Manning and Cheney

by Henry on July 30, 2013

Since it’s timely, I’m republishing my modest proposal from last year, one half of which is meant in all seriousness:
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It’s not at all surprising that most US media have yawned at today’s news that a UN rapporteur has found that the US has treated Bradley Manning in a cruel and inhuman fashion. But it does highlight a rather interesting inequity.

On the one side of the balance sheet, we have Richard B. Cheney. This gentleman, now in private life, is a self-admitted and unrepentant perpetrator of war crimes – specifically, of ordering the torture of Al Qaeda detainees. Along with other senior members of the Bush regime, he is also guilty of the outsourcing of even viler forms of torture through the extraordinary rendition of individuals to regimes notorious for torturing prisoners (including the dispatch of Maher Arar, who was entirely innocent, to the torturers of Syria). The Obama administration has shown no enthusiasm whatsoever for prosecuting Cheney, or other Bush senior officials, for their crimes. While Obama has effectively admitted that they were torturers, he has indicated, both through public statements and continued inaction, that he would prefer to let bygones be bygones.

On the other, we have Bradley Manning. He appears to be a confused individual – but his initial motivation for leaking information, if the transcripts are correct, were perfectly clear. He was appalled at what he saw as major abuses of authority by the US, including incidents that he witnessed directly in Iraq. There is no evidence that his leaking of information has caused anything worse than embarrassment for the US. Yet he is being pursued by the Obama administration with the vengefulness of Greek Furies. While Manning was being kept in solitary confinement, and treated in an inhuman fashion, Richard Cheney was enjoying the manifold pleasures of a well-compensated private life, being subjected to no more than the occasional impertinent question on a Sunday talk show, and the inconveniences of being unable to travel to jurisdictions where he might be arrested.

It would appear then that the administration is rather more prepared to let bygones be bygones in some cases than in others. High officials, who ordered that torture be carried out and dragged the US into international disrepute, are given an ex post carte blanche for their crimes, while a low-ranking soldier who is at most guilty of leaking minor secrets at the lowest levels of classification, is treated inhumanely and likely, should he be convicted, to face life imprisonment.

So here’s my proposal. It’s perfectly clear that Richard B. Cheney will never be prosecuted because a prosecution would be politically inconvenient. If that’s the Obama administration’s decision (and it’s pretty clear that it is the Obama administration’s decision), then the administration should own it. The president should grant Richard Cheney a pardon for his crimes. Simultaneously, as an acknowledgement that the high crimes of state officials should not go unpunished while the lesser crimes of those who opposed the Iraq war are exposed to the vengefulness of the military tribunal system, Bradley Manning should receive a complete pardon too.

I can’t imagine that Richard B. Cheney would like getting a presidential pardon. Indeed, I rather imagine that he’d vigorously protest it. It would serve as the best formal acknowledgment that we’re likely to get that he is, indeed, a criminal. Obviously, it would also be an unhappy compromise for those who think that he should be exposed to the full rigors of the law. But I personally think that it would be an acceptable compromise (others may reasonably disagree), if it were applied to both sides rather than just one.

{ 41 comments }

1

Uncle Kvetch 07.30.13 at 7:27 pm

Thank you. Well worth the repost.

2

P O'Neill 07.30.13 at 7:36 pm

Off-topic but in the realm of CT causes, MIT has a report out on the Aaron Swartz case.

3

musical mountaineer 07.30.13 at 9:32 pm

Under what authority would the Obama administration prosecute Cheney? I’m asking, not because I think it’s some kind of argument-stopper, but because I don’t know. What law, in what jurisdiction, did Cheney break?

4

Layman 07.30.13 at 11:16 pm

mountaineer @3

18USC 2340 is the US federal statute which outlaws torture. It’s a federal law.

The definition of torture used is as follows:

1.”torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
2.”severe mental pain or suffering” means the prolonged mental harm caused by or resulting from – (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality

Waterboarding pretty clearly falls within 2C, if nowhere else. A legal fiction cited to allow waterboarding was that interrogators first told the person they wouldn’t be killed, then waterboarded them. As if one’s rational mind will overcome the blind panic of drowning, and 2C won’t apply.

