Cheney knows this. In 2009, Liz Cheney Reveals That Fear Of Prosecution Motivates Dad’s Media Blitz Defending Torture. Two years later, Cheney's book is still trying to convince Americans that torture saves lives.
One wrinkle is that Bush and Cheney kept citing and relying upon their manufactured "legal opinions" by their torture lawyers as a defense of legal advice and tried to push acceptance of their views. When one party tried to cite the reasoning in an Office of Legal Counsel memorandum to support an interpretation of the federal torture statute, a federal court in 2010 declined to adopt the reasoning of the OLC opinion.
However, the lack of political will to prosecute for torture is not limited to DC politicians. A report a few days ago discussed the shift in public attitudes: In 2004, 43% stated approval of torture to "gain important information from suspected terrorists," and now that minority view has increased to a majority of 53%.
Another wrinkle Cheney faces is that the Bush WH was very successful with using the shock doctrine to keep Americans in a state of fear during the Bush years, and lingering thereafter. But, now more people are awakening and more are now speaking out against torture. Human Right First just launched this online ad campaign:
The key, as stated by a former prosecutor, is that the clock is ticking, but time is not running out now:
Won't it be too late if we wait much longer? Absolutely not. There's a lot of misinformation out there on this topic, mainly as a result of gross oversimplification of the law. However, notwithstanding anything you may have heard - about charges disappearing in 2010 and all hope being lost after 2011 - time is not running out to prosecute Bush administration officials either for torture itself or for the many crimes they committed to keep their program alive throughout their tenure.
Federal Anti-Torture Act 18 U.S.C. § 2340
The Torture Act defines torture as an act "specifically intended to inflict severe physical or mental pain or suffering" upon another person in their custody or physical control. [18 USC § 2340(1)] Severe mental pain or suffering is defined by acts intended to evidence prolonged mental harm, such as the intentional infliction or threatened infliction of severe physical pain or suffering, the threat of imminent death, the threat that another person would imminently be subjected to death, or severe physical pain or suffering.
Just looking at waterboarding and its variations, Courts and tribunals here have found that waterboarding constituted torture. Bush and Cheney authorized torture that often was not used in isolation but combined with other "techniques," such as sleep deprivation and stress positions for hours, that did inflict severe physical and/or mental pain or suffering, and sometimes death.
Torture Conspiracy 18 USC § 2340A(c)
Elizabeth de la Vega, a former federal prosecutor with more than 20 years of experience explains how Bush officials can be prosecuted for the crime of torture conspiracy.
To prove the crime, the prosecutor must show that: (1) two or more persons agreed to commit or cause the commission of acts of torture, under color of law, upon persons who were in the conspirators' custody and control; and (2) the defendant knowingly joined the illegal agreement at any time. But here's the most important point: This type of conspiracy continues, as a legal matter, as long as its members are still trying to accomplish its objectives - regardless of when they committed their last overt act.
Given that Bush and Cheney maintained their torture program while in office, the statute of limitations would not commence to run until January 20, 2009:
And, at any time after January 2009, until the limitations period expires - if it ever does - a prosecutor could charge a conspiracy to torture that began in 2001 and lasted until the end of the Bush administration.
The end date of the statute of limitations depends upon the predicate acts for the torture charge.
Thanks to the Bush administration's extension of the limitations period for certain terrorism offenses in 2001, noncapital torture has an 8-year statute of limitations. Thus, the "deadline for indicting Bush administration officials on conspiracy to torture charges would still be years away - January of 2017."
