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If Foreign Terrorist Suspects Are Tortured, Could US Citizens Be Next? Roger Algase

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This post will continue my July 1 comment on the possible dangers for our democracy posed by Donald Trump's proposal to use torture against ISIS and other foreign terrorists,

A distinguished immigration legal scholar, Nolan Rappaport, in commenting on my post, tried to revive the Bush era argument that waterboarding might not really be "torture" and is therefore not prohibited by US or international laws against this odious and inhuman practice. However, I don't need to respond to Nolan's argument, because Donald Trump has already done that himself.

As quoted in an article in The Hill cited in my above post, Trump has stated that he not only likes waterboarding "a lot", but that waterboarding isn't "tough enough". In other words, if waterboarding isn't torture, Trump wants to use something that is.

Therefore we can move beyond any question about whether Trump supports the use of torture, which is about as much open to question as whether Trump is famous for having yellow hair, and instead look at the question of whom he wants to torture. Would torture be limited to real or suspected foreign terrorists, or would ordinary American citizens also be at risk of becoming targets?

Trump says that he only wants to torture foreign terrorists in order to get information that would allegedly make America safer from attack. In this respect, Trump has wide support among Americans in both parties, with Republicans, perhaps not surprisingly, outnumbering Democrats.

This is according to a March 30 Reuters/Ipsos poll which reports 82 per cent of Republicans as saying that torture is "often" or "sometimes" justified in order to elicit information, compared with 53 per cent of Democrats who say the same thing.

See:

http://www.reuters.com/article/us-us...e=politicsNews

At the outset, for anyone concerned about adherence to the laws of the United States, or respect for the rule of law, the above poll results raise some basic questions.

Suppose, instead of being asked whether torture is "sometimes" or "often" justified, the poll respondents had been asked whether smuggling illegal immigrants into the United States, or assisting such immigrants in committing violent crimes or selling drugs, is justified in the same way.

One can be quite sure that the percentage of people answering "yes" would be zero, or very close to it. But under federal law, using torture against anyone, even outside the United States, is an extremely serious crime punishable by uo to 20 years in prison, or in some cases, even death. See 18 U.S.C. Sections 2340 and 18 U.S.C. Section 2340A

How often has the United States had a major party presidential candidate who openly boasts that he would commit an extremely serious federal crime if he were elected, and who might be supported in doing so by a majority of the American people?

Let us look at the actual text of this statute:
18 U.S.C. Section 2340 defines what torture is. I will skip this section, since , as mentioned above it is not necessary to argue about whether waterboarding comes within the definition, because Trump is promising to use something "tougher", without mentioning any limits on which practices he would employ.

18 U.S.C. 2340A provides as follows:

(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.

(b) Jurisdiction. - There is jurisdiction over the activity prohibited in subsection (a) if -

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender

(c) Conspiracy. -

A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death} as the penalties prescribed for the offence, the commission of which was the object of the conspiracy.


In view of the above plain and unambiguous language of the statute, and its harsh penalties, it is not surprising that U. S. military and intelligence officials have publicly stated that they would not obey an order by Trump to engage in torture in violation of law, if he were to issue such an order as president.

This raises the following question: Suppose that the above law were to be amended to make an exception for torture used into order to find out information about possible terrorist attacks on America, and suppose that such an exception could withstand a challenge on the grounds of the 8th Amendment's prohibition of cruel and unusual punishment and the 5th Amendment's guarantee of due process of law and against self-incrimination.

Would there be any protection against ordinary American citizens being tortured by their own govern ment, especially since the above statute does not ban torture inside the United States?

Donald Trump, for example, has (without the slightest evidence) accused American citizen Muslims in general of allegedly knowing about upcoming terror attacks and deliberately failing to report this. Would he try to justify torture against 3 million Muslim-Americans using the objective of getting information about alleged terrorist activities as an excuse?

And if he can do that to Muslim US citizens, what is there to stop him from torturing millions of non-Muslim Americans as well, on that or almost any other pretext he chooses?

The history of torture as used by autocrats in modern times, does not give very much support to those who argue that once this odious practice, which is strictly prohibited under international, not only domestic US law, is used, it can be limited to affect only a specific, narrowly and precisely defined class of victims, such as, for example known ISIS fighters or avowed members of other specifically enumerated terrorist organizations.

Tell that to Hitler, to Stalin, to Mao Zedong, to Pol Pot, or to lesser 20th century dictators such as Pinochet, Marcos, Suharto, Idi Amin, or many, many others, past and present, too numerous to mention. Most, if not all of these tyrants began by torturing foreigners first, then moving on to unpopular political, racial or religious minorities within their own countries, and finally picking ordinary citizens of their own countries as their victims.

And even if limitations on the classes of people selected as victims were possible or feasible, who would make the decision about which individuals merited being at the receiving end of the waterboarding buckets, electric shocks or whatever other methods of inflicting pain the ingenuity of whoever is doing the torturing could come up with?

The idea that torture could be controlled by objective standards is absurd, just as the idea that there can be any objective limits on which American citizens the Obama administration has already been targeting for assassination? See an article in The Guardian to be discussed in a forthcoming post) is also delusional.


