New England Journal on Criminal and Civil Confinement
37 N.E. J. on Crim. & Civ. Con. 349
CASE COMMENT: America’s Useless Torture Statute: How the USA PATRIOT Act and Special Maritime Jurisdiction Can Be Used to Circumvent the Federal Prohibition on Torture
NAME: Christopher B. O’Brien
… The details of the interrogation cover the period throughout Wali’s detention, during which time he was unarmed and heavily guarded, and while Passaro intermittently engaged in fierce assaults of varying brutality. … In Passaro’s case, the assault-like interrogation occurred inside the borders of the sovereign state of Afghanistan: a country with its own laws and courts. … Text In 2001, as part of the USA PATRIOT Act, the Statute received a short amendment, which stated in relevant part: (9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act – (A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership. … Essentially, the Passaro court found that the sentencing was unjustifiably harsh, given both the guidelines and the charges for which the defendant was convicted: “The district court offered no rationale for concluding that the sentencing guideline justified the chosen upward departure.” … There is a very real possibility that Passaro would have received excessively harsh punishment for his crimes; nonetheless, as a civilian in a foreign country he should certainly be subject to the laws of the land. … The formal and publicized indictment arrived the day John Goldsmith resigned – the day after he spoke to John Ashcroft, and withdrew the Bybee Memo. … Nonetheless, in the immediate context of the case, it bears mentioning that the facts found by the court in Passaro still exceed the restrictive interpretations of the Bybee Memo, which states: We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. … Conclusion The Passaro case brought more to light than the gruesome facts of the crime itself; it neglected to utilize the most applicable criminal statute in favor of using an otherwise untouched piece of the USA PATRIOT Act legislation to extend territorial jurisdiction to Afghanistan.
In August 2009, the Fourth Circuit Court of Appeals in North Carolina upheld the decision in United States v. Passaro, n1 the first ever conviction of a civilian contractor in the war on terror. n2 Passaro demonstrates how political group-think can attempt to legalize, post facto, the cruel and inhumane treatment of prisoners abroad.
In 2003, an ex-Special Forces Army medic named David Passaro had been working as a civilian contractor for the Central Intelligence Agency (CIA) in Afghanistan when an interrogation he performed ended in the death of an Afghan national. n3 The ensuing trial and appellate decisions produced a troubling result: despite the horrific nature of the interrogation, the punishment would not likely exceed a five-year imprisonment. n4 Perhaps more troubling for those versed in international law is that the Passaro incident can be best described as torture, which if committed outside of United States territory carries an extremely harsh sentence. n5 So why not [*350] prosecute to the fullest extent possible? The court had no difficulty establishing the grisly details of the interrogation, n6 which fit even the narrowest of torture statute interpretations. n7 Further, Passaro was a case of first impression with no precedent working for or against a torture prosecution. n8 The answer to why prosecution proceeded in this way is difficult to comprehend, though the truth may be found in opinions offered by the Office of Legal Counsel years before the Passaro incident occurred.
Part II of this Note will explain the facts, procedure, and outcome of the Passaro case. Part III will demonstrate how 18 U.S.C.§§2340-2340A, which implemented the standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, n9 would have served perfectly in the Passaro prosecution: from the verbiage in the definition of torture itself to the enabling jurisdictional statute, all parts fit perfectly with the facts of the Passaro case as the trial and appeals courts described them. Part IV will discuss how instead, an unknown, ambiguously defined, and all-but-untested section of Special Maritime Jurisdiction (as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act n10 was used, through strained and contorted logic, to extend territorial jurisdiction to a U.S. military outpost in Afghanistan. Part V will examine how the statutes discussed in Part IV were actually applied to the facts of the case. Part VI will examine the conspicuous role of the Executive Branch politics responsible for this strange outcome. In the Conclusion, this Note will argue that in light of the analysis, the jurisdictional loophole should be closed and that any future [*351] prosecutions similar to Passaro should be properly tried as torture. This Note will seek to explain how the first trial for an American torture suspect ended with his conviction for assault, the effect of political climate on torture prosecutions, and how the USA PATRIOT Act may create a prosecutorial loophole, which helps to avoid the politically controversial subject of torture. This Note will advocate for the close of this loophole, and call for the rehabilitation of the torture convention.
II. United States v. Passaro: The Story Behind the Case
The events giving rise to Passaro are well understood, but given the obscure location and relevant matters of national security, facts are not widely available outside those contained in the opinion. This Note will rely heavily on the court’s analysis for the factual groundwork upon which legal analysis can be constructed. The location, actors, and the incident itself are crucial components leading to the decision to assert federal jurisdiction over David Passaro.
