U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques
Released: 2010-01-19T00:00:00

Overview of the Convention Against Torture

Over the past several decades, multiple international agreements and declarations have condemned and/or sought to prohibit the practice of torture by public officials, leading many to conclude that torture is now prohibited under customary international law. Perhaps the most notable international agreement prohibiting torture is the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention or CAT), signed by the United States and more than 140 other countries.

Definition of "Torture" Under CAT

Whereas a number of prior international agreements and declarations condemned and/or prohibited torture, CAT appears to be the first international agreement to actually attempt to define the term. CAT Article 1 specifies that, for purposes of the Convention, "torture" is understood to mean

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Importantly, this definition specifies that both physical and mental suffering can constitute torture, and that for such suffering to constitute torture, it must be purposefully inflicted. Further, acts of torture covered under the Convention must be committed by someone acting under the color of law. Thus, for example, if a private individual causes intense suffering to another, absent the instigation, consent, or acquiescence of a public official, such action does not constitute "torture" for purposes of CAT.

The Convention's definition of "torture" does not include all acts of mistreatment causing mental or physical suffering, but only those of a severe nature. According to the State Department's section-by-section analysis of CAT included in President Reagan's transmittal of the Convention to the Senate for its advice and consent, the Convention's definition of torture was intended to be interpreted in a "relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned." For example, the State Department suggested that rough treatment falling into the category of police brutality, "while deplorable, does not amount to 'torture'" for purposes of the Convention, which is "usually reserved for extreme, deliberate, and unusually cruel practices ... [such as] sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain." This understanding of torture as a severe form of mistreatment is further made clear by CAT Article 16, which obligates Convention parties to "prevent in any territory under [their] jurisdiction other acts of cruel, inhuman, or degrading treatment or punishment which do not amount to acts of torture," thereby indicating that not all forms of inhumane treatment constitute torture.

In general, Convention parties are obligated to take "effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under [their] jurisdiction." They are also forbidden from expelling, returning, or extraditing a person to another State where there are "substantial grounds" for believing that he would be in danger of being subjected to torture.

CAT Requirements Concerning the Criminalization of Torture

A central objective of CAT is to criminalize all instances of torture. CAT Article 4 requires States to ensure that all acts of torture are criminal offenses, subject to appropriate penalties given their "grave nature." State parties are also required to apply similar criminal penalties to attempts to commit and complicity or participation in torture. Accordingly, it appears that even though CAT requires States to take "effective measures" to prevent torture only within their territorial jurisdiction, this does not mean that States are therefore permitted to engage in torture in territories not under their jurisdiction. Although a State might not be required to take proactive measures to prevent acts of torture beyond its territorial jurisdiction, it nevertheless has an obligation to criminalize such extraterritorial acts and impose appropriate penalties.

CAT Article 5 establishes minimum jurisdictional measures that each State party must take with respect to offenses described in CAT Article 4. Pursuant to CAT Article 5, a State party must establish jurisdiction over CAT Article 4 offenses when

The offenses are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; The alleged offender is a national of that State; The victim was a national of that State if that State considers it appropriate; or The alleged offender is present in any territory under its jurisdiction and the State does not extradite him in accordance with CAT Article 8, which makes torture an extraditable offense.

CAT's prohibition of torture is absolute: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture." According to the State Department, this blanket prohibition was viewed by the drafters of CAT as "necessary if the Convention is to have significant effect, as public emergencies are commonly invoked as a source of extraordinary powers or as a justification for limiting fundamental rights and freedoms."

CAT Requirements Concerning the Availability of Civil Redress for Victims of Torture

CAT Article 14 provides that signatory States must ensure that their legal systems provide victims of torture (or their dependents, in cases where the victim has died as a result of torture) with the ability to obtain civil redress in the form of "fair and adequate compensation including the means for as full rehabilitation as possible." According to the State Department, Article 14 was adopted with an express reference to this treaty obligation extending only to "the victim of an act of torture committed in any territory under [a signatory State's] jurisdiction ," but this limiting clause was "deleted by mistake."

CAT Requirements Prohibiting Cruel, Inhuman, or Degrading Treatment or Punishment

CAT Article 16 requires signatory States to take preventative measures to prevent "cruel, inhuman, or degrading treatment or punishment" within any territory under their jurisdiction when such acts are committed under the color of law. CAT does not define these terms, and the State Department suggested that the requirements of Article 16 concerning "degrading" treatment or punishment potentially include treatment "that would probably not be prohibited by the U.S. Constitution." Unlike in the case of torture, however, CAT does not expressly require States to criminalize acts of cruel, inhuman, or degrading treatment or punishment that occur within or outside their territorial jurisdiction.

