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Civil Liability of Bush, Cheney, Et Al., for Torture, Cruel, Inhuman, and Degrading Treatment and Forced Disappearance Jordan J

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Civil Liability of Bush, Cheney, Et Al., for Torture, Cruel, Inhuman, and Degrading Treatment and Forced Disappearance Jordan J Case Western Reserve Journal of International Law Volume 42 | Issue 1 2009 Civil Liability of Bush, Cheney, et al., for Torture, Cruel, Inhuman, and Degrading Treatment and Forced Disappearance Jordan J. Paust Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Recommended Citation Jordan J. Paust, Civil Liability of Bush, Cheney, et al., for Torture, Cruel, Inhuman, and Degrading Treatment and Forced Disappearance, 42 Case W. Res. J. Int'l L. 359 (2009) Available at: https://scholarlycommons.law.case.edu/jil/vol42/iss1/17 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. CIviL LIABILITY OF BUSH, CHENEY, ET AL. FOR TORTURE, CRUEL, INHUMAN, AND DEGRADING TREATMENT AND FORCED DISAPPEARANCE JordanJ. Paust* As documented in this article, treaty-basedand customary internationallaw regardingforced disappearance,human rights, and the laws of war pro- vides rights to compensation and forms of reparation. In particular, the 1949 Geneva Conventions expressly recognize private rights and contem- plate compensation in courts of law. Within the U.S., several statutes ex- ecute relevant international law for civil sanction purposes and several federal and state court cases have recognizedpersonal liability. The article also demonstrates why there should be no immunity for conduct in violation of internationallaw, why substitution of the U.S. for individual defendants should not occur, and why relevant internationallaw has primacy over the Military Commissions Act. I. INTRODUCTION It is well beyond reasonable doubt that during an admitted "pro- gram" of serial criminality designed to use secret detention and coercive interrogation of human beings from the waning months of 2001 until 2009, former President Bush, former Vice President Cheney, Alberto Gonzales, and several other members of the Bush Administration authorized, ordered, and/or abetted the forced disappearance of persons (a crime against humani- ty and war crime), other war crimes (including torture, cruel, inhuman, and degrading treatment of human beings and the transfer of non-prisoners of war out of occupied territory), and other serious international crimes impli- cating universal jurisdiction and a universal responsibility aut dedere aut judicare (i.e., to hand over or to initiate prosecution of those reasonably accused).' Mike & Teresa Baker Law Center Professor, University of Houston. See generally JORDAN J. PAUST, BEYOND THE LAW: THE BUSH ADMINISTRATION'S UNLAWFUL RESPONSES IN THE "WAR" ON TERROR (2007) [hereinafter PAUST, BEYOND THE LAW]; Jordan J. Paust, The Absolute Prohibitionof Torture and Necessary and Appropriate Sanctions, 43 VAL. U. L. REv. 1535 (2009) [hereinafter Paust, Torture]; CHRISTOPHER L. BLAKESLEY, TERROR AND ANTI-TERRORISM: A NORMATIVE AND PRACTICAL ASSESSMENT (2006); MARJORIE COHN, COWBOY REPUBLIC: SIX WAYS THE BUSH GANG HAS DEFIED THE LAW (2007); PHILIPPE SANDS, TORTURE TEAM: RUMSFELD'S MEMO AND THE BETRAYAL OF AMERICAN VALUES (2008); Jos6 E. Alvarez, Torturing the Law, 37 CASE W. RES. J. INT'L L. 175 (2006); Diane Marie Amann, Abu Ghraib, 153 U. PA. L. REv. 2085 (2005); M. Cherif Bassiouni, The Institutionalizationof Torture Under the Bush Administration, 37 CASE W. CASE W. RES. J. INT'L L. [Vol. 42:359 Types of relevant criminal responsibility include: (1) direct perpe- tration of an international crime by authorizing or ordering its commission; RES. J. INT'L L. 389 (2006); Benjamin G. Davis, Refluat Stercus: A Citizen's View of Crimi- nal Prosecution in US. Domestic Courts of High-Level Civilian Authority and Military Gen- erals for Torture and Cruel, Inhuman or Degrading Treatment, 23 ST. JOHN'S J. LEGAL COMMENT. 503 (2008); David E. Graham, The Dual US. Standardfor the Treatment and Interrogationof Detainees: Unlawful and Unworkable, 48 WASHBURN L.J. 325, 352 (2009); Aya Gruber, Who's Afraid of Geneva Law?, 39 ARIz. ST. L.J. 1017 (2007); Scott Horton, Kriegsraisonor Military Necessity? The Bush Administration's Wilhelmine Attitude Towards the Conduct of War, 30 FORDHAM INT'L L.J. 576 (2007); Aaron R. Jackson, The White House Counsel Torture Memo: The Final Product of a Flawed System, 42 CAL. W. L. REV. 149 (2005); Joseph Lavitt, The Crime of Conviction of John Choon Yoo: The Actual Criminality in the OLC During the Bush Administration, 62 MAINE L. REv. (forthcoming 2009), availa- ble at http://ssm.com/abstract=-1474940; Peter Margulies, Lawyers' Independence and Col- lective Illegality in Government and Corporate Misconduct, Terrorism, and Organized Crime, 58 RUTGERS L. REv. 939 (2006); Peter Margulies, True Believers at Law: National Security, the Regulation of Lawyers, and the Separation of Powers, 68 MD. L. REv. 1 (2008); Jamie