In late 2001, as part of the United States invasion of Afghanistan, the military gained control of the Asadabad Firebase (the Base) located in northeast Afghanistan, then at the frontlines of the war against the Taliban. n11 The Base is described as an old, twenty-five acre fortress enclosed by a ten-foot-tall mud wall. n12 As it may further connote the condition and relative antiquity of the facility, it bears mention that it was the U.S. Army (Army) that first began providing electricity and fresh water to the Base in subsequent months. n13 The Base was not limited to use by the Army but rather housed an array of military personnel (roughly 200 in rank) as well as an undisclosed number of paramilitary civilian contractors. n14 Such was the condition of the Base in June of 2003 when the incident giving rise to the Passaro case occurred. n15
Among the civilian contractors stationed at the Base was David Passaro. n16 An ex-Green Beret medic and Army Ranger, “Passaro was on leave from a civilian Army medical job at Fort Bragg while doing the contract work for the CIA, according to the Army Special Operations Command.” n17 Passaro had a history of domestic assault allegations from [*352] both his former and current spouses, as well as a record of having been relieved from duty as a police officer after less than one year on the job. n18 Following a conviction of “breach of peace” in 1991, Passaro was reportedly fired from the Hartford Connecticut Police Department after a fighting incident that occurred less than a year after his original assignment, violating the probationary period and resulting in his immediate dismissal. n19
In May of 2003, Passaro arrived at the Base, which was then under regular bombardment by rocket attacks. n20 Intelligence sources at the Base decided to seek out Abdul Wali, a local Afghan civilian wanted for questioning related to the rocket attacks. n21 Before any such manhunt could begin, Wali caught wind of his impending detention and voluntarily turned himself in at the Base on June 18, 2003. n22 After initial questioning, Wali was summarily detained by U.S. forces, bound, shackled, hooded, and placed under twenty-four hour armed guard. n23
The interrogation of Wali continued almost non-stop for forty-eight hours. n24 Although national security precluded the public availability of some relevant witnesses and their testimony, the court made definitive statements about certain specific details of the interrogation proceedings. n25 The details of the interrogation cover the period throughout Wali’s detention, during which time he was unarmed and heavily guarded, and while Passaro intermittently engaged in fierce assaults of varying brutality. n26 In addition to repeatedly “striking him open handed” and throwing him to the ground, Passaro hit Wali’s arms and legs with a heavy, metallic flashlight measuring over one foot in length. n27 Some of the more severe assault charges are based on Passaro repeatedly kicking his prostrated detainee with his combat boots. n28 The court described one such attack as “[Passaro] kicking Wali in the groin with enough force to lift him off the ground.” n29 The court went on to state that after two days of near-constant interrogation, Wali was delirious to the point at which he twice [*353] begged that his guards shoot him. n30 Shortly thereafter, Wali died – just three days after he had turned himself in for questioning. n31
The court did not state that the interrogations were the cause of death and accepted the Government’s explanation for the asserted charge of assault just as the district court had in 2006. n32 In 2004, Passaro was indicted “on two counts of assault with a dangerous weapon with intent to do bodily harm” and “two counts of assault resulting in serious bodily injury,” under 18 U.S.C.§§113(a)(3) and (a)(6), respectively. n33 In 2006, a jury in the United States District Court for the Eastern District of North Carolina “convicted Passaro of one count of felony assault resulting in serious bodily injury and three counts of the lesser-included offense of misdemeanor simple assault.” n34
The question that arises here, and one that may become central to the eventual meaning and implication of the case, is why Passaro was not charged with murder. The answer seems simple: Wali’s family denied autopsy requests, and the Government could not properly establish cause of death in order to meet the evidentiary threshold required in a U.S. court. n35 This circumstance begs the question: why would U.S. courts be allowed to try a U.S. civilian in the United States for crimes that were committed against a foreign national in said national’s own country? Interestingly, one major argument forwarded by Passaro in his defense was that U.S. courts did not have jurisdictional authority to try him, and that he should have been tried in an Afghani court. n36 This question of jurisdictional incongruity is of particular interest to this analysis and comes from an as-yet untested and otherwise unused amendment to the Special Maritime Jurisdiction statute. n37
III. The Torture Statute
It bears repeating that 18 U.S.C. §§2340-2340A (which implemented the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment) n38 are mentioned neither in the Passaro case, nor in any of the related documents (briefs, etc.). Part V of this Note will [*354] address the likely reasons for this absence. Also, it should be noted that 18 U.S.C.§§2340-2340A had, at the time Passaro was being charged, not been applied since their creation in 1994. n39 For the purposes of this Note, it is important to establish why torture is the crime most applicable to Passaro; compared to the charges leveled and the manner in which they were asserted, 18 U.S.C. § 2340 proves a much better fit than assault, as it is almost custom tailored to prohibit the event that took place. The two relevant parts of the torture legislation are 18 U.S.C. § 2340, which defines the elements of the crime, and 18 U.S.C. § 2340A, which outlines the offense and jurisdiction.
A. Elements of the Crime
The section of the legislation defining torture can be found at 18 U.S.C. § 2340(1), which states: “”torture’ means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” n40 The description the court provided falls squarely within this definition. n41
The initial wording in this definition – “person acting under the color of law” – refers to the supposed authority behind the actions that gave rise to the crime, as Black’s Law Dictionary defines it:
The appearance or semblance, without the substance, of a legal right. The term usu. implies a misuse of power made possible because the wrongdoer is clothed with the authority of the state. State action is synonymous with color of [state] law in the context of federal civil-rights statutes or criminal law. n42
The definition accords with the facts – a civilian contractor, hired by a government agency, who claims his actions were within the scope of his duties. Passaro was acting under color of law during his interrogation, meeting this element of the definition of torture.
