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No Shelter for War Crimes 'Within the Scope of Employment'

JURIST Guest Columnist Jordan Paust of the University of Houston Law Center says despite a recent conclusion of the US DC Circuit Court of Appeals that former Defense Secretary Donald Rumsfeld and other top US officials are immune from torture-related litigation launched by former US detainees because they were performing acts "within the scope of their employment," it is legally and morally impossible for any member of the executive branch to be sheltered by such authority while engaging in war crimes...

In Rasul v. Myers, a three-judge panel of the United States Court of Appeals for the District of Columbia upheld dismissal of suits brought by four former detainees against Donald Rumsfeld, General Richard Myers, and others for (among other claims) alleged “torture” and, alternatively, alleged “cruel, inhuman or degrading treatment” in violation of international law. Dismissal was based on a sweeping anticontextual conclusion that each individual defendant was a federal official or employee “acting within the scope of his office or employment” within the meaning of the 1988 Westfall Act, 28 U.S.C. § 2679 (b)(1) and (d)(1). The three-judge panel noted that the district court below had “agreed with the defendants that their alleged authorization, implementation and supervision of torture was ‘incidental to the conduct authorized’” by the Executive and that their actions were “‘within the scope of their employment.’”

Plaintiffs had stressed that the conduct was “seriously criminal,” “never authorized,” and had long been condemned by the United States. Plaintiffs had agreed that the “torture, threats, physical and psychological abuse inflicted upon them” were “intended as interrogation techniques to be used on detainees.” The three-judge panel noted that the district court found that the alleged “‘torture and abuse [were] tied exclusively to the plaintiffs’ detention in a military prison and to the interrogations conducted therein.’” These points were enough for the three-judge panel to conclude, “then, [that] the underlying conduct – here, the detention and interrogation of suspected enemy combatants – is the type of conduct defendants were employed to engage in....” (emphasis added). With respect to the fact that the alleged conduct is seriously criminal, the panel stated that “criminal conduct is not per se outside the scope of employment.”

What must necessarily be shocking to those familiar with international law is that alleged conduct that is “seriously criminal” and creates war crime responsibility (e.g., torture, cruel treatment, inhumane treatment, and degrading treatment in violation of the laws of war) could ever be considered to have been engaged in by any member of the executive branch while acting “within the scope of his office or employment” or that if defendants had authorized, were engaged in, or had facilitated interrogation as such, they could ever be said to have been acting “within the scope” of their office or employment with respect to interrogation tactics that they had authorized, facilitated, or used that were violations of the laws of war, which are war crimes. As documented in my recent book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror 21-22, 169-72 (Cambridge Univ. Press 2007), every relevant federal and state judicial opinion since the dawn of the United States, including several U.S. Supreme Court opinions, has affirmed that all persons within the executive branch are bound by the laws of war and that the laws of war place limitations on the authority of any member of the executive branch. As a matter of common sense, it is legally and morally impossible for any member of the executive branch to be acting within the scope of his authority while engaging in war crimes. As the Supreme Court recognized more generally with respect to conduct during the Civil War 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.
During the Civil War, the Supreme Court also affirmed that the President has no powers ex necessitate, “is controlled by law, and has his appropriate sphere of duty, which is to execute [and not violate] the laws,” and “[b]y the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers.” Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119-21 (1866). In Dooley v. United States, 182 U.S. 222, 231 (1901), the Court recognized that military powers are “regulated and limited ... directly by the laws of war.” As noted, throughout our history judicial opinions addressing the laws of war demonstrate that members of the executive branch are controlled by the law of war and are not employed to violate the law of war. Clearly, crimes under the laws of war are not within the scope of the “office or employment” of any federal official or employee and relevant criminal conduct is beyond the scope of lawful authority or ultra vires whether or not “underlying conduct” is within the scope of their authority. Indeed, as Founders and Framers recognized, the people of the United States were bound by the customary law of nations and had no authority to violate such law that they could delegate to the executive. Instead, they created an express mandate in the Constitution that the Executive must faithfully execute the laws.

The International Military Tribunal at Nuremberg rightly applied an ultra vires rationale in the face of German national claims that they were acting within the scope of official authority and were entitled to immunity: “He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorising action moves outside its competence under international law.” During Alien Tort Claims Act (ATCA or ATS) and Torture Victim Protection Act (TVPA) litigation over the last many years, several federal cases have also applied the ultra vires rationale in connection with civil suits against foreign heads of state, other officials, generals, and others to recognize that conduct in violation of international law cannot be considered to be an “official,” “public,” or authoritative act and, instead, is outside the lawful authority of any government or office. Since international law has often been used by the Supreme Court and other federal courts as a necessary background for interpretation of federal statutes, it is surprising that the three-judge panel did not use international law for purposes of interpreting the phrase “within the scope” and that there was no reference to the IMT at Nuremberg’s recognition or to the many ATCA and TVPA cases noted above that had used international law in connection with an ultra vires rationale.

It is also surprising that the panel did not use The Charming Betsy rule that federal statutes must be interpreted in a manner to comply with international law and that, in any event, federal statutes “can never be construed to violate ... rights ... further than is warranted by the law of nations.” 6 U.S. (2 Cranch) 64, 117-18 (1804) (emphasis added). Additionally, it must be shocking to those abroad to learn that a U.S. court has concluded that torture, cruel treatment, inhumane treatment, and degrading treatment are “within the scope of” the office or employment of persons within the U.S. executive branch; that such persons are not bound by the rule of law; and that they are employed to engage in such international crimes. When interpreting the phrase “within the scope,” it would have been better to affirm that no officer of the law is beyond the law, that no officer of the law can be employed to violate the law, that no officer of the law can be acting within the scope of his office or employment if he is committing war crimes.

Also of interest is the fact that torture, and cruel, inhuman, and degrading treatment are proscribed in all circumstances under human rights law, including the International Covenant on Civil and Political Rights (ICCPR), and under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment. Moreover, each treaty requires that civil remedies for violations be made available. For example, the ICCPR expressly mandates that victims “shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.” As documented in Beyond the Law (at 166-67), both treaties were ratified after the 1988 legislation and the Federal Tort Claims Act and are, therefore, last in time. As such and under the last in time rule, they must prevail against any prior federal legislation that might otherwise deny an effective remedy. Even if the treaties had not been last in time, rights to effective remedies under the treaties would prevail under the “rights under” treaties exception to the last in time rule that has been recognized in Supreme Court and other federal cases. As explained also in the book, this point can be important with respect to proper interpretation and application of the subsequent Military Commissions Act (MCA), although one should not apply the last in time rule with respect to such legislation because, in accordance with a long line of Supreme Court cases, a treaty will prevail unless there is a clear and unequivocal intent of Congress to override a particular treaty expressed within the legislation and no such intent appears in the MCA.

The message that Rasul v. Myers sends within the United States and abroad is a message that terrorists generally prefer in order to demonstrate that the government that they oppose is acting outside and beyond the law, that the rule of law is inoperative and unrestraining. It is also a message that we clearly should not tolerate in the face of ahistorical and autocratic Bush Administration claims, otherwise denied by the Supreme Court in Hamdi, Rasul, and Hamdan, that the President can violate any inhibiting international law and congressional legislation during his so-called “war” on terror – that he and his entourage are beyond the law.

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

January 22, 2008

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