6.1. Propuesta alternativa
6.1.2. Análisis FODA
6.1.2.10. Matrices de proyectos y actividades, Farmacia Javier
the torture act
T
he United States enacted the Torture Convention Implementation Act of 1994 (the Torture Act) to implement its obligation to criminalize torture under Article 5 of the U.N. Convention Against Torture (subject to reservations, understandings and decla- rations that the U.S. made at the time of ratification). The Torture Act applies to prohibited acts attempted or committed outside the United States, which is defined as, “the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.”285 Therefore, any inter-rogations conducted by U.S. officials outside of the United States, including at the U.S. Naval Base at Guantánamo Bay would likely be governed by the Torture Act because while it may be inside the territorial jurisdiction of the United States, it is neither a State, commonwealth, terri- tory or possession of the United States.286
The Torture Act’s criminal provisions apply to indi- viduals who are either nationals of the United States or are present in the United States.287 The first and — so
far — only indictment under the Torture Act was filed in December 2006 against the son of the former president of Liberia, Charles Taylor.288
The Torture Act defines torture as an act “committed by a person acting under the color of law specifically
intendedto inflict severephysicalormentalpainor suffering(other than pain or suffering incidental to
lawful sanctions) upon another person within his custody or physical control.”289
The meaning of the term “severe physical pain” is not defined by statute. U.S. federal courts have made findings of “severe physical pain” in cases interpreting immigra- tion regulations and the Torture Victims Protection Act of
285 Torture Act, 18 U.S.C. § 2340(3) (2004). 286 See Rasul v. Bush, 542 U.S. 466 (2004). 287 Torture Act, 18 U.S.C. § 2340A.
288 See United States of America v. Emmanuel, 207 WL 2002452 (S.D. Fla.
July 5, 2007); Associated Press, Son of Ex-Liberian President Charged with Committing Torture, international heralD triBune, Dec. 6, 2006.
289 Torture Act, 18 U.S.C. § 2340(1) (emphasis added).
1991 (TVPA), which may provide guidance in interpreting the Torture Act, but there does not appear to be a clear legal test to determine when physical pain becomes severe.
The term “severe mental pain and suffering” is defined as “prolonged mental harm caused by or resulting from” four enumerated acts: “(A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened adminis- tration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administra- tion or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.” As with “physical pain,” the term severe is not defined and the Torture Act also does not define when mental harm becomes “prolonged.” The Manual for Military Commissions, recently issued by the Pentagon to govern military commission proceedings under the MCA, states that prolonged mental harm “is a harm of some sustained duration, though not necessarily permanent in nature, such as a clinically identifiable mental disorder.”290
This definition has not to date been tested before any court or tribunal.
Finally, the Torture Act requires that an individual
specificallyintendthat his act inflict severe physical or
mental pain, but what is meant by the term “specifically intend” remains unclear.291 “Specific intent” under U.S.
domestic law has been said to describe “a state of mind which exists where circumstances indicate that an offender actively desired certain criminal consequences, or objec- tively desired a specific result to follow his act or failure to act.”292 In 2002, the U.S. Department of Justice’s Office of
Legal Counsel (OLC) issued a memo that narrowly inter- preted the phrase “specifically intend” in the Torture Act as requiring that the infliction of severe pain be the defendant’s
290 manualfor military commissions, M.C.M. (January 18, 2007) at IV-9.
291 U.S. v. Baily, 444 U.S. 394, 405 (1980). 292 21 am. Jur. 2D crim. l. § 128 (2006).
aPPenDix a: introDuction to u.s. law
constraining interrogation
3 8 A P P E N D I X A : I N T R O D U C T I O N T O U . S . L A W C O N S T R A I N I N G I N T E R R O G A T I O N
“precise objective.”293 The OLC subsequently retracted that
memo and replaced it with another memo that stated that “it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture.”294
torture victims Protection act of 1991
& the foreign sovereign immunities act
The Torture Victims Protection Act of 1991 provides a civil right of action for damages to victims of torture against an individual who subjected them to torture “under the actual or apparent authority, or color of law, of any foreign nation.”295 While the TVPA does not create
a right of action against U.S. personnel, judicial opinions interpreting the definition of torture under the TVPA have been used by the Department of Justice in its own legal opinions interpreting the kinds of treatment that could constitute torture under the Torture Act.296 Judicial opin-
ions could also be relevant in interpreting the similar definition of torture under the WCA.
The definition of torture in the TVPA is similar to that in the Torture Act except that it has a purpose require- ment, that the torture be committed “for such purposes as obtaining from that individual or a third person infor- mation or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind.”297 Techniques used for
interrogation or to discipline detainees would inherently fulfill this element of the TVPA definition.
293 Memorandum for Alberto R. Gonzales Counsel to the President Re:
Standards of Conduct for Interrogation under 18 u.s.c. §§ 2340- 2340a (Aug. 1, 2002).
294 Memorandum for James B. Comey Deputy Attorney General Re:
Legal Standards Applicable Under 18 U.S.C. §§ 2340—2340A, Office of Legal Counsel, U.S. Department of Justice 16 (Dec. 30, 2004) [hereinafter Levin Memo] (“We do not believe it is useful to try to define the precise meaning of “specific intent” in section 2340. In light of the President’s directive that the United States not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture.”).
295 Torture Victims Protection Act of 1991, Pub. L. No. 102-256, 106 Stat.
73 (codified at 28 U.S.C.A. § 1350 (2007)) (emphasis added). 296 Id. at 9.
297 U.S. federal courts have held that these enumerated purposes are
not exhausted. See, e.g., Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 92 (D.C. Cir. 2002) (“As to the purposes for which abuse must be inflicted, it is clear from the text of the TVPA that the list of purposes provided was not meant to be exhaustive.”).
Cases brought under the Foreign Sovereign Immunity Act (FSIA) of 1976 provide further guidance in how the courts interpret the TVPA’s definition of torture.298 FSIA
uses the TVPA definition of torture to define an excep- tion to the general immunity of sovereign states from lawsuits.