Refluat Stercus: a Citizen's View of Criminal Prosecution in U.S

Journal of Civil Rights and Economic Development Volume 23 Issue 3 Volume 23, Fall 2008, Issue 3 Article 1 October 2008 Refluat Stercus: A Citizen's View of Criminal Prosecution in U.S. Domestic Courts of High-level U.S. Civilian Authority and Military Generals for Torture and Cruel, Inhuman or Degrading Treatment Benjamin G. Davis Follow this and additional works at: https://scholarship.law.stjohns.edu/jcred Recommended Citation Davis, Benjamin G. (2008) "Refluat Stercus: A Citizen's View of Criminal Prosecution in U.S. Domestic Courts of High-level U.S. Civilian Authority and Military Generals for Torture and Cruel, Inhuman or Degrading Treatment," Journal of Civil Rights and Economic Development: Vol. 23 : Iss. 3 , Article 1. Available at: https://scholarship.law.stjohns.edu/jcred/vol23/iss3/1 This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in Journal of Civil Rights and Economic Development by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. ARTICLES REFLUAT STERCUS*: A CITIZEN'S VIEW OF CRIMINAL PROSECUTION IN U.S. DOMESTIC COURTS OF HIGH-LEVEL U.S. CIVILIAN AUTHORITY AND MILITARY GENERALS FOR TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT BY BENJAMIN G. DAVIS' * Refluat Stercus is a Latin command that describes the effort to hold high-level civilian authority and military generals criminally responsible for their acts. It is derived from a military adage (almost a military common law principle) known well to generations of soldiers that "shit rolls down hill". In Latin, that is translated as "fluit stercus." To "make shit roll up hill" is "refluat stercus." "Refluat Stercus" pulls together many streams of responsibility. The idea is broader than just command responsibility and really is focused on vindicating international law rules in U.S. domestic courts through all available means so as to criminally prosecute the principals and accessories (both before and after the fact) that put in place horrendous violations of positive international law - not just the persons at the bottom of the hierarchy in government which is the traditional approach as de- scribed in this article. I Associate Professor of Law, University of Toledo College of Law. I thank Ian Kierpaul for his research assistance. I thank Robert Jacoby and Diane S. Bitter-Gay for their legal research. I thank Anita Crane for her assistance with diagrams and use of my faculty website. I thank Elijah Santiago and Jessica Williams for their research and hope this encourages them to consider legal careers. I thank Sandra Ellen Garcia for her secretarial ST JOHN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3 and administrative assistance and Peggye Cummings for her prior secretarial and administrative assistance. I thank Elisa L. Harmon of my Spring 2005 Public International Law class for making me aware of the military adage, "Shit Rolls Down Hill" (fluit stercus). I thank all of my Public International Law students for their insights over the years. I thank David Beckwith, Nicholas Russo, Ph.D., members of the OGEMID listserv and oth- ers for their assistance with the Latin phrase Refluat Stercus. I thank Walt Jordan for pointing out to me the stain glass window at my church St. Mark's Episcopal Church which says "Semper Fidelis" and "Keep Our Honor Clean" in memory of a marine who died in the Korean War. I thank Dr. Gary Solis for his insights on courts-martial. I thank Kathleen Duignan of the National Institute of Military Justice for her suggestions. I thank Professor Elizabeth Hillman for her insights on military justice. I thank Marty Le- derman for his many interesting posts on Balkinization and other places and in particular with regard to the statement of U.S. Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Agency of the United States. I thank the ASILForum members and The In- ternational Law Discussion Space members ([email protected]) for their insights over the years. This article is dedicated to Charles Gittings (an extraordinary citizen) creator of the Project to Enforce the Geneva Conventions, the late Professor C. Clyde Fer- guson, the late Ralph Andrew Davidson, the late Professor Joseph Kunz, the late Weldon Irvine, Jr., the late Charles Sadler, Ralph and Lou Davidson, Mireze Philippe, Odette La- gace, Muriel C. Davis, Dorothy M. Davis and Dr. Christina A. Davis for the strength they give me. I thank my son Daniel B.R. Davis for his support in these years of high school and my daughter Anne-Laure Davis for her support from afar at college. I thank Professor Sanjay G. Reddy of Barnard College at Columbia University for his perceptive views on personal acquiescence/resistance and keeping one's soul intact. I thank Professor