Rice, Waterboarding and Accountability

[many a good man]

Great editorial from Jordan J. Paust,the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School. His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.

Whether or not she advised that CIA could proceed with waterboarding or conveyed the authorization of the President to proceed with waterboarding and whether or not she signed the 2002 presidential finding, she has admitted that she intended to engage in conduct that would knowingly facilitate the use of waterboarding if OLC would also approve. As such, she is reasonably accused of complicity or aiding and abetting waterboarding whether or not she actually approved its use on another person on July 17th or later in 2002 and 2003 during several meetings addressing waterboarding and other tactics.

Criminal complicity can occur when a person is aware that his or her conduct can or will assist or facilitate conduct of a direct perpetrator. The person who aids and abets need not know that the conduct of the direct perpetrator is criminal or whether it does in fact constitute “torture” or some other widely-known and unavoidably criminal conduct such as cruel or inhumane treatment. As international criminal tribunals have affirmed, it suffices that an accused was aware of the relevant factual circumstances and that even a direct perpetrator “need not have known that his or her act ... amounted to an ‘inhumane act’ either in the legal or moral sense.” Furthermore, all acts of assistance, by words or acts and omissions, that lend encouragement or support will also suffice if the accused knows or is aware that such conduct can or will facilitate the use of what happens to be an illegal tactic.

In context, her recent statement is unavoidably an admission of what the tribunals recognize as the “factual quality” of the crime – in this case, the factual quality of aiding and abetting waterboarding. She has admitted that she engaged in conduct (the conveyance of a policy authorization of President Bush to engage in waterboarding) that, at the time, she must clearly have known or been aware can or will facilitate use of waterboarding. It does not matter whether she knew the law, that waterboarding is criminally proscribed, or that waterboarding is torture or cruel and inhumane.

Perhaps what Rice had in mind while fingering Bush and pointing to his authorization of waterboarding was a defense of superior orders. She remarked: “The President instructed us that nothing we would do would be outside our obligations, legal obligations, under the Convention Against Torture” and, she claims, “if it was authorized by the President, it did not violate our obligations under the Convention.” Quite clearly, however, the President cannot lawfully authorize a violation of a treaty and, in view of an express and unavoidable constitutional mandate under Article II, Section 3, the President must faithfully execute the laws. Under international and U.S. domestic law, there would be no defense if her claim is merely that anything the President authorizes is lawful. That didn’t work for German accused at Nuremberg and it won’t work here or in Spain.

More at link: http://jurist.law.pitt.edu/forumy/2009/05/rice-waterboarding-and-accountability.php

[Geoff R. Casavant]

1. I had Jordan Paust as a professor in two classes.

A brilliant writer, but lord, the man could not lecture to save his soul.