Steve Sheppard

Cheney Is Wrong: There Is Precedent for the Torture Investigation

By STEVE SHEPPARD
Wednesday, September 2, 2009

Vice President Cheney has complained that the Attorney General's new investigation of alleged torture during the Bush Administration is unprecedented. Cheney says that such an investigation is merely political, criminalizing a disagreement between Presidents over policy. He claims that no administration has investigated its predecessors' crimes, and that it is wrong for the Obama Administration to break tradition.

Yet, as Cheney well knows, the United States has previously investigated criminal acts by officials, even White House officials. Indeed, such investigations – and the resulting prosecutions – are the duty of the White House.

Cheney's Complaint and Its Echoes

On August 30, Cheney denounced Attorney General Eric Holder's decision to appoint a prosecutor to investigate allegations that Americans broke the law by torturing detainees. The former Vice President complained of "the terrible precedent it sets" to investigate agents because "when a new administration comes in, it becomes political. ... I just think it's an outrageous precedent to set, to have this kind of, I think, intensely partisan, politicized look back at the prior administration. "

This charge has legs. Former CIA General Counsel Jeffrey Smith similarly claimed, "Prosecutions would set the dangerous precedent that criminal law can be used to settle policy differences at the expense of career officers." And Georgetown Law School's Paul F. Rothstein suggested that "investigating the actions of a past presidential administration sets an uneasy legal precedent."

Of course, Cheney has other arguments, which we've heard before: Arresting agents for breaking the law would be bad for morale, and they'd be less willing to break the law in the future. What was done wasn't torture, and anyway it worked; and we need to use it a lot more often to stay safe. But the precedent claim is new, and it occupied much of Cheney's attention on Sunday's Fox News show.

Cheney argues that this investigation poses a new risk to our government. No U.S. president has overseen the investigation and – as Cheney predicts – the prosecution of the agents or officers of a prior administration. He sees this as a new precedent, and a bad one.

Yet Cheney is wrong. There are precedents. Moreover, there is a reason why there are so few: Most administrations investigate themselves, something the Bush Administration refused to do.

The Teapot Dome Investigation and Prosecutions

Albert Bacon Fall was a powerful Senator when he joined the cabinet of President Warren G. Harding in 1921. Fall became Secretary of the Interior and managed to acquire jurisdiction over the U.S. Navy's oil reserve, consisting of oil pools in California and in the Teapot Dome formation in Wyoming. Fall gave non-competitive contracts to his friends in major oil companies, allowing them to drill without bidding for the right to do so. Secretary Fall argued that the leases were in the national interest; bids were unneeded owing to the reputation of the firms. Yet he failed to mention the $385,000 given to him by one of his friends at one of those very firms.

Harding died in 1923, and the following year, President Calvin Coolidge acted on a Senate committee recommendation to appoint special counsel to investigate the whole mess. Counsels Altee Pomerene and Owen Roberts were confirmed, after much debate in the Senate over their independence and qualifications. They brought two civil suits and six criminal actions, including three separate criminal cases against Secretary Fall. In the 1925 decision of the U.S. Court of Appeals for the D.C. Circuit in United States v. Albert Fall, Fall's bribery conviction was upheld. He served nine months in prison.

Perhaps we should excuse Vice President Cheney for not remembering Teapot Dome. Yet it is harder to believe his memory failed him regarding prosecutions of members of an administration he himself investigated, for carrying out Presidential policies that amounted to criminal activities.

The Iran-Contra Investigation and Prosecutions

Elliot Abrams was Assistant Secretary of State from 1985 to 1989. He was the primary official in the State Department overseeing the work of Marine Lieutenant Colonel Oliver North, who supplied arms to Nicaraguan rebels in violation of the law. Abrams worked with Alan Friers at CIA, and sought funds for the Nicaraguan operation from the Sultan of Brunei – an effort about which Abrams misled Congress in 1986.

Both Abrams and Friers were investigated by Lawrence Walsh, as well as by congressional committees, one of which included an outraged Dick Cheney. Following Walsh's indictments, both Abrams and Friers pled guilty to felonies in 1991. Abrams, however, was later pardoned by President George H.W. Bush.

Though Walsh's investigation of the Iran-Contra affair began in 1986 at the order of FBI Director William H. Webster, the investigation continued after President Reagan left office in January 1989. The specific determinations to focus the investigation upon and to indict Abrams and Friers were made during the next administration.

When One Administration Won't Clean House, the Next Must

There are other precedents too, admittedly imperfect ones. For instance, while the timeline is different, and President Nixon's own Attorney General started the Watergate investigation, there are parallels between aspects of the Watergate cases and Attorney General Holder's new investigation. It's important to recall that White House aides John Ehrlichman and H.R. Haldeman and former Attorney General John Mitchell were pursued after Nixon left the White House, with each being convicted in 1975.

True, these are not many cases. One might wonder why so few administrations have initiated investigations of the wrongs of their predecessors.

The answer is that when other scandals arose, the administrations involved – and the Congress that was then in session – did not wait for the next administration. They investigated allegations and prosecuted their malefactors themselves. From Abraham Lincoln's dismissal of Simon Cameron, to Ulysses Grant and the Crédit Mobilier scandal of 1872 or the Whiskey Ring of 1875, to the Veterans Bureau scandal of 1923, to the IRS scandal of the 1950s, allegations of wrongdoing were taken seriously by both the Congress and the President serving in the administration that was in office when the allegations were made. In these and many other cases, there was no need for the later administration to investigate, because, as with Watergate, the investigation was either already concluded or in full swing when the next administration took office.

True, not all claims of illegal official conduct are investigated. Yet the serious crimes that become known to the public often are. Only if one administration refuses to start an investigation, must its successor do so. So it is not the Obama administration's action, but the second Bush administration's omission, that should be the focus of criticism here.

The President is the Chief Executive, responsible for enforcing all the laws. That the laws were broken on the orders of a predecessor can be no excuse for not investigating their violation, and may be no excuse for not prosecuting if violations are found. The crime of torture, under 18 U.S.C. § 2340, is punishable by twenty years in prison or by execution of the torturer. Notably, the crime of torture can only be committed by a person acting under color of law. So Congress enacted a crime that can be committed only by the very same category of people that the Vice President is aggrieved even to see investigated.

This is not a question of policy. Even if there were no precedents at all, it would make no difference. Crimes are crimes, though they are committed by government agents or the Vice President's allies. Ask Scooter Libby.

Dick Cheney may be forgiven his sketchy use of history, as long as we don't accept his peculiar views of the past, or let them color our views of the future. Or of the law. After all, the former Vice President has many reasons not to want this particular investigation. Not the least reason, which he has yet to list, is that there may be more investigations to come.


Steve Sheppard is the Judge Enfield Professor of Law at the University of Arkansas School of Law and author of I Do Solemnly Swear: The Moral Obligations of Legal Officials, just released by Cambridge University Press, among other works..

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