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

[TParrish]

Put up the petition. I'll sign it.

[Digeeedad]

Sadly it's beginning to seem that the will of the people no longer is an issue. I had great hopes for the Obama administration and am getting more worried as time goes by! Is there no longer such a thing as a non-corrupt politician or at least one who isn't influenced by lobyist's $$$???

[AngieMom57]

It takes a few minutes: www.whitehouse.gov

[TParrish]

Been there, done that. (grin)

[BabblingBrooks]

It would also be found that a great majority of the Democrats knew full well what was happening and either favored it or did nothing! Do they want that to get out? No way, Jose! Thus no open investigation will occur.

Cheney is calling the Democratic bluff, not the other way around!

[jmpurser]

As a Democrat I'm happy to have Democrats investigated as part of a general war crimes investigation.

Let's go.

[naschkatze]

I too. Let the chips fall where they will. Naturally, I think the penalty should be higher for the actual perpetrators than those who stood silently by, but if any Democrats actually took part in policy or action, there is no separate justice system for them.

[LemonMeringue]

I agree, open Pandora's box no matter what it holds.

[SueInCA]

Keep living in that fantasy world of yours

[blues101]

Were that even a little bit true, the little rat will matter more after the big rat is cornered and trapped. The person pushing, condoning, suggesting torture is the true war criminal. Someone turning the other way, not knowing or ignoring vs. perpetrating, enjoying and bragging about the crime are two different things.It's certainly morally wrong in the former, the latter illegal and immoral. But no excuse for your committing a crime.

The People of The United States vs. Cheney - he wants it, he's drawing the line in the sand. Let's do it. Who knew or didn't know is not an excuse for letting an admitted torturer snicker and promote the practice. He's the perp from A-Z. I don't want to argue who knew what until he's behind bars first. They will all come to light, then they can and should be kicked out or voted out. But he needs to be put away. He's begging for it.

[DoTheMath]

Yes, call his bluff. Call the whole GOP's bluff.

We may want to update that 1994 law, though, since we know they weren't waterboarding Khalid Sheikh Mohammed for the 183rd time "for such purpose as obtaining from him or a third person information or a confession." We should add "or for the purpose of eliciting false statements to justify needless invasions or other criminal activities." I'll stop there, but I can't help suspecting another motivation for torture, especially when it is continued after failing to achieve any of the results already mentioned during the first 100 or so attempts.

[spandautoseattle]

May I recommend to look at Tom Tomorrows comic/comment on this?
http://www.salon.com/comics/tomo/2009/05/12/tomo/index.html
Motivation? For a so inhumane, base thing as torture? The word motivation still implies that there is a reasonable case to make for it, despite world history's assessment that there is none.
Torture belongs to a world of evil that is not ours.

[DoTheMath]

I disagree with your semantics. "Motivation" is whatever motivates or provides someone with a motive. Sadism, for example, qualifies as a motivation.

[rabrophy]

It is time to investigate the totality of the Bush/Cheney years.

[grf67]

Great idea. Wipe that condesending smirk from his fat face.

[RevBookburn]

I agree. Cheney should be indicted immediately. It would serve justice if he were in Guantonamo or answering to Bubba in prison. The arrogance of this war-criminal is incredible. The Democratic Party needs to grow a spine for once and do the right thing. Rev. Bookburn - Radio Volta

[David Dial]

Let me start with what I think is the most important part of this. We are the United States of America. We represent the most advanced philosophy of society and government that humanity has so far achieved. We can not allow our anger at the inhuman behavior of others diminish our own humanity. We must lead by example. We must not torture.

Next, I thought that Dick Cheney was a lunatic and a poor excuse for a human being long before he met GWB so I have no desire to defend him. On the contrary, if I thought there was a way to bring him to trial and make him pay for his many sins that would not do more harm than good I'd be all for it.

But I don't. I don't see how he can be prosecuted without prosecuting everyone from top to bottom who was involved in the same crime and I can't even begin to imagine how much harm that would cause. Tell me why I am wrong, Lanny. I'd love to agree with you.

[larry278]

Let us show RB Cheney our gratitude. He is begging abjectly to be indicted by daring us to indict him for authorizing & ordering the use of torture. He also wants to be indicted for all of his many violations of American law. Humor Mr Cheney: indict him; try him; convict him; give him the maximum allowable sentence &/or sentences. Give Richard Bruce Cheney what he want. He wil die with a smile on his face on the execution gurney when the lethel injection kills him. We owe RB Cheney a happy death.
We must show Cheney how generous & charitable Americans can be.

