"But my Lord? Is that -- legal?"
"I will MAKE it legal."
-- Star Wars: The Phantom Menace
On January 19, 2009, George W. Bush will have a final opportunity to give the American people the middle finger. The only question is whether he will "flip the bird" at the Constitution ... or the Obama administration.
I speak, of course, of the possibility that Bush might pardon everyone in his Administration who either authorized or engaged in acts of torture while under his command. The question I pose is whether the proposed pardon would have legal effect and if so, what we need to do to prevent a recurrence.
The United States is a signatory to the United Nations' Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), which provides, in pertinent part:
Article 1
- For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Article 2
- Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
- No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
- An order from a superior officer or a public authority may not be invoked as a justification of torture.
To reiterate what is presumably common knowledge here, the CIA has admitted to engaging in the practice of waterboarding. What you might not know is that, in the aftermath of World War II, the Allies executed Japanese soldiers who waterboarded our soldiers on the ground that it constituted a "crime against humanity." See, Evan J. Wallach, Drop By Drop: Forgetting the History Of Water Torture In U.S. Courts, 45 Colum. J. Transnat’l L. (draft dated Oct. 16, 2006; Judge Wallach is a recognized expert on the law of war).
In a perfect world, the indictments would already be on the Attorney General's desk. "Club G'itmo" is a territory under our jurisdiction, and the agents who carried it out would be criminally liable even if they "just followed orders." More importantly, criminal liability would go all the way up the bureaucratic food chain, as "the United States understands that the term `acquiescence' requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity." [cite; US Reservation II(1)(d)] In addition, the Bush Administration has further stated, in no uncertain terms, that
[a]ll components of the United States Government are obligated to act in compliance with the law, including all United States constitutional, statutory, and treaty obligations relating to torture and cruel, inhuman or degrading treatment or punishment. The U.S. Government does not permit, tolerate, or condone torture, or other unlawful practices, by its personnel or employees under any circumstances. U.S. laws prohibiting such practices apply both when the employees are operating in the United States and in other parts of the world.
U.S. Department of State, Second Periodic Report of the United States of America to the Committee Against Torture (May 6, 2005) at 5 [cite].
But here's where it gets complicated.
Law Is Only As Good As Its Enforcement
As a practical matter, legislators and judges are unlikely to torture suspected terrorists (okay, you can argue that this Colorado judge has committed a truly unspeakable war crime). If it is going to happen, torture will be inflicted by persons responsible to the executive branch, and almost certainly with the approval of senior officials.
A signatory state is obligated under CAT to "take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." To that end, we have made both torture and conspiracy to commit torture violations of United States law punishable by up to 20 years in prison, 18 U.S.C. § 2340A, and could presume that federal judges would reliably enforce it if appropriate charges are brought before them. But is the statute "effective" enough to comply with our stated obligations under the Convention? For a criminal statute to be effective, it has to be enforced by the appropriate authorities, and cannot be short-circuited by other means.
The first hurdle to effectiveness is the plenary right of prosecutors to refrain from prosecuting crimes. Attorney General Mukasey has stated that he isn't even going to investigate charges of torture, under the rationale that "using criminal investigations to examine Bush administration policies would send a harmful message[!]: that officials who 'support aggressive counterterrorism policy based on their good faith belief that such a policy is lawful' may one day be prosecuted." Evan Perez, Sweeping Pardons 'Unnecessary', Wall St. J. (Nov. 25, 2008) (emphasis added) [on-line here]. While Attorney General Mukasey is certainly entitled to his personal opinion, he swore an oath to uphold and defend the Constitution.
I have to give props here to Justice Richard Sanders of the Washington Supreme Court, who denounced Mukasey as a "tyrant"-- welllll, to be perfectly accurate, he heckled him -- during a Federalist Society speech, shortly before he collapsed.)
