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.
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Yes, I agree that our government must absolutely take the challenge. Former Vice President Cheney has laid the gauntlet down and in the process made all of us feel much smaller - smaller minded, smaller characters, smaller morals. YES, as several commenters have stated, we have had other abuses of power and immoral acts done in our name throughout history, but this is one we can do something about. Many on blogs related to this issue have said how purifying the Nurenberg Trials were for Germans, especially in West Germany where they faced up to the truth of what had gone on, but to me the real heroes are the ones who risked all to do right even in the face of persecution of family and self or death. Are our principles of government - the Constitution and international laws the rule of law in our country or can they be hijacked by powerful, political leaders? Do we care if those that take an oath to uphold our laws violate it and will we hold them accountable? Will we allow evil to be done in our name in our country and stand by doing nothing? If we terrorize possibly innocent others, don't we become like terrorists ourselves?
The world of Davis must be very simple. How about first implementing all the recommendations of the 911 commission to prevent the problem from happening and establishing a 3rd party to review and enforce and investigate ethics violations of congress members. Let's do it right Lenny? Traditionally unraveling those decisions in context will take 10 to 30 years.
We can do both. Americans CAN walk and chew gum at the same time, unlike our 43rd Blunderer-In-Chief.
I certainly agree that we CAN mete out justice and put the concept of the rule of law back into practice in this country. I am markedly less sold that we WILL. Obama's obviously got no interest in doing it, and his AG doesn't look to eager about the prospect either. Only way it's gonna happen is if we the people keep on the pressure to do so.
The way the Bush Administration used the appropriations committees to bypass oversight by the intelligence committees in Congress:
http://emp
Wow. If the wusses are changing their minds, maybe the tide is turning. Let's hope so.
So tor ture should only be punished when the perpetrator keeps defending it afterwards? What nonsense.
Dick Cheney's major problem is that he was not born as a contemporary of Adolf Hitler in Germany or as a contemporary of Stalin in Russia or one of Pol Pot in Cambodia. He would have been able to live all the perverse inhuman evil he has in him if he had been in those places. As it was, he was able to pervert our nation and turn us against our traditional humane values--unless one was a Native American, African American or Mexican American. Of course, Euro-Americans in the United States have treated these peoples with a great deal of inhumanity. So maybe he just reflects that part of our history that we need to exorcise, excise and eliminate forever if we are to truly be the nation that Jefferson envisioned in the Declaration.
And one step towards that is to prosecute Bush, Cheney, Rumsfeld and all the other closet emulators of nazi-bolshevik tactics that came to power in the prior 8 years.
Cheney is not enough. Just like all those involved in Japanese or Nazi crimes against humanity received sentences, ranging from prison to death, so should those involved in the extant case. The reason is that no one involved in crimes against humanity should feel insulated from responsibility for their actions. In Cheney's case, he is almost dead as it is, so if he takes the fall for his minions, he really has little to lose, and they get off scot-free. To let that happen is to encourage people to torture as long as the order came down "from above." To what extent they may have suffered as a result of a refusal to torture may be a mitigating factor, but is not exculpatory.
To allow "just following orders" as an excuse from responsibility is to shame America and insult justice, and encourages heinous acts in the future. We cannot allow that to happen.
Someone issued the order. Who is it, and when does the trial start?
Can we skip the trial and go directly to punishment? I believe chinny pioneered that idea.
Nobody is above the law, not even Bush and Cheney.
Lets start a drive to get those indictments started.
Good for you Lanny Davis. For if we got no other accountability than Cheney - I could live with that. The head of the snake isn't enough, but it will do.
His crime is 3 fold: He spit on my constitution in the grossest and yet creepily measured display of treason in US history; He now has peddled it with the single mindedness that a Public Relations golden boy would envy so much so that he's made the word torture seem not only reasonable but downright blase to a section of the population and I can't wrap my mind around the idea that I'm an American and people like that consider themselves Americans too; He is actively undermining the new President and seeking to subvert our laws by avoiding prosecution and further endangering us. (2nd act of treason?)
I don't think I'll have any peace in my mind or my heart until I see that arrogant misshaped piece of humanity in handcuffs. (There's no legal recourse probably - but I think his daughter Liz should go with him just to protect her own children's minds from her.) I don't think our country will own itself again til we hear the bang of a gavel and "guilty". I want him behind bars.
the tide is turing and cheney needs to wash up ashore.. your comments are on target freesia, not only does he need to be behind bars..my thoughts would be to make him Pay...lite
Cheryl, you just mentioned something I hadn't considered. He did, and is still, making money from that war he started by wagging the dog. That's why he and his didn't allow the Anbar Awakening in 2004 - they needed it to go on and probably pitched a hissy fit in private that they couldn't postpone it any more. So much more money to make.
But I hadn't considered that he's still invested in and reaping benefits from those investments. I guess that's why he has so much free time to troll the news programs. They need to take his passport so he can't run off with his money. And someone (is there a journalist in the house?) needs to eyeball his financial records. There's a lot of money to be made from war and fear. Surely no one with a brain thought he did all this for some misguided idea of patriotism? Follow the money.
The only way to guarantee that a precedent hasn't been set is to get busy now and set a counterprecedent.
Excellent argument. I couldn't agree more.
The ONLY way we can move forward as a country, and as a society, is to launch the investigation and right the wrongs of the previous 8 years. To do nothing but "look forward" is to remain ignorant while giving endorsement to all of the crimes that occured.
Not on my watch. I want all of them held to the highest standard of accountability. That is the only way we can ever restore faith in our system and our government. And is the only way we can restore our image, our moral standing, in the world as a whole.
Palemoon.. we do need to restore our faith in goverment.
I agree and i'm with you on that. :o)
If found guilty the punishment should make government officials grimace just to think of it even 50 years from now and not willing to even think about following the Bush Cheney lead
Thank you, Mr. Davis (as I rise to give him a standing ovation). I could not agree with you more.
I really want Cheney, Rummy and Dubya to get what they got coming. And add Feith, Addington, Gonzo and Wolfowitz to the indictments while you're at it.
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