is the Leighton Professor at Northwestern University School of Law
Jordan J. Paust
is the Mike & Teresa Baker Professor at the Law Center of the University of Houston and former captain, U.S. Army JAG Corps
President-elect Barack Obama has a duty to prosecute those reasonably accused of having authorized, committed and abetted war crimes or crimes against humanity during the Bush administration's "program" of "coercive interrogation" and secret detention, which denied protections to detainees under the Geneva Conventions. Extradition to a foreign country is an alternative.
Under the Constitution, the president is expressly and unavoidably bound to faithfully execute the laws, and the Supreme Court has recognized - in several cases since the founding of our government - that such laws include U.S. treaties and international law.
In fact, every relevant federal judicial opinion for 200 years has affirmed that all persons within the executive branch are bound by the laws of war. Moreover, Obama has assured the American people that he will work to restore the rule of law and integrity in our government, which clearly have been among the casualties of the Bush administration's "war" on terror.
The 1949 Geneva Civilian Convention, which is treaty law of the United States, expressly and unavoidably requires that all parties search for perpetrators of breaches of the treaty and bring them "before its own courts" for "effective penal sanctions" or, "if it prefers ... hand such persons over for trial to another High Contracting Party."
The obligation is absolute. The United States must either initiate prosecution or extradite to another state.
"Grave breaches" of the Convention include "torture or inhuman treatment" and unlawful transfer of a non-prisoner of war from occupied territory. Similarly, the Convention Against Torture expressly and unavoidably requires that a party to the treaty extradite or "submit the case to its competent authorities for the purpose of prosecution."
In 2006, the U.N. Security Council rightly stressed "the responsibility of States to comply with their relevant obligations to end impunity and to prosecute those responsible for war crimes," which include the use of torture and cruel, inhumane and degrading treatment.
In 2007, the U.N. General Assembly stressed that use of torture or cruel, inhumane or degrading treatment "must be promptly and impartially examined ... [and] those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished."
Many authoritative reports have recognized that what we saw in the Abu Ghraib photos as well as waterboarding, the cold cell, stripping persons naked, and the use of snarling dogs to instill fear, are torture. If not torture, they constitute at least cruel and inhumane treatment. As such, they are manifest violations of the laws of war and by definition a war crime.
Some have argued that a Justice Department memo is a "golden shield" for alleged perpetrators of manifestly criminal behavior. However, the shield is full of holes.
Orders or authorizations to engage in tactics that will produce what the community will judge to be torture, cruel, inhumane or degrading treatment are illegal, whether or not the accused knows that the conduct is illegal or knows that the conduct is torture, cruel, inhumane or degrading.
Unlawful orders or authorizations are not a defense. A U.S. Army field manual notes that an order does not constitute a defense for the recipient "unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful." Article 2, paragraph 3 of the Convention Against Torture states: "An order ... may not be invoked as a justification of torture.
It is time for real change in America. It is time for a return to the rule of law, an end to seven years of impunity, and restoration of U.S. honor, integrity and respect within the international community. This can be accomplished only with Obama's adherence to an unavoidable constitutional duty to faithfully execute the law.