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.”[1]

            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 Guantanamo publically announcing that torture occurred at the prison.[2]  Since that time, further evidence detailing these abuses has become public, including memos from the Office of Legal Counsel that attempted to justify the abuse,[3] and a previously confidential report written by the International Committee of the Red Cross.[4]  The abuses, which are now known in some level of detail, included: sensory deprivation, nudity, dietary manipulations, extended sleep deprivation induced by shackling detainees in a standing position, confinement to small containers, walling, stress positions, and waterboarding.[5]  These techniques were often combined and repeated, and one detainee was waterboarded 183 times in one month.[6]

            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.[7]  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.[8]  Policy scholar, Mark Kleiman, holds that the Attorney General would violate his oath of office by failing to enforce prosecutions.[9]  Dr. Hillary Bok, Professor of Bioethics and Moral & Political Theory at John Hopkins University, has written that even the President is legally obligated to submit these cases of abuse for prosecution.[10]

            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 abuses at Guantanamo are in a state of disarray because there are at least two different ways of approaching the issue.  First, one can focus purely on domestic criminal law, since it is the primary source of law for handling the prosecution of individuals.  The problem with this approach is that international obligations are often pushed aside, if not ignored completely.  The second approach is to predominately consider the applicable international law.  When the focus is only on international law, however, there is an impulse to simplify the relationship between the legal obligations of states and the obligations of individuals within those states.

            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.[11]  Accordingly, the initial issue discussed is whether the United States, as a distinct entity, has a legal obligation to ensure that Donald Rumsfeld is prosecuted for the abuses that took place at Guantanamo.  Only after fully discussing this issue does the argument shift to how these international obligations create personal obligations for the President.  For this issue, this pertinent question is whether individuals can be personally bound through their relationship with abstract legal entities such as states.  Corporate law serves as an interesting example for this discussion, since one of its purposes is to dictate how the obligations of corporate entities translate into obligations for the individual officers or directors within that corporation.[12]  Accordingly, this paper looks to corporate law as a rough analogy, as it examines whether the President of the United States has a personal legal obligation to ensure that Donald Rumsfeld is prosecuted. 

 

I.       THE UNITED STATES WILL VIOLATE INTERNATIONAL LAW UNLESS DONALD RUMSFELD IS PROSECUTED FOR THE ABUSES THAT OCCURRED AT GUANTANAMO.

 

            Determining the legal commitments of the United States first requires examining the applicable sources of law.  International law consists of treaties, customary law, and jus cogens, all three of which arguably prohibit the use of torture.[13]  This paper focuses on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), because in addition to prohibiting torture, it explicitly requires prosecutions.[14]  After describing the relevant provisions of CAT, this paper discusses how the provisions of the treaty were violated.[15]  As detailed below, there is ample evidence to support the perception that Donald Rumsfeld authorized the abuses that occurred at Guantanamo, and that these abuses violated CAT’s prohibition of torture.[16]  In recognition of these facts, the paper concludes that United States will be in further violation of this treaty unless it prosecutes or extradites Donald Rumsfeld for his official authorization of torture.[17]

A.    The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment legally prohibits the United States from torturing under any circumstances.

 

            The clearest and strongest source of international law prohibiting the use of torture is CAT.[18]  The treaty was opened for signature, ratification, and accession on December 10, 1984, and entered into force on June 26, 1987.[19]  The United States signed the treaty April 18, 1988, and ratified the treaty on October 21, 1994.[20]

            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.”[21]  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.”[22]  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.[23]

            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.[24]

 

            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.[25] Second, a state must take these measures “in any territory under its jurisdiction.”[26]  Third, a state cannot use the threat of war or emergency as excuses for breaching the treaty.[27]  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.”[28]  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.[29]  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.[30] 

            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.[31]  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.”[32]  Thus, CAT provides a robust source of international law that binds the United States to take certain domestic actions in opposition to torture.

