Presumably torture in the US was already illegal, under various statutes regarding assault, etc. What did they charge BTK with?
Blinding, harsh interrogation tactics, and killing.
I would imagine that the statutes regarding assault would cover acts which are torturous, but not torture as defined here. I don't know the details of BTK's actions but I don't think he was acting under color of law.
I missed the under color of authority part. Emily Litella over here.
Sorry. BTK was charged with ten counts of false imprisonment, ten counts of tough interrogation techniques, and ten counts of first-degree murder. Only the former and latter were made to stick.
I think I can get most of this, although there are regulars who know much more about this than I do.
(a) This implements an international convention against torture, if I recall correctly. The purpose is to extend US criminal jurisdiction to any act of torture anywhere in the world. I agree with TLL that torture in the US would already be illegal under state and (in some cases federal) law. Torture in the US under color of state or federal law would also violate the federal (and in some cases state) constitutions.
(b) Imprisoning and torturing people on US soil would have made certain arguments about their lack of constitutional rights (including but not limited to the procedural right of habeas corpus) harder and less likely to succeed in court. I think that's generally accepted as the main reason that the government wanted to keep such things offshore.
(c) It says "under color of law," not "under color of US law." Thus, it would and was meant to apply to torture committed under color of the law of a foreign state. (Again, the purpose is an assertion of universal jurisdiction -- this would allow the US government, in theory, to do things like the prosecution of Pinochet that made news a few years ago.) Also, a person can be acting under "color" of law without being actually authorized to act, and it's conceivable that the US would invoke this law against (for example) a soldier who tortured someone and claimed to be acting on orders, but was in fact acting against orders. The drafters of the law may also have had the sort of Golden-Age motivations or presuppositions you suggest.
(d) The death penalty would be one example. So would corporal punishments still used by some foreign states -- caning, perhaps, or certainly amputation.
It says "under color of law," not "under color of US law."
I know that. It's not hard to imagine when members of a foreign state would be affected. I admit that it didn't really occur to me that people without any actual legal authority might be acting under color of law, perhaps because it's not really the most relevant thing one might think of lately.
Is being sentenced to death really equivalent to a threat of imminent death? Again, I didn't think of corporal punishments in that context.
(I'm aware of the constitutional-rights argument you cite in (b)—that question wasn't phrased in complete good faith. It does seem like a damned if you do, damned if you don't sort of situation, though, unless you know that everyone in the relevant agencies is on your side.)
Oh, and in re (a): would such acts be illegal qua torture, or just because they couldn't but fall under different statutes that would otherwise characterize them?
Yeah, as with 7, I assume (d) is to cover things like the death penalty, sentences of hard labour, corporal punishment, etc.
Oh, right, that reminds me of something I was going to mention: pain and suffering aren't incidental to corporal punishment, they're the point.
I admit that it didn't really occur to me that people without any actual legal authority might be acting under color of law, perhaps because it's not really the most relevant thing one might think of lately.
That one is even more relevant to Section 242, which I see you also cited, and which was meant primarily to apply to people acting under color of state law. Imagine the southern sheriff who shoots the "outside agitator" while claiming the agitator was trying to escape a lawful arrest.
Is being sentenced to death really equivalent to a threat of imminent death?
Probably not -- the threat would be imminent only at the end, and if the execution was successful would probably not produce prolonged suffering. But I was thinking that a botched execution could produce the prohibited effect.
would such acts be illegal qua torture, or just because they couldn't but fall under different statutes that would otherwise characterize them?
I don't think there's a general federal domestic antitorture statute, but I could well be wrong. I really don't know about the states. One could argue about whether a Section 242 prosecution for torture, with the torture as the requisite constitutional violation, would count as a prosecution for torture qua torture. Probably not, I suppose, since there are a lot of constitutional violations (and even due process violations) that aren't torture.
Is there any way that an act of torture, by someone acting without legal authority to torture, wouldn't be considered aggravated assault?
11: The eminent blogger is pleased to jest. The point of the punishment is that the law be obeyed; the pain and suffering accompanying it are indeed merely incidental to that purpose.
the purpose is an assertion of universal jurisdiction -- this would allow the US government, in theory, to do things like the prosecution of Pinochet that made news a few years ago.
Does the statute rally establish universal jurisdiction? It says the U.S. has jurisdiction if "the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender." Now, if it doesn't matter that the offender's presence in the United States is due to their being snatched in their home country by a special forces team in the middle of the night, then that's that, but the coerced nature of their presence in the U.S. seems problematic as the statute is written.
It's too late for the law to be obeyed, widget.
Perhaps "the point" isn't the right term. Corporal punishment that did not inflict pain and suffering would not really be a sanction, or at any rate would not be corporal punishment—you know, punishment of the corpus: hence slaps on the wrist.
Or: the "lawful sanction" is the caning. Pain and suffering is not incidental to being caned.
One could view "pain and suffering" as a singular term of art.
Bacon and eggs is my favorite breakfast.
16: I'm not really trained in international law, so I may be misusing the term "universal jurisdiction." But I think you can describe a law that allows the US to prosecute (for example) a Rwandan official for a crime committed in Rwanda, just as soon as that person sets foot in the US, as an assertion of universal jurisdiction.
