The Last Gasp of Equality Before the Law?

Two weeks ago, I wrote a post entitled No One Is Responsible about the fact that, to date, nobody has been prosecuted - or even strongly disciplined - for driving the policy that saw the United States adopt torture as a tool in the "War on Terror."  Last weekend, former Vice President Dick Cheney decided that the degradation of America's rule of law was not complete, and openly boasted that he "was a big supporter of waterboarding."

Andrew Sullivan evaluates what this means succinctly and accurately:

There is not a court in the United States or in the world that does not consider waterboarding torture. The Red Cross certainly does, and it's the governing body in international law. It is certainly torture according to the U.N. Convention on Torture and the Geneva Conventions. The British government, America's closest Western ally, certainly believes it is torture. No legal authority of any type in the U.S. or the world has ever doubted that waterboarding is torture. To have subjected an individual to waterboarding once is torture under U.S. and international law. To subject someone to it 183 times is so categorically torture is it almost absurd to even write this sentence.
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So the former vice president has just confessed to a war crime. I repeat: the former vice-president has just confessed to a war crime.

There is no statute of limitations for such a crime; and the penalty under law is either the death penalty or a prison sentence for life.

Nations who are party to these treaties must enact and enforce legislation penalizing any of these crimes.  Nations are also obligated to search for persons alleged to commit these crimes, or ordered them to be committed, and to bring them to trial regardless of their nationality and regardless of the place where the crimes took place. The principle of universal jurisdiction also applies to the enforcement of grave breaches. Toward this end, the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia were established by the United Nations to prosecute alleged violations.

The question is therefore not if, but when, he is convicted as a war criminal - in his lifetime or posthumously.

In fact, the Attorney General of the United States is legally obliged to prosecute someone who has openly admitted such a war crime or be in violation of the Geneva Conventions and the U.N. Convention on Torture. For Eric Holder to ignore this duty subjects him too to prosecution. If the U.S. government fails to enforce the provision against torture, the U.N. or a foreign court can initiate an investigation and prosecution.

These are not my opinions and they are not hyperbole. They are legal facts. Either this country is governed by the rule of law or it isn't. Cheney's clear admission of his central role in authorizing waterboarding and the clear evidence that such waterboarding did indeed take place means that prosecution must proceed.

Cheney himself just set in motion a chain of events that the civilized world must see to its conclusion or cease to be the civilized world. For such a high official to escape the clear letter of these treaties and conventions, and to openly brag of it, renders such treaties and conventions meaningless. 

Mr. Sullivan is exactly right.  There are any number of politicians and pundits who have gone to great lengths to portray waterboarding as some sort of controversial "enhanced" interrogation technique that might or might not be illegal.  It isn't.  It is a criminal act, and with the exception of apologists for George W. Bush, has been regarded as such for a long, long time.  Torture is not a "policy difference".

The Obama White House has so far been feckless and cowardly in pursuing legal redress for the criminal acts of the previous administration.  Dick Cheney just raised the stakes in this matter to the table limit, and while I deeply regret this assessment, my bet is that Mr. Obama lacks the guts and integrity to call his bluff.  I would love nothing more than for Attorney General Holder to prove me wrong, but I have a terrible feeling that Valentine's Day 2010 is the date equality before the law died choking on the shovelfuls of disdain that have been thrown into its  shallow grave since 2001.

If there was any doubt that there are two systems of justice in this country - one for the rich and powerful and one for everyone else - Mr. Cheney's performance on Saturday  certainly confirmed that he not only believes that to be the case, but that he clearly thinks he's untouchable.  He's probably right, and of all the horrible things that were done by the last administration, that is the deepest and most lasting tragedy of George W. Bush's presidency.