5

musical mountaineer 07.31.13 at 1:45 am

Thanks, Layman. I don’t see the need for speculative scenarios to bring waterboarding under the statute by 2(c). I’d say it clearly qualifies as torture under definition 1. But I guess that’s something people argue over, and maybe you didn’t feel like arguing.

What I’m not so sure of is this “under the color of law” bit. Supposing Cheney was prosecuted for his role in authorizing torture, his defense might argue that no torture was conducted for law enforcement purposes, but only for national defense. I don’t know whether that holds any water as a legal argument, but as an historical/political argument it’s very strong. There never was a war where torture wasn’t used by both sides.

I know at second-hand from multiple sources that torture was commonly used by both sides in Vietnam. No particular effort was made to conceal American torture practices from rank-and-file personnel. Everybody knew about it, and many could have borne direct witness to the permanent and horrific maiming of enemy captives. They wrote home about it, and their letters were not censored. It never occurred to anyone to think these common practices might be prosecutable as crimes.

I knew a man who served on a Navy boat in Gulf War I. Some Iraqi captives were brought on board the vessel, and beaten within an inch of their lives in full sight of everyone. They were then locked in lightless confinement without access to water for several days. Again, it doesn’t seem to have occurred to anyone that this might be a problem. The witness I heard the story from was a low-ranking sailor, not some spec-ops interrogator or anything. He saw no reason to keep the story secret from his civilian friends (you could tell it wasn’t a pleasant memory).

Early in his presidency, Barack Obama was making noises about Dick Cheney’s torture and rendition policies. Cheney just smiled and dared the President to make public exactly what was done, what information was gained, and the overall results. Obama backed down. Whatever the law may say, there is near-universal agreement that torturing terrorists, in and of itself, is okay. Obviously, any policy that uses torture against terrorists risks torturing innocents as well, and there are other compelling arguments for not using torture at all. But torturing terrorists, in and of itself, is if anything the opposite of a political liability. The guy who is going to get in trouble politically, is the guy who makes a stink about it.

The reason Manning gets such harsh treatment is not because of any harm he may have done. It’s along the lines of “man thou art to be hanged not for stealing a horse, but that horses may not be stolen”. Pretty much everything this administration does is either a political debacle or a crime, if the truth were known. So they can be counted on to make a grim example of anyone who makes the truth known, however harmlessly.

6

Collin Street 07.31.13 at 8:54 am

“Colour of law” means “under claimed or purported legal authority”. You can’t say “authorised by law” because the actions aren’t authorised by law, and you can’t say “committed by people acting as government agents”, say, because you don’t want to criminalise spouse abuse by police officers under that particular head. So you need a way to say, “done by people who claim to be acting under proper authority but are lying or mistaken”, and “colour of law” is the construction chosen. “colour of law”: has the appearance of law, but not the actuality. Whether the claims purport to be rooted in war-fighting or law-enforcement or what-have-you doesn’t matter, because the claims are false and the authority doesn’t exist and can’t come from anywhere.

US civil-rights legislation uses the same construction, and for the same reason: it was framed to bind in their private capacity people who purport to be acting in the state’s authority.

[it's tied up with the common-law position that the state can't commit criminal acts because for the state to authorise an action it is ipso-facto legal: criminal acts must be therefore private and unauthorised. Framing the language to express that understanding is tricky.]

7

chris y 07.31.13 at 8:59 am

The president should grant Richard Cheney a pardon for his crimes.

The first step would be to have a president who was clearly not implicated in war crimes him/herself.

8

Layman 07.31.13 at 1:09 pm

Mountaineer @ 5

I’m having a hard time unpacking what you wrote. This is what I get:

You agree torture is illegal, and waterboarding is torture. But it happens all the time in war. Cheney did it, bragged about it, and dared Obama to prosecute him. Obama backed down because the people like torturing terrorists. Obama sucks, and he’s abusing Manning as a warning to others not to expose how much he (Obama) sucks.

9

Chris E 07.31.13 at 1:37 pm

The problem is that you assume that the American support for human rights is more complete than it is.

