Saturday, February 20, 2010

Tortured Torture Accountability

Last week, Dick Cheney took ownership not only of the Bush administration torture regime, acts that constitute war crimes under US civil code and international law. He also took authorship of its accountability.

Here's how Scott Horton put it:

“I was a big supporter of waterboarding,” Cheney said in an appearance on ABC’s This Week on Sunday. He went on to explain that Justice Department lawyers had been instructed to write legal opinions to cover the use of this and other torture techniques after the White House had settled on them.

Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture? Cheney told Jonathan Karl that he used his position within the National Security Council to advocate for the use of waterboarding and other torture techniques. Former CIA agent John Kiriakou and others have confirmed that when waterboarding was administered, it was only after receiving NSC clearance. Hence, Cheney was not speaking hypothetically but admitting his involvement in the process that led to decisions to waterboard in at least three cases.

Cheney admitted to war crimes. War crimes according to "normal beliefs," that is, as John Dean said.

Waterboarding is torture. The only people still disputing this are those who have supported torture but somehow also know it's illegal and immoral, thus needing to make the case that waterboarding is not torture, or at least not the icky Inquisitional kind. The waterboarding-is-not-torture schtick is a red herring, or perhaps a macabre form of catharsis. But waterboarding is torture and, until Cheney, considered to be so even by the United States government, which at the end of World War II prosecuted and sentenced for war crimes a Japanese soldier who had used waterboarding.

Before someone says, "well, 9-11 changed everything," note that torturing states or groups have usually cited as an excuse some form of crisis. In this "state of necessity," a sense of urgency as defined by the torturers somehow suspended the most basic principles of morality and crystal clear law. The self-declared state of necessity somehow bestowed upon the torturers the power of God, as it were.

Let's make this an easy-to-digest hypothetical syllogism. If it's waterboarding, it's torture. If it's torture, it's a war crime. Therefore, if it's waterboarding, it's a war crime. Cheney stated, "I was a big supporter of waterboarding." Cheney in essence has said, "I was a big supporter of a war crime."

He has taken ownership. Now what?

More later.


Anonymous said...

While I agree that waterboarding is torture, the argument you have presented for that premise isn't very strong. The most compelling legal argument I have heard is that in the war crimes trials after World War II it was among the practices listed as torture by the international court, and some Japanese military leaders were found guilty of torture for using it. Imo, Cheney should be prosecuted based on this precedent.

MT said...

I could that I was a big supporter of the murder of my neighbor's cat by my dog, but that wouldn't make me guilty of the crime or of my dog's policy, prior to the event, of seeking to murder the cat at every opportunity (this is a hypothetical). I suspect Cheney hasn't stuck his neck out legally much farther than it already was. I can see why it might be a good campaign move. "Vote for the water boarders or let the American-hating lefties portray the American people as torturers!"

helmut said...

The difference is that "support" is passive in your example and active in Cheney's.

MT said...

My point is that his "support" seems still not to have been declared active (or even contemporaneous, with reference to and in awareness of specific instances of water boarding) officially or by him.