Prosecuting Dick Cheney for conspiracy to torture - practical?

[E-Sabbath]

Do they make a strong and compelling case? Really? Is it necessary that they make a strong and compelling case in order for them to be relied upon? Would a reasonable person find they make a sufficient case to be relied upon? I could get a lawyer to make a case that it is necessary I smoke pot. What would be needed for me to rely on that?

[Bricker]

@E-Sabbath

Do they make a strong and compelling case? Really? Is it necessary that they make a strong and compelling case in order for them to be relied upon? Would a reasonable person find they make a sufficient case to be relied upon?

Yes:

As an initial matter, section 2340(2) requires that the severe mental pain must be evidenced by “prolonged mental harm.” To prolong is to “lengthen in time” or to “extend the duration of, to draw out.” Webster’s Third New Internationa/Dictionary 1815 (1988); Webster’s New International Dictionary 1980 (2d ed. 1935). Accordingly, “prolong” adds a temporal dimension to the harm to the individual, namely, that the harm must be one that is endured over sonie period of time. Put another way, the acts giving rise to the harm must cause some .lasting, though not necessarily permanent, damage. For example, the mental strain experienced by an individual during lengthy and intense questioning by law enforcement would not violate section 2340(2). On the other hand,the development of a mental disorder such as posttraumatic stress disorder, which can last months or even years, or even chronic depression, which also can last for a considerable period of time if untreated, might satisfy the prolonged harm requirement. See American Psychiatric Association, Diagnostic and Statistical Manual ofMental Disorders 426, 439-45 (4th ed. 1994) (“DSM-IV”). See also Craig Haney & Mona Lynch, Regulating Prisons ofthe Future: A Psychological Analysis ojSupermax and Solitary Confinement, 23 N.Y.U. Rev.
L. & Soc. Change 477, 509 (1997) (noting that posttraumatic stress disorder is frequently found in torture victims); cf. Sana Loue, Immigration Law and Health § 10:46 (2001) (recommendin~ evaluating for post-traumatic stress disorder immigrant-client who has experienced torture).4 By contrast to “severe pain,” the phrase ''prolonged mental harm" appears nowhere else in the U.S. Code nor does it appear in relevant medical literature or international human rights reports.

Not only must the mental harm be prolonged to amount to severe mental pain and suffering, but also. it must be caused by or result froin one of the acts listed in the statute. Inthe absence ofa catchall provision, the most natural reading of the predicate acts listed in section 2340(2)(A)-{b)is that Congress intended it to be exhaustive. In other words, other acts not included within section 2340(2)'5 enumeration are not within the statutory prohibition. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (“Expressio unius est exc/usio alterius. “); Norman Singer, 2A Sutherland on Statutory Construction § 47.23 (6th ed. 2000) (”[W]here a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.”) (footnotes omitted). We conclude that torture within the meaning of the statute requires the specific intent to cause prolonged mental harm by one of the acts listed in section 2340(2).

A defendant must specifically intend to cause prolonged mental harm for the defendant to have committed torture. It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as . the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be necessary. for a conviction to show only that.the victim 5ufferedprolonged mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute… The statute requires that the defendant specifically intend to inflict severe mental pain or suffering. Because the statute requires this mental state with respect to the infliction of severe mental pain, and because it expressly defines severe mental pain in tenns of prolonged mental herm, that mental state must be present with respect to prolonged mental harm. To read the statute otherwise would read the phrase “the prolonged mental harm caused by or resulting from” out of the definition of “severe mental pain or suffering.”

A defendant could negate a showing of specific intent to cause severe mental pain or suffering by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute. Thus,if a defendant has a good faith belief that his actions will not ·result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture. A defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, .or reviewing evidence gained from past experience. See, e.g., Ratzlaf, 510 U.S. at 142 n.lO (noting that where the statute required that the defendant act with the specific intent to violate the law, the specific intent element “might be negated by, e.g., proof that defendant relied in good faith on advice of counsel”) (citations omitted). All of these steps would show that he has drawn o:n the relevant body of knowledge concerning the result proscribed by the statute, namely prolonged mental harm. Because the presence of good’ faith would negate the specific intent element of torture, it is a complete defense to such a charge. See, e.g., United States v. Wall, 130 F.3d 739, 746 (6th Cir. 1997); United States v. Casperson, 773 F.2d 216, 222-23 (8th Cir.1985).

