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Valerie Brender

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The Hypocrisy (and Holes) in U.S. Torture Laws

Posted: 07/19/10 02:04 PM ET

It may come as a surprise that the U.S. has one of the most comprehensive laws in the world for torture victims. In 1992 Congress passed the Torture Victim Protection Act (TVPA), which was a boon for victims, human rights activists, and even Congress. The bill enjoyed bipartisan support, and the congressional reports made bold, sweeping statements, such as "Official torture and summary execution violate standards accepted by virtually every nation."

The bill opened U.S. courts to civil claims made by victims who had been tortured "under actual or apparent authority, or color of law, of any foreign nation." That sounded really promising. On U.S. soil, you were protected from torture under the Eighth Amendment's prohibition on cruel and unusual punishment and the Fifth Amendment's prohibition on cruel, inhumane or degrading treatment. If you were tortured abroad, regardless of your citizenship, you could bring a civil claim in the U.S. under the TVPA. Nowhere could torturers commit their crimes and enjoy complete impunity. After all, torturers were hostis humani generis--enemies of all mankind.

The TVPA had a great start. In 1995 it was partly responsible for holding Hector Gramajo, the Guatemalan Minister of Defense, responsible for the torture and sexual assault of Diana Ortiz, a nun and citizen of the United States.

For years after Ortiz's case, TVPA litigation chugged forward alongside its counterpart human rights statute, the Alien Tort Statute. If torturers were found within our borders, we could hold them liable. Outside of human rights circles, there wasn't much media fanfare around the torture cases against individuals. In the field of justice for torture victims, we were doing well.

In 2006 a major hole in the TVPA and torture law became apparent in a series of district court opinions. The first case to come down was Rasul v. Myers. Rasul was a British citizen who traveled to Afghanistan to work with humanitarian organizations after the U.S. invasion. In Afghanistan he was captured by a warlord, sold for a reward, and tortured. He was beaten, put in stress position, subjected to sleep deprivation, photographed naked and threatened with death. The one crucial difference in Rasul and subsequent claims was the torturers were part of the U.S. government.

What happens when a country with a strong constitutional and statutory history of bringing torturers to justice suddenly discovers that its officials were the perpetrators? In the case of the U.S., the answer was clear--it simply avoided any examination of its torturous actions.

This avoidance was done in all sorts of inventive and surprising ways. For the statutory claims under the Alien Tort Statute, the U.S. government argued that the torture committed was within the scope of the interrogators' employment. The scope of employment doctrine was supposed to protect government officials from garden variety torts for merely doing their jobs. However, when acts are seriously criminal--and there is little doubt that torture would fit into this category--the scope of employment doctrine usually does not apply.

The Court of Appeals decided that torture wasn't that criminal after all. This was in part because the Attorney General, who generally writes a letter to certify whether a government employee's actions were within his scope of employment, certified that torture was incidental to interrogation. Since torture was part and parcel to employment, the Federal Tort Claims Act applied and substituted the United States for the named parties. Under the FTCA, Rasul had to exhaust administrative remedies (a technicality). Even if he had exhausted these remedies (which were unlikely to give him anything), the FTCA wouldn't allow him to sue for injuries that happened abroad. Goodbye statutory claims.

If there was any hope that the Constitution would apply where the Alien Tort Statute (ATS) was circumvented, those hopes were quickly extinguished. The Court of Appeals decided in Rasul that the Constitution did not extend to nonresident aliens overseas. This was not because the Constitution couldn't extend to Guantanamo or other U.S. interrogation sites--the Supreme Court held in Boumediene that it could. The problem, according to the Court of Appeals, was that it was not clearly established whether the constitutional ban on torture applied to detainees at the time they were tortured. Therefore, the officials were entitled to qualified immunity.

However farfetched that argument was to some, if being abroad was the problem, then the TVPA should apply. Because of the way the TVPA was written, it would escape the FTCA analysis that kicked the ATS claims out of court.

Rasul didn't sue under the TVPA, perhaps in part because he anticipated what ended up happening to Maher Arar. Arar was a Syrian-born, Canadian citizen who was arrested in New York by the U.S. government, sent to Syria and tortured. The U.S. government argued that the U.S. officials, who were accused of conspiring with the Syrian government in torturing Arar, did not possess any "actual or apparent authority" under Syrian law. With no "authority" under Syrian law, the TVPA did not apply to them. Several weeks ago the Supreme Court denied hearing Arar's appeal, which eliminated any hope that the Supreme Court might puncture the dam of immunity the government and lower courts had built.

So there you have it; the U.S. government managed to entirely argue its way out of civil liability for torture. Despite the fact that Arar, Rasul and others were found to be completely innocent, the government has never officially apologized. It is a cold comfort that torture victims can continue to sue in U.S. courts for torture committed anywhere in the world, just so long as the U.S. didn't do it.