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Abstract
As a party to the United Nations Convention Against Torture, the United States is under an obligation to criminalize all state torture. The aim of this article is to show that the United States has failed to fulfill that obligation and should correct that failure by broadening the respective definitions of “torture” in two federal criminal statutes, the War Crimes Act and the Torture Act. The broader definition that is proposed is formulated with an eye to minimizing ambiguity and vagueness, avoiding both overcriminalization and undercriminalization, and facilitating accurate determinations of guilt or innocence.
Disclosure Statement
[No potential conflict of interest was reported by the author(s).]
Notes
1 UN Convention Against Torture, art. 4(1). “Torture,” as defined in Article 4, appears to be limited to state-authorized torture, specifically torture “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.” There has been some interest, however, in an expansive reading of “other person acting in an official capacity” to include certain non-state actors. I set this issue aside for the purposes of this article and assume that only state-authorized torture is included in the Convention’s definition of torture. For a discussion of the issue, see Welch and Kim, Non-State Actors, 117–68.
2 See ibid., art. 5(1).
3 Unites States Department of State, Sixth Periodic Report, pt. IIA.
4 In its initial report to the Committee Against Torture, for example, the United States affirms that “[e]very act constituting torture under the Convention constitutes a criminal offense under the law of the United States.” See United States Department of State, Initial Report, pt. IIA.
5 United Nations Committee Against Torture, “Concluding Observations,” pt. C, para. 9.
6 United Nations, Convention Against Torture, art. 1.
7 United Nations, Vienna Convention, art. 31(1).
8 Luban and Shue, “Mental Torture,” 832.
9 See ibid., 830. I follow Luban and Shue here and in much of this section of the paper. They equate mental pain or suffering with emotional states that feel bad.
10 United States Senate, “Congressional Record 136, S17491-01.”
11 See Luban and Shue, “Mental Torture,” 849–50.
12 United States Department of State, Initial Report, pt. II.
13 Richard, “Statement.”
14 KRS § 508.060.
15 Richard, “Statement.”
16 See ibid.
17 United States Senate, “Congressional Record 136, S17491-01.”
18 Ibid.
19 Luban and Shue, “Mental Torture,” 851.
20 Vienna Convention, art. 2.
21 Chung, “General Principles.”
22 United Nations, Vienna Convention, art. 19.
23 United Nations Committee Against Torture, “Concluding Observations,” pt. C, para. 9.
24 For a description of the debate and a plausible interpretation of the standard, see Linderfalk, “Object and Purpose Criterion,” 429–48.
25 Although I argue that the United States has not fulfilled that obligation, I do not deny that federal law prohibits all torture. The 2016 National Defense Authorization Act specifically prohibits the use of waterboarding by any agent of the government, and there is no exception made for the CIA or for private contractors (although an exception is made for federal law enforcement agencies such as the FBI and Homeland Security). Moreover, the Military Commissions Act of 2006 protects any individual in the “custody or under the physical control of the United States Government, regardless of nationality or physical location, from treatment that is cruel, inhuman, or degrading.” See United States Congress, National Defense Authorization Act for 2016, § 1045; United States Congress, Military Commissions Act of 2006, § 6(c)(1).
26 See 10 U.S.C. § 893.
27 18 U.S.C. § 242.
28 United States Department of State, Periodic Report, para. 9.
29 See 18 U.S.C. § 2441.
30 See 18 U.S.C. § 2340(1)-(2).
31 See Zach, “Definition of Torture,” 64.
32 Ibid., 68.
33 See ibid.
34 United States Senate, Congressional Record 136, S17491-01.
35 United Nations, Convention Against Torture, art. 2(2).
36 Zach, “Definition of Torture,” 55–56.
37 Presumably, the waterboarding practiced by the CIA was not specifically intended to inflict prolonged mental harm. If that is correct, then it does not qualify as mental torture under either the War Crimes Act or the Torture Act. Furthermore, it does not count as physical torture under the War Crimes Act because, under that act, severe and even merely “serious” physical pain or suffering requires a bodily injury that involves one or more of the following: (i) a substantial risk of death; (ii) extreme physical pain; (iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or (iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty.
38 I disagree with Luban and Shue here. They claim that duration is not a relevant factor for assessing whether physical pain or suffering is severe under the Torture Act. See “Mental Torture,” 842–43.
39 A Department of Justice memo describes the officially sanctioned procedure of waterboarding as producing “the perception of ‘suffocation and incipient panic.’” See Bybee, “Memorandum,” 3–4.
40 See Levin, “Memorandum”; see also Bradbury, “Memorandum.” Both Levin and Bradbury deny that the CIA’s waterboarding program violated the Torture Act on the grounds that the suffering inflicted was of insufficient duration to count as torture.
41 In 2006, “Chuckie” Taylor, American-born son of the former President of Liberia Charles Taylor, was indicted under the Torture Act for acts of torture that included beating people to death, rape, and burning civilians alive. See Indictment, United States v. Charles McArthur Emmanuel (a.k.a. “Chuckie Taylor”), No. 06-20263 (Southern District of Florida, April 28, 2006).
42 Organization of American States, Department of International Law, Inter-American Convention, art. 2.
43 42 U.S.C. § 1004(a).