I could get a lawyer to make a case that it is necessary I smoke pot. What would be needed for me to rely on that?

Who cares? “A lawyer” doesn’t have any authority to say that he won’t prosecute you for some conduct.

Now, if a Justice Department official gave you an opinion that mentioned medical marijuana exceptions, and assured you that your case permitted legal smoking of marijuana, and that you wouldn’t be prosecuted if you did… that would very likely be sufficient for you to rely on.

Indeed, imagine that scenario. An Assistant Attorney General from the United States Department of Justice gives you a letter that mentions medical marijuana exceptions, says that your case qualifies, and that you won’t be prosecuted for smoking marijuana under the following conditions.

You smoke marijuana under exactly those conditions.

You’re arrested and prosecuted by the United States Department of Justice.

You don’t think you have some cause there to say, “Um… wait a sec. This isn’t fair.”

[Really_Not_All_That_Bright]

Much as I hate to say it, he’s right, inasmuch as Cheney has a valid (if specious) defense and prosecution is not practical.

Well, conviction is not practical. Prosecution might be, but I suspect that a prosecution with no hope of conviction is just going to make us look bad - much the same way that we won’t be prosecuting any terrorists who we aren’t certain to convict.

[Bricker]

@Really_Not_All_That_Bright

Much as I hate to say it, he’s right, inasmuch as Cheney has a valid (if specious) defense and prosecution is not practical.

Well, conviction is not practical. Prosecution might be, but I suspect that a prosecution with no hope of conviction is just going to make us look bad - much the same way that we won’t be prosecuting any terrorists who we aren’t certain to convict.

Yes, as I suggested above:

@Bricker

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 whether 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.

[E-Sabbath]

Bricker, you missed the key question. And it was a question, not sarcasm.
Is it necessary that they make a strong and compelling case in order for them to be relied upon?
Or is just that it’s a justice department opinion?
If, say, John Mitchell had written a letter saying it was all right for the Watergate burglars to go wander in and rifle the Dem HQ, would it have made things all right, even if it was flimsy? If it was a strong and compelling case? Is there anything you can’t get away with, on a federal level, if you get someone at the Justice Department to sign off on it? Would it be enough for the Atty General to do so, or would it require a civil service lawyer?

I’m kind of fascinated with this as a loophole in the legal system. It reminds me of that bad movie, Double Jeopardy, where they got double jeopardy wrong.

[Really_Not_All_That_Bright]

In this instance, it’s not a loophole in the legal system. It’s a loophole in the specific statute.

[Bricker]

@E-Sabbath

Bricker, you missed the key question. And it was a question, not sarcasm.
Is it necessary that they make a strong and compelling case in order for them to be relied upon?
Or is just that it’s a justice department opinion?
If, say, John Mitchell had written a letter saying it was all right for the Watergate burglars to go wander in and rifle the Dem HQ, would it have made things all right, even if it was flimsy? If it was a strong and compelling case? Is there anything you can’t get away with, on a federal level, if you get someone at the Justice Department to sign off on it? Would it be enough for the Atty General to do so, or would it require a civil service lawyer?

Funny you should mention Watergate, since the case I mentioned earlier, United States v. Barker, 546 F.2d 940 (DC Circuit 1976), involved the same guys who broke into the Watergate. They also broke into the offices of a psychiatrist who was treating Pentagon Papers leaker Daniel Ellsberg, and their conviction was overturned on the basis of estoppel. They relied on the word (not even a memo!) from White House staffer E. Howard Hunt (not even a Justice Deparment attorney!) that their conduct was legal.

