12 Briefcase spring 2010 Jordan Paust AT THE FRONT

In a time of war, Law Center professor asks a simple question: Are we a nation committed to the rule of law?

hen the chilling photographs from Abu Ghraib prprison were fi rst leaked to the news media, Jordan Paust iimimmediatelym saw them as something more than compelling eevidencevide of soldiers abusing their charges in Iraq. Instinc- tively,tively, the long-time professor of international law knew the portfolioportfolio of pictures might haunt this generation in the same Wwayway thatthat photographs phottographs of theth My Lai massacre had done nearly 40 years earlier. He felt a distinct sense of déjà vu – but instead of bodies of men, women and children in Vietnam, the cover of TIME magazine now displayed a hooded detainee in Bagh- dad, struggling to balance on a box with electrical wires attached to both hands. Paust was a young Army JAG offi cer in 1969 when the horrors of the My Lai massacre began trickling out, and he recalls how the disturbing news from Vietnam made him question how and why people commit atrocities. As a lawyer in uniform, he also questioned what the military could do about it. “I had always been aware of the need to promote human dignity,” he says, “but especially in that time of atrocities and war.” When Lt. William Calley was tried by a military tribunal, Paust was stunned by the testimony about the brutality and callousness of the bloodbath in a small Vietnamese hamlet. “I struggled with that, person- ally, as a captain training people how not to violate the laws of war,” Paust says. After his military service ended in 1973, and a subsequent two years in an advanced degree program at Yale Law School, Paust joined the Law Center as an associate professor of international law. He now holds the Mike and Teresa Baker Law Center Professorship, and is widely known for his relentless questioning of www.law.uh.edu 13 the Bush Administration’s conduct during the so-called more than 165 articles, essays, book chapters and a recent “war on terror.” In journal articles, on-line postings and a book at Cambridge University Press, Beyond the Law – The critically acclaimed book, he continues to espouse a fi rm Bush Administration’s Unlawful Responses in the “War” belief that high-level offi cials of the U.S. government on Terror. He is among the most cited international law should be prosecuted for war crimes. In his view, these professors in the United States and has appeared on pan- future trials would play an important role in reinforcing els and international committees throughout the world. how the “rule of law” does not recognize international In recent years he has carved an on-line niche as a regular boundaries. “There is a sense among some that anything contributor to Jurist, an electronic news service hosted by is acceptable if it is not being openly done in the United the University of Pittsburgh School of Law. Even a cursory States. It seems that as long as it is being done ‘over review of his recent postings will emphasize the clarity of there,’ it’s acceptable. To me, that view misses the point his stance: he fi rmly believes former President Bush, Vice of international law,” he says, sitting comfortably behind President Dick Cheney, Secretary of State Condoleezza an antique desk piled high with books and papers in his Rice, Attorney General Alberto Gonzales, Department of Law Center offi ce. Justice attorney John Yoo and others are reasonably ac- “We’re at a serious crossroads,” he cautions. “Presi- cused of complicity in war crimes by skirting the laws dent Obama says it’s time to move forward, but the do- of war, or facilitating crimes by others. It is his view that mestic impact of doing that could be disastrous. Are we the abuses of Abu Ghraib accrued not from a few bad a nation committed to the rule of law? And if not, how apples, but from “serial criminality.” Approval can wee teach that itit’s s not OK to break the law at home of enhancedenhhaannceced interrogation techniques cascadedcascad or abroad?”oad?” he asks. In his view, the path is clear. “There downdownwn fromfrorom the highest levels of government,governme shouldd be public sanctions,” he declares fl atlatly.y. Despite andand shouldshoouuldld bebe viewedviewed as elementselements ofof what JohnJo the President’sesident’s vow to “look forward,” and the subse- YooYooo hashas admittedadadmitted was a common, unifying planpl quent reversal of plans to release additional photos of deviseddedevised byby an inner circle of the Bush Admin-Adm Abu GGhraibhraib abuses, Paust sasaysys that AttorneAttorneyy General istration.istrationn.. “In“In a sense, the Bush AdministrationAdministrati Eric Holder’solder’s statstatementement that “n“noo oonene is ababoveove ththee hashhas keptkepptt meme veryvery busy,”busy,” he sasaysys ruefullruefully,y, “a“and law” mmayay point toward future legal action. He says I can onlyonly hope the Obama AdministrationAdministrati he wass encouraged by the release of so-called doesn’t keepkekeepe me as busy.”busy.” “torturere memos” tthathat tthehe previous aadmin-dmin- PaustPaauusst hashas beenbeen outspokenoutspoken on U.S.U istrationon used to justify various forms policypopollicyy atat leastleast since thethe Nixon Adminis-Admin of unlawfulnlawful interrogation. “Should trationtrattioon whenwhen hehe publishedpublished an articlearti politiciansians be off the hook? Should inn thetheh University of Texas Law ReviewRevie a formermer vice-president be fi gu- thattthhat questionedquestioned hishis commandercommand rativelyy led off in chains?” he in chief’s decision not to pros-pro asks rhrhetorically.etorically. “I say, ecute military personnel afteraft ‘Why not?’ they left service. When thet There is an Iranian hostage crisiscri unavoid-o id- coloredcolored thethe CarterCart able oobli-bli- Administration,Administratio gation of our PaustPaust ques-que electedd offi cials – inincludingnclc udu ing our tionedtioned thethe useuse of Presidentent – ttoo eexecutexecutee ttermseerrms ooff foodfood as a weap-wea treaties,es, includinincludingg the GeGenevanenevva Con- on, callingccalling it “highly“high ventions,”ns,” he sasays.ys. Other coccountriesounu tries problematic”problemattiicc” and pointingpointi now aappearppear ready to purspursueue llegalegal outout in thethe mediamedia that it hurt tthe actions,s, with SSpainpain and othersotheersrs iindi-ndi- poorestppoorest ofof thethe poor.poor. The newsnew cating a willinwillingnessgness to exerexerciseciisese ttheirheir ststoriestorories prpromptedroompted a pprominentrominent lo- universalsal jjurisdictionurisdiction and pospossiblysibblly fi llee cal ppopoliticalliticaal fi guregure to contact DDeane criminalal charchargesges aagainstgainst hihigh-rank-gh-rank- GeGeorgeorrgge HHardyaardy at the Law CenCentert ing U.S..S. offi cials. Within the small anaandnd deddemandemmaandnd tthathat Paust be fi red. If not,no circle of international law exexperts,perts, ththee alumalumnusnuus ththreatenedreeaattened ttoo withhwithholdold all futfutureu there is increasinincreasingg talk about pospos-- dodonationsnationns tto tthehee sschool.chool. Paust offeredoffered toto re- sible ccivilivil suits and disbarment ppro-ro- sisign,gn, bubutt DeDDeaneanan HHardyaardy checked the list of tthe ceedings.ngs. “This issue won’t ggoo away,” schschool’sool’s ccontributorsontribututoors – and discdiscoveredovered tthath Paust ppredicts.redicts. “It will keep us busy for a year the self-professed “bi“bigg supporter” had contrcontrib- at least.st. Or a decade. Or a ggeneration.”eneration.” uted only $100. “The dean never said anotanotherh Paustaust is a pprolifirolifi c writer who has ppublishedublished wword,”ord,” Paust says with a chuckle.

