JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law says in this excerpt from her recent testimony [PDF] to the US House Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties that not only the high officials of the US government, but also the lawyers who advised them, should be investigated and prosecuted for their roles in misusing the rule of law and legal analysis to justify torture and other crimes...

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What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. That’s Latin for "higher law" or "compelling law." This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition.

The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions, and treaties. When the U.S. ratifies a treaty, it becomes part of American law under the Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture."

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions.

The US War Crimes Act, and 18 USC sections 818 and 3231, punish torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute criminalizes the commission, attempt, or conspiracy to commit torture outside the United States.

The Constitution gives Congress the power to make laws and the President the duty to enforce them. Yet Bush, relying on memos by lawyers including John Yoo, announced the Geneva Conventions did not apply to alleged Taliban and Al Qaeda members. But torture and inhumane treatment are never allowed under our laws.

Justice Department lawyers wrote memos at the request of Bush officials to insulate them from prosecution for torture. In memos dated August 1, 2002 and March 14, 2003, John Yoo wrote the DOJ would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

The maiming statute makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb, or any member of another person” or throw or pour upon another person any scalding water, corrosive acid, or caustic substance.

Yoo said, "just because the statute says -- that doesn't mean you have to do it." In a debate with Notre Dame Professor Doug Cassell, Yoo said there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person's child. It depends on the President's motive, Yoo said, notwithstanding the absolute prohibition on torture.

Yoo twisted the law and redefined torture much more narrowly than the Torture Convention and the Torture Statute. Under Yoo's definition, you have to nearly kill the person to constitute torture.

Yoo wrote that self-defense or necessity could be defenses to war crimes prosecutions, notwithstanding the Torture Convention's absolute prohibition against torture in all circumstances.

After the August 1, 2002 memo was made public, the DOJ knew it was indefensible. It was withdrawn as of June 1, 2004, and a new opinion, dated December 30, 2004, specifically rejected Yoo’s definition of torture, and admitted that a defendant’s motives to protect national security won’t shield him from prosecution. The rescission of the prior memo is an admission by the DOJ that the legal reasoning was wrong. But for the 22 months it was in effect, it sanctioned and caused the torture of myriad prisoners.

Yoo and other DOJ lawyers were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable their advice would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have died, many from torture. Yoo admitted recently he knew interrogators would take action based on what he advised.

Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture by approving specific torture techniques such as waterboarding. Bush admitted he knew and approved of their actions.

They are all liable under the War Crimes Act and the Torture Statute. Under the doctrine of command responsibility, commanders, all the way up the chain of command to the commander in chief, are liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers.

The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression.

A Select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. The high officials of our government, and the lawyers who advised them, should be investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their roles in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of our laws.


Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Her articles are archived at http://www.marjoriecohn.com/

JURIST Contributing Editor Ali Khan of Washburn University School of Law says that Pakistan's "establishment" of generals, intelligence chiefs, and top bureaucrats may yet preserve its longtime hold on power by effectively playing off restored Supreme Court judges against its own retained appointees...

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Pakistan's constitutional shenanigans permit the fox to eat the lion.

Invoking the non-existent powers of the Army Chief last November under a declaration of emergency rule, Pervez Musharraf dismissed sixty high court judges and implanted the dismissal order in the Constitution as an amendment. The order/amendment reads: “A Judge including the Chief Justice, of the Supreme Court, a High Court or Federal Shariat Court who had, not been given or taken oath under the Oath of Office (Judges) Order, 2007, had ceased to hold office on and with effect from the 3rd day of November, 2007.” That a single person can amend the Constitution is egregious. Even more egregious is the demand that the democratically elected Parliament, if it wishes to restore the sacked judges, must repeal the order/amendment with the constitutionally required “votes of not less than two-thirds of the total membership of (each) House.”

Furthermore, the President is armed with the disreputable 58 (2) (b) constitutional power - a provision that General Zial ul Haq inserted in the Constitution - to dissolve the National Assembly if in his opinion a situation has arisen in which the Government of the Federation cannot be carried out in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. Even though Musharraf, who occupies the Presidency through constitutional manipulations, is unlikely to dissolve the newly elected National Assembly in the near future, the new Coalition government which has taken office is frightened by what it calls “the Establishment.”

The Establishment

The Establishment is a quasi-pejorative label to describe the combined forces of Pakistan Army generals, intelligence chiefs, and top bureaucrats. In reality, the Establishment is a group of powerful government officials who pool their resources to checkmate policies and persons that cross their path or wish to weaken their grip on power. Founded on vertical hierarchy, the Establishment effectively demands that human resources in the armed forces, intelligence agencies, and bureaucracy take an oath "to discharge their duties, and perform their functions, to the best of their ability, faithfully and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of the Establishment."

The Establishment has no use for an independent judiciary. For decades, the judiciary itself mangled the Constitution to favor and support the Establishment. In a dramatic shift, however, a defiant judiciary under the maverick leadership of Supreme Court Chief Justice Iftikhar Mohammed Chaudhry began to confront the Establishment. The Supreme Court exercised suo motu jurisdiction to dismantle questionable state policies. The Court summoned the heads of agencies to demand explanation for state-sponsored disappearances. The Court nullified the privatization of steel mills, frustrating the Establishment that was hoping to please friends and make money. All this and more infuriated the Establishment. According to the unwritten rules of the Establishment, the invocation of human rights is blasphemy, the incantation of constitutional supremacy is treason, and the slogan of Sovereign Parliament is rebellion.

The Parliament

Even the concept of Sovereign Parliament is a constitutional shenanigan. Politicians and the media take pride in talking about the sovereignty of the Parliament. It is ironic, however, that Pakistan's Constitution in its preamble establishes the sovereignty of God, and not of the Parliament. Under the Constitution, the Parliament exercises authority as a “sacred trust” within the limits prescribed by God. The Establishment sincerely believes that it alone has the keys to the sacred trust. Ignoring the preamble and defying the Establishment, politicians and the media harp the mantra of Sovereign Parliament.

The idea of Sovereign Parliament, which Pakistani barristers unwittingly borrowed from the United Kingdom, makes no sense even under secular law. In the age of rights and separation of powers, no state institution ought to be sovereign. Each institution must be checked and restrained from committing excesses. Does a sovereign Parliament have the lawful authority to commission genocide or torture?

Following dictates of the Establishment, Musharraf ignored the Parliament, even though his own party (the "King’s Party", as it were) enjoyed a solid majority in both Houses. To further discount the Parliament, Musharraf imported a naturalized American citizen to be the Prime Minister, rebuffing the native leaders of the King's Party. Despite suffering incessant indignities, the Parliament wasted no time in “re-electing” Army Chief Musharraf for a second Presidential term of five years starting in 2007.

The nation hoped that the Parliament would indeed become the center of power after the February 2008 democratic elections. The King’s Party was thoroughly defeated. The opposition parties of the two former prime ministers, whom the Establishment had forcibly removed from power in the previous decades, won in a big way and formed a Coalition government--a political union that pleased the nation. But contrary to all bets, the Parliament has come to be as irrelevant as it has been under the King's Party.

The Coalition chiefs, Asif Ali Zardari and Mian Nawaz Sharif, are not themselves members of the Parliament. Yet they - and not the Parliament - hold the ultimate power to make decisions. In matters relating to the restoration of judges, the National Assembly has been kept out of negotiations. Instead of debating the judges' issues openly on the floor of the National Assembly, the Coalition chiefs debated the issues in secret in a hotel in a foreign country. Even Pakistan's Prime Minister, presumably the strongest person under the Constitution, was left out of the deliberations. Just as the Prime Minster under the Musharraf regime was no more than a deferential pawn, so is the new Prime Minister under the Coalition government.

The Supreme Court

Given that the decision-making power belongs neither to the Prime Minister and not to the Parliament, the question arises whether the sacked judges will be restored as promised. The answer, as usual, lies with the Chief and not with the tribe. Chief Zardari is determined to safeguard the Establishment judges who upheld the National Reconciliation Ordinance that manumitted Zardari from all criminal action. Even the other Coalition chief, who has been a fierce advocate for the independence of judiciary, has quietly agreed to let the Establishment judges stay on the Supreme Court.