 

 

B.    Donald Rumsfeld authorized abuses at Guantanamo that amounted to torture.

 

            There are reasonable grounds to believe that Donald Rumsfeld authorized abuses amounting to torture occurring at Guantanamo Bay, under the definition of torture set forth in CAT.[33]  Evidence that establishes a prima facie case against Donald Rumsfeld for torture includes: 1) a Senate Armed Services Committee report on abuses at Guantanamo;[34] and, 2) the acknowledgment of torture occurring at Guantanamo by Convening Authority Susan Crawford.[35]

            First, the Senate Armed Services Committee released a report in December of 2008 titled “Inquiry into the Treatment of Detainees in U.S. Custody.”[36]  The report investigated the abuses occurring at Guantanamo, and discussed how interrogators used techniques that were directly derived from torture methods used by the Chinese during the Korean War.[37]  The report concluded that the abuses were not merely the result of these interrogators acting on their own.  Instead, the report held that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”[38]  One of the senior officials responsible for this abuse was Secretary of Defense Donald Rumsfeld.  The report explicitly found that "Secretary of Defense Donald Rumsfeld's authorization of aggressive interrogation techniques was a direct cause of detainee abuse."[39]

            Although this report presents evidence that Donald Rumsfeld authorized the abuses at Guantanamo, it does not examine whether these abuses amounted to torture.  In January, 2009, however, this gap was bridged by the Convening Authority Susan Crawford.[40]  As Convening Authority of the Military Commissions, Susan Crawford has broad power over the entire military tribunal process that was designed to prosecute enemy combatants held at Guantanamo.[41]  In the January 14th edition of the Washington Post, Susan Crawford explicitly acknowledges that certain abuses that occurred at Guantanamo amounted torture.[42] 

            Even if Susan Crawford’s had not provided this acknowledgment, the abuses that occurred at Guantanamo would fall within the plain meaning of Article 1 of the CAT.  The abuses were designed to intentionally inflict physical and mental harm for the purposes of obtaining information or a confession.[43]  The only inquiry remaining is whether the mental or physical pain inflicted was “severe” enough to fit the definition of torture within CAT.  The United State’s understandings in regards to CAT provide a more detailed definition of the acts that constitute torture under the treaty.  The relevant understanding states:

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.[44]

 

            The acts that occurred at Guantanamo, which included sleep deprivation, physical abuses, and waterboarding, arguably fall within the first three categories described within the understanding.[45]  Based on the testimony of medical experts, waterboarding in particular falls under this definition of torture.[46]  Additionally, the United States has repeatedly referred to the same techniques as torture when they were used by other States.[47]  When combined, the Senate Committee report attributing abuses to Donald Rumsfeld, Susan Crawford’s acknowledgement of torture, and the United State’s own definition of torture, create at least reasonable grounds for suspecting that Donald Rumsfeld is responsible for torture occurring at Guantanamo.[48]

 

C.    The United States will violate the Convention against Torture if it does not prosecute or extradite Donald Rumsfeld for this crime. 

 

            As described in the foregoing section, it is reasonable to suspect that Donald Rumsfeld authorized torture.  Based on this conclusion, it is likely that the United States has already breached CAT.[49]  Article 2 of CAT requires that “[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”[50]  Additionally, Article 2 states that “[n]o 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.”[51]  Thus, if a member of the administration authorized torture in Guantanamo, regardless of the circumstances, it would violate this article.[52] 

            The current issue, however, is whether the United States will further violate CAT if it does not prosecute or extradite an offender.  If a State prosecutes an offender instead of extraditing, CAT requires that “authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.”  Under the laws of United States, however, prosecutors have full discretion in deciding whether to bring a case, even if it is of a “serious nature.”  Therefore, on a cursory reading of CAT, there is an argument that the United States is not required to prosecute.[53]  This is an improper interpretation of the article, however, because it would violate international law by defeating the object and purpose of CAT.[54]  Accordingly, the United States has a legal obligation to prosecute or extradite Donald Rumsfeld for prosecution elsewhere.  The remaining question is whether the President of the United States is legally obligated to ensure that this occurs.

 

 

II.               THE PRESIDENT HAS NO PERSONAL LEGAL OBLIGATION TO ENSURE THAT DONALD RUMSFELD IS PROSECUTED.

 

            First, it is important to note that the President has the power to prevent the United States from further breaching CAT.  Although the President may not have the power to direct a prosecution, he does have some level of authority over federal prosecutors because they are employed within the executive branch.  Through this authority, the President may request prosecutions and fire Attorney Generals who decline his requests.[55]  Thus, the President can indirectly ensure that prosecutions occur.  Additionally, the President can fulfill an extradition when a treaty provides the power to do so, as it does in this case.[56]  The ultimate question, however, is whether CAT creates any personal legal obligation for the President to take action. 

