A Nation of Laws

“There is no greater threat to securing the homeland than America’s willing abdication of her moral authority at home and abroad, and the utter lawlessness… beginning with the surveillance of American citizens without congressional approval or the review of the judiciary; the detention of American citizens without charges or trial, apprehended on American soil as enemy combatants; the establishment of black sites, where torture was committed—not enhanced interrogation techniques, not these lovely little euphemisms for that which is unconstitutional, illegal, and war crimes; and the absence of ensuring accountability for crimes committed by Americans and authorized at the highest level of our government…” (Anthony Romero, executive director of the ACLU, speaking at the Aspen Security Forum held in Aspen Colo., and quoted by Dahlia Lithwick in her editorial, “You Say Torture, I Say Coercive Interrogation.”)

It is the absence of ensuring accountability, as Romero puts it, that is among the most frustrating and deeply disturbing aspects of the legal climate in post 9/11 America. “Less than three years ago, Dick Cheney was presiding over policies that left hundreds of thousands of innocent people dead from a war of aggression, constructed a worldwide torture regime, and spied on thousands of Americans without the warrants required by law” (Glenn Greenwald, “The fruits of elite immunity“).

Torture one to save one-thousand: As a civilization, the value of this proposition remains unresolved. But as a matter of law, you just don’t do it.  And yet, Dick Cheney has done it! The architect of the U.S. torture program not only perpetrated torture, but  proudly boasts of this legacy. Still, Cheney remains unaccountable for the consequences of his crimes. No indictments, no juries, and no jail.  Does the absence of action on part of our legal system suggest that torture is legal? Cheney seems to think it does. He continues to tout the “legality” of torture, taunting us with an inference that, if not for its wickedness would seem almost childlike: If torture is really against the rules, and I torture, how come I’m not in trouble for breaking the rules? I’m not in trouble; it must be because torture is not against the rules.

This does not follow. Torture is patently illegal.  Just a few minutes of research will reveal overwhelming support for this proposition. To take one example, President Reagan’s Department of Justice successfully prosecuted a Texas Sheriff and three Deputies for waterboarding prisoners ( Evan Wallach,Waterboarding Used to Be a Crime“). What then would explain the absence of accountability with regard to Cheney? I argue it is our own unwillingness to enforce the laws of this Nation. Cheney is able to write his memoirs under the color of immunity- only because we let him. Cheney is able to embark on profitable interviews where he discusses his instrumental role in invading other countries, torturing prisoners, and illegally spying on Americans- only because we let him. John Adams famously said, the United States is intended to be a government of laws, not of men. “Dick Cheney is living proof that if we are not brave enough to enforce our laws, we will forever be at the mercy of a handful of men” (Dahlia Lithwick, “Getting Away With Torture”).

One comment

  1. As a legal student/scholar (I usually sign my emails to my dad, “Your Loving Scholar Son,”), I am curious as to how a criminal prosecution against the former Vice-President would transpire. I can only imagine what it would like to see Cheney sitting as a defendant during trial at the ICC.

    A quick Google search showed me that in January of 2010 Francis A. Boyle of the University of Illinois College of Law filed a complaint with the Prosecutor for the International Criminal Court against George W. Bush, Richard Cheney, Donald Rumsfeld, George Tenet, Condoleezza Rice, and Alberto Gonzales. However, this complaint seems like a political statement, rather than the start of any sort of criminal prosecution. Nevertheless, as a legal student/scholar I cannot help but be fascinated by the fantasy of the former Vice-President of the United States on trial for war crimes.

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