The rule of law prevails over the demands of politics

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair


In the wake of the Obama administration’s release of the “terror memos” and the political firestorm the release generated, the president has instructed U.S. Attorney General Eric Holder to review all the facts and circumstances surrounding the “torture” interrogations conducted by CIA and U.S. military personnel and make a determination of whether criminal charges should be filed either against those who approved the torture interrogations or those who conducted them, or both. Any decision Attorney General Holder makes will trigger an intense political backlash.


While the Democratic leadership favors either the formation of some kind of “truth commission” to investigate the torture issue much like the 9/11 commission or the criminal prosecution of all those involved, indications from the media are that President Obama is not personally or politically prepared to embrace either concept. One thing is fairly certain. The president should follow the rule of law. As a Harvard Law School graduate and former law professor, Obama has a deep appreciation for making sure that the rule of law prevails over the demands of politics. The president should neither direct nor attempt to control the course of the attorney general’s investigation and he will most certainly abide by the attorney general’s final decision.


Recent leaks indicate that criminal prosecution is not being considered but that the Justice Department may recommend that those involved in crafting the documents be disciplined by their state bar associations or banned from the practice of law.

However, should the attorney general elect to prosecute those involved in the “torture” process under the Bush administration, recent decisions by the United States Court of Appeals for the District of Columbia and historical U.S. Supreme Court precedents may offer a defense to those indicted on torture charges. The federal torture statute, Section 2340A of Title 18 of the United States Code, requires the Government to prove following elements: 1) the torture occurred outside the United States; 2) the person who carried out the torture is a United States national; and 3) the person who carried out the torture is in the United States, regardless of the nationality of either the torturer or the victim of the torture. These same elements apply to those who conspire to carry out torture. Anyone convicted under this statute faces a fine or a term of imprisonment up to 20 years, or both. 1/

The D.C. Court of Appeals on April 24, 2009 decided Rasul v. Myers. 2/ This case has a torturous history in its own right. It involved four British nationals—Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal Al-Harith—who brought a civil action against government officials alleging that they were illegally detained and tortured at the Naval Base at Guantanamo Bay, Cuba from 2002 until their release in 2004. They sued former Defense Secretary Donald Rumsfeld and ten senior U.S. military officers on seven counts for relief, all related to their claims of illegal detention and torture. They invoked federal court jurisdiction under the Alien Tort Statute claiming violations of provisions of the Geneva Conventions, violations of the Fifth and Eighth Amendments, and a violation of the Religious Freedom Restoration Act.


The actual basis for the lawsuit began in December 2002 when former Defense Secretary approved the following enhanced interrogation techniques on Guantanamo Bay detainees: stress positions, intimidation through dogs, shaving detainees’ facial hair, isolation in darkness and silence, and use of “mild non-injurious physical contact.” The British nationals charged that they were subjected not only to these enhanced interrogation techniques but to other forms of physical torture as well including: repeatedly being beaten; shackled in painful stress positions; subjected to extreme temperatures; deprived of food, sleep, medical care, and sanitation; and held incommunicado.


In rejecting the British nationals’ “cruel and unusual punishment” claim under the eighth amendment based upon the physical tortures inflicted on them, the D.C. Circuit pointed to an earlier ruling by the court in which it held that Guantanamo Bay detainees do not have any constitutional rights because they are aliens without property or presence in the United States. 3/ The British nationals’ case worked its way to the U.S. Supreme Court who remanded the case in December 2008 for “reconsideration” under a 2007 ruling by the court that Guantanamo Bay detainees enjoy a right to seek a writ of habeas corpus. 4/


The D.C. Circuit’s April 24, 2009 decision was in response to that Supreme Court remand order. The appeals court relied upon precedents by the Supreme Court which held that the constitution does not protect aliens captured on foreign soil detained outside the United States; and further noted that the high court has declined every opportunity to overrule these precedents. The first such decision handed down by the high court was in 1950 when it held that aliens detained on a U.S. military base outside sovereign U.S. territory did not enjoy due process rights. 5/ Forty years later the court held the Fourth Amendment prohibition against illegal searches and seizures does not apply to non-resident aliens when those searches are conducted against them outside sovereign U.S. territory. 6/


Following the lead of these two Supreme Court precedents, the D.C. Circuit on February 18, 2009 ruled that Guantanamo Bay detainees cannot invoke the Due Process Clause under any circumstances.7/ And, more recently, the court’s April 24, 2009 decision really turned the lights out on any legal argument that aliens enjoy constitutional rights by saying: “At the time of their detention [the British nationals], neither the Supreme Court nor this court had ever held that aliens captured on foreign soil and detained beyond sovereign U.S. territory had any constitutional rights—under the Fifth Amendment, the Eighth Amendment, or otherwise.”


And therein lies a legitimate defense to an indictment for torture. If aliens captured on foreign soil and detained outside the United States do not enjoy any constitutional protections, especially against “cruel and unusual punishment,” then how could it be illegal to “torture” them? The federal torture statute does not specifically speak to this issue. It simply prohibits a U.S. national from committing torture outside the United States. Inherent in the statute, however, is the implied intent that an individual possess a “right” not to be tortured before a torture indictment can be obtained by the government on behalf of a torture victim. The inescapable fact is that aliens—whether designated as “enemy combatants” or “suspected terrorists”—captured on foreign soil and detained by U.S. authorities outside the United States do not, by explicit mandate from the U.S. Supreme Court, enjoy any legal rights or constitutional protections.


Thus, the current U.S. Justice Department would have a particularly difficult time making a case against its former employees who approved the enhanced interrogation techniques that unquestionably entailed methods of torture and the CIA and military interrogators who actually carried out those tortuous interrogations. This difficulty will be even more evident if the Supreme Court upholds the two recent D.C. Circuit Court of Appeals decisions by applying its own precedents that aliens captured on foreign soil and held outside the United States do not enjoy constitutional protections. Torture by its very definition involves “cruel and unusual punishment,” which is prohibited by the Eighth Amendment, but “enemy combatants” do not enjoy a constitutional protection against such punishments when held outside the United States. In effect, without a constitutional protection against torture, there can be no statutory violation for being tortured.


That is the legal dilemma Attorney General Holder will have to examine. He will have to decide if the federal torture statute, standing alone, applies to individuals designated as “enemy combatants” who have no legal or constitutional rights of any kind. It will be a tough call. The president has probably already stared the beast in the eye and understands the legal havoc it could reek on the nation’s constitutional system of government, regardless of whether the decision is made to prosecute or not.


Bizarre facts create bizarre law. The bizarre attitude and legal reasoning used by the Bush Administration during its 1984 like “war on terror” created a strange Orwellian legal dynamic where torture itself was defined away by legal jargon and memoranda and legal defenses were created to protect it.




1/ Constitution, Felder v. Howerton, 240 Fed. Appx. 404 (11th Cir. 2007)
2/ Rasul v. Myers, __ F.3d ___, No. 06-5209 (D.C. Cir. April 24, 2009)
3/ Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007)
4/ Rusal v. Myers, 129 S.Ct. 763 (2008) [citing Boumediene v. Bush, 127 S.Ct. 3078 (2007)].
5/ Johnson v. Eisentrager, 339 U.S. 763 (1950)
6/ United States v. Verdugo-Urguidez, 494 U.S. 259 (1990)

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair