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Suing Gonzales

JURIST Guest Columnist Jordan Paust of the University of Houston Law Center says that notwithstanding his resignation, US Attorney General Alberto Gonzales might still be subject to federal civil suits in connection with his involvement in the denial of Geneva Conventions rights and protections to US prisoners and the authorization of secret and “coercive interrogation” of detainees...

Nearly-“former” Attorney General Alberto Gonzales is reasonably accused of abetting war crimes with respect to law of war violations concerning the status, secret detention, rights, and treatment of detained persons [see, e.g., 2007 Utah Law Review 345, 347, 358 (2007)]. Is he subject to civil suit for such alleged violations of international law? With respect to foreign plaintiffs who were harmed as a result of his abetments – especially during his chairing of inner circle meetings where decisions were made as part of a common plan to deny Geneva law rights and protections and to authorize secret and “coercive interrogation” of detainees that might include anything short of “torture” – civil suits can be brought in a federal district court under the Alien Tort Claims Act (ATCA or ATS), 28 U.S.C. § 1350, for a “tort only, committed in violation of the law of nations or a treaty of the United States.” As several federal cases (including Justice Breyer’s important concurring opinion in Sosa [542 U.S. 692, 762 (2004)] affirm, war crimes and crimes against humanity are well within the ambit of the ATCA.

Is there any legislation that will operate to deny such suits under the ATCA? As noted in a recent law review article [2007 Utah L. Rev. at 416-18], there was an attempt in the 2006 Military Commissions Act to deny certain alien persons here or abroad, at any time, and under any circumstances, “any ... action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of such persons. As noted in the article, such an attempt to deny fundamental rights of access to courts and to an effective remedy “is a flagrant ‘denial of justice’ under customary international law and an outrageous denial of peremptory rights of access to courts, rights to a remedy, and/or equality of treatment under numerous multilateral and bilateral treaties of the United States and customary international law. Such a sweeping denial of treaty-based requirements is also a violation of the separation of powers, since it attempts to control judicial decision and to deny the judiciary its time-honored and essential role of applying fundamental and peremptory rights and requirements contained in treaty law of the United States. More generally, it is an attempt to deny the rule of law.”

Importantly, the attempted denials in the Military Commissions Act should not prevail as a matter of law. Under well-recognized and traditional Supreme Court approaches to potential conflicts between international law and federal statutes, an act of Congress will not prevail against rights and prohibitions under international law unless there has been an expression by Congress of a clear and unequivocal intent to override such international law. There was no clear and unequivocal
expression of such an intent in this instance and, in fact, there were several informing expressions of an intent to conform to any requirements of Geneva law. Moreover, even if such an expression of Congress had occurred, Supreme Court cases under the last-in-time rule (which might allow a latter in time statute to prevail in some instances) recognize both (1) a “rights under” treaties exception, and (2) a law of war exception to the last-in-time rule that assure the primacy of international law. Each exception would surely operate in this instance even if the last-in-time rule were applicable, since claims predictably would be made with respect to several “rights under” treaties and the law of war. For these reasons, suits under the Alien Tort Claims Act against Alberto Gonzales should be able to proceed in the federal courts. In a country committed to the rule of law, justice and human dignity, it should not be otherwise.

Jordan J. Paust is Mike & Teresa Baker Law Center Professor at the University of Houston. His new book at Cambridge University Press, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror (2007), addresses such matters.

August 29, 2007

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While I certainly agree with the sentiment expressed by this idea, any ATCA lawsuit against Gonzales is likely dismissed under Westfall substitution. 28 U.S.C. 2679. Under Westfall, when a U.S. official is acting in their official capacity, the U.S. replaces the individual in a lawsuit. At that point, ATCA claims are dismissed b/c there is no waiver of sovereign immunity for ATCA. An ATCA suit would have to show that Gonzales was acting outside his official capacity when he violated international law. (Sure, you could argue that if he was violating international law, Gonzales was outside the possible scope of his official duties, but that argument is most likely a longshot).

For a recent application of this, see Rasul v. Rumsfeld, 414 F. Supp. 2d 26. Stay tuned for D.C. Cir. on Rasul. Regardless, ATCA claims against Gonzales seem highly unlikely.

