Yesterday, the 11th Circuit (Judges Birch, Marcus & Baldock (10th Cir. sitting by designation)) affirmed Taylor Jr.'s conviction and 97-year sentence for torture and other atrocities committed in Liberia in 1999-2003 when Taylor Jr. was the head of the Anti-Terrorism Unit, an elite guard charged with protecting Taylor Sr. and with torturing prisoners. The facts presented at trial were horrific: execution-style killings, prison pits filled with corpses and
stagnant water, beheadings, & burnings with hot wax or plastic.Taylor had appealed his conviction on a number of grounds, including that
- The definition of torture in 18 U.S.C. §2340 (the federal torture statute, see our prior coverage here) exceeded the definition of the crime in the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). Specifically, in what amounted to a facial challenge, he argued that
- The CAT requires proof that the defendant was acting in order to extract information or other such purposes whereas the statute is silent as to motive (or specific intent if it maybe called that).
- The CAT requires that the torture must actually result in severe pain or suffering, whereas the statute requries that the defendant act with the specific intent to inflict severe physical or mental pain or suffering.
- The CAT reaches torture committed by public officials or persons acting in an official capacity, where as the statute reaches torture committed "under color of law."
- The Statute could not apply to conduct committed prior to when Liberia had ratified the treaty or to extraterritorial conduct.
- Congress had no authority to penalize conspiracy to commit torture in §2340A(c) absent a basis to do so in the treaty;
- The conviction under 18 U.S.C. §924, a weapons enhancement charge, was improper because that statute does not apply extraterritorially; and
- There were procedural and evidentiary errors that rendered the trial and outcome fundamentally unfair.
The appeals court rejected each of these arguments in turn.
► With respect to the definition variations, the court ruled that §2340 is a valid exercise of congressional power under the Necessary and Proper Clause, which grants Congress the power to:
make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” U.S. Const. art. I, § 8, cl. 18.
So long as the enactment bears a rational relationship to the treaty, it will be valid. Slight variances between the treaty language and the implementing statute do not make the enactment invalid, so long as the latter tracks the language of the treaty in all material respects. In particular, the court ruled that the CAT created a floor and not a ceiling and that the treaty specifically provides that it is
without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
The fact that the statute penalizes acts taken with the specific intent to commit torture (even if severe pain or suffering is not in fact inflicted) is analogous to attempts to commit torture, which are equally forbidden by the treaty.
► With respect to the question of jurisdiction rationae temporis and loci, the court held that Taylor was bound by territorial and extraterritorial legislation applying to him as a U.S. citizen. In any case, CAT requires penalization for all acts of torture, regardless of where they are committed. Congress is empowered to regulate the conduct of citizens abroad, and any baseline presumption against extraterritoriality is easiy overcome by an express or inferrable contrary intent in the language or nature of the statute.
► With respect to the conspiracy question, the court noted that the CAT requires penalization of complicity and participation in torture, which would include conduct like conspiracy that encourages and furthers the commission of torture by others. That the Hamdan plurality rejected the notion of a conspiracy to commit war crimes as a customary international law offense punishable by military commission was of no moment, because the Taylor indictment did not implicate the law of war and the conspiracy charge had a treaty basis. In addition, the court noted that
extraterritorial jurisdiction over a conspiracy charge exists whenever the underlying substantive crime applies to extraterritorial conduct.► With respect to §924, about which we've blogged before (see here), the court ruled that it applies extraterritorially so long as the predicate crime applies extraterritorially. In particular, it may be charged in connection with any crime of violence that “may be prosecuted in a court of the United States,” including those crimes with an extraterritorial reach.
► None of the alleged procedural or evidentiary errors had merit. In particular, the court rejected Taylor's claim that he should have been able to obtain copies of classified memoranda on "enhanced interrogation techniques" approved by the U.S. government. The court ruled that those documents had no bearing on the definition of torture contained in the torture statute. Indeed,
The Torture Act contains a specific and unambiguous definition of torture that is derived from the definition provided in the CAT. The language of that statute -- not an executive branch memorandum -- is what controls the definition of the crime.► Finally, the court confirmed that the 1,164-month sentence is not invalid under the federal sentencing guidelines given the nature of the charges and the underlying events.
