Cheney Tells the Seventh Circuit It Would Erode Military Discipline To Let Courts Second Guess Cheney’s Torture Decisions

Remember that letter a bunch of former Directors of Central Intelligence wrote begging Obama to kill an investigation into George W Bush-approved CIA torture?

Poppy, the father of the President who authorized that torture, had the good grace not to sign onto the letter.

These things tend to look like stunts when someone with that kind of personal conflict signs on.

Which is why this amicus brief from all former Secretaries of Defense, submitted in the Vance v. Rumsfeld suit suing Donald Rumsfeld for torture inflicted on two contractors in Iraq, is so farcical. (h/t Lawfare) Right there between “Frank C. Carlucci III, Secretary of Defense from 1987 to 1989” and “William S. Cohen, Secretary of Defense from 1997 to 2001” comes “Richard B. Cheney, Vice President of the United States from 2001 to 2009, and Secretary of Defense from 1989 to 1993.”

Otherwise known as the architect of the torture program for which Dick’s first important boss, Rummy, is now being sued.

As you might expect from a brief submitted by David Rivkin, the argument in the brief itself isn’t any more credible. It does two things. First, it argues that if Vance were allowed to sue under Bivens for being tortured by his own government, then it would break down military discipline that requires–and affords Vance as recourse, they claim–members of the military to report detainee abuse up the chain of command. We saw how well that worked for Joe Darby and a bunch of Gitmo whistleblowers. And of course these former Secretaries of Defense are arguing that military discipline will guarantee that the entire chain of command would be able to hold its civilian leadership accountable for illegal orders to torture civilians. Never mind that those former Secretaries pretty much admit there is little means under the UMCJ to actually punish civilian leaders (the whole brief ignores that some of the torturers were also civilians), as distinct from the members of the military whose punishment the brief lays out in some detail–for breaking the law.

With respect to civilian officials and employees, the process of investigation would have vindicated Plaintiffs’ rights by, at a minimum, providing “a forum where the allegedly unconstitutional conduct would come to light,” Bagola v. Kindt, 131 F.3d 632, 643 (7th Cir. 1997) (citing Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chilicky, 487 U.S. 412 (1988)), and review of Plaintiffs’ constitutional claims, with the possibility of review by the U.S. Supreme Court, 10 U.S.C. § 867A(a).

Military discipline that must be preserved would guarantee that the Lynndie Englands were held accountable. And that, for these former Secretaries of Defense, is enough, I guess.

Of course, all this only works because of the brief’s other strategy: to simultaneously suggest that this was not torture (that is, something clearly prohibited by law), calling it consistently “mistreatment.” Even while ignoring that Ashcroft v. al-Kidd requires the showing of obviously prohibited behavior, like torture.

The panel majority’s narrow framing of its holding—that it extends only to conduct of the nature alleged by Plaintiffs, Slip op. 58-59—is yet another attempt to craft “[a] test for liability that depends on the extent to which particular suits would call into question military discipline and decisionmaking.” Stanley, 483 U.S. at 682. But this “would itself require judicial inquiry into, and hence intrusion upon, military matters,” and “the mere process of arriving at correct conclusions would disrupt the military regime.” Id. at 683-84. Moreover, this limitation is arbitrary; in no case has Bivens’ availability turned on the gravity of the alleged deprivation.

A final consequence is the likelihood that, fearing personal liability, those officials charged with ensuring the Nation’s security “would be deterred from full use of their legal authority.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2087 (2011) (Kennedy, J., concurring).

It’s not that Rummy (and Cheney, though Cheney and his colleagues don’t say this) should have and in fact did know that torture was illegal, this brief pretends (as al-Kidd mistakenly, IMO, pretends that Ashcroft had no way of knowing what material witness detention allowed). Rather, you simply can’t question military matters, at all, never ever, even in cases of gross violations of law, because that’s a slippery slope that will erode military discipline.

The military discipline that ensures that Secretaries of Defense–and Vice Presidents–will never held accountable for their crimes.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

15 replies
  1. jo6pac says:

    Isn’t this about the time 0s transient staff had decide that the there might be coup if they went after the bad guys of the old govt? Then again I really can’t tell the difference anymore if there are any goods people in high govt.

    I thought the coup had already happen when you adm. mullen telling everyone else what to do. When did the military get any say in what goes down.

