02 Nov U.S. Court Convicts “Chucky” Taylor of Torture
“Chucky” Taylor, son of former Liberian President (and current war crimes defendant) Charles Taylor, was convicted Friday in Florida federal court of committing torture when he was with his father in Liberia.
What makes Taylor’s conviction news (although only news overseas, apparently, since it didn’t make any of the leading U.S. newspapers) is that it is the first conviction under the 1994 Extraterritorial Torture Statute, 18 U.S.C. 2340 and 2340A, which was enacted to implement U.S. obligations under the Convention Against Torture (for an interesting profile of Chucky in Rolling Stone, see here). This statute has a very broad scope and is one of those few U.S. criminal statutes that appears to embrace a theory of universal jurisdiction. Typically, U.S. criminal statutes confine themselves to prescriptive jurisdiction based on territory, effects, nationality, etc. But 18 USC 2340(A)(b) makes clear that this statute applies to acts committed in a foreign country whether or not the defendant is a U.S. national or whether or not the victim is a U.S. national.
The district court in this case rejected a number of constitutional challenges to the law, citing the treaty power and the “define and punish offences against the law of nations” power as the source of congressional authority under the act. I haven’t examined these arguments carefully, but they sound right to me although there is, as far as I know, relatively little judicial precedent on these questions. The most difficult challenge is not presented here, but might be presented in a future case involving the prosecution of a non-U.S. national for actions he or she took outside the territory of the U.S. that did not affect any U.S. nationals or U.S. interests. In other words, has Congress embraced a theory of universal jurisdiction in 18 USC 2340(A)(b)? It certainly seems that way. Take a look for yourself:
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
Are there limits to Congress’ power to criminalize under universal jurisdiction? There might be, as Professor Eugene Kontorovich has argued cogently here and here, although maybe not for something like torture. We may have to wait for a future case to consider that issue, but it is something to keep in mind.