Prosecuting Torture

In the ongoing struggle of the Liberals against the now past administration of President George W. Bush the argument over the interrogation of the terrorists held at the Guantanamo Bay Detention Facility (Gitmo) continues to rage. The Liberals are determined to see President Bush, Vice-President Cheney, and a host of other Americans tried for the crime of torture.

Conservatives are similarly determined that, if these people are tried on the charges of torture, then Speaker of the House Nancy Pelosi and a number of other Democrats who knew of the techniques being used and failed to dissent despite having oversight of the proceedings are tried as well.

Since both sides – Liberal and Conservative – of the argument are trying to use the law to attack their enemies, it behooves us to know that law. Under United States law torture is a federal crime and is defined under Title 18, Part I, Chapter 113C of the US Code:

2340. Definitions

(1) torture means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) severe mental pain or suffering means the prolonged mental harm caused by or resulting from

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) United States means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

2340A. Torture

(a) Offense. Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction. There is jurisdiction over the activity prohibited in subsection (a) if

(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c) Conspiracy. A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

2340B. Exclusive remedies

Nothing in this chapter shall be construed as precluding the application of State or local laws on the same subject, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any civil proceeding.

Read the law as it is written above (please, refer to the source for proof) and either weep, rage, or laugh as it pleases you to do. Anyone’s hope of prosecuting anyone involved in what happened at Gitmo is in vain, dashed to oblivion upon the reality of American law.

Let us start with the legal definition of torture. The “enhanced interrogation techniques” used at Gitmo do not meet the legal definition of torture under Title 18, Part I, Chapter 113C, 2340 of the US Code. The US Code specifically defines torture as an “an act committed by a person acting under the color of law.”

To the best of my knowledge and the consternation of many Liberals, nothing done at Gitmo was being done under the Color of Law. Everything done at Gitmo was extra-judicial in nature and therefor nobody was operating under the Color of Law.

Then there’s the specifics of the offense of torture. The “enhanced interrogation techniques” used at Gitmo do not meet the legal definition of torture under Title 18, Part I, Chapter 113C, 2340A of the US Code. The US Code specifically define a person subject to being charged with the offense of torture as, “Whoever outside the United States commits or attempts to commit torture….” This means that the statute only applies to actions that take place outside of America.

The detention facility at Guantanamo Bay is a US possession and therefor qualifies as being within the United States per Title 18, Part I, Chapter 113C, 2340 of the US Code. Nobody at Gitmo was outside of the United States for the purposes of the statute and so they cannot be charged under it.

So…we can’t prosecute anyone under US law for “torturing” the illegal combatants and terrorists held at Gitmo. US law is written in such a way as to prevent this from happening.

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10 Responses to “Prosecuting Torture”

  1. snaggletoothie Says:

    Thanks for this post. There has been much written and spoken about this issue but this is one of very few things that actually sheds some light on the topic.
    I think you should have also covered the codicil that says, “Under no circumstances can any Democrat ever be charged or found guilty of a crime. PBS, MSNBC and the other networks working for the DNC are charged with carrying out this essential provision of extra-constitutional democracy f**king.” Some wiseass has called this catch 22.

  2. thekillerj Says:

    Thanks for breaking it down like that and doing the research. Helps clarify the mass of horseshit spewed out by all the media outlets.

  3. jonolan Says:

    snaggletoothie & thekillerj,

    Thank you both for the encouragement. This wasn’t an easy post to put together, both due to the need to research the meaning of the law in question – legalese not being my 1st language – and my dislike for my findings in the matter.

    Don’t get me wrong, I have few problems with what we did at Gitmo. I’m just shocked and somewhat appalled by how the US legislators wrote the torture statute in such a way as to have it only apply outside of the US and only to apply to certain classes of perpetrator – those under “color of law.”

  4. Max Says:

    Again I’m afraid I have to correct you. Torture is defined as an act committed under the colour of law, which means simply “having the appearance of legal authority” (whether real or not). Since only the US military has legal authority to regulate military property and land, any act of torture perpetrated by an American soldier on military property is carried out under the colour of law.

  5. jonolan Says:

    I’m afraid I have to correct you in this matter. Color of Law is, by longstanding precedent, limited to the criminal justice system and law enforcement personnel. For other matters, we have the term, “Color of Authority,” which indicates that a person is claiming or implying the acts he or she is committing are related to and legitimized by his or her role as an agent of governmental power.

    Since no charges were being filed at that time against the subjects, the torturers – let’s be morally honest – could not be operating under the “Color of Law.”

    The specific choice of the phrase, “Color of Law” and the legalism involved in that choice, along with the restriction that the law didn’t apply within the boundaries of US terrorist is quite telling, at least to me.

  6. Sheilanagig Says:

    Yes I bet that was difficult to write jonalan and a good job.

    Good thing that the US is not the only country in the world and that it’s legalities apply only to domestic prosecutions. Other countries in the world are free to hold the US internationally responsible, e.g. Spain. The outcry against the torture imposed by US military in more places than just Gitmo is global.

    And US law and definitions do not apply to the Geneva Convention. Can the thugs of torture be tried inside the US – maybe, maybe not. Can they be held accountable internationally, yes. And may still be.

    But I am not holding out much hope. Look what Kissinger got away with!!!!

    There is no doubt tho that the pressure is being kept up on the Iraq and Gitmo torture by the US and international public. And this is a good thing. It’s not going away until we address it; I doubt we will find the answers in legalese tho.

    Thanks for your excellent post.

  7. Max Says:

    Apologies, I confused “colour of law” and “colour of authority”.

  8. jonolan Says:

    No problems, Max. I had to do a lot of research on that one myself along with the implications of choosing Color of Law over Color of Authority. The phrases have been used interchangeably in common rhetoric, but has different legal meanings / intents / implications.

  9. jonolan Says:

    Those are whole different issues, Sheilanagig, with their own nightmare problems.

    The Geneva Convention doesn’t protect the detainees at Gitmo and the US isn’t a signatory to the Rome Statute of the International Criminal Court and isn’t under its jurisdiction. Additionally, America normally applies such Reservations, Understandings, and Declarations (RUDs) to the treaties we’ve signed so as to make them “non self-executing.” This means the US is only bound to uphold the details of a treaty if their is US Law in place to address the situation (i.e. torture)

    On the other hand, Spain is welcome to try anyone it wants to, for all the good it will do beyond publicity.

  10. Catiline Says:

    Jonolan, please allow me to join these other comments in praising you for doing the actual research. A great amount of journalistic discussion has been devoted to 2340… a quick Google search of “united states torture laws” pulls up almost exclusively hits devoted to this statute, and it is the only law mentioned on Wikipedia! It is incredible to me that all of this discussion would be devoted to a law that, as you so clearly point out, only applies OFF of U.S. soil.

    As I pointed out in a companion discussion we’re having on my site, though, the applicable law prohibiting torture, also in U.S.C., is in Section 2441 of the War Crimes Act, and prohibits torture in and out of the United States. The Military Commissions Act has made it harder to prosecute for violations of the War Crimes Act, but it hasn’t made torture any less illegal.

    This point about the War Crimes Act is especially relevant in light of your comment above about the “non self-executing” nature of treaties… the beauty of the War Crimes Act is that it specifically implements parts of the Geneva Convention as good old red, white, and blue United States law.

    Perhaps I’m missing something, though… I welcome anyone who can shed light on my ignorance.

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