United States military and central intelligence agency personnel abroad: Plugging the prosecutorial gaps

Harvard Journal on Legislation

Volumn 43, Issue 2, 2006, Pages 487-516

  Sifton, John ^a  

^a Human Rights Watch ^*  (United States)

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EID: 33746468168     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (222)

1. See infra Parts I.A-B.
2. The U.S. Department of Defense ("DOD") claimed to have detained a total of approximately 83,000 detainees since late 2001, of which about 3800 have been held for more than one year. See Katherine Shrader, U.S. Has Detained 83,000 in War on Terror, ASSOCIATED PRESS, Nov. 16, 2005. As of November 2005, around 14,500 detainees were still in U.S. custody, mostly in Iraq, although over 500 were being held at the Guantanamo Bay detention facility. Id. In addition, a number of unregistered "ghost detainees" have been held by the CIA without being processed in official channels.
3. See Josh White, Army Documents Shed Light on CIA "Ghosting," WASH. POST, Mar. 24, 2005, at A15;
4. Josh White, Army, CIA Agreed on "Ghost" Prisoners, WASH. POST, Mar. 11, 2005, at A16. The list of possible "ghost detainees" includes persons suspected of high-level involvement in the 9/11 attacks, the 2002 Bali bombings, and the 1998 embassy bombings in Tanzania and Kenya.
5. See Human Rights Watch, List of Ghost Prisoners Possibly in CIA Custody, Nov. 30, 2005, http://hrw.org/english/docs/2005/11/30/usdom12109.htm.
6. See, e.g., Dana Priest & Joe Stephens, Secret World of U.S. Interrogation, WASH. POST, May 11, 2004, at Al;
7. Edward Wong, American Jails in Iraq Bursting with Detainees, N.Y. TIMES, Mar. 4, 2005, at Al.
8. See, e.g., Erik Eckholm & David Johnston, Qaeda Suspect Sound Asleep at Trail's End, N.Y. TIMES, Mar. 3, 2003, at Al (describing arrest of terrorist suspect Khalid Sheikh Mohammad in Rawalpindi, Pakistan);
9. Ellen Nakashima & Alan Sipress, Tips, Traced Calls Led to Fugitive; Al Qaeda Suspect Was Tracked Through Four Countries, WASH. POST, Aug. 17, 2003, at A16 (detailing arrests by U.S. and Thai authorities in Bangkok).
10. See, e.g., David S. Cloud, Long in U.S. Sights, A Young Terrorist Builds Grim Resume, WALL ST. J., Feb. 10, 2004, at Al (detailing arrest of terrorist suspect in Azerbaijan and transfer to U.S. authorities);
11. Nick Paton Walsh, Al-Qaida Men Handed to US, Says Georgia, GUARDIAN, Oct. 23, 2002, at 14 (detailing transfer of terrorist suspects by Georgian authorities to U.S. custody).
12. See, e.g., Eric Schmitt & Tim Golden, A Growing Afghan Prison Rivals Bleak Guantanamo, N.Y. TIMES, Feb. 26, 2006, § 1, at 1 (outlining detention record at Bagram Air Base, the main U.S. detention facility in Afghanistan).
13. See, e.g., Peter Eisler & Tom Squitieri, Foreign Detainees Are Few in Iraq, USA To-DAY, July 6, 2004, at A1 (describing detainees as mainly insurgents).
14. See, e.g., Schmitt & Golden, supra note 6 (detailing detentions at Bagram Air Base in Afghanistan ranging from months to sometimes years, with an average detention time of fourteen and a half months);
15. Priest & Stephens, supra note 3 (detailing detentions of various lengths in Afghanistan, Iraq, Guantanamo Bay, and secret CIA prisons).
16. See, e.g., Greg Miller, Many Held at Guantanamo Not Likely Terrorists, L.A. TIMES, Dec. 22, 2002, at 1 (reviewing record of U.S. detentions of Afghan farmers and taxi drivers, among others, at Guantanamo Bay).
17. See HUMAN RIGHTS WATCH, HUMAN RIGHTS FIRST, AND THE CENTER FOR HUMAN RIGHTS AND GLOBAL JUSTICE AT NYU SCHOOL OF LAW, DETAINEE ABUSE AND ACCOUNTABILITY PROJECT 5 (forthcoming Spring 2006) [hereinafter DAA PROJECT].