As is customary, all roads lead toward the Establishment. If the sacked judges are not restored, the Supreme Court belongs exclusively to the Establishment. If, perchance, the sacked judges are reinstated, they will have to share the Court with the Establishment judges. A crowded but weakened Supreme Court, fighting with itself, is a godsend for the Establishment.


Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas, and the author of the book, A Theory of Universal Democracy (2003). Many of his publications are available here.

JURIST Special Guest Columnist Faisal Joseph, counsel for a group of Canadian law students who recently filed human rights complaints against the Canadian newsmagazine Maclean's for its refusal to publish a response to a string of articles allegedly targeting Muslim Canadians, says that a gaping hole in the Ontario Human Rights Code leaves minority groups having little or no public voice without a remedy for redressing group defamation and racism disseminated in the mass media ...

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American politics, more specifically the showdown between Democratic presidential hopefuls Barack Obama and Hillary Clinton, have captured the imagination of the world at a level rarely seen in recent decades. Canada is no exception.

Few presidential contests have been followed north of the border with such detailed interest. And it's no wonder. Mr. Obama's "Yes We Can" campaign has captured the hearts and minds of young and old, black and white, rich and poor. Virtually everyone can find something to focus on for the upcoming American election.

The Muslim community has also found something to focus on, but unfortunately, it has been rather unpleasant - the tactic of associating Mr. Obama with Muslims in efforts to derail the "Obamamania" phenomenon, notwithstanding his sincere devotion to his Christian faith.

Examples of this negative-association tactic have included photographs of a younger Obama in the white turban and robes of a Somalian elder during a visit to Kenya and talk show host Bill Cunningham's pointed emphasis on Mr. Obama's middle name, Hussein. Now in the heat of an election, Obama has been introduced as “Osama” a not so subtle reference to Osama bin Laden. The message is clear: perceived ties to Muslims are a clear liability when fighting for the hearts and minds of the Western world.

The fact of racism against Muslims can no longer be denied. In a 2004 Heritage Canada survey, 80% of Canadians agreed that Muslims and Arabs are the main targets of discrimination in Canada today.

The media cannot shy away from its contributory role in the discrimination of Muslims any longer. As the Ontario Human Rights Commission said in a historic public statement issued last week: "the media has a significant role to play in either combating societal racism or refraining from communicating and reproducing it."

The statement was the result of human rights complaints filed by my clients - the Canadian Islamic Congress and a group of Osgoode Hall law students - against Maclean's magazine for its refusal to publish a mutually acceptable response to just one of more than twenty Islamophobic articles published between January 2005 and July 2007. Among others, these articles allege that "enough" Muslims share the basic objectives of terrorists; refer to Muslims as "sheep-shaggers"; and allege an impending, "bloody" Muslim takeover of the West.

In response to the complaints, the Commission exercised its mandate to speak out against actions it saw as "inconsistent with the spirit of the [Ontario Human Rights] Code." In doing so, the Commission strongly condemned "the targeting of Muslims, Arabs, [and] South Asians ... by the media as being inconsistent with the values enshrined in the Code."

In particular, the Commission expressed "serious concerns about the content of a number of articles concerning Muslims that have been published by Maclean's Magazine and other media outlets," noting that "this type of media coverage has been identified as contributing to Islamophobia and promoting social intolerance towards Muslim, Arab, and South Asian Canadians."

While recognizing the importance of the freedom of expression, the OHRC also stated that it could not be used as a guise to target vulnerable groups and for the dissemination of xenophobic opinions.

Unfortunately, notwithstanding their recognition of the "Islamophobic" content of several articles published by Maclean's, the Commission was unable to proceed with my clients' complaints because s. 13(1) of the Ontario Human Rights Code does not cover the content of newspapers and magazines. This gaping hole in the Code leaves minority groups, with little or no public voice, without a remedy for redressing group defamation and racism disseminated in our mass media.

Alternative venues to combat media-promulgated racism are conspicuously limited. Yes, Canada has criminal hate speech laws, but when the sources of hate speech are found in our own print and broadcast journalism, they provide little or no protection to minorities. All hate speech prosecutions require the Attorney General's consent - an unlikely event if the potential defendant is a large media organization.

Provincial press councils provide an avenue for reader complaints, but membership is voluntary and many offending media organizations, such as Maclean's, do not subscribe to them.

In principle, we could encourage more and better speech to counter the effects of prejudicial and hateful speech. In practice, a review of major Canadian publications indicates that the "more and better speech" is disturbingly scarce. When it comes to Muslims, right-wing journalists across the country have plenty to say. But who is providing the "more and better speech" to mitigate their toxic effects? The "more and better speech" formula fails marginalized minorities - a lesson that Canadian Muslims have painfully learned. In my clients' case, Maclean's preferred bankruptcy to publishing a mutually acceptable response to one of over twenty Islamophobic articles published in two-and-a-half years.

Given the lack of viable alternatives, the Commission must be lauded for its courageous stance against media-promulgated racism and Islamophobia. Its clear and unambiguous public statement is a source of hope for minorities, particularly Muslims, who have consistently received the short-end of the media stick. A powerful and respected public institution has spoken out against the persistent denigration of the Muslim community in our mass media. We can only hope positive change is on its way.


Faisal Joseph is a human rights advocate and litigation lawyer based in London, Ontario, Canada.

JURIST Special Guest Columnist Abigail Salisbury says that the recent war crimes acquittal of former Kosovo prime minister and Kosovo Liberation Army leader Ramush Haradinaj before the International Criminal Tribunal for the former Yugoslavia - a ruling now under prosecution appeal - may compound existing tensions in the Balkans and provide a platform for his return to international affairs...

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Although largely unknown outside the Balkans, Ramush Haradinaj is a figure of great importance in Kosovo. Last month, when this ethnic Albanian was acquitted of war crimes charges following lengthy legal proceedings at The Hague, the usually-worldly BBC but made small mention of the event, in passing. Their television anchors clearly had no idea who the man was, stumbling over the unfamiliar syllables of his name. In tribute to Haradinaj's leadership of Kosovo Liberation Army soldiers during the 1990s, people have displayed his likeness on buildings and billboards all over the region. Admired for his driven nature and his military accomplishments, he is seen as a sort of contemporary folk hero and his story has even been recounted in book form. He enjoyed support not only from Kosovars, but also from a number of high-level officials abroad. After the conflict, he used his wartime achievements to leverage a political career, eventually becoming Prime Minister of Kosovo. His term was cut short, however, when he stepped down following his indictment for war crimes by the International Criminal Tribunal for the former Yugoslavia. This gesture garnered still more support for the leader, who then chose to support the ICTY legal process rather than challenge its authority or go into hiding as so many others had done.

Given his extraordinary achievements and popular support, it seems odd that when compared to the trials of Serbian criminals, Haradinaj’s legal troubles were practically invisible to the general outside world. The landmark Tadič case, for example, involved the conviction of a relatively small-time Bosnian-Serb but is now required reading for most students of international law. Haradinaj’s acquittal was not the result of any earth-shattering new legal reasoning, but it does raise a variety of concerns over the utility and politics of the ICTY and the future of war crimes tribunals in general. JURIST recently spoke to Michael O’Reilly, coordinator of Haradinaj’s London-based defense team, about some of the many issues surrounding the Haradinaj case.

Although Haradinaj’s admirers likely feel that their hero has been vindicated, others question what message his now-erstwhile acquittal has sent. The unpopular former Chief Prosecutor Carla Del Ponte’s claims of witness intimidation at trial were constantly at issue, and unfortunate accidents involving planned witnesses did give the appearance of foul play. Persuasive evidence of such intimidation failed to materialize, however.

Why was obtaining testimony so troublesome? O’Reilly told JURIST that those who had provided statements originally did so believing that they were cooperating with investigations of Serbs’ alleged criminal activities in Kosovo and had no idea that anyone would try to use their words against Haradinaj. He also attributed some of the difficulty to public opinion of the ICTY: “Properly established courts, operating under international treaties, are more likely to be successful in getting full witness trust and cooperation. The ICC is of course the example to watch.” But one musn't overlook the fact that the availability of reliable testimony also diminished naturally because events are forgotten and witnesses die as the years pass.

