The Cheney Series: War Crimes

by hilzoy

The Washington Post's articles (1, 2) on Cheney are just stunning -- so much so that it's hard to know where to begin. If you haven't been reading them in their entirety, do. The second, in particular, is the story of a protracted bureaucratic battle, fought by a master, for the right to commit war crimes. Since this will be long, I'm putting it below the fold.

The US Code defines war crimes to include:

"any conduct (...) (3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict"

And Common Article 3 holds:

"To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

And the US Code prescribes the following penalties for war crimes:

"Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death."

With these laws in mind, consider this passage from the article:

"The vice president's lawyer advocated what was considered the memo's most radical claim: that the president may authorize any interrogation method, even if it crosses the line of torture. U.S. and treaty laws forbidding any person to "commit torture," that passage stated, "do not apply" to the commander in chief, because Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

That same day, Aug. 1, 2002, Yoo signed off on a second secret opinion, the contents of which have never been made public. According to a source with direct knowledge, that opinion approved as lawful a long list of specific interrogation techniques proposed by the CIA -- including waterboarding, a form of near-drowning that the U.S. government classified as a war crime in 1947. The opinion drew the line against one request: threatening to bury a prisoner alive."

Or this charming sentence:

"The new Army field manual, published the next day, said that interrogators were forbidden to employ a long list of techniques that had been used against suspected terrorists since Sept. 11, 2001 -- including stripping, hooding, inflicting pain and forcing the performance of sex acts."

Think about that.

The article also makes it clear that Cheney regards the President as completely above the law:

"According to participants in the debate, the vice president stands by the view that Bush need not honor any of the new judicial and legislative restrictions. His lawyer, they said, has recently restated Cheney's argument that when courts and Congress "purport to" limit the commander in chief's warmaking authority, he has the constitutional prerogative to disregard them."

Or, in short: there are no legal limits at all on the President's power. In wartime, he can do literally anything..

This is also clear from the article's accounts of Cheney's discussions of legal strategy. Time after time, various people say to Cheney and his staff: look, you need to realize that this line of argument will never be accepted by the courts. And every time, Cheney's response is: we insist on everything; we concede nothing; screw them. There is, as far as I can tell, no acknowledgement of the fact that the Courts have an independent role in setting out the legal limits on the actions of the Executive, or that they are anything more than an annoying hoop that has to be jumped through. Similarly with the Congress.

For this reason, it's not surprising that Cheney treats reversals of his policies in the Courts, or Congressional action overruling them, not as setting limits on what he should do, but as minor setbacks in a bureaucratic war, setbacks that he can overturn through deviousness and persistence. It's worth stopping to think about how wrong this is. When the Courts say that some policy is unconstitutional, or when the Congress outlaws it, the proper response is to say: Oh. Right. I guess I can't do that. It is not to say: If I disguise what I'm doing, if I apear to concede ground while in fact conceding nothing, if I am sufficiently stealthy and ingenious, then I can find a way to keep on doing it. To respond in that way to the Courts and Congress is to mistake people who can set legal limits to your conduct for bureaucratic opponents, who can be worn down by persistence and obduracy, or circumvented by stealth. But that is Cheney's consistent response.

It's hard to think of anything more completely at odds with our system of government, or more dangerous to it.

Comments

[Francis]

somehow i don't think Dick Cheney will ever leave the US. there must be people at The Hague who would want to bring a war crime prosecution against his bones.

[A.L.]

What's amazing to me about this second installment is the direct line it draws between Cheney's decisions and the abuse that would later take place at Abu Ghraib and elsewhere. The causal link is so clear. I wonder if Cheney and Addington feel even the slightest bit of responsibly for have enabled that horror show.

[Tom]

I'd love to see Cheney prosecuted somewhere in the world. Hard to see it happening, though, because the other thing about the Vice-President's office is that legally he has very few powers. He's not officially responsible for telling the military or the CIA or anyone else to commit war crimes. He just has all this unofficial influence because of the president's shortcomings. It's insidious.