John Barrett, Professor Jeannine Bell, Professor Regina Burch, Professor Beth Eisler, Profes- sor Howard Friedman, Professor Llewellyn Gibbons, Professor Michael H. Hoffheimer, Professor Craig Jackson, Professor Ali Khan, Professor Frank Merritt, Professor Mary- Ellen O'Connell, Senior Lecturer in Law Bruce Michael Oswald CSC, Professor Jordan Paust, Professor Lee Pizzimenti, Professor James Tierney, and Professor David Thomas (As you can see students, this proves Latin is not a dead language) for their comments and support. I thank Dean Douglas Ray and Associate Dean Daniel Steinbock for the support of this work. I owe a spiritual debt to James Meredith who I met in March 2007 at the Robert H. Jackson Center in Jamestown, New York for bringing to my attention the importance for him in integrating Ole Miss in 1961 of asserting the rights of a citizen. I also owe an intellectual debt to Hersch Lauterpacht who reminded us in 1941 of the citizen's role in enforcing international law norms. See H. Lauterpacht, The Reality of the Law of Nations, 2 INTERNATIONAL LAW BEING THE COLLECTED PAPERS OF HERSCH LAUTERPACHT, 35-36 (E. Lauterpacht ed., Cambridge Univ. Press 1975). An early version of the work was presented at the Ohio Legal Scholars Workshop in 2006, at "The Nurem- berg War Crimes Trial and its Policy Consequences Today: An Interdisciplinary Confe- rence" American Society of International Law Centennial Regional Meeting, Joint Collo- quium of the Graduate Program in Policy History of Bowling Green State University, the University of Toledo College of Law and the Robert H. Jackson Center, Bowling Green, Ohio, October 5-7, 2006 and the International Law Weekend of the Association of the Bar of the City of New York on October 25-27, 2007. This article looks at events up to January 7, 2008. 2008] REFLUATSTERCUS Table of Contents Page Beyond the word, the thing: torture and cruel inhuman and degrading treatment- an Abu Ghraib photo ............... 508 Four citations for reflection .......................................... 509 Introduction ................................................................ 510 Part I - Fluit Stercus - Different Spanks for Different Ranks ................................................. 522 A. Situating these US domestic criminal prosecutions in the world ........................................ 523 B. Relevant foreign experience with domestic court prosecutions for international crimes ................ 536 C. American experience in general ................................................................. 545 1. H igh-level civilians ............................................. 546 2. G enerals ........................................................... 549 3. Lessons from these cases - fluit stercus.................. 557 Part II. Why Refluat Stercus? Or Why it should be don e? .................................................................. 56 1 A. General Discussion ................................................. 561 B. First principles: International law obligations of the United States with regard to torture and cruel, inhuman and degrading treatment ............................ 568 C. First principles: "pacta sunt servanda"...................... 572 STJOIIN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3 D. First principles: inability of internal law extracting a state from its external law obligations ....................................................... 573 E. The applicability of the Geneva Conventions to the Al-Qaeda and Taliban ............................................................ 576 F. The effect of the American Reservations, Understandings and Declarations to key human rights treaties such as the International Covenant on Civil and Political Rights and the Convention Against Torture and Cruel, Inhuman and Degrading Treatment or Punishm ent ....................................................... 580 G. Illegal Act + Acquiescence = Legitimacy ....................... 584 H. Illegal Act + Resistance = Illegitimacy ....................... 585 I. Modeling why Refluat Stercus ................................... 595 1. Theory of Polcy/Planning/Implementation .............. 595 2. Overlay - Feedback mechanisms and Law as constraint ....................................................... 600 3. Defense/CIA/State/Justice in the M odel ............................................................ 604 4. Heightened dysfunctionality - T orture .............................................................. 608 a. Torture in Detainee Treatm ent ...................................................... 609 b. Feedback Mechanisms .................................... 610 c. Seeking acquiescence to gain legitimacy

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