Prosecuting Donald Rumsfeld:
A New Framework for Approaching the Relationship Between International and Domestic Law
Joseph M. Panza
“For the Obama administration, the door to the do-nothing option is now closed. That is why today may come to be seen as the turning point.”
The preceding quote was taken from
an article written on January 4, 2009, and was in response to the Convening
Authority of the military commissions in
Although the details of this abuse
are becoming graphically clear, the legal implications remain in an
intellectual fog. As the opening quote
demonstrates, writers Dahlia Lithwick and Phillip Sands appear to argue that
international law requires the President and his administration to take action. Eric Posner states that the President has no
legal obligation to prosecute, but, has “no reason to “rule out” ordering
criminal investigations and prosecutions of Bush administration officials”
either. Policy scholar, Mark Kleiman, holds that the Attorney
General would violate his oath of office by failing to enforce prosecutions. Dr. Hillary Bok, Professor of Bioethics and
Moral & Political Theory at
Of course in any argument there are
opposing viewpoints, but the issue of torture regularly drifts into moral
waters, even when the argument is promoted as taking a legal vantage
point. The term ‘torture’, like
‘genocide’, carries a strong implicit moral judgment, but this drift is also
being caused by the confusing status of individuals under international law. In part, the arguments about the legality of
This paper attempts to unify these
two approaches by recognizing that treaty law primarily creates binding
obligations for states, while domestic law determines how the treaty is
translated into individual obligations. Accordingly, the initial issue discussed is
THE UNITED STATES WILL VIOLATE INTERNATIONAL LAW
UNLESS DONALD RUMSFELD IS PROSECUTED FOR THE ABUSES THAT OCCURRED AT
Determining the legal commitments of
The Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment legally prohibits the
The clearest and strongest source of
international law prohibiting the use of torture is CAT. The treaty was opened for signature,
ratification, and accession on December 10, 1984, and entered into force on
June 26, 1987. The
CAT was built on the foundation laid by prior sources of international law prohibiting torture. First, it was created in consideration of the Charter of the United Nations, in particular Article 55, “to promote universal respect for, and observance of, human rights and fundamental freedoms.” Second, it references Article 5 of the Universal Declaration of Human Rights, and Article 7 of the International Covenant on Civil and Political Rights, both of which provide that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Finally, CAT was created in recognition of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted by the General Assembly for its titled purpose.
The treaty’s strength begins with its broad definition of torture. As stated in Article 1, within CAT 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.
This is an expansive definition, covering intentionally inflicted abuses ranging from severe mental suffering to severe physical pain. Additionally, CAT’s definition of torture does not require that a public official committed the abuses. The acquiescence of a public official is enough for the abuses to be prohibited by the treaty.
CAT’s second article ensures that states ratifying the treaty (“State Parties”) zealously prevent these abuses, without exception. First, Article 2 requires that State Parties take all possible official measures to prevent torture. Second, a state must take these measures “in any territory under its jurisdiction.” Third, a state cannot use the threat of war or emergency as excuses for breaching the treaty. Finally, Article 2, section 3 states that “an order from a superior officer or a public authority may not be invoked as a justification of torture.” The aggregate effect of these clauses ensures that State Parties cannot justify the use of torture under any circumstances.
CAT also prevents State Parties from using geographical boundaries to justify torture, by declaring a broad scope for jurisdiction under the treaty. Under certain circumstances, Article 5 requires that each state party “shall take such measures as may be necessary to establish jurisdiction” over those committing torture. These circumstances include: 1) when the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; 2) when the alleged offender is a nation of that State; or 3) when the victim is a national of that State if that State considers it appropriate.
Importantly, the power of CAT
extends beyond its prevention and jurisdictional mechanisms, and obligates
States to take legislative action.
Article 4 of CAT requires State Parties to make torture an offense under
their domestic criminal law. In addition to the act of torture itself, the
treaty requires that domestic laws criminalize any attempt to commit torture,
as well as acts “by any person which constitutes complicity or participation in
torture.” All of these offenses must be
made punishable by “appropriate penalties which take into account their grave
nature.” Thus, CAT provides a robust source of
international law that binds the
Donald Rumsfeld authorized abuses at
are reasonable grounds to believe that Donald Rumsfeld authorized abuses
amounting to torture occurring at
the Senate Armed Services Committee released a report in December of 2008
titled “Inquiry into the Treatment of Detainees in U.S. Custody.” The report investigated the abuses occurring
this report presents evidence that Donald Rumsfeld authorized the abuses at
if Susan Crawford’s had not provided this acknowledgment, the abuses that
That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
that occurred at
described in the foregoing section, it is reasonable to suspect that Donald
Rumsfeld authorized torture. Based on
this conclusion, it is likely that the
current issue, however, is whether the
II. THE PRESIDENT HAS NO PERSONAL LEGAL OBLIGATION TO ENSURE THAT DONALD RUMSFELD IS PROSECUTED.
it is important to note that the President has the power to prevent the
The issue is complicated because treaties are binding legal agreements between states, not individuals. Thus, there is an inherent question of whether a state’s legal obligations translate into personal legal obligations for certain individuals within the state. This is a complex question, because it requires simultaneously examining two planes of legal entities: 1) the high-level plane that consists of international legal relationships between states; and, 2) the low-level plane that involves the domestic legal relationships between individuals and the state.