There’s a bit of oversimplification in the above; the conviction was actually overturned because they weren’t given the opportunity to present evidence on that point to the jury, but the general lesson is this: as long as the reliance is objectively reasonable, the defense exists. No one would reasonably believe that the Attorney General could give someone a memo permitting murder, for instance, but the ultimate question of reasonableness is one for a jury to decide.

[sleeping]

Regardless of what the Justice Dept. does, yes, they can still be prosecuted in other countries:

Does Spain have the authority to prosecute Americans for crimes that didn’t take place on Spanish soil?

The answer is yes. It’s called “universal jurisdiction.” Universal jurisdiction is a well-established theory that countries, including the United States, have used for many years to investigate and prosecute foreign nationals for crimes that shock the conscience of the global community. It provides a critical legal tool to hold accountable those who commit crimes against the law of nations, including war crimes and crimes against humanity. Without universal jurisdiction, many of the most notorious criminals would go free. Countries that have used this as a basis to prosecute the most serious of crimes should be commended for their courage. They help to create a just world in which we all seek to live.

Israel used universal jurisdiction to prosecute, convict and execute Adolph Eichmann for his crimes during the Holocaust, even they had no direct relationship with Israel.

A federal court in Miami recently convicted Chuckie Taylor, son of the former Liberian president, of torture that occurred in Liberia. A U.S. court sentenced Taylor to 97 years in prison in January.

http://www.alternet.org/module/printversion/135937

[ElvisL1ves]

Wonderfully timed update: The DOJ Office of Whitewashing concluded that Bybee and Yoo were guilty only of doing a shitty job with the waterboarding memos under pressure from the WH, not of outright professional misconduct.

Even so,

“While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client,’’ Margolis said.

O, blessed vindication! :rolleyes:

[John_Mace]

@sleeping

Regardless of what the Justice Dept. does, yes, they can still be prosecuted in other countries:

Prosecuting Dick Cheney in another country for conspiracy to torture- practical?

No.

[sleeping]

@ElvisL1ves

Wonderfully timed update: The DOJ Office of Whitewashing concluded that Bybee and Yoo were guilty only of doing a shitty job with the waterboarding memos under pressure from the WH, not of outright professional misconduct.

Even so,

O, blessed vindication! :rolleyes:

From that link:

Philbin said that “given the situation and the time pressures, and they are telling us this has to be signed tonight - this was like 9 o’clock, 10 o’clock at night on the day it was signed - my conclusion’’ was that it was permissible for Bybee to sign the memorandum. “They’’ apparently referred to officials at the White House, but the report does not specify who demanded that the memorandum be signed that night.

So, essentially, Cheney and the rest of the WH is off the hook because the torture is certified as legal by the OLC. Meanwhile, Bybee and Yoo get to keep their law licenses because they were pressured by the WH. Reciprocal vindication.

I wonder if there is any U.S. legal precedent for taking both groups (the OLC and WH) to task for conspiracy, seeing as how they’ve played off the niches of their respective positions to establish a legal framework for torture.

In any event, I doubt these guys will be doing much international travel in their remaining time on this planet.

[sleeping]

@John_Mace

Prosecuting Dick Cheney in another country for conspiracy to torture- practical?

No.

Practical if he ever sets foot in that country.

And they don’t have to wait; he can be tried in absentia, like the CIA agents in Italy.

Also, there is a purpose to such proceedings, even if the accused are never actually punished. They demonstrate that the legal system can still work (even if it’s from afar), that the powerful are not exempt from justice, and that torture has consequences and is just plain wrong.

[Really_Not_All_That_Bright]

@Bricker

No one would reasonably believe that the Attorney General could give someone a memo permitting murder, for instance, but the ultimate question of reasonableness is one for a jury to decide.

Why would anyone believe that the AG could give someone a memo permitting breaking and entering and grand theft?