Even those who believe the ICTY represents the rule of law often question its functionality. Indeed, one of the main reasons Haradinaj’s trial should have attracted more attention is the mere fact that it happened at all. Del Ponte has said that these proceedings comprised an essential part of the post-conflict process and helped to quell lasting animosities by providing closure and encouraging stability. Recent events in Kosovo and Serbia do not indicate that the prosecutions have had the effect she desired, however. Reflecting on Del Ponte’s beliefs, O’Reilly told JURIST, “In general I am doubtful. The process is too long, too inept and too politically compromised….It simply keeps old wounds open. The South African Truth and Reconciliation commission model seems to offer more hope.”

The majority of those sought for prosecution by the Hague-based tribunal have fled, with protectionist governments doing little to aid in their capture. The mid-war creation of the ICTY is said to have actually caused a lull in fighting, but hostilities resumed once the court’s impotence became known. Nevertheless, Haradinaj promptly traveled to The Hague following his indictment because “he is much more politically sophisticated that most of the other indictees,” according to O’Reilly, who added that for his client “non-cooperation…was never even considered.” Despite the former Prime Minister’s confidence, the ICTY has disappointed many with its slow progress, made even more frustrating because the court is required to complete all of its activities by 2010. At the current rate, it looks as if there will be much left unfinished. One wonders what the Balkans will look like in the post-ICTY years, and whether infamous outlaws such as Karadzič and Mladič will feel safe enough to reappear.

The tribunal’s proceedings have been seen not just as as inefficient, but prejudiced as well. Many Serbs have viewed it as a political tool being unfairly used against them, evidenced by the few Albanians prosecuted relative to the larger number of Serbs charged with criminal conduct. When questioned about the problem, O’Reilly noted, “The trials at The Hague continue to fuel nationalist and anti-western political sentiment.” Some critics of the ICTY’s conduct believe that Albanians such as Haradinaj were indicted without any real proof of wrongdoing, just to provide the impression of equality that the court wanted desperately to project. These “hopelessly inadequate indictments,” O’Reilly finds, “have only served to increase Serbian fury and resentment.” Those who watched footage of rioters setting fire to the U.S. embassy in Belgrade earlier this year might agree with his assessment that “The unfortunate coincidence of the Haradinaj acquittal coming at the same time as Kosovo’s independence has aggravated matters.” It is difficult to see how Carla Del Ponte’s vision of the ICTY healing the Balkans can manifest itself when the court’s actions are perceived to be illegitimate.

Strangely enough for a former KLA leader, some people look to Haradinaj as a force potentially capable of bringing some unity to the region. He actually enjoys a fair amount of approval among Serbs as well as Albanians, and has built relationships with influential UN dignitaries and foreign politicians, some of whom have publicly supported him in his defense effort. O’Reilly pointed out that Haradinaj is not yet forty years of age and holds university degrees in both law and business. The fact that his entire €9 million defense costs were financed by private donors in Kosovo gives some idea of the sort of backing this man has. With his battle at The Hague behind him, Haradinaj has returned his focus to politics and is now an opposition leader. Thus, although most Westerners have not yet heard of Ramush Haradinaj, much is expected of him. Barring a successful prosecution appeal leading to retrial and conviction, it seems inevitable that he will rise in prominence. We should keep an eye on him.


Abigail Salisbury is a 2007 graduate of the University of Pittsburgh School of Law. She worked in Kosovo in the summer of 2006.

JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that recently disclosed US Department of Justice letters to US Senate Intelligence Committee member Ron Wyden (D-OR) on detainee interrogations reflect a misleading and erroneous understanding of the Geneva Conventions in the Bush Administration...

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Two recently disclosed letters from Principal Deputy Assistant Attorney General Brian A. Benczkowski to U.S. Senator Ron Wyden on September 27, 2007 and March 6, 2008 reveal that misleading and erroneous analyses of rights and prohibitions reflected in the Geneva Conventions still exist as part of the Bush Administration’s unlawful program of mistreatment of persons detained from the wars in Afghanistan and Iraq.

Regarding the first letter, one finds a misleading statement that Common Article 3 of the Geneva Conventions (which, among other things, requires humane treatment of any detainee in all circumstances) “provides content” regarding the meaning of the word humane “by enumerating the specific prohibitions that would contravene that standard.... In particular, ... four specific and serious acts.” Actually, the four acts mentioned are merely illustrative of some of the forms of unlawful treatment. They do not comprise an exclusive list of prohibitions. As the authoritative commentary of the International Committee of the Red Cross (ICRC) states: “What Article 3 guarantees such persons is humane treatment.... The definition [of humane] is not ... precise.... On the other hand, there is less difficulty in enumerating things which are incompatible with humane treatment. That is the method followed in the Convention when it proclaims four absolute prohibitions... [and uses the phrase “To this end”].” With respect to “grave breaches” of Geneva law, the commentary notes that an “inhuman treatment” is “one which ceased to be humane” and Article 147 of the Geneva Civilian Convention lists “inhuman treatment” as a grave breach separate from “wilfully causing great suffering” (which the commentary relates to torture) and “serious injury to body or health.” The ICRC commentary adds: “It seems useless and even dangerous to attempt to make a list of all the factors which make treatment ‘humane’.... The requirement of human treatment and the prohibition of certain acts incompatible with it are general and absolute.” Dangerous indeed if someone erroneously advises that the four specific sets of acts provide exclusive normative content.

The first letter also states that international tribunals “have had difficulty identifying content ... that is distinct from the four specified prohibitions.” If meant to apply with respect to all international tribunals, the statement would not be correct. As documented in part in my book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, there are several useful clarifications and examples of what constitutes cruel, inhumane, degrading, or humiliating treatment – each of which is separately proscribed under treaty-based and customary Geneva law, as well as under other relevant international law. As the book notes, there is even useful guidance from U.S. cases applying international law and cases applying a U.S. constitutional standard with respect to “cruel” treatment. Water-boarding, the cold cell, stripping detainees naked and use of snarling dogs for interrogation, threatening to kill a detainee or family members, and fear-up harsh are examples of outlawed tactics.

The first letter quotes a manifestly erroneous standard set forth by the Administration in 2007 in Executive Order 13440 § 3(h)(i)(E) that seems to fuse several types of inhumane treatment together in a way that would produce too high a threshold with respect to criminality, listing the need for “‘wilful and outrageous acts of personal abuse’ that are ‘done for the purpose of humiliating or degrading the individual’ and that are ‘so serious that any reasonable person, considering all the circumstances, would deem the acts to be beyond the bounds of human decency.’” The letter adds that this “requires ... an intent to humiliate or degrade.” First, not all (and hardly any) inhumane acts need to be “outrageous.” Second, international criminal law does not require that relevant illegal conduct be engaged in “for the purpose” of creating, for example, an outcome of humiliation or degradation as such. As others have recognized, such an approach confuses awareness of the factual quality of one’s conduct with awareness of its legal nature and, more generally of course, ignorance of the law is no excuse. A direct perpetrator need only intend to engage in relevant conduct that objectively constitutes “cruel,” “inhumane,” “degrading,” or “humiliating” treatment. For example, it would not be a defense that the alleged perpetrator did not intend or have a “purpose” to produce an outcome of “cruelty” as such. The elements of the war crime of “torture” articulated for the International Criminal Court provide that the perpetrator of “torture” need only inflict “severe physical or mental pain or suffering” and need not intend that his or her conduct will constitute “torture” as such. The trier of fact would conclude whether the conduct intentionally engaged in by the alleged perpetrator was objectively “severe” and produced physical or mental pain or suffering. Similarly, with respect to cruelty, one need not intend to be cruel. Merely an intent to engage in conduct that we judge to be cruel will suffice. Further, the word “severe” is a criterion that generally distinguishes torture from mere inhumane treatment. As noted by the ICTY and ICTR, all forms of treatment prohibited under Common Article 3 are “serious,” since they are war crimes. As noted in Mehinovic v. Vuckovic, “cruel, inhuman, or degrading treatment includes acts which inflict mental or physical suffering, anguish, humiliation, fear and debasement, which do not rise to the level of ‘torture.’”

