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

[ByersL]

Thank you, Lanny. If you FEDS don't do it, I'll make a citizen's arrest!

[blues101]

I think no one will squawk about their ( taxpayers' )money being used to find them guilty and lock them up for the rest of their unnatural-born days. I'd be glad to donate to a fund if i thought someone would actually come riding in and clean up Dodge.

[dems08]

Y'all do know Dick's goal in life, right?

To see George Bush indicted.

Cheney is more than willing to sacrifice himself for the satisfaction of seeing GW go down - the same GW that refused to pardon Dick's bud Scooter Libby.

[AZterritory]

Mmm, don't think so. In his twisted mind he (and his buds) are right and will not have to suffer a moment for any of it . . . except maybe to sit at book tour tables with the little people. He needs to go down.

[dems08]

Dickie doesn't have buds, and since GW dissed him by not pardoning Scooter, he's been seeing red.

[SueInCA]

and stole his place in the oval office lol

[Kateyras]

At first I thought we should just move on, but the louder Dick doth protesteth, and now the most recent revelations about possibly using torture for political cover, this needs a Special Prosecutor, with subpoena power, to do a thorough investigation. If that is true, that goes way beyond the pale. Now that the charge has been made, we absolutely muct investigate this, whether we want do or not. This is way worse than Watergate. Even, IMHO, worse that Iran Contra. Disgraceful AND illegal.

[FreedomAgain]

Indict! Cheney was trying to waterboard them until they provided a link between 9-11 and Iraq. And then when that failed, they said the reason we attacked Iraq was because of WMD's. Then that failed, and they said it was operation Iraqi freedom and some other lies. Bush and Cheney kept changing the stories for 8 years, contradicting themselves and outright lying.

[Digeeedad]

"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".

Not to do so will amply prove to our citizens and the rest of the world that the USA is no longer a country to be respected and that our political system is as corrupt as any of those our ploticians constantly bad mouth!

[BUTCHER111]

Dare Accepted!

[mlmn08]

Cheney should have been in jail years ago...he makes Spiro Agnew look like the poster child for the vice-presidency

[jmpurser]

So from the "Full Peggy" position you'd like to go to a "Modified Noonan".

No.

If anyone deserves to be prosecuted (and we've already prosecuted people) then we prosecute all of them. The ones who gave the orders, the ones who provided legal cover, and the ones who "just followed orders".

You don't get to choose when you apply justice. You either do, or you don't.

[helonias]

Powerful rich old white men don't go to jail

Its in the Constitution

[nowThenzen]

He'll get a statue and at least a bridge if not a Highway!

[Tomm]

Cheney seems to think that if he is arrogant enough he can create a reality in which he can escape the just consquences of his barbaric lawbreaking by loudly proclaiming he was only doing his duty. And he has repeatedly made factual claims that can be verified or falsified as a matter of record. He is demanding-- is Seizing-- his day in the court of public opinion, but the real test of his claims of fact and of executive privilege deserves a serious examination with witnesses, under oath, in a court of LAW with real evidence and real consequences.

I believe the president of the United States, with so much immediate crisis on his plate, would prefer not to have to deal with the matter, but perhaps he can be forced to deal with it now that it is not longer a matter of divisive partisanship but one of hysterical charges being flung about by the Gadarene on Parade (GoP) as well as legitimate concerns over the rule of law. And there is much worse to come.

THIS is one story that will blow your mind, and one not many people seem aware of yet. If your stomach is strong, you might check this out and see how much more urgent legal proceedings now become:

http://www.salon.com/politics/war_room/2004/07/15/hersh/index.html

[SueInCA]

I, too read this article and it makes me sick to my stomach. I do believe Pres Obama is denying the release of photos or tapes on the basis he has seen some of this. The tapes that were destroyed by the CIA probably had even more horrors on them. How long did it take the world to condemn H*i*tler and fight back?