The details of the beating Wali endured clearly demonstrate the intentional infliction of severe physical (and likely mental) pain, as [*355] evidenced by his reactions, pleas for mercy, and eventual death. n43 This element is perhaps the most prominent in its application to the facts of the case.
The defense made arguments on appeal that questioned the idea of custody, n44 but the control issue can be easily resolved by statements found within the brief: explaining that “army personnel referred to combat prisoners as a PUC, or “person under control.'” n45 So the final element in parsing the definition, that of custody or control, can be easily met. The facts from the Passaro case deal precisely with each of the elements present in the definition of torture found in 18 U.S.C. § 2340(1), leaving only the circumstances under which the crime may be found to have been committed.
B. Offense and Jurisdiction
The corresponding definitions for “offense” and “jurisdiction” are found in 18 U.S.C. § 2340A and provide for sentencing and the extraterritorial location requirement. n46 The “offense” subsection states that a person who commits or attempts to commit torture outside the United States can be fined and/or imprisoned for up to twenty years. n47 If the torture results in death (note that this could be difficult to prove, due to the aforementioned lack of autopsy to establish cause of death) the prescribed sentence can include any term of years in prison, for life, or death. n48 The fact that these statutes have never been utilized prevents any speculation on how they might be used for sentencing purposes. The “jurisdiction” subsection merely specifies that the offender must be present in the United States or otherwise must be a U.S. national. n49 Passaro is a U.S. national, n50 and the offense occurred outside the United States (though as this Note will later demonstrate, the issue of territorial jurisdiction becomes quite tricky in Passaro), n51 further proving the match between 18 U.S.C.§§2340-2340A and the facts in Passaro.
IV. Old Laws, New Jurisdiction
The Passaro court identified the main contention of the case as being one of subject matter jurisdiction and asserts that the 2001 Amendment to 18 U.S.C. § 7 put in place by the USA PATRIOT Act (the Amendment) can be interpreted as providing the federal government with the necessary jurisdiction to prosecute Passaro. n52 Based on laws dating back to the early twentieth century, the Special Maritime Jurisdiction statute (the Statute) existed much in its current form as far back as the 1940s. n53 The Statute was created to provide jurisdiction for the federal government in criminal proceedings traditionally presided over by states “when the crimes occur in a federal enclave – for example, United States military bases, federal buildings, and national parks, … the high seas and waters within this Country’s admiralty and maritime jurisdiction, … and certain aircraft and spacecraft.” n54 The original purpose of the Statute was simple and limited, as suggested by the cases in which it was traditionally utilized. n55 Such case precedent relied on this rare form of jurisdiction to reach civilians found in the most unusual of locales and circumstances, but never on the foreign soil of a sovereign nation. n56
A. The Statute
In 1992, the Second Circuit Court of Appeals decided a case concerning prosecutorial jurisdiction for crimes committed on Native American reservation land. n57 Addressing the enabling jurisdictional statutes as “federal enclave laws,” the court in United States v. Markiewicz described the jurisdictional reach of the Statute as including:
federal land, and property such as federal courthouses and military bases.
. . . Crimes that occur on the Indian territories, however, present a jurisdictional problem because, unlike territorial waters and property owned directly by the federal government, we have always recognized that the Indian nations exercise some jurisdiction over their members and their territories. n58
[*357] The wording here is crucial to the understanding of the purpose of the Statute – the idea of federal property indicates the Statute serves valuable federal interests, but those property interests may not be served to the degree that such service might infringe upon the sovereign determination of the American Indian nations. For the purposes of the present discussion, perhaps the most important nuance intimated by Markiewicz is the court’s respect for sovereignty, which the state could potentially violate through improper application of the Statute. n59 The Markiewicz court correctly identified the purpose and limitations of the Statute at a time before the Amendment perverted the original scope of the jurisdictional expansion. n60 The federal government needed jurisdiction to address an unmistakably domestic issue, and Markiewicz used the Statute to accomplish this aim. n61 The Passaro court’s use of the Amendment permits the federal government to reach halfway around the world and assert jurisdiction at will. n62
In 1993, in an opinion written by Chief Justice Rehnquist, the United States Supreme Court in Smith v. United States denied a federal tort claim arising out of Antarctica on the grounds of sovereign immunity. n63 The Court in Smith indicated that it would embrace the traditional presumption against extraterritoriality, and find that jurisdiction likely did not extend as far as Antarctica. n64 As Smith was a civil matter, it is distinct from Passaro; because the Statute was not directly applicable under the circumstances, it is only first mentioned in the dissent. n65 But Justice Stevens’ dissent does serve to emphasize the perceived role of the Statute. n66 In his dissent, Justice Stevens observed that the Government uses the Statute to exercise criminal jurisdiction over Americans who live and work in Antarctica. n67 In so doing, Justice Stevens further demonstrated the purpose of the special jurisdiction conveyed by the Statute – to protect American interests through federal law [*358] in places where no other law would properly apply. n68 In Passaro’s case, the assault-like interrogation occurred inside the borders of the sovereign state of Afghanistan: a country with its own laws and courts. n69
In March of 2009, in United States v. Barnes, the Fourth Circuit Court of Appeals allowed the federal government to use the Statute (not the Amendment) to assert a charge for conspiracy to commit assault in a federal penitentiary in Virginia. n70 Although the crime occurred in Virginia, the fact that the penitentiary was federally operated fundamentally altered the jurisdiction in which the crimes technically took place. n71 Barnes is useful as yet another demonstration of the logical application of the Statute – a crime falling within the mandate of federal prosecution, having occurred in a federal enclave, should be prosecuted by the federal government (or at least be available for such prosecution). n72 It is important to recognize, however, that Barnes is made possible through use of the Statute without the Amendment. n73 Decided eight years after the Amendment, n74 Barnes demonstrated the continued usefulness of the Statute and supported the overall impression that the Amendment, as used in Passaro, n75 does not comport with the intent and use of the Statute prior to the Amendment’s enactment.
