DAVIS: Second thoughts on indicting Cheney

ANALYSIS/OPINION:

I began having second thoughts about last week’s column urging the indictment of former Vice President Dick Cheney for approving the use of waterboarding and other forms of illegal torture, shortly after it was published and posted last Monday morning - days before the Obama-Cheney back-to-back speeches Thursday.

Just to repeat briefly why I wrote that Mr. Cheney should be indicted:

It cannot seriously be disputed that waterboarding is “torture,” as that word was defined by Congress in the 1994 federal criminal prohibition against torture: conduct “specifically intended to inflict severe physical or mental pain or suffering.” No one seriously disputes that waterboarding intentionally inflicts serious physical and mental pain. Waterboarding was prosecuted after World War II as torture and has been notorious ever since the Inquisition.

Mr. Cheney admitted he knew about waterboarding in last Thursday’s speech, pointing out it was used on “only” three terrorists. He then justified its use because it produced important intelligence information.

The former vice president cannot claim that there is partisan division over the definition of “torture” under federal criminal law. In fact, as Mr. Cheney knew in December 2004, it was the Bush-Cheney Justice Department - both the Office of Legal Counsel (OLC) and the Criminal Division - that repudiated the now-notorious “Bybee-Yoo” OLC memo of August 2002 and reaffirmed that the plain words of the definition of torture in the 1994 act as quoted above were still the law of the land.

We now know that there is at least circumstantial evidence that this redefinition of torture was influenced, if not ordered, by Mr. Cheney through his powerful chief of staff, David Addington. In last Thursday’s speech, Mr. Cheney made no reference to the 1994 Anti-Torture Act. Nor did he refer to the 2004 memorandum or its specific contradiction of his defense of waterboarding because it allegedly produced valuable intelligence information. “There is no exception under the statute permitting torture to be used for a ‘good reason,’ ” it stated categorically.

So I wrote my piece supporting the indictment of Mr. Cheney because I believed his public statements constituted a challenge (I called it a “dare”) to the criminal justice system, going to the heart of our country as a nation of laws applicable to all in high office as well as average Americans. And I wrote last week that Mr. Cheney’s public challenge needed to be answered with an indictment.

But then came my doubts about this position, fed by some friendly and constructive critics.

The one that bothered me the most was sent half-tongue-in-cheek: “Someone seems to be sending something out under your name that suggests … the government should selectively prosecute only those members of a prior administration who engage in forceful public criticism.”

I was selecting out Mr. Cheney for prosecution because of the content of his public speech? Me? A purist First Amendment, free-expression liberal?

Ouch.

The second comment came in an e-mail from a friend who asked me whether I really wanted to put the country through all the distraction and divisions and media circus that a criminal trial of a former vice president would mean.

I thought to myself: Did I want to do that? My uncomfortable answer was: “No.”

The third critique that most bothered me came in through e-mails mostly from Republican friends, but from some Democrats as well. They asked: “What about Democrats who were briefed, albeit in classified briefings, about the waterboarding? Why are you letting them off so easily?”

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