18. Id.
19. See, e.g., Richard A. Oppel, Jr., & Ariel Hart, Contractor Indicted in Afghan Detainee's Beating, N.Y. TIMES, June 18, 2004, at Al (quoting Attorney General John Ashcroft's statement that "[t]he United States will not tolerate criminal acts of brutality and violence against detainees ....");
20. The Ongoing Investigation into the Abuse of Prisoners Within the Central Command Area of Responsibility: Before the H. Armed Serv. Comm., 108th Cong. 13 (2005) (statement of Secretary of Defense Donald Rumsfeld) ("It is my obligation to evaluate what happened, to make sure those who have committed wrongdoing are brought to justice, and to make changes as needed to see that it doesn't happen again."); Interview by Al-Arabiya Television with President George W. Bush (May 5, 2004) ("[W]e will find the truth, we will fully investigate. The world will see the investigation and justice will be served.").
21. Donna Miles, Rumsfeld: Military Always Has Banned Detainee Abuse, AMERICAN FORCES PRESS SERVICE, Dec. 16, 2005, http://www.defenselink.mil/news/Dec2005/20051216_3679.html (last visited Apr. 15, 2006);
22. Eric Schmitt, Iraq Abuse Trial Is Again Limited to Lower Ranks, N.Y. TIMES, Mar. 23, 2006, at Al.
23. DAA PROJECT, supra note 10, at 5.
24. Id. at 6.
25. Id. at 7.
26. Id.
27. Id. at 6. The military contends that 234 abuse cases were resolved as of April 2006, in the following manner: "there have been 85 Courts-Martial (CM), 93 Non-Judicial Punishments (NJP) and 81 admin[istrative] actions." The military refused to provide details on the 178 cases dealt with non-judicially or administratively. E-mail from Maj. Wayne Marotto, Public Affairs Staff Officer, Department of the Army, to DAA PROJECT Researchers (Apr. 7, 2006, 10:50 EST) (on file with author).
28. DAA PROJECT, supra note 10, at 8; see infra Part II.A.2.
29. See Letter from William E. Moschella, Assistant Attorney General, to Senator Richard Durbin (Jan. 17, 2006), available at http://www.aclu.org/images/asset_upload_file606_23910.pdf (noting cases that have been referred to Department of Justice ("DOJ") and stating that the DOJ has not begun prosecutions in any of them).
30. See Douglas Jehl & Tim Golden, C.I.A. Is Likely to Avoid Charges in Most Prisoner Deaths, N.Y. TIMES, Oct. 23, 2005, at A6 (detailing four homicide cases).
31. United States v. Passaro, No. 5:04-CR-211-1 (E.D.N.C. filed June 17, 2004), available at http://www.cdi.org/news/law/cia-contractor-indictment-passaro.pdf.
32. See Letter from William E. Moschella to Senator Richard Durbin, supra note 20. According to the Moschella letter, of the twenty total recorded allegations, investigations in two cases "have been completed and the Department has determined in each of them that there was insufficient evidence to support a prosecution. The remaining allegations remain under investigation." Id.
33. See infra Part II.A.
34. See infra Part II.B.1.
35. See infra Part II.B.2.
36. See infra Part II.B.3.
37. See infra notes 41-48 and accompanying text.
38. See infra Part II.B.1.c.
39. See infra Part II.B.2.
40. See infra Part II.B.3.c.
41. See UNIF. CODE OF MIL. JUST, (codified at 10 U.S.C. §§ 801-950 (2000)). The military can transfer certain cases to the DOJ for prosecution - for instance, cases of fraud and embezzlement-but under a memorandum of understanding between the Departments of Justice and Defense, most offenses committed by military personnel are disposed of under the UCMJ. See Memorandum of Understanding Between the Dept's of Justice and Defense Relating to the Investigation and Prosecution of Certain Crimes, part C, Investigative and Prosecutive Jurisdiction (August 1984), in MANUAL FOR COURTS-MARTIAL, UNITED STATES A3-4 (2002 ed.) [hereinafter MCM].
42. See 10 U.S.C. §§ 928 (assault), 893 (cruelty and maltreatment), 924 (maiming), 918 (murder), & 919 (manslaughter); see also infra note 39 on UNIF. CODE OF MIL. JUST., art. 134.
43. 10 U.S.C. § 805; see also RULES FOR COURTS-MARTIAL, 201(a)(2), in MANUAL FOR COURTS-MARTIAL, UNITED STATES (2002 ed.) [hereinafter RCM] ("The Code applies in all places.").
44. See 10 U.S.C. § 818 ("General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war."); see also RCM 201(f)(1)(B).
45. 10 U.S.C. § 928.