The second letter reiterates manifest error when stating that “the fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation and abuse, would be relevant.” The letter quotes language from one ICTY case addressing “‘physical or mental effects’” as part of a circumstantial inquiry, but the letter misses the point that it is not a defense that the accused did not have a “purpose of humiliation and abuse.” The trier of fact will judge whether the conduct engaged in produced the outcome of humiliation or abuse or, to use language from the case, whether the conduct of the accused had the relevant “physical or mental effects.” Additionally, it is not a defense that the perpetrator had a purpose “to prevent a threatened terrorist attack.” As documented in my book, the purpose of torture or cruel, inhumane, degrading, or humiliating treatment is irrelevant because each is proscribed absolutely and “in all circumstances” under several forms of customary and treaty-based international law.

The first letter is also patently in error when it states that Common Article 3 “does not directly prohibit” cruel, inhuman, and degrading treatment. It most assuredly does and it does so “in all circumstances.” As the Supreme Court recognized in Hamdan, and as documented in my book, Common Article 3 applies with respect to all detainees in all armed conflicts and provides a minimum set of customary and treaty-based rights and prohibitions. No one is outside the law and the law of war prohibits torture, cruel treatment, inhumane treatment, degrading treatment, and humiliating treatment.

Under international law, it is entirely irrelevant whether or not any particular U.S. constitutional amendment (1) applies abroad to protect an alien detainee, and (2) whether it applies only to punishment as opposed to treatment. There are no relevant U.S. reservations to the absolute rights and prohibitions contained in the Geneva Conventions and, as universally applicable customary international law, what is reflected in Geneva law would not be subject to attempted reservations in any event. As documented in my book, a putative reservation to the Convention Against Torture attempting to limit coverage merely to what is prohibited under the U.S. Constitution is void ab initio as a matter of law because, as the CAT Committee and others have recognized, it is inconsistent with the object and purpose of the treaty. Each treaty prohibits torture and cruel, inhuman, or degrading treatment of any detainee within the jurisdiction or under effective control of U.S. personnel anywhere in the world regardless of purpose and regardless of any claimed exception on the basis of alleged necessity. Customary law reflected in each treaty is also universally applicable without restriction and implicates universal jurisdiction and responsibility. Moreover, as documented in my book, both forms of international law are supreme law of the United States binding on all members of the executive branch as well as any other citizen of the United States.

John Yoo had disclosed in 2006 that there was a “common, unifying approach” or plan developed by an “inner circle” of the Bush Administration to ignore the strictures of Geneva law and to engage in what is unlawful “coercive interrogation.” As my book demonstrates, various memos and letters substantially facilitated the effectuation of the common, unifying plan to use coercive interrogation. In early April, 2008, ABC News disclosed that an inner “inner circle” composed of the National Security Council’s Principals Committee conducted meetings to approve various specific coercive interrogation tactics, including water boarding, and that meetings were attended by Cheney, Rice, Rumsfeld, Tenet, Ashcroft, and others. President Bush was quoted as stating “yes, I’m aware our national security team met on this issue. And I approved.” As noted in my book, President Bush also admitted in September 2006 that he had authorized a program of secret detention (which constitutes the unlawful forced disappearance of persons) and “tough” treatment, and he stated that his program will continue. There have also been other presidential authorizations, directives, and findings that authorized and facilitated effectuation of the common, unifying plan. It is in this context that the manifest errors in the Benczkowski letters are doubly disturbing.

Quite clearly, it is time for a change. It is time to end the “dirty war” tactics that have degraded this country, its values, and its influence. It is time to end impunity, to rid our government of “the suits” who place our military and CIA personnel in harms way, and to recreate a Justice Department that will actually support the rule of law.


Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer, and author of Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror (Cambridge University Press 2007), available thru http://www.cambridge.org/9780521884266.

JURIST Guest Columnist Tara Lee, a former Navy JAG now practising national security law, says that kicking contractors off the American battlefield in Iraq and Afghanistan is not the answer to alleged problems and abuses; security contractors aren’t mercenaries and they can be held accountable for their actions....

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Michael Walzer is wrong. That's not an easy sentence for me to type. I'm a Naval Academy graduate and a former JAG. Most of what I know about the law of war was taught to me straight from the text of Walzer's Just and Unjust Wars. You can’t study ethical warfighting without concluding that Michael Walzer knows his stuff. But, in a recent piece in The New Republic, Walzer lent his voice to the swelling chorus condemning the use of private security contractors in Iraq. Walzer is wrong, and so is everyone else who argues that private security contractors are mercenaries who can’t be held accountable.

This is not just an academic error. When our respected scholars (like Walzer) get it wrong, it leads our politicians towards unnecessary and potentially harmful legislation (like the pending bill to ban the use of private security contractors in Iraq and Afghanistan) and creates momentum for misguided political pledges (“If elected President I will cut 500,000 federal contractors”). So, before our candidates get too far down the wrong path, let’s be clear: private security companies are not mercenaries and they can be held accountable.

Walzer and others have been using “mercenary” as an interchangeable synonym for “private security firm.” According to Webster’s, “mercenaries” are professional soldiers hired for service in a foreign army. Not all private security firms are mercenaries, and none of the American companies currently working in Iraq and Afghanistan meet that definition. The private security firms working in Iraq and Afghanistan are not there to engage in offensive force. DoD regulations expressly prohibit contractor personnel from participating in direct combat activities. Multiple U.S. laws, such as the Federal Activities Inventory Reform (FAIR) Act of 1998 and 5 U.S.C. 3108 (the “Anti-Pinkerton Act”), already prohibit contracting out inherently governmental functions, especially combat roles. According to the Office of Management and Budget, “protection of property and persons is not an inherently governmental function.” That basic protection is all that contracted security companies can and do provide in Iraq and Afghanistan. Calling these companies “mercenaries” is irresponsible invective that diminishes the important debate about battlefield roles and responsibilities.

But Walzer and the other critics of private security companies are doing worse than just mislabeling for dramatic effect. They also brashly advance a flawed argument -- that the use of private security contractors in Iraq and Afghanistan is ethically unsound because those firms are insufficiently accountable to the state. They say that when the government contracts private security companies to do work in dangerous places, individuals aren't accountable and politicians aren't accountable. That’s wrong on both counts.

The first inaccuracy of the accountability argument is the sweeping assertion that our politicians are not accountable to the public when contractors are sent to Iraq and Afghanistan. In fact, both our executive and our legislature are directly accountable to voters for the choices they make in the conduct of and accounting for this war. Our politicians are as accountable for choices made in government contracting as they are for any other choices made in the process of governing. (Thus the race to gain votes with the vague and dangerous “I’ll cut contractors” soundbite.)

After political accountability, the contractors’ critics decry an absence of criminal accountability. Walzer in particular, like others before him, points with umbrage and outrage to “Order 17.” “Order 17” is the Transitional Administrative Law signed by Paul Bremer in 2004 giving contractors in Iraq immunity from prosecution in Iraqi courts. The cite to this particular order is made as though it is something uniquely troubling, a specific exception carved out to accommodate our government's increased reliance on contractors in Iraq. But Order 17 is not unique or unusual. Immunity from local prosecution for contractors accompanying the armed forces is a standard term of the Status of Forces Agreements that the United States has signed with countless other countries. There are military attorneys who spend entire careers keeping Americans deployed abroad out of foreign courts and foreign jails. Our preference for our own court systems isn't new and it doesn't strike me as particularly controversial.

Criminal accountability for battlefield misconduct is complicated and elusive, no matter who the actor. Successful prosecutions are rare, and even then usually unsatisfying and underinclusive, whether the wrongdoers are soldiers at My Lai and Haditha or contractors in Baghdad’s Nissor Square. U.S. laws already exist subjecting American citizens employed by contractors in Iraq to criminal prosecution under both the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act. If there’s an accountability gap remaining, it derives from our limited reach over contractor-employed foreign citizens who commit crimes in foreign countries, and that’s a narrow problem that could be remedied by Congressional extension of U.S. federal court jurisdiction. That potential jurisdictional limitation is not, however, a per se ethical bar to all battlefield use of contractors and it does not equate to the total absence of accountability that Walzer and others bemoan.