An analogous set of circumstances can be found within the actions of another type of abstract entity – namely corporations. A corporation, like a state, creates legally binding agreements on a high-level plane containing similar entities. Similarly, both corporations and states simultaneously have low-level legal relationships between themselves and certain individuals. For example, a corporation has rules and regulations that apply to its active shareholders, and a state has domestic laws that create legal obligations for its citizens.
Because of the loosely analogous circumstances of corporate entities and state entities, corporate entities provide a good starting point for considering the gap between the high-level legal planes and low-level legal planes. For a hypothetical example, imagine a contract between Corporation A and Corporation B. Also imagine that Corporation A has an employee named Officer X. To determine whether Officer X has any obligations under the new contract, two different approaches need to be considered.
First, does the agreement create an additional obligation for Officer X to the corporation he works for, Corporation A? Imagine that the agreement requires that salespeople at Corporation A to mention Corporation B’s products to every customer. If Officer X oversees the operations of the sales department, then Officer X may have new obligations to Corporation A under the contract.
Any obligation Officer X may have to Corporation A under this approach depends entirely on the internal rules and bylaws of Corporation A. Maybe Corporation A has a bylaw that punishes officers who cause the corporation to breach a contract. Under this hypothetical, Officer X has an obligation to Corporation A to ensure that the contract is fulfilled.
Alternatively, imagine that Corporation A does not have a bylaw requiring Officer X to fulfill every contract verbatim. Instead, a different officer at Corporation A reviews every contract and then determines how individuals within the corporation act in regards to the contract. Following this practice, Corporation A creates a new rule to apply the contract, which requires employees to mention Corporation B’s products only when they cold-call customers. In this situation, Officer X is only obligated to ensure that this relaxed intra-corporate rule is followed. Because the contract’s requirement (mention the products to all customers) are different than the internal rule of the corporation (mention the product only to customers who are cold-called), it is entirely possible for Officer X to fulfill his personal obligation to Corporation A, and still cause Corporation A to breach its contract with Corporation B.
As demonstrated, under this approach it is only necessary to consider the low-level plane that consists of Corporation A’s rules and regulations. Following the analogy between corporations and states, it is possible to use a similar approach in determining whether an individual has any legal obligations under a treaty. For a new hypothetical, consider a treaty between two states: State A and State B. The treaty is directly analogous to the contract in the first hypothetical; both reside on a high-level plane. The question in this hypothetical is whether the treaty creates a legal obligation for Minister X, a high level official within State A. As with the first hypothetical, this approach requires analyzing the low-level plane. In the first hypothetical this plane included the bylaws of Corporation A. In this hypothetical, the low-level plane consists of State A’s domestic laws. In particular, this entails looking at State A’s constitution. Like the contract, the constitution may cause the treaty to be directly applicable to Minister X. Alternatively, it may require State A to take further actions to translate portions of the treaty into domestic law. In any case, the key to this approach is examining the intra-state domestic laws of State A to determine how the state applies treaties domestically.
Under the second approach, the question is whether the agreement creates an external obligation for Officer X. To clarify, if the action or inaction of Officer X causes Corporation A to breach the contract, can Officer X be held personally liable to an entity other than Corporation A? This is more complicated than the question in the first approach, because officers are ordinarily shielded from liability in these situations. There are certain circumstances, however, where the corporate veil is pierced and Officer X can be liable for causing Corporation A to breach its contract. Accordingly, this approach requires examining inter-corporate regulations to determine whether the corporate veil is pierced under these circumstances.
Understanding how this approach translates into the international law context is complicated as well. The analogous hypothetical question is: does Minister X have a personal legal obligation under the treaty, or is Minister X shielded by state sovereignty? Similar to the corporate hypothetical, it is necessary to look at the high-level plane to determine when this veil can be pierced. Thus, under this approach, Minister X can be liable to entities other than State A if international law allows the veil of state sovereignty to be pierced.
to determine whether the President has a legal obligation under CAT, it is
necessary to apply two distinct approaches.
The first approach requires examining federal law to determine whether
CAT creates a domestic legal obligation for the President. The second approach requires examining
international law to determine whether the veil of state sovereignty can be
pierced under these circumstances. If it
can be pierced, the President has a personal legal obligation outside of the
domestic law of the
A. Under domestic law, the President is not legally obligated to initiate the prosecution of Donald Rumsfeld.
State’s follow one of two dissonant theories in applying international laws domestically. The first is the monist view. Under this theory, domestic and international law operate within the same legal sphere and combine to form one unified body of law.  Under the monist view, international obligations automatically become domestically enforceable, since international law is inherently a part of domestic law. International law can be thought of as a field of domestic law, similar to contract or tax law. Much like a constitution, international law is usually superior under this view if there is a conflict with a domestic counterpart.
The second theory is the dualist view. Under this theory, domestic law and international law operate in two separate and distinct legal spheres. International law can be seen as operating in a higher level of abstraction, existing only to denote legal commitments between states. Domestic law, in contrast, dictates the legal obligations between citizens of a state, or between the citizen and the state itself.
