http://www.harpers.org/archive/2010/02/hbc-90006558
Could a prosecution on this topic or using this statement realistically happen? Are the difficulties legal or political?
No, you would have to prove that waterboarding or other techniques are torture, and that Cheney thought they were torture. This would be difficult. Even more difficult would be finding a politician willing to support the trial. The ensuing publicity would mean that the politician and his party would be branding soft on terrorists for the foreseeable future. I don’t think even the harshest critics of the current president think he would be dumb enough to agree to such a thing.
Moving to GD from GQ.
Colibri
General Questions Moderator
There are certainly political difficulties, but there are also legal ones. Cheney believed then, and still believes now, that waterboarding under those circumstances is not illegal.
And in support of that belief, he can point to memos from the Justice Department.
So the difficulty of prosecuting him becomes clear. It’s a basic principle of criminal law that the law must provide a clear, unambiguous warning of what conduct is prohibited in order to avoid being void for vagueness. If there is any ambiguity, the rule is that it is construed against the government, and in favor of the accused.
You can’t ask a cop, “Is it legal to skateboard here in the park?” and have him tell you it is, only to have him arrest you moments later for skateboarding. Here, even if there was some question about the issue, Cheney “asked the cop” and was told that the conduct was legal. That presents a serious problem in prosecution.
I agree with the former but not the latter. Ignorance of the law is not a defense for breaking the law.
It would be up to the jury to decide if the case is proven.
The current administration has continued the policy of rendition of terror-related prisoners to other nations that have been known to use harsh interrogation methods, although it has stated that it will apply greater oversight. Given the possibility that this policy could be construed as conspiracy to torture, I suspect that there will be no serious political will from either party to pursue these issues criminally.
Actually, it can be.
Suppose a town passes the following ordinance: “It shall be a violation of the law for any person to dispose of an excessive amount of trash in trash receptacles owned by the town.”
Even if you’re aware of the text of the law, it’s not clear to any reasonable person what “excessive” means. Does the town mean you can’t dump a week’s worth of your household trash in town cans, or does it mean you can’t fill a single can, or does it mean you can’t dump more than a pound of stuff at any given time?
Ignorance of the law in that case would very likely be a valid defense.
Right?
Actually, not necessarily true.
What I’m talking about above is a legal defense. Cheney says, in effect, “I admit every single factual allegation you’re making, but I don’t agree that those facts add up to a criminal offense.” In that case, the jury never gets involved; a judge rules on the issue.
That’s not about ignorance of the law if the defense works whether you know the law or not, is it? IANAL, but it seems the problem is with the law, not with the supposed ignorance of the defendant.
Also, I just like typing IANAL! IANAL! LUUUUBE!!!
But he didn’t just “ask the cop.” He instructed the cop to tell him that it was legal.
The problem there is the vagueness of the law, not ignorance of the law. Trying to enforce it in anything resembling a borderline case has the same ethical problems as an ex post facto law, in that someone can be taking reasonable care to not break the law and still get caught out by a law that has not yet been defined.
This is very interesting and something I’ve guessed may have happened, but never heard anyone say it. Is there a link where Cheney actually says this?
Is there anything vague or unclear about that, or about what Cheney ordered / authorized, regardless of what his toady lawyers may have told him? Really, people?
The word “severe”
The word “suffering”, then. :dubious: Or the words “the threat of imminent death”.
That do it for ya?
I don’t know why but this dialog just popped into my head:
Burns: Smithers, I’ve been thinking. Is it wrong to cheat to win
a million-dollar bet?
Smithers: Yes, sir.
Burns: Let me rephrase that. Is it wrong if <I> cheat to win a
million-dollar bet?
Smithers: No, sir. Who would you like killed?
ETA: I think it’s pretty certain that if U.S. sevicemen were waterboarded, we’d consider it torture. We did when the Japanese waterboarded U.S. prisoners in WW2
I think it has to be severe pain or severe suffering. Severe qualifies both words.
You’re right about “threat of imminent death.” But you can’t make a case for any of the other interrogation methods inflicting a threat of imminent death other than waterboarding. I agree that waterboarding, simulated drowning, is a threat of imminent death. I don’t agree that every act of waterboarding would violate the statute.
But your question asked for anything vague in the statute. I think what constitutes “severe” (as opposed to good ole plain pain and suffering) is open to great debates.
That’s what Cheney’s counsel (or his amici curiae, like Bricker) would argue, that’s true.
But to claim that the evidence argues more against than in favor of even opening a serious investigation is simply willful.
Cheney’s own statements on talk shows indicates probable cause to indict for war crimes and violations of US laws prohibiting torture.
The likelihood of a prosecution in the US is near zero because the public just doesn’t care. The likelihood of a prosecution in another country is higher, and Judge Garzon in Spain (where Judge means independent prosecutor) has looked into prosecuting some of Cheney’s underlings. But prosecuting underlings isn’t the same as prosecuting Cheney, nor is it the same as having them in custody for purposes of trial. Not because there isn’t probable cause, but because some people, like Cheney, are simply above the law. In short, as Nixon opined, “if the President does it, it isn’t illegal” unless Congress hates you and wants to impeach you.