Torture, Extra-Territoriality, Terrorism and International Law

38 Pages Posted: 20 Jun 2004

See all articles by James Thuo Gathii

James Thuo Gathii

Loyola University Chicago School of Law


This paper was written prior to the revelation of torture at the AbuGraib Prison in Iraq and of internal U.S. government memos laying down a legal basis to avoid international and domestic prohibition of torture of terrorism suspects. The paper critically appraises the arguments favoring the loosening international and constitutional prohibitions against torture in the "war" against terrorism. It does so by examining three justifications that federal courts have invoked to justify abstaining from reviewing the conditions of confinement of prisoners held on suspicion of involvement in trans-continental terrorism, even where such conditions include allegations of torture. The first of these justifications is that international and constitutional constraints, including those against torture and those requiring due process, do not apply to prisoners that are held outside the territory of the United States. The second justification is that the prisoners were captured in the U.S war against terrorism and the President has designated them "enemy combatants." Further, in light of the extra-"ordinary circumstances" arising as a result of the attacks on the United States on September 11, 2001, the enhanced authority of the President's War Powers is not subject to judicial review. The third justification is that where the prisoners are aliens, they are not entitled to constitutional and international protections otherwise available to citizens and friendly aliens.

Thus one of the primary questions examined is whether extra-territorial torture of foreign citizens in the context of the war on terrorism ought to be subject to judicial review in the United States under the rules of customary international law. In other words, does the extra-territorial location of an alleged violation of rules of customary international law against a foreign citizen preclude judicial review?

I argue that there are no justifiable grounds for denying jurisdiction to a person alleging torture under rules of universal jurisdiction, even if such a person is a foreigner captured in the course of war and is held outside the territory of the United States. To argue otherwise is problematic for at least two reasons. First, by denying jurisdiction, federal courts effectively acquiesce to allegations of torture during interrogations as well as to cruel, inhuman and degrading imprisonment conditions. Second, denials of jurisdiction that definitively bar judicial scrutiny of the merits of executive decisions in times of war are contrary to the obligations of the United States under international law. Jurisdictional denials also legitimize an international and constitutional doctrine under which there are no limitations of executive power to hold suspects indefinitely, incommunicado and without due process even if they are tortured.

To demonstrate the sheer limitlessness of this doctrine of unconstrained executive power that, in turn, justifies loosening the prohibitions against extra-territorial torture, I examine how best to frame the allegations of torture in a manner that is cognizable for purposes of obtaining federal judicial power with regard to the conditions of confinement of the Guantanamo Bay detainees. I then examine the prohibition against torture under both international and U.S. law and the "extra-ordinary circumstances" doctrine. This doctrine has guided federal judicial responses to petitions challenging the conditions of confinement including allegations of torture of the Guantanamo Bay detainees by the confining authorities. In addition, I compare and contrast the assumption of jurisdiction with respect to extra-territorial commercial conduct with the problems associated with accepting extra-territorial jurisdiction over questions regarding the conditions of confinement of the detainees. By doing so, I show that federal courts are far more willing to assume jurisdiction over remote, extra-territorial commercial conduct, than they are to confer jurisdiction and enforce fundamental human and civil rights norms in the context of confinement conditions of non-U.S. nationals held extra-territorially. While it may seem that extra-territorial commercial conduct achieves opposite results from efforts to enforce fundamental rights and freedoms extra-territorially, I show that these outcomes converge in their consistency with the United States' national interest. Further, I also show that there is a close symmetry between cases where jurisdiction has been denied to the detainees by federal courts in the United States, on the one hand, with case-law from the British colonial experience, on the other. The underlying similarity between the colonial and Guantanamo Bay cases is their invocation of extra-territoriality and foreign citizenship as rationales for precluding judicial intervention. I also refer to a recent European Court of Human Rights case and to the "colonial clause" of the European Covenant on Human Rights with a view to demonstrating that powerful countries have seldom been held accountable for the exercise of powers that are incompatible with basic principles of international law by their own courts. Moreover, such lack of accountability has, under some circumstances, been precluded under treaty law.

Ultimately, it is clear that the manner in which arguments about jurisdiction have been marshaled to justify a particular vision of why enemy aliens and enemy combatants cannot be heard in a federal court reinforces distinctions between those that U.S. law accords rights and those to whom it does not on the basis of differences of race, religion and national origin. After all, it can safely be surmised that the overwhelming majority, if not all, the Guantanamo Bay prisoners are Muslims of Arabic or Persian descent. Further, jurisdictional denials legitimize a very expansive doctrine of Executive powers that justifies or acquiesces to torture of the Guantanamo Bay prisoners, which is inconsistent with the obligations of the United States under international law.

Suggested Citation

Gathii, James Thuo, Torture, Extra-Territoriality, Terrorism and International Law. Albany Law Review, Vol. 67. Available at SSRN:

James Thuo Gathii (Contact Author)

Loyola University Chicago School of Law ( email )

25 East Pearson
Chicago, IL 60611
United States

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