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Torture, Extraterritoriality, Terrorism, and Law

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发表于 1/19/2018 00:42:55 | 显示全部楼层 |阅读模式
Torture, Extraterritoriality, Terrorism, and International Law
                            James Thuo Gathii*
                              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. 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.[5]
    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]  67 Alb. L. Rev. 335 (2003-2004) [ 36 pages, 335 to 370 ]
* Assistant Professor, Albany Law School. As usual, Carol, Mikey, and Ethan provided
invaluable loving support. I would also like to thank Kohei Higo for his research and Mary
Wood, Linda Murray, and Robert Emery for their help. I also thank the Albany Law Review
for inviting me to the Torture Symposium and for their invaluable support in editing this
article.
See Dana Priest and Barton Gellman, U.S. Decries Abuse But Defends Interrogations:
'Stress and Duress' Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities,
WASH. POST, Dec. 26, 2002, at Al, 2002 WL 104308846 (describing potential violations of the Torture Convention in overseas facilities); Jonathan Alter, Time to Think About Torture,
NEWSWEEK, Nov. 5, 2001, at 45 (arguing in favor of some forms of torture of terrorism
suspects); Stanford Levinson, The Conduct of War Against Virtual States: The Debate on
Torture in the Wake of September 11, DISSENT, Summer 2003, at 79 (presenting the
arguments for various justifications for the use of torture post-September 11th); Richard H.
Weisburg, Response to Sanford Levinson, DISSENT, Summer 2003 (opposing any purported
justification for the use of torture); ALAN M. DERSHOWITZ, WHY TERRORISM WORKS:
UNDERSTANDING THE THREAT, RESPONDING TO THE CHALLENGE 131-64 (2002) (arguing that torture is justifiable under very narrow and rare circumstances but that in those situations, the legal establishment should be held public accountability for its use). But see AMNESTY INTERNATIONAL USA, UNITED STATES OF AMERICA: A SAFE HAVEN FOR TORTURERS (2002) (arguing that, particularly since September 11th, the United States has participated in or acquiesced to the torture of suspects of terrorism).

[2] In Johnson v. Eisentrager, 339 U.S. 763, 778 (1950), the Supreme Court held there was
no habeas jurisdiction where the enemy alien's offense, capture and punishment all took place
"beyond the territorial jurisdiction of any court of the United States." Denials of jurisdiction
arising from cases of the detainees in Guantanamo Bay on extraterritorial grounds fall into
two categories. There are Courts that have argued that there is an absolute bar to
jurisdiction in such cases. For example, in Rasul v. Bush, 215 F. Supp.2d 55, 56 (D.D.C.
2002), the U.S. District Court for the District of Columbia held that with respect to aliens
outside the sovereign territory of the United States "no court would have jurisdiction to
hear... [such] actions." By contrast, in Coalition of Clergy, Lawyers, and Professors v. Bush,
310 F.3d 1153 (9th Cir. 2002) the U.S. Court of Appeals for the Ninth Circuit, in reviewing a
lower court's finding, held that the case dealt exclusively with the question of whether
members of a U.S.-based coalition had a right to assert standing on behalf of detainees. The
court stated:
   We also vacate the district court's determination that there was no jurisdiction in the
   Central District of California and its far-reaching ruling that there is no United States
   court that may entertain any of the habeas claims of any of the detainees. The district
   court was without jurisdiction to hold that the constitutionally embedded right of habeas
   corpus was suspended for all Guantanamo Bay detainees, without regard for their
   particular circumstances, whether they petitioned individually or through a true next
   friend on their behalf.
Id. at 1165 (emphasis added).

[3] See, e.g., Al Odah v. United States, 321 F.3d 1134, 1149-50 (D.D.C. 2003) (Randolph, J., concurring) (stating that the functioning of the military would be best served by leaving decisions regarding the detainees to the military itself). According to LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 46-50 (2d ed. 1996), when the President has a congressional declaration of war, he has the power to exercise "full and exclusive control of the conduct of war." Id. at 46. See also WILLIAM REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME (1998) (arguing in favor of expanded executive power and the loosening of restraints on prohibitions against violating civil liberties during wartime). But see, HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 69 (1990) (arguing that "governmental decisions regarding foreign affairs must transpire within a sphere of concurrent authority, under presidential management but bounded by the checks provided by congressional consultation and judicial review").

