JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that former Secretary of State Condoleezza Rice's latest statements on waterboarding indicate her complicity in unlawful interrogation, and that she and others in the "inner circle" of the Bush administration should be held legally accountable under the international treaties to which the US is a party....
Whether or not she advised that CIA could proceed with waterboarding or conveyed the authorization of the President to proceed with waterboarding and whether or not she signed the 2002 presidential finding, she has admitted that she intended to engage in conduct that would knowingly facilitate the use of waterboarding if OLC would also approve. As such, she is reasonably accused of complicity or aiding and abetting waterboarding whether or not she actually approved its use on another person on July 17th or later in 2002 and 2003 during several meetings addressing waterboarding and other tactics.
Criminal complicity can occur when a person is aware that his or her conduct can or will assist or facilitate conduct of a direct perpetrator. The person who aids and abets need not know that the conduct of the direct perpetrator is criminal or whether it does in fact constitute "torture" or some other widely-known and unavoidably criminal conduct such as cruel or inhumane treatment. As international criminal tribunals have affirmed, it suffices that an accused was aware of the relevant factual circumstances and that even a direct perpetrator "need not have known that his or her act ... amounted to an 'inhumane act' either in the legal or moral sense." Furthermore, all acts of assistance, by words or acts and omissions, that lend encouragement or support will also suffice if the accused knows or is aware that such conduct can or will facilitate the use of what happens to be an illegal tactic.
In context, her recent statement is unavoidably an admission of what the tribunals recognize as the "factual quality" of the crime in this case, the factual quality of aiding and abetting waterboarding. She has admitted that she engaged in conduct (the conveyance of a policy authorization of President Bush to engage in waterboarding) that, at the time, she must clearly have known or been aware can or will facilitate use of waterboarding. It does not matter whether she knew the law, that waterboarding is criminally proscribed, or that waterboarding is torture or cruel and inhumane.
Perhaps what Rice had in mind while fingering Bush and pointing to his authorization of waterboarding was a defense of superior orders. She remarked: "The President [who clearly could not be mistaken for a lawyer] instructed us that nothing we would do would be outside our obligations, legal obligations, under the Convention Against Torture" and, she claims, "if it was authorized by the President, it did not violate our obligations under the Convention." Quite clearly, however, the President cannot lawfully authorize a violation of a treaty and, in view of an express and unavoidable constitutional mandate under Article II, Section 3, the President must faithfully execute the laws. Under international and U.S. domestic law, there would be no defense if her claim is merely that anything the President authorizes is lawful. That didn't work for German accused at Nuremberg and it won't work here or in Spain.
Superior orders? The test is whether the order or authorization approved conduct that is manifestly or clearly conduct that is unlawful, such as torture or cruel or inhumane treatment. Is waterboarding manifestly torture or cruel or inhumane? That's the real issue and, as documented in The Absolute Prohibition of Torture, since several federal and state court cases and U.S. Executive Country Reports on Human Rights Practices of other countries had already expressly recognized that waterboarding, the water cure and other forms of induced suffocation are a method of "torture," it is obvious that waterboarding is manifestly and clearly unlawful. Importantly also, they are clearly cruel and clearly inhumane. Indeed, what person would not recognize the inhumane effects of waterboarding that was not part of voluntary training that will end, but part of a planned process of coercive interrogation involving pain and an inducement of suffocation that, as the second Bybee memo expressly warns, creates "incipient panic" and an imminent threat of death?
There is also possible criminal responsibility to explore with respect to her conduct during several meetings of the National Security Council's Principals Committee in the White House from 2002 to 2003, during which waterboarding and other unlawful tactics were addressed and expressly and/or tacitly approved or abetted meetings at which it has been reported Rice, Cheney, Addington, Rumsfeld, Tenet, Ashcroft, John Yoo and others were often in attendance. The meetings raise issues not merely of accomplice liability, but also of liability of co-conspirators and what international criminal tribunals recognize as participation in a joint criminal enterprise. The meetings were clearly a major part of what is now the Bush legacy of serial and cascading criminality.
Remarkably, it is John Yoo who has been more honest than any other person who attended such meetings when admitting in a book that there was a "common, unifying" plan devised by an "inner circle" to deny Geneva law protections and engage in secret detention and "coercive" interrogation despite recognition that Geneva law "bars 'any form of coercion.'"
Under the Convention Against Torture, the Obama Administration has an obligation, "if it does not extradite..., [to] submit the case to its competent authorities for the purpose of prosecution." Under the Geneva Civilian Convention, with respect to torture and inhumane treatment as well as unlawful transfer of non-POWs out of occupied territory the Administration has a similar duty in the alternative to "bring such persons before its own courts" or extradite to another state. These treaty-based duties are absolute. They also reflect customary international law aut dedere aut judicare (hand over or adjudicate) with respect to any violation of customary international criminal law, and such violations implicate universal jurisdiction or the competence of any state to prosecute and provide civil sanctions. More importantly for this nation at this critical moment in our history, we must insist that no one is above the law and that the Executive must faithfully execute the laws.
Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General's School. His book, Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror, was published by Cambridge University Press.