By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
On August 11, 2011 it was reported that a Federal Appeals Court in Chicago was allowing an American citizen to continue forward his Bivens action against Donald Rumsfeld for his alleged torture in Iraq. An article on this case is available at http://www.democracynow.org/2011/8/11/us_navy_vet_sues_donald_rumsfeld. The particular case is, of course, a civil case. But what about criminal prosecution?
Obviously, a Federal Prosecutor such as John Durham could investigate the same facts that arise in the civil case in federal court and determine whether Rumsfeld should be criminally liable under federal law for the alleged torture. Given the lack of interest in President Obama in looking backward and what has transpired over the past few years, the question arises whether such a prosecution would be started in federal court by a federal prosecutor.
Another option which might be also considered would be a state criminal prosecution under relevant state statutes such as conspiracy and crimes like assault, battery, etc in the relevant state where the injured U.S. and state citizen is from. Each of our states has an interest as a sovereign under its powers to protect its citizens from depredations by the lawless. And, as James Madison noted so many years ago in the Federalist Papers, our federalism with dual sovereigns provides a double protection to the rights of the people.
One question that would arise is whether the relevant jurisdiction of state courts can be found for what has occurred in Iraq. I have looked at these types of issues with regard to murder and conspiracy to commit murder and the answer on state jurisdiction is dependent on the plenitude of the state’s assertion of jurisdiction in its laws. States can reach activities that occurred outside their states and even overseas but that does not mean that the relevant statutes of a given state permit such jurisdiction. A state by state analysis would have to be done.
Of course there are issues of federal officer removal of the state court case to federal court and even habeas type actions that might arise in this setting. Federal officer removal is a relatively underexplored arena in the criminal setting in our federalism that I had the opportunity to review over the past couple of years. There are also various types of defenses that might be sought to be asserted on federalism grounds by Rumsfeld to such a prosecution. There may also be substantive defenses.
The point though is not that there are hurdles, but that a state prosecutor in the location of the victim may gather the evidence and seek an indictment and prosecution of Rumsfeld under current law. Such a state prosecutor is autonomous from the federal government and therefor is not subject to the political or other considerations of a sitting President and his worries or policies about a former President’s subordinate’s alleged criminal activity. Even if the case is removed to federal court, the state prosecutor has a bit of space as compared to the federal prosecutor within the Department of Justice structure coming from his role derived from the state and not from the federal role. That is a fairly unique feature of our separation of powers and federalism that sometimes gets lost in the shuffle of discussion.
This note is to raise this idea for a state prosecutor who feels that the citizen involved here has been victim of a crime under state law and willing to take on the task of seeking such a criminal prosecution of Rumsfeld. Of course, at the same time, it would be a state law way of vindicating the absolute ban on torture under international law but through the use of a domestic law instrument at the state law level. One of the interesting issues that might come out of this would be, for example, the state secrets privilege. Does the state secret privilege belong to the federal government or to both the federal and state sovereigns in our system. For surely in our system of limited government the “state” is both entities that are to work together and to be in opposition as was foreseen by the framers as a way to protect the citizens.
The passivity of the past Administration and the current Administration to crimes that were committed necessitates us examining all options to vindicate our international law obligations on torture and cruel inhumane and degrading treatment in our domestic courts. At least, that is where I have ended up after watching all that has gone on in my name as an American citizen over the past ten years.