46. Id. § 893.
47. Id. § 924.
48. Id. § 934. In general, article 134 prohibits "disorders and neglects to the prejudice of good order and discipline in the armed forces, [and] all conduct of a nature to bring discredit upon the armed forces." Specific article 134 "crimes" are defined in the MCM. Those applicable to detainee abuse cases include "communicating a threat" and "negligent homicide." MCM, supra note 32, pt. IV, ¶¶ 85, 110.
49. MCM pt. IV, ¶ 54(e)(2), (8)-(9). The maximum punishment for "assault with a dangerous weapon or other means of force likely to produce death or grievous bodily harm" is three years. Id. ¶ 54(e)(8)(b). The maximum punishment for "assault in which grievous bodily harm is intentionally inflicted" is five years. Id. ¶ 54(e)(9)(b). Prosecution for assault with intent to commit murder provides for a more robust maximum punishment of twenty years. Id. ¶ 64(e).
50. See id. ¶ 17(e).
51. See id. ¶ 50(f). The defendant must be shown to have intentionally inflicted an injury that "seriously disfigured the person's body, destroyed or disabled an organ or member, or seriously diminished the person's physical vigor by the injury to an organ or member." Id. ¶ 50(b)(2).
52. Special courts-martial can be convened by lower rank officers than general courts-martial. They have similar jurisdiction to general courts-martial, but cannot try capital cases. See 10 U.S.C. § 823(a) (2000). Summary courts-martial are specifically meant for minor offenses. RCM, supra note 34, 1301(b) ("The function of the summary court-martial is to promptly adjudicate minor offenses under a simple procedure.").
53. 10 U.S.C. § 819.
54. 10 U.S.C. § 820.
55. MCM, supra note 32, pt. IV, ¶ 16(e); see also 10 U.S.C. § 892.
56. MCM pt. IV, ¶ 31(e); see also 10 U.S.C. § 907.
57. In a case from April 2003, a Marine shown to have mock-executed four Iraqi juveniles (by making them kneel next to a ditch and firing his weapon to simulate an execution) was found guilty of cruelty and maltreatment and sentenced to thirty days hard labor without confinement and a fine of $6336. See United States Marine Corps, USMC Alleged Detainee Abuse Cases Since 11 Sep 01, at 2 (2004), available at http://www.aclu.org/torturefoia/released/navy3740.3749.pdf (last visited Apr. 15, 2006). Two other marines who used an electrical transformer to shock a detainee were found guilty of assault, cruelty and maltreatment, dereliction of duty, and conspiracy, but were sentenced to only eight months and one year respectively. See id. at 3.
58. RCM, supra note 34, 306(a) ("Each commander has discretion to dispose of offenses by members of that command.").
59. Id. 306(c)(2) ("A commander may take or initiate administrative action, in addition to or instead of other action taken under this rule, subject to regulations of the Secretary concerned. Administrative actions include corrective measures such as counseling, admonition, [and] reprimand.").
60. Id. 306(c)(1) ("A commander may decide to take no action on an offense. If charges have been preferred, they may be dismissed.").
61. See RCM 306(c)(3); see generally MCM, supra note 3, pt. V.
62. 10 U.S.C. § 815(b) (Supp. II 2003).
63. See id.
64. See id.; see also MCM pt. V, ¶ 5(b).
65. See DAA PROJECT, supra note 10, at 9. In one case from Iraq in 2003, three soliders in the Army's 519th Military Intelligence Battalion sexually assaulted a female detainee. Commanders chose to punish the soliders non-judicially rather than convene courts-martial. The three soliders each received one month of confinement; one of the soliders was fined $500 while the other two were fined $750.
66. See COMMANDER'S REPORT OF DISCIPLINARY OR ADMINISTRATIVE ACTION (2004), available at http://www.aclu.org/torturefoia/released/22TFa.pdf;
67. AGENT NOTES AND SUPPLEMENTARY DOCUMENTS FROM THE FIELD FILE (2003), http://www.aclu.org/torturefoia/released/22TFb.pdf;
68. see also Elise Ackerman, Prisoner Abuse in Afghanistan May Have Foreshadowed Iraq Scandal, MILWAUKEE J. SENTINEL, Aug. 23, 2004, at A6 (describing seemingly overly lenient non-judicial punishments in Afghanistan and Iraq).
69. See RCM, supra note 34, 306(c)(1). Commanders can choose to take no action on recommended criminal charges and subsequently recommend that a soldier be discharged. If the solider does not contest the discharge, the matter can be closed without a judicial or administrative hearing. Alternately, a soldier who is facing prosecution can request discharge in lieu of prosecution. See id.
