Wednesday, December 17, 2014

Why Immunity for Bush and Cheney May Not Be the Final Word

by Nomad

Claims of immunity might have so far protected former Bush officials (including the ex-president and former vice president Dick Cheney) but as this post explains, treaty obligations demand that action be taken. 

In light of the revelations of CIA torture, some people have rightfully begun asking why the people involved- who have admitted that they authorized the interrogation techniques- should not be held accountable. Isn't it clear that the things done were illegal? 
How is it possible that a US government official, like Dick Cheney, can escape accountability even though he/she had all but admitted human rights crimes, as defined by international standards
The exact legal means for escaping accountability wasn't recently devised especially for the Bush administration. It was, in fact,  established back in 1988.

The Westfall Loophole
In 2013, the Justice Department refused to act upon a complaint by Sundus Shaker Saleh, an Iraqi mother and citizen, regarding the legality of the Iraq War. Her complaint covered a lot of ground too. The class action lawsuit filed against members of the George W. Bush administration in California District Court a year earlier. provides the full story:
Saleh’s suit alleges that the Bush administration plotted against the country of Iraq and that top members of the administration used the September 11th attacks to justify an invasion which had been planned as early as 1998. She also claims that the administration falsified information to justify the war and further, that they illegally invaded the country, without UN approval, in violation of international law. The suit cites additional violations of the Rule of Nuremberg and the Kellogg-Briand Pact, a Treaty signed by the US in 1928.
Needless to say, the case never got to court. Refusing to pursue the case, US attorneys filed a Motion to Dismiss. Although there were many reasons to dismiss the case (questions of procedure, of jurisdiction) there was one primary reason.
Ms. Rupa Bhattacharyya, Director of the Torts Division of the DOJ, cited (28 U.S. Code § 2679). otherwise known as the Westfall Act.

The law says that when an employee of the government is doing his/her job, they cannot be held individually accountable for harm they caused so long as they were acting under the scope of their terms of federal employment.
In this case the employer is the United States government, which is protected by sovereign immunity, the legal doctrine that a sovereign state can not commit a crime and is immune from prosecution  The US government can (and must) be named as the defendant.

That's not to say that the Saleh case itself had no merit, but defense lawyers for the Bush and his staff would easily have torn the case to bits. They would have successfully argued that any harm done by the president and his wrecking crew would the responsibility of his employer. That is, the US government. 

The Questionable Immunity
The use of the Westfall Act has been widely criticized since the Supreme Court ruled on Westfall v. Erwin back in 1988. Prior to this time, immunity from prosecution for government officials was decided on more of a case by case basis.

The Supreme Court decision ruled January 13, 1988 that the threat of liability would inhibit the discretionary aspect of their jobs. Meaning, a lack of immunity from prosecution could the Justices said "shackle the fearless, vigorous, and effective administration of governmental policies." 

While that decision left things up to the discretion of federal officials who were already under law of the land, the Supreme Court justices surely never intended to give cart blanche to human rights violations or a free hand to torture.

As Attorney Karen Lin, writing for the Columbia Law Review has pointed out,
The Court was not unaware of the potential controversy its decision would cause, and indeed may have hoped and expected that Congress would step in.
What was needed was a robust debate on the matter to decide how far immunity would go and how much discretion should be left to federal employees. Congress indeed didn't hesitate to step in and, without much debate,  promptly made the situation worse.
The House introduced H.R. 4612 to "provide for an exclusive remedy against the United States for suits based upon certain negligent or wrongful acts or omissions of U.S. employees committed within the scope of their employment.” It passed into law with out too much debate. 
(Ironically, Rep, Dick Cheney of Wyoming very likely voted for the law which would later serve him extremely well.)

Lin adds that there were unintended consequences to the legislation that few seem to have understood at the time. The Westfall's immunization effect is "doubly ironic."
Not only has the country that led the way in allowing aliens to vindicate their rights against foreign officials maintained official immunity for its own officials even in the face of modern human rights accountability, but it has also done so unintentionally As a result, U.S. courts apply a double standard of liability whereby foreign officials may face liability for international law violations while U.S. officials have absolute immunity for those same violations.
It's hard not to call it what it is: a monstrous hypocrisy. Nevertheless, it is a useful means for Bush and his circle to escape the US Courts. 