Roger Algase
Attorney at Law




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Updated 07-07-2016 at 05:56 AM by ImmigrationLawBlogs

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Comments

  1. Unregistered222's Avatar
    But Roger, US citizens (including helpless children and teenagers) are already being routinely tortured and murdered by illegal aliens scum. See for example how illegal aliens committed a cold-blooded murder of two little girls (6 and 11 ) who were playing in a leaf pile ! Makes my blood boil

    Garcia-Cisneros, 18, was arraigned on two counts of felony hit and run. Echeverria, also 18, was arraigned on a single count of hindering prosecution. Police say the pair and Garcia-Cisneros? younger brother were in the vehicle that struck and killed Anna Dieter-Eckerdt, 6, and Abigail Robinson, 11.

    Probable cause affidavits released Wednesday say that police interviewed Garcia-Cisneros and Echeverria on Monday. Echeverria first denied knowing about the crash. He reportedly later admitted he was in the vehicle when his girlfriend intentionally ran over ?a large pile of leaves? on Main Street and he heard a ?bump,? according to the affidavit.

    Echeverria, records say, told police he took the vehicle to Kaady Kar Wash in Hillsboro on Monday ?to wash the car, eliminate the evidence, in order to protect? his girlfriend.

    http://www.oregonlive.com/forest-grove/index.ssf/2013/10/forest_grove_fatal_crash_drive.html
  2. ImmigrationLawBlogs's Avatar
    America has laws in place to punish heinous violent crimes by immigrants, such as the one described above. While this is beside the point, the statistics I have seen show lower crime rates among immigrants in general than among US citizens, but this dies not excuse even one such horrible crime, whether committed by an immigrant or a US citizen.

    But the subject of my post is whether it is legal for Americans to use torture outside the US, and whether this practice could lead to American citizens being tortured by our own government here at home. Repeating news stories about violent crimes committed by immigrants is not responsive to this question.

    Roger Algase
    Attorney at Law
  3. Unregistered222's Avatar
    Wow Roger. I'm speechless. [Defamatory content deleted. Roger Algase, Attorney at Law] yet you concoct some stories of Trump to plan US citizens torture, which never happened. You need to adjust your moral compass with all due respect.

    Anyways, FBI just grabbed another fake mozlem "refugee" who planned to blow up federal buildings in Arizona. Looks like quite a year for Trump

    PHOENIX — The FBI and the Arizona Attorney General's Office have arrested an 18-year-old man they say conspired to carry out acts of terrorism against government buildings in Maricopa and Pima counties

    Mahin Khan was arrested in Tucson after an investigation by the FBI's Joint Terrorism Task Force, according to the FBI. He was booked into Maricopa County jail on suspicion of conspiring to commit terrorism.

    http://www.msn.com/en-us/news/other/fbi-man-arrested-in-conspiracy-to-commit-terrorism-in-arizona/ar-AAhW2X0?li=BBnb7Kz&ocid=iehp
    Updated 07-03-2016 at 09:25 AM by ImmigrationLawBlogs
  4. Unregistered222's Avatar
    Morning, Roger, care to provide a proof of those "statistics" you allegedly "have seen"?

    Quote Originally Posted by ImmigrationLawBlogs
    America has laws in place to punish heinous violent crimes by immigrants, such as the one described above. While this is beside the point, the statistics I have seen show lower crime rates among immigrants in general than among US citizens, but this dies not excuse even one such horrible crime, whether committed by an immigrant or a US citizen.

    But the subject of my post is whether it is legal for Americans to use torture outside the US, and whether this practice could lead to American citizens being tortured by our own government here at home. Repeating news stories about violent crimes committed by immigrants is not responsive to this question.

    Roger Algase
    Attorney at Law
  5. ImmigrationLawBlogs's Avatar
    There are a number of studies showing lower crime rates among immigrants than native-born US citizens. A June 2010 one published by a respected right wing organization, the Cato Institute, is called Immigrants and Crime: Perception vs. Reality (Stuart Anderson).

    Anyone with access to a) Google, and b) an open mind, can easily find other such studies online.

    For a report showing that Iraqi and Syrian refugees in Germany have an exceptionally low violent crime rate, compared not only to Germans but even to refugees from other parts of Europe, see

    http://thelocal.de/20151113/police-r...s-than-germans

    Roger Algase
    Attorney at Law
    Updated 07-04-2016 at 05:07 AM by ImmigrationLawBlogs
  6. Lynn A. Bloxham's Avatar
    agree with your remarks and am highly disturbed by a number of Trump's remarks.This ISSUE OF TORTURE is the most frightening to contemplate.

    However, I must Nit pic: Cato is NOT "right wing" it is a libertarian Public Policy group. Granted this time the Libertarian Political Party has two former, two term, Republican Governors, but they are far, far from right wing. Cato, Independent Institute, Future of Freedom Foundation and Foundation for Economic Education are just four of the educational and research groups who are libertarian and certainly do not share Trump's opinions. I would urge those who see the immense problems with the current Immigration system to explore these four groups for well thought out policy work. I N
  7. ImmigrationLawBlogs's Avatar
    In response to Lynn A. Bloxham, I should have said that the Cato Institute is a Libertarian organization rather than a "right wing" one. My understanding is that this group believes in relatively open immigration policies. However, my point was that is not a left-wing, pro-immigrant advocacy group.

    Roger Algase
    Attorney at Law
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