CAT Enforcement and Monitoring Measures

CAT also established a Committee Against Torture (CAT Committee), composed of ten experts of recognized competence in the field of human rights who are elected to biannual terms by State parties. Each party is required to submit, within a year of the Convention entering into force for it, a report to the committee detailing the measures it has taken to give effect to the provisions of CAT, as well as supplementary reports every four years on any new measures taken, in addition to any other reports the committee may request. The committee monitors State compliance with Convention obligations, investigates allegations of systematic CAT violations by State parties and makes recommendations for improving compliance, and submits annual reports to CAT parties and the U.N. General Assembly.

CAT Article 30 provides that disputes between two or more signatory parties concerning the interpretation and application of the Convention can be submitted to arbitration upon request. If, within six months of the date of request for arbitration, the parties are unable to agree upon the organization of the arbitration, any of the parties may refer the dispute to the International Court of Justice. Article 30 contains an "opt-out" provision, however, that enables States (including the United States) to make a reservation at the time of CAT ratification declaring that they do not consider themselves to be bound by Article 30.

Implementation of the Convention Against Torture in the United States

The United States signed CAT on April 18, 1988, and ratified the Convention on October 21, 1994, subject to certain declarations, reservations, and understandings. Perhaps most significantly, the United States included a declaration in its instruments of ratification that CAT Articles 1 through 16 were not self-executing. The following sections discuss relevant declarations, reservations, and understandings made by the United States to CAT, and U.S. laws implementing CAT Article 4 requirements to criminalize torture.

Relevant Declarations, Reservations, and Understandings Conditioning U.S. Ratification of the Convention Against Torture

As previously mentioned, the Senate's advice and consent to CAT ratification was subject to the declaration that the Convention was not self-executing, meaning that implementing legislation was required to fulfill U.S. international obligations under CAT, and such implementing legislation was necessary for CAT to be given effect domestically. In providing its advice and consent to CAT, the Senate also provided a detailed list of understandings concerning the scope of the Convention's definition of torture. With respect to mental torture, a practice not specifically defined by CAT, the United States understands such actions to refer to prolonged mental harm caused or resulting from (1) the intentional infliction or threatened infliction of severe physical pain and suffering; (2) the administration of mind-altering substances or procedures to disrupt the victim's senses; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

The Convention's definition of torture includes not only acts committed by public officials, but also those acts to which they acquiesced. As expressed in a U.S. understanding on this point, for a public official to acquiesce to an act of torture, that official must, "prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity." U.S. implementing regulations barring the removal of aliens to countries where they would more likely than not face torture reflect this understanding. Subsequent jurisprudence and administrative decisions concerning the removal of aliens to countries where they may face torture have recognized that "willful blindness" by officials to torture may constitute "acquiescence," but acquiescence does not occur when a government or public official is aware of third-party torture but unable to stop it. In addition, mere noncompliance with applicable legal procedural standards does not per se constitute torture.

With regard to Article 14 of the Convention, obligating States to make civil redress available to victims of torture, the Senate's advice and consent was based on the understanding that a State was only obligated to provide a private right of action for acts of torture committed in territory under the State's jurisdiction.

With respect to Article 16 of the Convention, the Senate's advice and consent was based on the reservation that the United States considered itself bound to Article 16 to the extent that such cruel, unusual, and inhuman treatment or punishment was prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the U.S. Constitution. These Amendments apply in different contexts. The Eighth Amendment bars the use of "cruel and unusual punishment" as a form of criminal penalty. The constitutional restraint of persons in other areas, such as pre-trial interrogation, is found in the Due Process Clauses of the Fifth Amendment (concerning obligations owed by the U.S. Federal Government) and Fourteenth Amendment (concerning duties owed by U.S. state governments). These due process rights protect persons from executive abuses that "shock the conscience." The Fourteenth Amendment's Due Process Clause has also been interpreted to incorporate the Eighth Amendment's prohibition on "cruel and unusual punishment" at the state level.

The United States has also opted out of the dispute-settlement provisions of CAT Article 30, but it has reserved the right to specifically agree to follow its provisions or any other arbitration procedure to resolve particular disputes concerning CAT application.

