction" comes when the other power comes to power by election - and only then. The problem with this is that both parties are very influenced by large corporate donors (although sometimes different ones) and they are left unrestrained by regime change.
This is a constiutional issue. The Democrats have been co-dependent too long and must enforce the law ... or lose it.
Are you still advising Jane Harman regarding wiretapping and, if so, don't you think you should disclose that you did so or still are?
No crime too horrific that the elite should be punished. Let's move on, forgive, forget, and prepare to repeat the past.
"some friendly and constructive critics" fed your doubts. Did they now?
Who's threatening you Lanny Davis? Or is it someone you care about or something to do with your work?
No man flips and flops as rapidly as you did and then struggles to explain twice without there being something more behind the scenes. If they're strong arming you - go for help. But don't do what you're doing. It's not the way.
And if that's not the case? Apologies. But hush now. Please.
Equating political espionage and lying about it, as Nixon did, with authorizing torture and other war crimes doesn't wash.
Advocating preemptive pardons doesn't wash. (Obama's counterpart to the Bush doctrine?)
Protecting the status quo of the Washington elite power structure doesn't wash. For the good of the country? Oh please.
America has to come out of its denial that has wrecked our economy and our character.
Don't look to the winners of this rigged game, L. Davis et. al., to provide leadership or council on this as they have long ago compromised themselves.
I think we should just open the prisons too.
We are wasting a lot of taxpayer dollars keeping people locked up who have done far less than Cheney et al. And putting the country through all those boring testimony and motions...well lets just say there are much better things we could do with our time and money.,
Amnesty for all- onward and upward !
Good point. In fact, we should just stop prosecuting ALL crimes because no domestic serial killer has EVER murdered more than a couple hundred people. The Bush regime murdered thousands upon thousands.
If Cheney ever shows up in California, he ought to be subject to the "three-strikes = prison" rule.
At least Obama isn't the only flip/flopper on Torture. He'll appreciate the company.
Apparently you do not support the enforcement of US Federal Laws?
Torture is no difference than Federal Laws on kidnapping.
Torture is a Federal Capital Crime.
Unless You advocate a dual system of justice in America, one of r the politicians and another for we common voters, You will support enforcement of Federal Laws including the law on Torture.
SIGN THE PETITION To Prosecute Them For Torture
http://ANGRYVOTERS.ORG
Over 250,000 have signed
Join them and call yourself a Patriot
.
So let's always give the "big boys" pardons
let the little peeps eat cake
Adhering to the childhood rule that if you can't say anything nice, you shouldn't say anything at all, I will only say about the writing above that I'm glad neither ink nor paper was wasted on it.
http://www.BushTruthCommission.com
Are you serious? I've been wondering lately, Lanny, why do we even have laws? Just to keep the "little people" in line?
I'm with you. I guess Lanny feels that people in power are "better" than the general public. And of course, superior people need not be governed by the same rules as their inferiors. The right wing sure knows how to play the Darwinian card when it wants to, except when it's pushing the creative design angle. You know, I think the right needs to understand that despite the United State's many faults, we attempt to be a nation ruled by laws and those laws are applicable to all citizens. If torture is illegal under international agreement, and this country signed on to that agreement, then people who authorize torture need to be prosecuted. End of story. We do this all the time with organized crime. Why is this so difficult to understand? The lawyers that made torture justifications should be disbarred, the administration that rammed through those justifications and the torturers who committed the acts should be prosecuted. Sitting in jail right now are individual soldiers who are paying for their use of torture. Why are they the only ones to pay the price? Oh, that's right...they're just stupid common people who followed orders, not smart bright powerful people who wrote those orders.
Here's my problem with this kind of reasoning:
It is OK to implement and justify torture, and in some cases sodomy and death! Yet when someone smokes some cannabis or consumes another illicit drug in a non-violent manner, it appears to be OK to throw them in jail, and in some cases incarcerate them for decades. Essentially ruining there lives. That is OK... right?
Apparently America is no longer a land of justice. When an individual can be imprisoned at taxpayer's expense for using marijuana, and yet, our government officials abuse their power and commit War Crimes we are supposed to pardon them and look forward? This will be my new defense should I ever commit a crime... no matter how petty or horrendous! Is there really any justice in that?
Perhaps if our system was more equitable in the way we dispense sentencing and crimes I would be more sympathetic. However, it appears that drugs are a far greater scourge than torture and death. I can't, for the life of me, see the morality and justness in this skewed and EVIL logic!
Even worse. According to the laws on the books in the state of California, if you are ticketed for jaywalking three times you will serve a prison sentence of one year. JAYwalking!
Lanny, I still don't think this will make Hillary President, although her shot at 2012 would definitely increase.
LOL.....No wonder she lost to President Obama with one like this one !! You have got to be kidding me about pardoning Cheney/Bush and thugs, Right??? Is it Halloween already ?
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