The Statute seems to contemplate definite limits to the scope of special maritime jurisdiction. For example, subsection eight contains language recognizing the limitations imposed by considerations of international law in certain circumstances. n76 The Statute also explicitly defines the extraterritorial aspect of special maritime jurisdiction, limiting coverage specifically n77 and broadly: “any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.” n78 The territorial aspect can itself be readily construed and understood through cases like Barnes, but when incidents become distinctly international, the extraterritorial jurisdiction asserted by the [*359] Statute has historically come into serious question. n79
In United States v. Erdos, the Fourth Circuit upheld the conviction of an American diplomat for voluntary manslaughter of another American at the U.S. Embassy in the Republic of Equatorial Guinea. n80 The court discusses the suggestion to limit the Statute’s reach to lands within the geographical boundaries of the United States. n81 It indicated a lack of clarity in the Statute itself (combined with similarly unclear legislative history), but cautiously found proper exercise of federal jurisdiction. n82 This noteworthy trepidation by the Fourth Circuit represents a natural and wisely judicious impulse to limit extraterritorial application of federal law. In fact, drawing from Smith, n83 the Court in Small v. United States succinctly captures the sentiment: “this notion has led the Court to adopt the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application.” n84 The Amendment’s language explicitly rebuts this presumption, but when considered in the larger context of the Statute’s case history, the presumption and rebuttal further reveal the Amendment’s basic incompatibility with similar American jurisprudence. One common theme among the aforementioned cases is a general reluctance by the courts to stretch federal jurisdiction without an express mandate from Congress. As the Passaro court demonstrated, the Amendment provides that mandate.
B. The Amendment
In 2001, as part of the USA PATRIOT Act, the Statute received a short amendment, which stated in relevant part:
(9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act –
(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership. n85
[*360] The Amendment officially and unequivocally extends special maritime jurisdiction to foreign states and, more troubling still, contains little if any limiting language. Aside from using a definition from the Aliens and Nationality General Provisions to define the meaning of “national of the United States,” n86 the Amendment makes no attempt at indicating the intended scope of the new jurisdiction. n87 Presumably then, special maritime jurisdiction now extends to any and all reasonable interpretations of “premises of United States … Government missions or entities … irrespective of ownership,” n88 and the Passaro court is the first to attempt to determine the meaning of this statutory language. n89
2. USA PATRIOT Act
Shortly after the terrorist attacks of September 11, 2001, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the USA PATRIOT Act). n90 The ten-part Act is over 300 pages in length and provides the executive branch with greater latitude in dealing with the threat posed by international terrorists. n91 Passed by Congress on October 26, 2001 and signed by President Bush on October 27, 2001, the USA PATRIOT Act became law within weeks of its inception. n92 The astonishing size of the legislation and the speed with which it was passed are impressive feats surpassed only by the as-yet unknown power of the laws modified by the USA PATRIOT Act. Rather than appearing as one unified text, the USA PATRIOT Act has many parts that simply add to existing legislation. n93 The result being that full understanding of the USA PATRIOT Act cannot be ascertained without adequate knowledge of the following: the history of all of the laws it modified; the extent to which they have been changed; and how future courts might deal with any newfound ambiguities. Such considerations are crucial in understanding the [*361] context in which the USA PATRIOT Act changed special maritime jurisdiction and how this empowered the Passaro court to find federal jurisdiction in Afghanistan.
V. Passaro and the Amendment’s First Use
The district court that tried Passaro in 2006 allowed the government to establish federal jurisdiction using the Amendment and thereby charged Passaro with assault as described in § 113 as “assaults within maritime and territorial jurisdiction.” n94 On appeal, the Fourth Circuit affirmed this use of the Amendment, stating: “This case presents novel questions concerning the reach of federal criminal law to acts that an American civilian commits abroad while in service to this Country.” n95 The court then explained the interpretation and application of the Amendment in Passaro. n96
A. Proper Application – Disastrous Result
The court in Passaro first takes great pains to detail the facts of the case and much of the language suggests that, despite a lot of the evidence having been concealed from public record for national security reasons, the court was convinced of Passaro’s guilt: “This case arises from the conviction in a United States federal court of an American citizen for the brutal assault on an Afghan national in Afghanistan.” n97 Such a succinct explanation of the most controversial aspects of the case might lead one to believe that the court was ready to make a more sensible decision with regard to jurisdiction; but from there the opinion spiraled downward into the legal minutiae that obfuscate any overarching jurisdictional concerns. In short, the court was more concerned with satisfying minor elements of its own test than with actually asking if jurisdiction should be asserted.
