JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that former Vice President Dick Cheney's statements about his direct involvement in the authorization of unlawful interrogation tactics such as waterboarding are clear evidence of complicity in international crime, if not also participation in a criminal conspiracy, and use of those tactics cannot be legally excused by any alleged doctrine of "necessity"....
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 ("survival, evasion, resistance, escape") 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 the cold-cell or 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 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. In fact, there are 29 U.S. judicial opinions and 7 U.S. executive Country Reports on Human Rights Practices, among other cases and materials, recognizing that waterboarding and related inducements of suffocation are "torture." 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 clear evidence of complicity in international crime, if not also participation in a criminal conspiracy. 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, such as use of waterboarding, the cold cell, and dogs to instill intense fear. He does not need to know that these are criminal or even "torture." In any event, it has been reported that when Cheney found out that a CIA Inspector General's report warned that several such tactics were criminal, he became irate and ordered the Inspector General to his office. As the treaty creating the International Criminal Court also declares while reflecting customary law, "a mistake of law as to whether a particular type of conduct is a crime ... shall not be a ground for excluding criminal responsibility." (Rome Statute of the ICC, art. 32(2)).
What is Cheney's apparent excuse? He claims that there was a need to engage in the illegal tactics, but others have affirmed that there was no need to engage in illegal interrogation tactics and that, on the contrary, it was well-known by professionals that reliable intelligence must be obtained by lawful means of interrogation. Furthermore, it is well-understood that under every relevant treaty-based and customary international law there is no such thing as a necessity defense with respect to outlawed tactics that are torture or cruel, inhumane, or degrading treatment. Such forms of ill-treatment are strictly prohibited in all circumstances. More generally, it is well-understood that the laws of war are to be strictly applied during war when our national security is seriously threatened by enemies who have killed and will kill our nationals in the future.
Some have argued that there is a common law necessity defense that might be available if conduct was actually necessary. One of the August 1, 2002 Bybee memos made this claim when citing United States v. Bailey, 444 U.S. 394 (1980). The Bybee memo failed to note, however, that the Supreme Court's opinion expressly warned that "[i]f there was a reasonable, legal alternative to violating the law ... the defense will fail" and the defendant must prove "that given the imminence of the threat, violation of ... [a law] was his only reasonable alternative." 444 U.S. at 410-11 (emphasis added). Whether or not a threat of a major attack continued each year for eight years and was always imminent, reasonable legal alternatives with respect to time-honored forms of interrogation designed to obtain reliable intelligence were clearly always available. In fact, the CIA IG's report declared that there is no evidence that criminal tactics stopped "any credible threats" and it is known that lawful forms have often worked faster and more reliably against high-level al Qaeda detainees, sometimes within an hour or a little longer. Thus necessarily, a judge must rule that, as a matter of law, the alleged necessity defense is unavailable and that the fact that a few secreted files might indicate whether torture led to useful information in a given instance is legally irrelevant.
Additionally, as a matter of law, the defense is not available if relevant law sets an absolute standard, such as the various treaty-based and customary international legal prohibitions of torture and cruel, inhumane, or degrading treatment in all circumstances. Furthermore, as a matter of law, both treaty-based and customary international law, as supreme federal law under the U.S. Constitution, will trump inconsistent common law whether or not there might be such a common law defense to ordinary crime when international law has not been violated.
Of additional import is the venerable rule announced in The Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18 (1804), that federal statutes must be interpreted consistently with international law in this instance, consistently with the absolute prohibition of torture and cruel, inhumane, and degrading treatment. Therefore, the Torture statute, the War Crimes Act, and 10 U.S.C. Â§ 818 (which has incorporated all violations of the laws of war by reference as crimes against the laws of the United States since the 1950s as had its precursor, the 1916 Articles of War that were found to be constitutionally sound as a basis for prosecution in Ex parte Quirin (1942)) must be interpreted to preclude any alleged necessity exception. It is of further interest that the Supreme Court declared more recently in Sosa v. AlvarezMachain (2004) that "federal courts have no authority to derive 'general' common law" as opposed to relevant international law, thereby placing what is alleged merely as a judicially derived common law defense in even greater doubt.
Jordan J. 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.