February 21, 2010

UPDATED: The Straightforward Case for Prosecuting Dick Cheney as a War Criminal

AUTHOR'S NOTE (February 21, 2010; 4:14pm CST): In another forum, the point was made that saying "I'm a big supporter of waterboarding" is not, of itself, a crime. That is absolutely true. The issue with former Vice President Cheney however, is that he claimed he "was a big supporter" of waterboarding in the context of creating policy that was then carried out by subordinates.  For additional background on Mr. Cheney's remarks, please see The Last Gasp of Equality Before the Law?

In my last post, I described the amazing turn of events that took place on Valentine's Day, when, after former Vice President Dick Cheney proudly declared on national television that he was a "big supporter of waterboarding", both the media and the federal government did precisely... nothing.  To those who have not been following the issue of officially sanctioned torture by the White House, this might not, in fact, be all that amazing, so in this post, I will lay out the very simple, straightforward, un-hyperbolic, non-fringe reasons why Dick Cheney should be prosecuted as a war criminal.

Part One: The Constitutional Rights of Foreign Nationals

The Constitution of the United States applies to foreign nationals on American soil or in American custody, and this has been amply supported by case law.   If it did not, it would be permissible for the government to simply kidnap foreign tourists off the street, imprison them indefinitely, and physically abuse them as it chooses.   (For more information, see Glenn Greenwald's excellent article on the topic.) 

Clearly this is not the case, and the contention that we need to worry about "giving terrorists" in our custody rights is - bluntly - stupid. They have rights already, despite the best efforts of people in power to pretend it isn't so. If one doesn't like that fact, passing an amendment to the Constitution is an option, but in the meantime, those are the breaks. Stating otherwise is arguing from a position of political fantasy; it might feel good, but it is no way supported by reality.

Part Two: The Outright Illegality of Waterboarding

We are either a nation of laws or we are not, and we either follow the Constitution or we don't. By definition, neither can be obeyed "sometimes" or only when it's convenient to do so. The law of the land states - flatly - that not only is torture illegal, but that there are no exceptions to this rule. And lest anyone think this is because of some left wing plot, President Ronald Reagan is the man responsible.  His signature and the approval of the Senate made the United Nations Convention Against Torture American law.

Further, waterboarding is unquestionably torture unless, apparently, you have done it to someone, ordered it done to someone, voted for the president who made it part of American policy, think Sean Hannity is a smart, well-informed guy, or haven't bothered to do some very basic reading. To everybody else in the world, waterboarding is torture, period, and has been so legally defined for decades. The U.S. courtmartialed American personnel who did it during the Vietnam conflict, and prosecuted Japanese soldiers who waterboarded U.S. POWs in World War II.

Therefore, if Dick Cheney or anyone else admits to being a "big supporter of waterboarding" he admits to being a "big supporter of torture".  And if he is or was in a position to successfully influence or directly command others to torture and does so, he is guilty of - at a minimum - conspiracy to carry out a crime.

Part Three: Equality Before the Law

If anyone off the street appears on television and admits to committing a plainly illegal act - as Dick Cheney did on Valentine's Day - he should be prosecuted to the full extent of the law. There are no protected classes in the United States, there is no aristocracy, and there is no one to whom the law does not apply. If one thinks there should be, the opportunity exists to pass a law making it so, but until such a time, equal justice is a central tenet of the American system.


This whole matter is, at its heart, an extremely simple issue. Pretending that politicians are not subject to the same laws as everyone else, that waterboarding isn't torture, or that we ought to be framing our actions based on what al-Qaeda does isn't just unhelpful, it is deeply detrimental to everything for which the United States is supposed to stand.  In fact, lobbying for inequality before the law and supporting the physical abuse of prisoners is about as un-American as it gets.

And that is why Dick Cheney should be prosecuted for war crimes.

CREDO Action has a petition here if you'd like to add your name to those calling on Attorney General Eric Holder to perform his legal obligation and indict  the former vice president.

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