1. The Fourth Circuit’s Passaro jurisdiction analysis
The first part of the appellate court’s analysis of the jurisdiction conveyed by the Amendment concerns whether, by dictionary definition, the words “premises” and “mission” should be limited to permanent locations and facilities. n98 This appears to scale back the district court’s assessment that any mobile military unit could perceivably be a Government mission, and its location a “premises.” n99 Next, the court seeks [*362] to determine whether the Asadabad Firebase (the Base) meets the criteria n100 to fall within the definition the court set forth in the previous section. n101 Equating the Base with other permanent U.S. military facilities abroad, such as the Ramstein Air Base in Germany, the court determines that Asadabad fits the definition, using, as support, estimates as to the size of the Base: “Although trial witnesses differed in estimates of its size, it appears that Asadabad covered approximately 350 yards on each side, or over 25 acres. In addition, a ten-foot-high and two-foot-thick heavy mud wall encircled the entire facility … .” n102
The occupants of Ramstein Air Base might find flaw with comparison to a base which, after eight years of occupation, has no known size or accurately recorded dimensions and is surrounded by a wall made of mud. Although no criteria currently exist to establish permanence, the lack of pertinent and readily available information and evidence of primitive fortification should suggest some degree of impermanence. However, the court continued by stating that American forces had controlled the Base for eighteen months before the arrival of Passaro, a duration which, according to the court, suggested permanent control of the Base by U.S. forces. n103 Finally, the court listed improvements made to the facility since 2001, including the logistical support it received, as evidence towards satisfying the permanence requirement. n104
In analyzing the validity of these arguments it should be kept in mind that “permanence” does not appear anywhere in the Amendment. n105 The court likely created this distinction to rebut the argument Passaro made on appeal that liberal interpretation of the term “premises” could theoretically extend to anywhere a U.S. soldier pitched a tent. n106 The difficulty with this newly created “permanence” requirement is that the court needed to outline [*363] and satisfy a test for determining whether it existed. n107 The support the court uses to establish “permanence” succeeds only in establishing a quality of indefinite occupation. The court made no attempt at providing evidence that the Base would still exist after the war ends, and the evidence it did use suggested otherwise. n108 The language used to describe the Base is rife with approximate estimations and differing witness testimony as to the size of the fortification. n109 This weak application of a vague test seems to support the contentions of those who have decried the Amendment as ambiguous and subject to overly broad interpretation.
2. Outside legal analysis
One author perhaps overstates the interplay between the Amendment and other relevant legislation, suggesting a legally exploitative scheme:
All the locations mentioned [in the Amendment] can be deemed part of the territorial jurisdiction of the U.S., and, thus, these locations are no longer outside the territorial jurisdiction of the U.S. for purposes of [Military Extraterritorial Jurisdiction Act]’s jurisdictional application. Through this jurisdictional gimmick, civilian contractors evade any and all forms of criminal responsibility for their conduct abroad, no matter what crimes they may commit. n110
What the author failed to realize was that the United States would apparently have no legal difficulty reigning in civilian contractors and prosecuting them at home. It is precisely this legal difficultly that another commentator, Navy Lieutenant Richard Morgan, expected would keep the Amendment from having such drastic impact. n111 Morgan proposes that “were crimes to be committed outside the premises listed in the [Amendment], the United States would not have territorial jurisdiction to prosecute them.” n112 Where the first author, Bassiouni, overestimates the threat by assuming that people like Passaro would go unpunished, Morgan underestimates the threat by assuming that the premises requirement is a realistic and practical limit on where the United States may now exercise federal jurisdiction. Instead of providing justification for either of these concerns, the Fourth Circuit demonstrates how even careful judicial wording cannot sensibly interpret or hope to overcome the ambiguity of the [*364] amended Special Maritime Jurisdiction statute – there will be punishment, but no hope for consistency. n113
3. The outcome
After managing to apply the impossibly elastic Amendment to find jurisdiction over David Passaro, the court swiftly dealt with the sentencing decision from the district court. n114 Deciding that the lower court stretched the sentencing guidelines beyond their reasonable limits, the Fourth Circuit vacated the 100-month sentence and remanded the case for resentencing. n115 Essentially, the Passaro court found that the sentencing was unjustifiably harsh, given both the guidelines and the charges for which the defendant was convicted: “The district court offered no rationale for concluding that [the sentencing guideline] justified the chosen upward departure.” n116 The court made a point of repeatedly mentioning that both parties agreed that the increase in sentence was unjustified, and that even the government admitted the sentence was unduly enhanced. n117 While no sustainable legal argument could be asserted for homicide in this case, it would be equally, if not more, unreasonable to argue that an otherwise healthy man died for reasons other than two days of severe bludgeoning. Simply put, Passaro beat Wali to death; but one consequence of bringing him back to the United States for trial is that the evidence now available, along with the charge asserted, cannot sustain an eight-year prison sentence.
