Friday, May 29, 2009

 

"Under the Color of the Law"

US Code 18-2340 says,

"(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;"

The phrase "under the color of law" is unclear. Maybe 18-242 case law has cleared it up. But if it means "under the pretense of acting on behalf of the government, but actually breaking government rules", then using thumbscrews in interrogation is not torture. On the other hand, if it means, "while actually fulfilling one's official duties as ordered," then the SERE training is torture and illegal if done outside the US.

US Code 18-242 is the most important use of the phrase,but it is quite unhelpful:

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

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