            The issue is complicated because treaties are binding legal agreements between states, not individuals.[57]  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.[58]  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.[59]  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.

            Accordingly, 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 United States.

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.[60]  Under this theory, domestic and international law operate within the same legal sphere and combine to form one unified body of law. [61]  Under the monist view, international obligations automatically become domestically enforceable, since international law is inherently a part of domestic law.[62]  International law can be thought of as a field of domestic law, similar to contract or tax law.[63]  Much like a constitution, international law is usually superior under this view if there is a conflict with a domestic counterpart.[64]

            The second theory is the dualist view.[65]  Under this theory, domestic law and international law operate in two separate and distinct legal spheres.[66]  International law can be seen as operating in a higher level of abstraction, existing only to denote legal commitments between states.[67]  Domestic law, in contrast, dictates the legal obligations between citizens of a state, or between the citizen and the state itself.

            The United States essentially follows the dualist theory.[68]  The Supreme Court stated in The Paquete Habana, however, that “international law is part of our law.”[69]  In conformity with this opinion, the United States has traditionally incorporated international law into domestic law under certain circumstances.[70] Demarcating the precise circumstances that trigger a treaty’s transformation into domestic law, however, has been a controversial subject.[71]

             The main reason for the controversy relating to treaties is that the Constitution explicitly mentions their domestic power.[72]  The Supremacy Clause states that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”[73]  This clause appears on its face to assert a domestic legal obligation on the President, since the President takes an oath to “preserve, protect and defend” the Constitution, and the Supremacy Clause seems to require legal conformity with treaties.[74]  Accepting the Supremacy Clause on its face would, however, lead to absurd results.[75]  Under this interpretation a treaty could technically trump the Constitution, recursively overriding the very document that gave the treaty its supreme power.  A slightly less absurd, but equally dangerous consequence of this reading is that it could completely destroy the Constitution’s separation of powers.  If accepted on its face to include all forms of “treaties,” the Supremacy Clause would allow the President to entirely circumvent the legislative branch by creating “supreme” law through international executive agreements.  Thus, as with all questions of constitutional interpretation, it is necessary to consider the Supreme Court’s interpretation of the Supremacy Clause. 

            Within the domestic legal plane of the United States, the term “Treaties” carries a more precise meaning than it does on the international legal plane.  Within the context of the Constitution, “Treaties” specifically refers to international agreements created under Article II Section 2 of the Constitution.[76]  This clause gives the president the power to make treaties “with the Advice and Consent of the Senate.”[77]  Thus, only international agreements that have been signed by the president and ratified by two-thirds of the Senate are considered “Treaties” within the Supremacy Clause.  Sole executive and executive-congressional agreements fall outside of this treaty definition, even though they would also be described as treaties on the international legal plane.[78]  In accordance with this focused definition not all international agreements commonly referred to as treaties are considered “Treaties” within the Supremacy Clause.

            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.[79]  The split was first discussed by the Supreme Court in Foster & Elam v. Neilson, which held that not all treaties automatically become domestic law.[80]  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.[81]  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.[82]  Any remaining confusion was recently resolved when the Court firmly reiterated the definition of non-self-executing treaties in the case Medellin v. Texas.[83]

            Thus, 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.[84]  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 United States legal system.[85]

            Whether 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. [86]In Medellin, the Supreme Court stated that “[o]ur cases simply require courts to decide whether a treaty's terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect.”[87]

            CAT was signed by the President April 18, 1988, and then ratified by the Senate on October 21, 1994.[88]  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. 

            When the Senate ratified CAT, it included a declaration regarding the treaty’s execution status.  In this declaration, the Senate stated that “the United States declares that the provisions of Article 1 through Article 16 of the Convention are not self-executing.”[89]  Since this was the express intent of the Senate when it ratified CAT, these articles of CAT are held to be non-self-executing.

            Because 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 United States federal law in 1996.[90]  The new law defined “torture” in the same manner as CAT, but it did not require mandatory prosecution for cases involving torture.[91]  Thus, international law and domestic law seem to diverge on whether prosecutions of torture are mandatory. 

            There is a substantive canon of statutory interpretation that has been applied in similar circumstances.[92]  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.[93]  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.