The main reason for the controversy relating
to treaties is that the Constitution explicitly mentions their domestic power. The Supremacy Clause states that “all Treaties made, or which shall be made,
under the Authority of the
the domestic legal plane of the
The Supreme Court has further narrowed the type of treaties that fall within the Supremacy Clause by bisecting Article II treaties into two sub-categories: self-executing treaties and non-self-executing treaties. The split was first discussed by the Supreme Court in Foster & Elam v. Neilson, which held that not all treaties automatically become domestic law. The two categories were again mentioned in the Head Money Cases, which held that treaties are generally agreements between nations, and thus outside of the scope of domestic courts, but acknowledged that treaties may contain provisions which are domestically enforceable. Four years later, in Whitney v. Robertson, the Court finally used the term “self-executing,” and defined the two separate categories of treaties: treaties that are self-executing carry the same force as domestic legislation, whereas non-self-executing treaties can only be enforced domestically though subsequent domestic legislation. Any remaining confusion was recently resolved when the Court firmly reiterated the definition of non-self-executing treaties in the case Medellin v. Texas.
the legislature must take an extra step to incorporate the legal rights and
obligations of non-self-executing treaties into binding domestic law. On the domestic legal plane, a
non-self-executing treaty can be viewed as the material source of law. A material source of law provides information
about the substance of a legal norm, without providing a pathway for applying
this norm as law. This pathway is called
the formal sources of law, and it gives the norm validity or binding force as
law. On the domestic legal plane, a
non-self-executing treaty’s formal source of law is federal law enacted by the
legislature. Without this formal source
of law, the norm described within the material source (the treaty) is not
domestically binding within the
a treaty is self-executing or non-self-executing is ultimately a question for
federal courts. To make this
determination, courts look primarily at the intent of the President and the
Senate when they signed and ratified the treaty. In
CAT was signed by the President April 18, 1988, and then ratified by the Senate on October 21, 1994. Through this ratification, CAT was subject to the advice and consent of the Senate, and therefore it may be a Treaty within the Supremacy Clause. The Supremacy Clause’s inclusion of CAT still depends, however, on whether CAT is self-executing or non-self-executing. To make this determination, it is necessary to determine the intentions of the President and Senate when they signed and ratified CAT.
the Senate ratified CAT, it included a declaration regarding the treaty’s
execution status. In this declaration,
the Senate stated that “the
the relevant provisions of CAT are non-self-executing, the next step is to consider
whether the legislative branch incorporated any of these provisions into
domestic law. Congress did in fact
incorporate sections of CAT into
There is a substantive canon of statutory interpretation that has been applied in similar circumstances. The Charming Betsy canon holds that domestic law should be interpreted so that it does not conflict with international law, unless congress clearly and unequivocally intended to abrogate the prior international law. A cursory application of this principle might suggest that the domestic laws regarding torture should be interpreted as requiring prosecutions, but this would be a misapplication of the canon.
example of the canon being applied is U.S.
v. Palestine Liberation Organization. The case revolved around a federal law that
prohibited the Palestine Liberation Organization from establishing or
maintaining an “office, headquarters, premises, or other facilities or
establishments within the jurisdiction of the
contrast to U.S. v. Palestine Liberation
Organization, there is no conflict between 18 U.S.C. § 2340A and CAT that
requires reconciliation. The
conclusion, even if there is probable cause to believe that Donald Rumsfeld
conspired to torture at
B. Under international law, the President is not legally obligated to initiate the prosecution of Donald Rumsfeld.
the President has no domestic legal obligation to prosecute Donald Rumsfeld,
the next question is whether he has a personal legal obligation under
international law. Returning to the
corporate analogy, this is similar to the idea of piercing the corporate veil. Piercing the corporate veil refers to the
limited circumstances in which the legal fiction of a “corporate entity” is
pierced to hold active shareholders, such as directors or officers, personally liable. Thus,
the law on piercing the corporate veil provides a good starting point for
considering whether state sovereignty can similarly be pierced, and the
President obligated by the
Just like the disputes regarding state sovereignty, scholars disagree about whether the ability to pierce the corporate veil should be weakened or reinforced. Currently, the corporate veil can only be pierced under very limited circumstances, and there is some confusion as to precise contours of these situations. The most relevant and well-defined situations, however, are when an individual within a corporation commits a tort, or the corporation is a fraudulent structure.
The tort exception to a corporation’s liability shield holds that an individual officer or director is liable for any torts personally committed, even if they are committed within the course of working for the corporation. This is roughly analogous to the concept of jus cogens within the framework of international law. Because jus cogens violations are a crime against all humanity, the veil of state sovereignty may be pierced in order to prosecute these crimes. A prima facie case of criminal liability can be established even if the crimes were committed by a head of state, acting as a head of state.
Even though torture is arguably a violation of jus cogens, however, this would only cause Donald Rumsfeld to be personally liable on the international plane. Failure to prosecute torture, however, is not the same as complicity in torture. The President’s personal liability is more analogous to an officer’s liability for causing a corporation to breach a contract. Both are concerned with whether an individual in command of a high level entity is personally liable if that entity violates a legal obligation to another high level entity.