  2. MadDog says:

    It will be interesting to see whether our Federal judiciary continues to bury its collective head in the sand in total abject obeisance to the Executive branch in matters the Executive claims are their’s to rule on alone or whether our Federal judges will grow a pair.

    As for Rivkin, the clown is and has been nothing more than a partisan Repug hack.

    • bmaz says:

      MadDog – Well, say what you will, the judiciary has been the best hedge on a lot of the wrongs we have had. What they should be? No, but also understand on many things they have been hamstrung by crappy laws from Congress and craven manipulation, obfuscation and duplicity by the executive branch.

  3. orionATL says:

    but the secretaries of defense

    and the vice-presidents

    are not members of the armed forces!

    in fact, i think cheney and rumsfeld were draft dodgers.

    the argument that the suit erodes military discipline is complete bullshit.

    what really, really eroded military discipline in the cheney/bush years was

    first, that the use of torture,

    which officers had been taught for generations was illegal

    and which was not in the interests of ordinary soldiers (because american torture would provide justification for torturing americans)

    was legitimized

    and protests against that position were ignored by cheney, addington, presnit bush and

    officers in the military who wanted to get ahead, e.g., gen petraeus.

    on the other hand, honest officers like general taguba were marginalized and forced out if they disagreed with the torture regimen.

    i would guess that hundreds of senior officers were opposed to torturing iraquis, afghanis, and others,

    but vice-president cheney’s actions, including covert bureaucratic actions he took,

    led them to strike their colors and stop protesting torture.

    far from being allowed to plead damage to military discipline,

    cheney and rumsfeld should be charged with and prosecuted for destroying military discipline because they forcibly introduced torture into the american military system where it had not existed before.

    that cheney would even make the bogus “erosion of discipline” argument is evidence that he knows his actions eroded discipline

    and

    that he is still very worried, as he should be, with being charged outside the u.s. for instituting torture in the u.s. military.

  4. Bay State Librul says:

    Sorry to hijack but I had to…

    Best quote: “These ARE your father’s Red Sox”

    Good luck to the Rays, Cards, D-Backs, Tigers, Phils, Texas, and
    Brewers.
    My favorites: Tigers, Brewers, and D-Backs.

    I withheld a good luck to the Yankees since I can’t pull the trigger
    (too much baggage) plus they didn’t send Mariano Rivera to close in the
    9th last night, fuckers.

    Beware Brady’s got a haircut.

  5. Jim White says:

    @Bay State Librul: Heh. I told my wife last night that Rivera’s absence in the 9th would be a significant point of contention for Sawx fans.

    At least you can take solace in the Sawx putting a new entry into the record books, even if it is a record for futility.

    In seriousness, though, my condolences for what had to be rough night. Watching the Gators fritter away the championship series in Omaha this year when they had the clearly better team was pretty painful, so I think I know a bit of what you’re going through.

    I gotta like the Rays in the playoffs. Hard to bet against a team that can beat the Yankees after going into the bottom of the 8th down 7-zip.

  6. klynn says:

    That Mr. C seems to get critical thought bass akwards often. It will erode military discipline to let the courts second guess C’s torture decision?

    Oh, I see… Getting to the heart of a true incident of torturing an innocent American citizen, who was actually serving his country in a special capacity, and formerly served in the military, would always erode military discipline. /s (sort of)

  7. bmaz says:

    I have thought about this a little more while doing some errands. In some regards, I wonder if these amici even care what their arguments are so much as just needing a vehicle to get all their names out and on the record to try to frame the matter as a political issue of civilian military control that is not appropriate for court intevention?

  8. emptywheel says:

    @bmaz: In which case having Cheney’s name on the brief does serve a purpose, particularly given that no one besides us are going to point out how inappropriate it is.

  9. What Constitution says:

    How is it that Cheney was in Canada this week and nobody there arrested him? I realize it’s pathetic to have to count on having other countries show us how to act responsibly, but when it’s all you’ve got I guess it’s worth reminding everyone when an opportunity might arise. I, for one, will be forever grateful to whoever gets that person to The Hague.

  10. MarkH says:

    If officials in the administration are relatively safe from prosecution, except to be kicked out of gov’t, then there would be no limit on them. Requiring soldiers to uphold the law seems to me to be an unfair level of responsibility. What’s the best practical solution? I’m not sure. But, prosecuting people like Lynndie England and the CIA interrogators for things they were ordered to do doesn’t seem fair or good policy.

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