Criminalization of Torture Occurring Outside the United States

To implement CAT Articles 4 and 5, Congress did not enact a new provision to criminalize acts of torture committed within the jurisdiction of the United States: It was presumed that such acts would "be covered by existing applicable federal and state statutes," such as those criminalizing assault, manslaughter, and murder. However, the United States did add chapter 113C to the United States Criminal Code (Federal Torture Statute, 18 U.S.C. §§ 2340-2340B), which criminalizes acts of torture that occur outside of the United States. "Torture" is defined as "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." 18 U.S.C. § 2340 further defines "severe mental pain and suffering" as prolonged mental harm caused by

the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

Pursuant to § 2340A, any person who commits or attempts to commit an act of torture outside the United States is generally subject to a fine and/or imprisonment for up to 20 years. In cases where death results from the prohibited conduct, the offender may be subject to life imprisonment or the death penalty. A person who conspires to commit an act of torture committed or attempted outside the United States is generally subject to the same penalties faced by someone who commits or attempts to commit acts of torture outside the United States, except that he cannot receive the death penalty for such an offense. Because § 2340A also criminalizes conspiracies to commit torture outside the United States, it arguably could also apply in situations where a U.S. national conspired to transfer an individual "outside the United States" so that the individual may be tortured.

Until 2004, for purposes of the Federal Torture Statute, the term "United States" referred to all areas under the jurisdiction of the United States, including those falling within its special maritime and territorial jurisdiction, such as military bases and buildings abroad when an offense was committed by or against a U.S. national. Accordingly, the Federal Torture Statute would not appear to have applied to cases of torture that might have occurred in such facilities, because they were not considered to be "outside the United States." However, pursuant to § 1089 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 ( P.L. 108-375 ), the torture statute was amended so that, for purposes of the statute, "United States" now refers to the several states of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States. Accordingly, the Federal Torture Statute now covers alleged acts of torture that might occur at U.S. facilities abroad. The United States claims jurisdiction over actions criminalized under the Federal Torture Statute when (1) the alleged offender is a national of the United States or (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or offender.

In addition, a number of federal criminal statutes explicitly cover actions that are committed outside of the territorial boundaries of the United States, but nevertheless occur within the special maritime or territorial jurisdiction of the United States, including statutes criminalizing assault, maiming with the intent to torture, manslaughter, and murder, as well as conspiracies to commit such crimes. Additionally, persons within the jurisdiction of the United States who conspire to kill, maim, or injure persons outside the United States are subject to criminal penalties. "Grave breaches" of the 1949 Geneva Conventions, including the torture or cruel treatment of detained combatants and civilians in armed conflicts, are criminalized under the War Crimes Act (18 U.S.C. § 2441), and persons convicted for an offense under the act may be sentenced to life imprisonment or, if death results from the breach, be executed. U.S. military law provides further restrictions on the treatment of individuals detained by the military.

Some of the criminal statutes described above, including § 2340A, provide that the specific intent of the actor is a necessary component of the criminal offense. Specific intent is "the intent to accomplish the precise criminal act that one is later charged with." This state of mind can be differentiated from that found in criminal offenses that only require an actor to possess a general intent with respect to the offense. General intent usually "takes the form of recklessness (involving actual awareness of a risk and the culpable taking of that risk) or negligence (involving blameworthy inadvertence)."

Two memorandums produced by the Department of Defense and the Department of Justice in 2002 discussed the distinction between general and specific intent with respect to § 2340A, and suggested that "knowledge alone that a particular result is certain to occur does not constitute specific intent." However, both memorandums made clear that this is "a theoretical matter," and note that juries may infer from factual circumstances that specific intent is present. Accordingly, "when a defendant knows that his actions will produce the prohibited result, a jury will in all likelihood conclude that the defendant acted with specific intent." In late 2004, the Department of Justice released a memorandum superseding its earlier memo and modifying some of its conclusions. The 2004 DOJ memo stated that "[i]n light of the President's directive that the United States not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture." Nevertheless, the 2004 DOJ memo alleged that it was unlikely that a person who "acted in good faith, and only after reasonable investigation establishing that his conduct would not inflict severe physical or mental pain or suffering," would possess the specific intent required to violate the Federal Torture Statute. The 2004 DOJ memo also distinguished intent to commit an offense from the motive behind committing an offense, stating that "a defendant's motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute." In January 2009, President Barack Obama issued an Executive Order providing that when conducting prospective interrogations, U.S. agents are generally forbidden from relying upon any interpretation of the law governing interrogations issued by the Department of Justice between September 11, 2001, and the final day of the Bush Administration, absent further guidance from the Attorney General.

Although § 2340A provides the United States with a wide jurisdictional grant to prosecute acts of torture, it has rarely been used. As of January 19, 2010, there appears to be only one instance in which a person has been charged and convicted for violating the Federal Torture Statute.