In breach of contract cases, the corporate veil can still be pierced to hold a director or officer liable. In these cases, however, the “burden is even higher than the normally severe burden imposed upon a plaintiff seeking to pierce the corporate veil.” One way this burden can be met is by demonstrating that the corporate entity itself is defective. This can be shown when the requirements of a functioning corporation have not been met, such as having an adequate capitalization, keeping proper books, and maintaining an independent board. Another way of a corporate entity can be proven defective is by establishing alter ego liability. Alter ego liability occurs when an individual or affiliated entity controls a corporation so completely that the corporate entity is a defective shell. An alter ego corporation exists in name only and is essentially an extension of the entity or individual controlling it.
In the context of international law, defective corporations are loosely analogous to states that are failed or ruled by a despot. A failed state lacks the fundamental characteristics of a functioning government and represents a complete collapse of law and order. In a state ruled by despotism, an entity or individual controls the state with absolute political power. Like an alter ego corporation, the state exists in name only and is essentially an extension of the despot. In both of these cases, the entity is itself defective, and it is logical to pierce the veil of state sovereignty to establish a prima facie case of individual liability for international crimes. Although the world is currently grappling with the details and scope of this theory, international criminal liability has been pursued much more intensely when the crimes occurred in a defective state.
Regardless of international law’s view of defective
states, clearly the
Although the logic behind this finding is based on
corporate law, the conclusion is fundamentally substantiated by both domestic
and international law.
The analogy to corporate law merely
provides a helpful, established framework for understanding the chaotic status
of individuals within the lattice of domestic and international law. As the framework illustrates, whether a
treaty legally obligates an individual depends on: 1) whether the treaty
translates into a domestic legal obligation; and, 2) whether international law
can pierce state sovereignty to hold the individual criminally liable. In this case, neither condition is
established. Therefore, the President may refuse to take
action, even if this inaction causes the
This conclusion does not mean, however, that the treaty
violation would be meaningless. A treaty
violation may cause far-reaching domestic and international repercussions, and
the President will partially bear this burden regardless of his personal legal
commitments. Thus, a question remains
that may be paramount to the issue of individual legal obligation: is the
President willing to allow the
 Dahlia Lithwick and Phillipe Sands, The Turning Point, Slate, Jan. 14, 2009, http://www.slate.com/id/2208688/.
 Jay S. Bybee, Assistant Att’y Gen., Off. of Legal Counsel, Memorandum for John Rizzo Acting General Counsel for the Central Intelligence Agency: Interrogation of al Qaeda Operative (Aug. 1, 2002), http://126.96.36.199/pdfs/safefree/olc_08012002_bybee.pdf; Steven G. Bradbury, Principal Deputy Assistant Att’y Gen., Off. of Legal Counsel, Memorandum for John A. Rizzo Senior Deputy General Counsel, Central Intelligence Agency: Re: Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee (May 10, 2005), http://188.8.131.52/pdfs/safefree/olc_05102005_bradbury46pg.pdf; Steven G. Bradbury, Principal Deputy Assistant Att’y Gen., Off. of Legal Counsel, Memorandum for John A. Rizzo Senior Deputy General Counsel, Central Intelligence Agency: Re: Application of 18 U.S.C. §§ 2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees (May 10, 2005), http://184.108.40.206/pdfs/safefree/olc_05102005_bradbury_20pg.pdf; Steven G. Bradbury, Principal Deputy Assistant Att’y Gen., Off. of Legal Counsel, Memorandum for John A. Rizzo Senior Deputy General Counsel, Central Intelligence Agency: Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees (May 30, 2005), http://220.127.116.11/pdfs/safefree/olc_05302005_bradbury.pdf.
 Geoffe Loane, Head of Regional Delegation, International Committee of the Red Cross, ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody (Feb. 2007), available at http://www.nybooks.com/icrc-report.pdf.
 Bradbury, Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees (May 30, 2005), supra note 5, at 37.
 Lithwick and Sands, supra note 1.
 Posting of Eric Posner to The Volokh Conspiracy, http://volokh.com/posts/1232221565.shtml (Jan. 17, 2009, 14:46).
 Posting of Mark Kleiman to The Reality-Based Community, http://www.samefacts.com/archives/torture_/2009/01/whos_going_to_prosecute_the_torture_cases.php (January 25, 2009, 21:46) (noting that “a duly ratified treaty is the law of the land, and Holder is sworn to uphold the law. Could he get away with not prosecuting, in the face of enough evidence to convict? Sure. But he'd be violating his oath of office.”).
 Posting of Hilzoy at Obsidian Wings, http://obsidianwings.blogs.com/obsidian_wings/2009/01/some-facts-for-obama-to-consider.html (Jan. 15, 2009, 1:14) (“It seems to me that these facts imply that if Barack Obama, or his administration, believe that there are reasonable grounds to believe that members of the Bush administration have committed torture, then they are legally obligated to investigate; and that if that investigation shows that acts of torture were committed, to submit those cases for prosecution”).
 See infra Part II.
 See 18 Am. Jur. 2D Corporations § 47 (2008).
 See e.g., Statute of the International Court of Justice art. 38, April 18, 1946, available at http://www.unhcr.org/refworld/docid/3deb4b9c0.html (“The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations;”).
 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [hereinafter CAT], opened for signature Dec. 10, 1984, 1465 U.N.T.S. 85, S. Treaty Doc. No. 100-20, art. 7 (1988).