[J Thomas]

But Tom, if Cheney's position is correct then he doesn't have to get prosecuted at all. The next president can just have him detained indefinitely while we find out what crimes he'll confess to. Perhaps we can have a trial later, but there's no particular need to.

[Hartmut]

I asked in another thread, whether pardoned US citizens could be extradited to a non-US court. No answer yet. The German constitution explicitly bans it (though, I think, there is now an exception concerning international courts) but I don't know about the US.
In short: if GWB grants blanc pardons to all his hench-beings/accomplices/co-conspirators/etc., can the next president send them to the Hague nonetheless because the pardon only covers US jurisdiction?

Anyway, I consider it extremly unlikely that any of heavies in the Chain-Eye/Shrub administration will face serious legal consequences (though I would advise them to prepare for non-legal attempts on their life and health). And even if they were put behind bars, the next GOP president would get them out again.

A US trial would be preferable (especially, if it also included members of former administrations of both parties) over an international one (could only help the US image abroad and undermine claims of illegitimacy at home).

My personal preferences (although I am no friend of capital punishment): Cheney & Rummy hung, Bush left to rot in a non-luxury prison for the rest of his life (and may it be long). A few others (e.g. Gitmo-Miller) could also be rope candidates but on average long or permanent prison sentences would do a better job.
Maybe the investment in Gitmo could serve a honorable purpose after all.

[J Thomas]

Hartmut, I think it's still an open question whether a president can pre-emptively pardon his minions for any crime they might later be accused of.

If the SC rules negative on that, then the simple solution is to send them all to Gitmo until they confess to something they haven't already been pardoned for.

[Hartmut]

Given that it is very unlikely that a trial would start before Bush leaves office, pardons could be very specific. I have severe doubts that the current SC would overturn something explicit (though maybe a blanc cheque). I do not doubt that Bush will try this type of "vaccination". But, cynic that I am, I doubt that it will even be necessary. A GOP victor in 2008 would not prosecute them in order not to set a precedent for himself and a Dem would fear the cry of partisanship. A precedent of a hung US president would also open the gate for a mercyless tit-for-tat because I think (almost) all presidents have committed hanging offenses during their time (if the laws were applied by the letter).

[Garth]

Get ready to start arguing about "secret pardons" and "post-executive" privilege.

lol

[Garth]

personally, i would love to see President Gore extradite Herr's Cheney, Addington, Busch and Gonzo to Iraq for war crimes trials.

then i could watch the hangings on youtube.

[Hartmut]

I really have to check, whether that would be legal (oh, that it were!) (over here extradition with risk of death is constitutionally banned).

[OutOfContext]

I've only read the first article completely. What struck me was the quote that Cheney believes in the "educational use of power". Nice.
Also, is there any evidence anywhere-anywhere-that Alberto Gonzalez is anything more than a flunky? From the President calling him 'Fredo' to Yoo saying Gonzales was a token member of the 'triumvirate' looking to expand executive power because 'he didn't have very developed views'.
And what a triumph of the will by Cheney. He heads the selection committee which choses him as VP. Then he exercises maximum power while at the same time claiming that he has minimal actual legal status to avoid accountability.
Another blogger I read questioned whether Cheney's Vice Presidency would place greater public scrutiny on the '08 candidates in regards to their VP choices. I don't think so, except that we would want a candidate to promise a more traditional, understudy type role for the VP.

[Hartmut]

Hm, a cursory look at the statutes didn't come up with an explicit ban of the extradition of US citizens to a foreign entity. Looks like it is open to the interpretation of the Secretary of State of bilateral treaties concerning extradition.

[Garth]

i missed that quote; "the educational uses of power..." sort like that there education he dropped on Joe Wilson as a warning shot to any other yappers out there.

[Garth]

is that an orwellian euphamism or what?

[Garth]

hartmut,

kissinger has had problems along these lines with pesky subpoena's showing up in various countries. hitchens describes a frantic kissinger fleeing paris when he learned that he was going to be served with a subpoena concerning Chilean War Crimes.

hilarious.

he looks like a little scamp alongside Cheney and Donny.