Far from a cry for blood, however, this Note emphasizes the perils of extending federal jurisdiction into new and untested parts of other nations. Not only does this shaky ground offend every possible conception of national sovereignty, but it seriously damages the proper pursuit of justice. If the Afghani courts had the chance to try Passaro for the death of Wali, they may have had less difficulty ascertaining cause of death. There is a very real possibility that Passaro would have received excessively harsh punishment for his crimes; nonetheless, as a civilian in a foreign country he should certainly be subject to the laws of the land. The Restatement Third on Foreign Relations Law explains the conflicts of jurisdictional reach by presenting a list of factors for determining whether exercise of jurisdiction is unreasonable. n118 The most relevant and troubling factor weighs “the extent to which another state may have an interest in regulating the [*365] activity.” n119 This addresses the exact problem created by the Amendment as used in Passaro – that it is unreasonable to exercise jurisdiction in a situation where Afghanistan has an inviolable interest in protecting its people from being detained and beaten to death by American civilians on Afghani soil. How could the government of Afghanistan purport to maintain order when it cannot prosecute people like Passaro?
The Restatement continues to explain that even if concurrent jurisdiction between two states is considered reasonable under the aforementioned factors, the parties involved should defer to the state with the greater interest. n120 Therefore, even if the Amendment in present application was considered reasonable, it would be difficult to argue that Afghanistan’s interest in protecting the lives of its citizens or in prosecuting those responsible for a death is less than the government’s interest in prosecuting Passaro for assault.
VI. Prosecutorial Politics and the Office of Legal Counsel
With knowledge of the facts, the relevant available legislation, and the methods actually used to prosecute, the question arises: Why not prosecute for torture? The torture prohibition in 18 U.S.C. § 2340 seems tailored to the situation in Passaro; so why make a struggling argument for jurisdiction under 18 U.S.C. § 7(9)(A), the territorial aspect of which incidentally precludes the use of 18 U.S.C. § 2340?
A. The “Torture Memo”
The prosecutorial decision by the government finds some potential explanation in the infamous “torture memo,” signed by Assistant Attorney General Jay Bybee (Bybee Memo), issued privately by the Office of Legal Counsel on August 1, 2002. n121 This opinion, for practical purposes, legalized torture in the War on Terror, by claiming 18 U.S.C. § 2340 was an unconstitutional infringement on the presidential war-power. n122 The memo went on to state that due to the Office of Legal Counsel’s new understanding, prosecution for torture could be unconstitutional as well. n123 After the Abu Ghraib scandal, the Bybee Memo and other similar legal opinions were leaked to the press. n124 The new head of the Office of Legal Counsel, Jack Goldsmith, had been in office for less than a year when this [*366] occurred. n125 After evaluating whether to stand by the opinions of his predecessor or to withdraw them on behalf of the Office of Legal Counsel, Goldsmith withdrew the Bybee Memo in a conversation with then-Attorney General John Ashcroft. n126 Ashcroft agreed, and in the words of Goldsmith, “[Ashcroft] did support [him], and so it became the Department of Justice’s position.” n127 The following day, on June 17, 2004, Jack Goldsmith resigned from his post as head of the Office of Legal Counsel. n128 That same day, Passaro was indicted. n129 He was charged with assault for his involvement in the death of Wali, n130 though his trial would not begin until August 7, 2006. n131 Also on June 17, 2004, then-Attorney General John Ashcroft delivered a speech announcing the indictment:
The CIA formally referred the case to the Department of Justice last fall. After the Criminal Division determined that venue was in the Eastern District of North Carolina, the matter was sent there earlier this year for a grand jury investigation.
. . . I also note that this case would have been more difficult to investigate and prosecute were it not for the USA PATRIOT Act. The Act expanded U.S. law enforcement jurisdiction over crimes committed by or against U.S. nationals on land or facilities designated for use by the United States government. n132
The facts of the Goldsmith discussion, and the new treatment of 18 U.S.C. § 2340 are notably absent, whereas there is clear allusion to 18 U.S.C. § 7(9)(A), the aforementioned amendment to Special Maritime Jurisdiction. n133 More importantly, Ashcroft mentions how the case came to develop procedurally: the case was referred to the Department of Justice months before the venue was chosen, and thereafter still more time elapsed [*367] between the investigation and the indictment. n134 The formal and publicized indictment arrived the day John Goldsmith resigned – the day after he spoke to John Ashcroft, and withdrew the Bybee Memo. n135
The Bybee Memo is criticized by the legal community for its extraordinarily narrow interpretation of 18 U.S.C. § 2340, and its remarkably broad reading of executive war-powers. n136 In a 2005 article, John W. Dean, former counsel to President Nixon, called the torture memos “”smoking gun’-level evidence of a war crime,” n137 and cited Harold Koh’s equally vociferous condemnation. n138 In that same article, Dean also wrote, “Bybee’s interpretations guided the Bush Administration for twenty-two months. And a powerful case has been made that Bybee’s extraordinary reading of the law led to Americans engaging in torture at Abu Ghraib and elsewhere.” n139 The possibility that the Bybee Memo had such significant influence on Passaro’s prosecution is what makes the memo a crucial element in the Passaro analysis.