 See infra Part I.A-B.
 See infra Part I.A.
 See infra Part I.C.
 See CAT, supra note 14.
Torture may violate jus cogens as well, which presents
a stronger but vaguer source of international law. See Prosecutor v. Anto
Furundzija, Case No. IT-95-17/1-T, Trial Judgment, ¶ 144 (10 Dec.
1998) (noting that “the prohibition on
torture is a peremptory norm or jus cogens).
 CAT, supra note 14.
 The Secretary-General, Status of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Annex, delivered to the General Assembly, A/53/253 (Aug. 17, 1998).
 U.N. Charter art. 55.
 Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. Mtg., U.N. Doc. A/810 (Dec. 10, 1948); International Covenant on Civil and Political Rights art. 7, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171, S. Exec. Doc. E, 95-2 (1978).
 G.A. Res.47/133, A/RES/47/133 (Dec. 18, 1992).
 CAT, supra note 14, at art. 1.
 See id.
 See id. at art. 1 (noting the definition of torture); see id. at art. 5 (noting that territorial status of Guantanamo is irrelevant, because the treaty requires State Parties to take any necessary jurisdiction related measures “[w]hen the alleged offender is a national of that State.”).
 Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody, 110th Cong. (Dec. 11, 2008) (note that a fully unclassified copy of the report was released April 21, 2009).
 Woodward, supra note 40.
 Inquiry into the Treatment of Detainees, supra note 54.
 Id. at 13 (“The techniques used in SERE school, based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy’s SERE school, it included waterboarding.”).
Bob Woodward, Detainee Tortured, Says
 See Dep’t of Def., Fact Sheet - Military Commissions (2007) http://www.defenselink.mil/news/Aug2007/OMC%20Fact%20Sheet%20Aug%2007.pdf (“The Convening Authority decides whether to refer any or all charges to trial . . . convenes the Military Commission and details Military Commission members.”); See also William Glaberson, War Crimes System is Still on Trial. N.Y. Times, Aug. 9, 2008 ("Susan J. Crawford, has broad power over the entire tribunal process, including naming the military officers eligible to hear the case. Her title, convening authority, has no civilian equivalent.").
 Woodward, supra note 40 ("We tortured Mohammed al-Qahtani . . . His treatment met the legal definition of torture . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge.”).
 Inquiry into the Treatment of Detainees, supra note 54 (noting that ““certain physical and psychological interrogation techniques” were taken from SERE training, which in turn were based on illegal torture methods used by Chinese soldiers to illicit confessions during the Korean War).
 CAT, supra note 14 at Declarations and Reservations, available at http://www.unhchr.ch/html/menu2/6/cat/treaties/convention-reserv.htm.
 Inquiry into the Treatment of Detainees, supra note 54, at 26; CAT, supra note 14 at Declarations and Reservations, available at http://www.unhchr.ch/html/menu2/6/cat/treaties/convention-reserv.htm.
 Senate Select Committee on Intelligence Hearing on U.S. Interrogation Policy and Executive Order 13440, 110th Cong. (2007) (Statement by Allen S. Keller, M.D. Associate Professor of Medicine, New York University School of Medicine Director, Bellevue/NYU Program for Survivors of Torture Member, Advisory Council, Physicians for Human Rights) (“Waterboarding or mock drowning, where a prisoner is bound to an inclined board and water is poured over their face, inducing a terrifying fear of drowning clearly can result in immediate and long-term health consequences. As the prisoner gags and chokes, the terror of imminent death is pervasive, with all of the physiologic and psychological responses expected, including an intense stress response, manifested by tachycardia, rapid heart beat and gasping for breath. There is a real risk of death from actually drowning or suffering a heart attack or damage to the lungs from inhalation of water. Long term effects include panic attacks, depression and PTSD. I remind you of the patient I described earlier who would panic and gasp for breath whenever it rained even years after his abuse.”).
Jamie Mayerfield, Playing by Our Own
Additional evidence detailing the abuses at
There is an argument that the President could have unilaterally terminated the
treaty, and thus any torture that may have occurred would not violate CAT if it had been authorized by the
president. This argument is based
primarily on Goldwater v. Carter, 444 U.S. 996 (1979), in which the Court
attempted to determine whether President Jimmy Carter could unilaterally
terminate the Sino-American Mutual Defense Treaty. Although the Court failed to arrive at a
decision and the suit was dismissed, the opinion suggested that it is within
the President’s powers to unilaterally terminate a treaty. The case only considered whether the
President had the domestic power to terminate a treaty through notice, where
the treaty included no provisions regarding termination or denunciation. In contrast, Article 31 of CAT itself states that
the treaty can only be denounced through written notification to the Secretary
General of the United Nations. The
President provided no notice of an intention to terminate the treaty, and
therefore, even if he had the power to terminate the treaty he did not exercise
it. Without this notification, there was
no denunciation, and thus no release from the binding effect of the treaty. For similar reasons, even if the President had
the domestic power to authorize torture through his War Powers, and he had used
this power, any torture that occurred would still be a breach of CAT. Again, the treaty continues to bind the
 CAT, supra note 14, at art. 2.