There are plenty of issues over which large segments of the population would be happy to descend into savagery. They agree with torture of terrorists in the concrete – and not just in abstract ticking bomb situations – that it might be illegal is kind of beside the point.

10

yospehus 07.31.13 at 4:11 pm

Cheney could also be prosecuted for lying to congress (in the run-up to the war) and obstruction of justice and treason (in the Valerie Plame case and others). I think pardoning him is a hilarious, almost Gandhian idea.

11

Ronan(rf) 07.31.13 at 6:52 pm

musical mountaineer
I assume the difference is it’s difficult to prove executive authorisation in the cases you mention, whereas the rendition/torture program was unique in that it left a paper trail showing how it was authorised and justified, more or less
I also assume (and those ‘assume’ aren’t smarmy, it’s genuinely an assumption) that the US is bound to a greater extent by domestic and international human rights laws than it was 50 years ago
Although I personally dont know if there is a *domestic* legal case against Cheney (I’m pretty sure there is a potetnial international one though?)

12

musical mountaineer 07.31.13 at 7:49 pm

Layman @8: You got it right. If you felt like you were having trouble unpacking it, that’s probably because you expected to find an argument or a point in there, and there wasn’t one. I merely offered some factual observations which mostly aren’t controversial, but which may help to explain why Cheney won’t get a trial and Manning won’t get a pardon.

13

Collin Street 07.31.13 at 8:49 pm

Ain’t no such thing as a neutral statement. People say things to communicate things, and the things they say are usually the reasons for the things they wish to communicate, and not the things they wish to communicate themselves.

14

musical mountaineer 07.31.13 at 9:14 pm

the rendition/torture program was unique in that it left a paper trail

That is fascinating. That may be important.

A while back I read something which said that if Hitler* had been caught alive, it would have been difficult to make a legal case against him, because he never issued any official written orders with regard to the epochal crimes of his regime. He could have said, “hey, I just read about it in the papers, same as you”. There was no documentary proof.

I already said that torture and war are inseparable. It also happens that war is inevitable. I do not like it, but there it is. If you like your civilization and you want to keep it, you’ll have to sign on for torture one way or another. The only question is, what is the least-worst way?

My best guess: make torture illegal in all circumstances. If you grant an exception for torturing terrorists or whatever, you might as well just legalize torture and be done with it. Any legal regime which allows torture under some circumstances, can easily allow torture under any circumstances. Expand the definition of terrorist, or whatever.

Torture would still happen in war, even under prohibition. But it wouldn’t be a question of “fill out this form and check this box”. It’d be a question of “put your life and reputation on the line, to do what every decent person would deem necessary, however horrible, though you end up paying a catastrophic personal price”. Given the moral stakes, I think it’s reasonable to expect that level of commitment from anyone who picks up the pliers and goes to work in a good cause.

Which means the only hope of discovered torturers would be the mercy of the court, or of the people. The extenuating circumstances. The demonstrated, clear preferability of the chosen course of action. The pardon. If you act extra-legally, then you wager your existence on the super-legal elements of the institution, including democratic/political processes.

Which is what Dick Cheney seems to have done. Not for him, this business of blaming what happened on “rogue elements” or whatever. No, he put his signature on it. And as it turns out, not even God incarnate can prosecute.

Torture: let’s keep it completely unsafe, illegal, and rare.

* No sensible person respects Godwin’s law. That Nazi shit happened, and it reveals a great deal about human nature and the, uh, complications of power. It’s stupid to say we can’t talk about it.

15

musical mountaineer 07.31.13 at 9:27 pm

Someone will probably say that torture is not effective in any circumstances. They are wrong.

Torture is no good for:

* proving the innocence of the person being tortured

Torture is highly effective when it comes to:

* obtaining false confessions for propaganda purposes
* obtaining useful information from those who actually have it
* demoralizing the enemy

Every once in a while you come across a tough son of a bitch who won’t be tortured no matter what you do. This phenomenon, while real, is statistically insignificant.

