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Passport Fraud and Torture

by JOANNE MARINER

A landmark trial is scheduled to begin this week, in which a senior government official is accused of responsibility for vicious acts of torture committed in the name of fighting terrorism.

Alas, the defendant is not one of the many Bush Administration officials who so richly deserve their moment in the dock. But the trial does mark the first application of a federal law criminalizing extraterritorial acts of torture–a law that could someday be used to prosecute “war on terror” abuses.

The defendant in this case, Charles “Chuckie” Taylor, Jr., is the Boston-born son of former Liberian President Charles Taylor, himself facing trial before an international court in The Hague. An American citizen, Chuckie Taylor was taken into U.S. custody in March 2006, when he attempted to enter the United States at Miami airport. He arrived in Miami the day after his father was handed over to the UN-backed Special Court for Sierra Leone on charges of orchestrating violence in Sierra Leone’s bloody civil war.

Chuckie Taylor was initially charged with passport fraud, for lying about his father’s identity on his passport application. Later in the year, after pressure from human rights groups, he was indicted on charges of torture, conspiracy to torture, and using a firearm during the commission of a violent crime. Subsequent indictments included an added count of conspiracy to use a firearm during a crime of violence.

The facts set out in the indictments are chilling. Between 1997 and 2003, when Taylor headed Liberia’s notorious Anti-Terrorist Unit, he allegedly burned prisoners’ body parts, subjected them to electrical shocks, imprisoned them in holes in the ground, and summarily shot three victims selected at random from a group of rebels. Information available to Human Rights Watch also suggests that the Anti-Terrorist Unit was responsible for abductions, rape, and the recruitment of child soldiers

Human Rights Abuses Committed Abroad

The Extraterritorial Torture Statute–the federal law that criminalizes torture abroad–was passed in 1994, just before the United States ratified the Convention against Torture. Its passage was meant to give effect to Article 5 of the Convention against Torture, which requires state parties to prosecute acts of torture, regardless of where they were committed, as long as the alleged perpetrators are found on the state’s territory. The purpose of this requirement is to ensure that torturers have no safe haven: that no matter where they go, they will not escape prosecution for their crimes.

Under the statute, therefore, not only can acts of torture committed by American citizens be prosecuted, but so too can abuses committed by non-citizens present on U.S. soil. Until last year, the statute was unique in this respect: Other laws that criminalized human rights abuses occurring abroad only applied to U.S. nationals or members of the U.S. armed forces. (In December 2007, the Genocide Accountability Act, following the same approach as the Extraterritorial Torture Statute, made it a federal crime for any American citizen or anyone in the United State to commit genocide anywhere.)

Disappointingly, the statute, despite its breadth, sat on the books for years without being applied. One possible explanation for this is the fact that atrocities committed abroad can be difficult to investigate, and may require specialized linguistic and political expertise. Yet in analogous cases for which the political will to prosecute exists–for example, drug-trafficking cases in which the actions at issue were committed abroad–U.S. prosecutors and investigators have shown both a willingness and an ability to put together cases.

In recent years, the U.S. government has taken steps to make these prosecutions more likely. Still, groups like Human Rights Watch have urged the Department of Justice to devote greater attention to these cases and to ensure that they are investigated and prosecuted.

Crimes Such as These Will Not Go Unanswered (Unless…)

In indicting Chuckie Taylor, U.S. officials pledged that the case was not a fluke: that other perpetrators of torture would also be pursued. While acknowledging that it was the first time that federal prosecutors had brought a case for extraterritorial torture, Assistant Attorney General Alice S. Fisher promised that “[c]rimes such as these will not go unanswered.”

Unfortunately, the U.S. record of prosecuting acts of torture committed abroad remains notoriously poor, at least when the torture has been ordered and committed by U.S. officials.

Despite countless testimonies of abuse and a long and revealing paper trial, no senior official or CIA operative has been held accountable for the torture of terrorism suspects in U.S. custody. Indeed, when the Department of Justice launched a formal investigation last January into the CIA’s destruction of tapes showing the interrogations of detainees who were subject to torture, Attorney General Michael Mukasey insisted to the Senate Judiciary Committee that the investigation would not examine the legality of the interrogations themselves.

The Taylor prosecution is important and encouraging. Yet one cannot help but wonder whether torture is only considered deplorable when carried out by African warlords and their thuggish offspring. Were the Justice Department to announce a case involving U.S. counterterrorism abuses, the values expressed in the Extraterritorial Torture Statute would seem more secure.

JOANNE MARINER is an attorney at Human Rights Watch in New York. Her discussion of the Chuckie Taylor case is based on information provided by Elise Keppler, senior counsel at Human Rights Watch’s International Justice Program. A more detailed and comprehensive analysis of the case can be found in an article written by Keppler, Shirley Jean, and J. Paxton Marshall, which appeared in the spring/summer 2008 issue of Human Rights Brief.

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JOANNE MARINER is a human rights lawyer living in New York and Paris.

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