[learneddemocrat]

Be careful what you wish for. Don't forget this was not just a "Cheney" decision, as much as most of you seem to think it was. There were democrats present at the breifings and at the the meeting in which the decision was made, in spite of all the denials by "I feel like a princess" Nancy Pelosi. Be sure of your facts and don't make you comments based on your anger toward the last administration.

I have to say that if the waterboarding helped to save American lives, buildings, cities, then I am fine with the decision to implement it. Remember the Americans and the world citizens killed on 9/11. How quickly we forget. The pain and grief does not pass that quickly for those of us who lost family and friends that day. Yep, if it saved American lives, then it was okay.

Forget not that these terrorists hate us. Hate us for being Americans. Hate us for not being their type of Muslim. It is that simple. They want to destroy us, not befriend us. Foolish are those that think differently. Learn your history, learn their history.

[globality]

why not torture OJ, scott peterson, etc..

we woudl probably get a few confessios, maybe even find out where bodies are buried.

If it is acceptable at Guantanamo why no Rykers or San Quentin

[SueInCA]

It might take care of Drew Peterson as well.

[doctorwang]

Let's have a full and thorough investigation and let the chips fall where they may..... that's fair, isn't it?

[canobserv]

Americans executed japanese soldiers for waterboarding Americans...................I am well aware of history

[joebaggadonuts]

Let the chips fall where they may. I'm with Lanny on this. Let the Law rule.

[ByersL]

Your moninker is shameful.

[JeffmChicago]

No Lanny. As my momma use to say, don't do things half a s s. If you're going to do a job complete it. A full prosecution is in order. My God just think of all those who have suffered and died because of Cheney.

Prosecute Dick Cheney and his cohorts. NOW!

[JnrNorman]

Go Lanny Go!
Eric Holder covered up Bill Clintons crimes and he will cover up Cheneys.
Obama and Cheney attend CFR meetings. Cheney runs the meetings
google CFR truth

[SueInCA]

Try as you might to slam President Obama you are failing. His name is not on any list for the CFR

[LKV]

Agree agree!! At first I was not to sure that we should persue prosicutions but not we have no choice. Cheney is out there almost daily ADMITTING to commiting war crimes. If we do not do something about this and soon the world will do it for us and we do not want that. We have to get back our national self respect and the respect of the rest of the world. How can we tell other nations to abide by the law and treaty's that were signed if we do not? How can we look in the mirror if we do not? We will never be the same agian they have taken more then we even realize from us.

[lgillooly]

The people who have and will suffer the most for these war crimes are our own soldiers. After the Abu Gharab abuse pictures surfaced thousands of foreign fighters came to Iraq to kill American soldiers. We should be ashamed.
look up "The Project for a New American Century" and you will see that Cheney and Rumsfeld had asked Clinton in 1998 to invade Iraq for oil. Not only did he not serve in the military, he has used our men and women as pawns for oil. Some of our Veterans have said it will take decades to repair the damage done to our reputation. For what?? a false confession that Iraq was connected with Al Quaida to justify an illegal war. The real victims are our military , Iraqi civilians and the American taxpayer. Heck of a job Dick!

[MBryant]

Not only does torture incite opposition and hatred towards our soldiers, but it turns them from noble citizen peacekeepers - representatives of the free world - into warlords of some dark empire. They no longer bring hope of freedom and democracy but "shock and awe" - illegal internment and horrible torture. Even for the soldiers not doing the torture - the fact that we do it - changes their role in the world, they no longer fight and die defending the high ground.

So Dick Cheney thinks we gain something from torture? What does it cost us?
- recruitment of more numerous and more fanatical opponents
- the loss of respect and cooperation from our allies so we have to go our own way more often
- it demeans our own soldiers - all of our soldiers - and this is the highest price...

Americans are a courageous people - we do not need dark deeds done in dark places by ruthless men to secretly defend us so we can go to Walmart and watch Law and Order in ignorant bliss.

Many people have asserted torture doesn't work - that the tortured will tell you anything and you can't rely on the results of it. There seems to be some of that in the justification for the Iraq war.

But even if there are domestic attacks with civilian casulaties which could have been prevented by torture then those people too will have died for freedom.

Live free or die in