[4] See Johnson v. Eisentrager, 339 U.S. 763 (1950). Johnson was decided on the ground
that "the Constitution does not confer a right of personal security or an immunity from
military trial and punishment upon an alien enemy engaged in the hostile service of a
government at war with the United States." Id. at 785. However, the fact that the prisoners
in Johnson were held abroad was not controlling. In addition, as I note later in this article,
unlike in Johnson, the Guantanamo Bay detainees have not been tried and sentenced by a
military commission nor have they been shown to have served any government.

[5] Rasul v. Bush, 03-334, (2003); Al Odah v. United States, 03-343 (2003). Both cases have
been consolidated and the Supreme Court restricted the question at issue to: "Whether
United States courts lack jurisdiction to consider challenges to the legality of the detention of
foreign nationals captured abroad in connection with hostilities and incarcerated at the
Guantanamo Bay Naval Base, Cuba." See Supreme Court, Orders in Pending Cases, Monday,
pzor.pdf (oral arguments were heard by the Supreme Court on April 20, 2004).

[6] See International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N.
GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171. Article 4 of the
International Covenant on Civil and Political Rights (ICCPR) governs situations under which
human rights protections may be suspended or varied to accommodate emergencies that
threaten the life of the nations-whether caused by war, terrorism, or other extraordinary
measures-and does not permit derogation from protections against torture and cruel or
degrading treatment. This has been ratified by the United States. U.S. Ratification of
International Covenant on Civil and Political Rights, 58 Fed. Reg. 45934 (Dep't of State Aug.
31, 1993). See also Human Rights Committee, General Comment 29, States of Emergency
(article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001) (arguing that under the international
law jurisprudence of Article 4 of the ICCPR, there is a right to seek a judicial determination
of the lawfulness of detention and that that right cannot be suspended during wartime). See
generally Jordan J. Paust, Judicial Power to Determine the Status and Rights of Persons
Detained Without Trial, 44 HARV. INT'L L.J. 503, (2003) (arguing that the body of
international human rights law prohibits arbitrary detention of prisoners, even in times of
war).

[7] See United States v. Curtiss Wright Export Corp., 299 U.S. 304, 319 (1936), in which
Justice Sutherland noted that "[Iln this vast external realm [of foreign affairs], with its
important, complicated, delicate and manifold problems, the President alone has the power to
speak or listen as a representative of the nation." These extra-constitutional sources of
Presidential authority, even in the foreign affairs context, have been contested. See, e.g.,
Raoul Berger, The Presidential Monopoly of Foreign Relations, 71 MICH. L. REV. 1 (1972)
(discussing the constitutionality of unilateral actions taken by the president); David M.
Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory, 55
YALE L.J. 467 (1946). However, James Redwood argues that in Dames & Moore v. Regan, 453
U.S. 654 (1981), the Supreme Court unanimously held that congressional silence in the use of
executive agreements "could be construed to create a rule of customary constitutional law
legitimizing unilateral presidential agreements." James Redwood, Dames & Moore v. Regan:
Congressional Power Over Foreign Affairs Held Hostage By Executive Agreement with Iran, 15
LOY. L.A. L. REV. 249, 254 (1982). While Dames & Moore suggests expansive presidential
authority over foreign affairs, Curtiss-Wright Export Corp. is cited for the proposition that
there are constitutional limits to the exercise of Presidential authority in foreign affairs. In
Gherebi v. Bush, - F.3d -, 2003 WL 22971053, (9th Cir. Dec. 18, 2003), the Ninth Circuit
began by stating that they were "fully aware of the unprecedented challenges that affect the
United States' national security interests today" and that they "shar[ed] the desire of all
Americans to ensure that the Executive enjoys the necessary power and flexibility to prevent
future terrorist attacks." The court went on:
   However even in times of national emergency-indeed, particularly in such times-it is
   the obligation of the Judicial Branch to ensure the preservation of our constitutional
   values and to prevent the Executive Branch from running roughshod over the rights of
   citizens and aliens alike. Here, we simply cannot accept the government's position that
   the Executive Branch possesses the unchecked authority to imprison indefinitely any
   persons, foreign citizens included, on territory under the sole jurisdiction and control of
   the United States, without permitting such prisoners recourse of any kind to any judicial
   forum, or even access to counsel, regardless of the length or manner of their confinement.
Id. at *3.

