Dick Cheney's unique gift for making hard questions easy and vice versa.

The law, lawyers, and the court.
Dec. 22 2008 7:14 PM

Open and Shut Cases

Dick Cheney's unique gift for making hard questions easy and vice versa.

Dick Cheney. Click image to expand.
Dick Cheney

In an ever-escalating game of chicken between the executive branch and the rest of the world, Vice President Dick Cheney wants you to understand that he has done nothing wrong over the past eight years. In fact, to hear him tell it to Chris Wallace on Fox News Sunday yesterday, we are all safer for his infallibility in the face of our own complacency. His liberal critics, for their part, answer Cheney's moral certainty by continuing to vigorously debate all the reasons to let him off the hook. What other possible response can there be to all that bristling manliness? History will remember Dick Cheney as the man who managed to make President George W. Bush look like a wimp.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

One hesitates to waste too much time deconstructing Cheney's last-minute debater's tricks. The threats and insults stopped being impressive a long time ago. But the vice president's greatest rhetorical sleight of hand may be that he has completely inverted settled and open legal questions. As he snarks his way through his final exit interviews, he takes the position that the thorniest legal questions are the easy ones and the settled ones are still open.

First there's Cheney on the efficacy of torture. In his ABC interview last week he swaggered, "I think, for example, Khalid Sheikh Mohammed, who was the No. 3 man in al-Qaida, the man who planned the attacks of 9/11, provided us with a wealth of information. There was a period of time there, three or four years ago, when about half of everything we knew about al-Qaida came from that one source."

Could this be a close call? In fact, the debate ended years ago, almost as soon as it began. You may remember back in 2002, some of us were actually engaged in discussing this issue. Alan Dershowitz at Harvard was poking at the possibility of judge-sanctioned torture warrants. Those charged with setting interrogation policy at Guantanamo were seeking inspiration from Jack Bauer. And boneheads like me were positing fascinating hypotheticals about the possible efficacy of abusing our prisoners.

Well, guess what? The efficacy of torture is not a close question anywhere outside of Fox television anymore. Darius Rejali has definitively studied the question and showed that torture does not elicit truthful confessions. In his book How To Break a Terrorist, former interrogator Matthew Alexander agrees that abusive interrogation techniques don't work and endanger Americans. FBI Director Robert Mueller recently told Vanity Fair's David Rose that he doesn't "believe it to be the case" that enhanced interrogation stopped any attacks on America. And the stunning bipartisan report issued earlier this month by the Senate armed services committee confirms that lawyers in every branch of the military consistently warned top Bush officials that torture wasn't effective. The handful of people—including Dick Cheney—who are still blathering about how well torture works do so in the face of a mountain of evidence to the contrary.

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.

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