JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says the Obama administration should not call upon US Justice Department lawyers to defend John Yoo and other former members of the Bush Administration in civil suits addressing alleged criminal violations of international law, including the authorization, abetting or commission of war crimes….

Despite the obvious need for “change,” to end impunity, and for federal law and officials to serve public interests, there are reports that lawyers in the US Justice Department might be asked to defend John Yoo and other former members of the Bush Administration in civil suits addressing criminal violations of international law. Such a role for Obama lawyers would be an outrage and constitute an embarrassing embrace of international criminal conduct that the international community has demanded must result in absolutely no form of impunity.

Additionally, it would be professionally unethical for lawyers who are responsible for prosecution of war crimes on behalf of the United States — and who, like President Obama and Attorney General Holder, are constitutionally required to faithfully execute the laws — to defend former members of the government who are so reasonably accused of having authorized, abetted, or otherwise committed war crimes under customary and treaty-based international laws that are part of the laws of the United States. The clash of interests at stake could not be more sharply delineated. Adherence to professional ethics simply does not allow a lawyer to attempt to serve two clients who clearly have interests at stake that are diametrically opposed. Yoo and other accused should have their own lawyers and should not be feeding at the public trough eating taxpayer monies that are in serious need elsewhere.

Moreover, when a public official acts in violation of international criminal law, such person acts outside the scope of official duties. Every relevant judicial opinion since the dawn of the United States has recognized that the President and all members of the Executive branch are bound by the laws of war. As several federal courts have affirmed, international crimes simply cannot be lawful public, official, or sovereign acts, and they are not entitled to any form of immunity. The International Military Tribunal at Nuremberg also rightly ruled that principles of immunity “cannot be applied to acts which are condemned as criminal under international law. The authors of these acts cannot shelter themselves behind their official positions” because their conduct is ultra vires and outside the competence of any government.

For this reason, the 1988 Federal Employees Liability Reform and Tort Compensation Act (28 U.S.C. sec. 2679) which in subsection (b)(1) generally provides that the United States is to be substituted as a defendant and that claims are to proceed under the Federal Tort Claims Act (28 U.S.C. sec. 1346) if claims arise out of the wrongful act of a federal employee “acting within the scope of his official duties,” should not apply to violations of international criminal law, since such violations are ultra vires, outside the scope of “official” duties, and beyond the lawful authority of any government. Additionally, the Supreme Court has often recognized that international law is a necessary background for interpretation of federal statutes. As evident in a 1781 Resolution of the Continental Congress, the Founders expected that “the author of … injuries [that are “offenses against the law of nations”] should compensate the damage out of his private fortune.” Justice Wilson affirmed this expectation in 1793 while recognizing that the state “should oblige [the international “criminal”] to repair the damage if reparation can be made.”

A contrary conclusion would amount to an acquiescence of international crime contrary to the rule of law and obligations of states under international law to end impunity recognized by the United Nations Security Council and General Assembly. The de facto substitution of U.S. taxpayers for those so clearly reasonably accused of international crime would be a double outrage, an unnecessary shame.

“In the criminal justice system, the people are represented by…” — well, we will have to see.

Jordan J. Paust is 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.

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