Convictions: Slate's blog on legal issues

High Crimes?

Today comes a bizarre follow-up to Deb's post regarding the Supreme Court's decision to grant cert in a case involving legal accountability for high officials. Over at the Volokh Conspiracy, Orin Kerr points to news that a group of legal academics is planning to convene a conference to plan the prosecution, trial, and punishment for senior Bush administration officials. The effort is reportedly being led by Lawrence Velvel, dean of the Massachusetts School of Law at Andover:

"This is not intended to be a mere discussion of violations of law that have occurred," said convener Lawrence Velvel, dean and cofounder of the school. "It is, rather, intended to be a planning  conference at which plans will be laid and necessary organizational structures set up, to pursue the guilty as long as necessary and, if need be, to the ends of the Earth."

"We must try to hold Bush administration leaders accountable in courts of justice," Velvel said. "And we must insist on appropriate punishments, including, if guilt is found, the hangings visited upon top German and Japanese war-criminals in the 1940s."

... "For Bush, Richard Cheney, Donald Rumsfeld, and John Yoo to spend years in jail or go to the gallows for their crimes would be a powerful lesson to future American leaders," Velvel said.

Somehow, I don't think this is what the Supreme Court had in mind when they granted cert ...

Command Responsibility in Croatia

While flying home after a week of vacation, I read this brief in the International Herald Tribune, via the Associated Press:

ZAGREB, Croatia—A court convicted a retired Croatian general of war crimes Friday for failing to stop his soldiers from torturing and killing Serbs in a wartime operation once deplored by UN peacekeepers as a "scorched earth" campaign.

General Mirko Norac condoned crimes committed by those under his command, the Zagreb district court judge Marin Mrcela said in the ruling. He sentenced Norac to seven years in prison.

The judge acquitted another retired general, Rahim Ademi, in the case.

Of course, the important thing here is the crime with which Norac was charged. Norac did not stand accused of personally torturing and killing Serbs. Or even directly ordering those acts. Rather, the court convicted him of "condoning" such crimes under his command. In reaching this verdict, the court relied on a principle deeply ingrained within the law of war: that of command responsibility. Simply stated, the rule makes a commander responsible for all his unit does, either where he knew of the conduct or should have known of the conduct, although scholars and jurists continue to debate this knowledge requirement. In a famous WWII case, the Supreme Court affirmed a war crimes conviction for Tomoyuki Yamshita, a Japanese field commander charged with "unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes." 

In this case, it appears that Norac did indeed know of his troops' crimes, making this an easier case in some respects. Nonetheless, this decision reaffirms the general rule, and it should remind senior military commanders everywhere of their duty to heed the law of war. "It was his duty to prevent" the crimes, the judge wrote in his ruling, continuing that "by not taking legal actions against the soldiers after learning that they committed war crimes, a commander (Norac) in fact provided a pattern on how soldiers should behave."

Rx for OLC: Pursue Integrity not Investigation

I am not sure I disagree with the implications of colleague Phillip Carter's note about the next administration undertaking a war crimes investigation of the incumbent, but were the question put directly:  Should President Obama launch yet another legal investigation into the alleged war crimes of the Bush administration?

The answer -- absent clear evidence of a criminal intent to subvert the law well beyond what even the most severe Bush critic alleges -- is "no."   That seems to be the answer Senator Obama wisely supplied.

Far more important for the United States is having a president who will observe the scope of the presidential office, the rule of law as written, and who reaffirms what the international community has already said - water-boarding is torture.  In a perfect world, it would've been nice if the Office of Legal Counsel had said all that at the beginning, but it didn't, and it is perfectly understandable why an intelligent man like Attorney General Mukasey has wanted to get on to other things. All of the prudence in the world commends the next president to do the same.  

Of course, it is important to ensure that objective legal advice will again be given the next Attorney General by the Office of Legal Counsel, and the best way to ensure that is by appointing a person of independence and stature to that position.  Harvard's Laurence Tribe, Columbia's Thomas Merrill, Northwestern's John McGinnis, and UC Davis' Vik Amar readily come to mind from academic ranks.  And there are multiple possibilities from among appellate judges: Merrick Garland of the D.C. Circuit and Mike McConnell of the Tenth Circuit just to give two obvious examples appointed by different presidents of different political parties.

