Charles Taylor's son Chucky was convicted of torture Friday, in the first prosecution under the United States’ Extraterritorial Torture Statute.
Taylor is accused of leading a special unit in his father's Liberian army, known as the Demon Force, from 1999 to 2002; according to the Times of London, the force allegedly used tactics like “dripping molten plastic on their victims, stabbing them with bayonets, using electric shocks and hot irons and even shovelling biting ants onto their bodies.”
Julian Ku at Opinio Juris and Anthony Arend at the Georgetown Law faculty blog have cogent posts briefly noting that there may be a Consitutional issue in the statute, which appears to assert American penal jurisdiction over every act of torture committed anywhere outside the United States. Arend notes that other American statutes criminalizing the most serious crimes – genocide, participation in the slave trade, etc. – have required a nexus to U.S. interests for domestic penal jurisdiction to arise.
Article I Section 10 of the Constitution permits Congress to “define and punish” piracy “and offences against the law of nations,” though Professor Arend notes that there's little caselaw elucidating which offenses against the law of nations fit within that grant of authority.
In the civil context, the Alien Tort Claims Act implemented such jurisdiction, and federal caselaw there has recognized liability for torture since Filartiga v. Pena-Irala. The Supreme Court has spoken to the scope of the ATCA only once, in 2004's Sosa v. Alvarez-Machain. There, the Court ruled “some, but few” violations of the law of nations are subject to universal civil jurisdiction.
In Taylor's case, of course, universal jurisdiction isn't necessary; the United States has jurisdiction over Taylor because he's an American citizen. It's that jurisdiction the US relied on in passing the PROTECT Act, for instance, which permits the prosecution of Americans who travel abroad to engage in sex tourism.
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