Instead of narrowly identifying the jurisdictional gaps, acknowledging the efforts of our Congress to bridge those gaps, and recommending ways to effectuate existing accountability mechanisms and develop the necessary prosecutorial will, Walzer summarily declares that "mercenaries in Iraq are radically unaccountable; their fire is free." That's lovely writing, but it’s just an inaccurate assessment of the current contractor accountability matrix. It’s also shamefully shallow criticism in an area where deep thinking and real solutions are required.

The last erroneous and oft-stated criticism of private security contractors relies on the suggestion that contractors are not as well-trained for their roles on the battlefield as soldiers. Walzer, for example, argues that using soldiers for all security-related missions in Iraq would be better because "soldiers are trained to fight in accordance with a code of conduct." Well, DoD regulations also require law of war training for every contractor in Iraq. Under those regulations, every contractor gets the same training we give our soldiers. Arguably, private security companies have even more motivation to give effective training than the military does, because they are subject to civil lawsuits when they violate the law of war, while the military is not. In addition to training their employees in the laws of war and the proper use of force because it's the right thing to do and because the government tells them to do it, contractors also have to do it, and do it well, as a matter of litigation risk management and corporate governance.

There are ample reasons why using contractors in certain roles makes sense, not least of which is the fact that we plainly don’t have a large enough military to support every aspect of all the missions we have undertaken. We can’t argue against the use of contractors (or announce that we’ll just cut half a million of them) without either proposing alternate solutions or accepting mission degradations.

We should use this election cycle to clamor for real solutions from our scholars and leaders, rather than settling for their blithe condemnation of the use of contractors. The current threats to our national security and to global stability are going to continue to require solutions that leverage our full range of resources -- military and civilian. We need an ethical warfighting plan that properly marshals and controls all those resources, one that acknowledges a third type of battlefield actor that is neither an unarmed civilian nor a soldier.

The binary soldier-or-civilian rubrics we have used to measure ethical warfighting in the past -- from Walzer's Just and Unjust Wars to the Geneva Conventions -- all pre-date the emergence of a powerful non-state actor with the declared intent and evident capacity to do colossal harm to American civilians. Lawyerly adherence to those outdated rubrics and a scholarly unwillingness to think beyond the old paradigm is failing us. It has led us, for example, to the non-sensical and amoral legal conclusion that none of our current enemies qualify as enemy combatants. Clearly, we need our scholars (like Walzer) to develop new ethical paradigms that better address the nature of current conflicts. We also need our prospective leaders to offer more than undeveloped reactionary soundbites.

Public responsibility for the conduct of war can include the ethical and accountable management of contractors. It's not time to kick the contractors off the battlefield, it's just time to recognize and address the implications of all types of actors on the battlefield: soldiers, civilians, insurgents, and contractors.


Tara Lee is a former Navy JAG and former Resident Fellow at the Center for the Study of Professional Military Ethics at the United States Naval Academy. She currently practices law in the National Security Practice Group of a major US law firm.

JURIST Guest Columnist Dr. Laurent Pech, Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway, says that the controversy over ratification of the European Union's Lisbon Treaty is somewhat strange as the Treaty represents no radical alteration of the current "constitutional" relationship between the EU and its member states...

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With a view to devising a new set of rules for the enlarged European Union (EU), 25 governments signed the Treaty establishing a Constitution for Europe in October 2004 (and generally referred to as the EU “Constitutional Treaty”). Following two negative referenda in France and the Netherlands in 2005, the European Council – the EU institution which gathers together the Heads of State or Government of the Member States – reluctantly agreed in 2007 to abandon the “constitutional concept” and to draw up a new Treaty which will amend rather than supersede the two existing Treaties: the 1957 Treaty establishing the European Community and the 1992 Treaty on European Union. If this were not confusing enough, the new Treaty, signed in December 2007 in Lisbon (Portugal), initially branded as the “Reform Treaty” or “Simplified Treaty”, is now generally known as the “Lisbon Treaty”.

One controversial question has animated public debate ever since: does the Lisbon Treaty differ fundamentally from the defunct Constitutional Treaty?

National governments keen to avoid popular ratification of the new text by means of a referendum have constantly stressed that the “constitutional concept” has now been abandoned.

The meaning of this expression, however, is far from clear. As a preliminary matter, it is important to note that the constitutional nature of the 2004 text can be disputed. Indeed, unanimous ratification was required before it could enter into force. Had the Constitutional Treaty been ratified, the Member States would have continued to retain the entirety of the pouvoir constituant, the supreme power to decide one’s own constitutional arrangements. To put it concisely, the so-called “Constitutional Treaty” was formally speaking another Treaty rather than a constitution. It would not have given life to a new sovereign power in the absence of a European-wide referendum of self-determination.

Yet, from the point of view of its contents, one may legitimately retort that the 2004 text was “materially” constitutional. In other words, although the Treaty Establishing a Constitution for Europe did not obviously pursue the objective of giving birth to a new and sovereign state entity, it included some characteristic and decisive components of any constitution. For instance, it clearly organised the government of the entity to which it applies and it also included a Bill of Rights. As far as substance is concerned, the comparison with the constitution of a state hence appeared reasonable. But if one agrees with this line of reasoning, it is then plausible to argue that the EU already possesses a “constitution” as both the EC Treaty and EU Treaty offer a set of justiciable written rules that define the main organs of government and powers, which are viewed as superior law and can only be amended by special procedures.

To bring to a close this rather theoretical discussion, my main point is that the abandonment of the Constitutional Treaty – if one agrees to view it as a constitution – does not deprive the EU of a constitution because it has had one since 1957. Therefore it makes little sense to give any weight to the fact that the term “constitution” has disappeared, although one can understand the political motivations for removing it. The two key questions must instead be as follows: Does the new text differ in form and substance from the previous abandoned text? Does it radically alter the current relationship between the EU and Member States?

In form: the drafters of the 2004 text sought to simplify the EU’s institutional and legal architecture by repealing the EC Treaty and EU Treaty and replacing them with a new text. The decision to abandon the Constitutional Treaty unfortunately means that the present and not easily readable Treaties will continue to remain in force.

In substance: the decision to abandon the Constitutional Treaty was a difficult one to make considering the fact that 18 countries ― representing a majority of the Member States and of the EU population ― had already ratified it. This explains why, to the palpable satisfaction of those countries reluctant to completely discard the Constitutional Treaty, the Lisbon Treaty retains most of its key provisions. In the much-quoted words of Irish Prime Minister Bertie Ahern, “90 percent of it is still there.” The 10 percent "lost" includes the provisions that were said – inaccurately – to impinge on statehood: the term “constitution”, the definition of the EU as a Union of citizens and states, the reference to an EU flag and hymn, the title “foreign minister” and the provision which stated that EU law must have primacy over national law. This diagnosis was later further confirmed by the UK House of Commons European Scrutiny Committee, which expressed the view that “[T]aken as a whole, the Reform Treaty produces a general framework which is substantially equivalent to the Constitutional Treaty”. It seems, therefore, fair to oppose ratification of the Lisbon Treaty on the ground that it is the Constitutional Treaty in all but name. Yet, as pointed out by Richard Corbett MEP, although mice and men are 90 percent identical, the 10 per cent difference is rather important. Furthermore, I would argue that the Constitutional Treaty was more than the sum of its parts. Despite its formal treaty format, its constitution-like structure and the first official use of the term constitution would have considerably strengthened the EU’s symbolic authority.

To some extent, however, this quarrel is irrelevant as most critics preferred to rely on the tired argument that the Constitutional Treaty was the first step on the path towards an undemocratic European Leviathan. But with the exception of the unprecedented official use of the term “constitution”, the Constitutional Treaty clearly confirmed that the EU was no federal “superstate” in the making. It only contained a set of modest reforms aimed at improving the effectiveness and accountability of EU institutions. These reforms can be said to be “modest” as they did not – and will not as far as they are reproduced in the Lisbon Treaty – substantially alter national sovereignty. Among those modest reforms, one may mention the creation of the posts of president of the European Council and of high representative for foreign affairs (but both actors will remain the servants of the leaders of the Member States), the change to a double-majority voting system in the Council of Ministers (55 per cent of Member States representing 65 per cent of the EU’s Population) and the inclusion of a Charter of Fundamental Rights (whose legal impact should not be overestimated because its provisions do not extend the powers of the EU).