The point is: integrity is not a partisan commodity and the giving of objective legal advice more often than not depends upon that quality being freely mixed with a level of maturity that has seen history repeat itself and the courage, when warranted, to say "no."

In Defense of the Indefensible

Eric,

With all respect, I think that post really is beyond the pale.  The allegation that we critics of the Yoo memos and of the United States' descent into a torture regime have been motivated by the "pleasure" of punishing "ideological opponents," an "indulgence" of our "fantasies" (going so far as to describe Philippe Sands as "purring" with “delight” like a cat ready to pounce), is, not to put too fine a point on it, a calumny. It degrades and trivializes the discourse on this blog about matters of profound moral and legal significance.

Your post does prove, I suppose, that there can be no such thing as complete consensus in the legal academy, not even on the easiest questions of law and morality: It demonstrates that there are, indeed, some very smart people out there who have no sense of moral and professional outrage and incredulity about what happened here—who apparently think of this as "business as usual,"  what we should or must expect from our government in times of crisis; that it makes no sense at all to critique the work of government lawyers. Fine. I suppose exposing such insouciance has its own value: It helps to explain how evil can come to be embraced even in enlightened cultures, among the educated elite. 

Perhaps, as your tone suggests, you think we are naive to be shocked by what we've seen come out of OLC over the past seven years. You're certainly entitled to make that claim, though I think it is mistaken. But please, do not impugn the sincere motives of the vast majority of us who have spent a great deal of time and energy over the past few years arguing that this is, indeed, a very big deal, and a serious breach in our constitutional culture.

You do make one important point, concerning the relative lack of legal concern in response to President Clinton’s decision to unilaterally authorize the Kosovo air campaign in 1999. It’s not that I think there is really any qualitative comparison, either morally or in terms of OLC's legal product, between the two cases. The Yoo memo is an opinion that unselfconsciously spends several pages explaining why Congress should not be presumed to have prohibited the military, in wartime, from throwing corrosive acid on detainees, from plucking out their eyes—and then adds, to boot, several untenable arguments about why the president’s uncheckable authority to authorize such things would, in any event, preclude Congress from legislating to the contrary even in the most specific of terms. The memo was the crucial link in laying waste to a decadeslong military culture that taught strict adherence to the laws of war, the UCMJ, and our treaty obligations.

Moreover, I think the arguments in the Clinton OLC opinion, about whether the Kosovo bombing violated the War Powers Resolution, are close ones; and, in any event, whatever one thinks of its conclusions, that opinion is scrupulously candid, fair, and balanced in acknowledging the difficulty of the question and the arguments on the other side. Furthermore, the Kosovo campaign was not, of course, conducted in secret—whatever its legal faults, Clinton's decision allowed the ordinary constitutional checks and balances to operate. (I also happen to think that, unlike our recent regime of torture and cruel treatment, the Kosovo campaign was morally justified, but, of course, others might disagree.)

Nevertheless, you are correct that there was another legal question—two, actually—about which OLC apparently did not opine with respect to Kosovo: (i) whether, prior to Congress' possible authorization by way of appropriations, the president had the constitutional authority to unilaterally initiate the campaign without the assent of the House; and (ii) whether the president ignored his constitutional obligation to take care that the U.N. Charter was faithfully executed prior to the time the Congress (arguably) approved the campaign. I suspect, but am not certain, that the White House deliberately chose not to ask OLC these questions. (I have no independent knowledge: I was not privy to any OLC matters related to Kosovo.) If that is correct, it would be very troubling and ought to be condemned. The State Department, on the other hand, reportedly did debate the U.N. Charter question at great length and eventually concluded, publicly, that the legal issue could be overcome. (See footnote 619 of this.)  Personally, I have serious doubts about the correctness of that conclusion. And it certainly warrants much more attention from we misty-eyed believers in the rule of law.

