Torture, extraterritoriality, terrorism, and international law.

• Author: Gathii, James Thuo
• Position: Torture: Paradigms, Practices, and Policies

INTRODUCTION

Since September 11th, 2001, there has been a growing debate over the desirability of loosening international and constitutional prohibitions against torture in the "war" against terrorism. (1) This paper critically appraises three justifications that federal courts have invoked to justify abstaining from reviewing the conditions of confinement of prisoners held on suspicion of involvement in transcontinental terrorism, including allegations of torture. The first of these justifications is that international and constitutional constraints, including those against torture and those requiring due process, do not apply to prisoners that are held outside the territory of the United States. (2) The second justification is that the prisoners were captured in the U.S. war against terrorism and the President has designated them "enemy combatants." Further, in light of the "extra-ordinary circumstances" arising as a result of the attacks on the United States on September 11th, 2001, the enhanced authority of the President's War Powers is not subject to judicial review. (3) The third justification is that where the prisoners are aliens, they are not entitled to constitutional and international protections otherwise available to citizens and friendly aliens. (4)

These grounds for abstaining from judicial review are now on appeal before the Supreme Court. (5) This article explores whether extraterritorial torture of foreign citizens in the context of the war on terrorism ought to be subject to judicial review in the United States under the rules of customary international law. In other words, does the extraterritorial location of an alleged violation of rules of customary international law against a foreign citizen preclude judicial review?

I argue that there are no justifiable grounds for denying jurisdiction to a person alleging torture under rules of universal jurisdiction, even if such a person is a foreigner captured in the course of war and is held outside the territory of the United States. To argue otherwise is problematic for at least two reasons. First, by denying jurisdiction, federal courts effectively acquiesce to allegations of torture during interrogations as well as to cruel, inhuman, and degrading imprisonment conditions. Second, denials of jurisdiction that definitively bar judicial scrutiny of the merits of executive decisions in times of war are contrary to the obligations of the United States under international law. (6) Jurisdictional denials also legitimize an international and constitutional doctrine under which there are no limitations on executive power to hold suspects indefinitely, incommunicado, and without due process even if they are tortured. (7)

To demonstrate the sheer limitlessness of this doctrine of unconstrained executive power that, in turn, justifies loosening the prohibitions against extraterritorial torture, I proceed as follows: I begin by examining how best to frame the allegations of torture in a manner that is cognizable for purposes of obtaining federal judicial power with regard to the conditions of confinement of the Guantanamo Bay detainees. I then examine the prohibition against torture under both international and U.S. law and the "extraordinary circumstances" doctrine. This doctrine has guided federal judicial responses to petitions challenging the conditions of confinement including allegations of torture of the Guantanamo Bay detainees by the confining authorities. (8) In the main part of the paper, I compare and contrast the assumption of jurisdiction with respect to extraterritorial commercial conduct with the problems associated with accepting extraterritorial jurisdiction over questions regarding the conditions of confinement of the detainees. By doing so, I show that federal courts are far more willing to assume jurisdiction over remote, extraterritorial commercial conduct (9) than they are to confer jurisdiction and enforce fundamental human and civil rights norms in the context of confinement conditions of non-U.S. nationals held extraterritorially. While it may seem that extraterritorial commercial conduct achieves opposite results from efforts to enforce fundamental rights and freedoms extraterritorially, I show that these outcomes converge in their consistency with the United States' national interest. In this part of the paper, I also show that there is a close symmetry between cases where jurisdiction has been denied to the detainees by federal courts in the United States, on the one hand, with case-law from the British colonial experience, on the other. The underlying similarity between the colonial and Guantanamo Bay cases is their invocation of extraterritoriality and foreign citizenship as rationales for precluding judicial intervention. Further, I refer to a recent European Court of Human Rights case and to the "colonial clause" of the European Covenant on Human Rights with a view to demonstrating that powerful countries have seldom been held accountable for the exercise of powers that are incompatible with basic principles of international law by their own courts. Moreover, such lack of accountability has, under some circumstances, been precluded under treaty law.

Ultimately, it is clear that the manner in which arguments about jurisdiction have been marshaled to justify a particular vision of why enemy aliens and enemy combatants cannot be heard in a federal court reinforces distinctions between those that U.S. law accords rights and those to whom it does not on the basis of race and national origin. After all, it can safely be surmised that the overwhelming majority, if not all, of the Guantanamo Bay prisoners are Muslims of Arabic or Persian descent. Further, jurisdictional denials legitimize a very expansive doctrine of executive power that justifies or acquiesces to the torture of Guantanamo Bay prisoners, which is inconsistent with the obligations of the United States under international law.

1. FRAMING THE QUESTION OF EXTRATERRITORIAL TORTURE FOR PURPOSES OF OBTAINING JURISDICTION

   As noted above, the primary focus of this paper is the emerging jurisprudence surrounding the issue of whether a federal district court has jurisdiction to consider claims of foreign nationals for violations of international law by the U.S. government in Guantanamo Bay, Cuba. One way of framing this question in the context of torture is to distinguish between claims regarding the conditions of prison confinement under international and domestic law, from claims that challenge confinement or that seek release. (10)

   The distinction is crucial because cases that challenge confinement--as opposed to those that challenge conditions of confinement--are often construed by federal district courts as interfering with executive branch decisions in matters concerning national security, even with respect to U.S. nationals. (11) By contrast, under Preiser v. Rodriguez (12) and its progeny, it is arguable that cases presented by foreign nationals regarding the conditions of their confinement are cognizable in a federal district court with regard to such matters as: requests to meet with their families, allegations of torture, (13) requests to provide notification of their status to their counsel, requests to consult with counsel, and even requests to access an impartial tribunal. In such cases where conditions of confinement are at issue, habeas corpus is not the exclusive remedy. To the extent that courts construe cases challenging conditions of confinement as petitions for writs of habeas corpus, they deviate from a clear line of authority established by the Supreme Court. (14)

   1. Torture Under U.S. and International Law

      Torture is universally condemned as a violation of international law (15) and jus cogens norms. (16) The jus cogens nature of torture confers upon courts anywhere in the world universal jurisdiction. (17) Furthermore, the United States has ratified the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (18) and has enacted implementing legislation.

      In the Torture Convention Implementation Act of 1994, (19) Congress established federal criminal jurisdiction over torture committed or attempted outside the United States regardless of the nationality of the victim, if the alleged offender was a U.S. national or if the alleged offender was present in the United States. (20) This emphasizes the significance of torture as an offense in both international and U.S. law. (21) The United States' legal commitment to punishing torture is also strengthened by the fact that the United States chose, in ratifying the Genocide Convention, not to assert universal jurisdiction outside the United States. (22) This, notwithstanding the fact that the Restatement (Third) includes genocide under its universal jurisdiction umbrella. (23) Therefore, it is clear that eliminating torture has been a priority for the United States.

      This is not all the evidence that one could marshal to make the point that torture is treated as an especially heinous crime by the United States. A 1996 amendment to the Foreign Sovereign Immunity Act added a subsection that provides for non-immunity of certain foreign states--those having been designated as state sponsors of terrorism--for acts of torture, extrajudicial killing, aircraft sabotage, or hostage-taking occurring outside the United States. (24)

      Finally with regard to jurisdiction, a state has jurisdiction to prescribe law with respect to "certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests." (25) In fact, in United States v. Bin Laden, (26) the court responded to the argument that due process requires minimum contacts with the United States by holding that "if the extra-territorial application of a statute is justified by the protective principle, such...