in which I go on at great length about actual Federal Laws that appear to have been broken by the Bush Administration and its servants, and I have not yet reached Jose Padilla
“When Americans torture foreigners abroad, a crime is committed. And when someone dies abroad as a result of American torture, it is a capital crime. I remind readers of 18 U.S.C. Sections 2340 and 2340A, which provide:
below the fold
“2340 (1) “torture” means an act committed by a person acting under 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 profound1y 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:
(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.”
Readers will note that the methods for causing someone to become tortured are not restricted, so torturing someone by employing foreign assistants is not obviously excluded from the statute’s coverage. Nor is there an exclusion for Americans acting under color of authority. Under this reading, persons who participate in ‘extraordinary renditions’ by transporting a victim to a foreign land and participating in torture-based interrogations are as guilty as people who wield the rubber hoses and electric wires themselves. The people who flew the participants and victims to the torture site are their co-conspirators, subject to the penalties of 2340A(c).
Of course, noting what recently has happened at the end of Presidential terms, Americans who might have gone to foreign lands to torture people may be hoping for Presidential pardons. These people are perhaps still covered by the Convention on Torture (e.g. http://www.ohchr.org/english/law/cat.htm ) (a ratified treaty, the ‘Law of the Land’) which provides in part:
“Article 1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
Claiming that the torture was carried out as part of the War on Terror and was therefore protected by some Presidential Order encounters in the same convention:
“Article 2. ….2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.”
In any event, a Pardon deals with criminal matters, and does not void the civil liability created when the United States Senate ratified the same convention
“Article 14 1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation,…”
Extraordinary Rendition Might Be Kidnapping
In addition to the statutes relating to torture, the United States also has laws relating to kidnapping. In particular
“U.S.C. 18 Chapter 45 § 956. Conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country
(1) Whoever, within the jurisdiction of the United States, conspires with one or more other persons, regardless of where such other person or persons are located, to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States shall, if any of the conspirators commits an act within the jurisdiction of the United States to effect any object of the conspiracy, be punished as provided in subsection (a)(2).
(2) The punishment for an offense under subsection (a)(1) of this section is–
(A) imprisonment for any term of years or for life if the offense is conspiracy to murder or kidnap; and
(B) imprisonment for not more than 35 years if the offense is conspiracy to maim.”
In the case of the Italian extraordinary renditions, there is an Italian Magistrate’s finding on June 23 of this year that the removal of Hassan Mustafa Osama Nasr from Italy to Egypt was a criminal act, for which arrest warrants were issued for 13 U.S. intelligence agents. Would this constitute kidnapping or maiming if performed inside the United States?
U.S.C. 18 Chapter 55 § 1201 seems fairly clear on kidnapping:
“(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when–
(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary if the person was alive when the transportation began…
shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.”
Extraordinary rendition would appear to fit well under this description. One would need a detailed description of the tortures employed against the persons who had been rendered to know if the tortures satisfied the legal description of maiming. For the persons who rented the aircraft, processed the checks, etc., there is also the conspiracy section:
“(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.”
Taking Hostages is a War Crime
Nor is torture the only technique to which we have fallen. The United States and Iraq are both contracting parties of the Fourth Geneva Convention (1949) which provides in part
” The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance…In the case of occupied territory, … the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12…”
Which includes Article 3:
” In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:…(1) Persons taking no active part in the hostilities … shall in all circumstances be treated humanely…To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons …
(b) taking of hostages…”
But we read in the Washington Post of Monday, July 28, 2003 on page A01, the front page:
“U.S. Adopts Aggressive Tactics on Iraqi Fighters Intensified Offensive Leads To Detentions, Intelligence By Thomas E. Ricks Washington Post Staff Writer Monday, July 28, 2003; Page A01 Col. David Hogg, commander of the 2nd Brigade of the 4th Infantry Division, said tougher methods are being used to gather the intelligence. On Wednesday night, he said, his troops picked up the wife and daughter of an Iraqi lieutenant general. They left a note: ‘If you want your family released, turn yourself in.’ Such tactics are justified, he said, because, ‘It’s an intelligence operation with detainees, and these people have info.’ “
It is inapparent how such tactics can be justified under International Law. Indeed, given that the wife and daughter appear to have been non-belligerents, the Fourth Geneva Convention appears to come into play. For these people are referenced by the convention as
“Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”
And the Convention provides with respect to protected persons
“Art. 147. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”
Violations of the convention, such as hostage taking, are treated under Federal Laws
“U.S.C. 18 Chapter 118 §2441. War Crimes
(a) Offense.– Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances.– The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
(c) Definition.– As used in this section the term “war crime” means any conduct–
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party; “
It appears challenging if the published reports were accurate to avoid the conclusion that hostages were taken and it might then be the case that this is a ‘Grave Breach” of the Geneva Convention and that USC 18 118 2441 might be applicable.
Detainees in Afghanistan and Elsewhere Are Protected
After the invasions of Afghanistan, the Bush Administration surfaced with the notion that some of the people who had been captured were not Prisoners of War, and were also not protected civilians. This matter is also covered by the Geneva Convention, namely
“Art. 5…. Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention….”
It is not apparent to all parties that the Guantanamo detainees have been treated this way. Would more senior officers have known, or might activities of juniors have passed unnoticed? Fortunately the press does on occasion have access to Guantanamo. I quote from an MSNBC interview of June 29, 2005 http://www.msnbc.msn.com/id/8408074/ between MSNBC reporter Natalie Allen and an MSNBC analyst, Retired Army Col. Jack Jacobs, an MSNBC analyst, returned from a trip to the facility this week and sat down with MSNBC’s Natalie Allen on Wednesday to discuss his impressions of the prison. Asked about his access to the base while visiting, Jacobs answered “: Well, it’s probably an exaggeration to say we had the run of the place, but we saw absolutely everything, everything we wanted to see. Nothing was held back. It’s not a very big place, so it’s difficult to hide anything anyway, but we had complete and total access to everything.” And asked if there were signs of misconduct or abuse, Jacobs answered “… I can tell you this, the lay of the place, the way it was arranged, the way the interrogations were conducted, by whom they’re conducted, and the supervision that takes place indicates to me that it’s going to be extremely difficult to abuse anybody without somebody knowing about it….”
It would be possible to go on at considerably greater length about these issues.