The statute of limitations for prosecution under the Federal Torture Statute is generally eight years after the offense was committed. However, there is no statute of limitations in the case of either a capital offense or other offense under the statute that "resulted in, or created a foreseeable [ sic ] risk of, death or serious bodily injury to another person."

Availability of Civil Redress for Acts of Torture Occurring Outside the United States

Although the United States attached an understanding to its ratification of CAT expressing its view that CAT Article 14 did not require States to recognize a private right of action for victims of torture occurring outside their territorial jurisdiction, the United States nevertheless created in the Torture Victims Protection Act of 1991 (TVPA) a private right of action for victims of torture committed under actual or apparent authority, or color of law, of any foreign nation. For purposes of the TVPA, "torture" is defined in a similar manner to the definition found in the federal statute criminalizing torture. A claim under the TVPA must be commenced within 10 years after the cause of action arose, and a claimant must exhaust all adequate and available remedies in the country where the alleged torture occurred before a U.S. court can hear the claim.

If an act of torture occurs within the United States, a tort claim could be brought by a person seeking redress under applicable state, federal statutory, or constitutional tort law.

Prohibition on Cruel, Inhuman, and Degrading Treatment

Following ratification of CAT, Congress did not adopt implementing legislation with respect to CAT Article 16, which requires each CAT party to prohibit cruel, inhuman, and degrading treatment or punishment in "any territory under its jurisdiction." There has recently been debate over whether Congress's failure to pass legislation implementing CAT Article 16 was due to an oversight or whether Congress believed that the United States agreed to bind itself to CAT Article 16 only to the extent that it was already required to refrain from cruel, inhuman, and degrading treatment or punishment under the U.S. Constitution and any existing statutes covering such offenses.

As previously mentioned, the Senate made its advice and consent to CAT ratification contingent upon the reservation that the cruel, inhuman, and degrading treatment or punishment prohibited by CAT 16 covered only treatment or punishment of the kind prohibited under the U.S. Constitution. Given this understanding, U.S. obligations under Article 16 can be interpreted in one of two ways.

One way is to interpret the United States as having agreed to bind itself to CAT Article 16 only to the extent that cruel, inhuman, or degrading treatment is constitutionally prohibited. Although the U.S. Supreme Court has held that the Constitution applies to U.S. citizens abroad, thereby protecting them from the extraterritorial infliction by U.S. officials of treatment or punishment prohibited under the Constitution, non-citizens receive few, if any, constitutional protections until after they have effected entry into the United States (though non-citizens in foreign locations under the complete control of the United States may receive greater protections than non-citizens in other foreign locations). Under this interpretation, CAT Article 16, as agreed to by the United States, would not necessarily prohibit the United States from subjecting certain non-U.S. citizens to "cruel, inhuman, or degrading treatment or punishment" at locations outside U.S. territorial boundaries where the U.S. nonetheless asserts jurisdiction (e.g., on the premises of U.S. missions in foreign states). During the Bush Administration, the DOJ took the position that CAT Article 16, as agreed to by the United States, does not cover aliens detained overseas. It is unclear whether this view shall be maintained by the Obama Administration.

On the other hand, others have argued that CAT Article 16, as agreed to by the United States, requires the United States to prohibit cruel, inhuman, and degrading treatment or punishment in any territory under its jurisdiction if such treatment would be deemed unconstitutional if it occurred in the United States. This view holds that the purpose of the U.S. reservation to CAT Article 16 was to more clearly define types of treatment that were "cruel, inhuman, or degrading," rather than to limit the geographic scope of U.S. obligations under CAT Article 16. At least one former State Department official involved in CAT's negotiation and ratification process has endorsed this interpretation as the correct one. The Committee Against Torture has also urged the United States to ensure that CAT Article 16 is applied to "all persons under the effective control of U.S. authorities, of whichever type, wherever located in the world."

Partially in light of this controversy, Congress passed additional guidelines concerning the treatment of detainees via the Detainee Treatment Act (DTA), which was enacted pursuant to both the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 ( P.L. 109-148 ), and the National Defense Authorization Act for FY2006 ( P.L. 109-163 ), and prohibits the "cruel, inhuman and degrading treatment or punishment of persons under the detention, custody, or control of the United States Government." These provisions of the DTA, which were first introduced by Senator John McCain, have popularly been referred to as the "McCain Amendment." The Military Commissions Act of 2006 (MCA, P.L. 109-366 ) contained an identical measure and also required the President to establish administrative rules and procedures implementing this standard. These provisions are discussed in greater detail in CRS Report RL33655, Interrogation of Detainees: Requirements of the Detainee Treatment Act , by [author name scrubbed].