The Civilized World v. Westfall Act 
There are some important points worth mentioning about the immunity provision of the Westfall Act. It provide immunity only for those acts with are "within the scope of his employment." 
It was the Attorney General Eric Holder who determined those limits. (Presumably, a new Attorney General could potentially review that decision.)

If the Attorney General refuses to certify that the employee was acting within the scope of his employment, the employee can appeal that decision. It is hard to argue that authorizing torture as defined by past treaties to which the US has ratified, is part of the job description of the president or any of this staff.  

In the 2004, in Sosa v. Alvarez-Machain, the Supreme Court ruled on the extent of Westfall type of immunity in relation to the "law of nations."  It is a vexing question. 

At issue was the question whether federal employees could be held accountable for acts committed in foreign countries. How does that apply here, you might ask?
The Court established a flexible framework for determining which torts constitute causes of action, what can be brought to court.  Any legal action i.e. prosecution) must be based on universally-recognized laws of nations.  
Therefore, according to what the Supreme Court has ruled in the past, despite the particular laws in the US,  immunity can be challenged based on what is considered acceptable by the majority of nations.  

The Court held that courts could recognize new enforceable international norms that are "accepted by the civilized world" and as long as these international laws were defined with specificity, not in vague terms. 

Back in 1789, the Courts famously ruled Alien Tort Claims Act (ATS) that "for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind." 

While there have been arguments about the specific limits, overall the Courts have found torture; that is, cruel, inhuman, or degrading treatment; or genocide; war crimes; crimes against humanity; summary execution; prolonged arbitrary detention; and forced disappearance to be actionable under the ATS.  

Whether this applies to the present discussion, I am not qualified to say. Lawyers and courts have long debated the details. However what can be said is there isn't much argument that the civilized world has condemned torture as a human rights. And indeed, the US has been a signatory to the UN Torture Convention since 1994 along with the majority of the world.
According to this international convention,
the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
The idea of immunity is completely rejected in Article 2.
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 of torture.
The SCOTUS decision in Sosa v. Alvarez-Machain therefore neatly resolves the frustrating hypocrisy of two standards of immunity. After all, there can't be two opposing views on this subject. Either America stands against torturers  and gives immunity to them, or it does not and it prosecutes them.

And if America is  ambivalent about which side it is on, then ultimately that view makes us no better than the vicious and cruel people we are supposed to be hunting down.

Suddenly, the case against Bush and Cheney takes on a new life despite the immunity of Westfall.  

Obama's Betrayal of Obama?
Actually this was the second time the DOJ under Obama had dismissed a case against high ranking Bush officials. The same reason was given in both cases. 

One gets the feeling -however logical the reasons for dismissal- that there was a lack of interest or enthusiasm in going into these uncharted waters. It was more expedient simply to find the suitable legal means of ignoring the problem.

This attitude from the Justice Department is especially irritating for a lot of people. Prohibitions against torture techniques like water boarding were, said Eric Holder the head of the DOJ, a matter of law” and it is not a 'policy choice.'
Very noble sentiments.
“The Department of Justice first and foremost represents the people of the United States — not any one president, not any one party.”
And yet when given the post, inexplicably and inexcusably, the DOJ officials balked. However, Holder's about-face, as bad as it is, is nothing compared to the sudden reversal by President Obama. 

As Senator, Obama was outspoken in his condemnation of torture. In 2005, it came out that Bush administration was secretly interpreting a treaty ban on “cruel, inhuman or degrading treatment” as not applying to C.I.A. and military prisons overseas. In response, Senator John McCain proposed an amendment making it clear that the interpretation was not acceptable. It was called the Detainee Treatment Act of 2005 (DTA). 

