Answer

Memorandum

To:       Senator Walton

From:   [Insert your name]

RE: The Legal Landscape Regarding Torture 

1. Case Brief: United States v. Charles Emmanuel[1]

Issue

The issue for determination, in this case, is whether the United States’ Torture Act[2] impermissibly exceeded the bounds of authority of the United Nations Convention Against Torture (CAT)[3] in its definition of torture as well as its provisions with relation to conspiracies to commit torture.

Rule

The Torture Act (18 U.S.C. § 2340A) makes it illegal and a crime to commit acts of torture outside of the US if the offender is a US national or otherwise if the offender is present in the US. Torture is defined under the Torture Act as an intended infliction of severe mental or physical pain and suffering.

Analysis

            Because Charles Immanuel participated in acts of torture in Liberia and was present in the United States, he could be charged with the offence of torture. The Torture Act can apply to extraterritorial conduct and it could thus, be applied in the case of Charles. Since Charles was already present in the US, then he could be charged with torture pursuant to the provision of the Torture Act.

Conclusion

            Charles Immanuel is guilty of the offence of torture because he engaged in a conspiracy to commit torture contrary to the provision of the Torture Act and the CAT and the US courts had jurisdiction to hear and determine his case.

2. Legal Definition of Torture

Torture is defined under CAT[4] as any act that causes severe pain and suffering, and is intentionally inflicted by one person to another with the aim of obtaining a confession. The three key elements of torture include (1) intentional infliction of severe pain and suffering, (2) with purpose of obtaining information and (3) consent/acquiescence from state authorities.[5]

The definition of torture by CAT differs from that by the Torture Act. Specifically, the US Torture Act defines torture as an act committed under the letter of the law and intended to inflict severe physical or mental pain and suffering upon an individual within the custody or physical control of the perpetrator.[6] However, CAT adds that the suffering inflicted should be for the purposes of either intimidation or obtaining a confession hence, a difference in the two definitions.

3. Geneva Convention Arguments

One of the legal arguments that was made by the Bush administration to support the inapplicability of the Geneva Conventions to GITMO detainees was that the detainees were to be considered as unlawful enemy combatants and the provision of the Geneva convention did not apply to the GITMO detainees.[7] The other argument was that the President; as the commander in chief of the armed forces, had the power to approve any interrogation techniques including torture. The third argument was that the President of The United States was not bound to obey the law governing torture.[8]

I do not find the arguments made by the Bush administration persuasive because they are just mere scapegoats to justify the breach of CAT. Legally, I find the arguments having no probative value because the convention is clear that no exceptional circumstances can be used as a justification for torture. Morally, I also find the arguments as lacking any merit because it is ethically wrong to torture people who are already defenseless in the quest to obtain intelligence.

[1] United States v. Charles Emmanuel [2007] WL 2002452.

[2] Torture Convention Implementation Act, 18 U.S.C. § 2340A. 

[3] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

[4] Article 1 of United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

[5] Ibid.

[6] sections 2340–2340A of Torture Convention Implementation Act, 18 U.S.C. § 2340A. 

[7] Terry, Gil, and Van Sliedregt Elies. “Guantánamo Bay: a reflection on the legal status and rights of unlawful enemy combatants.” Utrecht L. Rev. 1 (2005): 28.

[8] Lisa, Hajjar. “American Torture: The Price Paid, the Lessons Learned.” Middle East Report 39, no. 251 (2009): 15.