[8]  See infra text accompanying notes 34-39.     

[9] See United States v. Aluminum Co. of Am., 148 F.2d 416 (2d Cir. 1945), in which Judge
Learned Hand outlined the rule-now termed the "effects doctrine"-of application of the
Sherman Act to conduct abroad. Under this rule, conduct intended to affect imports to or
exports from the United States and having such an effect may be regulated by U.S. anti-trust
law. Id. at 443-44. See also infra, notes 126-49 and accompanying text.



 楼主| 发表于 1/19/2018 00:43:56 | 显示全部楼层
                              CONCLUSION
       I conclude that territoriality-as used by the courts to summarily foreclose judicial intervention on behalf of the Guantanamo Bay detainees-is simply a facade for an anti-alien prejudice that is neither new to American nor colonial jurisprudence.      
      The limitations of territory are supplemented by doctrines such as that of extraordinary circumstances, which rationalize the suspension of the Bill of Rights and constitutional and international legal guarantees during war time.         
      While responding to threats to national security may warrant enhanced measures, it does not follow that the rule of law has to be suspended or that courts have to surrender their jurisdiction with respect to aliens, even those suspected of involvement in terrorism."[1] That such persons may be。
      This paper also demonstrates that federal courts are more likely to find they have jurisdiction where a claim of torture is brought against a government other than the United States. However, when the United States is implicated in a torture claim, the odds are against a favorable jurisdictional finding. Such an outcome is inconsistent with the customary international law principle of universal jurisdiction.
      Further, the doctrine of state responsibility under international law is not strictly confined to territory in its application.[2] As such, the United States' invocation of extraterritoriality, foreign citizenship, and extra-ordinary circumstances as conditions precedent to the enjoyment of rights established under international law is inconsistent with the international legal obligations of the United States.
       Ultimately, the hodgepodge of rationales invoked by courts to refrain from providing any form of relief to the Guantanamo Bay detainees overlaps with the anti-Muslim Arab sentiment in the United States. The attacks on the U.S. on September 11th, 2001 only accentuated this animus.[3] It is therefore plausible to argue that by denying habeas jurisdiction to the Guantanamo prisoners, U.S. courts are effectively acquiescing to treating individuals differently because of their race and religion and supposed guilt by association.     
      These discriminatory consequences, including indefinite and incommunicado detention, have fallen on these prisoners without affording them an opportunity for individualized establishment of their links to terrorism or even a determination of their status under the Third Geneva Convention. Needless to note in conclusion, such conduct on the part of the United States is both inconsistent with its international legal obligations and undermines the moral authority of the safeguards and fundamental values of the U.S. Constitution against abuse of governmental power. It is these safeguards and values that have often inspired struggles against indefinite and incommunicado executive detention across the world that the United States is now widely seen as disregarding at Guantanamo.


[1] See Harold Hongju Koh, The Spirit of the Laws, 43 HARv. INT'L L.J. 23 (2002). Koh notes,
   I do not deny the need for vigorous law enforcement in the face of an unprecedented
   terrorist threat. But neither can I escape the feeling that by creating such laws [denying
   aliens due process and other constitutional guarantees], we are helping the terrorists to
   take our freedoms. When the media calls this [September 11, 2001] the "second Pearl
   Harbor," as an Asian American, I cannot forget that the first Pearl Harbor triggered the
   internment of tens of thousands of loyal Americans based solely on their Asian ethnicity.
   What too few recall is that this was the only time that the Supreme Court applied the
   test of strict scrutiny to a racial classification, but nevertheless upheld the restrictive
   law.... Nor can I forget Justice Jackson's haunting words in his Korematsu dissent:
tortured without recourse to any form of due process of the law is a violation  of the United    States' obligations under customary international law.   that that precedent 'lies about like a loaded weapon ready for the hand of any authority
   that can bring forward a plausible claim to an urgent need."' Id. at 37-38.

