Prosecuting Torture: Is Time Really Running Out?

"My ship Liberty sailed away on a bloody red horizon
The groundskeeper opened the gates and let the wild dogs run."
- Bruce Springsteen, "Livin' in the Future"

When the highest officials of our nation flung open the gates of law and morality and let the wild dogs of torture run, they set in motion a constellation of potentially-indictable federal crimes. While I do not think a grand jury investigation into those violations should be publicly initiated right now, (for strategic reasons discussed here), I do agree entirely with Senator Sheldon Whitehouse that the Attorney General must not rule out prosecutions for these violations. In the May 4, 2009, National Law Journal, the Democrat from Rhode Island writes: "The factual record ... has not been fully developed and reviewed - and no good prosecutor would make a final determination until all the facts are in." As usual, the former US Attorney has it exactly right. No responsible prosecutor would do that and, indeed, as long as the record is unfolding, the Attorney General wouldn't be able to render any meaningful final "verdict" of no prosecution even if he wanted to. (And, certainly, no potential defendant could hold him to it.) So - regardless of what the prognosis for prosecution appears to be on any given day - it is critical to keep those revelations coming, as well as to support proposals for a non-partisan commission that will publicly air all the facts, and, most important, not give up on eventual indictments.

So Many Crimes, but How Much Time?

Won't it be too late if we wait much longer? Absolutely not. There's a lot of misinformation out there on this topic, mainly as a result of gross oversimplification of the law. However, notwithstanding anything you may have heard - about charges disappearing in 2010 and all hope being lost after 2011 - time is not running out to prosecute Bush administration officials either for torture itself or for the many crimes they committed to keep their program alive throughout their tenure.

To understand how statutes of limitation would apply to any indictment arising out of the Bush White House's torture operation, you need to know how a case is evaluated for prosecution. It's a whole-concept approach. The prosecutor considers all relevant information in light of the elements of possibly-applicable crimes, and then decides whether probable cause exists to believe a certain violation has occurred, by whom, and whether it can be proved through admissible evidence. Oftentimes, even a fairly simple set of facts can give rise to several different crimes.

Obviously, if the rampage of prisoner abuse that the Bush White House triggered in the fall of 2001 - along with the ongoing concealment of the program - were a "case," it would not involve a simple set of facts. On the contrary, it encompasses a huge universe of evidence - eight years' worth - and scores of possible defendants. There is a raft of possible federal crimes and each would have to be analyzed separately, first to make a charging decision and then to determine the statutory indictment deadline.

It's an exacting analysis I couldn't even attempt to undertake in a short piece based solely on public information. But, take heart: The facts we do know provide ample probable cause to believe that, sometime after September 11, 2001, the Bush administration began a massive criminal conspiracy to, among other things: (1) commit torture in violation of 18 U.S. C. Section 2340A; and (2) defraud the United States in violation of 18 U.S.C. Section 371. Now, I do not know if these former White House officials are finally listening to attorneys who give them legal advice they don't want to hear. But if they are, they well know by now that their defense can never rest.

There are many other charging possibilities - i.e. conspiracy to commit war crimes in violation of 18 U.S.C. Section 2441 - but, to give you an idea of how the legal analysis works, here's a short course in statutory time limits for the two crimes listed above:

Section 371: Conspiracy to Defraud the US With Regard to Torture

There is much I could say about the crime of conspiracy to defraud the United States in violation of 18 U.S. C. 371. (I've already said quite a bit, relative to the Bush administration's pre-war intelligence fraud, at TomDispatch.) But this piece is about indictment deadlines, so I'll keep the preliminaries brief: The pattern of numerous misrepresentations to Congress by Bush White House officials and their surrogates, along with the secret legal memos and Executive Orders that surreptitiously attempted to vitiate existing law, the destruction of evidence, and the suppression of information that might reveal the illegality of the torture operation, constitute overwhelming proof of a conspiracy to defraud the US with regard to the torture program. And when would the clock start ticking? Not until the last "overt act" (or knowing material omission) by any conspiracy member in furtherance of the illegal agreement. In this situation, that would be no earlier than January 20, 2009, because - among other reasons - as the recently-declassified Senate Intelligence Committee narrative makes clear, the Bush administration continued to conceal the ongoing existence of Office of Legal Counsel "authority" for the use of waterboarding and other forms of torture until the bitter end.