When signing the DTA into law, President Bush issued a signing statement claiming he would construe the McCain Amendment "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief ... which will assist in achieving the shared objective of the Congress and the President ... of protecting the American people from further terrorist attacks." This statement has been interpreted as meaning that the President believes he may waive congressional restrictions on interrogation techniques in certain circumstances involving national security, pursuant to his constitutional authority as Commander in Chief. However, no similar signing statement was made when the President signed the MCA, even though it contained an identical provision barring "cruel, inhuman, and degrading treatment."

The DTA does not directly impose criminal or civil penalties on U.S. personnel who might engage in cruel, inhuman, or degrading treatment or punishment of detainees, though such persons could potentially be criminally liable for such conduct under other statutes. It does, however, provide an express legal defense to U.S. personnel in any civil or criminal action brought against them on account of their participation in the authorized interrogation of suspected foreign terrorists. The DTA specifies that a legal defense exists to civil action or criminal prosecution when the U.S. agent "did not know that the [interrogation] practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful." A good faith reliance on the advice of counsel is specified to be "an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful."

Army Field Manual Restrictions on Cruel, Inhuman, and Degrading Treatment

On September 6, 2006, the Department of Defense implemented the requirements of the McCain Amendment by amending the Army Field Manual to prohibit the "cruel, inhuman, or degrading treatment" of any person in the custody or control of the U.S. military. Additionally, eight techniques are expressly prohibited from being used in conjunction with intelligence interrogations:

forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner; placing hoods or sacks over the head of a detainee; using duct tape over the eyes; applying beatings, electric shock, burns, or other forms of physical pain; waterboarding; using military working dogs; inducing hypothermia or heat injury; conducting mock executions; and depriving the detainee of necessary food, water, or medical care.

In addition, the Manual restricts the use of certain other interrogation techniques, but these restrictions may be due to other legal obligations besides those imposed by the DTA.

Restrictions on Interrogation of Detainees by the CIA

In October 2007, the New York Times reported that in early 2005, the DOJ issued a legal opinion, which remains classified, authorizing the use of certain harsh interrogation techniques by the CIA against terrorist suspects, including head-slapping, simulated drowning (waterboarding), and exposure to frigid temperatures. Later that year, as Congress considered enactment of the DTA, the DOJ reportedly issued another classified opinion declaring that these techniques would not be barred under the DTA, at least when employed against terrorist suspects with crucial information regarding a future terrorist attack. According to the New York Times , the memorandums "remain[ed] in effect, and their legal conclusions have been confirmed by several more recent [Bush-era] memorandums." These opinions were the subject of controversy, with some Members of Congress disputing their legal conclusions and claiming that they had been unaware of the opinions' existence at the time the DTA was considered. In 2009, the Obama Administration released at least some of the memorandums discussed in these news reports.

For its part, the Bush Administration claimed that appropriate congressional committees or Members were informed about interrogation techniques that had been approved by the Administration. According to CIA director Michael Hayden, the CIA waterboarded three high-level Al Qaeda suspects but had not used the technique since 2003. Gen. Hayden further stated in congressional testimony in 2008 that waterboarding was not a part of the current CIA interrogation program, and that "it is not certain that the technique would be considered to be lawful under current statute."

On July 20, 2007, President Bush signed an Executive Order concerning the detention and interrogation of certain alien detainees by the CIA, when those aliens (1) are determined to be members or supporters of Al Qaeda, the Taliban, or associated organizations; and (2) likely possess information that could assist in detecting or deterring a terrorist attack against the United States and its allies, or could provide help in locating senior leadership within Al Qaeda or the Taliban. The Executive Order did not specifically authorize the use of any particular interrogation techniques with respect to detainees, but instead barred any CIA detention and interrogation program from employing certain practices. Specifically, the Order prohibited the use of

torture, as defined under the Federal Torture Statute (18 U.S.C. § 2340); cruel, inhuman, and degrading treatment, as defined under the DTA and the MCA; any activities subject to criminal penalties under the War Crimes Act (e.g., murder, rape, mutilation); other acts of violence serious enough to be considered comparable to the kind expressly prohibited under the War Crimes Act; willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or acts intended to denigrate the religion, religious practices, or religious objects of the individual.

