What about the legality of torture? That's an easy one, says Cheney, again in his ABC interview. "On the question of so-called torture, we don't do torture. We never have. It's not something that this administration subscribes to. Again, we proceeded very cautiously. We checked. We had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross." Yet just a few moments later, when asked whether water-boarding a prisoner was appropriate, he said yes, adding that he was even involved in clearing the technique as part of the interrogation program.
Cheney says water-boarding is not torture. That question has been resolved as a legal matter for centuries and is not actually open to relitigation on ABC News. Water-boarding has been deemed torture and prosecuted as a war crime in this country. It violates, among other things, the Convention Against Torture, the War Crimes Act, and the U.S. anti-torture statute. Its illegality is neither an open question nor a close one. Yet again, the handful of people—including Dick Cheney—who maintain that torture is completely legal corresponds almost perfectly to the number of people who could be prosecuted for war crimes because it is not.
Just as Cheney is able to sow legal doubt where none exists, he is adept at issuing blanket legal proclamations about questions that are open-ended and theoretical. Some of his finest overstatements of this past week include the assertion that those prisoners still left at Guantanamo Bay represent "the hard-core." Oh good grief. Even the CIA stopped believing that hooey six years ago. Which brings us to Cheney's biggest whopper of the week. In yesterday's interview with Chris Wallace, he was as blunt as anyone can be in articulating the Nutty Version of the Unitary Executive Theory:
The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States. He could launch a kind of devastating attack the world's never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in.
The claim that "the nature of the world we live in" warrants a perennially unchecked executive branch can be delivered with all the gravitas in the world, and it still amounts to constitutional nonsense. To this end it's well worth reading Absolute Power, in which distinguished legal journalist John MacKenzie takes a close look at claims about the unitary executive. MacKenzie shows how a scholarly constitutional claim about the right of executive branch officials to interpret the Constitution morphed into the aggressively ahistorical interpretation of executive power that Cheney parrots with such perfect confidence. As MacKenzie writes: "The unitary executive has come a long way for a theory that has a hole in its heart and no basis in history or coherent thought. It simply is devoid of content, not expressed or even strongly implied in foundational documents such as The Federalist, not to mention the Constitution."
None of this will matter if President Bush issues blanket pardons in the coming weeks. Nor will it matter if the rest of us continue to invent reasons to neither investigate nor—if appropriate—prosecute wrongdoing by the highest-level officials in the Bush administration. Dick Cheney is counting on one or both of those outcomes when he obfuscates the easy legal questions and oversimplifies the complicated ones. If we choose to be bulldozed into living in his topsy-turvy legal universe, we really are as complacent as he believes.