            An example of the canon being applied is U.S. v. Palestine Liberation Organization.[94]  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 United States.”[95]  The issue was that the Palestine Liberation Organization was an observer at the United Nations.  Accordingly, the United States had an international legal commitment under the Headquarters Agreement, which required the United States to provide the organization with access to the United Nations in New York City.  The court applied the Charming Betsy canon and held that the “the ATA and the Headquarters Agreement cannot be reconciled except by finding the ATA inapplicable to the PLO Observer Mission.”[96]

            In contrast to U.S. v. Palestine Liberation Organization, there is no conflict between 18 U.S.C. § 2340A and CAT that requires reconciliation.  The United States legislature wrote 18 U.S.C. § 2340A to strengthen the ability to prosecute torture, in reflection of the obligation of CAT.[97]  If Donald Rumsfeld was prosecuted under 18 U.S.C. § 2340A, the United States would be entirely in compliance with CAT in regards to his case.  Thus, the domestic law in this case is reinforcing international law, not conflicting with it.  Accordingly, the Charming Betsy canon does not impact the interpretation of 18 U.S.C. § 2340A.

            In conclusion, even if there is probable cause to believe that Donald Rumsfeld conspired to torture at Guantanamo in violation of federal law, prosecutors are not under any domestic legal obligation to prosecute.[98]  If there is no legal obligation on individual prosecutors, there is likewise no domestic legal obligation binding the President.[99]

B.    Under international law, the President is not legally obligated to initiate the prosecution of Donald Rumsfeld.

 

            Since 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.[100]  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.[101]  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 United State’s legal commitment to CAT.

            Just like the disputes regarding state sovereignty, scholars disagree about whether the ability to pierce the corporate veil should be weakened or reinforced.[102]  Currently, the corporate veil can only be pierced under very limited circumstances, and there is some confusion as to precise contours of these situations.[103]  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.[104]

            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.[105]  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.[106]  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.[107]

            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.[108]  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.[109]  In these cases, however, the “burden is even higher than the normally severe burden imposed upon a plaintiff seeking to pierce the corporate veil.”[110]  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.[111]  Another way of a corporate entity can be proven defective is by establishing alter ego liability.[112] Alter ego liability occurs when an individual or affiliated entity controls a corporation so completely that the corporate entity is a defective shell.[113]  An alter ego corporation exists in name only and is essentially an extension of the entity or individual controlling it.[114]

            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.[115]  In a state ruled by despotism, an entity or individual controls the state with absolute political power.[116]  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.[117]  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.[118]

            Regardless of international law’s view of defective states, clearly the United States does not fall within this category.  Furthermore, as previously shown, the President does not commit a jus cogens violation by failing to pursue a prosecution.  Therefore, the veil of state sovereignty should remain impenetrable in this case.  Thus, the President has no personal legal obligation under international law or domestic law to ensure that Donald Rumsfeld is prosecuted. 

            Although the logic behind this finding is based on corporate law, the conclusion is fundamentally substantiated by both domestic and international law.[119]  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.[120]  Therefore, the President may refuse to take action, even if this inaction causes the United States to violate CAT. 

            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 United States to illegally violate a treaty that prohibits torture?



[1] Dahlia Lithwick and Phillipe Sands, The Turning Point, Slate, Jan. 14, 2009, http://www.slate.com/id/2208688/.

[2] Id.

[3] 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://72.3.233.244/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://72.3.233.244/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://72.3.233.244/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://72.3.233.244/pdfs/safefree/olc_05302005_bradbury.pdf.

[4] 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.

[5] 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.

[6] Id. at 37.

[7] Lithwick and Sands, supra note 1.

[8] Posting of Eric Posner to The Volokh Conspiracy, http://volokh.com/posts/1232221565.shtml (Jan. 17, 2009, 14:46).

[9] 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.”).

[10] 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”).

[11] See infra Part II.

[12] See 18 Am. Jur. 2D Corporations § 47 (2008).

[13] 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;”).

[14] 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).

[15] See infra Part I.A-B.

[16] See infra Part I.A.

[17] See infra Part I.C.

[18] 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).  See also Regina v. Bartle ex parte Pinochet, [1998] 1 A.C. 147 (H.L.) (appeal taken from Q.B.) (“The jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed… I have no doubt that long before the Torture Convention of 1984 state torture was an international crime in the highest sense.”).