70. See 10 U.S.C. § 802 (2000) (defining persons subject to the UCMJ). Some persons, such as civilians who are in inactive reserve components of the armed forces, remain subject to the UCMJ in certain circumstances. See generally RCM 202.
71. See generally Michael L. Smidt, Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations, 164 MIL. L. REV. 155 (2000).
72. 43 C.M.R. 243 (1971); see also C.M. 427162 (1971), reprinted in Kenneth A. Howard, Command Responsibility for War Crimes, 21 J. PUB. L. 7, 8-12 (1972).
73. 10 U.S.C. § 877 (defining "principal").
74. See id.
75. See MCM, supra note 32, pt. IV, ¶ 1(b)(2)(b).
76. Id.
77. Id.
78. See 43 C.M.R. 243; see also Smidt, supra note 59, at 193-98 (comparing the Medina standard with that found in the MCM).
79. See Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, 86 CAL. L. REV. 939, 971-72 (1998);
80. Timothy Wu & Yong-Sung (Jonathan) Kang, Criminal Liability for the Actions of Subordinates - The Doctrine of Command Responsibility and Its Analogues in United States Law, 38 HARV. INT'L L.J. 272, 276-78 (1997).
81. 10 U.S.C. § 892(1) (2000).
82. Id. § 892(3).
83. The "duties" noted in Article 92 can be imposed by "treaty, statute, regulation, law-ful order, standard operating procedure, or custom of the service." MCM, supra note 32, pt. IV, ¶ 16(b)(3)(a).
84. W. Id. ¶ 6(e).
85. See infra Part III.
86. 18 U.S.C.A. § 2340A (West 2004).
87. Id. § 2340(1).
88. W. § 2340A(a).
89. Id.
90. See Matthew McAllester, War Criminals in the U.S.: 1994 Anti-Torture Statute Still Sits Unused, NEWSDAY (New York), Mar. 14, 2006, at A20.
91. The United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. Doc. A/39/ 51 (Dec. 10, 1984); U.S. Senate Advice and Consent to the Ratification of the Convention Against Torture, 136 CONG. REC. 817, 486 (1990).
92. See, e.g., S. EXEC. REP. No. 101-30, at 4 (daily ed. Oct. 2, 1990) (stating that "the United States will be in a stronger position to prosecute alleged torturers and to bring to task those countries in the international arena that continue to engage in this heinous and inhumane practice.").
93. Convention Against Torture: Hearing on Advice and Consent to Treaty 100-20 Before the S. Comm. on Foreign Relations, 101st Cong. 718 (1990) (statement of Abraham Sofaer, Legal Advisor, Department of State).
94. Letter from Janet Mullins, Assistant Secretary of State for Legislative Affairs, to Senator Larry Pressler (Apr. 4,1990) (reprinted in S. EXEC. REP. No. 101-30, at 40 (1990)).
95. 18 U.S.C.A. § 2340(1) (West 2004).
96. See Memorandum from Jay S. Bybee, the Dep't of Justice Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A 4 (Aug. 1, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/ dojinterrogationmemo20020801.pdf;
97. see also DEPARTMENT OF DEFENSE, WORKING GROUP REPORT ON DETAINEE INTERROGATIONS IN THE GLOBAL WAR ON TERRORISM: ASSESSMENT OF LEGAL, HISTORICAL, POLICY, AND OPERATIONAL CONSIDERATIONS 9 (2003), available at http://www.defenselink.mil/news/Jun2004/d20040622doc8.pdf.
98. Memorandum from Jay S. Bybee, supra note 83, at 3,
99. Id. at 4.
100. Id.
101. Memorandum from Daniel Levin, Dep't of Justice Office of Legal Counsel, to James B. Comey, Deputy Attorney General, Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A, 16-17 (Dec. 30, 2004), available at http://www.usdoj.gov/olc/dagmemo.pdf.
102. See infra Part III.
103. See, e.g., Carlotta Gall, The Reach of War: Detainees, N.Y. TIMES, Dec. 19, 2005, at A14;
104. Associated Press, 2 Officers Punished in 2003 For Mistreatment of Detainees, N.Y. TIMES, May 18, 2005, at A10.
105. 18 U.S.C.A. § 2340(2) (West 2004) (defining torture as "the prolonged mental harm caused by . . . (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death . . .").
