The Cheney Dare: Indict Him for Complicity in Torture

I have written many times in this space that I oppose any criminal prosecution of prior-administration officials on torture or other issues relating to the Iraq War and the war on terrorism, especially those CIA interrogators who relied in good faith on the instructions of policymakers and the legal opinions issued by Justice Department senior officials.

I have agreed with President Obama on the need to look forward, not backward.

But I have changed my mind about the need to indict former Vice President Dick Cheney for complicity in illegal torture.

His insistence on putting himself on multiple TV programs and conservative radio talk shows, not only defending torture but offering the defense that it worked, has changed my mind. Not only that -- he went on to attack Mr. Obama as weakening the United States in the war on terrorism because Mr. Obama immediately announced that torture would no longer be allowed.

Dem's fighting words. They are also, in my view, reckless and irresponsible.

They seem to be laying down a marker that in case, God forbid, there is a terrorist attack, Mr. Cheney can be the first to blame it on Mr. Obama's policies and say, "I told you so."

Even more, they seem to be an in-your-face dare by Mr. Cheney to the U.S. criminal justice system: "I am Dick Cheney, I approved violations of the law in the name of the war on terror, and what are you going to do about it?"

It reminds me of Gary Hart's reaction in the early days of his 1988 presidential campaign to the rumors of his womanizing. Mr. Hart denied the charge and then dared the media to catch him. Well, they took him up on his dare (specifically, the Miami Herald did). And they caught him at least in a compromising situation that led to his withdrawal from the campaign.

So as to Mr. Cheney: I think it is time to take him up on his implicit dare and indict him for violating the 1994 federal law against torture.

Not to do so, in light of Mr. Cheney's arrogant public challenges, may reinforce the notion that Mr. Cheney can get away with lawbreaking, and be proud of it, because he is a former vice president, and because he is the tough, intimidating Dick Cheney who everyone (at least many) in the Bush administration feared.

So I think it's important to take Mr. Cheney up on his challenge, despite all the disadvantages that had led me to oppose prosecutions of the former administration.

Here is what the indictment of Mr. Cheney would look like; it's not that complicated.

First, as to the law: The 1994 federal law making torture illegal defines torture as "any act that causes severe pain or suffering, whether physical or mental, intentionally inflicted on a person for such purpose as obtaining from him or a third person information or a confession."
The two top officials at the Office of Legal Counsel -- Jay S. Bybee (who is now a judge on the 9th U.S. Circuit Court of Appeals) and John Yoo, now a professor at the University of California at Berkeley Law School -- tried in 2002 to "reinterpret" the term "severe pain" out of existence by requiring a torture victim to feel pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

But their colleagues at Justice, not only at the OLC, but also the Criminal Division, repudiated their legal gymnastics and restated the definition of torture plainly set forth in the 1994 federal law and the Convention Against Torture. For this and other reasons, both Mr. Yoo and Mr. Bybee should at the very least be investigated for ethical violations and possible disbarment.

Second, as to the facts, here is what we know or have good reason to believe:

• We know that waterboarding was intentionally used against detainees to obtain information.
• We know that waterboarding causes "severe pain or suffering." It involves strapping a man to an inclined board with his head below his feet, wrapping a cloth across his face, and pouring water into his nostrils and mouth, which convinces the victim that he faces imminent death by drowning. It has been used as torture from the Inquisition to Nazi Germany, and was prosecuted as a war crime after World War II.
• Finally, there is strong circumstantial evidence that Mr. Cheney knew waterboarding was being used against detainees, that he expressly approved its use, or that he actually directed interrogators to use it. If any of these are true, then Mr. Cheney could be guilty under U.S. laws of being a co-conspirator or an accessory to a crime.

An indictment, of course, is only an accusation of criminal conduct. Mr. Cheney must be presumed innocent until a jury of his peers finds him guilty beyond a reasonable doubt.

Many people still think, and I was among them until recently, that it would be better not to put the country through the divisive and backward-looking experience of seeing a former vice president on trial for crimes committed while in office. But given Mr. Cheney's decision to publicly attack the president on the subject, perhaps we have no choice but to take Mr. Cheney up on his challenge.

I am hoping that in the final analysis, the case of the People vs. Dick Cheney will provide all Americans with an opportunity to answer the vital question as to whether a democratic society based on moral values should defend the use of torture, even if at times it successfully obtains important information from a terrorist.

I am hoping our answer as a nation will be similar to the eloquent one provided by Israeli Supreme Court President Aharon Barak regarding the use of torture by the Israeli Security Services:

This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties.

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 article appeared in Mr. Davis's weekly column, "Purple Nation," in the Washington Times on Monday, May 18, 2009.

Comments

[Nonamnesiac]

Lanny Davis is, at best, only partially right. Indict, convict and incarcerate Cheney. In that process, we'll learn about the rest of the Unamerican, sadistic, cowardly torturers and Administration initiators of torture and we should ignore Lanny's advice regarding them and should indict, convict and incarcerate them too.

The rest of the world, and all people of honor, see the US and Obama as defenders and promoters of cowardly sadism because of Obama's efforts to block prosecutions of people who initiated and committed acts of inflicting severe physical and mental injury and pain on defenseless, unarmed, confined human beings. Right now Obama is giving a signal to people with sadistic procliviites to join the military and they may well be able to drape their cowardly, sadistic instincts to inflict severe physical and mental injury and pain on unarmed, defenseless, confined humans in the flag with no punishment.

[Jezreel]

Tomorrow, Thursday, Mr. Cheney is scheduled to present a scathing attack of President Obama's foreign and domestic policies while congratulating himself for having committed war crimes to - as he puts it- keep America safe for 7 years.