17: It's not too late to teach the person being punished to obey the law in the future, or to use that person to demonstrate to others that the law must be obeyed. Indeed, these are among the classic purposes of punishment.
But I was being somewhat facetious, as I thought you were. I think my best answer to your question is that, to the extent the drafters meant to cover corporal punishment, which I think they very likely were, they didn't mean to use the term "incidental" as precisely as you are using it. It's possible that they were thinking of the death penalty instead, or of something else entirely, but if so I don't know what it was.
(As a side note, I've drafted briefs that spent multiple paragraphs arguing over the precise meaning of the term "incidental" in a different statute.)
teach the person being punished to obey the law in the future, or to use that person to demonstrate to others that the law must be obeyed. Indeed, these are among the classic purposes of punishment.
Yeah, and the lesson would hardly be learned without some good old-fashioned pain and suffering thrown in the mix. This isn't double-effect territory.
Hi, IAAL. One of my specialties is international law.
a) Explicitly outside the United States, as the US has various treaty obligations (Convention Against Torture being the most obvious one) to make torture a crime of universal jurisdiction. Universal jurisdiction being the fiction that a crime commited anywhere, if it is of a certain international character, is punishable everywhere, is not that controversial. For instance, pirates, slavers, hijackers, terrorists, and those who commit genocide are all guilty of crimes of universal jurisdiction (though that statement might be questioned by some international law scholars).
b) No, because if the person was within the United States, that would definitely allow the U.S. legal system to become engaged (habeas corpus and all that). One of the prime reasons for hiding these folks outside the country is that no U.S. district court would have jurisdiction to hear their case (such fictions taken care of in Hamdan and Boumediene).
c) "Under color of law" generally means someone either acting with state authority or seemingly acting with state authority. If that's the case, sovereign immunity generally kicks in, and you generally can't sue the bastards, because the person is immune from suit because the state is immune from suit. It's like how you can't sue most states and the federal government for official acts.
This is important for the definition of torture, however, because the main international definition of torture requires that it be caused by someone acting under color of authority. Thus, basically, it ain't torture if you and your mineshaft buddies whip and beat up a guy, but if you and your buddies whip and beat up a guy, and you're all government employees doing this at the behest of a certain President whose name starts with G, that's torture.
d) the lawful sanctions to which pain and suffering might be incidental are things like the pain and suffering from imprisonment. You've been sentenced, you're in jail, but your pain and suffering is incidental to the lawful sanction of you being imprisoned. C.f. the case of the death row inmate, who never knows when he'll actually be executed - there is a bit of international debate about whether the pain and suffering of death row inmates, like ours, is incidental to the lawful sanction or not. Since there is a bit of international concern about the death penalty itself (and I understate the case lightly), the U.S. of course, has a bit of a retrograde stance on this issue.
I agree that "incidental" is probably not meant the way I'm using it here, but I think that its use is deceptive, since it makes it seem as if we're in double-effect territory, or as if the ultimate responsibility for pain and suffering attending the legal sanction lies in the sanctioned's peculiar frailty or particular circumstances—as if, that is, the workings of the sanction are fundamentally not torturous.
It would be clearer if they removed that parenthetical and just added a proviso to the effect that the statute does not apply to acts of torture which are also legal sanctions. That would remove some handy wiggle room, though, since as it's currently phrased you can always (probably duplicitously) argue that in sanction X the pain and suffering is incidental while in sanction Y it isn't.
It would be somewhat interesting to see if there are any cases that discuss this.
23: Fair enough. I'm getting too close in spirit to a certain atrocious argument about torture not being torture under the statute if the purpose is to obtain information (rather than to cause pain), and I refuse to endorse anything that even resembles that argument for the sake of a debating point.
I do think that a court would likely read the statutory language to exclude corporal punishment imposed pursuant to the law of a foreign country, but that prediction takes into account (a) that courts are used to statutes being imprecise, and (b) that imprecise criminal statutes are construed in the defendant's favor.
a certain President whose name starts with G
Grover Cleveland?
the lawful sanctions to which pain and suffering might be incidental are things like the pain and suffering from imprisonment.
Ok, that makes sense, and arguably is satisfyingly double-effecty.
it ain't torture if you and your mineshaft buddies whip and beat up a guy,
Awesome! Can we start with Shearer*?
(* Just kidding, Shearer. I really meant, can we start with the Troll of Sorrow**.)
(** No, I meant that.)
Am I wrong in assuming that "BTK" refers to Billy The Kid?
hanging out with drug addicts here in narnia has brought me into contact for the first time with people who have been caned in prison. you will all be totally unsurprised to know it hurts like a bitch. you can only recieve a certain number at a time and a doctor monitors how you're doing, which is a messed up thing for a doctor to be doing if you ask me. it also comes in the context of a society in which it was considered normal for parents to cane children--and still is considered fairly normal--and teachers were authorized to cane students in the recent past. I can only imagine le vice anglais is popular here.
Are you aware of the works of Steven Bradbury?