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Cheney to Holder: Bring it on?

February 16, 2010 | 12:06 pm
CheneyA few liberal legal scholars have flagged Dick Cheney's remarks on waterboarding during his Sunday morning back-and-forth with Vice President Joe Biden -- the subject of a Times editorial Tuesday -- and raised an interesting point: Should the ex-veep's open embrace of the Bush administration's use of what many consider torture draw the attention of Atty. Gen. Eric H. Holder Jr.?

Scott Horton of Harper's Magazine writes:

“I was a big supporter of waterboarding,” Cheney said in an appearance on ABC’s "This Week." on Sunday.  He went on to explain that Justice Department lawyers had been instructed to write legal opinions to cover the use of this and other torture techniques after the White House had settled on them. ... 

Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture? Cheney told Jonathan Karl that he used his position within the National Security Council to advocate for the use of waterboarding and other torture techniques. Former CIA agent John Kiriakou and others have confirmed that when waterboarding was administered, it was only after receiving NSC clearance. Hence, Cheney was not speaking hypothetically but admitting his involvement in the process that led to decisions to waterboard in at least three cases.

Jonathan Turley, a contributor to our Op-Ed pages, argues that Cheney's "astonishing" remarks stem from the promise President Obama and Holder reportedly made not to prosecute outgoing Bush administration officials. He writes:

It is an astonishing public admission since waterboarding is not just illegal but a war crime. It is akin to the vice president saying that he supported bank robbery or murder-for-hire as a public policy.

The ability of Cheney to openly brag about his taste for torture is the direct result of President Barack Obama blocking any investigation or prosecution of war crimes. For political reasons, Obama and Attorney General Eric Holder have refused to carry out our clear obligations under international law to prosecute for such waterboarding. Indeed, before taking office, various high-ranking officials stated that both Obama and Holder assured them that they would not allow such prosecutions. While they denied it at the time, those accounts are consistent with their actions following inauguration.

That Cheney open declared his support for waterboarding may indeed be an astonishing admission for legal reasons, but it comes across as merely confirming what we already knew about our chest-thumping ex-veep. What's especially interesting to me is the following quote, in which Cheney seems to invite Holder's scrutiny by sticking his neck out for the CIA interrogators the Department of Justice is investigating for possibly going beyond the limits (or, you might say, lack thereof) set by the Bush administration (the emphasis is mine):

KARL: What does [President Bush] think of you being so outspoken in contrast to him?

CHENEY: Well, I don't think he's opposed to it, by any means. I'd be inclined to let him speak for himself about it. The reason I've been outspoken is because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had -- had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who'd done what we asked them to do.

As for the entire Biden-Cheney Sunday smackdown, The Times' editorial board dubbed Biden the winner, though it expressed some distress over the vice president's indication that the administration may reconsider its decision to try Khalid Shaikh Mohammed and four other suspected terrorists in a federal court instead of a military commission (click here for The Times' news story on the interviews). What do you think? Take our poll, leave a comment or do both.

-- Paul Thornton

Photo credit: Susan Walsh / Associated Press

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