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 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.”