Under an alternate interpretation, it might seem reasonable to suspect that the series of events surrounding the Passaro story are not part of a masterfully designed plan to empower and insulate American torturers. Rather, it seems equally likely that the Passaro story is the result of attempts to sanitize the actions of those torture suspects who were operating under the guidance of poorly reasoned legal advice.
Nonetheless, in the immediate context of the case, it bears mentioning that the facts found by the court in Passaro still exceed the restrictive interpretations of the Bybee Memo, which states:
We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. n140
The facts of Passaro fit this definition, making the Bybee Memo’s attempts to whittle away the protections of 18 U.S.C. § 2340 irrelevant. The only [*368] unresolved matter comes from the Bybee Memo’s expressed unwillingness to prosecute. Even then, the prosecutor’s motivations cannot be definitively ascertained one way or the other.
B. Future Implications
The implications of this purely discretionary decision are wide ranging, made all the more damaging by the subsequent prosecution of Chuckie Taylor. Given two cases with near perfect factual tailoring, 18 U.S.C. § 2340 was only used once, against Chuckie Taylor. It seems that Passaro, acting as an agent of the U.S. government, made for a politically unacceptable target for a torture prosecution. Additionally, the use of 18 U.S.C. § 7(9)(A) erodes sovereign jurisdiction, both in terms of U.S. limitations and of the sovereignty of other nations. As a consequence of this, any continued use of 18 U.S.C. § 7(9)(A) would completely preclude the application of 18 U.S.C. § 2340. Whether conscious or otherwise, whether based on the Bybee Memo as part of a larger scheme in the War on Terror or simply a temporal coincidence, the prosecutorial decision-making in Passaro has produced negative immediate results, and has created unsustainable precedent that uses one act of Congress to negate another, more politically sensitive one.
The Passaro case brought more to light than the gruesome facts of the crime itself; it neglected to utilize the most applicable criminal statute in favor of using an otherwise untouched piece of the USA PATRIOT Act legislation to extend territorial jurisdiction to Afghanistan. Further, Passaro exemplified, whether purposefully or not, the United States executive branch’s attitude toward the torture of detainees in the War on Terror. Not only was torture essentially authorized by the top legal minds in the government, but prosecution for the crime of torture as codified by Congress was no longer permitted. Passaro saw special maritime jurisdiction exploited in an effort to assert jurisdiction for simple assault charges in an incident for which jurisdiction would have been expressly conferred had the prosecution brought the correct charge. Instead, a man will serve fewer than five years for the violent death of a prisoner over whom he exercised complete control, which sets a dangerous precedent.
Whether the Bybee Memo contributed to this result may never come to light, but the Office of Legal Counsel has since rescinded the faulty opinions relating to the interpretation of 18 U.S.C. §§2340-2340A, and future prosecutions should reflect this change. The torture convention must be used when situations like Passaro arise. This would affirm the U.S. commitment to prevent torture, and limit the need to resort to weak jurisdictional arguments like the one used in Passaro. The amendment to Special Maritime Jurisdiction created by the USA PATRIOT Act should be [*369] repealed. The ability to place territorial jurisdiction virtually anywhere has many negative consequences internationally, and as Passaro demonstrates, has a nullifying effect on the torture convention. In the future, the crime of torture should be charged when prisoners are abused or killed, and one step toward accomplishing this goal is to repeal 18 U.S.C. § 7(9)(A). The Passaro story might end with the Fourth Circuit’s August 2009 decision, but the lessons learned should influence how torture is handled in the War on Terror.
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n1. United States v. Passaro, 577 F.3d 207, 211 (4th Cir. 2009), cert. denied, 130 S. Ct. 1551 (2010) (upholding the defendant’s conviction, but vacating the sentence and remanding for resentencing).
n2. Court Upholds CIA Contractor’s Detainee Abuse Conviction, Associated Foreign Press, Aug. 11, 2009, http://www.google.com.central.ezproxy.cuny.edu:2048/hostednews/afp/article/ ALeqM5gSo6iRtgbNNlDhDyO_VcZEmT45MQ.
n5. See 18 U.S.C. § 2340A(a) (2006) (“Whoever outside the United States commits or attempts to commit torture … , and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.”).
n7. See Memorandum from Jay S. Bybee, Assistant Attorney Gen., to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C.§§2340-2340A, 1 (Aug. 1, 2002), http://news.findlaw.com/nytimes/docs/doj/ bybee80102mem.pdf [hereinafter Bybee Memo].