106. Memorandum from Jay S. Bybee, supra note 83, at 8.
107. See Memorandum from Daniel Levin, supra note 87, at 14-15 (discussing cases brought under the Torture Victims Protection Act, such as Sackie v. Ashcroft, 270 F. Supp. 2d 596 (E.D. Pa. 2003);
108. Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285 (S.D. Fla. 2003); and Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002)).
109. Id. at 14 n.24.
110. See, e.g., Physicians for Human Rights, New Opinion Will Not Prevent Torture or Cruel, Inhuman or Degrading Treatment, Particularly Severe Mental Pain and Suffering: An Analysis of the Office of Legal Counsel Opinion of December 30, 2004 (Jan. 4, 2005), http://www.phrusa.org/research/torture/tortureopinion.html (last visited Apr. 15, 2006).
111. The inclusion in 18 U.S.C.A. § 2340(2) of the word "the" before "prolonged mental harm" (not present in the Torture Victims Protection Act ("TVPA"), from which Congress took the definitional language) suggests that Congress assumed that "the prolonged mental harm" noted in the statute was the harm that naturally or inevitably results from the four enumerated acts listed in § 2340(2). Compare 18 U.S.C.A. § 2340(2), with Torture Victims Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73, 74 (codified at 28 U.S.C. § 1350 (2000)). In addition, the cases cited in the OLC memorandum do not support the argument presented very strongly. Mehinovic does not specifically outline prolonged mental harm as a separate element, but merely mentions the phrase in passing. See 198 F. Supp. 2d at 1346. The Eleventh Circuit vacated the Villeda court's dismissal of TVPA mental torture claims without overtly discussing prolonged mental harm as a necessary element, after the 2004 OLC memorandum was published. See Aldana v. Del Monte Fresh Produce, N.Am., Inc., 416 F.3d 1242, 1253 (11th Cir. 2005).
112. 18 U.S.C.A. § 2340A (Supp. 2002).
113. W. 18 U.S.C.A. § 2340(3) (West 2004).
114. See Complaint at 11, Al-Marri v. Rumsfeld (D.S.C. 2005), available at http://hrw.org/us/us080905.pdf (unpublished plaintiff's complaint).
115. See id. at 7.
116. See id. at 24.
117. 18 U.S.C.A. § 2340(3) (West 2005) ("'United States' includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title ....") (amended by Pub. L. No. 108-375, § 1089, 118 Stat. 1811, 2067 (2004)).
118. Section 7 defines all the areas in the special maritime and territorial jurisdiction of the United States. 18 U.S.C.A. § 7 (West 2005) (amended by Pub. L. No. 107-56, § 804, 115 Stat. 377 (2001)).
119. See infra text accompanying notes 141-143 (discussing changes in the SMTJ).
120. 18 U.S.C. § 2441 (2000).
121. Id. § 2441(c)(1), (3).
122. See Geneva Convention (First) for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3314, 75 U.N.T.S. 31, art. 50 [hereinafter First Geneva Convention]; Geneva Convention (Second) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, art. 51 [hereinafter Second Geneva Convention]; Geneva Convention (Third) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, art. 130 [herinafter Third Geneva Convention]; Geneva Convention (Fourth) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, art. 147 [hereinafter Fourth Geneva Convention].
123. First Geneva Convention, art. 3; Second Geneva Convention, art. 3; Third Geneva Convention, art. 3; Fourth Geneva Convention, art. 4.
124. 18 U.S.C. § 2441(a).
125. Id.
126. Compare 18 U.S.C.A. § 2340(1)-(2) (West 2004) (defining torture without including "cruel," "humiliating," and "degrading" treatment), with notes 103-106 and accompanying text (including those terms as criminalized behavior under the War Crimes Statute).
127. For a detailed outline and discussion of cases defining violations of the Geneva Conventions, especially "common article three" violations, see generally HUMAN RIGHTS WATCH, GENOCIDE, WAR CRIMES, AND CRIMES AGAINST HUMANITY: TOPICAL DIGESTS OF THE CASE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA AND THE INTERNATIONAL
128. CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (2004), available at http://www.hrw.org/reports/2004/ij (citing tribunal cases including Prosecutor v. Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Oct. 2, 1995); Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2 (Feb. 26, 2001); Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34 (Mar. 31, 2003)).
129. See supra Part II.B.
130. Courts have wrestled with some of these issues, for example, in the habeas corpus case of Guantanamo Bay detainee Salim Hamdan. See Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005) (holding that common article 3 of the Geneva Convetion does not apply to the United States' conduct toward al Qaeda personnel captured in the conflict in Afghanistan), cert, granted, 74 U.S.L.W. 3287 (U.S. Nov. 7, 2005) (No. 05-184).