[Nell]

he looks like a little scamp alongside Cheney and Donny.

No he doesn't. He has the blood of literally millions of Vietnamese, Laotians, Cambodians, and Timorese on his hands. And several thousand Chileans and other South Americans. He's soaking in it.

[Gary Farber]

"Hartmut, I think it's still an open question whether a president can pre-emptively pardon his minions for any crime they might later be accused of."

No, it isn't. See here, for instance, from "Presidential Power Unbound: A Comparative Look at Presidential Pardon Power":

[...] Having established the pardon power and
locating it with the executive, the Framers turned to the question of checking
or limiting it. [...] A related matter concerned timing: when could a pardon be granted? Some felt the pardon should be limited to post conviction only, but James Wilson countered by suggesting that a pardon might be helpful in obtaining incriminating evidence or testimony against alleged crimes (Humbert 1941). In the end, this argument was persuasive.

Ford's pardon of Nixon said:

Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from July (January) 20, 1969 through August 9, 1974.

That's all offenses in that period, accused, or unaccused.

And FWIW, Wikipedia:

[...] A presidential pardon may be granted at any time after commission of the offense; the pardoned person need not have been convicted or even formally charged with a crime. Clemency may also be granted without the filing of a formal request and even if the intended recipient has no desire to be pardoned.

The pardon power of the U.S. President is close to absolute; the major out is that it doesn't cover future offenses, of course. But the past? Pretty much absolute until such time as a Constitutional amendment changes that.

[J Thomas]

The pardon power of the U.S. President is close to absolute; the major out is that it doesn't cover future offenses, of course.

Unfortunate.

Perhaps they could be sent to Gitmo for 8 or 12 years while we debate abstruse legal arguments about whether they need to be charged with crimes?

[Hartmut]

Again, does a presidential pardon also block the possibility of extradition to a non-US entity? The extradition statute seems not to, if the extradition demands seems reasonable to the SecState but I don't know about limiting legislation or precedent outside that statute.

[Anderson]

Two questions for the knowledgeable:

(1) The torture statute -- these days, I guess I have to say, the anti-torture statute -- directly applies only to acts committed outside the United States. Does that also apply to the conspiracy portion, or could conspiracy within the U.S. to violate the statute outside the U.S. be prosecuted? (I realize this is probably an issue of first impression.)

(2) Haven't got time to research it -- or to write this comment, frankly -- but the immunity provisions of the MCA have been eating at me. Are they constitutional? I'm groping for an equal-protection argument ... say that Yoo and I violate the War Crimes Act, but then Yoo is immunized by statute and I'm not. In other words, it's a crime for some people to do those acts, but not others. Is that an EP problem?

[Katherine]

(1) I don't think it's been litigated, but I've read a law review article by Yoo admitting that if the torture takes place outside the United States, that's probably sufficient, even if the conspiracy is inside the U.S.

(2) I don't think the immunity provisions immunize specific people that way; it's just that they narrow the definitions of certain war crimes, and some of the definitions are even narrower for acts that pre-date the law than for subsequent acts.

Caveat: I may be forgetting something. Do you have a speciifc portion of the statute in mind?

[Anderson]

Ach, you're right, K. -- it had been a while since I ventured into the MCA's thickets. It *would* have been a good argument however.

If Yoo admits that the conspiracy count works, then that's good enough for me. I'll reserve the issue of whether Gitmo, U.S.-controlled bases, "black sites," etc., are "outside the U.S."

[I.M. Small]

BRING THEM TO THE DOCK

Lord, bring them to the dock, and let us see
These cronies at the Hague: there has to be

Convoked tribunal of a sort, or else
Semblance of justice all be proven false.

An international court, when that supreme
In these United States--bankrupt esteem--

Has ceased to function, be established then:
We must have law rule equally all men.

Lord, in these wretched days, executives
Claim special privilege, as ergo arrives

Unto a power that is absolute:
This be revoked, so let law´s rule refute.

Convoke today tribunal in the Hague,
That justice be not thwarted, or renege

The individual man from what is his
Responsibility: I pray for this.