August 29, 2007  

The question regarding substitution hinges upon whether Alberto’s illegal conduct is ultra vires, or as the statute states, he was “acting within the scope of his official duties.” I have written that the conclusion that a court attempting to apply supreme law of the land should reach should be that conduct in violation of treaties of the United States and customary international law is ultra vires or outside the scope of lawful activities. Certainly no member of the Executive branch has lawful authority to violate the law. This is the type of conclusion dictated by the Opinion and Judgment of the International Military Tribunal at Nuremberg and that has been recognized in a number of federal cases concerning foreign perpetrators of war crimes, crimes against humanity, genocide, and so forth. See 43 Columbia J. Transnat’l L. 811, 853 n.154 (2005), available at The Rumsfeld decision was in error.

Clearly, under international law (which is also supreme federal law) there is no immunity for violations of international law. See id. at 854 n.158. Moreover, I would stress the point made by the Supreme Court more generally about the rule of law and the scope of official authority in United States v. Lee, 106 U.S. 196, 220 (1882): No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.

If a court decides otherwise, it will be violating the fundamental principle recognized in United States v. Lee and supporting President Bush’s claim that he is “above the law.” What a terrible result in a democracy committed to the rule of law, justice, and human dignity!

Jordan J. Paust

Mike and Teresa Baker Law Center Professor
University of Houston Law Center

August 29, 2007  

While I agree that a reading of Paquete Habana to Sosa indicates that CIL is "part of our law" and I agree that it *should* be interpreted that any activity falling outside that law is outside Westfall. But, the U.S. courts do not seem to agree.

For example, see Schneider v. Kissinger, 310 F. Supp. 2d 251 (D.D.C. 2004):

"The plaintiffs move to strike the U.S. Attorney General's certification that Dr. Kissinger was acting within the scope of his employment. They assert that, “because Defendants' conduct constitutes a clear violation of peremptory norms of international law, such that can never be within the scope of employment, the certification by Defendant United States is improper.” Pls.' Opp. I at 5. This statement, however, is based on an erroneous interpretation of the term “scope of employment.”"

The Schneider court continued:

"The plaintiffs' theory that a violation of international law always falls outside the scope of a federal official's employment misconstrues “the scope” of this term. It is well settled that an employee is capable of committing a variety of illegal or tortious acts for which his employer may be held liable, even though the employer did not hire him for that purpose. This is, after all, the predicate of respondeat superior liability. See, e.g., Weinberg v. Johnson, 518 A.2d 985, 988 (D.C.1986) (“The doctrine of respondeat superior is a doctrine of vicarious liability which imposes liability on employers for the torts committed by their employees within the scope of their employment.”). FN15 Defining an employee's scope of employment is not a judgment about whether alleged conduct is deleterious or actionable; rather, this procedure merely determines who may be held liable for that conduct, an employee or his boss."

Needless to say, the argument you posit certainly has been considered by courts, but unfortunately rejected. Again, I don't deny that U.S. law *should* be interpreted in accord with CIL as you urge. However, that simply is not the current state of the law under Westfall. I hope the D.C. Cir. will correct this in Rasul, but that appears to me unlikely.

August 29, 2007  

To our stealth and nearly supportive commentator: But surely the district judge in Schneider used an improper standard. 28 U.S.C. 2679 addresses a standard relevant to the fundamental constitutional precept that ours is a government of limited power and that federal officials are not beyond the law, but merely have authority and are bound to act according to the law. The language uses a "scope of his official duties" standard, with respect to which the Supreme Court decision in United States v. Lee is clearly relevant, not state tort law regarding "scope of employment" and liability that merely shifts to "his boss." Of course, in this instance "his boss" can be liable for dereliction of duty and his own unlawful authorizations and abetments. In this instance, nothing less than the rule of law is at stake -- not simply whether young rich girls or star quarterbacks are beyond the law, but whether a counselor to a president (who, as president, has his official and constitutionally-based duties to faithfully execute the law and who simply has no authority to violate the law, see also 2007 Utah L. Rev. 345, 382-92 (2007), and numerous cases cited) should be beyond the law. Certainly the rulings in Paquete Habana (and in the ruling in the same case in Justice Holmes' opinion in 1903), Lee, and so many other cases recognizing that all within the executive branch are bound by the laws of war (see, e.g., 43 Columbia J. Transnat'l L. at 858-61), must be controlling in a court of law that applies law and directly relevant precedent.

Jordan J. Paust

Mike and Teresa Baker Law Center Professor
University of Houston Law Center

August 30, 2007  


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