131. Third Geneva Convention, supra note 105, art. 130;
132. Fourth Geneva Convention, supra note 105, art. 147.
133. See Memorandum from President George W. Bush to National Security Advisors, Humane Treatment of al Qaeda and Taliban Detainees (Feb. 7. 2002), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf.
134. 42 U.S.C.A. § 2000dd (West 2006) contains a statutory prohibition of CID but does not create a criminal offense. Id.
135. 18 U.S.C. § 113(2000).
136. W. §109A.
137. 18 U.S.C.A. §1201 (West 2003).
138. 18 U.S.C. §373 (2000) (prohibiting "[s]olicitation to commit a crime of violence").
139. Id. §§241-242 (prohibiting "[conspiracy against rights" and "[d]eprivation of rights under color of law").
140. d. § 113(a)(5).
141. See supra notes 75-76, 107-108 and accompanying text.
142. 18 U.S.C. § 113.
143. See, e.g., United States v. Turley, 352 U.S. 407, 411 (1957) ("[W]here a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning.").
144. For example, some courts interpreting the common law have folded assault and battery together, holding that "[s]imple assault" under 18 U.S.C. §113 is an "assault committed by way of a battery," defined as an intentionally harmful or offensive "touching." United States v. Bayes, 210 F.3d 64, 68-69 (1st Cir. 2000) (affirming conviction under § 113(a)(5) for simple assault in a case of nonviolent but sexually offensive groping and discussing other cases where non-injurious contact resulted in convictions for assault); see also United States v. Whitefeather, 275 F.3d 741, 742 (8th Cir. 2002) (affirming conviction where jury instruction defined simple assault as "any intentional or knowing harmful or offensive bodily touching or contact, however slight, without justification or excuse, with another's person, regardless of whether physical harm is intended or inflicted"). Other courts, however, have held that simple assault is a threatened or attempted battery. See, e.g., United States v. Yates, 304 F.3d 818, 821-22 (8th Cir. 2002) (holding that "simple assault" is distinct from other forms of federal assault that involve physical touching akin to common law battery); United States v. McCulligan, 256 F.3d 97, 104 (3d Cir. 2001) (defining simple assault under § 113 as either an "attempted battery or the placing of one in apprehension of immediate harm-actions that do not involve contact").
145. See, e.g., Don Van Natta, Jr., Threats and Responses: Interrogations, N.Y. TIMES, Mar. 9, 2003, at 11.
146. See supra note 125 and accompanying text.
147. See, e.g., Ian Fisher, The Struggle for Iraq: Inmate, N.Y. TIMES, May 5, 2004, at A1.
148. See supra note 89 and accompanying text.
149. 18 U.S.C. § 113(a)(3) (2000) (allowing imprisonment of up to ten years for "[a]ssault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse"); id. §113(a)(6) (allowing imprisonment of up to ten years for "[a]ssault resulting in serious bodily injury").
150. Id. § 113(b)(2) (referring to 18 U.S.C. § 1365(h)(3) (Supp. 2003)).
151. 18 U.S.C.A. § 2340A (West 2004).
152. See Richard W. Stevenson & Joel Brinkley, More Questions As Rice Asserts Detainee Policy, N.Y. TIMES, Dec. 8, 2005, at Al;
153. Douglas Jehl, Report Warned C.I.A. on Tactics In Interrogation, N.Y. TIMES, Nov. 9, 2005, at A1.
154. It should be noted that the Federal Sentencing Guidelines are now advisory rather than binding. See United States v. Booker, 543 U.S. 220, 245-46 (2005).
155. U.S. SENTENCING GUIDELINES MANUAL § 2A2.2(a) (2005).
156. W. ch. 5, pt. A.
157. Id § 2A2.2(b).
158. Id. ch. 5, pt. A.
159. See 18 U.S.C. § 956 (2000) (prohibiting "[conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country").
160. See, e.g., id. § 113 (criminalizing assault within the "special maritime and territorial jurisdiction of the United States").
161. See historical and revision notes to 18 U.S.C. § 7 (Supp. 2003) ("This section first appeared in the 1909 Criminal Code. It made it possible to combine in one chapter all the penal provisions covering acts within the admiralty and maritime jurisdiction ....").
162. See, e.g., Pub. L. No. 98-473, § 1210, 98 Stat. 1837, 2164 (1984) (expanding the SMTJ to include any area "outside the jurisdiction of any nation" when the offense is committed by or against a U.S. national).