16

john in california 08.01.13 at 12:18 am

I don’t really give a shit about cheney. The most that can be hoped for is that he is struck by the lightning of conscience, but from his remarks since leaving office , you’d be more likely betting Gdub would paint a masterpiece of his Big Toe. So forget cheney, and as for torture, their are still plenty of dems that either approved or looked the other way and they should be held accountable, at every town meeting and election debate we can attend.
But Bradley Manning and Assaunge and Snowden still must be freed. This will require pardons and that will require grassroots pressure ( us!) to make it happen. Gassing on the internet won’t do it. This summer is the time to be looking for candidates who will make this central to their campaigns. Even something as stupid as wearing a “Free Bradley Manning ” Tee shirt can tell a lot of people where you stand and help them see that it’s ok to stand with you.

17

Ben 08.01.13 at 1:42 am

musical mountaineer, I love that argument. People as varied as Richard Epstein and Zizek have made it: give an inch and they’ll take a mile, and the politics of enforcing a strict ban are much much easier than enforcing even a relatively bright-line rule.

Much better to institutionally set up a system where torturers have to act as, “I do this with full knowledge it is illegal, and trust that I will be exonerated for my crime.”

But that’s exactly why the pardon’s a bad idea, right? Pardoning Cheney would be saying “what you did was illegal, and it was right that you did it”.

This is more abstract, but a pardon would also fall prey to another criticism: that the use of US torture only occurs to “non-persons”, those without rights, homo sacer, people whose only status is as objects for punishment. A legal apparatus in a torture regime necessarily involves the creation of this class of people. (We call them “unlawful combatants”.)

A pardon would not only keep that classification in place but calcify it. Institutional recognition of the wrongness of the act while, at the same time, keeping in place the status of the people to whom the wrong was done, provides an end-around for addressing the problem. Without changing the non-person designation and formally recognizing the rights of the tortured, the concept of “Do as you must, and you will be exonerated” becomes “Do as you must, and as long as it’s done to these certain types of people you will be exonerated.”

Obviously the pardon’s not a serious suggestion, and my comment’s the definition of “gassing on the internet”, but thinking through the abstract problems with it has some value, I think.

18

Har 08.01.13 at 3:34 am

This again? The Constitutional remedies for Cheney’s illegal actions were as follows:

1) Congress impeaching him while he was in office.
2) Voters not re-electing him.

They do not include ‘the current Administration turning around and prosecuting the previous Administration for how they Administrated’. That is one of the Worst Ideas Ever as soon as you think about what would be involved and what the implications are for more than two seconds. Blame voters and blame the Congress and blame the voters for voting for that Congress for the fact that Cheney got away with it all. I certainly do.

The Constitutional remedies for Manning’s illegal actions include:

1) The current administration prosecuting him.

19

Britta 08.01.13 at 4:10 am

Even if it were only symbolic, is there any reason beyond political why the Hague could not indict Cheney as a war criminal?

20

Ben 08.01.13 at 5:36 am

Britta,

Here’s the Rome Statute (PDF) which forms the basis of the International Criminal Court.

Relevant pages are 10 and 11, articles 12 and 13. The Court only has jurisdiction for crimes committed by or in states that are a party to the Statute. The US, surprise surprise, is not one of them. (They are “signatories” of the Statute but did not “ratify” it and so are not a “party” to it, and an administration subsequent to the one that signed the Statute provided notice that they do not intend to ratify the treaty and so are not bound by it in any fashion. A distinction the US shares along with Israel . . . and Sudan.)

So there are two possibilities:

- Prosecute Cheney for torture he authorized on the soil of another nation which is a party to the Statute (or a ship sailing under the flag or control of a party to the Statute). I’m not up on an exhaustive list of countries where the US tortured people, but the ones I’m aware of (Iraq, Syria, Somalia) are not a party to the Statute.

- The “prosecute crimes committed by or on the soil of states party to the Statute” can be circumvented if a recommendation is made by the Security Council to indict a given crime. In theory, the Security Council could recommend that Cheney be indicted for torture, and it wouldn’t matter where the torture took place.

The US, of course, has a veto on the Security Council.

So, yeah, The Hague very probably will never have jurisdiction to indict Cheney.

21

ajay 08.01.13 at 9:21 am

A while back I read something which said that if Hitler* had been caught alive, it would have been difficult to make a legal case against him, because he never issued any official written orders with regard to the epochal crimes of his regime.