Although some types of conduct barred by the Order are easily recognizable (e.g., murder, rape), it is not readily apparent as to what interrogation techniques fell under the Order's prohibition against acts deemed to be "cruel, inhuman, and degrading" or "beyond the bounds of human decency." Certain interrogation techniques that have been the subject of controversy and are expressly prohibited or restricted from being used by the military under the most recent version of the Army Field Manual—waterboarding, hooding, sleep deprivation, or forced standing for prolonged periods, for example—were not specifically addressed by the Order. Whether or not such conduct was deemed by Bush Administration officials to be barred under the more general restrictive language of the Order is unclear.

On the same day the Executive Order was issued, the Department of Justice Office of Legal Counsel issued a legal opinion which concluded that six "enhanced interrogation techniques," when used with specified conditions and safeguards, could be employed by the CIA against high value detainees belonging to Al Qaeda and affiliated groups without violating the DTA, War Crimes Act, or Common Article 3. These techniques included:

dietary manipulation, with a minimum caloric intake depending on the detainee's body weight and physical activity; extended sleep deprivation for up to 96 hours and no more than 180 hours over a 30-day period (including through the use of physical restraints to prevent the detainee from falling asleep); a "facial hold" to briefly keep the detainee's head immobile during an interrogation; an "attention grasp," in which an individual would be grabbed on each side of a collar opening for a few seconds; abdominal slaps; and insult or facial slaps.

This memorandum was subsequently withdrawn by the OLC in June 2009, after it concluded that the memorandum no longer reflected its views.

On January 22, 2009, President Barack Obama issued an Executive Order rescinding President Bush's order of July 20, 2007, and instituting new requirements for interrogation by the CIA and other agencies. The new Order generally bars anyone in U.S. custody or control while in an armed conflict from being subjected to any interrogation technique or treatment other than that authorized under the Army Field Manual. The Order does not preclude federal law enforcement agencies from continuing to "use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises."

The Executive Order also provides that when conducting interrogations, U.S. government officials, employees, and agents may not rely on any interpretation of the law governing interrogations issued by the Department of Justice between September 11, 2001, and January 20, 2009 (i.e., the final day of the Bush Administration), absent further guidance from the Attorney General. It further established a Special Interagency Task Force on Interrogation and Transfer Policies, chaired by the Attorney General, which was required:

to study and evaluate whether the interrogation practices and techniques in [the]Army Field Manual ... when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies.

The Task Force was required to issue a report to the President of its recommendations within 180 days of the Order's issuance, unless the Task Force Chairman (the Attorney General) deemed an extension to be appropriate. In July, the Chairman extended the deadline for the Task Force's final report by two months.

On August 24, 2009, the Task Force issued recommendations to the President on U.S. interrogation and transfer policies. According to the announcement, the Task Force concluded, based upon the unanimous assessment of its members, that "the practices and techniques identified by the Army Field Manual or currently used by law enforcement provide adequate and effective means of conducting interrogations." The Task Force concluded that no additional or further guidance on interrogation was necessary for interrogators within the military or non-military agencies. However, the Task Force recommended the establishment of a scientific research program for interrogation, in order to "study the comparative effectiveness of interrogation approaches and techniques, with the goal of identifying the existing techniques that are most effective and developing new lawful techniques to improve intelligence interrogations."

The Task Force also recommended the creation of a special interrogation group to coordinate the interrogation of high-level terrorist suspects. The High-Value Detainee Interrogation Group (HIG) will be composed of experienced interrogators and support personnel from law enforcement, the Department of Defense, and the Intelligence Community. The HIG will "coordinate the deployment of mobile teams of experienced interrogators, analysts, subject matter experts and linguists to conduct interrogations of high-value terrorists if the United States obtains the ability to interrogate them." The primary goal of HIG interrogations will be to collect intelligence to prevent terrorist attacks and deter threats to national security. Measures will also be taken, where appropriate, to preserve the option of gathering information to be used in criminal investigations and prosecutions. The Task Force also recommended that the HIG develop a set of best practices for conducting interrogations and disseminate these among agencies for training purposes.

Application of CAT and Its Implementing Legislation in Armed Conflicts

In recent years, there has been some controversy regarding the application of CAT by the United States towards persons captured in Iraq, Afghanistan, and elsewhere in the context of the "war on terror" and how that application relates to the standards owed under the 1949 Geneva Conventions concerning the protections of civilians and prisoners of war during armed conflicts. The rule of lex specialis provides that when two different legal standards may be applied to the same subject-matter, the more specific standard controls. Accordingly, the Geneva Conventions, which proscribe specific rules for the treatment of detainees during armed conflicts, establish the primary legal duties owed by the United States toward battlefield detainees rather than CAT, which is more general in scope.