Rasul v. Bush, 542
Scott Horton, Obama v. the Justice
Department, The Daily Beast,
April 22, 2009, available at http://www.thedailybeast.com/blogs-and-stories/2009-04-22/obamas-about-face-on-prosecution/full/
(“International-law experts within the Justice Department recognize that
Nowak’s analysis is correct with respect to a criminal investigation, although
they do not appear to share his view that a prosecution is mandated. They take
the view that the Convention preserves the full prosecutorial discretion of a
domestic prosecutor, who would be able to collect the available evidence and
decide whether to prosecute on the basis of domestic law, including
prosecutorial guidelines and factors such as how compelling the evidence is,
the likely reaction of a jury, and the availability of affirmative
defenses—such as reliance on legal memoranda of the Justice Department. Still,
they agree that the failure to investigate the public reports of torture is impossible
to reconcile with the
Furthermore, it would run counter to the plain meaning
of the statute to refrain from prosecuting because of the political
implications of prosecuting a past cabinet member. Even if the scope of serious natured offenses
is narrowed to only include similar abuses there is precedent of prosecutions. Authorities have prosecuted and convicted
officials in the
 See Carroll Kilpatrick, Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit, Washington Post, Oct. 21, 1973, at A01 (reporting on the Saturday Night Massacre, in which President Nixon discharged Special Prosecutor Archibald Cox and forced the resignations of Attorney General Elliot L. Richardson and Deputy Attorney General William D. Ruckelshaus); see also Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 103-104 (Yale University Press 2008) (explaining that “when Attorney General Berrien resisted Jackson’s early efforts to subdue the Bank of the United States, Jackson bluntly told Berrien “You must find a law authorizing the act or I will appoint an Attorney General who will,” after which Berrien resigned and was replaced with Roger Taney.”); accord Jewels of the Princess of Orange, Op. Att’y Gen. (Jan. 7, 1832) (Attorney General Taney stating that “[u]pon the whole, I consider the district attorney as under the control and direction of the President, in the institution and prosecution of suits in the name and on behalf of the United States; and that it is within the legitimate power of the President to direct him to institute or to discontinue a pending suit, and to point out to him his duty, whenever the interest of the United States is directly or indirectly concerned.”).
Vienna Convention, supra note 54, at art.
2 (defining a treaty as "an international agreement concluded between
States in written form and governed by international law”);
The liability of individuals within a corporate structure is governed by state law, but this basic rule is generally accepted. See, e.g., Markus May, Helping Business Owners Avoid Personal Liability, 95 Ill. B.J. 310, 331 (2007) (“A corporation is a separate and distinct legal entity from its shareholders, officers, and directors and a limited liability company is separate from its members. The general rule is that such individuals are not liable for the entity's debts.”); see also, e.g., Bala Corporation v. McGlinn, 144 A. 823, 824 (Pa. 1929) (“[I]t is a general rule that one who deals with a corporation, knowing it to be such, cannot enforce an individual liability against the officers or agents who act for the corporation.”).
First Nat. City Bank v. Banco Para El Comercio Exterior De Cuba, 462
 Jeffrey L. Dunoff, Steven R. Ratner & David Wippman, International Law: Norms, Actors, Process 267 (2d ed. Aspen Publishers 2006).
Restatement (Third) of Foreign Relations
Law of the United States, pt. 1, ch. 2, introductory note (2008) (“International
law and the domestic law of the
The Paquete Habana, 175
A more pragmatic approach has been taken by English jurist Gerald Fitzmaurice (1901-1982) and French law professor Charles Rousseau (1902-). Their “coordination” theory views international and municipal law as operating independently in separate spheres. They observe that municipal law is generally supposed to conform with the norms of international law. However, if there is a conflict, they do note that municipal courts do not necessarily feel compelled to automatically abrogate their municipal laws for the international norm. Indeed, depending upon the importance of particular domestic interests, the municipal law may be maintained indefinitely as an exception to a contrary international law. Municipal law, they point out, may not always be able to conform to the norms set by international law, but resolution of this conflict is not always resolved by an automatic abrogation of the municipal law. Ray August, Public International Law 74 (Prentice Hall 1995).
Although coordinationism is a more appropriate label
for the treatment of international law within the
 Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599, 670 (2008) (“Since their first appearance, however, declarations of non-self-execution have been controversial . . . a number of scholars have argued that the declarations are invalid under international law or ineffective as a matter of domestic law.”).
 Const. art. VI, ¶ 2.
 Const. art. II.
 In addition to the inherent absurdities of interpreting the Supremacy Clause to literally include all treaties, there is strong historical argument against this interpretation. The nature of “all Treaties” is far different today than when the Constitution was written. When the Constitution was written, treaties were only used in exceptional circumstances and were relatively insignificant tools in international affairs. Forrest McDonald, The American President: An Intellectual History, 385 (University Press of Kansas 1994).
Accordingly, when considering the evolved nature of treaties, combined with Article II, Section 2, it is reasonable to infer that the founding fathers intended for the definition of treaties in the Supremacy Clause to be far less inclusive than the current international definition. Const. art. II, §2.
S. Comm. On Foreign Relations, 106th
Cong., Treaties and Other International Agreements: The Role of the United
 Const. art. II.
