JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that opinions of the US Department of Justice Office of Legal Counsel that are manifestly inconsistent with or violative of the laws of war provide no legal cover for any member of the executive branch seeking impunity for alleged war crimes and other international crimes committed by civilians during the Administration's unlawful program of secret detention and "coercive interrogation"...
In fact, as explained in my book Beyond the Law, for the last seven years no person of any nationality or status has been prosecuted under the War Crimes Act, alternative legislation for prosecution of all war crimes, the torture statute, the genocide statute, or the Military Extraterritorial Jurisdiction Act.
Refusal to faithfully execute the law was previously obvious. Now it is official.
What is Mukasey's putative justification for inaction? With respect to admitted CIA waterboarding, he told the House Judiciary Committee, "[w]hatever was done as part of a CIA program at the time ... was the subject of a Department of Justice opinion ... and was found to be permissible." What is Mukasey's malignant misconception? His error embraces the autocratic notion that all within the executive branch are always bound by opinions of the DOJ's Office of Legal Counsel, even if they facially authorize or abet international crime. In our democracy, however, even a unitary executive branch is not above the law.
For example, a self-serving OLC opinion that facilitates the Administration's "common, unifying" plan to abandon the strictures of the Geneva Conventions and to engage in "coercive interrogation" cannot obviate the reach of well-known absolute proscriptions of cruel and inhumane treatment that are part of constitutionally-based customary and treaty-based international law that is supreme law of the United States that all persons within the executive branch are bound under the Constitution to faithfully execute. OLC opinions simply cannot authorize conduct that, on its face, is criminal under international law. A consistent prohibition of "all cruelty" against captured persons has been obvious and well-known under the laws of war at least since codification of the 1863 Lieber Code during the U.S. Civil War.
Attorney General Mukasey's misperceived claim concerning an alleged cover provided by OLC opinions is tantamount to a claim that within the executive branch orders or authorizations are a complete defense a claim that is neither correct under international law nor acceptable in a democracy under the rule of law. For centuries, our courts have recognized that such claims are false. A few examples are worth highlighting. In 1804, in Little v. Barreme (The Flying Fish), 6 U.S. (2 Cranch) 170, Chief Justice Marshall ruled that "orders given by the executive" and executive "instructions cannot change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass" against the law, the Chief Justice adding: "[i]f his instructions afford him no protection, then the law must take its course." Two years later, in United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806), Justice Paterson affirmed that the President is bound by the law and "cannot dispense with its execution, and still less can he authorize a person to do what the law forbids." If the President had approved a violation, Paterson stressed, "it would not justify the defendant in a court of law, nor discharge him from the binding force" of law.
In 1852, Mitchell v. Harmony, 54 U.S. (13 How.) 115, 137, affirmed that superior orders are not a defense: "[an] order to do an illegal act ... can afford no justification." Later, Justice Miller, in Elger's Adm'r v. Lovell, 8 F. Cas. 449, 454 (C.C.D. Mo. 1865), recognized that "no proclamation of the president can change or modify" the reach of the "law of nations." Also at that time, Attorney General Speed, in 11 Op. Att'y Gen. 297, 299-300 (1865), recognized that the laws of war and more general laws of nations "are of binding force upon the departments and citizens of the Government" and neither Congress nor the Executive can "abrogate them or authorize their infraction." Still later, a district court affirmed, in Ex parte Orozco, 201 F. 106, 111-12 (W.D. Tex. 1912), that conduct resting "merely upon an order directed by the President" was illegal and cannot "be sustained in a court of justice." Certainly a mere OLC opinion can have no more authority than a presidential authorization, directive, or order.
And what have U.S. tribunals ruled concerning the putative reach of foreign official directives? In United States v. Von Leeb, et al., during the Subsequent Nuremberg Proceedings, the U.S. military commission correctly ruled that international law "must be superior to and where it conflicts with, takes precedence over National Law or directives issued by any national governmental authority. The directive to violate International Criminal ... Law is therefore void and can afford no protection to one who violates such law in reliance on such a directive." Indeed, more generally, the International Military Tribunal at Nuremberg applied an ultra vires rationale to recognize that "[h]e who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law."
In contrast to Mukasey's misconception concerning the alleged cover provided by OLC opinions, the Supreme Court has also recognized in United States v. Lee, 106 U.S. 196, 220 (1882), that "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."
When the courts are involved, it is also important to remember that numerous cases recognize judicial power to second-guess the legal propriety of executive opinions, authorizations, orders, and decisions taken in time of war with respect to the seizure of persons and property and the status and treatment of persons. See, e.g., Paust, Judicial Power to Determine the Status and Rights of Persons Detained Without Trial, 44 HARV. INT'L L.J. 503, 520-24 (2003). As documented in Beyond the Law at 21-22, 169-72, 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. Dooley v. United States, 182 U.S. 222, 231 (1901), is illustrative: "[military powers are] regulated and limited ... directly by the laws of war."
As a matter of common sense, it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey, just following orders is no defense!
Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer, and author of Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror (Cambridge University Press 2007), available thru http://www.cambridge.org/9780521884266.