The Framework for Prosecuting Torture Under the Bush Administration
The law clearly prohibits torture under the Geneva Conventions, and as the Conventions are the supreme law of the land by virtue of the fact that the United States ratified the Geneva Conventions, the prohibitions and limitations placed upon state action in war and combat are binding upon the United States, including its officers, officials, soldiers, and civilians. Moreover, despite the best attempts of the Justice Department under the Bush Administration to create ex-nihilo extralegal classifications like “enemy combatants,” the Geneva Conventions are quite clear on the status of all persons detained by an occupying power such as the United States during wartime or combat operations.
Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. [ICRC Commentary, Fourth Geneva Convention, p. 51 (1958)].
There are three possible classifications under international law for those detained and held in ‘enemy hands,’ with no intermediate or extralegal status acknowledged under the Geneva Conventions. The successful prosecution of the individuals responsible for war crimes will entail the establishment of a legal framework substantial enough to obviate any objections to prosecution.
To begin, we must establish what torture is, and the relevant jurisdictions under which torture was engaged. Torture is defined by several relevant laws, beginning with the definition of torture under Title 18, U.S.C. § 2340, which defines torture as follows:
“(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
- “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.”
Additionally, under § 2340A, anyone who commits or attempts to commit torture shall be either fined and/or imprisoned for not more than 20 years, but if the torture results in death, the person shall be punished through imprisonment for any number of years up to and including life in prison, or by being put to death. Jurisdiction is established solely by the alleged offender being a national of the United States.
Under this federal law, torture is held to be the intentional infliction of severe pain and physical suffering, or the administration or application of mind-altering substances or procedures calculated to disrupt profoundly the senses or the personality. Sleep-deprivation and sensory deprivation would constitute the application of mind-altering procedures calculated to profoundly disrupt the senses or the personality of detainees. The mere threat of these procedures is torture under the above federal law.
Prisoners of war are held to be exempted from “physical or mental torture” or “any other form of coercion to secure information of any kind whatsoever” under the Third Geneva Convention. Additionally, if they refuse to answer questions, they “may not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind.” It’s quite simple, actually: even if the treatment doesn’t rise to the level of torture, even if it’s a mere insult or simple unpleasantness or disadvantageous treatment, a state cannot employ such methods against prisoners of war.
But let us pause for a moment to reflect on the logic of the Bush Administration and its lawyers, who carved out an extralegal classification of detainees as ‘enemy combatants’ precisely to avoid these restraints on their actions. In the opening paragraph, we noted that there was no intermediate status under the Fourth Geneva Convention, that all individuals detained in enemy hands had some status under existing international law which would preclude any extralegal classification in addition to their status as either prisoners of war, civilians, or medical personnel. Thus we can obviate the need for extralegal classifications simply by following the already widely accepted idea that all persons have status under existing international law.
But even if we accept the rationale employed by the Bush Administration, there are additional matters to consider. As a member state of the Conventions Against Torture, the United States is obligated to take “effective...measures to prevent acts of torture in...its jurisdiction.” Furthermore, “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” That’s a pretty comprehensive prohibition against torture. Inherent within the comprehensive prohibition against torture contained within the Conventions Against Torture is the idea that states which are parties to the Conventions must take effective measures to prevent acts of torture in their jurisdiction. Under § 2340A, jurisdiction is established if torture is committed by a national of the United States. Far from enabling torture by creating extralegal classifications for detainees like enemy combatant, the United States is obligated by law as a member state of the Convention against Torture to run headlong in the other direction to prevent torture without exception. As the Convention against Torture has been ratified, it is the “supreme law of the land” under Article VI, Section II of the United States Constitution, which says that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land...” This would also be applicable to the Geneva Conventions as a ratified treaty.
In essence, even if there were individuals whose status under international law was unclear, the United States was still faced with the prohibition of federal law and the Conventions against Torture, both of which outlawed the very sorts of procedures engaged in by the Bush Administration. The status of the person being subjected to such methods is irrelevant; a state simply cannot engage in the sorts of activities which have been established as torture under the law.
This is not a matter of interpretation; the laws and treaties are quite explicit and clear and preclude any extralegal or extrajudicial maneuvering which would enable any state to evade prohibitions against torture. However, the United States, with its especially clear definitions of torture under Title 18, U.S.C. § 2340, and the extension of jurisdiction to the torture taking place outside the United States, is especially bound from committing torture. No individual national of the United States of America may legally commit torture. Additionally, jurisdiction is also extended if the alleged offender is a non-national present in the United States under § 2340A. The Convention against Torture also prohibits a justification of torture on the basis of an order from a superior officer or a public authority. The fact that torture was dressed up in legal memorandums by the Justice Department and the Pentagon does not suffice as a legal justification for the acts committed in Abu Ghraib, Bagram Air Force Base, or at Guantanamo Bay.