Mr. Cheney is on a one man campaign to destroy the Presidency of Barack Obama. Mr. Obama should take Mr. Cheney up on his dare. He should do the right thing and at the very least, indict Richard B. Cheney for the commission of war crimes.

President Obama is bound by law to investigate accusations of war crimes, according to the UN. Should he continue opposing an investigation into and an indictment of criminal acts by the Bush Administration, and Cheney in particular, he will, in effect become complicit in their actions.

Moreover, I believe that by failing to indict Cheney, President Obama is setting a precedent whereby a future Administration will be able to point to Gerald Ford's pardoning of Richard Nixon and Barack Obama's refusal to allow an investigation into crimes Richard Cheney admitted to perpetuating. And they will be able to argue successfully that the President and VP are above the law and the Constitution of the US.

[Jezreel]

Mr. Davis, I don't agree with you on all issues - as is the case with everyone. But on this matter, I congratulate you on your acknowledgment of the obvious - that former VP Cheney is an arrogant, egomaniac who is disdainful of the law and the democratic process.

Cheney is contemptuous of the new President and has used every opportunity to attack the Obama Administration while using the press to vindicate his own war crimes.

Your assumption, like many others, is that Cheney is focused on solely on vindicating himself of criminal acts he was not only aware of but officially sanctioned.

However, the facts paint a very different story.

Mr. Cheney's first public attack on Pres. Obama came during an interview with Politico on February 4, 2009, barely 2 weeks after the President's inauguration. In that interview Cheney accused Mr. Obama of being weak on national security and of placing the nation at risk. At that time, the so-called; Torture Memo's weren't even being discussed in the media.

After the Politico interview, the New Yorker revealed that even before Mr. Obama's inauguration, Cheney told the Israeli government- a foreign entity, that America's new President would be pro-Palestinian and should not be trusted.

[knerd]

America has missed her chance. There should have been an investigation on torture years ago when it was first uncovered. I think columns like this are part of an ever-widening self-serving circus of trying to ignore our complacency and our guilt and to distract ourselves from the real issue.

In civilized countries, war crimes have to do with criminality. And criminals need to be brought to justice to face the rule of law.

[pjburke]

"I have written many times in this space that I oppose any criminal prosecution of prior-admi­nistration officials on torture ... I have agreed with President Obama on the need to look forward, not backward."

That statement along with all similar sentiments is the admission of weakness that emboldens a bully-coward like Cheney to go on the attack. As soon as he and his cabal know that you and the rest of the witless political elites won't enforce the law as required -- required! -- for whatever reason (but none of them good or persuasive), then he believes that you are all too weak to challenge him... even though you have him and his cabal "dead to rights" for having authorized the most egregious war crimes known to man.

You idiots who are running things are inviting what they did to Iraq to be done right here if you do not roll up that cabal... and you'd better get busy before he stages that attack he's been warning about.

[BumpyKnight]

Look forward, not backward? When looking forward I really must consider that right now, there are “future Dicks Cheney”, who are now maybe in they’re 20s or so and perhaps just starting carriers. Something these future Dicks desperately need is to see the present Dick brought to justice. This may help them decide that public service is not for anyone.

[jmpurser]

Looking forward I see that I want to live in a world and a nation where justice is meted out with an even hand to high and low. So get an independent prosecutor on the job ASAP. Give him the money, staff, and authority to follow the war crimes wherever the evidence leads and get politics out of it.

[bronceye]

Didn't we lynch Hussein for torturing people? As for the CIA people who did the torturing, some folks refused or resigned rather than do it. Also, what of the "private Contractors" who profited by doing torture to human beings in the name of the country(they weren't in uniforms).

[jmpurser]

Among other things. And we shot his son down for it.

[dagdavid]

Hey, Lanny, you can't have it both ways. If you're gonna punish one, then you should punish all. Start with Cheney and work our way down.

[PuffDragon]

The United States convicted and hung Japanese soldiers for waterboarding.

I think that's good enough for draft-dodger-Dick.

[OgreDaddy]

With the power to control billions and trillions of dollars at stake,
Cheney and those who benefitted from what he has done, will stop at nothing
to protect their interests.

I'm sure his illegal wire taps resulted in "the goods" on some very
powerful people.

He also has the right wingers in the appeals courts and the Supreme court
carefully placed as his watchdogs.

[oregonideas]

dick cheney is, of course, a bully....and still a very agressive bully. As such it's virtually impossible to ignore him; doing so only encourages him and highlights your weaknesses; actions which will also encourage other bullies to "pile on." We also know that nearly all bullies are also cowards. Five draft deferrments might evidence such, especially combined with his willingness to send others to war using knowingly false information to promote that war. One might also suggest promoting and justifying torture as a governmentally supported tactic might indicate such "bullying" characteristics.

Let's be clear: Cheney is not going to stop on his own: Rush might say he "wants" President Obama to fail; Cheney is taking a far, far more active approach to promote that failure. It's time to "take on" the bully and as this article suggests Cheney's indictment would be a strong that direction.

If ever a man deserved to be termed "evil", Cheney does so. It's time to confront that evil.

[Jezreel]

Hear, hear, oregonideas.

[Genep34]

Indict - convict - imprison

[KaneandAbel]

Cheney is trying the classic defense.

Like they say, offense is the best defense. Thats what Cheney has been trying. Yes, take on his bluff. Indict him!

[nirek]

I agree that cheney should be indicted and am glad Mr. Davis has come around . We need more folks to follow the law and do the correct thing and enforce our laws. Leaders need to think about what is right and do it.

We have a lot of crooked poloticians that should be indicted.

[wsblake]

So should Bush be indicted. The concept that NO ONE is above the law is fundamental to America- without it we may as well go back to the dark days of European absolute monarchy. Americans will never regain trust in government without indictments; and the world will never again trust us.