There is some debate whether the rule of lex specialis means that the laws of war are the singular international standard governing the treatment of persons during armed conflict or whether human rights treaties such as CAT may impose complementary duties. The position of the Bush Administration appeared to be that CAT does not apply to armed conflicts. In a 2006 hearing before the Committee Against Torture, representatives of the U.S. State Department argued that CAT did not apply to detainee operations in Afghanistan, Iraq, and Guantánamo, which were controlled by the laws of armed conflict (though as a matter of policy the Bush Administration claimed that it acted consistently with CAT when deciding whether to transfer Guantánamo detainees to third countries ). In support of this position, the United States argued that CAT's negotiating history revealed an understanding by the negotiating parties that the treaty was intended to cover domestic obligations owed by parties and was not meant to overlap with different treaties governing the standards owed in armed conflicts. The Committee Against Torture disagreed with this view and recommended that the United States "should recognize and ensure that the Convention applies at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction." It is not known whether the Obama Administration will take the position that CAT does not legally govern the treatment of persons detained in armed conflict. However, President Obama has issued an Executive Order requiring that all detainees held by the United States during an armed conflict be treated consistently with several domestic statutes and international agreements, including CAT and the Federal Torture Statute.

Regardless of whether CAT itself applies during armed conflicts, certain legislation enacted by the United States to implement CAT requirements does. As mentioned previously, the Federal Torture Statute criminalizes torture anywhere outside the United States, without regard to whether such conduct occurred in the context of an armed conflict. Both the DTA and MCA prohibit cruel, inhuman, and degrading treatment of persons in U.S. custody, regardless of where they are held or for what purpose. In the 110 th Congress, several appropriation bills were enacted that barred funds made available from being used in contravention of CAT and its implementing legislation. Both the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 ( P.L. 110-28 ), and the Department of Defense Appropriations Act, 2008 ( P.L. 110-116 ), barred funds made available from being used in contravention of CAT and its implementing legislation and regulations, while the Consolidated Appropriations Act, 2008 ( P.L. 110-161 ), more generally barred funds it made available from being used to support torture or cruel or inhumane treatment by any U.S. official or contract employee. In the 111 th Congress, the Department of Defense Appropriations Act, 2010 ( P.L. 111-118 ), contains a provision barring funds from being used in contravention of CAT or its implementing legislation.

Decisions by Non-U.S. Bodies Concerning Whether Certain Interrogation Techniques Rise to the Level of Torture

Although U.S. courts and administrative bodies have found that severe beatings, maiming, sexual assault, rape, and (in certain circumstances) death threats may constitute "torture" for purposes of either CAT or the TVPA, there is little U.S. jurisprudence concerning whether harsh yet sophisticated interrogation techniques of lesser severity constitute "torture" under either CAT or U.S. implementing legislation. "Severe" pain or suffering constituting torture is not defined by either CAT or the Federal Torture Statute. In the 2004 DOJ Memo superseding the Department's earlier memorandum on torture, the DOJ concluded that "severe physical suffering" may constitute torture under the Federal Torture Statute even if such suffering does not involve "severe physical pain." The continuing relevance of this legal opinion to U.S. agents is unclear, given President Obama's Executive Order generally barring U.S. agents from relying on Bush-era DOJ opinions regarding the laws of interrogation.

Although few, if any, U.S. courts have had the opportunity to address this issue, decisions and opinions issued by foreign courts and international bodies might serve as indicators of an international consensus for the prohibition of certain interrogation techniques. Assuming for the purposes of discussion that a U.S. body reviewed certain interrogation methods to assess whether they constituted "torture" for purposes of CAT and domestic implementing legislation, it might consider looking at jurisprudence by non-U.S. bodies for guidance, though such jurisprudence would not be binding upon U.S. courts. It should also be noted that the U.S. military has also barred specified interrogation techniques it has deemed to rise to the level of torture, and a reviewing court may consider these prohibitions as well.

The next section briefly discusses two notable circumstances in which international or foreign State bodies have assessed whether a State's interrogation techniques constituted torture.

British Interrogation Techniques Employed in Northern Ireland

In 1978, the European Court of Human Rights (ECHR) heard a case brought by Ireland against the United Kingdom concerning British tactics used to counter secessionist movements and organizations in Northern Ireland during the early 1970s, and whether such tactics violated the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention). One issue that the ECHR was asked to resolve was whether five interrogation techniques previously employed by British authorities and approved by "high level" British officials violated Article 3 of the European Convention, which provides that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment." According to the ECHR, these five interrogation techniques, which were sometimes used in combination and other times individually, included:

wall-standing: forcing the detainees to remain for periods of some hours in a "stress position," described by those who underwent it as being "spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers"; hooding: putting a black or navy coloured bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation; subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise; deprivation of sleep: pending their interrogations, depriving the detainees of sleep; and deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the center and pending interrogations.

