Torture Statute in the United States
Laws Against Torture: Other U.S. Anti-Torture Laws
Introduction to Torture Statute
In 1994 the U.S. Congress adopted the Torture Statute, which provides criminal liability for a U.S. national who tortures a person outside of the United States. (A U.S. national is a U.S. citizen or a noncitizen who owes permanent allegiance to the United States, such as a resident of Puerto Rico.) A foreign national apprehended in the United States for torturing someone outside of the United States could also face criminal liability under the Torture Statute. The U.S. War Crimes Act of 1996 provides life imprisonment or the death penalty for a U.S. national or any member of the U.S. armed forces who is convicted of torturing someone to death. Under this act, a non-U.S. national could also be charged with war crimes if their victim was a U.S. citizen. Anyone charged with a grave breach of the Geneva Conventions could also be tried in the United States under the War Crimes Act.
In December 2005 the U.S. Congress passed a new law known as the McCain amendment, for U.S. senator John McCain, a Republican from Arizona who was himself tortured as a prisoner during the Vietnam War. The amendment was added to the Detainee Treatment Act. The McCain amendment resulted from an admission by Alberto Gonzales during his confirmation hearings to become attorney general. Gonzales said the Bush administration did not regard laws and treaties prohibiting cruel, inhuman, or degrading treatment or punishment to be applicable to prisoners in U.S. custody outside the United States. This admission was followed by the disclosure that the CIA operated secret prisons abroad where it used harsh interrogation techniques regarded as torture by many people familiar with them. The McCain amendment was meant to close this loophole, explicitly stating that “no individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.”
In signing the law, however, President Bush issued a “signing statement,” presented as the U.S. president’s interpretation of a law. The signing statement indicated that interrogation restrictions could be waived if the president, as commander-in-chief, thought the waiver would assist in preventing terrorist attacks. The McCain amendment seemed to be tangled up in other issues, as well. It had no enforcement mechanisms and did not provide for criminal or civil penalties. And another amendment attached to the Detainee Treatment Act enabled testimony “obtained as a result of coercion” to be used in combat status review tribunals against detainees held at Guantánamo Bay, Cuba. That same amendment removed jurisdiction from federal courts to hear applications for writs of habeas corpus challenging conditions of detention, which are filed on or behalf of aliens held at Guantánamo.
In September 2006 the Department of Defense issued a new Army Field Manual that applied the Geneva Conventions to all detainees, not just those classified as prisoners of war. The new manual also banned specific interrogation techniques or other controversial methods, such as using dogs to threaten detainees, placing prisoners in solitary confinement for long periods, and waterboarding, a technique that simulates drowning.
The following month President Bush signed into law the Military Commissions Act of 2006. The law granted immunity to any U.S. officials accused of cruel, inhuman, or degrading treatment of detainees during the period prior to passage of the Detainee Treatment Act of 2005, the period when the worst abuses occurred in Afghanistan, Iraq, and Guantánamo. Similarly, the law allows that evidence obtained through coercion prior to 2005 may be admitted into trial if a military judge finds it “reliable” and serving the interests of justice. For evidence obtained after 2005, no coerced evidence could be admitted if a military judge determines that it was obtained through cruel or inhuman interrogation methods. The new law also enabled the president to determine what interrogation techniques are permissible, without explicitly describing those techniques. The law also removed “outrages upon personal dignity” and “humiliating and degrading treatment” from the list of offenses punishable under the U.S. War Crimes Act.” (1)
Resources
Notes and References
- Information about Torture Statute in the Encarta Online Encyclopedia