We’ve heard this before

I agree on prosecuting Cheney. I think it is the only way that the US can come to terms with itself and the rest of the world over what happened.

No one was prosecuted over the Birmingham Six or Guildford Four, though. I well remember the announcement at the time that the publicity surrounding the case had prejudiced the right to a fair trial of the police officers involved in torturing the Six. The Guildford Four was a closer parallel with current events because the people involved in that case were much higher up (future Master of the the Rolls, future Attorney General and future head of the Met) rather than just some crooked cops in the West Midlands.

The police arrested the real bombers in Balcombe Street a month after this trial had concluded and they immediately gave detailed and accurate accounts of how they had carried the bombings out (in contrast to Gerry, Paul, Paddy and Carole who had never even been to Guildford and so had no idea how to describe this). From that point on, everyone involved in the case knew the Guildford Four were innocent, but they still sat in prison for another 14 years.

You are right that the cost to the country (the basic legal infrastructure, etc) would not be great at all — indeed, enforcing the rule of law is generally a good idea, and not only did the release of the victims of the Birmingham and Guildford stitch-ups do no harm, but the prosecution of the criminals who sent them to jail would have done no harm and some good. The difference is the level of political risk that Obama himself would be taking on in encouraging the rule of law to be enforced. He sees himself (rightly, I suspect) as politically very vulnerable, and the safest thing for him is to avoid this, or, if the worst happens, to be seen not to be enthusiastic about it. He is quite risk-averse, and although the pay-off for the country would probably be good, that good would be long-term, whereas the risk to him is short-term.
Sorry to be cynical.

Well, he can leave it to the natural progression of things. Cheney will eventually get into the eye of the storm. The public eventually will demand some form of clarity. The attorney general has some independence. Private people can go to court.

Sorry to be overly cynical – but why should one be so hysterical as to demand Obama to do this, IN PERSON and NOW?

“That was such an appalling Vista that every sensible person would say, ‘It cannot be right that these actions should go any further.'”

I’ve been thinking just that recently with the imminent release of Windows 7.

More on-topic, it looks a lot like Obama has decided not to spend political capital on something that’s not a policy priority for him. Which is unsurprising, except to the people who thought he was an actual far-left radical and voted strongly for or against him because of it.

I certainly would like to see Cheney standing in the dock. However, prosecuting former presidents or vice-presidents is extremely serious business. I suspect an essential reason why the system allows for a peaceful (even if not very meaningful) power transfer is the unspoken agreement that the retiring leaders will not, under any circumstances, be prosecuted for any crimes they had committed. This is, I think, not a bug, but an essential feature.

CID is not subject to universal jurisdiction (although it is prohibited)

That I didn’t know – ta. Relatedly, I’ve never really understood Ireland v UK – I mean, I’ve never understood why it mattered to find against torture when “inhuman and degrading treatment” is also in article 3. I mean, the UK was in breach of a non-derogable article of the ECHR either way – what ‘appalling vista’ would have opened up if the torture charge had stuck?

No, simple lies.

Phil: the short answer is that the Court felt under pressure from the Brits and were backing slightly away from the Commission’s position. I think they were wrong to go into such detail, although they may have partly wanted to lay some markers down because it was such a land-mark case and because that had been the approach that the Commission had taken with the Greece case. As you say, both torture and CID are prohibited and I think the original wording was just meant to be as inclusive as possible. I mentioned the ICRC’s comments about the Geneva Conventions on this in an earlier thread.

The real damage that Ireland v UK caused was that it influenced the drafting of CAT. Article 16 of this (CID) only applies to Articles 10, 11, 12 and 13, which really does limit the protection it provides.

The UN Convention against Torture also makes this a crime of universal jurisdiction so Cheney can be prosecuted in any state he should travel to which has ratified this in the future.

Exactly. So, what happens is, next time the ambassador from, say, Great Britain stops by the WH for a handshake, Obama takes him aside and mentions that hay, Cheney will be paying a visit to their great country in the near future and gee, it sure would be a shame if he were to be arrested for war crimes while there because, what with all the things Obama has on his plate right now, pulling him out would be a low priority and besides, Bill Clinton will be busy that week. Hell, Obama doesn’t even have to do it himself, he could just send the AG or Secretary Clinton over to the consulate for a chat.

