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.

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