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

[1lalady]

I am with you Lanney. Cheney, Bush, Rumfeld, Rice, YOO, BYBEE AND ALL WHO ardered torture shuold be procuted.

[leftLibertarian]

Crimes were committed by the Bush administration and there needs to be indictments and trials.

No to do so is a stain on Justice.

[freethinkergirl]

And a stain on America.

[obamagal]

Absolutely.

[JXB]

An efficient summary of one potential legal basis for an indictment and prosecution, but I find your rationale for pursuing Cheney and not others as to whom the same legal case exists because Cheney has put himself on tv and radio programs and attacked the President on the subject to be morally compromised, undermining of the rule of law, and dangerous.

[BocaMom]

I think Cheney and Pelosi should both be investigated! No excuses, no matter what party you're in!

[RobtBrock]

Cheney established policy. What did Congresswoman Pelosi have to do with it?

[LemonMeringue]

Absolutely.

I do not think Pelosi is frightened of this. Cheney clearly is.

[voltage356]

If C heney believes torture worked how come, they have not found B in L aden yet.

[voltage356]

If dick believes torture worked how come, they have not found Bin Laden yet.

[ranchero42]

Dick knows he has at least several billion witnesses to back up his insanity plea.

[LemonMeringue]

If they investigate him he'll suddenly have more heart problems, they way he did when Kucinich was about to file articles of impeachment against him.

[RRG64]

Then he can go to the medical facility..­..at Leavenworth.

[FebM]

What is mind boggling is that Dick insists torture is what has been protecting this country so doe that mean up to 11.59am Jan 20th, 2009 when Obama became president?.

[naschkatze]

I am glad to hear you say this, Mr. Vaughn. But all must be prosecuted if evidence leads to them without exception, and unfortunately, Dick Cheney would probably be the most difficult to prosecute because of his former position and power. As a Jew I think you must believe that anyone who took a part in the holocaust, however great or however small, should have been pursued. Now that "they" are "we", we cannot flinch and walk away from justice.

[WarrenPease]

Welcome to the light.

[imsosure]

Dick will be comfortable sharing the cages with the other criminal when the domino effect of multiples of convictions falls into place. I have no interest in history reflecting Dick as having not done the crime. I'd rather see this bad apple gotten rid of and our countries history reflect justice for all.

[jeliz]

Voicing his displeasure at President Obama's changes and flaunting his power or not, Cheney should be indicted and prosecuted, as should the attorneys involved (no one forced them to be creative in their interpretation), Bush, Rumsfeld, Rice, Tenet and anyone else who knowingly allowed torture to happen in America's name, and the soldiers performing their duty should be released from prison.

We are coming to know much more about Cheney forcing the issue through enhanced interrogation techniques to find a link between al Qaida and Saddam Hussein. After watching the Rachel Maddow show for the last 45 minutes, we are also finding out that he took it upon himself to basically have the CIA report directly to him, which is not the norm. Why is America so afraid to prosecute these people? It is our duty to do so. We prosecute Congressmen and Senators for illegal activity. Bush, et al., should not be above the law, and they must answer for their crimes regardless of their position. Even as a loyal democrat, the immunity being granted to the Bush admin., as well as Wall Street and banks, without question, is beginning to make me feel there is no difference between Republicans and Democrats at the top and that no matter how we feel, Americans are getting screwed.

[Venicedread]

Welcome aboard Lanny!
Unfortunately it took Mr. Cheney flaunting it in all of our faces to change your mind, but I'm glad you have come around.
Our ideals are better than Mr. Cheney or any other individual or group of individuals who think they can change the law of the land to suit their purpose.
These are horrific events that were prosecuted in most of the wars of the 20th century.
"Because WE are doing it" is not even close to a good enough reason to continue to let this go unpunished.
We like to think that we are the moral authority in the world.
Let's prove it!

[cliffstep]

Thanks , Lanny. Welcome to the party.

[mamacat]

I thank God every day that Dick Cheney is no longer in any elected office. Whether or not we ever find out the complete truth about everything he did while in the White House, from ordering the outing of a CIA network that stood up to him, to ordering false witness to be obtained through torture, we can at least rest assured that he is not able to give orders to the CIA or to the Defence Dept, or to all of those holding prisoners in secret overseas jails.

It is indescribably frightening to think that such a monster as Cheney was ever able to direct the day-to-day actions of our government.