Let’s not forget that the purpose of the torture that Cheney supported was to force a false confession that would link Saddam Hussein to al Qaeda.

The US used torture for exactly the same purposes as did Communist regimes in their show trials. The only difference between Dick Cheney and Communist show trials is that Cheney’s henchmen failed.

Justice Denning is being quoted out of context; in context, his reasoning is conventional and clearly legally correct. The point is, if you litigate an issue and lose, you have to either appeal, or seek relief from the trial court. One thing you ought not to be allowed to do is start another action from the beginnning and make all the same claims again. The applicable principle is called res judicata. He was appalled by the procedural impropriety of the action–he should not be understood as making a substantive comment about the men’s claims.

The comment about hanging seems to have been made more than a decade after he left the bench, when he was 91 years, old, and was about the Guildford 4, not the Birmingham 6. In context, he was expressing a belief about their guilt.

Rea, I second Geo; the first part of the quote clearly has lord f*ckhead basically saying that things which would show the seamy truth about the police need to be covered up (a la the Richard Cohen theory of journalism).

Rea: the original quote comes from his decision to block an attempt by the Birmimgham Six to sue the police officers who tortured them for damages. If they had succeeded then this would have shown that they had been assaulted in police custody, which would have rendered their confessions unreliable. The other evidence against them was the forensic test which had been administered by someone who was basically sacked for incompetence a couple of years later (you could get the same positive test result from handling explosives, matches, cigarettes and playing cards)

The sequence of events was that when they first appeared in court at their initial hearing it was obvious that they had been beaten up really badly. They had visible scars and bruises all over their bodies – I remember seeing Paddy Hill’s legs years later and they were still a mass of black marks from when the police used him as an ash tray.

At the original trial the defence moved to strike their confessions on the basis that they had been tortured. The prosecution said that the injuries they had sustained had not been inflicted by the police, but by prison warders after the police had turned them over into custody. After they were convicted the prison warders were put on trial. They all said that they had not touched the men and they had been delivered to them injured. The men always maintained that they had been beaten up by both the police and the screws.

The warders were acquitted (basically it was a sympathetic jury from Birmingham) and it was at that point that the Six sought leave to sue the police. Denning blocked this action citing the appalling vista.

Keith: your scenario already happened in Germany with Rumsfeld. But a country with an independent prosecutor (like Spain) could have a go.

Stuart: the ICC would only have jurisdiction if the torture had been inflicted on either the territory or a national of a state party. Afghanistan has ratified the ICC. They would also need to show a threshold level of such crimes and the inability or unwillingess of the national courts to deal with the issue. Theoretically a case could, therefore, go ahead, but I wouldn’t hold my breath on the current Prosecutor doing it.

http://www.guardian.co.uk/commentisfree/2009/apr/20/sudan-war-crimes

Thanks, Conor! This pretty much shows that the qoute was indeed indicative of evil intent.

Jake, it’s because similar sentiments were being expressed, that actually trying to live up the law would wreak terrible havoc, dogs and cats living together, that sort of thing.

Of course, as to the US speakers, anybody with a record who’s so fearful was generally able to control such fear in the 1990’s.

Apologies Jake – my last remark was unnecessary, and the substantial point is right. The police officers involved were fairly low-level – and the Squad they were part of had been shown to be riddled with corruption – yet they still were not prosecuted. No police officer in Nothern Ireland was ever prosecuted for torture despite the routine use of the practice in Castlereagh in the 1970s. Many of the people involved in the Guildford Four case went on to hold some of the highest legal offices in the land.

There also was a bit of an ‘appalling vista’ around the eventual collapse of the case against the men in that juries stopped convicting people on confessional evidence. I remember during the 1980s every single person accused of an offence relating to Northern Irish terrorism got convicted – even on the flimiest and most circumstantial evidence (the Winchester Three come to mind), but after the release of the Guildford Four in 1989 that began to change. On the same day as the Birmingham Six were released a guy called Kevin Barry O’Donnell was acquitted on terrorism charges even though he had been caught with a couple of AK47s in the boot of his car. He was subsequently shot dead by the SAS in an ambush.