An investigation by the European Commission of Human Rights concluded that no physical injury resulted from the use of these techniques, though certain detainees suffered weightloss and adverse effects relating to their "acute psychiatric systems ... during interrogation."

The ECHR concluded that the interrogation techniques employed by Britain violated the European Convention's prohibition upon "inhuman or degrading treatment," but found that the interrogation methods did not constitute "torture." The ECHR stated that a distinction exists between inhuman or degrading treatment and torture; a "distinction [that] derives principally from a difference in the intensity of the suffering inflicted." The ECHR concluded that while the five interrogation techniques, at least when used in combination, were inhuman or degrading treatment, "they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood." The ECHR did not offer an in-depth analysis as to why these techniques did not cause sufficient suffering to constitute torture, although it should be noted that it appeared that few, if any, of the persons who were subject to the interrogation techniques sustained lasting, debilitating physical or mental injuries. It did note, however, that its inquiry required an evaluation of "all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim." Accordingly, it may be possible that in different circumstances these interrogation techniques might have been judged by the ECHR to rise to the level of torture.

Israeli Interrogation Techniques Employed Against Security Detainees

Beginning in the late 1980s and ending in the late 1990s, certain Israeli security forces were authorized to employ harsh interrogation techniques against Palestinian security detainees, including the use of "moderate physical pressure." In its initial report to the CAT Committee, Israel argued that the interrogation techniques it employed were in accordance with international law prohibiting torture. It specifically noted the ECHR decision declaring that the interrogation techniques employed by Britain in Northern Ireland during the early 1970s did not constitute torture. The committee concluded, however, that such tactics were "completely unacceptable" given Israel's obligations under CAT Articles 2 and 16.

In response to committee concerns about its interrogation techniques, Israel submitted additional information concerning the nature of the interrogation techniques it employed against security detainees. According to the CAT Committee, these interrogation techniques included:

restraining in very painful conditions; hooding under special conditions; sounding of loud music for prolonged periods; sleep deprivation for prolonged periods; threats, including death threats; violent shaking; and using cold air to chill.

In 1997, after examining a special report by Israel discussing these tactics, the committee concluded that the tactics described violated Israel's obligations as a party to CAT, representing a breach of CAT Article 16 and constituting torture as defined by CAT Article 1. The committee opinion suggests that some of the interrogation techniques employed by Israel might constitute torture when employed singularly, although the committee did not specify how particular methods constituted torture. Despite acknowledging that Israel faced a "terrible dilemma ... in dealing with terrorist threats to its security," the committee noted that CAT provides that no exceptional circumstances permit State parties to engage in torture. Accordingly, the committee recommended that Israel immediately cease its use of the interrogation tactics described above.

The committee is an advisory body, and its rulings are not binding. However, in 1999, the Israeli Supreme Court sitting as the Israeli High Court of Justice prohibited the use of "brutal or inhuman means" of interrogation, including five specific interrogation techniques at issue in the petitions before it, namely:

the shaking of a detainee; placing the detainee in the "Shabach" position, which involves cuffing of the suspect, seating him on a low chair, covering his head with a sack, and playing loud music in the area; placing the detainee in a "frog crouch" position, during which a detainee is forced to crouch while on the tips of his toes, for repeated, five-minute intervals; the use of excessively tight handcuffs; and the use of sleep deprivation (by design and not merely as "a side effect" of the interrogation).

In finding that these techniques were impermissible under Israeli law, the Court noted that "[t]his conclusion is in accord with international treaties, to which Israel is a signatory, which prohibit the use of torture, 'cruel, inhuman treatment' and 'degrading treatment.'" In doing so, the High Court did not expressly determine whether the prohibited techniques were unlawful because they constituted "torture," or some other form of cruel, inhuman, or degrading treatment prohibited under domestic law and international treaties.

According to a 2003 report by the U.S. State Department, Israel was reported to have used "extraordinary interrogation methods, some of which included physical pressure" at least 90 times since the Israeli High Court's ruling. For its part, the State Department reported in 2000 that Israeli security forces "abused, and in some cases, tortured Palestinians suspected of security offenses." More recently, the State Department has noted that human rights groups claim that torture is being employed.