In the case of Guantanamo Bay, jurisdiction is an area of particular concern. The military asserts that the Constitution does not apply at Guantanamo due to the fact that Guantanamo lies outside the United States. This is absurd for any number of reasons, not the least of which is Title 18, Part I, Chapter 1, § 7 (9)(A) & (B) which defines special maritime and territorial jurisdiction of the United States as “the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.”
Guantanamo Bay is a premise of the United States military, with all of its “buildings, parts of buildings, and land appurtenant or ancillary thereto used for purposes of those missions or entities” falling under the jurisdiction of the United States with respect to offenses committed by a national of the United States. Essentially, there is jurisdictional authority to prosecute individuals who violated federal laws prohibiting torture at Guantanamo Bay, under either an interpretation of Guantanamo as a premise of the United States military falling under the special maritime jurisdiction of the United States with regards to offenses committed by a national of the United States, or under an interpretation of Guantanamo as a possession of the United States under Title 18, U.S.C. § 2340. Even if you were to buy into the interpretation of Guantanamo as lying outside the United States, jurisdiction is still present under § 2340A (b)(1), which establishes that “There is jurisdiction over the activity prohibited in subsection (a) if—the alleged offender is a national of the United States.”
Should the military fall back on the grounds that the individuals who committed the acts constituting torture at Guantanamo or any of its other bases abroad were military personnel subject to chapter 47 of Title 10 of the Uniform Code of Military Justice, thus relegating them to the jurisdiction of military courts rather than civilian criminal courts, we have a basis in Title 18 U.S.C. § 3261 (d)(2) to prosecute them in civilian criminal courts regardless if the the indictment charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter.”
The use of independent contractors and CIA or intelligence operatives who supervised or took part in the violations of the Geneva Conventions, Convention against Torture, or Title 18, U.S.C. § 2340 occurring on those bases would provide for a criminal prosecution if the indictment alleged that the member subject to chapter 47 of title 10 of the Uniform Code of Military Justice committed the offense with one or more defendants, with at least one of those defendants not be being subject to chapter 47 of title 10. This is the door through which we might proceed to obliterate the government’s assertion of privilege against civilian oversight and examination of the crimes committed at Abu Ghraib, Bagram, and Guantanamo, along with any other black sites maintained by the CIA and the Defense Department.
Using this framework, it is possible to legally delegitimize the classification of detainees as enemy combatants, and we may also establish a clear definition of torture which dispenses of any parsing of the law in order to classify torture as “enhanced interrogation” or any other such nonsense. It is also possible to assert jurisdiction in federal criminal courts over the crimes committed.
We must go further and extend culpability for the wanton lawlessness of the Bush Administration to those who occupied command positions during the commission of these crimes, and we may do so by appealing to the law under Title 18, U.S. Code, § 2 (a) and (b), which establishes that “Whoever commits an offense against the U.S. or aids, abets, counsels, commands, induces or procures its commission or willfully causes an a act to be done which if directly performed by him or another would be an offense against the U.S., is punishable as a principal.” In this way we can prosecute the attorneys who authored memorandum justifying torture by perverting the law, and we may also do the same to those agents within the United States government and military who encouraged their wanton misinterpretation and perversion of the law towards these ends. Given that these violations were felonies, Title 18, U.S. Code, § 4, which stipulates that “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other [U.S. authority, shall be guilty of a felony]” may be used to prosecute these individuals as well.
While the former standard requires a willful effort to cause an act to be engaged in, the latter standard contains no such stipulation. Under ignorantia juris non excusat (ignorance of the law is no excuse), we may establish liability for the officers, bureaucrats, and officials who presided over an atmosphere which enabled, encouraged, and promoted the conspiracy to commit torture and the actual commission of acts which constitute torture under the law. The great myth of the Bush Administration is that the law is unclear; in point of fact, nothing could be further from the truth. The law is quite explicit in its definition of torture, its prohibition of torture, and the remedies thereof. Restoring the rule of law will require the establishment of the above framework in greater detail, but it will also require the will of people in positions to prosecute such wrongdoing to proceed with indictments, trials, and convictions of those responsible for one of the darkest episodes in our nation’s history. The United States rests upon the fundamental notion that no one is above the law or immune from its prohibitions and requirements. It is time to bring this fundamental notion back to prominence and to establish ourselves anew as a nation of laws and a beacon of lawful and ordered behavior to the world.