The day that the Birmingham Six were finally released the government set up a Royal Commission on Criminal Justice, which was basically to stave off a wholesale collapse of public confidence in the system.

For once I agree with Bruce Fein. Indict Cheney and Bush and then pardon them. It is too late to impeach them, and a trial would be divisive.

That’s a horrible idea, Billikin. It sends the message that you can commit war crimes and get off with just partaking in some political theater. This not so much thumbs it’s nose at Justice as moons it, pulls its pants down and then takes Justice’s girlfriend to Prom. Sometimes, being divisive is necessary, to divide from civil society those who belong in it from those who serve to do it harm.

Denning had a bit of a bad name among his fellow judges – and a correspondingly good name in the media – as a senior judge who was brave enough to think creatively, didn’t see everything in terms of precedent, wasn’t afraid to use his own judgment, etc, etc. Unfortunately the decisions he came to off his own bat were often pretty dreadful (politically and legally). I’ll take a hidebound reactionary over a courageous and creative one any day.

Ultimately, yes we do want Cheney et alia to stand up in the International War Crimes Tribunal and answer for their actions. I want both Blair and Bush to answer for their criminality. We owe our children and grandchildren a better world. We inherited a world from our parents and grandparents who stood up to Hitler, Stalin and Mao. We fail our descendents by not calling Cheney, Bush and Blair to account.

Obama’s argument has been that he has made the decision to change policy and bring the practices clearly within constitutional bounds

Oh, come on. That’s a zen koan, not a sentence. The Constitution doesn’t say a damn thing about how to treat foreign terrorists, and if it did, Obama would be the last person to give a flying monkey’s distended purple anus about it. You could make any mad-lib substitution you like for the nouns and verbs in the above-quoted statement, and it would not be more absurd:

Lemon meringue pie’s Cadillac has been that Eiffel Tower has made the sandwich to change rope and bring the dentists remarkably within asymptotic bongo drums

See? It makes exactly as much sense.

JQ – actually didn’t know that; I wasn’t taking note of Younger Denning. Bit of an awful warning wrt creative lawyering generally.

Apparently though he didn’t invest the money in a TESSA.

Dick Cheney is a colossal bastard and should be in jail; but to deny that there’s a serious political consideration regarding prosecuting former heads of state because people is silly.

Out of interest did the impeachment of Clinton lead to the complete collapse of the political system in the US or anything similarly serious? I don’t really remember anything too critical falling apart, so the Republicans seem to have proved that you can prosecute heads of state while still in power, so in this case where it is after they have left power it should be a cakewalk in comparison.

Also an overview of his career by Gary Slapper (Open U) here.

Martin, I don’t see the need for a concession regarding Pinochet. He was under prosecution in Chile at the time of his death, and that caused nothing more than a few noisy demonstrations.

The Pinochet example showed that there can be no effective statute of limitations or amnesty on crimes against humanity, and no national sovereignty.

Have Cheney or Bush or any of the other more prominent potential defendants even left the country since they stepped down? I don’t think you’re going to be able to lure them to a country with ICC jurisdiction any time soon.

Are some people here in effect arguing that the US is a commonplace dictatorship wherein a recent despot, one Dick Cheney, stepped down knowing that he wouldn’t be prosecuted? Why brag about our political institutions and stability, rule of law and so forth if we aren’t actually willing to put them to the test?

