Is the United States Bound by the Customary International Law of Torture? A Proposal for ATS Litigation in the War on Terror

"Regardless of its substance, however, customary international law cannot bind the executive branch under the Constitution because it is not federal law."1 The terrorist attacks of September 11, 2001 were a seminal moment for the United States. This horrific act of murder and destruction inspired the United States to declare "war on terror,"2 a war unlike any other in American history. For the first time, the United States is at war with international non-state actors-terrorist groups-not supported by specific nation-states; all previous wars have been against international sovereigns. Moreover, the War on Terror is not limited to a discrete set of enemies but extends to the concept of "terror"-the use of force and fear against civilians to achieve political ends. Though this war is unique, some consequences of its prosecution are similar to previous wars. Like the atrocities of Vietnam, US actors have allegedly committed acts of abuse. Numerous organizations have accused US agents of abusing and torturing unlawful combatants detained at the US Naval Station at Guantanamo Bay, Cuba ("Guantanamo" or "GTMO") and military bases in Iraq and Afghanistan. Unlike in other wars, the President has determined that the entire set of the Geneva Conventions' and customary international law's humanitarian guarantees does not apply to all enemy combatants. Specifically, the unlawful combatants of al Qaeda and the Taliban are denied the entire suite of international humanitarian law's protections.3 Can the Administration legally do this? The legal arguments for excluding the Geneva Conventions' protections are sound; for example, "al Qaeda is not a High Contracting Party to Geneva."4 The United States can conceivably avoid such treaty obligations, but most of customary international law's humanitarian protections are jus cogens, that is, states cannot lawfully derogate from them. The United States allegedly tortured War on Terror detainees. Does this violate the customary international law of torture or did President Bush's determination exempt the United States from its obligations? Is there enough evidence to reasonably suggest that the United States engaged in torture? As a policy matter, should the international norm against torture bind the United States? A few words are needed at the outset. Many scholars have discussed the binding authority of customary international law, but there has yet to be a thorough exegesis of the anti-torture norm in the specific context of War on Terror detainees. The Administration has asserted that the United States is not domestically bound by customary international law.5 This Comment tests that proposition against the customary international law of torture. Because I attempt to address the Administration's claim on its own terms-that al Qaeda and the Taliban are excluded from some customary humanitarian rights-I will only address the alleged torture of al Qaeda and Taliban detainees. Though the atrocities at Abu Ghraib are perhaps the most infamous example of US abuse,6 those Iraqi detainees were arguably covered by the Geneva Conventions. At the very least, President Bush did not determine that the Iraqi detainees, like al Qaeda and the Taliban, were excluded from international humanitarian law.7 This inquiry proceeds in three parts. First, I determine whether the United States tortured War on Terror detainees. I then consider whether a binding international norm against torture exists and if the United States violated it. Finally, I examine this issue from a policy standpoint, asking whether it is good policy to have the customary international law of torture bind the United States. I. ACTS OF TORTURE The first issue to consider is whether the United States actually tortured detainees. There is considerable evidence to suggest that US agents engaged in morally questionable, abusive behavior. This evidence comes from three sources: the detainees themselves, the International Committee of the Red Cross ("ICRC" or "Red Cross"), and "pro-US" sources such as US agents. …