While the Lisbon Treaty safeguards much of the substance of the Constitutional Treaty and contains limited yet positive institutional changes, one should not expect radical changes from its ratification. As no radical alteration of the current “constitutional” relationship between the EU and the Member States is to be expected, it’s strange that the Lisbon Treaty inspires so much passion and deceptive analysis from its critics.


Laurent Pech is Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway and the author of The European Union and its Constitution. From Rome to Lisbon (Dublin: Clarus Press, 2008)

JURIST Special Guest Columnist Ophélie Namiech, a Legacy Heritage Fellow working for UN Watch in Geneva, says that to restore the credibility of the UN Human Rights Council governments that care about human rights must commit themselves to do everything in their power to ensure that the current Universal Periodic Review process succeeds...

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When the UN Human Rights Council wrapped up its main annual session last week, human rights organizations criticized its silence over abuses in Tibet, Zimbabwe and Iran, as well as its redefinition of the freedom of expression mandate to conform to the sensitivities of Islamic states.

Nevertheless, many activists and diplomats insist that the Council’s relevance and reputation will be saved by a new procedure that opened this week, the Universal Periodic Review (UPR). A key feature of the 2006 reform of the Council, UPR was designed to end selectivity and double standards by ensuring an objective examination of every UN member’s human rights record.

Will UPR save the Council from the fate of its discredited predecessor? A close analysis of the new mechanism reveals both opportunities as well as difficult challenges.

On the optimistic side, two key elements stand out.

First, unlike the old Commission on Human Rights, UPR’s coverage of all 192 states promotes the principle of universality, and upholds the UN Charter’s guarantee of equal treatment to all nations large and small.

Every year the Council will devote three sessions to examine a total of 48 countries so that over four years, all 192 will be reviewed.

Bolstering the principles of universality and equality is vital given that the Council’s plenary sessions have, like the old Commission, continued to ignore most of the world’s violations.

Indeed, after two years of existence, the world’s highest human rights body has fallen short of its promise to ensure “universal respect for the protection of all human rights.”

The Council has been silent on Zimbabwe’s attacks against journalists, political dissidents, minorities, gays, lesbians, and human rights activists.

It has been silent on Saudi Arabia’s lashing of women who dare to walk the streets without their official “guardians.”

It has been silent on China’s banning of foreign journalists from Lhasa, following the killings and arrests in the Tibetan capital.

It has been silent on Iran’s summary executions of individuals charged with homosexuality.

The list goes on.

Under the UPR procedure, however, even the most oppressive regimes will be subject to examination. China, Russia and Saudi Arabia will have their human rights records reviewed in 2009, Iran and Libya in 2010, and Zimbabwe in 2011.

The second positive element of UPR is the participation of non-governmental organizations (NGOs). Under the procedure, the Council’s review will consider NGO submissions, as summarized by the UN secretariat.

These two positive elements -- universal review and NGO participation -- are indeed encouraging signs.

Still, there at least three major concerns with UPR.

First, despite the consideration of NGO information, the country reviewed maintains significant control over the outcome of the process. The rules established in June 2007 require that the UPR be an “intergovernmental process” and not be “overly burdensome for the concerned State.”

Consequently, one should hardly expect North Korea to volunteer information on its extrajudicial killings and Burma on its jailing of political prisoners.

Second, not only does the country under examination get to be the main supplier of information, but the review process itself is conducted by its peers -- the 47 members of the Council, many of whom are themselves recognized human rights violators.

When Algeria is reviewed on April 14, does anyone really expect to see tough questions from China, Russia, Egypt, Pakistan, and Cuba, and all of the others at the Council who work in close alliance with Algeria? Those belonging to the most powerful political or regional alliances -- the African Group chaired by Egypt, the Islamic group chaired by Pakistan, the Non-Aligned Movement chaired by Cuba -- are guaranteed virtual immunity.

Third, not only does the UPR have weaknesses as a remedy, but it may even serve as a weapon. Those opposed to robust country review mechanisms of the UN human rights system -- country mandates and resolutions -- now argue that these are rendered unnecessary by the introduction of the UPR.

One target of theirs is the system of independent experts on country situations, such as Myanmar and Sudan. The investigators provide valuable reports that raise international awareness of violations, and cause them to be at least addressed by the Council’s debates.

For that very reason, these mandates are opposed by countries that are not free. In the last session, Cuba, China, North Korea, Zimbabwe and Algeria all slammed the experts for what they called “naming and shaming,” and demanded the mandates be terminated. Sadly, they succeeded in eliminating the expert on the Democratic Republic of Congo. It will be a tragic irony if UPR is turned into a weapon in the arsenal of those seeking to minimize or eliminate scrutiny, instead of increasing it.

What should be done? Governments that care about human rights must commit themselves to do everything in their power to ensure that UPR succeeds. Democratic member states of the Council like the U.K., France, Germany and Canada must show the courage to ask challenging questions that rely not only on states’ reports but also on NGO submissions to all countries reviewed – including those with whom they are most closely allied.

This might help restore the credibility of the Council. More importantly, it might begin to meet the expectations of those who need the Council most: the millions of victims of human rights violations around the world.


Ophélie Namiech is a Legacy Heritage Fellow working for UN Watch in Geneva currently reporting on the Human Rights Council’s UPR.

JURIST Guest Columnist Victor Hansen of New England School of Law says that the case of US civilian contractor Alaa 'Alex' Mohammad Ali, currently the subject of criminal charges initiated by the US military, is an ostensibly unremarkable proceeding that could nonetheless have a significant impact on US military law and bears careful attention as it moves forward...

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On April 5th the Headquarters of the Multi-National Force-Iraq announced that the military was initiating criminal charges against a civilian contractor, Alaa “Alex” Mohammad Ali. Given the number of civilian contractors that have been part of the war in Iraq over the past five years, the possibility that one of those contractors may be involved in misconduct is certainly no surprise. What is a surprise is that with this particular contractor the military is proceeding with charges of aggravated assault under the Uniform Code of Military Justice (UCMJ). In other words, Ali will be charged, and if there is a trial, he will be tried as a civilian under military law.

The military is proceeding under a recent revision of the UCMJ that went largely unnoticed by commentators outside of the military. In the fiscal year 2007 Defense Authorization Act, Senator Lindsay Graham added an amendment to Article 2(a)(10) of the UCMJ which expands military jurisdiction to civilians accompanying the force in contingency operations. The amendment passed into law largely unnoticed and now seems to give military commanders the authority to discipline civilian contractors accompanying the force in Iraq and anywhere else U.S. forces are engaged in contingency operations.

This amendment to the UCMJ is seen by some as a tacit recognition that the Military Extraterritorial Jurisdiction Act (MEJA), PUBLIC LAW 106–523, has failed to live up to its intended purpose which was to extend federal criminal jurisdiction to civilians working with U.S. forces overseas. The track record for MEJA over the past eight years has shown the statute to be largely ineffectual for a variety of reasons not the least of which is the significant practical hurdles a federal prosecutor must overcome in order to successfully prosecute these cases. The most recent incidents with Blackwater contractors illustrate some of the difficulty if not impossibility of effectively applying MEJA to civilian contractors accompanying the forces.

Even so, the conventional wisdom seemed to be that the new expansion of military jurisdiction over civilians accompanying the force would go largely unused. The thought was that military commanders had enough on their plates as it is and they had little interest in court-martialing civilian contractors. Especially since the more expedient solution would be to simply ship the contractor out of theater. The conventional wisdom also held that if the military were to exercise jurisdiction over a civilian contractor, it would be in only very serious or extreme cases. This wisdom seems not to be holding true as demonstrated by this first case where the military is exercising jurisdiction. Mr. Ali is being charged with aggravated assault for stabbing a fellow contractor. While these charges are potentially serious, they lack the kind of headline grabbing misconduct that many experts expected would precede the first “test case.”

The military’s decision to assert jurisdiction over this contractor raises many questions that will not be easily answered. The first is whether subjecting a civilian to military jurisdiction in this case is even constitutional. While both civilian and military courts have addressed this question on a number of occasions, the Supreme Court has never directly addressed the question of how broad the military commander’s powers are in time of war let alone in contingency operations.

