Bush Administration Flip-Flop on Guantanamo

Apparently, the Bush Administration wants to argue out of both sides of its mouth when it comes to the detainees at Guantanamo and torture.

In the secret draft memo (text here), the authors point out that the torture statute only applies to those being held outside the United States and argue that Guantanamo is inside the U.S. In the appeals briefs filed in the cases of the Guantanamo detainees, DOJ argues the opposite. Via the BeatBushBlog:

Title 18, section 2340A of the United States Code, the "Torture Statute," makes it a crime, punishable by up to 20 years imprisonment, for any United States national to torture anyone outside the United States. If the torture results in death, the torturer may be sentenced to death or life imprisonment (statute quoted below, in part; emphasis added):
Sec. 2340A. - Torture
(a) Offense. -
Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

The Department of Justice, at page 7 of its recently released March 6, 2003 draft memorandum, "Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations," takes the position that detainees at Guantanamo are within the United States and, as such, may be tortured without violating the Torture Statute (emphasis added to below):

Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial jurisdiction of the United States, and accordingly, is within the United States for purposes of § 2340. Thus, the Torture Statute does not apply to the conduct of U.S. personnel at GTMO. (Section 2340, referred to above, is the statutory section immediately preceding section 2340A, and defines "torture" for purposes of section 2340A and related provisions.)

But if the folks the United States is holding at Gitmo try to sue, it's another story entirely. The Department of Justice told the Supreme Court in the United States' brief (Summary of Argument, section I) that the Guantanamo detainees are being held outside the United States (emphasis added to below) and that the courts of the United States thus lack jurisdiction to hear the detainees' claims:

[T]he Guantanamo detainees . . . are being held by the U.S. military outside the sovereign territory of the United States. It is "undisputed" that Guantanamo is not part of the sovereign United States . . . and that conclusion is compelled by the express terms of the Lease Agreements between the United States and Cuba and the Executive Branch's definitive construction of those agreements. Accordingly, U.S. courts lack jurisdiction to consider claims filed on behalf of aliens held at Guantanamo.

< Analysis of 56 Page Torture Memo | Bush's Dubious Leadership >
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