By Benjamin G. Davis, Associate Professor, University of Toledo College of Law
A colleague brought to my attention this week an article concerning the effort to extradite former Acting General Counsel John Rizzo of the Central Intelligence Agency to places such as Pakistan for him to stand trial for murder with regard to persons killed by drone strikes. This article struck a chord with me because John Rizzo played the key role in authorizing drone strikes on individuals in this administration, but also was a key player as detailed in the Department of Justice Office of Professional Responsibility Report released by Attorney General Holder in seeking legal cover/clarity for the CIA persons engaged in the torture under the Bush Administration. Rizzo also spoke at my law school last year as part of a law review symposium on the Military Commissions in which persons from the floor raised issues about his role in the torture. This article also struck me as I work this summer on topics related to accountability in our federalism and separation of powers for a law review article looking at state criminal prosecution of a former President.
The legality of drone strikes has been the subject of much debate as persons have argued whether they should be analyzed under the legal regimes of international humanitarian law, international human rights law, domestic law such as the Authorization for Use of Military Force, or a construct that has sought to be seen as emerging that might be called international self-defense law. The analysis of the torture over the past years has also sought to look for treaty, customary international law, and domestic federal statutes. For example, we have recently been made aware that two criminal cases concerning torture and the CIA are going forward at the suggestion of US Attorney John Durham. Durham was tasked by the Attorney General at the Department of Justice to review 101 cases regarding detainee treatment and the CIA to see if there were any cases where the treatment was outside the boundaries of the legal advice given. Finally, the definition efforts for the crime of aggressive war in the Rome Statute that recently occurred at Kampala are another aspect of trying to articulate rules for criminal responsibility for actions taken by state actors.
I have looked at drone strikes under different lenses of law. I have urged criminal prosecution of high-level civilians and military generals in U.S. domestic courts for torture and cruel inhuman and degrading treatment. I have questioned the legality of the War in Iraq.
It occurred to me over the past couple of days that there is a common thread across these issues of drones, torture, and illegal wars. The unifying thought was that the use of drones, interrogation, and armed conflict each have various legal regimes that shape them and form the universe of what we see as what is legally permissible. The legality of the manner in which state actors operate in these areas are derived from both domestic and international law rules. The powers of any individual official to act are derived from the internal state structure such as the Constitution.
Just like there is the known universe of these rules that apply for these areas, I started to wonder about what is not seen in the universe: when state actors act with malice aforethought or sufficient mens rea and actus reus to be a crime. It occurred to me that this part of the universe of law might be viewed as the dark matter in a similar fashion to how the term is used in astrophysics. Dark matter has not been seen but is used as a way to explain certain phenomenon that are inexplicable by what is seen in the known universe.
An example of dark matter would be a drone strike which does not fit within the proper categories of legality. I thought of this type of dark matter when reading a February 13, 2011 Newsweek article (http://www.newsweek.com/2011/02/13/inside-the-killing-machine.html) on the use of drones which states:
“A look at the bureaucracy behind the operations reveals that it is multilayered and methodical, run by a corps of civil servants who carry out their duties in a professional manner. Still, the fact that Rizzo was involved in “murder,” as he sometimes puts it, and that operations are planned in advance in a legalistic fashion, raises questions.
More than a year after leaving the government, Rizzo, a bearded, elegant 63-year-old who wears cuff links and pale yellow ties, discussed his role in the CIA’s “lethal operations” with me over Côtes du Rhone and steak in a Washington restaurant. At times, Rizzo sounded cavalier. “It’s basically a hit list,” he said. Then he pointed a finger at my forehead and pretended to pull a trigger. “The Predator is the weapon of choice, but it could also be someone putting a bullet in your head.”
From the quote, the person tasked with the determination of who would be subject to a strike would sometimes refer to these actions as “murder.” For me, it is not possible to dismiss out of hand the use of that type of language about some of the State’s action. Such use of the term murder brought up the possibility that some drone strikes might not be legally justified (whatever the legal regime one asserts) and thus would be properly defined by someone with expertise as murder. Such a murder by the state that was not under a legally permissible regime would form, it appeared to me, part of the dark matter of state responsibility without state legality. In that space, one is tasked with finding how the legal superstructure should respond to the illegality. Do the normal tools of immunity etc still operate in this sphere of dark matter or are the constructs we normally view no longer protective of the State’s servitors precisely because they have stepped outside the outer perimeter of what is legally permitted?
A similar view of dark matter can be seen in two phases in thinking about torture. First, those acting outside the confines of the legal advice on torture would be operating in the state’s administratively determined legally impermissible space of this dark matter. Next, are those who operate within the confines of legal advice or those who draft legal advice where that advice itself forms part of the dark matter by trying to make legal things that are not. Again, what is the response of the legal superstructure to persons in these two areas of the dark matter?
A further view of dark matter can be seen in the taking of a country to war on false pretenses. While constitutional forms are followed, at a fundamental level, what if the leader has the mens rea that causes a war that resembles or is aggressive war? Do the outer perimeters of the leader’s Constitutional and Congressional powers protect the leader? Has the leader by so stepping outside of rules moved into a space of dark matter in which the normal protections may no longer be operable? If so, what then should be the approaches to the person who has an official capacity yet who departs from the constaints upon that official capacity through his mens rea in doing his acts?
Whether in drones, torture, or illegal wars, the evidence of things not seen suggests that there is dark matter that might need to be brought to light to help us more completely understand the universe of the State in which we live. In understanding, maybe we can learn to comprehend the manner in which such departures by leaders into the dark matter can be properly addressed and integrated to complete our sense of what we need to confront in this existence.
A question that John Rizzo asked that seemed to be directed at law professors, as quoted in the article is, “How many law professors have signed off on a death warrant?” Such decisions are no doubt terrible in the context of proper state authority, but when said state authority goes after persons who are only perceived as threats, I sense that we are stepping into the dark matter. The question reminded me of a veiled threat made to me at an American Society of International Law meeting when I called out a former CIA person on the importance of criminal prosecution of even paper pushers.
Rather than made fearful by such aggressive language about bringing death, law professors might think to renew their vigilance in their role of bringers of light to help understanding of our state. If we do not continue then one can imagine that the dark matter might include even worse questions in the future such as, “How many death warrants have you signed for law professors?” where perceived threat becomes the only measure for the state to react lethally.
Maybe one of the central tasks of the law professor is to bring light to dark matter in various areas of the law and society in an attempt to hold back the state’s lethality to assure the space of dissent, dialogue, and human liberty with security. The other central tasks may be to train our students to in turn do the same when we are gone. The third may be to write things so that the memory of these efforts remains for future generations faced with the same or similar dark matter.