[CoolHandCox]

@sleeping

Regardless of what the Justice Dept. does, yes, they can still be prosecuted in other countries: [Spain]

I believe Spain scaled back universal jurisdiction last year. There now has to be a “Spanish link” for them to prosecute. While that leaves some wiggle room compared to a strict nationality type jurisdiction (Spanish victim or accused), it’s likely not as broad as pure a pure global jurisdiction like they once had. The question would be does Cheney or the non-Spanish victim have a Spanish link? I guess their courts could say yes, but it seems like a stretch.

The overall point regarding countries prosecuting under a theory of universal jurisdiction is correct, though.

[John_Mace]

@sleeping

Practical if he ever sets foot in that country.

Nope. Never happen. Not to a former VP of the USA.

And they don’t have to wait; he can be tried in absentia, like the CIA agents in Italy.

Nope. Completely different case. They are being charged with violating Italian law-- ie, on Italian soil. This is what we in the trade call a “bad analogy”.

Also, there is a purpose to such proceedings, even if the accused are never actually punished. They demonstrate that the legal system can still work (even if it’s from afar), that the powerful are not exempt from justice, and that torture has consequences and is just plain wrong.

Also, there is a purpose that when this happens, it happens to a country much, much less powerful than the US so as to avoid some very nasty consequences to the arresting country.

Unless, of course, you have examples of someone of the stature of a Dick Cheney having this happen to them. I’ll tell you what-- it can be any cabinet level member.

[sleeping]

@John_Mace

Nope. Completely different case. They are being charged with violating Italian law-- ie, on Italian soil. This is what we in the trade call a “bad analogy”.

::shrug:: Not much to make hay over, John. I’ll throw out Milosevic being tried in absentia at the ICTY.

Also, there is a purpose that when this happens, it happens to a country much, much less powerful than the US so as to avoid some very nasty consequences to the arresting country.

True. But you never know. European countries may overlook crimes that are on par with their own current transgressions, but the outrage over torture has yet to dissipate. And Cheney is no longer VP.

[Bricker]

@Really_Not_All_That_Bright

Why would anyone believe that the AG could give someone a memo permitting breaking and entering and grand theft?

In the Fielding case, they were told that it represented a matter of national security.

Interestingly enough, the Fielding case was legally problematic for another reason. You mention “grand theft” but in fact, nothing physical was stolen from Fielding’s office. They were charged with burglary, which at the time in California was the breaking and entering, into a residence, with the intent to commit a crime therein.

There was no question about the breaking and entering, or the residence (there was an apartment above the office) but the law at the time did not criminalize the acts that the accused did – photographing documents. The prosecution speculated that the burglars must have turned on lights at one point, and thus stolen electricty, but they couldn’t even prove that.

[gonzomax]

@Bricker

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.

Interesting scenario but not the one he was in. Most say that he asked the legal department find some kind of explanation to justify what he wanted to do. Many legal experts deny that the way they found around military, American and International laws is valid. Obamas legal department last week decided not to push the case against Yoo. They did not say what he did was legal and ethical though.

[Bricker]

@sleeping

Regardless of what the Justice Dept. does, yes, they can still be prosecuted in other countries:

Spain has rolled back its sweeping vision of its own universal jurisdiction:

On November 4, 2009, the Spanish government enacted a bill that would limit the reach of its universal jurisdiction law and may restrict Spain’s ability to prosecute serious human rights crimes.

Now, the title of the thread is " Prosecuting Dick Cheney for conspiracy to torture - practical?" Note the final word.

In light of Spain’s amendment to its law, in what country to you contend that prosecuting Dick Cheney for conspiracy to torture will be practical?

[Bricker]

@gonzomax

Interesting scenario but not the one he was in. Most say that he asked the legal department find some kind of explanation to justify what he wanted to do.

“Most say” that? Who says that? And based on what evidence, specifically?

Many legal experts deny that the way they found around military, American and International laws is valid. Obamas legal department last week decided not to push the case against Yoo. They did not say what he did was legal and ethical though.

None of those legal experts are actually outlining ways to secure convictions, though, are they?