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Cheney’s Response Demands a Special Prosecutor

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I’m no psychiatrist but it’s been said that the subconscious of people who are suffering severe guilt sometimes causes them to make inadvertent admissions of wrongdoing. That might well be why former Vice-President Dick Cheney made a startling statement at the very end of his recent interview on ABC News’ “This Week.”

Here is what Cheney stated:

“The reason I’ve been outspoken is because there were some things being said, especially after we left office … disbarring lawyers in the Justice Department who had — had helped us put those policies together….”

Why is that statement important? Because from the very beginning of the torture scandal that enveloped the Bush administration, Bush, Cheney, and other high U.S. officials have maintained that they were relying on the torture memos issued by the attorneys in the Justice Department’s Office of Legal Counsel. The notion has been: We shouldn’t be held responsible for any criminal violations on torture that occurred at Gitmo, Abu Ghraib, and elsewhere because we were in good faith relying on the independent legal opinion of the lawyers in the Office of Legal Counsel.

By the same token, defenders of Office of Legal Counsel attorneys John Yoo, Jay Bybee, and others who participated in the issuance of the torture memos have said that such lawyers shouldn’t be held responsible because they were simply issuing legal opinions in good faith based on their particular understanding of the law.

But as Cheney implied in his statement to ABC News, there is the distinct possibility that Yoo and Bybee and other attorneys working with them were not asked to issue an independent legal opinion on torture but instead were asked to knowingly, deliberately, and intentionally participate in a scheme to justify the torture regime that was being implemented.

Basically there are two different types of lawyers:

One type, when asked by a client whether a certain course of conduct would be legal, delivers his best answer even if it’s not the answer the client wants to hear.

The other type of lawyer says to his client: “What do you want the answer to be?” and then issues a legal opinion to justify what the client wants to do. The idea is that if the client is busted, he can say, “I was just relying on my attorney’s advice. Here is his legal opinion that he issued to me in good faith.”

Cheney’s statement to ABC News indicates that Yoo and Bybee and other lawyers who helped prepare the torture memos might well fall within the second category of lawyers. If they were actually helping to put the torture policies together, as Cheney’s statement implies, then that would indicate that their role was not to provide an independent, good-faith legal opinion but rather to provide legal cover for Bush and Cheney and other higher-ups in the event the entire scheme were to blow up, which it did.

If it was one great big scheme, look at the beauty of it: The president and vice president get off the hook because they were purportedly relying on independent legal opinions in making their decisions. The lawyers who issued the legal opinions get off the hook because they were purportedly just providing their best legal judgment, not implementing the policies themselves. Finally, the people who carried out the policies are said to be immune from liability because they were just loyally following the orders of their superiors.

Was all this a concocted scheme to permit laws against torture to be violated and to provide legal cover to those who were doing the violating? Cheney’s startling statement to ABC News screams out for the appointment of a special prosecutor to conduct a criminal investigation into the matter.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.