In a speech before the Senate Illinois Senator Barack Obama spoke in favor of a proposed amendment The amendment prohibited the cruel, inhuman or degrading treatment or punishment of persons under custody of the US government.
I am and always have been opposed to the use of torture. I believe that our brave men and women serving in the Armed Forces share this view. Now more than ever we must make it absolutely clear to our allies and to our enemies that the United States does not and will not condone this practice.
This amendment does that in no uncertain terms. It acknowledges and confirms existing obligation under our own Constitution and the United Nations Conventions against Torture.
Obama went on to say 
The United States should set an example for the international community. Senator McCain's amendment re-affirms a fundamental value of the American people- that torture is morally reprehensible and has no place in this world. I am, he said, proud to support this affirmation.
Despite that, a New York Times article. (published before the release of the report) revealed that anonymous sources said Obama and his inner circle were at the time "considering reaffirming the Bush administration’s position that the treaty imposes no legal obligation on the United States to bar cruelty outside its borders."
State department wanted these Bush re-interpretations dropped but there was strong opposition:
But military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad.
The fact that Obama- who once had such a strong position against torture- should even be debating the matter is worrying. In the end, principle triumphed over pragmatic policy. 

The White House issued a statement on November 12 of this year making its rejection of Bush's policy official. 
There are no gaps, either in the legal prohibitions against these acts by U.S. personnel, or in the United States’ commitment to the values enshrined in the Convention, and the United States pledges to continue working with our partners in the international community toward the achievement of the Convention’s ultimate objective: a world without torture.
A victory? Well.. yes, but..

A world without torture doesn't mean a world that simply forbids it from taking place. That will, unfortunately, never happen. There will always be- as we have witnessed- people who will defy the law and give their excuses after the fact.

The Geneva Conventions also recognizes this reality and for Obama, that presents a new problem.

The Battles of Executive Orders
Two days after being sworn into office, Obama issued an executive order 13491, he order in effect, revoked an earlier 2007 executive order by Bush which exempted the US government from certain Geneva Convention rules. Bush's executive order "interpreted" the treaty stated that unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. 

In Executive Order 13440Bush declared that that while detainees were not given the full status of prisoner of war, they were being treated humanely.
The interrogation practices were, according to the order, determined by the Director of the Central Intelligence Agency, based upon professional advice, to be safe for use with each detainee with whom they are used.
I hereby determine that a program of detention and interrogation ...fully complies with the obligations of the United States under Common Article 3 [of the Geneva Convention.]
Whether this was applicable only after 2007 or meant to represent the entirety of the treatment is not specified. Presumably not. 
As soon as such become public knowledge (thanks to whistle blowers and Wikileaks),  Bush policy on torture too hot to continue. The worst of the abuses had probably already happened. 

In any case, Obama's executive order reinstated and re-affirmed US commitment to Geneva convention rules. This directive was aimed at ensuring that all captives or detainee be treated in compliance with US domestic law, and its international agreements. One of the goals of the Obama's executive order aimed at ensuring   "compliance with the treaty obligations of the United States."

Obama's executive order opened up a can of worms. One of the obligations found in the Geneva convention states that all nations that are a party to the Geneva Convention treaty "enact and enforce legislation penalizing any of these [war] crimes."
Defined by Article 3 in the Convention, a war crime is the willful killing, torture or inhumane treatment of person held in custody - whether they are prisoners of war or enemy combatants. Other violations include:
  • willfully causing great suffering or serious injury to body or health
  • and willfully depriving a protected person of the right to a fair trial if accused of a war crime.
Such violations are not easy to dismiss.What to do when they have occurred is certainly something decided by presidents alone. Not if they have vowed to comply with the treaty.
That's not all. 
It is not possible to ignore the past and move forward without violating the Convention still further.

Parties to the Geneva Convention are "also obligated to search for persons alleged to commit these crimes, or persons having ordered them to be committed, and to bring them to trial regardless of their nationality and regardless of the place where the crimes took place.

That suggests two points to consider. As president, Obama cannot simply decide not to obey the Geneva Convention rules without also breaking his own executive order. Secondly, the entire question about whether the crimes took place within US borders is no longer applicable.

President Obama is now faced with a decision that he might wish to ignore.  His choices are clear: Comply with the treaty obligations and hold the past administration accountable or to be on the wrong side of history and in opposition to the civilized world.