Since September 11th, 2001, there has been a growing debate over the desirability of loosening international and constitutional prohibitions against torture in the "war" against terrorism. (1) This paper critically appraises three justifications that federal courts have invoked to justify abstaining from reviewing the conditions of confinement of prisoners held on suspicion of involvement in transcontinental terrorism, including 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. (2) 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 11th, 2001, the enhanced authority of the President's War Powers is not subject to judicial review. (3) 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. (4)
These grounds for abstaining from judicial review are now on appeal before the Supreme Court. (5) This article explores whether extraterritorial 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 extraterritorial 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. (6) Jurisdictional denials also legitimize an international and constitutional doctrine under which there are no limitations on executive power to hold suspects indefinitely, incommunicado, and without due process even if they are tortured. (7)
To demonstrate the sheer limitlessness of this doctrine of unconstrained executive power that, in turn, justifies loosening the prohibitions against extraterritorial torture, I proceed as follows: I begin by examining 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 "extraordinary 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. (8) In the main part of the paper, I compare and contrast the assumption of jurisdiction with respect to extraterritorial commercial conduct with the problems associated with accepting extraterritorial 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, extraterritorial commercial conduct (9) than they are to confer jurisdiction and enforce fundamental human and civil rights norms in the context of confinement conditions of non-U. …