Another open question is what specific punitive articles of the UCMJ should apply to civilians. For example, some military crimes specifically require that the accused person be a service member. Other crimes, particularly those associated with common law criminal offenses have no such requirement. It is not clear then how much of the UCMJ should or would apply.

Another important and yet unresolved question is how does the expansion of UCMJ authority over civilians impact on the scope of a commander’s responsibility under the law of war. The doctrine of command responsibility holds that military commanders can be criminally liable for the conduct of the forces under their command if those commanders fail to prevent, suppress, or punish law of war violations committed by their forces. While this doctrine has not been codified under the UCMJ, is has been codified in a number of forms in various international treaties and statutes and the doctrine has obtained the status of customary international law. With the expansion of military jurisdiction over civilians, and with the military now indicating that it is willing to apply this expanded jurisdiction, one important question is whether military commanders can now be held criminally responsible for the law of war violations, such as abuse of detainees, committed by civilians accompanying the force.

While seemingly unremarkable for its facts, the case of Alaa “Alex” Mohammad Ali could have a significant impact on military law and bears careful attention as it moves forward.


Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches at New England School of Law

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says the recently released 2003 John Yoo memo on US military interrogation techniques opened up a path to torture and leaves a great number of persons potentially criminally liable for the acts that occurred pursuant to the memo, if only we break the "silence of the lambs" and speak out...

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A series of events over the past two weeks prompts me to write again in this space, breaking the silence of the lambs and inviting all of us to revisit together the “severe pain” analysis of the newly released March 14, 2003 Yoo memo.

I. Events prompting this comment

The first event that prompts this comment was on March 27, 2008, when I was informed of the decision of the Executive Committee of the American Society of International Law that a member-initiated draft proposed resolution on the United States and detainee treatment, waterboarding, and calling for criminal prosecution for torture and cruel, inhuman and degrading treatment was “inadmissible”. Thus, members were being deprived of the opportunity to discuss the draft proposal at the Annual Meeting starting this week. It is an untenable decision for reasons I have explained elsewhere, but its effect is to silence the draft proposal.

The second event was on March 30, 2008, when Murat Kurnaz, as a guest on 60 Minutes, recited the treatment he allegedly received at the hands of the U.S. military during his detention in Afghanistan and Guantanamo. He described having been hung from the ceiling in an aircraft hangar in Afghanistan for five days by his arms (checked by doctors every six hours to see if he could still stand it), being electrically shocked, and having his head put underwater and punched in the stomach to make him inhale water. He alleged being placed in cold and hot rooms at Guantanamo. All allegations were considered to be unsubstantiated by the U.S. military. Kurnaz’s complaints are met with silence.

The third event was on April 1, 2008, when a march 14, 2003 memo on the Military Interrogation of Alien Unlawful Combatants Held Outside the United States written by John Yoo to the General Counsel of the Department of Defense, was released. The memo has been discussed by others, but in short it is another torture memo.

The fourth event was on April 2, 2008, in response to a question over at opiniojuris.org I offered a comment on the “severe pain” analysis done by Yoo in his memo at pages 36-39 demonstrating, on its own terms, it was untenable. I had not seen this type of analysis done before and thought it would be a contribution to discussion. The response on the merits of the analysis was silence.

The fifth event was on April 3, 2008, when I received from “UNKNOWN” a text message with my name in it that was a death threat of the “we know where you live” and “we are watching you” kind. I felt that someone wanted me to be silent.

The sixth event was on April 4, 2008 when I was reminded of Martin Luther King, Jr.’s life. I remembered how he was silenced.

II. Fallout from the memo

On April 2, 2008, Marty Lederman argued that Yoo's March 2003 memo is "in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004."

In an Esquire interview published on April 3, 2008 Yoo stated, “The memo released yesterday does not apply to Iraq. It applied to interrogations of al Qaeda detained at Guantanamo Bay. I don’t [necessarily] agree that the methods did migrate to Iraq, because I don’t know for a fact that they did. The analysis of the memo released yesterday was not to apply to Iraq, and we made clear in other settings that the Geneva Conventions fully applied to the war in Iraq. There was no intention or desire that the memo released yesterday apply to Iraq.”

On April 4, 2008, it was stated that the Yoo memo was probably part of the reason why 22 of 24 criminal prosecutions referred by the CIA and Defense Department had been dropped. Denials of knowledge of the memo were issued by the then Attorney General, John D. Ashcroft, the then Deputy Attorney General Larry D. Thompson, and the then Chairman of the Joint Chiefs of Staff, Retired Air Force General Richard B. Myers. Lawyers for defendant Charles Graner convicted in the Abu Ghraib abuse scandal said the memo should have been released as part of the ordinary discovery process in those cases and they were going to submit it to Graner’s parole board in the next few weeks.

III. The hole in the “severe pain” analysis

The Yoo memo tries to set out what interrogators could do. For that to be done the memo had to define “severe pain” from the torture statute.

The relevant sections of the memo are around pages 36-39 and 40 where it is stated:

Section 2340 defines the act of torture as an: act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control....

The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering." In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be "severe." The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Webster's New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572(1978) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "of circumstances ...: hard to sustain or endure"). Thus, the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.

Congress's use of the phrase "severe pain" elsewhere in the U. S. Code can shed more light on its meaning. See, e.g., West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) ("[W]e construe [a statutory term] to contain that permissible meaning which fits most logically and, comfortably into the body of both previously and subsequently enacted law.). Significantly, the phrase "severe pain" appears in statutes defining an emergency medical condition for the purpose of providing health benefits. See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000). These statutes define an emergency condition as one "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added). Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are, likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture "severe pain" must rise to a similarly high level-the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.

One weakness of the rules of statutory construction (or rules of interpretation) approach is that everyone knows (as said Justice Kennedy in 2006 at the Nabrit Lecture at Howard Law School) that one can always find a rule that works for what you want to do.

I could spend time trying to look for this or that rule and focus on said rule as an alternative to the Yoo approach. The essence of this approach is that my discussion here would become kind of a more sterile exercise of "ah yes there are many ways to do this" and we would proceed off to our next article. For example, one could try to look at the same statutory language under a cumulative approach and look at the variety of answers and say isn't that fascinating. One is left with a kind of bewilderment at the possibilities.

Sorry to speak plainly, but I think JURIST would want me to speak plainly. Maybe because I am too lazy or something, I simplified my life a bit by taking Yoo at his own words. I assume that he means the words he writes so I look at them.

IV. Taking Yoo at his own words

For example Yoo says the medical emergency standard is:

These statutes define an emergency condition as one "manifesting itself by ,'acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ...
(i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added).

This language is the same in the other statutes to which Yoo refers in that section of the text (See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000)).

Note that language and then note the next sentence which is on page 38:

They treat severe pain as an indicator of ailments that are, likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function.

But none of the statutes Yoo cites treat the damage as that rising to the level of death, organ failure or the permanent impairment of a significant body function.

Yoo's language in the sentence above on its face appears to contemplate to me a definition that restricts "severe pain" to something more narrow than does the statute to which he has chosen to make reference - let alone any more capacious definition from another rule of construction.

The language of the statute he cites does not make reference to anything permanent - it focuses on seriousness. While it could certainly contemplate at the high end of its seriousness - quoting further - "physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions."

It also can include lower level types of seriousness that he has decided to exclude. So while starting from the language of a statute, to which he refers pursuant to a rule of construction, what he is doing is putting his own gloss on that statute – giving his own hypernarrow definition of "severe pain". No statutory backup for that Yoo version.

In his own words, and I believe that he believes what he wrote, he is giving advice that "severe pain" (Yoo version) is not "severe pain" (statute version) - a nice sleight of hand it seems to me. As we can presume he specifically intended to write this memo, his words are done with the specific intent of narrowing the limit of what is prohibited.

The difficulty that Yoo faces is that a prosecutor might say that even on the basis he has taken (the statue to which he refers), the rule prohibits more types of actions than Yoo’s standard prohibits. Putting it another way, Yoo got it wrong and the consequence of his getting it wrong was that those who relied on his wrong analysis did acts that were severe pain (meaning torture). His pen flowed to torture.

And the prosecutor could argue that Yoo was not mistaken out of "misfeasance" but rather "malfeasance" in that Yoo was working overtime to come up with narrowed rationalizations that would "protect" those below when they did acts that were in fact torture: he had the specific intent required for conspiracy to torture for example.