But the important point is this: If, as you suggest, you think that the two cases are roughly equivalent in terms of how badly the executive abused the rule of law, then, frankly, you should be condemning both, not neither. If I understand your posture, however, it's that we should all just shrug our shoulders whenever the executive violates the law, no matter the stakes; no matter how egregiously wrong and outrageous the legal reasoning; no matter how secretive the program and legal rationale; no matter how many contrary voices in the executive branch were cut out of the process. 

I am willing to assume, Eric, that your radical cynicism about the law, the president's take-care obligation, and the proper role of government lawyers, is sincere—that it is not simply your way of gleefully tweaking your "ideological opponents." Please do not assume that the rest of us, who do not share your deep cynicism, are any less sincerely motivated.

And for Some the Future May Hold a Tap on the Shoulder

I'm all in favor of letting people live out their fantasies, but we're lawyers here at Convictions, and even our fantasies must conform to the rule of law. The principle is that American lawyers should be called to account in foreign courts if their legal advice leads to violations of international law by the United States and (as is virtually always the case) domestic courts offer no remedy. And unless we are to live in a world in which only lawyers go to jail, and not the people who actually make the decisions based on the legal advice, foreign courts are going to have to try the relevant political decision-makers as well. They will be busy.

Nuremberg established the crime of aggression, which though not yet formally incorporated in an international instrument ratified by the United States is widely believed to be a part of customary international law, bolstered by the rules of the U.N. Charter, which permit the use of military force only in self-defense or with the authorization of the Security Council. It is on this premise that Sands' play considers the indictment of Blair—from which it would follow that there should be indictments of Bush and other high-level officials in Britain, the United States, and other countries that participated in the intervention. The invasion of Iraq was not authorized by the Security Council, and it was not an act of self-defense. The crime-of-aggression argument is really not bad—impractical (for both political and jurisdictional reasons), to be sure, but in our fantasies, and on the stage, impracticality is no barrier to action.

Which brings us to the Clinton administration, which in 1999 launched an invasion of Yugoslavia on behalf of Kosovo, its renegade province, now independent. The Clinton administration failed to secure the consent of the Security Council (or even the consent of Congress) but went ahead anyway. In May 1999, the Office of Legal Counsel gave its approval in an oral opinion later memorialized in a memo issued in December 2000. The memo fails to mention that international law prohibited the invasion, perhaps because OLC had exhausted itself trying to prove that Congress had agreed to the use of military force even though the bill to authorize it was voted down. Panting and winded, it had no energy left to address international law. John Yoo, are you listening? Do you see how the pros do it? Next time, refrain from mentioning the Convention Against Torture rather than trying to explain it away.

Should these Clinton lawyers also be "called to account" (along with Clinton himself, of course, and his senior staff, and the former decision-makers and legal advisers of all other NATO countries)? We don't know whether Clinton's lawyers failed to warn him of the relevant international legal prohibitions, or did so only orally, or in a secret memo. Perhaps they gave him good legal advice that he chose to ignore, and they silently resigned their positions in protest. An investigation should be launched so that the truth can be ascertained. Subpoenas issued, witnesses corralled, suspects named. We will also need to look for any legal advice, oral or written, pertaining to other Clinton-era actions that were dubious on international law grounds—the launching of missiles against Afghanistan and Sudan, bombing tactics in Yugoslavia, and the economic sanctions against Iraq, which caused many foreseeable deaths.

Alas, it's not going to happen. International justice has achieved such perfection only in the vivid hallucinations of international lawyers. You former OLC lawyers—next time you're vacationing in Europe, don't be alarmed if you feel a tap on your shoulder. It'll just be me: Boo!

There's a War Crimes Tribunal in Your Future

Phillippe Sands reminds us that even if the Military Commissions Act of 2006 may have insulated American officials from domestic criminal liability under the War Crimes Act, they may someday face liability based on precedents created in part by American lawyers and jurists following World War II. Indeed, the passage of the Military Commissions Act, far from insulating these officials from liability from war crimes, may have made it easier to prosecute them:

Continue reading at Balkinization ...