163. See United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, § 804, 115 Stat. 377 (2001) (amending 18 U.S.C. § 7(9) (2000)).
164. Of course, it was possible in 2001 to prosecute defendants for terrorist attacks occurring overseas. In the case of the 1998 terrorist attacks against U.S. embassies in Tanzania and Kenya, prosecutors charged four defendants with numerous counts under 18 U.S.C. § 844(h) (use of explosives during a felony) and 18 U.S.C. § 2332(murder during commission of an international terrorist act). See United States v. Bin Laden, 91 F. Supp. 2d 600, 616-17 (S.D.N.Y. 2000). Attacks on foreign soil could also be prosecuted under 18 U.S.C. § 956 (punishing "[conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country"). However, the expansion of the SMTJ and accompanying liability under Title 18 clearly allowed for easier and more straightforward prosecutions at U.S. embassies, military bases, and government offices and residences overseas.
165. 18 U.S.C. § 7(9)(a).
166. United States v. Passaro, No. 5:04-CR-211-1 (E.D.N.C. filed June 17, 2004). The detainee was actually killed while in custody, but for unknown reasons prosecutors did not pursue homicide charges. Passaro, the first non-military person charged with abuse in Afghanistan and Iraq, could not be court-martialed because he was not a member of the military. See Oppel & Hart, supra note 12.
167. United States v. Passaro, No. 5:04-CR-211-1, at 2.
168. Pub. L. No. 106-523, 114 Stat. 2488 (2000) (codified as amended at 18 U.S.C. § 3261-3267 (2000)).
169. 18 U.S.C. § 3267(1)(A) (2000), amended by Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, § 1088, 118 Stat. 1811, 2066-67 (2004) (covering contractors and employees of not only the DOD but also "any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas").
170. 18 U.S.C. § 3261 (2000).
171. See supra note 75 and accompanying text.
172. See supra note 107 and accompanying text.
173. See supra note 135 and accompanying text.
174. See supra note 121 and accompanying text.
175. See supra Part II.B.3.
176. RCM, supra note 34, 916(d).
177. Detainee Treatment Act of 2005, Pub. L. No. 109-163, Div. A, §1401-1404, 119 Stat. 3136, 3475 (codified at 42 U.S.C.A. §2000dd-1 (West 2006)).
178. 42 U.S.C.A. § 2000dd-l(a).
179. See infra Part III.C.
180. See infra Part IH.C.2.
181. See infra Part III.C.3.
182. See DAA PROJECT, supra note 10, at 8;
183. see also supra Part II.A.2.
184. RCM, supra note 34, 916(d).
185. I.b.i.d.
186. 10 U.S.C. §892(1) (2000); see also supra Part II.A.3.
187. See Schmitt, supra note 6 (detailing several detainee abuse cases where military judges refused defense attorneys' requests to call superiors to testify).
188. Detainee Treatment Act of 2005, Pub. L. No. 109-163, Div. A, § 1404, 119 Stat. 3136, 3475 (codified at 42 U.S.C.A. § 2000dd-l (West 2006)).
189. W. § 2000dd-1(a).
190. Id.
191. See The Classified Information Procedures Act, Pub. L. No. 96-456, 94 Stat. 2025 (1980) (codified as amended at 18 U.S.C. app. § 1-16 (2000)) (defining the circumstances under which classified evidence can be obtained by defendants).
192. See supra Part II.B.3.C.
193. See supra Part II.B.2.
194. See supra Part II.B.1.
195. See supra Part II.
196. The defense applies where "good faith reliance" on legal counsel has been shown, seemingly regardless of that counsel's ultimate accuracy. See supra note 169 and accompanying text.
197. See, e.g., United States v. Clegg, 846 F.2d 1221, 1222-24 (9th Cir. 1988) (stating that defendant claimed his gun-smuggling activities in Afghanistan were part of an operation conducted with the aid of high-ranking U.S. officials).
198. See, e.g.. Cox v. Louisiana, 379 U.S. 559, 570-71 (1965) (stating that protestors claimed that they were told by a local police chief that they could lawfully protest across the street from the courthouse).
199. See, e.g., United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir. 1994); United States v. Andersen, 872 F.2d 1508, 1517-18 (11th Cir. 1989); United States v. Juan, 776 F.2d 256, 258 (11th Cir. 1985).
200. See, e.g., United States v. Fulcher, 250 F.3d 244, 252 (4th Cir. 2001); United States v. Pitt, 193 F.3d 751, 756 (3d Cir. 1999); see also United States v. Smith, 780 F.2d 1102 (4th Cir. 1985). Such a defense is sometimes referred to as a "CIA Defense." See Pitt, 193 F.3d at 756.
