JURIST Guest Columnists Victor Hansen and Lawrence Friedman of New England School of Law say that although nothing is likely to come of calls for prosecuting President Bush and other administration officials for a variety of controversial actions, Congress should at least take the opportunity to create the mechanisms needed to hold senior leaders accountable in future when their failures lead to illegal conduct by subordinate officials...
s the Bush presidency comes to an end, calls for investigations by the incoming Obama administration and the new Congress seem to be increasing. To say that the policies pursued by the Bush administration with respect to the war on terror and other national security issues were controversial would be an understatement. A number of programs established by President Bush soon after September 11th, including warrantless domestic surveillance, the creation of a detention facility at Guantanamo Bay, and the interrogation techniques used for gathering intelligence, have all come under scrutiny and severe criticism from within and outside of the government.
The Senate Armed Services Committee recently issued a report critical of the treatment of detainees in U.S. custody. All that has been made public is an unclassified executive summary of the report, but even that sheds new light on how the United States military found itself engaging in abusive interrogation techniques that are both illegal and violate the core values of our military ethos. Contrary to statements by President Bush and other administration officials at the time, the incidents of abuse at Abu Ghraib, Guantanamo, and elsewhere were not solely the actions of a "few bad apples." The Senate report appears to confirm what many have known for some time: very senior Bush administration officials participated in the development of abusive interrogation techniques and in many cases authorized their use. In addition, the atmosphere and attitude created and encouraged by senior administration officials helped facilitate detainee abuse.
Now we hear the calls for investigations, blue ribbon panels and accountability. Some commentators have gone so far as to suggest that senior military officials and top administration officials, including former Secretary of Defense Rumsfeld, former Attorney General Gonzales, Vice President Cheney, and even President Bush should be prosecuted as war criminals. These cries recall the suggestion, at the end of the Vietnam War, that then-Secretary of State Henry Kissinger be tried as a war criminal for his involvement in the bombings of Cambodia.
Nothing came of those demands after Vietnam, and nothing is likely to come of the calls for prosecuting President Bush and other administration officials now. One reason is that the decision to prosecute these officials is at its base, a political determination. There is no indication that either party or the public at large has the interest or the will to actually see such prosecutions go forward; it is always easier and politically safe to criticize from the sidelines. In addition, it is unlikely that even the most skilled prosecutor would be able to gather sufficient evidence to link the actions of senior officials to the abuse committed on the ground, and even that is assuming a prosecutor would have full access to all the evidence.
That is not to say that there would not be some benefit in attempting to hold senior officials accountable in a court of law. Certainly prosecutions would bring home the point that no one is above the law, and that even executive authority and exigent circumstances have their limits. Such criminal prosecutions would also show that it is not just the lower-level actors and government officials who will be held accountable, and that we recognize the need to hold accountable all of those leaders entrusted and empowered to act on our behalf. Criminal prosecutions would also send a clear and powerful message to our friends and foes that we are a democracy with strong institutions, and that we take seriously our responsibilities as a world leader. Such prosecutions would also signal a clear break with the failed policies of the past.
So while there does not seem to be either the political will or the legal mechanisms to enforce this kind of accountability, Congress should at least ought to take the opportunity to create the mechanisms needed to hold senior leaders accountable when their failures lead to illegal conduct by subordinate officials.
We are talking about a domestic codification of the military doctrine of command responsibility. Under the doctrine of command responsibility, both military and civilian leaders can be held criminally responsible for the law of war violations committed by their subordinates, if these leaders failed to adequately prevent, suppress or punish law of war violators. This is a form of vicarious liability, based upon a leader's duties and the relationship between the leader and the subordinate forces.
At the conclusion of World War II, the United States was among the strongest proponents of the doctrine of command responsibility in the various prosecutions of German and Japanese war criminals. The doctrine has since become a part of customary international law. At the same time, the United States has failed to codify any form of the doctrine that might apply to our civilian and military leaders; consequently, when situations like the abuse at Abu Ghraib arise, we are left without a means to hold our leaders sufficiently accountable for their failingsâand our leaders lack a clear legal standard by which to assess their own compliance with the law of war.
It is difficult and perhaps impossible to say that the abuse at Abu Ghraib, and Guantanamo and elsewhere would not have occurred had the doctrine of command responsibility been codified as a part of our domestic law. What can be said with certainly is that, if command responsibility had been codified, commanders at all levels would have had a powerful tool at their disposal to push back against pressure to do whatever it took to gain actionable intelligence from detainees. As well, we would have a legal mechanism with which to prosecute those of our leaders, at all levels, whose failures contributed to serious law of war violations. Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches courses in criminal law at New England School of Law, where Lawrence Friedman teaches courses in constitutional law.