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):
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