201. See, e.g., Cox, 379 U.S. at 570-71 (reversing conviction for violating a statute prohibiting demonstrations near a courthouse because protestors were told by a local police chief that they could lawfully protest across the street from the courthouse); United States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir. 1987) (holding that defendant, a felon, reasonably relied on legal representation by federally licensed gun dealer that his purchase of a firearm was legal).
202. United States v. Fulcher, 250 F.3d 244, 253 (4th Cir. 2001).
203. See 18 U.S.C. § 6003(b)(1) (2000).
204. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, United States of America, ¶6, U.N. Doc. CAT/C/28/Add.5 (Feb. 9, 2000), available at http://documents-dds-ny.un.org/doc/ UNDOC/GEN/GOO/406/56/pdf/G0040656. pdf ("No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form.").
205. See, e.g., United States v. Pitt, 193 F.3d 751, 758 (3d Cir. 1999) (limiting the public authority defense "to those situations where the government agent in fact had the authority to empower the defendant to perform the acts in question"); United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir. 1994) ("If the agent had no such power, then the defendant may not rest on the 'public authority'; reliance on the apparent authority of a government official is not a defense in this circuit, because it is deemed a mistake of law, which generally does not excuse criminal conduct.").
206. See United States v. Rosenthal, 793 F.2d 1214, 1236 (11th Cir. 1986) ("Officials of the C.I.A ... do not have the authority to authorize conduct which would 'violate the constitution or statutes of the United States, ' .... [Defendants'] theory that they were acting on apparent authority of a C.I.A. agent is not a viable defense.") (quoting Exec. Order No. 12,333, 3 C.F.R. 200(1982)).
207. See, e.g., Rosenthal, 793 F.2d at 1236; United States v. Duggan, 743 K2d 59, 84 (2d Cir. 1984) (rejecting the defense because defendants' mistaken reliance on an informant's purported authority as a CIA agent amounted to an "error based upon a mistaken view of legal requirements and therefore constitute[d] a mistake of law").
208. United States v. Barker, 546 F.2d 940, 948 n.24 (D.C. Cir. 1976) (reversing defendants' convictions after they successfully raised an "apparent authority" defense by claiming that they had been recruited by Watergate co-conspirator Howard Hunt, who they mistakenly believed was a CIA agent (though even a CIA agent could not have authorized their acts, thus making their mistake one of law)).
209. See supra notes 184-186 and accompanying text.
210. See supra note 146 and accompanying text.
211. Andrea Weigl, Passaro Can Claim He Was Doing His Job: Judge To Let Jury Hear His Evidence, NEWS & OBSERVER (Raleigh), Feb. 3, 2006, at B5. The trial judge said that he will decide whether to allow Passaro's public authority defense after hearing evidence at trial. Id.
212. See Andrea Weigl, Trial's Weight Hinges on Ruling, NEWS & OBSERVER, Dec. 16, 2005, at B1;
213. see also United States v. Rosenthal, 793 F.2d 1214, 1236 (11th Cir. 1986).
214. See supra note 180 and accompanying text.
215. United States v. Lansing, 424 F.2d 225, 227 (9th Cir. 1970); see also United States v. Abcasis, 45 F.3d 39, 43 (2d Cir. 1995); United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994) (stating that belief must be reasonable "in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation").
216. See supra note 133 and accompanying text.
217. Over 100 legal scholars recently signed a document asserting that waterboarding is torture and constitutes assault under federal criminal law and asking Attorney General Gonzales to clarify that publicly. See Letter from Law Professors to Attorney General Alberto Gonzales (Apr. 5, 2006), available at http://hrw.org/english/docs/2006/04/06/usdom13130.htm.
218. See, e.g., United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir. 1994) (commenting on the "tangled web" of defenses based on defendants' reliance on acts or statements by government officials that has resulted in a "muddled state of the law").
219. See supra note 104 and accompanying text.
220. 136 CONG. REC. S17,486 (1990) (announcing the reservation that the Convention Against Torture bound the U.S. to prevent CID only insofar as it is already prohibited by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution).
221. See, e.g., Foster Klug, McCain Says Torture Ban Vital to U.S. Image, SEATTLE TIMES, Nov. 14, 2005, at A5;
222. Mark Brzezinski, Op-Ed, Torture Reports Tarnish U.S. Image, BOSTON GLOBE, Nov. 22, 2005, at A11.