 See S. Comm. On Foreign Relations, supra note 76; but see, Bruce Ackerman and David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 801 (1995) (noting that NAFTA seemed to gain the full power of a treaty through a congressional-executive agreement).
Whitney v. Robertson, 124
Edye v. Robertson, 112
 128 S.Ct. 1346, 1362 (2008) (“ In Foster, after distinguishing between self-executing treaties (those “equivalent to an act of the legislature”) and non-self-executing treaties (those “the legislature must execute”), Chief Justice Marshall held that the 1819 treaty was non-self-executing.”); see also id. at 1356 n.2 (“The label “self-executing” has on occasion been used to convey different meanings. What we mean by “self-executing” is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a “non-self-executing” treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.”).
Ulf Linderfalk, On the Interpretation of
Treaties: The Modern International Law as Expressed in the 1969
 Restatement (Second) of Foreign Relations Law of the United States, sec. 154(1) (1965) (“Whether an international agreement of the United States is or is not self-executing is finally determined as a matter of interpretation by courts in the United States if the issue arises in litigation.”); United States v. Postal, 589 F.2d 862, (5th Cir. 1979) (“The question whether a treaty is self-executing is a matter of interpretation for the courts when the issue presents itself in litigation, [and] the courts attempt to discern the intent of the parties to the agreement so as to carry out their manifest purpose.”).
 The Secretary-General, supra note 20.
 Committee Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Initial Reports of States Parties Due in 1995, ¶56, CAT/C/28/Add.5 (Feb,. 9, 2000) (submitted by United States of America ) (noting that the distinction between self-executing and non-self-executing is “one of domestic law only; in either case, the treaty remains binding on the United States as a matter of international law.”).
 18 U.S.C. § 2340 (2007).
 Compare id. (“(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control; (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from— (A) the intentional infliction or threatened infliction of severe physical pain or suffering;(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality”), with CAT, supra note 14, at art. 1.
Murray v. Charming Betsy, 2
 Id.; accord Restatement (Third) of Foreign Relations Law of the United States, § 115(1)(a) (“An Act of Congress supersedes an earlier rule of international law or a provision of an international agreement as law of the United States if the purpose of the act to supersede the earlier rule or provision is clear and if the act and the earlier rule or provision cannot be fairly reconciled.”).
 695 F.Supp. 1456 (S.D.N.Y 1988).
 See Committee Against Torture, supra note 89, at ¶ 47.
 There is a superficial argument that the President has a particular domestic legal obligation because of his oath of office. See e.g. Posting of Michael Payne to Online Journal, http://onlinejournal.com/artman/publish/printer_4577.shtml (Apr. 10, 2009, 00:26) (“Obama cannot look the other way because, by his oath of office, he is bound to adhere to the part of the Constitution that states,”This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;” That means he must enforce the Constitution and the law of the land. President Obama, a constitutional lawyer and former professor, should clearly understand that this issue is not a choice for him, but that he must, unequivocally, address it.”).
As established above, however, the first sixteen
provisions of CAT are non-self-executing, and this not the supreme law of the
art. VI, ¶ 2. Therefore, the President
does not breach his oath of office to “preserve, protect and defend the
Constitution of the
 Note that the analogy is between establishing a prima facie case of 1) international criminal liability for individuals within a sovereign state; and, 2) personal civil liability for individuals within a corporation. The issue of criminal liability for individuals within a corporation raises different concerns.
 18 Am. Jur. 2D Corporations § 47 (2008); accord Christopher P. Hall and David B. Gordon, Enforcement of Foreign Judgments in the United States, 10 Int’l L. Practicum 57 (1997) (“Virtually every state in the U.S. recognizes the concept of piercing the corporate veil, pursuant to which a state or federal court will allow the successful litigant to pursue the assets of an individual who has dominated the defendant corporation to such a degree, or used the corporate form to conduct a fraud on its creditors, that the protection provided by the corporate form should be disregarded. The precise legal theory pursuant to which each state permits piercing of the corporate form to attack the assets of the individual owners differs from state to state.”).
 See, e.g., Stephen M. Bainbridge, Abolishing Veil Piercing, 26 J. Corp. L. 479 (2001); see also, Elizabeth E. Ruddick, The Continuing Constraint of Sovereignty: International Law, International Protection, and the Internally Displaced, 77 B.U. L. Rev. 429, 441 (1997) (discussing the arguments for and against weakening state sovereignty).
 See Restatement (Third) of Agency § 7.01 (2006) (“An agent is subject to liability to a third party harmed by the agent's tortious conduct. Unless an applicable statute provides otherwise, an actor remains subject to liability although the actor acts as an agent or an employee, with actual or apparent authority, or within the scope of employment.”).
that it may not be accurate to describe personal tort liability as “piercing
the corporate veil.” See id. at cmt. d. (“If an
organizational officer participates in wrongful conduct, the officer is subject
to liability as discussed above. In order to reach that result, it is not
necessary to “pierce the corporate veil.”)
There is some confusion on this classification, however, as the
restatement also cites to cases that describes this form of personal tort
liability in regards to the “corporate veil.”