[Lochmon]

I doubt he will ever be prosecuted... but I do occasionally indulge in the fantasy of Cheney on the witness stand, getting more and more irritable as the prosecutor's questions become more probing... then he finally snaps and screams "YOU CAN'T HANDLE THE TRUTH!"

(Hmm, another Guantanamo connection, come to think of it.)

[Cellini]

Davis says, "I have agreed with President Obama on the need to look forward, not backward." Obama and Davis are both wrong to think that to prosecute the torturers is to look backward. The most important purpose of prosecution is deterrence, and deterrence is forward-looking. If supporters of torture ever regain power, they must know that, if they torture, they will go to prison, just like Bush, Cheney, Addington, Yoo, Bybee, Rice, Powell, etc., did.

[gdcb1128]

100% agreed.

[JumpingCholla]

rumsfeld, wolfowitz, feiff, perle...YES!

[jackbutler5555]

Actually, Cheney's assertions that torture's all right because it isn't really torture is designed get our goat. What he really hates is universal healthcare, energy conservation, and environmental protection. Hates that stuff a lot -- enough to go through all the b.s. associated with an indictment.

He figures the only way to stop the Obama domestic political agenda is to distract the country with a showcase trial. The resulting polarization will prevent the Obama agenda from fruition. The 2010 elections might weaken the grip of the Democrats, thereby slowing the Obama reforms even further. Are we going to let ourself play into his hands?

:)

[PuzzledinPeoria]

Good theory. Makes sense.

But have we become so intimidating that no one at The Hague will proceed? Is the U.S. in charge of the entire world?

Let the trial go on over there, let Cheney try to defend himself there, and let Obama continue his agenda here.

[Catothemuchyounger]

This is a fantasy. Obama is reluctant to support a trial here, in our federal courts, and with good reason. It would be incredibly divisive. But it would be FAR more controversial to let a foreign tribunal interfere. NO President could permit it. Obama will warn the Hague off.

I don't think the Hague will want to get involved anyway. Europe is hoping the U.S. will now ratify the ICC. Attempting to prosecute the Bush Administration would prove that ICC opponents were correct, and would scuttle any chance of getting the U.S. on board.

And since when has the ICC gone after a superpower? Are the Russians sweating over charges over Chechnya? Or the Chinese over Tibet?

[Whinger]

The will to indict is weak in high places, it shall never happen!

[rich misty]

There are more than just Cheney involved, and there is more than just torture of detainees.

"But a lot of people have passions and the beauty of the Republican Party is you get to express those passions in various ways." --M. Steele

Like homoerotic torture, pedo-philia, torture kiddie porn, obstruction of government, and tax cuts to the top 1%...

On December 1, 2005, Yoo appeared in a debate in Chicago with University of Notre Dame professor Doug Cassel. During the debate Cassel asked Yoo, "If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?", to which Yoo replied "No treaty." Cassel followed up with "Also no law by Congress -- that is what you wrote in the August 2002 memo...", to which Yoo replied "I think it depends on why the President thinks he needs to do that." http://en.wikipedia.org/wiki/John_Yoo

http://washingtonindependent.com/15946/mccain-camp-buses-in-4000-kids-for-ohio-rally

http://www.armchairsubversive.org/

[mcantwell]

Mr. Davis: I'm glad you see the light. However, I believe both Rum my and Che eny should be wearing orange jumpsuits.

[bigmacha]

In the beginning I agreed with the Obama administration approach of basically letting these war criminals "go quietly into the night". I assumed, wrongly, that these republithugs would recognize the magnitude of their crimes and the hurt that they have caused not only to those directly tortured, but to the reputation and standing of America. With that in mind, to avoid prosecution, slinking off into history would be appropriate.

But no - Darth Vader has emerged from his rat hole and can't stop shooting his mouth off. He is basically evidencing the behavior of one who is seeking punishment to atone for his misdeeds - no crimes. If expiation through a public, criminal trial is what he wants, then by all means the Obama administration should acquiesce and grant him his wish. In so doing perhaps they will have to release the mountain of incriminating data that they are no doubt sitting on to provide the prosecution of Dick Cheney, et al with the evidence required to send him away - perhaps to the Federal Supermax penitentiary that is somewhere up in Cheney's home state. Wouldn't that be a lovely way to spend your retirement years?