Side issue, but this isn’t actually true, because one epochal crime of Hitler’s regime was “waging aggressive war”, and there was definitely a paper trail on that one. For example, a Fuhrer Directive saying “Invade Poland on 1 September 1939. Signed, Adolf Hitler.”

22

ajay 08.01.13 at 9:22 am

I already said that torture and war are inseparable. It also happens that war is inevitable. I do not like it, but there it is. If you like your civilization and you want to keep it, you’ll have to sign on for torture one way or another

This is actually (besides the worst kind of Internet Tough Guy nonsense) simply a pack of lies. There are plenty of examples of wars in which torture was not used, and there’s no reason at all to think that war is inevitable.

23

ajay 08.01.13 at 9:54 am

Even if it were only symbolic, is there any reason beyond political why the Hague could not indict Cheney as a war criminal?

The ICC doesn’t have universal jurisdiction; it is limited to crimes that were committed either by a national of an ICC country , or on the territory of an ICC country (or both), and only after the country in question signed up to the ICC.

Cheney’s a US national, and his crimes were committed in the US and Iraq; neither the US nor Iraq, as far as I know, have signed up to the ICC.

He could be indicted for crimes relating to Afghanistan, which is a signatory, but
a) I think that making the case for Afghanistan as a war of criminal aggression would be very hard to do – though you could still go after him for war crimes.
b) In any case, the ICC jurisdiction isn’t retrospective, so it’d be from 2003 onwards only (when the Afghan government signed up to the ICC).

(Another point: AFAIK Cheney isn’t actually in the chain of command for the US armed forces, which probably limits the amount of command responsibility he can have for things like torture at Bagram.)

24

Ronan(rf) 08.01.13 at 10:28 am

The indictment in this case wouldnt be for the Iraq war or abuses by US military personell in Iraq and Afghanistan, but specifically the rendition and torture program which was global and outside of those wars, so could he be prosecuted by the ICC (genuine question and theoretically, I know he won’t) even if the US isn’t a signatory?

25

Ronan(rf) 08.01.13 at 11:10 am

musical mountainer
A good book on this in general is Democracy and Torture by Darius Rejali, where he traces the rise in ‘clean torture’ techniques (ie ones that dont leave scars) to Democracies responding to human rights monitoring and domestic pressure (afaicr, its been a while since I read it) and shows how authoritarian regimes allied to liberal democracies adopted clean techniques for similar reasons, and how torture used by countries internationally comes home (such as electric torture brought from Vietnam to Chicago to be used against African Americans)
I half agree with you that torture is in somewhat inevitable during war, and that it takes different forms, but there’s a difference, I think, with torture legitimised throughout the military and political class, and torture practiced genuinely just by ‘rogue elements’
I dont know what the research says on it in detail, but it’s my impression that things like military culture, institutional design, how serious political elites take human rights monitoring etc do have an affect on military behaviour, so there are ways to crack down on the brutality, even if it develops again in different form

26

ajay 08.01.13 at 12:15 pm

22: ah, I see. In that case, yes he could – if offences take place on the territory of an ICC signatory, then the ICC has jurisdiction, no matter the nationality of the person who commits them. And Poland, the UK and Afghanistan (to name three nations involved in the torture/rendition programme) are all ICC signatories.

27

Layman 08.01.13 at 12:31 pm

ajay @ 20

I completely agree and would add: I can’t think of any modern war where torture was legitimized by a democratic government participating in that war, except this war on terror. I can’t think of ANY war where the use of torture was of material benefit to one of the contesting parties. And, far from being inevitable, war seems at the national level at least to be quite avoidable. Every war since WWII has been a matter of choice for the US.