[19] CAT, supra note 14.

[20] 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).

[21] U.N. Charter art. 55.

[22] 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).

[23] G.A. Res.47/133, A/RES/47/133 (Dec. 18, 1992).

[24] CAT, supra note 14, at art. 1.

[25] Id. at art. 2, sec. 1 (“Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture”). 

[26] Id.

[27] Id. (“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.”). 

[28] Id.

[29] Id. at art. 5.

[30] Id.

[31] Id. at art. 4.

[32] See id.

[33] 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.”).

[34] 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).

[35] Woodward, supra note 40.

[36] Inquiry into the Treatment of Detainees, supra note 54.

[37] 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.”).

[38] Id. at 12.

[39] Id. at 28.

[40] Bob Woodward, Detainee Tortured, Says U.S. Official, Washington Post, Jan. 14, 2009 at A01.

[41] 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.").

[42] 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.”).

[43] 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).

[44] CAT, supra note 14 at Declarations and Reservations, available at http://www.unhchr.ch/html/menu2/6/cat/treaties/convention-reserv.htm.

[45] 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.

[46] 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.”).

[47] Jamie Mayerfield, Playing by Our Own Rules: How U.S. Marginalization of International Human Rights Law Led to Torture, 20 Harv. Hum. Rts. J. 89, 92 (2007) (“In State Department reports on other countries, sleep deprivation, waterboarding, forced standing, hypothermia, blindfolding, and deprivation of food and water are specifically referred to as torture.”); see, e.g., Dep’t St., Human Rights Reports for 1999, (2000). http://www.state.gov/www/global/human_rights/1999_hrp_report/jordan.html (“The most frequently alleged methods of torture are sleep deprivation, beatings, and extended solitary confinement.”).

[48] Additional evidence detailing the abuses at Guantanamo has been steadily released since Susan Crawford’s acknowledgement of torture.  Bybee, supra note 5; Bradbury, 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), supra note 5; Bradbury, 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), supra note 5; 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; Loane, supra note 6.

[49] 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 United States unless there is a denunciation, regardless of the domestic power of the President to institute policies that cause the United States to breach the treaty.  Accord Restatement (Third) of Foreign Relations Law of the United States, § 339 (noting when the President has the domestic power to terminate or suspend a treaty); accord id. at § 332 (“(1) The termination or denunciation of an international agreement, or the withdrawal of a party from an agreement, may take place only (a) in conformity with the agreement or (b) by consent of all the parties.”).

[50] CAT, supra note 14, at art. 2.

[51] Id.

[52] Rasul v. Bush, 542 U.S. 466, 480 (2004) (finding that the United States exercises “complete jurisdiction and control” over the Guantanamo Bay Naval Base).

[53] 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 United States’ obligations under the Torture Convention.”).

[54] See Vienna Convention on the Law of Treaties art. 18, opened for signature May 23, 1969, 1155 U.N.T.S. 331 (“A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.”).

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 United States for waterboarding in the past.  U.S. v. Lee, 744 F.2d 1124, 1127 (5th Cir. 1984) (affirming the conviction and prison sentence of a Sherriff who waterboarded prisoners to illicit information);  see generally, Evan Wallach, Drop By Drop: Forgetting the History of Water Torture in U.S. Courts, 45 Colum. J. Transnat’l L. 468, 477 (2007) (“In all cases, whether the water treatment was applied by Americans or to Americans, or simply reviewed by American courts, it has uniformly been rejected as illegal, often with severely punitive results for the perpetrators.” ).  Thus, to treat these abuses in the “same manner”, as required by CAT, would seem to require prosecution if there is similar evidentiary support, as opposed to a blanket avoidance of prosecutions based on political concerns.

[55] 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.”).

[56] Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5, 9 (1936).

[57] 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”); Id. at art. 26, (“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”).

[58]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.”).

[59] First Nat. City Bank v. Banco Para El Comercio Exterior De Cuba, 462 U.S. 611, 630 (1983) (“[T]he law has recognized that the independent existence of the legal entity cannot be treated as an absolute. It is in this context that the process of ‘lifting the corporate veil’ or ‘disregarding the legal entity’ has been found justified and equitable in certain circumstances or for certain purposes.” (quoting Case Concerning the Barcelona Traction, Light and Power Company, Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 39 (Feb. 1970))).

