By Anthony D’Amato and Jordan J. Paust
(This article originally appeared in the Chicago Sun Times)
Some on President-elect Barack Obama’s team wonder whether he will have the duty to prosecute or extradite persons who are reasonably accused of having committed and abetted war crimes or crimes against humanity during the Bush administration’s admitted “program” of “coercive interrogation” and secret detention that was part of a “common, unifying” plan to deny protections under the Geneva Conventions.
The short answer is “yes.”
Under the U.S. Constitution, the president is expressly and unavoidably bound to faithfully execute the laws, and the Supreme Court has recognized in many cases since the founding of our government that such laws include U.S. treaty law and customary international law. In fact, every relevant federal judicial opinion over the last 200 years has affirmed that all persons within the executive branch are bound by the laws of war, a point famously recognized by President Lincoln’s attorney general in 1865. Moreover, Obama has assured the American people that he will work to restore the rule of law and integrity in our government, which have been among clear casualties during the Bush administration’s “war” on terror.
The 1949 Geneva Civilian Convention, which is considered treaty law of the United States, expressly and unavoidably requires that all parties search for perpetrators of grave breaches of the treaty and bring them “before its own courts” for “effective penal sanctions” or “if it prefers . . . hand such persons over for trial to another High Contracting Party.”
The obligation is absolute. The United States must either initiate prosecution or extradite to another state. “Grave breaches” of the Convention include “torture or inhuman treatment” and unlawful transfer of a non-prisoner of war from occupied territory.
Similarly, the Convention Against Torture expressly and unavoidably requires that a party to the treaty extradite or “submit the case to its competent authorities for the purpose of prosecution.” In 2006, the United Nations Security Council rightly stressed “the responsibility of States to comply with their relevant obligations to end impunity and to prosecute those responsible for war crimes,” which include the use of torture and cruel, inhumane and degrading treatment. In 2007, the U.N. General Assembly stressed that use of torture or cruel, inhumane or degrading treatment “must be promptly and impartially examined . . . [and] those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished.”
Many authoritative reports have already recognized that what we saw in Abu Ghraib photos and waterboarding, the cold cell, stripping persons naked and use of snarling dogs to instill intense fear are torture. If they were not, they are also cruel treatment. If they were not, they constitute inhumane treatment. As such, they are manifest violations of the laws of war and any violation of the laws of war is a war crime.
Some have argued that a Department of Justice memo is a “golden shield” for alleged perpetrators of manifestly criminal behavior.
However, the shield is made of fool’s gold and is full of holes. For example, orders or authorizations to engage in interrogation tactics that will manifestly produce what the community will judge to be torture, cruel, inhumane or degrading treatment are orders or authorizations to engage in conduct that is manifestly illegal whether or not the criminal accused knows that the conduct is illegal or knows that the conduct is torture, cruel, inhumane or degrading. Manifestly unlawful orders or authorizations are not a defense. A U.S. Department of the Army Field Manual notes that an order does not constitute a defense for the recipient “unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful.” Article 2, paragraph 3 of the Convention Against Torture states: “An order . . . may not be invoked as a justification of torture.
It is time for real change in America. It is time for restoration of the rule of law, an end to seven years of impunity, and restoration of American honor, integrity, and respect within the international community. This can only be accomplished with presidential adherence to an unavoidable constitutional duty to faithfully execute the law.
Anthony D’Amato is the Leighton Professor at Northwestern University School of Law and Jordan J. Paust is the Mike & Teresa Baker Professor at the Law Center of the University of Houston and former captain, United States Army JAG Corps and member of the Faculty of the Judge Advocate General’s School. Both have been members of the Executive Council of the American Society of International Law.