To the best of my knowledge, ours is the only nation in the civilized world wherein a private citizen does not have a clear statutory or other mechanism for either initiating a criminal prosecution on his own or compelling appropriate public officials to do so. If this had taken place in Italy, Mukasey would have a constitutional duty to prosecute. Costituzione della Repubblica Italiana [Constitution] art. 112 (Italy 1947). In Germany, whatever discretion he might have is severely limited by statute. See e.g., Hans-Heinrich Jescheck, The Discretionary Powers of the Prosecuting Attorney in West Germany, 18 Amer. J. Comp. L. 508 (1970). In Spain, Constitución Espanola de 1978 [1978 Constitution] art. 125 (Spain), and throughout the Commonwealth, a private citizen could pursue criminal charges. E.g., Barrymore Facing Pool Death Case, BBC News, Jan. 16, 2006 (Great Britain); Plans For Private Prosecution Against Winnie, BBC News, Nov. 26, 1997 (South Africa: prosecution of Winnie Mandela proposed).
If prosecutorial discretion is a body-blow to the rule of law, the pardon power is a haymaker. If we read the Constitution literally, there is only one limitation on the pardon power: the President cannot pardon anyone who is undergoing the process of impeachment.[1] As those of us who are old enough to remember Watergate know, in theory, the President can even pardon himself. While we narrowly evaded this Constitutional doomsday scenario in 1974, it stares us in the face squarely today, as our government has become a criminal enterprise.
The constitutional problem should be self-evident: If the President has plenary and exclusive control over prosecutorial functions, he could ensure that many federal crimes committed with his knowledge and approval and even under his direction are never prosecuted, since most crimes have a statute of limitation. Moreover, even if a rogue prosecutor were to be so foolish as to be deluded into believing that his oath of loyalty is to the Constitution (as opposed to the President), and to be so impertinent as to actually indict one of his staffers, a pardon would put a quick and merciful end to such nonsense. As this has already happened, it is not a theoretical question.
Here, we have our fundamental problem: In a nation purporting to be governed by the rule of law, we have a class of people who appear to be above and beyond the law. But wait! It gets worse.
Treaties: Uh, Yoo Gotta Be Kidding Me!
The Constitution states that "...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. The process by which a treaty could lawfully be entered into was laid out explicitly. Id., art. 2, § 2, cl. 2. Unfortunately, the Framers neglected to explain how those lawful treaties were to be broken and by whom, and what the ramifications of such an act are, which leaves us in a sort of legal limbo.
The courts have filled in most of the holes. The first issue was whether a law violating a pre-existing treaty would be valid, and the second was whether the Government could abridge any part of the Bill of Rights via treaty. The Supreme Court answered exactly as Madison would have[2]: The Constitution was the supreme "supreme Law of the Land, Reid v. Covert, 354 U.S. 1 (1957), and "the last expression of the sovereign must control." Chinese Exclusion Case, 130 U.S. 581, 600 (1889). This, in turn, creates the problem we are faced with today: Who is "the sovereign?"
In theory, our President is a servant of the law, who takes a solemn oath to preserve, protect, and defend the Constitution to the best of his ability. And as a servant of the law, he is legally and morally obliged to follow the law. But a treaty can be breached by a willful act by one of the parties, granting rights the other parties in accordance with its terms. See, Vienna Convention on the Law of Treaties, art. 60, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980).[3] The question begged by the admitted use of torture by our President's men is whether these actions constituted a repudiation of the treaty, or an unauthorized criminal act that we are obligated to prosecute under the CAT. Or to put it another way, does the President have the legal authority to unilaterally abandon a treaty?
In 1979, President Carter unilaterally terminated our mutual defense treaty with the island nation of Taiwan ... and Congress did what Congress is justly famous for doing: NOTHING. An intrepid band of right-wing Senators led by Barry Goldwater (R-AZ) filed suit in the District of Columbia, alleging that the President did not have the power to do so. But rather than answer the question -- it would, after all, have been an ultra vires act, if Sen. Goldwater was right -- SCOTUS did what it is justly famous for doing: nothing. In a decision that could only have come from the pen of Rehnquist, the Court opined that the question was political and therefore, could not be decided by the courts. Goldwater v. Carter, 444 U.S. 996 (1979). It is one of the Court's more bizarre decisions: Either President Carter's action was within the scope of his authority and therefore "legal," or it was not. But we will never know for certain; all that can be safely said is that the President is free to do as he pleases, the Constitution be damned, unless and until Congress grows a pair and stops him. But wait! It gets even worse.
