# Prosecuting Dick Cheney for conspiracy to torture - practical? **URL:** \ **Category:** Great Debates\ **Created:** [February 16, 2010, 10:59pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259 "2010-02-16T22:59:58Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Cardinal](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cardinal/32/4000_2.png) [@Cardinal](https://boards.straightdope.com/u/Cardinal)\ **Post date:** [February 16, 2010, 10:59pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/1 "2010-02-16T22:59:58Z")
[http://www.harpers.org/archive/2010/02/hbc-90006558](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? ---
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [February 17, 2010, 3:31pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/2 "2010-02-17T15:31:24Z")
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. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [February 17, 2010, 3:32pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/3 "2010-02-17T15:32:32Z")
Moving to GD from GQ. Colibri General Questions Moderator ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 17, 2010, 3:41pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/4 "2010-02-17T15:41:24Z")
> [@Cardinal](#): > > [http://www.harpers.org/archive/2010/02/hbc-90006558](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? 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. ---
**Author:** ![Grumman](https://avatars.discourse-cdn.com/v4/letter/g/43a26b/32.png) [@Grumman](https://boards.straightdope.com/u/Grumman)\ **Post date:** [February 17, 2010, 3:42pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/5 "2010-02-17T15:42:25Z")
> [@puddleglum](#): > > No, you would have to prove that waterboarding or other techniques are torture, and that Cheney thought they were torture. This would be difficult. I agree with the former but not the latter. Ignorance of the law is not a defense for breaking the law. ---
**Author:** ![PrettyVacant](https://avatars.discourse-cdn.com/v4/letter/p/49beb7/32.png) [@PrettyVacant](https://boards.straightdope.com/u/PrettyVacant)\ **Post date:** [February 17, 2010, 3:49pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/6 "2010-02-17T15:49:48Z")
It would be up to the jury to decide if the case is proven. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [February 17, 2010, 3:49pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/7 "2010-02-17T15:49:53Z")
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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 17, 2010, 3:55pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/8 "2010-02-17T15:55:28Z")
> [@Grumman](#): > > I agree with the former but not the latter. Ignorance of the law is not a defense for breaking the law. 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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 17, 2010, 3:57pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/9 "2010-02-17T15:57:26Z")
> [@PrettyVacant](#): > > It would be up to the jury to decide if the case is proven. 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. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [February 17, 2010, 4:27pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/10 "2010-02-17T16:27:25Z")
> [@Bricker](#): > > 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? 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!!! ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 17, 2010, 4:47pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/11 "2010-02-17T16:47:37Z")
> [@Bricker](#): > > 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. But he didn’t just “ask the cop.” He instructed the cop to tell him that it was legal. > [@](#): > > He went on to explain that Justice Department lawyers had been instructed to write legal opinions to cover the use of this and other torture techniques _after_ the White House had settled on them. ---
**Author:** ![Grumman](https://avatars.discourse-cdn.com/v4/letter/g/43a26b/32.png) [@Grumman](https://boards.straightdope.com/u/Grumman)\ **Post date:** [February 17, 2010, 4:47pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/12 "2010-02-17T16:47:53Z")
> [@Bricker](#): > > Ignorance of the law in that case would very likely be a valid defense. > > Right? 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. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [February 17, 2010, 4:55pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/13 "2010-02-17T16:55:19Z")
> [@kaylasdad99](#): > > But he didn’t just “ask the cop.” He instructed the cop to tell him that it was legal. 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? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 17, 2010, 4:55pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/14 "2010-02-17T16:55:48Z")
[Must we do this again?](http://www.law.cornell.edu/uscode/18/usc_sec_18_00002340----000-.html) > [@](#): > > TITLE 18 CHAPTER 113C—TORTURE > 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. > > (a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life. > (b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if— > (1) the alleged offender is a national of the United States; or > (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender. > (c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy. > > Nothing in this chapter shall be construed as precluding the application of State or local laws on the same subject, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any civil proceeding. 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? ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [February 17, 2010, 4:56pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/15 "2010-02-17T16:56:48Z")
> [@ElvisL1ves](#): > > [Must we do this again?](http://www.law.cornell.edu/uscode/18/usc_sec_18_00002340----000-.html)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” ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 17, 2010, 5:03pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/16 "2010-02-17T17:03:01Z")
The word “suffering”, then. :dubious: Or the words “the threat of imminent death”. That do it for ya? ---
**Author:** ![Larry\_Borgia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/larry_borgia/32/156_2.png) [@Larry\_Borgia](https://boards.straightdope.com/u/Larry_Borgia)\ **Post date:** [February 17, 2010, 5:03pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/17 "2010-02-17T17:03:19Z")
> [@Bricker](#): > > 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 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 \ 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 ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [February 17, 2010, 5:30pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/18 "2010-02-17T17:30:03Z")
> [@ElvisL1ves](#): > > The word “suffering”, then. :dubious: Or the words “the threat of imminent death”. > > That do it for ya? 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. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 17, 2010, 6:25pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/19 "2010-02-17T18:25:09Z")
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. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [February 17, 2010, 6:35pm UTC](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259/20 "2010-02-17T18:35:30Z")
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. [Next page](https://boards.straightdope.com/t/prosecuting-dick-cheney-for-conspiracy-to-torture-practical/529259.md?page=2)