What does all this mean? It means that the deadline for indicting a charge of conspiracy to defraud the US against the former president and vice-president, and "others known and unknown" is years away. The statute of limitations period for a section 371 violation is five years, so as late as January 20, 2014, these officials and their associates could be charged with forming a criminal agreement that began "on or before October 2001." At trial, the prosecution could introduce proof of any conspirators' actions that furthered the goals of the conspiracy, from the fall of 2001 through January 20, 2009. So no allegations relating to this crime would be "lost." Indeed, if there were a conviction, the judge could consider evidence from the entire time span as offense conduct that determines the sentence. (Each of the false statements to Congress along the way - including those made by former Attorney General Michael Mukasey and former Director of National Intelligence Michael Hayden in 2008 - would be also be potential charges that could be brought up to five years after the fact.)

Section 2340A: Torture

Forget for a moment, if you would, everything you think you know about statutory deadlines for indicting torture and bear with me while I start from scratch. (If you don't think you know anything, no problem.)

The torture statute, 18 U.S. C. 2340A, proscribes two types of offenses: (1) committing torture, which, in criminal law, is called a "substantive crime;" and (2) conspiring, or agreeing, to commit torture which is - not surprisingly - called a "conspiracy." We need to address the conspiracy charge first.

When two or more people are charged with common illegal activity, the indictment usually includes a conspiracy. But - just to make things more confusing - there are two types of federal conspiracies. And the statute of limitations analysis is different for each one. The section 371 conspiracy, for example, requires both an agreement to commit a crime and at least one act done "to effect the object of the conspiracy." As I explained above, the indictment deadline for this type of conspiracy is calculated from the date of the last overt act.

In contrast, the torture conspiracy provision - section 2340A (c) - does not require any overt act at all. (The prosecutor can charge them, but they're not an element of the crime.) Instead, the statute simply makes it illegal for a person to conspire to commit torture. To prove the crime, the prosecutor must show that: (1) two or more persons agreed to commit or cause the commission of acts of torture, under color of law, upon persons who were in the conspirators' custody and control; and (2) the defendant knowingly joined the illegal agreement at any time. But here's the most important point: This type of conspiracy continues, as a legal matter, as long as its members are still trying to accomplish its objectives - regardless of when they committed their last overt act.

So, to determine when the statute of limitations would begin to run on a conspiracy to torture charge against White House officials and others, ask yourself this question: When did Bush, Cheney et. al. stop trying to maintain their "harsh interrogation program?" The answer is that they didn't - not, at least, while they remained in office. Legally, then, the crime continued at least until January 20, 2009, so the statutory clock doesn't begin to run until that date. And, at any time after January 2009, until the limitations period expires - if it ever does - a prosecutor could charge a conspiracy to torture that began in 2001 and lasted until the end of the Bush administration. All foreseeable acts by any conspirator who was advancing the goals of the conspiracy could be alleged, introduced at trial and considered for sentencing purposes. (For an example of just such an indictment, see U.S. v. Roy M. Belfast, Jr. a/k/a Chuckie Taylor, filed in the Southern District of Florida against the son of former Liberian dictator Charles Taylor.)

Ok. We know when the time period began to run, but how many years do we have before it runs out? The answer may surprise you.

Because the federal criminal code is apparently organized so as to be as difficult to fathom as possible, you can't just look at 18 U.S. C. 2340A and find the statute of limitations period that applies to it. Instead, you have to read 18 U.S. C. 3286, which - in what may prove to be one of the all-time greatest instances of getting hoisted by one's own petard - was amended as part of the 2001 Patriot Act. Section 3286 has two subsections. This, in its entirety, is the first:

Section 3286. Extension of Statute of Limitation for Certain Terrorism Offenses

(a) Eight-Year Limitation. - Notwithstanding section 3282, no person shall be prosecuted, tried, or punished for any noncapital offense involving a violation of any provision listed in section 2332(b)(g)(5)(B), or a violation of section 112, 351(e), 1361, or 1751(e) of this title or section 46504, 46505, or 46506 of title 49, unless the indictment is found or the information is instituted within 8 years after the offense was committed. Notwithstanding the preceding sentence, offenses listed in section 3295 are subject to the statute of limitations set forth in that section.