[60] Jeffrey L. Dunoff, Steven  R. Ratner & David Wippman, International Law: Norms, Actors, Process  267 (2d ed. Aspen Publishers 2006).

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id.

[68] 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 United States are two different and discrete bodies of law”).

[69] The Paquete Habana, 175 U.S. 677, 700 (1900).

[70] Accordingly, the United States is not purely dualist – few, if any states are.  The United States generally tries to make domestic law conform to international law through mechanisms like the Charming Betsy Principle, but it does not apply international law automatically or directly like a monist state would.  Accordingly, it is more appropriate to define the United State’s view of international law as coordinationism.  The following passage provides an overview of this theory:

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 United States, the label is hardly known in comparison to dualism or monism.  Accordingly, the dualist label described by the Restatement is used, since it is sufficiently accurate to describe the view of the United States. See Restatement (Third) of Foreign Relations Law of the United States, pt. 1, ch. 2, introductory note (2008).

[71] 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.”).

[72] Const. art. VI, ¶ 2.

[73] Id.

[74] Const. art. II.

[75] 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).

In 1804, Jefferson wrote “On the subject of treaties, our system is to have none with any nation as far as can be avoided.”  Id.  In 2007, the United States was a party to thousands of bi-lateral and multi-lateral treaties, under the international definition of treaties.  See Dep’t St., Treaties in Force - Section 1: Bilateral Treaties, November 1, 2007, http://www.state.gov/documents/organization/83046.pdf; see also Dep’t St., Treaties in Force - Section 2: Multilateral Treaties, November 1, 2007, http://www.state.gov/documents/organization/89668.pdf.

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.

[76] S. Comm. On Foreign Relations, 106th Cong., Treaties and Other International Agreements: The Role of the United States Senate, S. Prt. 106-71, 76-77 (2001) (“Reference to the text of the Constitution suggests the preeminent legal status of the treaty mode of agreement-making. Treaties, for example, are made only by the President and two-thirds of the Senate (Article II, Section 2, Clause 2), form part of the ‘‘Supreme Law of the Land’’ (Article VI, Clause 2), and create a basis for invoking the jurisdiction of the Federal courts (Article III, Section 2, Clause 1).”).

[77] Const. art. II.

[78] 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).

[79] Whitney v. Robertson, 124 U.S. 190, 194 (1888).

[80] 27 U.S. 253, 254 (1829).

[81] Edye v. Robertson, 112 U.S. 580, 598 (1884) (“A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.”).

[82] 124 U.S. 190, 194 (1888) (“A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment.”).

[83] 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.”).

[84] Ulf Linderfalk, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties 14 (Springer, 2007).

[85] Id.

[86] 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.”).

[87] Medellin v. Texas, No. 06-984, slip op. at 25 (2008).

[88] The Secretary-General, supra note 20.

[89] 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.”).

[90] 18 U.S.C. § 2340 (2007).

[91] 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.

[92] Murray v. Charming Betsy, 2 U.S. 64, 118 (2007) (noting a canon of construction for interpreting domestic law that conflicts with international law).  (“An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce further than is warranted by the law of nations as understood in this country.” ).

[93] 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.”).

[94] 695 F.Supp. 1456 (S.D.N.Y 1988). 

[95] Id.

[96] Id.

[97] See Committee Against Torture, supra note 89, at ¶ 47.

[98] The United States disclosed how prosecutorial discretion relates to CAT in the report it submitted to the Committee Against Torture.  See Committee Against Torture, supra note 89, at ¶ 34 (“At all levels, prosecutors in the United States enjoy a high degree of independence in the discharge of their responsibilities”); see id. at 234 (“Prosecutors make their own decisions, frequently on the basis of complaints, about initiating investigations and filing criminal charges.”).

