DAVIS: The Cheney dare

ANALYSIS/OPINION:

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.

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