Cheney Chatter and Complicity

Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School.  His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.

Former Vice-President Dick Cheney is chatting about his role in assuring approval and use of manifestly unlawful interrogation tactics such as waterboarding during the eight-year Bush Administration.  According to Cheney, he has “[n]o regrets” that he was directly involved in the approval of severe interrogation methods, including waterboarding, and he has admitted that he was involved in helping to get the process cleared by President Bush.  “[T]his was a presidential decision,” Cheney said, “and the decision went to the President.  He signed off on it.” (see here)

On September 16, 2001, Cheney publicly declared that “[a] lot of what needs to be done … [“on the dark side”] will have to be done quietly, … using … methods that are available to our intelligence agencies … to use any means at our disposal, basically, to achieve our objective.”  He added: “we” “have the kind of treatment of these individuals that we believe they deserve.”  For the next two years, many of his preferences were effectuated by his top lawyer, David Addington.  Moreover, it has been reported that Cheney attended meetings of the National Security Council’s Principals Committee in the White House Situation Room during 2002 and 2003, at which specific tactics such as waterboarding and the “cold cell” were addressed and expressly and/or tacitly approved and abetted.  It has also been reported that during this time there was “live feed” or “real time” viewing of parts of actual interrogations, including that of al Qahtani at Guantanamo Bay, Cuba.

According to the Center for Constitutional Rights (CCR), SERE tactics were being used against detainees at Guantanamo in September 2002 and that, during October 2002, military intelligence interrogators “used military dogs in an aggressive manner to intimidate” al Qahtani.  In November 2002, FBI Deputy Assistant Director Harrington reported that al Qahtani had exhibited symptoms of “extreme psychological trauma.”  Around the third week in November, he was subjected to what was known as the “First Special Interrogation Plan,” a plan to use tactics later detailed in an 84-page log describing their use during a six-week period.  CCR reported that among several tactics used were: threats against his family, forced nudity and sexual humiliation, threats and attacks by dogs, beatings, and exposure to low temperatures for prolonged times. Each of these tactics is patently illegal under the laws of war, human rights law, and the Convention Against Torture, among other relevant international legal proscriptions and requirements.  As my article The Absolute Prohibition of Torture [forthcoming in 43 Valparaiso Law Review 1535 (2009)] documents, death threats, use of dogs to create intense fear, beatings, the cold cell or a related inducement of hypothermia, and waterboarding are each manifest forms of “torture” that are absolutely prohibited under all circumstances and regardless of the status of the victim.  If they were not torture, they would also be absolutely prohibited as cruel, inhuman or degrading treatment, along with the other tactics mentioned.

Cheney’s direct involvement is evidence of complicity in international crime.  As documented in my article, criminal complicity can occur when a person is aware that his or her conduct can or will assist or facilitate conduct of a direct perpetrator.  The person who aids and abets need not know that the conduct of the direct perpetrator is criminal or whether it does in fact constitute “torture” or some other widely-known and unavoidably criminal conduct such as cruel or inhumane treatment.  As international criminal tribunals have affirmed, it suffices that an accused was aware of the relevant factual circumstances (Prosecutor v. Kordic & Cerkez, Case No. ICTY 95-14/2-A, Judgment, ¶ 311 (Dec. 17, 2004)) and that even a direct perpetrator “need not have known that his or her act … amounted to an ‘inhumane act’ either in the legal or moral sense.” (see Guenael Mettraux, Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, 43 HARV. INT’L L.J. 237, 297 n.323 (2002)  Furthermore, all acts of assistance, by words or acts and omissions, that lend encouragement or support will also suffice if the accused knows or is aware that such conduct can or will facilitate the use of what happens to be an illegal tactic.

It is apparent that Dick Cheney has joined the ranks of those who are reasonably accused of having been complicit with respect to international crimes authorized and abetted during the Bush Administration’s serial and cascading criminal behavior.  For evidence of complicitous behavior by Condoleezza Rice, see http://jurist.law.pitt.edu/forumy/2009/05/rice-waterboarding-and-accountability.php.  For evidence of complicitous behavior by Jay Bybee, see http://jurist.law.pitt.edu/forumy/2009/04/second-bybee-memo-smoking-gun