Refluat Stercus: A Citizen’s View of Criminal Prosecution in U.S. Domestic Courts of High-Level U.S. Civilian Authority and Military Generals for Torture and Cruel, Inhuman or Degrading Treatment

23 St. John’s J. Legal Commentary 503 (2008)

University of Toledo Legal Studies Research Paper No. 2013-04

165 Pages Posted: 19 Dec 2012

See all articles by Benjamin Davis

Benjamin Davis

University of Toledo College of Law

Date Written: 2008

Abstract

This article examines criminal prosecution in U.S. domestic courts of high-level U.S. civilian authority and military generals for torture and cruel, inhuman or degrading treatment. The concerns are with what the United States has done in the past to criminally prosecute this group of high-level individuals, why the United States should conduct such prosecutions, how and where should such prosecutions occur, when should such prosecutions occur, and who should be prosecuted. This subject is important because, recently, the German Federal Prosecutor declined for the second time to open a War Crimes Trial against present and former high-level civilian authority and generals of the U.S. regarding detainee treatment. The International Criminal Court is gathering information, but is taking no action, with regard to complaints raised about actions of U.S. high level civilian authority or military generals in the War on Terror. Over the past few years, several civil complaints have been filed in United States courts by detainees regarding horrendous acts of torture and/or cruel, inhuman and degrading treatment. These cases have been rejected on state secrets, federal officer immunity, political question, or similar doctrines. The U.S. Congress has put in place a series of Combatant Status Review Tribunals and post-Hamdan Military Commissions. Allegations of torture are routinely redacted from the versions of these proceedings made available. The United States Supreme Court has reversed itself recently and decided to take an early post-Hamdan look at the Combatant Status Review Tribunals and the post-Hamdan Military Commissions. Lower courts have accepted Congressional habeas corpus stripping. Outrageous government conduct against an American civilian on American soil has been let pass by our courts as long as evidence from that process is not introduced as part of the criminal trial. The President has issued a July 20, 2007 Executive Order interpreting Common Article 3 of the Geneva Conventions that appears to further enshrine departures from the object and purpose of the Geneva Conventions and other international law.

While low level soldiers have been court-martialed and prosecutors in Italy, Germany and Switzerland are investigating potential crimes related to extraordinary renditions by lower level U.S. intelligence officers, U.S. high level civilians and generals have not suffered criminal prosecution as to actions taken during the current war on terror. Rather, they have remained at high-levels in the federal government or moved on to other careers at the World Bank, in the federal courts, academia, or the private sector.

Are we enshrining the old military adage of "different spanks for different ranks?" Given the failure of overseas processes and domestic civil processes to address command and other responsibility of this select group, this article examines whether and how criminal prosecution of them in U.S. domestic courts might be done.

I conclude that high-level civilians and military generals can be charged for organizing torture and cruel, inhuman or degrading treatment in the War on Terror. Under Federal Law, the Uniform Code of Military Justice, and State Law it is possible to find crimes that appear to be appropriate bases of indictment based on publicly available facts. It is possible to see how a federal (even if not a special prosecutor), military and/or state prosecutor might be able to introduce procedures with regard to these persons and have such persons convicted of such crimes or plead guilty to such crimes. It appears also unlikely that any of the international criminal law institutions or another nation through universal jurisdiction would be willing to take on such prosecutions.

For reasons related to resisting aggressively the legitimizing of the illegal acts suspected with regard to peremptory norms that are part of the positive international law, I have for such prosecutions in this article. I am trying to meet the extreme prejudice to the United States with a form of extreme repudiation of those who would cause such an extreme prejudice to the United States through violation of positive international law.

Keywords: torture, cruel, inhuman or degrading treatment, criminal law, international law, accountability, executive

JEL Classification: K14, K33, K42

Suggested Citation

Davis, Benjamin, Refluat Stercus: A Citizen’s View of Criminal Prosecution in U.S. Domestic Courts of High-Level U.S. Civilian Authority and Military Generals for Torture and Cruel, Inhuman or Degrading Treatment (2008). 23 St. John’s J. Legal Commentary 503 (2008), University of Toledo Legal Studies Research Paper No. 2013-04, Available at SSRN: https://ssrn.com/abstract=2191014

Benjamin Davis (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

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