Tuesday, December 16, 2014

Meanwhile, back in the courtroom.....

Yeah, the Romans thought torture worked, too....

So, here's the problem with bringing a case for torture against Dick Cheney.  Let's start with the torture statute:

As used in this chapter—

 (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

 (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from— (A) the intentional infliction or threatened infliction of severe physical pain or suffering;

 (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

Cheney never had any person within his custody or physical control, and upon whom he personally inflicted "severe mental pain or suffering."  Whether or not the jury decides he was wrong to rely on legal opinions which said what was being done by the CIA was not "severe mental pain or suffering" within the meaning of the law, how could the jury decide Cheney had anyone in his custody or physical control?  The U.S. government held them.  A jailer held them.

Dick Cheney didn't have custody or physical control of anybody.  Sorry, but he didn't.

Conspiracy?  There's a provision for that; good luck enforcing it. Here's the major problem with conspiracy:  it's an inchoate crime.  That means there doesn't need to be an action to have a conspiracy; a discussion will do.  What discussion hangs Dick Cheney up by the law stated above?  What conversation convinces a jury that Cheney is as guilty of torture as the guy holding the bucket of water and pouring it ever so slowly for the 178th time? And was that conversation a conspiracy?  Or a functioning government?

And by the way, your jury pool comes from these people:

A majority of Americans think that the harsh interrogation techniques used on terrorism suspects after the Sept. 11, 2001, attacks were justified, even as about half of the public says the treatment amounted to torture, according to a new Washington Post-ABC News poll.

By a margin of almost 2 to 1 — 59 percent to 31 percent — those interviewed said that they support the CIA’s brutal methods, with the vast majority of supporters saying that they produced valuable intelligence.

 In general, 58 percent say the torture of suspected terrorists can be justified “often” or “sometimes.”  
Cheney was protecting the United States of America from terrorists.  That's his story and he's sticking to it.  Sure it sounds like the stone you carry around to keep elephants away (seen any elephants?  That stone works!), but do you want to be the prosecuting attorney facing a jury that probably has the attitude torturing terrorists is not a bad thing?  You can imagine you're in a Rod Serling movie and crazy people like Cheney get punished because good always prevails.  But Cheney wasn't a military officer, and he acted (assuming arguendo that he did) as he saw fit, and as he was told the law allowed.

And he didn't violate the torture statute, because he didn't torture anyone.   Oh, maybe he conspired to; if you want to convince a jury that ordinary governmental operations can be treated as a criminal conspiracy by the next Administration, if they've a mind to.  That's a door we really shouldn't open, no matter what.  Does no one else remember the Special Prosecutor statute was allowed to lapse largely because it brought us the blue dress and "I did not have sex with that woman!" and a lot of discussion about how a prosecutor with a mandate can always find something to criminalize?

And always remember, Cheney didn't cheat the American people, or betray them, or act against them directly in any physical way at all.

Now, what do you convict him of?  Evil?  Cruelty?  Obnoxiousness?  Bad judgment?*

There may be some other statute you could try; undoubtedly there are several.  I'm not a federal prosecutor, I wouldn't know where to begin to look.  But unless you prove a conspiracy between Cheney and some CIA agent who actually poured the water, you'll have a hard time making a case that can lead to a conviction.  And the counter-argument to your prosecution is that you are criminalizing policy and a former Administration, deciding because you have the power to prosecute that your political opponents deserve to be treated as criminals simply because you don't like their policy decisions.

This all reminds me of a conversation in a comic book once, where the bad guy (I think it was Dr. Doom) has fled the scene after creating chaos and destruction, and the good guy explains there's nothing to be done, because trying to take over the world isn't a crime.  And it isn't, actually.  We came close to making it one at Nuremberg, but that was the outcome of a war, not the reason for the war.  Dick Cheney's political and policy beliefs may be vile and repellant and even deeply un-American.

But I don't see how we make them criminal.

I'd like to be wrong; but I don't see how I am.

*Another reason you won't get a conviction:  people are convinced torture is just an extreme form of interrogation.  Read the definition in the law again:  it says nothing about questions, makes no assumption that torture is used to extract information.  That's a two-edged sword.  Cheney will argue that what he did wasn't torture precisely because it was interrogation, while implicitly arguing torture that leads to information is "good," whether it is torture or not.  In reality, of course:

“The important thing to stress about the use of torture...is that it is unrelated to ‘getting information.’ Torture is used in counterinsurgency to terrorize a population . . . [it's] a preventative measure to suppress resistance by terrifying the insurgents, breaking their will to continue.” And America has a long, ignoble history of doing it.
And so we're quite comfortable with it.  And that isn't going to change in a courtroom anytime soon. 


  1. What about the ACLU's position: "Obama, PARDON Cheney, to establish (for future precedent) that what he did was against the law." It's got some merit, IMO...

  2. I keep thinking of Bush pere's pardon of Iran-Contra figures, even after (IIRC) the court had tossed the Special prosecutor's case because it was tainted by testimony given under a grant of immunity.

    What we remember is that the crooks got away with it (and those charged were directly responsible; not Reagan or Bush, for that matter), not that the pardon established that what they did was criminal.

  3. So, let's say this is the Wannsee Conference...is Cheney playing General Heydrich with John Yoo as Dr Stuckart? I mean, hey, they had the Nuremberg Laws to provide a legal framework for their acts, amirite?!

  4. Now if our government officials could just be adjudicated by a tribunal set up by the conquering parties to the war we just lost.....