Translating this jumble into plain English, what section 3286(a) says - in relation to the anti-torture statute - is that formal charges must be brought within eight years of the crime. The way to determine that for yourself would be to read 18 U.S.C. Section 2332b(g)(5)(B), which is the list of terrorism offenses that's referenced in Section 3286(a). The prohibition against torture - 18 U.S. C. 2340A - is one of them.

Consequently, if section 3286(a) were the end of the matter, the deadline for indicting Bush administration officials on conspiracy to torture charges would still be years away - January of 2017. But it's helpful to read a statute in full before reaching conclusions about its effect. So, here, with my emphasis added, is precisely what the rest of section 3286 says:

Section 3286

(b) No Limitation. - Notwithstanding any other law, an indictment may be found or an information instituted at any time without limitation for any offense listed in section 2332(b)(g)(5)(B), if the commission of such offense resulted in, or created a forseeable (sic) risk of, death or serious bodily injury to another person. (emphasis added)

The oft-repeated common wisdom that there is no time limit for indictments charging torture only if "death results" is, in other words, dead wrong. (How did this misleading description of the law take hold? It's possible that its author was former Office of Legal Counsel attorney John Yoo himself. In footnote 41 of his March 2003 memo to Defense Department General Counsel William Haynes, he wrote: "Whether death results from the act [of torture] also affects the applicable statute of limitations. Where death does not result, the statute of limitations is eight years; if death results, there is no statute of limitations." This is a textbook example of why it's risky to paraphrase statutes in an official legal document.)

But regardless of the source of this inaccurate shorthand, we now know what the statute actually says, and can readily appreciate its import. Section 2340A prohibits both the substantive act of torture and conspiracy to commit torture. We also know that it is one of the terrorism offenses listed in section 2332(b)(g)(5)(B). Therefore, we know that - pursuant to section 3286(b) - there is no statute of limitations whatsoever on charges against anyone who: (1) committed torture; (2) aided and abetted the commission of torture; or (3) conspired to commit torture if any of those crimes either: (a) actually resulted in death; or (b) created a foreseeable risk of death; or (c) created a foreseeable risk of serious bodily injury to another person. In other words - as a result of amendments enacted in 2001 at the behest of Bush administration officials themselves - the available period for their indictment for torture could well be the rest of their lives.

For now, I'll leave it to others to apply the multitude of publicly-available facts to these legal requirements. But the test of foreseeability is a well-established one founded in common sense. In the case of charges against White House officials it would be: Would a reasonable person who had the information available to the senior officials be able to anticipate that death or serious bodily injury to another might result when they issued orders that loosed the wild dogs of torture - both literally and figuratively - against prisoners in US custody around the world? The answer is obvious, particularly as victims of torture were receiving emergency medical treatment to keep them alive for yet another round, and one death after another actually began to ensue.

The Bottom Line

Am I emphasizing that there is time to indict in order to suggest that anyone should lay low, or hold back in seeking justice? No. Quite the opposite. I'm trying to emphasize that people should not throw in the towel prematurely. Keep up the pressure, absolutely, but brace yourselves for the long haul.

Most important, in the near-term, think twice about fueling the inaccurate impression that it's game-over in eighteen months in order to create a sense of urgency, when it is the gravity of these crimes that should be paramount. And gravity and urgency are not the same thing. Many powerful people from across the political spectrum would be utterly delighted if the millions of Americans now pushing for accountability gave up in despair in a year or two because they mistakenly believed that prosecutions were no longer possible. But it is self-defeating in the extreme for those who want Bush, Cheney et. al. held responsible for their actions to foster this misconception. A widespread false belief that prosecutions are a limited-time offer provides a ready excuse for ultimate inaction to any and all who wish to "move on" as if eight years of torture were merely an unpleasant incident on the sidewalk. At the same time, people who don't know options still remain will be helpless to argue otherwise. In the world of criminal prosecutions, this is not a short story; it's a sprawling Icelandic saga. And - as any attorney who has prosecuted complex federal cases could tell you - it will be many years, if ever, before legal time limits will bar the hearing of this horrific epic in a US criminal court.

Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and chief of the San Jose Branch of the US attorney's office for the Northern District of California. Her pieces have appeared in a variety of print and online publications including Truthout, TomDispatch.com, The Nation, The Los Angeles Times, Salon, Mother Jones and The Christian Science Monitor. The author of "United States v. George W. Bush et al," she may be contacted at ElizabethdelaVega@Verizon.net or through Speakers Clearinghouse.

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