Good point.
If true. Here is a transcript of Cheney’s remarks. Can you point me to where he said that?
I agree. Because probable cause is a very low standard. Cheney isn’t permitted to offer a defense. You can simply stack up items favorable to your view and place them in front of a grand jury. So, yes, Cheney’s statements, plus some favorable (i.e., pro-prosecution) testimony about waterboarding would almost certainly be sufficient to indict.
But a prosecutor (well… an ethical prosecutor) should not simply get an indictment because he can. He should consider whther his indictment will lead to getting sufficient evidence to convict. He should not use the indictment process to make a political point, or to force a target to spend legal fees, or for any reason other than his good-faith belief that he can secure a conviction.
Also because Cheney can raise legally sufficient defenses to the charge.
Well, Cheney’s statements would lead me, if I were a prosecutor (and I’m not a prosecutor) to investigate further. If I were Eric Holder, Attorney General, I would, whether I got fired or asked to resign for it or not, impanel a grand jury and investigate the whole ugly mess.
The probable cause standard is indeed a low threshold. But the evidence available in just Cheney’s statements amount to a confession on the policy. Connect it to a few specific incidents and chains of command all the way to some torturees and remains of torturees, and it is a case that needs pursuing in my opinion. Fortunately for Cheney, Yoo and company, people like me are not in positions of prosecuting authority. As a practical matter, they are above the law in everything they do.
I’d like to see the list of recognized defenses that can be raised.
Estoppel.
Acting under a writ of boys will be boys?
Legalistic defenses of the grossly immoral is not as repulsive as the act itself, one merely wishes to run behind a tree and hurl spectacularly, rather than submit papers to resign from the human species. But I agree that prosecution is almost certainly a futile excercise.
Begone, Mr. Cheney, begone and avail yourself of the comforts of atheism.
That’s a criminal affirmative defense? The only thing I can come up with is “advice of counsel” which would be weak on a civil case. It also waives all privilege. It’s moot because no prosecutor will charge.
His defense is going to be laches at this rate.
Any defense would presuppose waterboarding = violation of 2340. He likely didn’t even violate 2340, so he’s not above the law, he’s within it.
If you took a random sampling of Americans, I’d imagine you’ll find some who think waterboarding is severe mental/physical pain and some who do not. (are there any polls?); If one in twelve doesn’t, no violation.
Even if all 12 jurors think waterboarding is capable of inflicting severe mental/physical pain, the person doing the act has to believe they are inflicting that level of pain on the victim. It’s subjective to them. They know death is not imminent because it’s simulated (as opposed to threatening to stick their head under water for 3 minutes). Also, the DOJ via SERE’s trainer advice who have performed a lot of waterboarding, said it did not rise to that “severe” level. Thus, Cheney/the interrogators likely didn’t believe that they were inflicting that amount of pain (even if in fact they were).
Even if Cheney said, “Hey, find out if that would be legal to do on detainees,” the memo by the DOJ stating waterboarding is legal would have to be really incompetent for Cheney or the actual interrogators to not be able to rely on it as an interpretation of what is legal under the statute. It’s the Department of Justice’s internal legal eagles interpreting the statute. I don’t agree with the memo, but it’s just my opinion. It’s not totally incompetent. It tells you what is just legal, and what acts would cross the line into illegal. Cheney would literally have to say I know water boarding is probably illegal, but write a memo saying it’s legal. He didn’t (or rather, the DOJ doesn’t have any evidence of that happening).
Any of the above reasons would mean Cheney did not violate 2340 without even having to use a defense. These are all reasons why Cheney won’t be prosecuted, or the actual interrogators. Only people who “went beyond” the methods stated in the memo’s will be prosecuted. But Cheney would not be responsible for those acts and thus no conspiracy to commit them. Did Cheney authorize/allow something totally immoral? Yes. Did he violate 2340? Likely not.
On a somewhat related note, I wrote my Congressman a long time ago asking them to tweak 2340 because it possibly allows for too much, the response (a long time later; like from one Presidency to the next) was laughable and somewhat baffling. Something like…“I’m also outraged that AG Holder is opening investigations into the alleged abuses by CIA interrogators…” Huh?
Heh heh. Nice shout out to the common law states! 
sigh
Entrapment by estoppel. Due process defense that says, “I was told this act was legal by the government body responsible for prosecuting it, and it runs against our fundamental notion of fairness to now prosecute me for doing it.”
See United States v. Barker, 546 F.2d 940 (DC Circuit 1976)(no online link available):
This case, by the way, involved the White House “plumbers” who broke into the offices of Daniel Ellsberg’s psychiatrist in an effort to find damaging information on Ellsberg. At trial, they were refused permission to present evidence of how they had been told their conduct was legal by E. Howard Hunt, and thus reasonably believed that their actions did not constitute burglary. On appeal, their convictions were overturned, with the finding that reliance on an official statement of the law, if reasonable, was enough to overcome the “ignorance of the law is no excuse” presumption.
Defense: “…and thus we assert, relying on the Bricker Doctrine, that the defendant must be declared not guilty…”
Judge: “The Defense is, no doubt, aware that such an assertion of estoppel must be confirmed by the batting of big, brown, innocent eyes?”
Defense: “Indeed, Your Honor, and the defense wishes to admit into evidence these two very large, brown, moist eyes which clearly manifest utter innocence!”
Prosecution: “Your Honor, in that case we offer as people’s exhibit this videotape of the defendant cruelly tearing a puppy from the arms of a wailing child and carving out the eyes…”
How about including Kissinger in a double bill?
I’m sure those people still losing limbs every week in Laos and Cambodia love that guy.
So it’s difficult under current US law- what about international law? Could Cheney be tried at The Hague for war crimes? Or are waterboarding and torture not covered under international treaty?
Hilarious.
Of course, it utterly fails to address the facts. Taken at its evident meaning, you would urge us to abandon the specific legal protections afforded to every other criminal defendant in the country, and carve out a special “But It’s Dick Cheney - Yuck!” rule.
Reposting this question in case it was missed.
I don’t think it “impractical” to prosecute him…
…but I think it is absolutely impossible to convict him.
I used a statement like that in response to a question posed to me back during the Clinton years about whether or not the Republicans would “be able” to impeach Bill Clinton.
I suggest it was opinion they would “be able” to impeach him…but it would be almost impossible to convict him.
With Cheney…I would bet the farm against any conviction…which is why although I would love to see him fried for what he did in this regard, I argue against prosecution.
A finding of not guilty would be interpreted (incorrectly) as innocent.
So why don’t you lay out the set of facts that makes him legally guilty. Forget about political practicality – what did Cheney do that legally constitutes a crime, and how is Cheney’s defense of estoppel by entrapment not legally sufficient?
Out of curiosity, why does this thread focus specifically on Cheney, and not on Bush?
I argue against prosecution…not for it.
You probably should ask that question of people who are arguing for it.
Same as above…with the following comment:
I hope the actions of which he apparently approved are illegal…whether we can convict him (or anyone else) of any crimes or not. It seems to me that some pretty terrible things were done…particularly torture of prisoners…and I would like to think we are a civilized enough nation to have laws against that kind of thing.
Beats the piss out of me. I am not a lawyer…and not even remotely conversant with that “defense.” My comment, I will freely acknowledge, come from the fact that I despise the kind of American conservatism that I see Cheney representing…and it is pure passion, not legal expertise that motivates me.