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.