14 BriefcaseBriefcase spring 201020 2001 Sept. 11 Al Qaeda attacks U.S. Nearly 3,000 killed. Sept. 16 Vice-President Dick Cheney says on NBC’s Meet the Press that the government will have to work through “the dark side” and “in the shadows” to learn what is needed to fi ght terrorism. “It’s going to be vital to use any means at our disposal.” 2002 Feb. 7 President Bush issues order denying Geneva Conventions protections to Taliban and al Qaeda detainees. Jordan Paust, a young Army JAG offi cer, receives a service July 26 Attorney General John Ashcroft concludes medal from his then-commandant, and later Law Center waterboarding is legal. colleague, John Jay Douglass. Paust was recognized this year as among the nation’s Top 10 most frequently cited Aug. 1 Memos from the Department of Justice and White professors in his specialty of International Law. House counsel Alberto Gonzales advise that escalating interrogation techniques that result in pain equivalent Paust remains a lightning rod for comments from to “organ failure, impairment of bodily function, or all sides of the political spectrum, and he concedes oth- even death” are torture. Everything else is legal. ers may not be as passionate about the laws of war and August Al Qaeda operative Abu Zubayda, captured March 28, human rights as he is – especially in a world that lives is waterboarded more than 80 times. under constant threat of terrorism. “I suppose a lot of people would take the Obama approach of just moving 2003 on. But you can’t do that and remain a nation of laws,” he says in his trademark matter-of-fact tone. Paust says it March Top al Qaeda operative Khalid Sheikh Mohammed is is unprecedented for a high-ranking U.S. government of- captured March 1 and waterboarded 183 times. fi cial to be prosecuted for international crimes, although March 14 Department of Justice attorney John Yoo sends memo many foreign leaders have been prosecuted in foreign to Department of Defense counsel citing national “self- and international tribunals. Moreover, it is unprecedent- defense” in the treatment of detainees and stating the ed for a sitting president to approve them – which he be- executive power of the president is paramount. lieves Bush did. “I understand there is a political will not April 28-May 10 Seymour Hersh of the New Yorker and CBS News break to prosecute,” he says. But if new information emerges, the story of abuse at Abu Ghraib. the pendulum may change direction – and Paust believes high-level offi cials ultimately would be convicted. 2005 Regardless of the criticism aimed in his direction, Paust feels compelled to pursue his course of legal rea- December Congress passes Detainee Treatment Act outlawing soning that is fi rmly grounded in axioms of international “cruel, inhumane or degrading” treatment of law. “As a professor, I feel a commitment to speak out. prisoners. There simply is no reason not to,” he says. And as part of his commitment, he is upfront about his viewpoints 2007 during classroom discussions where students mull the June 29 Supreme Court rules U.S. must comply with Geneva potential applications of international law. Openness Conventions in treatment of Guantanamo detainees. and transparency – the ideals of any rule of law – are the July 20 Bush signs executive order authorizing CIA to use harsher characteristics he strives for as a teacher. interrogation techniques than allowed by the military. Forty years ago, when Paust and other U.S. Army attorneys practiced “preventive lawyering” by making sure everyone understood and observed the boundar- 2009 ies of war in the wake of My Lai, Paust says the former Jan. 6 President Obama signs executive order to close Commandant of the Judge Advocate General’s School Guantanamo. (and future Law Center colleague) John Jay Douglass told April 16 Obama releases a number of Bush Administration them their job in prosecuting alleged war crimes was to interrogation memos and the ACLU releases four assure that “military justice is just.” Paust feels a duty detailing the extent of the waterboarding of Abu to pursue that goal today by holding accountable those Zubayda and Khalid Sheikh Mohammed. The White who may have lost sight of American ideals and possi- House says CIA offi cers involved will not be prosecuted. bly crossed over – in the words of former Vice President May 13 Obama reverses himself after fi rst saying he would Cheney – to “the dark side.” • release more pictures of prisoner abuse. www.law.uh.edu 15