Like the erstwhile Soviet Union, the United States only signs human rights treaties, as opposed to actually implementing them. But unlike the Soviets, who used to sign treaties without even holding out the flimsiest pretense that they would honor them, we hide our arrogant disdain for international law behind a legal device known as the "self-executing treaty doctrine." We sign treaties subject to a unilateral declaration that it is not self-executing, and that our domestic law is in compliance with the treaty. But as our domestic courts consistently rule that no one has standing to enforce the provisions of the treaty because no rights were conferred as a result of our act of ratification, our government can disregard a treaty whenever it becomes inconvenient -- as it did in Gitmo. Everyone else in the world has caught on, and the Scandinavian countries in particular have a habit of calling us on it:
With regard to the reservations, understandings and declarations made by the United States of America upon ratification [of CAT]:
"A reservation which consists of a general reference to national law without specifying its contents does not clearly define to the other Parties of the Convention the extent to which the reserving State commits itself to the Convention and therefore may cast doubts about the commitment of the reserving State to fulfil its obligations under the Convention. Such a reservation is also, in the view of the Government of Finland, subject to the general principle to treaty interpretation according to which a party may not invoke the provisions of its internal law as justification for failure to perform a treaty.
The Government of Finland therefore objects to the reservation made by the United States to article 16 of the Convention [(cf. Reservation I.(1)]. In this connection the Government of Finland would also like to refer to its objection to the reservation entered by the United States with regard to article 7 of the International Covenant on Civil and Political Rights. [For the text of the objection see under "Objections" in chapter IV.4]. [cite]
Give a lawyer an inch, and he'll take half the county. Deputy Asst. Attorney General John Yoo found loopholes large enough to pilot the Condoleeza Rice through; having the morals of a garden slug,[4] he navigated our ship of state down the inlet of lawlessness:
At the outset, it is important to emphasize that the President can suspend or terminate any treaty or provision of a treaty. Any presidential decision to order interrogation methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions. Moreover, as U.S. declarations during CAT's ratification make clear, the Convention is non-self-executing and therefore places no legal obligations under domestic law on the Executive Branch, nor can it create any cause of action in federal court. Similarly, customary international law lacks domestic legal effect, and in any event can be overridden by the President at his discretion.
John C. Yoo, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States, Memorandum (to William J. Haynes II, General Counsel, U.S. Dept. of Defense), Mar. 14, 2003, at 47 [pdf].
To not put too fine a spin on it, we have made torture legal in fact, if not in "law." Our signature on the CAT simply isn't worth the paper it was printed on, as it imposed no enforceable obligation to alter our law to comply with its dictates, and the President could unilaterally terminate our participation by his conduct, in any event. And even if, perchance, a rogue United States district attorney attempted to prosecute the President or his aides, he could simply fire her, and pardon everyone in sight when he left office. And let's face reality: No one else is going to bomb the snot out of America just to get us to turn over a war criminal. It is the perfect crime.
Still, it is only symptomatic of a larger and more serious problem, which we are going to have to come to grips with: Our public officials are completely unaccountable and know it.
Sarbanes-Oxley For the Federal Government: A Comprehensive Solution?
To be candid, the face of tyranny is in the mirror. If all men were angels, government would not be necessary. People being what they are, they can pretty much be counted on to abuse the power they have. People will succumb to temptation. As such, the only reliable way to prevent abuses of power is to remove the temptation.