[2] D'Amato and Engle, supra note 138, at 1035.

[3] See Ruth Gordon, Racing U.S. Foreign Policy, 17 NAT'L BLACK L.J. 1 (2003) (questioning the role of race in U.S. foreign policy and decision-making in international law).



 楼主| 发表于 1/19/2018 00:43:56 | 显示全部楼层
                              CONCLUSION
       I conclude that territoriality-as used by the courts to summarily foreclose judicial intervention on behalf of the Guantanamo Bay detainees-is simply a facade for an anti-alien prejudice that is neither new to American nor colonial jurisprudence.      
      The limitations of territory are supplemented by doctrines such as that of extraordinary circumstances, which rationalize the suspension of the Bill of Rights and constitutional and international legal guarantees during war time.         
      While responding to threats to national security may warrant enhanced measures, it does not follow that the rule of law has to be suspended or that courts have to surrender their jurisdiction with respect to aliens, even those suspected of involvement in terrorism."[1] That such persons may be。
      This paper also demonstrates that federal courts are more likely to find they have jurisdiction where a claim of torture is brought against a government other than the United States. However, when the United States is implicated in a torture claim, the odds are against a favorable jurisdictional finding. Such an outcome is inconsistent with the customary international law principle of universal jurisdiction.
      Further, the doctrine of state responsibility under international law is not strictly confined to territory in its application.[2] As such, the United States' invocation of extraterritoriality, foreign citizenship, and extra-ordinary circumstances as conditions precedent to the enjoyment of rights established under international law is inconsistent with the international legal obligations of the United States.
       Ultimately, the hodgepodge of rationales invoked by courts to refrain from providing any form of relief to the Guantanamo Bay detainees overlaps with the anti-Muslim Arab sentiment in the United States. The attacks on the U.S. on September 11th, 2001 only accentuated this animus.[3] It is therefore plausible to argue that by denying habeas jurisdiction to the Guantanamo prisoners, U.S. courts are effectively acquiescing to treating individuals differently because of their race and religion and supposed guilt by association.     
      These discriminatory consequences, including indefinite and incommunicado detention, have fallen on these prisoners without affording them an opportunity for individualized establishment of their links to terrorism or even a determination of their status under the Third Geneva Convention. Needless to note in conclusion, such conduct on the part of the United States is both inconsistent with its international legal obligations and undermines the moral authority of the safeguards and fundamental values of the U.S. Constitution against abuse of governmental power. It is these safeguards and values that have often inspired struggles against indefinite and incommunicado executive detention across the world that the United States is now widely seen as disregarding at Guantanamo.


[1] See Harold Hongju Koh, The Spirit of the Laws, 43 HARv. INT'L L.J. 23 (2002). Koh notes,
   I do not deny the need for vigorous law enforcement in the face of an unprecedented
   terrorist threat. But neither can I escape the feeling that by creating such laws [denying
   aliens due process and other constitutional guarantees], we are helping the terrorists to
   take our freedoms. When the media calls this [September 11, 2001] the "second Pearl
   Harbor," as an Asian American, I cannot forget that the first Pearl Harbor triggered the
   internment of tens of thousands of loyal Americans based solely on their Asian ethnicity.
   What too few recall is that this was the only time that the Supreme Court applied the
   test of strict scrutiny to a racial classification, but nevertheless upheld the restrictive
   law.... Nor can I forget Justice Jackson's haunting words in his Korematsu dissent:
tortured without recourse to any form of due process of the law is a violation  of the United    States' obligations under customary international law.   that that precedent 'lies about like a loaded weapon ready for the hand of any authority
   that can bring forward a plausible claim to an urgent need."' Id. at 37-38.

[2] D'Amato and Engle, supra note 138, at 1035.

[3] See Ruth Gordon, Racing U.S. Foreign Policy, 17 NAT'L BLACK L.J. 1 (2003) (questioning the role of race in U.S. foreign policy and decision-making in international law).



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