Mayerfield, Playing by Our Own Rules: How US. Marginalization of International Human Rights Law Led to Torture, 20 HARv. HUM. RTs. J. 89 (2007); Jennifer Moore, Prac- ticing What We Preach: Humane Treatmentfor Detainees in the War on Terror, 34 DENV. J. INT'L L. & POL'Y 33, 55-56 (2006); Manfted Nowak, What Practices Constitute Torture: US and UN Standards, 28 HUM. RTs. Q. 809 (2006); Mary Ellen O'Connell, Affirming the Ban on Harsh Interrogation,66 OHIo ST. L.J. 1231 (2005); Jens David Ohlin, The Torture Law- yers, HARV. INT'L L.J. (forthcoming 2009), available at http://ssm.com/abstract=1471398 (last visited Oct. 13, 2009); Gabor Rona, Legal Issues in the "War on Terrorism"- Reflecting on the ConversationBetween Silja N. U Voneky and John Bellinger, 9 GERMAN L.J. 711 (2008); Leila Nadya Sadat, ExtraordinaryRendition, Torture, and Other Nightmares from the War on Terror, 75 GEO. WASH. L. REv. 1200 (2007); Leila Nadya Sadat, Ghost Prisoners and Black Sites: ExtraordinaryRendition Under InternationalLaw, 37 CASE W. RES. J. INT'L L. 309 (2006); Margaret L. Satterthwaite, Rendered Meaningless. Extraordi- nary Rendition and the Rule of Law, 75 GEO. WASH. L. REV. 1333 (2007); Elizabeth Sepper, The Ties that Bind: How the Constitution Limits the CIA's Actions in the War on Terror, 81 N.Y.U. L. REv. 1805 (2006); Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in US. Courts, 45 COLUM. J. TRANSNAT'L L. 468 (2007); David Weissbrodt & Amy Bergquist, Extraordinary Rendition and the Torture Convention, 46 VA. J. INT'L L. 585 (2006); W. Bradley Wendel, Legal Ethics and the Separation of Law and Morals, 91 CORNELL L. REv. 67 (2005); W. Bradley Wendel, The Torture Memos and the Demands of Legality, 12 LEGAL ETHICS 107 (2009); Marlise Simons, Spanish Court Weighs Criminal Inquiry on Torturefor 6 Bush-Era Officials, N.Y. TIMES, Mar. 29, 2009, at A6, availableat httpJ/www.nytimes.com/2009/03/29/world/europe/29spain.html (discussing possible indict- ments of Gonzales, Yoo, Addington, Feith, Bybee, and Haynes); Jordan J. Paust, The Com- plicity of Dick Cheney: No 'Necessity' Defense, JURIST, May 18, 2009, http://jurist. law.pitt.edu/forumy/2009/05/complicity-of-dick-cheney-no-necessity.php (discussing the inapplicability of a necessity defense to violations of customary international law) (last vi- sited Oct. 13, 2009); Jordan J. Paust, Rice, Waterboardingand Accountability, JURIST, May 8, 2009, http://jurist.law.pitt.edu/forumy/2009/05/rice-waterboarding-and-accountability.php (arguing that members of the Bush administration knowingly facilitated acts of torture) (last visited Oct. 13, 2009); Interview with Ari Shapiro, All Things Considered, NPR (May 20, 2009), available at 2009 WLNR 9628215, at 2-3 (discussing how Gonzales "signed off' several times on the use of a number of harsh tactics several months prior to the Bybee torture memo). 2009] CIVIL LIABILITY OF BUSH, CHENEY, ET AL. (2) complicity with respect to international crime where an individual was aware that his or her conduct can or will facilitate conduct of a direct perpe- trator; and (3) dereliction of duty with respect to those who exercised de facto or dejure authority as a leader and refused or failed to take reasonable corrective action.2 Prosecution of several lawyers within the Bush Administration for complicity would be on firm ground, especially with respect to those who wrote memoranda that facilitated the common, unifying plan devised by an inner circle to use torture and other forms of coercive interrogation. As noted above, criminal complicity can occur when a person is aware that his or her conduct (e.g., writing a memo stating that waterboarding is not tor- ture) can or will assist or facilitate conduct of a direct perpetrator. The per- son who aids and abets need not know that the conduct of the direct perpe- trator is criminal or, for example, whether the conduct constitutes "torture" or cruel or inhuman treatment. It suffices that an accused was aware of the relevant factual circumstances, and even a direct perpetrator need not have known that his or her act amounted to an inhuman act either in the legal or moral sense. Furthermore, all acts of assistance, either by words or acts and omissions, that lend encouragement or support will suffice if the accused knows or is aware that such conduct can or will facilitate the use of an illeg- al tactic or form of treatment. Are such former officials who are reasonably accused also subject to civil liability for violations of treaty-based and customary international law? The short answer is yes. II. THE DUTY TO PROVIDE AND THE RIGHT TO FAIR COMPENSATION A vast array of international laws assures the right to fair compensa- tion for secret detention and coercive interrogation. For the victims of tor- ture, a mandatory duty to provide fair compensation, including means for rehabilitation, is set forth in Article 14 of the Convention Against Torture: Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible.
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