In the wake of the Enron, WorldCom, Tyco, and Adelphia investor fraud scandals, Congress enacted the Public Company Accounting Reform and Investor Protection Act of 2002 (called Sarbanes-Oxley or Sarbox, after its sponsors). Prior to Sarbox, public accounting firms were under considerable pressure to issue 'clean' opinions to large clients, as corporate boards had an obvious incentive to go "audit shopping." When the Firm lost your client, you lost your job. A famous case in point with ties to the Bush family was Silverado Savings and Loan (where an obviously unqualified Neil Bush was placed on the Board): Ernst & Whinney lost the audit to Coopers & Lybrand; Coopers was spanked for letting them cook the books.
The purpose of Sarbox is to require public companies to establish accounting and other procedural controls designed to deter and/or take away the temptation to engage in illegal or unethical behavior. And, as every accountant knows, one of the most effective internal controls is the customer complaint. But let's face it: While Markos might get his calls to Pat Leahy or Nancy Pelosi returned, the rest of us are used to being told to pound sand.
Famed former prosecutor Vincent Bugliosi has been scouring the nation to find an active prosecutor who is willing to prosecute George W. Bush for murder. He's written a book meticulously outlining the case, and one candidate for public office in Vermont made a promise to prosecute him if she were elected. But what if she didn't need to be elected to honor that pledge?
I have argued in this forum that we already have the right to criminally prosecute public officials, as it was incorporated in the Bill of Rights. I have further contended that we have the right to remove judges from the bench for violations of their good behavior tenure, again on the grounds that it was incorporated into the Bill of Rights. But at any rate, there is nothing in the Constitution that would preclude Congress from authorizing citizens to act as private attorneys general, prosecuting criminal acts that the government refuses to prosecute for political reasons.
What would this have meant, if this statute were in force today? More likely than not, half the Bush clan would be ineligible to vote in Florida. Bill Clinton would probably be a convicted felon, as perjury is a serious matter (even though it isn't an impeachable offense). Half of Congress would probably be in jail (which, on balance, would probably be a good thing). But more importantly, we wouldn't even be whining about what to do about the invasion of Iraq or how to go about punishing those who planned or engaged in torture, as no sane public official would have dared to step over that line.
At this point, I'm not really sure what we can do about the crimes of the Bush administration, despite the moral imperative that we do something. But if we do nothing else, we ought to insist that internal controls are woven into the fabric of government that are sufficiently robust to ensure that we will not suffer a recurrence. This we must do, if the vaunted rule of law is to survive. Justice Brandeis minced no words:
Decency, security and liberty alike demand that government officials be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law- breaker, it breeds contempt for law; it invites every man to become a law unto himself.
Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
Footnotes:
- U.S. Const. art. II, § 2, cl. 1 ("he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment"). The scope of the pardon power is determined by reference to English law, as the concept was borrowed from England, United States v. Wilson, 32 U.S. 150, 160 (1833); see also, Federalist No. 69 (Alexander Hamilton) ("In most of these particulars [including the pardon power], the power of the President will resemble equally that of the king of Great Britain and of the governor of New York."); under English law, a pardon was not a defense in an ongoing impeachment. Act of Settlement [1701] § 3, cl. 9 ("no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in Parliament"). Once a person was impeached, however, he was eligible for pardon. See, Daniel Szechi, 1715: The Great Jacobite Rebellion (New Haven: Yale U. Press) at 243 (in re: pardon of Lord George Murray of Scotland, a leader of the Jacobite rebellion).
- "A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise and perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." James Madison, Notes Of Debates In the Federal Convention of 1787 (New York: W.W. Norton, 1987) at 352-53.
- Even though the United States has not ratified the Vienna Convention, several Circuits have stated that they look to it "as an authoritative guide to the customary international law of treaties," see e.g., Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 373 n.5 (2d Cir. 2004); Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 308-09 & n.5 (2d Cir. 2000); other Circuits merely treat it as authoritative, e.g., Kreimerman v. Casa Veerkamp, S.A., 22 F.3d 634, 1994.C05.42049, ¶ 29 and fn. 9 (5th Cir. 1994), if only as an authoritative statement of peremptory norms of international law.
- I'll let Glenn Greenwald do the honors here:
The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we're now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies. [cite]