The prosecutor could bring in someone who for example tortured Murat Kurnaz and ask him to tell what he had done and whether he had been instructed to do that and by who, etc. and up the chain until you find where the Yoo memo was made operational.

Working on Yoo's standard, the fact that they brought in a doctor every 6 hours to check if Murat Kurnaz was still in good enough shape to be hung up indicates to me that - even with the doctor saying the guy was OK - "a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ...".

That lay person might not consider the damage "permanent" (Yoo's word sleight of hand) but enough to meet the standard of the statute cited by Yoo.

It is Yoo who then takes the step to push even the statute he is citing to an interpretation that permits torture. That was his choice and I presume that he had the specific intent to write the analysis that he did. That conduct is his actus reus and from conduct one can intimate mens rea - though I expect that from the collection of his work there may be further evidence that corroborates the mens rea.

After all, Yoo states in his interview in Esquire:

The other thing I was quite conscious of was I didn’t want the opinion to be vague so that the people who actually have to carry these things out don’t have a clear line, because I think that would be very damaging and unfair to the people who are actually asked to do these things. The way I read what the department did two years later, was they just made the line blurry again. And -- you can have the dispute -- you can say I don’t think the line you’ve drawn is in the right place. That’s fine. But I think its not fair to say, which I think they did, which I feel -- people say its slapdash -- I think it’s not right when they say “I don’t want to be very clear.” Because that’s just people protecting their own backs. So...

He had the specific intent to do what he did. And what he did was create a standard for “severe pain” out of whole cloth that was unsupported by the statute he cited.

V. Breaking the silence of the lambs

For those who relied on this Yoo standard (such as the Working Group at the Department of Defense who were required by the General Counsel to write their analysis based on the Yoo memo, or anyone else above or below Yoo who operationalized the Yoo memo) they would assert reasonable reliance on the Yoo analysis to seek to avoid criminal prosecution. However, from what I showed above, the Yoo analysis is untenable on its face. In addition, given that the exercise I just went through took me about five minutes of looking up the relevant statutes that Yoo cites, I must question whether any lawyer in this process or layperson with the reasonable sense to ask a lawyer to check the point could be seen as being reasonable in relying on a “severe pain” standard that is made up from thin air.

I would think a question might be asked as to where the Yoo-included-language came from since it is not in the statute that Yoo cites. I can speculate on where it might have come from (a Presidential finding?).

The key is that a jury confronted with this evidence would not consider the Yoo standard as reasonable and would not consider reliance on that standard as reasonable. That would appear to me to leave open a great number of persons as potentially criminally liable for the acts that occurred pursuant to this memo. Of course, the memo has been withdrawn, but all those persons in the chain of command in the relevant 2003 period who operationalized the Yoo standard should be contacting lawyers. Maybe that is the reason that so many potential persons of interest are denying any knowledge of the memo at this time. I cannot believe them. There has been too much of this obfuscation about detainee treatment.

Ah, if the ASIL would have put its considerable authority behind the idea of further investigation of these points that would have been nice, but, of course the resolution was “inadmissible.” Civil society wants silence. The military and civilian authority wants silence.

This reminds me of the Lions for Lambs comment. The recent movie Lions for Lambs takes its name from a comment made by a German officer during World War I, comparing British soldiers' bravery with the calculated criminality of their commanders. All that the elite appears to want is silence from the lions so that the lambs escape liability.

As I have said before, not good enough. To keep our honor clean, break the silence of the lambs. All we need is evidence, a prosecutor, a grand jury indictment, a trial, and a conviction. Bring light. Bring light.


Benjamin Davis is a professor at the University of Toledo College of Law

JURIST Guest Columnist John Cerone of New England School of Law says that while we are accustomed to seeing the US president wrap himself in the US flag to avoid the restraints of international law, his posture in recent cases reveals that he occasionally dons the UN banner as well, perhaps for inverse purposes....

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Earlier this year, I was invited to participate in a symposium on the case of Medellin v. Texas, in which US President George W. Bush had intervened in support of Ernesto Medellin, a Mexican citizen on death row in Texas. Medellin was seeking review of his case in light of a judgment of the International Court of Justice requiring the United States to reconsider his conviction and sentence. The Court had found that the United States had violated its international obligation to inform Medellin, upon arrest, of his right to have the Mexican consular authorities notified of his situation.

This case was of particular interest to international lawyers for a variety of reasons, not least of which was the peculiar posture of the Bush Administration. Essentially, the Executive had intervened 1) on behalf of a (non-whitecollar) criminal defendant, 2) in a death penalty case, 3) in Texas, 4) invoking principles of comity, 5) with reference to an international legal obligation on the United States, 6) as determined by an international court, 7) in a judgment that penetrates deeply into the domestic criminal justice system, 8) of Texas.

What's not wrong with this picture?

In my analysis, prepared prior to the recent Supreme Court judgment in that case, I speculated that, despite all indications to the contrary, Hell had not actually frozen over. While acknowledging that the President's intervention may have been motivated by the interests cited in his brief -- ensuring reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law -- parallel developments suggested that the intervention may also have been prompted by a narrower interest that this Administration has sought consistently to advance.

When viewed in light of the U.S. Executive's invocation of international law in a counter-terrorism context, a pattern seems to emerge. In particular, throughout the "War on Terror," the White House has invoked international law to expand its authority, both externally and internally, while rejecting the limitations imposed by international law. A prime example has been the invocation of the law of war as granting virtually unfettered discretion to detain and kill those deemed "enemy combatants," while simultaneously ignoring those rules of international and US law that would restrain this discretion.

In its March 25 judgment in Medellin, the Supreme Court, following its own recently established pattern, rejected the President's exorbitant assertion of authority. Reflecting upon the judgment, and in particular the Supreme Court's refusal to order review and reconsideration of the petitioner's conviction and sentence, I've re-examined whether my own hasty analysis may have been a bit cynical, and considered that perhaps the predominant interests underlying the President's intervention were indeed those it purported to serve. Fortunately, the Supreme Court has pointed a way forward. The review and reconsideration indicated by the ICJ can yet be achieved in a way that would address all of the interests cited in the Executive's brief. The President need only ask Congress to accord the Court's judgment the status of federal law. While the 110th Congress may be reluctant to cooperate with the Bush Administration, simply making the request would be a sign of good faith.

I'm not inclined to hold my breath.

On the same day that Medellin was handed down, the US Executive appeared before the Supreme Court to argue the case of Munaf v. Geren. The Deputy Solicitor General argued that US courts lacked jurisdiction to hear habeas petitions by US citizens held by US troops in Iraq because the petitioners were "being held under international authority pursuant to determinations made by an international multinational force acting and carrying out a United Nations mandate..." As pointed out by Justice Souter, this would mean that "the president acting alone can make an agreement for an international force or a cooperative force and that agreement of the executive alone in effect eliminates habeas jurisdiction over an American citizen." This would seem even more striking as applied to an international force that is in reality a US force with an international veneer.

Unlike the Executive's argument in Medellin, which may be seen to evince bad faith, can their argument in Munaf be seen as anything but? Viewed in the context of this continuing pattern of opportunistic invocation of international law, the President's intervention in Medellin is stripped of the legitimacy of the interests it claims to serve, leaving only the bare power-grab.


John Cerone is Associate Professor of Law & Director of the Center for International Law & Policy at the New England School of Law.

JURIST Special Guest Columnist Shayana Kadidal, senior managing attorney of the Guantanamo project at the Center for Constitutional Rights, says that the recently-released 2003 DOJ memo on military interrogations written by then deputy assistant attorney general John Yoo was no exercise in blue-sky hypothesizing, but rather one of a series of key government memos - many still undisclosed - that gave those at the highest levels of the US government the confidence to put pressure on those at the bottom to adopt abusive interrogation techniques subversive of generations of military culture and sound interrogation practice...

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Last week saw the release of a previously-classified torture memo of March 14, 2003, authored by John Yoo. The memo (here are parts 1 and 2) was declassified in the face of a judicial inquiry into why it was not disclosed as part of the torture FOIA brought by our organization, the Center for Constitutional Rights, as well as the ACLU, PHR, and two veterans groups. Almost as astonishing is an