[99] 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 land.  Const. art. VI, ¶ 2.  Therefore, the President does not breach his oath of office to “preserve, protect and defend the Constitution of the United States” by allowing CAT to be violated.  Const. art. II. §1; Cf. Posting of Eric Posner to The Volokh Conspiracy, http://volokh.com/posts/1233241458.shtml (January 29, 2009, 10:04) (“Section 7 of the Convention Against Torture . . . is not judicially enforceable [because it is a non-self-executing provision]. Could it not still be a “law” that binds the president? It could be; no court has resolved this question, no doubt because the question could never appear before a court in the first place. However, there are strong reasons for doubting that the president, and hence, the attorney general, have any constitutional obligation to “take care” that a non-self-executing treaty be enforced. It is a generally accepted proposition in foreign relations law that the president has the authority to terminate international treaties. President Carter did just that when he terminated a treaty with Taiwan, an act that led to a famous Supreme Court non-decision in 1979 that left his act undisturbed. Such a power cannot be reconciled with a constitutional obligation to take care that treaty obligations be enforced. Presidents also violate treaties. Consider President Clinton’s military intervention in Serbia in 1999, in violation of the UN Charter. Treaty violations at the orders of the president—and the U.S. has a long history of them—also cannot be reconciled with a constitutional obligation to take care that treaty obligations be enforced. Perhaps one might argue that President Carter and President Clinton violated their constitutional duties and hence their oaths as well, as did many of their predecessors and successors. But given the long history of presidential discretion in this area, it is a bit late to make this argument.”).

[100] 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.

[101] 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.”).

[102] 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).

[103] 321 U.S. 349, 362 (“Limited liability is the rule not the exception”); see generally, Meredith Dearborn, Enterprise Liability: Reviewing and Revitalizing Liability for Corporate Groups, 97 Cal. L. Rev. 195, 204 (2009) (“This flexibility is what has earned piercing its reputation as one of the most “confusing” areas of corporate law.  While a member of the New York Court of Appeals, Judge Cardozo famously said that piercing is “enveloped in the mists of metaphor.”).

[104] 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.”).

Note, however, 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 interest of Texas in a rule that does not “enable Texas residents to hide behind the corporate veil and discourage responsible individual behavior.” (quoting Grynberg Prod. v. British Gas, 817 F.Supp. 1338, 1350–1351 (E.D.Tex.1993))).  To clarify the discussion of individual liability within this section, personal tort liability in the context of an agency relationship shall be referred to as a type of veil piercing.

[105] 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))).

[106] See also Regina v. Bartle ex parte Pinochet, [1998] 1 A.C. 147 (H.L.) (appeal taken from Q.B.) (“Apart from the law of piracy, the concept of personal liability under international law for international crimes is of comparatively modern growth. The traditional subjects of international law are states not human beings. But consequent upon the war crime trials after the 1939-45 World War, the international community came to recognise that there could be criminal liability under international law for a class of crimes such as war crimes and crimes against humanity . . . At least from that date onwards the concept of personal liability for a crime in international law must have been part of international law.”).

[107] 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.”).

[108] 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).  See also Regina v. Bartle ex parte Pinochet, [1998] 1 A.C. 147 (H.L.) (appeal taken from Q.B.) (The jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed…. I have no doubt that long before the Torture Convention of 1984 state torture was an international crime in the highest sense.”).

[109] Douglas G. Smith, Piercing the Corporate Veil in Regulated Industries, 2008 BYU L. Rev. 1165, 1170 (2008).

[110] Id.

[111] 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.”)

[112] Douglas G. Smith, Piercing the Corporate Veil in Regulated Industries, 2008 BYU L. Rev. 1165, 1168 (2008).

[113] Id. at 1170.

[114] Id.

[115] See Rosa Ehrenreich Brooks, Failed States, or the State as Failure?, 72 U. Chi. L. Rev. 1159, 1160-61 (2005) (“Definitions of the failed state vary, but, unsurprisingly, most commentators define failed states in opposition to the successful states that are presumed to be the norm. Successful states control defined territories and populations, conduct diplomatic relations with other states, monopolize legitimate violence within their territories, and succeed in providing adequate social goods to their populations.  Failed states, their dark mirror image, lose control over the means of violence, and cannot create peace or stability for their populations or control their territories. They cannot ensure economic growth or any reasonable distribution of social goods.  They are often characterized by massive economic inequities, warlordism, and violent competition for resources.”); cf. Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat 3097 (“The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.”); cf. Restatement (Third) of Foreign Relations Law of the United States, § 201 n.5 (2008) (noting that a “state need not have any particular form of government, but there must be some authority exercising governmental functions.”).

[116] 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.”).

[117] 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.”).

[118] 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).

[119] 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.”).

[120] See supra Part II.