Back on the main topic, I do worry that the cases being brought up are the most favorable possible to Cheney’s case. The Pentagon admitted in 2005 to having secretly detained 80,000 people. No way did the bulk of those people have anything to do with terrorism, or even, probably, with serious crime. Most of those were detained in secret prisons, not in Gitmo, which was much more visible and probably, therefore, less abusive than the prisons none of us can even name. It is focused on KSM and a few others who seem to be the handful of genuine al queda members we caught, as opposed to the innumerable innocents. As an extreme test of the moral question “Is it ever legitimate to torture?” in the abstract, this might be good: if you can’t torture KSM, you can’t torture anybody. But as a way to morally evaluate Cheney and Bush it is much too favorable to their case, and will get much less sympathy that an investigation that looked equally at all the innocents of whom we have heard so little. It would be like judging the Gulags solely on the basis of a few people in them who actually were trying to overthrow the state (not that you could blame them under the circumstances).

It’s not a commonplace dictatorship, but it has its unwritten rules, and this is one of them.

You break it – what happens next? I imagine, the future presidents might be routinely issuing a blanket pardon for all high-ranking members of their administrations; or maybe even for all, even low members: all of the military, the CIA, the DOJ, the FBI, the NSA… Who knows.

Henri, if that happens, the next stage would be a constitutional amendment to remove the pardon power. It would be hard to do, but routine abuse could make it happen. It would become a pissing match between the President and Congress that Congress only has to win once. And since the pardon power is already being abused, it should be removed.

I agree with you, though, that going after Cheney is playing with fire, but I think we have to go through with it. We already tried looking forward not back, twice, and even worse abuses are what we get to look forward to. And our democracy could not stand another. Indeed, I would argue that it has not withstood Bush: we no longer have a meaningful due process of law, and Obama is evidently fine with that. He has applied rendition to people not even suspected of terrorism, but of common crimes. The problem is not just Bush or just Republicans, but the Republicans are the big pushers of the envelope.

I would prefer, though, that the battle be fought on locking up the innocent than on torturing the guilty.

We may recall that Lord Hutton took a similar line; although it was in a sense true that Alistair Campbell and Jonathan Powell went round the intelligence bureaucracy pressing them to include things they weren’t sure of and remove caveats, this suggested that the government acted in bad faith, and this was itself impossible to accept.

Barry: sure. But Kevin Barry O’Donnell was a fairly active member of the IRA’s Tyrone Brigade and he was caught in England in fairly incriminating circumstances. His acquittal was, therefore, surprising, to put it mildly. He was subsequently arrested again in fairly similar circumstances and then later shot dead in an ambush. Although the SAS do tend to execute rather than arrest people, and I doubt if he was given a chance to surrender before they shot him, this case was not the same as the killing of a civilian – or the killing of an unarmed member of the IRA – as he was in the process of dismantling a heavy machine gun at the time.

The presumption of innocence demands that juries be sceptical of prosecution evidence and demand prood beyong all reasonable doubt. Unfortunately the rights of the accused are often forgotten during periods of national crisis and it took the release of the Birmigham Six – and the gradual easing of tensions which led to the Northern Irish peace process – for the British criminal justice system to face up to how flawed it had become.

There is an interesting broader issues about Amnesty v. Justice mechanisms, ICC, etc. which I am writing a paper on at the moment.

@David (67): um, this is news?

I remember a BBC drama series about a “radical” set of legal chambers (“Blind Justice,” starring Jack Shepherd). At the end of the first episode, two of the barristers were watching a bunch of well-to-do young things at a party, and one remarked “the law is a bulldozer driven by vested interests.” He who has the gold, and all that.

I’m reminded of the Private Eye cartoon: two US soldiers on foot patrol in Iraq. One explains to the other: “The trick is not to let immunity from prosecution go to your head.”

HV @10: I suspect an essential reason why the system allows for a peaceful (even if not very meaningful) power transfer is the unspoken agreement that the retiring leaders will not, under any circumstances, be prosecuted for any crimes they had committed

Blithely postponing consideration of the problems of enforcement, I suppose the solution would be to prosecute them while still in power. I think this is being done vis-a-vis the president of Sudan at the moment, if it hasn’t already been stymied. Briefly addressing those enforcement issues, I wonder how the US would react if asked to use their military as part of an actual international police, rather than the rhetorical (and rogue) cop that they have heretofore supplied? And then, moving further into the realms of extreme implausibility, how the FBI would react to an arrest warrant for a serving VP?