28

Ronan(rf) 08.01.13 at 12:41 pm

The US practiced widespread torture in Vietnam and Central America (more arguably), though primarily through proxies and with a plausible level of denial as to how much those at the top knew
The British practiced torture during decolonisation and in Northern Ireland. The French in Algeria..there are numerous examples of western democracies applying torture systematically in wars
The difference, I guess, is that the Bush White House felt compelled to legitimise and legalise it’s use, which might be something specific to the times we live in

29

Layman 08.01.13 at 12:43 pm

Mountaineer @ 14

Hitler made multiple public statements of his intent to exterminate the Jews. Many were public statements which are still available as recordings. Many more were private but made to people who could have been called as witnesses, and in fact were in custody after the war themselves. Those same people would have testified to the direct instructions he gave on the matter – some of them did so testify. Any halfway competent prosecutor would have had a field day making the case.

30

Layman 08.01.13 at 12:46 pm

Ronan @ 26

“The difference, I guess, is that the Bush White House felt compelled to legitimise and legalise it’s use”

Yes, that’s the difference I mean.

31

ajay 08.01.13 at 2:49 pm

I am interested to know, though, what the legal argument is for charging Cheney in particular. If the crime is CIA torture of prisoners, then you can charge the CIA people who tortured, and their bosses, and so on all the way up to the DCI and his boss (President Bush). But Cheney isn’t in that line – he didn’t have any actual authority over anyone outside the Office of the Vice-President. Or is the idea to get him on a conspiracy charge?

32

Bruce Baugh 08.01.13 at 3:07 pm

Ajay: Because Cheney actually gave a lot of the orders. Bush happily gave him a lot of authority, and he gladly took more for himself.

33

ajay 08.01.13 at 4:11 pm

The British practiced torture during decolonisation and in Northern Ireland. The French in Algeria..there are numerous examples of western democracies applying torture systematically in wars

The infamous Five Techniques used in Northern Ireland, though, were specifically chosen because they weren’t considered to be torture (the ECHR agreed, though it added that they were “inhuman and degrading treatment”…)

30: OK, makes sense.

34

Layman 08.01.13 at 4:29 pm

ajay @ 29

“But Cheney isn’t in that line – he didn’t have any actual authority over anyone outside the Office of the Vice-President. “

In the same vein, John Gotti never shot anyone, and what job title or office did he have which gave him any actual authority over anyone which allowed him to give them orders? Grounds for appeal?

35

ajay 08.01.13 at 4:34 pm

He was the boss of the Gambino Family, if I remember.

36

Layman 08.01.13 at 4:50 pm

ajay @ 35

“He was the boss of the Gambino Family, if I remember.”

Yes, he chose to pretend he had authority over some people, and they chose to act as if he did; but there is no statute which actually gives him such authority at all. Like Cheney. If Cheney can’t be prosecuted for orders he gave without statutory authority to give them, how can Gotti be prosecuted for orders he gave without statutory authority to give them? Also, too, the orders in question are crimes – which means NO ONE has statutory authority to give them. Does that mean no one can be prosecuted for giving them?

37

Ronan(rf) 08.02.13 at 12:20 am

“The infamous Five Techniques used in Northern Ireland, though, were specifically chosen because they weren’t considered to be torture (the ECHR agreed, though it added that they were “inhuman and degrading treatment”…)”

Which is the same argument used to justify their use in the WOT. I accept that not everyone see’s it as torture, personally I disagree though

38

js. 08.02.13 at 3:10 am

The most that can be hoped for is that he [Cheney -- js.] is struck by the lightning of conscience

Surely, that’s the most one could hope for. The conscience bit is the least one might hope for (while realizing that any hope is quite, quite futile in this case).

39

ajay 08.02.13 at 12:06 pm

“Which is the same argument used to justify their use in the WOT.”

It would have been truly wonderful by comparison if the CIA had limited itself to the Five Techniques – stress positions, hooding, noise, reduced diet and sleep deprivation – but unfortunately they went far, far beyond that and did things like beating people to death and simulated drowning, which _are_ legally torture.

40

Ronan(rf) 08.02.13 at 12:27 pm

Beatings and threats were included. Some of the results (massive weight lose, inability to stand, temporary madness, an attempted suicide) would lead me, personally, to conclude their use could justifiably be called torture. Also in the WOT

41

Steven J Fromm 08.02.13 at 12:55 pm

Great re-post, too bad none of this will ever happen. The uneven treatment of these two boggles the mind. What have we become as a nation?

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