A federal district court has ruled for the first time that the 1994 Congressional statute known as “the Torture Act” is constitutional. This statute, 18 USC §2340-2340A, provides that the United States may prosecute those who have tortured human beings outside the confines of the United States, so long as the accused is a US national, or found within the US. The Torture Act was approved by Congress following the adoption by the United States of the United Nations’ Convention Against Torture.
The defendant in this case, Charles McArthur Emmanuel, more familiarly known as “Chuckie Taylor,” is the son of former Liberian President Charles Taylor, who is himself currently on trial before an in-ternational war-crimes tribunal in the Hague. Emmanuel had argued that Congress im-permissibly exceeded its authority in approving the Torture Act. But in its 87-page decision in US v. Belfast II, a three-judge panel of the United States Court of Appeals for the 11th Circuit told Emmanuel to blow it out his kiester.
“The United States,” the panel held, “validly adopted the CAT pursuant to the President’s Article II treaty-making authority, and it was well within Congress’s power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture.”
That the Torture Act has been ruled constitutional is not good news for those BushCo War On Terra-era US government agents and contractors currently under investigation by the extraordinarily tight-lipped special prosecutor John Durham. Because the Act would apply to them, too.
In its opinion the Belfast II court noted that “[t]he facts of this case are riddled with extraordinary cruelty and evil.”
Emmanuel, born in the United States in 1977, joined his father, Charles Taylor, in Liberia in 1992. When his father assumed the presidency in 1997, Emmanuel was charged by him “with overseeing the state’s creation of an Anti-Terrorism Unit (“ATU”)—also known in Liberia as the ‘Demon Forces’—which was responsible for protecting Taylor and his family.”
The ATU was Emmanuel’s self-described “pet project.” At Gbatala and elsewhere, ATU affiliates referred to Emmanuel as “Chief,” and his license plate read “Demon.” Between 1999 and 2002, the defendant wielded his power in a terrifying and violent manner, torturing numerous individuals in his custody who were never charged with any crime or given any legal process.
The opinion recounts that Taylor and/or people under his command shot people in the head and then beheaded them, beat them until they defecated, stabbed them, forced them to eat burning-hot cassava stems, dripped molten plastic onto their naked bodies, burned them with cigarettes, slowly sawed off the heads of living human beings with a three-foot knife, cut up their genitals, shoved stinging ants into their bodies, force-fed them cigarette butts and their own urine, burned them with irons and candles and scalding water, and shocked them with cattle prods.
Taylor resigned the presidency in 2003 and fled the country. Emmanuel left that same year. From Trinidad, he contacted US officials and offered to join the US Marines.
In 2006 Emmanuel arrived in Miami on a flight from Trinidad and was arrested for attempting to enter the US on a false passport. In November of 2007 a grand jury indicted Emmanuel on six counts of torture and conspiracy to commit torture and two firearms counts. After a one-month trial Emmanuel was convicted on all counts. He was sentenced to 97 years in prison.
On appeal, Emmanuel contended, among other things, that Congress had exceeded its authority in approving the torture statute under which he was convicted. The Belfast II court disagreed.
First the court reviewed the approval by the US of the Convention Against Torture and congressional enactment of the Torture Act, and outlined the provisions of the latter:
Congress passed the Torture Act to implement the United States’s obligations under the Convention Against Torture, which itself was the product of a long-evolving international consensus against torture committed by official actors. The preamble to the CAT recognizes the obligation of nations, under the U.N. Charter, to “promote universal respect for, and observance of, human rights and fundamental freedoms.” The preamble thus announced the treaty’s broad purpose of “mak[ing] more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world” . . . .
President Reagan signed the Convention Against Torture on April 18, 1988, and approximately one month later, the CAT was transmitted to the Senate for its advice and consent, along with seventeen reservations, understandings, and declarations . . . . Because the resolution of advice and consent from the Senate specified that the CAT was not self-executing, Congress passed the Torture Act, 18 U.S.C. §§ 2340-2340A . . . .
The Torture Act defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon an-other person within his custody or phy-sical control.”
“Severe mental pain or suffering,” in turn, is defined as:
“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 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 profoundly the senses or personality․”
In dismissing Emmanuel’s challenge to the constitutionality of the Torture Act, the Belfast II court notes that “Congressional power to pass those laws that are necessary and proper to effectuate the enumerated powers of the Constitution is nowhere broader and more important than in the realm of foreign relations.”
“Indeed, there is a particularly strong case for deference to the political branches, ‘over and above the traditional and general requirement of restraint in the area of foreign relations, [when a court is] asked to review a statute which both Congress and [a] President[ ] have declared to be necessary to fulfill our obligations under both customary international law and a treaty which we have signed.'”
Significantly for any BushCo War on Terra-era persons who may ultimately come before the federal courts, the Belfast II court found that “the Torture Act does not require the government to prove the defendant’s motive,” other than an intent to engage in that conduct that is defined by statute as torturous, and that the Torture Act may be brought to bear on those who torture with the mere intent of inflicting severe pain and suffering, whether or not such pain and suffering is actually inflicted.
Such persons have also been put on notice by the Belfast II court that:
—”[t]he exclusion of public emergency as an excuse for torture is necessary if the Convention is to have significant effect, as public emergencies are commonly invoked as a source of extraordinary powers or as a justification for limiting fundamental rights and freedoms”;
—”Congress has the power to regulate the extraterritorial acts of U.S. citizens” and “[t]he language of the Torture Act itself evinces an unmistakable congressional intent to apply the statute extraterritorially”;
—”[t]he Supreme Court made clear long ago that an absent United States citizen is nonetheless ‘personally bound to take notice of the laws [of the United States] that are applicable to him and to obey them'”;
—and “CAT also does not prevent the United States from punishing acts that would constitute torture or attempts to commit torture—both of which undeniably would include kidnappings that occur in furtherance of torture.”
In sum, we can discern no merit to any of Emmanuel’s constitutional challenges to the way in which Congress defined torture in the Torture Act. If anything, the arguably more expansive definition of torture adopted by the United States is that much more faithful to the CAT’s purpose of enhancing global efforts to combat torture.
John Durham was charged in August of last year by Attorney General Eric Holder to determine whether criminal investigation and indictment of BushCo War on Terra-era CIA agents and contractors is warranted. It is believed that Durham is reviewing at least a dozen possible cases, including some where prisoners were waterboarded, beaten, choked, subjected to mock executions, sexually abused, threatened with harm to their children, and killed.
Whether any such investigations and indictments will actually occur is at present unknown. What is known is that with Belfast II there is now precedent upholding the constitutionality of the Torture Act, and binding the United States to enforcement of the Convention Against Torture against US nationals, regardless of where in the world they might commit their crimes. Precedent awaiting the day when the people and the government of the United States mature enough to recognize that this country’s own agents are capable of “extraordinary cruelty and evil.” And act accordingly.