A federal judge this month again declined to dismiss multiple criminal charges on constitutional grounds in the unique prosecution of a West African man living in Colorado, whose alleged acts of torture in his home country could violate U.S. law.

Michael Sang Correa faces seven torture-related counts for his involvement in the investigation of an unsuccessful 2006 coup attempt against then-President Yahya Jammeh in The Gambia. Correa was allegedly part of an armed unit under Jammeh’s control that tortured multiple coup suspects.

In February, U.S. District Court Senior Judge Christine M. Arguello rejected Correa’s attempt to dismiss the 2020 indictment after finding Correa was on notice he could be prosecuted in Colorado for alleged crimes that took place outside of the United States under the Torture Act of 1994.

On Sept. 10, Arguello once again refused to throw out the case — responding to Correa’s new argument that his constitutional right to present a defense would be compromised if he could not bring in two key witnesses from The Gambia to testify.

Correa’s public defender told Arguello that Correa intends to defend himself by arguing he was coerced into committing the alleged offenses under threat of death or serious bodily injury. In support of that theory, the defense identified Momodou Hydara, a high-ranking intelligence official during the 2006 coup attempt, and Alieu Jeng, an alleged member of the “Junglers” paramilitary unit, as witnesses.

Seeking to secure their testimony in Colorado, Correa’s attorney asked if the government would grant the two men immunity from prosecution during their time in the U.S. In response, the U.S. Attorney’s Office said it would not agree to immunity for the witnesses.

“In this instance, the government’s failure to grant both Mr. Hydara and Mr. Jeng immunity — a power it holds alone — has thwarted Mr. Correa’s attempt to bring them to the United States to testify on his behalf,” wrote public defender Jared Scott Westbroek. “As a result, the government’s failure to act has violated Mr. Correa’s constitutional right to present a complete defense at trial.”

Arguello acknowledged in her order there was no explicit rubric for determining when the government’s refusal to immunize a witness results in a violation of the defendant’s constitutional rights. However, she concluded there was no evidence the prosecution was embarking on a “deliberate attempt to distort” Correa’s case by denying immunity.

“Given the evidence the Government possesses,” she wrote, “the Court does not doubt the Government’s assertion that these two men could potentially be the target of criminal prosecution should they ever come within the jurisdiction of United States’ courts.”

According to the federal indictment, Correa, who lived in Denver prior to his arrest, participated in the torture of six victims who were suspects in the unsuccessful coup against Jammeh’s government. Allegedly, the torture included beatings, dripping molten plastic onto extremities, extinguishing cigarettes on victims’ bodies, electrocution and stabbing.

TRIAL International, a nongovernmental organization based in Geneva, previously reported that Correa’s prosecution is one of a small number of similar cases since Congress enacted the Torture Act. Under the law, a person in the United States can be imprisoned for up to 20 years for acts of torture that take place outside the country. 

A 2021 report from a Gambian truth and reconciliation commission recommended Jammeh be prosecuted for unlawful killings, rapes and tortures. The report noted The Gambia “naturally has primary jurisdiction,” but other countries whose citizens were killed would also have the right to prosecute.

Human Rights Watch has advocated for the use of legal mechanisms like the Torture Act to pursue perpetrators of war crimes or crimes against humanity.

“Beyond affording some measure of redress to victims and their families, the Correa trial, as an all-too-rare example of the use of US laws allowing for the prosecution of human rights abuses abroad, can provide an important window into other opportunities and challenges to ensure that even existing laws can be applied as effectively as possible,” wrote the New York-based organization.

Two days after Arguello’s order, she granted Correa’s request to postpone his criminal trial, which was originally scheduled for this week. She agreed the two witnesses were unavailable to come to the United States and that the defense would need time to travel to The Gambia to take their depositions. The trial is now set for April 2025.

The case is United States v. Correa.