Torture Without Regrets
Cheney's Unrepentent Confession
By MARJORIE COHN

Weekend Edition
December 19 - 21, 2008
http://www.counterpunch.org/cohn12192008.html

Dick Cheney has publicly confessed to ordering war crimes. Asked about
waterboarding in an ABC News interview, Cheney replied, `I was aware of
the program, certainly, and involved in helping get the process
cleared.' He also said he still believes waterboarding was an
appropriate method to use on terrorism suspects. CIA Director Michael
Hayden confirmed that the agency waterboarded three Al Qaeda suspects
in 2002 and 2003.

U.S. courts have long held that waterboarding, where water is poured
into someone's nose and mouth until he nearly drowns, constitutes
torture. Our federal War Crimes Act defines torture as a war crime
punishable by life imprisonment or even the death penalty if the victim
dies.

Under the doctrine of command responsibility, enshrined in U.S. law,
commanders all the way up the chain of command to the
commander-in-chief can be held liable for war crimes if they knew or
should have known their subordinates would commit them and they did
nothing to stop or prevent it.

Why is Cheney so sanguine about admitting he is a war criminal? Because
he's confident that either President Bush will preemptively pardon him
or President-elect Obama won't prosecute him.

Both of those courses of action would be illegal.

First, a president cannot immunize himself or his subordinates for
committing crimes that he himself authorized. On February 7, 2002, Bush
signed a memo erroneously stating that the Geneva Conventions, which
require humane treatment, did not apply to Al Qaeda and the Taliban.
But the Supreme Court made clear that Geneva protects all prisoners.
Bush also admitted that he approved of high level meetings where
waterboarding was authorized by Cheney, Condoleezza Rice, John
Ashcroft, Colin Powell, Donald Rumsfeld and George Tenet.

Attorney General Michael Mukasey says there's no need for Bush to issue
blanket pardons since there is no evidence that anyone developed the
policies `for any reason other than to protect the security in the
country and in the belief that he or she was doing something lawful.'
But noble motives are not defenses to the commission of crimes.

Lt. Gen. Antonio Taguba, who investigated the Abu Ghraib scandal, said,
`There is no longer any doubt as to whether the current administration
has committed war crimes. The only question that remains to be answered
is whether those who ordered the use of torture will be held to
account.'

Second, the Constitution requires President Obama to faithfully execute
the laws. That means prosecuting lawbreakers. When the United States
ratified the Geneva Conventions and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, thereby
making them part of U.S. law, we agreed to prosecute those who violate
their prohibitions.

The bipartisan December 11 report of the Senate Armed Services
Committee concluded that `senior officials in the United States
government solicited information on how to use aggressive techniques,
redefined the law to create the appearance of their legality, and
authorized their use against detainees.'

Lawyers who wrote the memos that purported to immunize government
officials from war crimes liability include John Yoo, Jay Bybee,
William Haynes, David Addington and Alberto Gonzales. There is
precedent in our law for holding lawyers criminally liable for
participating in a common plan to violate the law.

Committee chairman Senator Carl Levin told Rachel Maddow that you
cannot legalize what's illegal by having a lawyer write an opinion.

The committee's report also found that `Rumsfeld's authorization of
aggressive interrogation techniques for use at Guantánamo Bay was a
direct cause of detainee abuse there.' Those techniques migrated to
Iraq and Afghanistan, where prisoners in U.S. custody were also
tortured.

Pardons or failures to prosecute the officials who planned and
authorized torture would also be immoral. Former Navy General Counsel
Alberto Mora testified to the Senate Armed Services Committee in June
2008 that `there are serving U.S. flag-rank officers who maintain20that
the first and second identifiable causes of U.S. combat deaths in Iraq
` as judged by their effectiveness in recruiting insurgent fighters
into combat ` are, respectively the symbols of Abu Ghraib and
Guantánamo.'

During the campaign, Obama promised to promptly review actions by Bush
officials to determine whether `genuine crimes' were committed. He
said, `If crimes have been committed, they should be investigated,' but
`I would not want my first term consumed by what was perceived on the
part of the Republicans as a partisan witch hunt, because I think we've
got too many problems we've got to solve.'

Two Obama advisors told the Associated Press that `there's little-if
any ` chance that the incoming president's Justice Department will go
after anyone involved in authorizing or carrying out interrogations
that provoked worldwide outrage.'

When he takes office, Obama should order his new attorney general to
appoint an independent prosecutor to investigate and prosecute those
who ordered and authorized the commission of war crimes.

Obama has promised to bring real change. This must be legal and moral
change, where those at the highest levels of government are held
accountable for their heinous crimes. The new president should move
swiftly to set an important precedent that you can't authorize war
crimes and get away with it.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and the
president of the National Lawyers Guild. She is the author of Cowboy
Republic: Six Ways the Bush Gang Has Defied the Law. Her new book,
Rules of Disengagement: The Politics and Honor of Military Dissent
(with Kathleen Gilberd), will be published in March by PoliPointPress.
This is the second in a series of articles that argue for ratification
of the remaining major human rights treaties.