However, if the "if the commission of such offense resulted in, or created a foreseeable risk of, death or serious bodily injury to another person," then "notwithstanding any other law, an indictment may be found or an information instituted at any time without limitation." Thus, Bush and Cheney could be prosecuted at any time during the rest of their lives when the torture predicate is a foreseeable risk of death or serious bodily injury to another person:
Section 2340A prohibits both the substantive act of torture and conspiracy to commit torture. We also know that it is one of the terrorism offenses listed in section 2332(b)(g)(5)(B). Therefore, we know that - pursuant to section 3286(b) - there is no statute of limitations whatsoever on charges against anyone who: (1) committed torture; (2) aided and abetted the commission of torture; or (3) conspired to commit torture if any of those crimes either: (a) actually resulted in death; or (b) created a foreseeable risk of death; or (c) created a foreseeable risk of serious bodily injury to another person. In other words - as a result of amendments enacted in 2001 at the behest of Bush administration officials themselves - the available period for their indictment for torture could well be the rest of their lives.
De la Vega explains the question of foreseeability:
But the test of foreseeability is a well-established one founded in common sense. In the case of charges against White House officials it would be: Would a reasonable person who had the information available to the senior officials be able to anticipate that death or serious bodily injury to another might result when they issued orders that loosed the wild dogs of torture - both literally and figuratively - against prisoners in US custody around the world? The answer is obvious, particularly as victims of torture were receiving emergency medical treatment to keep them alive for yet another round, and one death after another actually began to ensue.
War Crimes Act 18 U.S.C. § 2441
War crimes are defined to include a grave breach of Common Article 3. A grave breach of Common Article 3 is defined now (per the Bush administration) as limited to specific acts: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse or taking hostages. [18 U.S.C. § 2441(d)(1)] Bush did this to eliminate the Common Article 3 prohibition of "outrages upon personal dignity, in particular humiliating and degrading treatment," which basically covered every act that they had "authorized." However, passing a law to try to prevent prosecutions against them might be useful to a conspiracy torture prosecution.
Torture is defined generally the same as the federal anti-torture statute but also requires that the torture be done for the purpose of "obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind." [18 U.S.C. § 2441(d)(1)(A)] Severe mental pain or suffering is defined exactly as it is defined in the federal torture statute for both torture and cruel and inhuman treatment. [18 U.S.C. § 2441(d)(2)(A)]
However, serious physical pain or suffering does not rise to the level of cruel or inhuman treatment unless it "involves" one of a number of bodily injuries: a "substantial risk of death," "extreme physical pain," a "burn or physical disfigurement of a serious nature (other than cuts, abrasions or bruises)" or "significant loss or impairment of the function of a bodily member, organ, or mental faculty." [18 U.S.C. § 2441(d)(2)(D)]
The time period for prosecuting war crimes is not clear. Some argue that torture is one of the international crimes for which there can be no statute of limitations. The US Department of the Navy took the position that war crimes do not have any statute of limitations in a document published in 2005. However, the Congressional Research Service stated in 2009 that war crimes prosecutions of U.S. personnel might be limited to 5 years from the date of the offense unless it is a capital offense.
Additional crimes could also be charged, such as conspiracy to defraud based on the numerous misrepresentations that the Bush White House made to Congress about their torture operation.
Prosecution for war crimes raises issues, legal and political, that can be avoided with a prosecution for torture, torture conspiracy or conspiracy to defraud.
De la Vega stated eloquently in 2009 why we should not stop advocating for some accountability, which is exactly what Cheney would love for us to do:
Many powerful people from across the political spectrum would be utterly delighted if the millions of Americans now pushing for accountability gave up in despair in a year or two because they mistakenly believed that prosecutions were no longer possible. But it is self-defeating in the extreme for those who want Bush, Cheney et. al. held responsible for their actions to foster this misconception. A widespread false belief that prosecutions are a limited-time offer provides a ready excuse for ultimate inaction to any and all who wish to "move on" as if eight years of torture were merely an unpleasant incident on the sidewalk. At the same time, people who don't know options still remain will be helpless to argue otherwise. In the world of criminal prosecutions, this is not a short story; it's a sprawling Icelandic saga. And - as any attorney who has prosecuted complex federal cases could tell you - it will be many years, if ever, before legal time limits will bar the hearing of this horrific epic in a US criminal court.