Wednesday, May 13, 2009

Conspiracy to Commit Torture

Within and without the U.S. government, debate continues about whether there should be legal accountability for the United States’ detainee policies, especially where those policies amounted to a license to torture and otherwise mistreat individuals in U.S. custody. (Prior IntLawGrrls posts on this issue may be found here.) Although little serious debate now occurs about whether particular techniques, such as waterboarding, constitute torture, questions remain as to the theories of penal responsibility that might be employed to reach senior levels of the Bush Administration.
Folks interested in this issue would do well to revisit the case law under the operative statute, the so-called Torture Act, 18 U.S.C. § 2340, which was enacted upon the United States’ ratification of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
One does not have far to go.
To date, the only case to proceed under that statute is that against Charles “Chuckie” Taylor, Jr. aka Charles Emmanuel (left), the son of ex-President Charles Taylor of Liberia and a presumptive U.S. citizen who was apprehended at the Miami airport on passport fraud charges. (See posts here). He was later indicted by a grand jury for torture, conspiracy to commit torture and carrying or using firearms in connection with a felony (an enhancement statute, 18 U.S.C. § 924). The most important opinion generated during the case is here: United States v. Charles Emmanuel, 2007 U.S. Dist. LEXIS 48510 (S.D. Fl. July 5, 2007) (upholding constitutionality of the federal torture statute).
An oft-overlooked aspect of the Torture Act is that it criminalizes not only the commission and attempted commission of acts of torture, but also the conspiracy to commit torture:

(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.

This provision does not find a direct parallel in the Torture Convention, which at Article 4 directs state parties to enact penal legislation as follows:

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
The lack of specific mention of conspiracy liability in the treaty is not surprising given that many nations, especially those of the civil law tradition, either reject conspiracy liability outright or utilize more limited notions of conspiracy (in some cases limiting conspiracy liability to crimes against the state, such as sedition).
With representation from the Federal Public Defender, Taylor fils challenged the indictment against him, arguing inter alia that:
► Congress exceeded its authority in enacting the Torture Act, because the definition of torture does not precisely match the treaty definition, as torture can be prosecuted even where the pain and suffering are not inflicted for the purposes of intimidation, coercion, or for obtaining a confession as is stated in the treaty;
► Congress did not intend the Torture Act to apply extraterritorially;
► His prosecution violated the principle of sovereign immunity;
► The statute is void for vagueness, especially in light of contradictory memoranda emerging from the Department of Justice (the 2002 Bybee memo and the 2004 Levin memo superseding the Bybee memo) on the definition of torture; and
► The prosecution lacked a sufficiently nexus to the U.S. in violation of his 5th A due process rights.
The court disposed of these arguments with ease:
► Congress had the authority, and indeed was obligated, to enact the Torture Act in light of the U.S. ratification of the Convention Against Torture, which requires implementing legislation. Congress does not exceed its authority under the Necessary and Proper Clause of Article I of the Constitution when it does not enact treaty language verbatim, so long as the statutory language
bears a rational relationship to the stated objectives of the Convention.
Id. at *24. In any case, the court noted, the Offenses Against the Law of Nations Clause of Article I would also provide the necessary authority. Id. at *25-28.
► The statute applies extraterritorially by its express terms, which reach torture committed “outside the U.S.” Id. at *32-33. Furthermore, the court held that because the substantive statutory provision targets extraterritorial conduct, so too does the conspiracy provision. Id. at *33 (iting United States v. Layton (9th Cir. 1988), overruled on other grounds, Guam v. Ignacio (9th Cir. 1993)).
► On the sovereign immunity argument, the court ruled that the Foreign Sovereign Immunities Act does not apply to criminal actions, per binding 11th Circuit authority in the Noriega case. Id. at *40.
► On vagueness, the court held that the allegations in the indictment, coupled with the specific intent statutory language, sufficiently advised the ordinary person of the prohibited conduct. Id. at *43-45.
► On the due process challenge, the court ruled that the defendant’s presumptive U.S. citizenship (he was born in Boston) was a sufficient nexus to justify the application of the statute against him even for extraterritorial acts with no other connection to the United States. Id. at *45-*47. The Taylor case thus involved the nationality principle of jurisdiction rather than universal jurisdiction per se. The court specifically reserved the question of whether Taylor's mere attempt to enter the United States would have been a sufficient nexus for due process purposes, leaving open the question of whether the U.S. can constitutionally exercise "pure" universal jurisdiction. Id. at *47-48 n.12.
In October 2008, as we posted, a jury convicted Taylor of conspiracy, torture, and the possession of firearms during the commission of same and sentenced him to 97 years’ imprisonment.
It remains to be seen whether Taylor pere will follow in the footsteps of his son.
Across the pond, the Special Court for Sierra Leone recently rejected Charles Taylor Sr.'s Motion for Judgment of Acquittal.

1 comment:

Mary said...

Does anyone know the status of Chuckie Taylor's appeal and/or know where to access the appellate briefs? Thanks!