MB @62 the next stage would be a constitutional amendment to remove the pardon power. It would be hard to do, but routine abuse could make it happen

May I add that the power is a bizarre and dictatorial one anyway so (as with recreational drugs in the alternative universe inhabited by politicians and the MSM) any use is _ipso facto_ abuse. It’s also a part of the overt politicisation of the judicial system in the US that means any domestic action against Cheney (et al. ad nauseam) would inevitably be seen as Obama’s doing.

Alex @64 Lord Hutton took a similar line;…that the government acted in bad faith…was itself impossible to accept
Yes, and Hutton also said it wouldn’t be appropriate to examine Blair as “there would be headlines”. Same with the Butler report into Iraq intel. Butler’s view on answering press questions regarding whether Blair’s position was tenable was described as “it was not his job to bring the government down” (i.e. he thought it wasn’t tenable but wasn’t going to say so, even if directly asked. The press obliged by not asking in the event). That kind of attitude is reflected in academic discussion, with statements like “Indicting a head of state is a political act”. It isn’t, particularly. It has political consequences, but that doesn’t mean it is a political act, any more than stillettoing Berlusconi for dishonouring your daughter would be. By contrast, deciding against prosecution, interrogation or criticism on the grounds of someone’s political position is a political act, and a corrupt one.

BTW, off topic but – *A note to Henri Vieuxtemps and Martin Bento*
Since you will probably both see this, I hope I can be excused for mentioning here that CT, and in particular your remarks get a prominent mention in Jewish Week’s quite well-done piece about the Malhotra/Margalit paper discussed some time ago. It also features the rare spectacle of an ADL spokesperson playing down anti-semitism claims! Also mentions Bill Kristol, one of many who have since, as expected, produced uncritical mentions and reprints of the original Boston Review article.

@71: Surely you can see that that’s not an accident? People in power can dismantle or interfere with law enforcement mechanisms that might be used against them for as long as they are in power. All it takes is a little lack of integrity.

The people who need to be prosecuted while in power are precisely the ones who will prevent anyone from prosecuting them while they are in power – and they have the power to do so. That’s why they can only be prosecuted once they are out of power.

But then, I don’t think Bush would have relinquished power after 8 years if he hadn’t believed that the military and law enforcement agents would obey the law and Constitution rather than him. If he had thought he could succeed in a coup, I’m convinced he would have attempted one, and the only reason he didn’t is because the military and law enforcement agencies had institutional loyalty to the law and Constitution which mandate term limits, rather than personal loyalty to Bush.

The idea that presidents come and go and the United States remains standing is strongly held in the United States, which is why presidents *can* come and go and the United States remains standing. And the first time a president decided to disregard the unwritten law that thou shalt not serve more terms than Washington, just because there was a war on, it was replaced with a *written* law to the same effect, which subsequent presidents have not been free to disregard.

This undermines the whole argument that we can’t prosecute Bush after he leaves power because then the next Bush won’t voluntarily leave power: the last Bush didn’t voluntarily leave power either, he did so only because he recognized that an attempt to hold it would be doomed to failure. No one with the mindset of a Bush or Cheney voluntarily leaves power, but they can recognize futility when they stare it in the face.

@72, A coup, usurpation of power is not the only danger. There are other possibilities, less dramatic; I already mentioned preemptive pardons, but I can imagine others: disappearing potential witnesses, whistleblowers, journalists, etc.; usual mafia tactics. The way the system works now they expect a whitewash when out of power; but if they expect to be prosecuted, then, being able to act with impunity when in power, it would be natural for them to do all these things.

Remember what they did to Elvis once he found out about Roswell…

Ultimately, do we want to see Cheney, who backed these actions and still does, standing in the dock?

I view with utter contempt anyone who can ask this question and expect the answer to be ‘No.’ And I can’t understand any argument defending that position.

If by doing so we force those in charge to expose themselves, by trying to avoid prosecution of them and their cronies, as the corrupt, power-mad maniacs that they are, then so be it, and the sooner the illusion is shattered the better.

Fiat justitia ruat caelum.