See id. at n.d (discussing the
 Weber v. U.S. Sterling Securities, 924 A.2d 816, 825 (Conn. 2007) (“The default common-law rule is that corporate officials may be held individually liable for their tortious conduct, even if undertaken while acting in their official capacity.... [V]arious courts of [the state of Delaware] have recognized that executives, directors and officers of an entity can be held individually liable for the fraudulent or tortious acts which they, in their official capacities, commit, ratify or approve, despite the fact that they may have acted as an agent for or performed for the benefit of that entity at the time the fraudulent or tortious act was committed, ratified or approved.” (quoting St. James Recreation, L.L.C. v. Rieger Opportunity Partners, L.L.C., No. 19346, 2003 WL 22659875, *6-8 (November 5, 2003))).
 See id. (Finding that Pinochet was not entitled to immunity for international crimes committed while he was a head of state. In denying immunity, the court noted that immunity could still be extended to ordinary crimes, such has murder. Only jus cogens violations served to pierce the veil of state sovereignty in this case.); accord Press Release, International Criminal Court, ICC issues a warrant of arrest for Omar Al Bashir, President of Sudan, ICC-CPI-20090304-PR394 (April 3, 2009) http://www.unhcr.org/refworld/country,,ICJ,,COD,,3c6cd39b4,0.html (noting that the International Criminal Court issued an arrest warrant for the President Omar Al Bashir of Sudan for crimes against humanity and war crimes, even though he is a sitting head of state and Sudan has not ratified the Rome Statute); but see Case Concerning The Arrest Warrant 11 April 2000 (Dem. Rep. Congo v. Belg.) (Feb. 14, 2002) (Provided immunity to a head of state for acts committed while he was head of state. Stressed however that immunity is different than criminal responsibility: “While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.”).
 See Prosecutor v. Furundžija, International Criminal Tribunal for the
former Yugoslavia (ICTY). 10 December 1998. (noting that “the prohibition
on torture is a peremptory norm or jus cogens).
 Douglas G. Smith, Piercing the Corporate Veil in Regulated Industries, 2008 BYU L. Rev. 1165, 1170 (2008).
 See Abu-Nassar v. Elders Futures, 1991 U.S. Dist. LEXIS 3794, 34-35 (S.D.N.Y. 1991) (“The courts have identified a number of factors that must be considered in deciding whether to pierce the corporate veil, including (1) intermingling of personal and corporate funds and siphoning of corporate funds by a principal; (2) failure to observe corporate formalities and keep proper books and records; (3) failure to pay dividends; (4) inadequate capitalization; (5) insolvency; and (6) perpetuation of fraud by shareholders in maintaining the corporate form.”)
 Douglas G. Smith, Piercing the Corporate Veil in Regulated Industries, 2008 BYU L. Rev. 1165, 1168 (2008).
 See Rosa Ehrenreich Brooks,
 Oxford English Dictionary (2d ed. 1989) (noting that the second definition of “despot” is an “Ancient Greek use: An absolute ruler of a country; hence, by extension, any ruler who governs absolutely or tyrannically; any person who exercises tyrannical authority; a tyrant, an oppressor.”).
 See generally, W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 48 Am. J. Int’l L. 866, 872 (1990) (“International law is still concerned with the protection of sovereignty, but, in its modern sense, the object of protection is not the power base of the tyrant who rules directly by naked power or through the apparatus of a totalitarian political order, but the continuing capacity of a population freely to express and effect choices about the identities and policies of its governors.”).
 See Ehrenreich, supra note 115, at 1160-61 (“Recent examples of failed states are familiar to us all, from the total collapse of state institutions in Somalia and the disintegration of the former Yugoslavia to the varied crises in Rwanda, Haiti, Liberia, Congo, Sierra Leone, and Afghanistan.”); see, e.g., S.C. Res. 508, U.N. Doc. S/RES/827 (May 25, 1993) (establishing an ad hoc tribunal for prosecuting international crimes that occurred in the Former Yugoslavia); see, e.g., S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) (establishing an ad hoc tribunal for prosecuting international crimes that occurred in Rwanda); see, e.g., S.C. Res. 1334, U.N. Doc. S/RES/1334 (Dec. 22, 2000) (establishing an ad hoc tribunal for prosecuting international crimes that occurred in Rwanda).
 Mir v. Meese, 788 F.2d 1446, 1454-55 (11th Cir. 1986) (noting that “the President, "acting within his constitutional authority, may have the power under the Constitution to act in ways that constitute violations of international law by the United States.” (quoting Tentative Draft No. 6 of Restatement (Third) of Foreign Relations Law of the United States, § 135, n.3))); see also Restatement (Third) of Foreign Relations Law of the United States, § 115, n.3 (“There is authority for the view that the President has the power, when acting within his constitutional authority, to disregard a rule of international law or an agreement of the United States, notwithstanding that international law and agreements are law of the United States and that it is the President's duty under the Constitution to “take care that the Laws be faithfully executed. ”); but see Louis Henkin, Foreign Affairs and the United States Constitution 244 (2d ed. Oxford University Press 1996) (1972) (“In my view, Garcia-Mir misinterpreted and misapplied The Paquete Habana. The court of appeals apparently considered any act of the President to be ‘controlling,’ and extended that to include an act by the Attorney General. The court took the view that the President – and the Attorney General – had power to ‘disregard international law in the service of domestic needs’; I know nothing to support that conclusion.”).
 See supra Part II.