n8. The only use of the torture statute to-date originated in 2007 with the indictment of Roy M. Belfast, Jr., also known as Charles McArthur Emmanuel, or “Chuckie Taylor, II (Emmanuel).” United States v. Belfast, 611 F.3d 783, 793 (11th Cir. 2010). Emmanuel is the son of former Liberian President Charles Taylor, and was born in Boston, Massachusetts. Id. As a United States citizen, he is bound by the terms of 18 U.S.C. §§2340-2340A. Id. at 809-10. After his father took power in Liberia, Taylor joined him and was put in charge of a particularly brutal special police unit as the head of which he conspired to commit and committed multiple acts of torture. Id. at 793-99. Originally indicted for passport violations while attempting to enter the United States in Miami, a superseding indictment issued in November 2007 charged him with torture. Id. at 799-801. In October of 2008 he was convicted, and on January 1, 2009, a district court in Florida entered judgment and sentenced Taylor to ninety-seven years in prison. Id. at 801.
n9. Bybee Memo, supra note 7, at 2-13.
n15. See id.
n18. See id.
n38. Bybee Memo, supra note 7.
n39. Id.; Curtis A. Bradley, Universal Jurisdiction and U.S. Law, 2001 U. Chi. Legal F. 323, 327-28 (2001); Beth Stephens, Corporate Liability: Enforcing Human Rights Through Domestic Litigation, 24 Hastings Int’l & Comp. L. Rev. 401, 408 n.29 (2001) (citing Beth Van Schaack, In Defense of Civil Redress: The Domestic Enforcement of Human Rights Norms in the Context of the Proposed Hague Judgments Convention, 42 Harv. Int’l L.J. 141, 148-49 (2001)).
n42. Black’s Law Dictionary 302 (9th ed. 2009).
n45. Id. at 7 n.2.
n50. United States v. Passaro, 577 F.3d 207, 216 (4th Cir. 2009). “The term “national of the United States’ means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” 8 U.S.C. § 1101(a)(22) (2006).
n51. See infra Part V.
n55. See infra Part IV.A.
n56. See infra Part IV.A.
n59. See id.
n61. Id. at 797. The defendants in Markiewicz were members of an Indian nation living on American Indian territory, but the facts of the case extended beyond both criteria. Id. at 795. The severity of the substantive charges and the interstate scope of the conspiracy charges militated federal prosecution. Id. at 795-96.
n63. Smith v. United States, 507 U.S. 197, 198 (1993). The Plaintiff filed suit against the government for the wrongful death of her husband who was working for a private firm under contract with the federal government in Antarctica at the time of his death. Id. at 198-99. The claim rested on Antarctica being adjudged a “foreign country,” which would allow the Plaintiff to overcome the issue of sovereign immunity. Id. at 199. The Court found neither argument plausible and affirmed dismissal of the claim. Id. at 204-05.
n72. See id.
n73. The Statute’s subsections are sufficient to establish the jurisdiction needed in Barnes. This case serves as another example of how the Statute functioned as intended before the Amendment. Id. at 294-95.
n86. 8 U.S.C. § 1101(a)(22) (2006) (“The term “national of the United States’ means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.”).
n91. John W. Whitehead & Steven H. Aden, Forfeiting “Enduring Freedom” for “Homeland Security”: A Constitutional Analysis of the USA PATRIOT Act and the Justice Department’s Anti-Terrorism Initiatives, 51 Am. U. L. Rev. 1081, 1088 (2002).
Relevant factors include the size of a given military mission’s premises, the length of United States control over those premises, the substantiality of its improvements, actual use of the premises, the occupation of the premises by a significant number of United States personnel, and the host nation’s consent (whether formal or informal) to the presence of the United States. This list surely does not exhaust every factor relevant to determining § 7(9)’s reach; nor is any factor a prerequisite for jurisdiction. But these factors do bring to bear relevant, objective considerations in resolving this question.
n119. Id. § 403(2)(g).
n120. Id. § 403(3).
n121. See Bybee Memo, supra note 7, at 1.
n122. Id. at 2, 31, 35, 46.
n123. Id. at 2, 39, 46.
n124. Interview with Jack Goldsmith, Author, The Terror Presidency, Frontline (Aug. 22, 2007), http://www.pbs.org/wgbh/pages/frontline/cheney/interviews/golds mith. html.
n129. United States v. Passaro, No. 5:04-CR-211-1 (E.D.N.C. Jun. 17, 2004), available at http://news.findlaw.com/hdocs/docs/torture/uspassaro61704ind.html.
n131. Jaime Jansen, Federal Trial Begins for CIA Contractor Charged with Afghan Detainee Abuse, Jurist: Legal News & Research (Aug. 7, 2006), http://jurist.law.pitt.edu/ paperchase/2006_08_07_indexarch.php.
n132. Prepared Remarks of Attorney General John Ashcroft Passaro Indictment Announcement (June 17, 2004), available at http://www.justice.gov/archive/ag/speeches/2004/ag061704.htm.
n135. See supra note 124.
n138. Id. “Koh minced no words when he stated, “in my professional opinion as a law professor and a law dean, the Bybee memorandum is perhaps the most clearly legally erroneous opinion I have ever read.’ And he proceeded to spell out no less than “five obvious failures’ within the memo.” Id.
n140. Bybee Memo, supra note7, at 1.