U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques
U.N. Convention Against Torture (CAT):
Overview and Application to
Updated January 25, 2008
Michael John Garcia
American Law Division
U.N. Convention Against Torture (CAT):
Overview and Application to Interrogation Techniques
The United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (CAT) requires signatory parties to take
measures to end torture within their territorial jurisdiction and to criminalize all acts
of torture. Unlike many other international agreements and declarations prohibiting
torture, CAT provides a general definition of the term. CAT generally defines torture
as the infliction of severe physical and/or mental suffering committed under the color
of law. CAT allows for no circumstances or emergencies where torture could be
The United States ratified CAT, subject to certain declarations, reservations, and
understandings, including that the treaty was not self-executing and required
implementing legislation to be enforced by U.S. courts. In order to ensure U.S.
compliance with CAT obligations to criminalize all acts of torture, the United States
enacted 18 U.S.C. §§ 2340 and 2340A, which prohibit torture occurring outside the
United States (torture occurring inside the United States was already generally
prohibited under several federal and state statutes criminalizing acts such as assault,
battery, and murder). The applicability and scope of these statutes were the subject
of widely-reported memorandums by the Department of Defense and Department of
Justice in 2002. In late 2004, the Department of Justice released a memorandum
superseding its earlier memo and modifying some of its conclusions.
Assuming for the purposes of discussion that a U.S. body had to review a harsh
interrogation method to determine whether it constituted torture under either CAT
or applicable U.S. law, it might examine international jurisprudence as to whether
certain interrogation methods constituted torture. Although these decisions are not
binding precedent for the United States, they may inform deliberations here.
Congress has approved additional, CAT-referencing guidelines concerning the
treatment of detainees. 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), contained a provision prohibiting the cruel, inhuman and
degrading treatment of persons under custody or control of the United States (this
provision is commonly 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 Acts are discussed briefly in this report and in
greater detail in CRS Report RS22312, Interrogation of Detainees: Overview of the
McCain Amendment, by Michael John Garcia. In the 110th Congress, the U.S. Troop
Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability
Appropriations Act, 2007 (P.L. 110-28), the Department of Defense Appropriations
Act, 2008 (P.L. 110-116), and the Consolidated Appropriations Act, 2008 (P.L. 110-
Overview of the Convention Against Torture............................1
Definition of “Torture” under CAT................................1
CAT Requirements Concerning the Criminalization of Torture..........3
CAT Requirements Concerning the Availability of Civil Redress
for Victims of Torture......................................4
CAT Requirements Prohibiting Cruel, Inhuman, or
Degrading Treatment or Punishment...........................4
CAT Enforcement and Monitoring Measures........................4
Implementation of the Convention Against Torture in the United States.......5
Relevant Declarations, Reservations, and Understandings
Conditioning U.S. Ratification of the Convention
Criminalization of Torture Occurring Outside the United States.........8
Availability of Civil Redress for Acts of Torture Occurring
Outside the United States ..................................12
Prohibition on Cruel, Inhuman, and Degrading Treatment.............13
Army Field Manual Restrictions on Cruel, Inhuman,
and Degrading Treatment...............................16
Restrictions on Interrogation of Detainees by the CIA............17
Application of CAT and Its Implementing Legislation
in Armed Conflicts........................................18
Decisions by Non-U.S. Bodies Concerning Whether Certain
Interrogation Techniques Rise to the Level of Torture............19
British Interrogation Techniques Employed in Northern Ireland....20
Israeli Interrogation Techniques Employed Against
Palestinian Security Detainees...........................22
U.N. Convention Against Torture (CAT):
Overview and Application to
Overview of the Convention Against Torture
Over the past several decades, a number of international agreements and
declarations has condemned and/or sought to prohibit the practice of torture by public
officials,1 leading some to conclude that torture is now prohibited under customary
international law.2 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),3 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” refers to
1 See, e.g., U.N. CHARTER art. 55 (calling upon U.N. member countries to promote
“universal respect for, and observance of, human rights and fundamental freedoms for
all....”); Universal Declaration on Human Rights, UN GAOR, Supp. No. 16, at 52, UN Doc.
A/6316, at art. 5 (1948) (providing that “no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment”); International Covenant on Civil andrdstth
Political Rights, G.A. Res. 2200A, U.N. GAOR, 3 Comm., 21 Sess., 1496 plen. mtg. at
49, U.N. Doc. A/RES/ 2200A (XXI), at art. 7 (1966) (providing that “[n]o one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment”).
2 See, e.g., Filartiga v. Pena-Irala, 630 F2d 876, 880-85 (2nd Cir. 1980) (listing numerous
sources, including the opinion of the State Department, supporting the proposition that
torture is prohibited by customary international law, and noting that despite continued
practice of torture by many countries, virtually all have renounced the practice publically,
including through international declarations and agreements); RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 702, Reporters note 5(d) (1987). But
see A. Mark Weisbard, Customary International Law and Torture: The Case of India, 2 CHI.
J. INT’L. L. 81 (Spring 2001) (arguing that widespread use of torture by States in certain
circumstances and general indifference of other States to the practice, despite existence of
numerous international agreements and declarations condemning torture, indicate that the
prohibition on torture has not reached the status of customary international law).
3 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51
(1984) (hereinafter “CAT”).
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 torture4
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 extreme5
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,”6 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
4 President’s Message to Congress Transmitting the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment, Summary and Analysis of the
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, May 23, 1988, S. TREATY DOC. NO. 100-20, reprinted in 13857 U.S. Cong.
Serial Set at 3 (1990) (hereinafter “State Dept. Summary”) (emphasis added).
5 Id. at 4. Presumably, police brutality of extreme severity could rise to the level of
6 CAT at art. 16(2).
under [their] jurisdiction.”7 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.8
CAT Requirements Concerning the Criminalization of Torture
A central objective of CAT was 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.9 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
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
(1) The offenses are committed in any territory under its jurisdiction or on board
a ship or aircraft registered in that State;
(2) The alleged offender is a national of that State;
(3) The victim was a national of that State if that State considers it appropriate;
(4) 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.”10
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.”11
7 CAT at art. 2(1).
8 For a more detailed overview of CAT Article 3 and U.S. implementing laws and
regulations, see CRS Report RL32276, The U.N. Convention Against Torture: Overview of
U.S. Implementation Policy Concerning the Removal of Aliens, by Michael Garcia.
9 CAT at art. 4(1).
10 Id. at art. 2(2).
11 State Dept. Summary, supra note 4, at 5.
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.”12
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.13
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.14 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.15 The committee monitors State
12 Id. at 13-14.
13 Id. at 15. The State Department noted, for instance, that the European Commission on
Human Rights once concluded that the refusal of German authorities to give formal
recognition to an individual’s sex change might constitute “degrading” treatment.
14 CAT at arts. 17-18.
15 Id. at art. 19(1). According the United Nations Office of the High Commissioner for
Human Rights, the United States first report under CAT was due on November 15, 1995,
and was submitted on October 15, 1999. See Office of the United Nations High
Commissioner on Human Rights, Convention Reporting Status, at [http://www.unhchr.ch/
tbs/doc.nsf/RepStatfrset?OpenFrameSet]. A second report, due on November 19, 2001, was
submitted to the Committee on May 6, 2005. Second Periodic Report of the United States
of America to the Committee Against Torture, May 6, 2005, available at [http://www.state.
compliance with Convention obligations,16 investigates allegations of systematic
CAT violations by State parties and makes recommendations for improving
compliance,17 and submits annual reports to CAT parties and the U.N. General
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.19 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.20 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 30.21
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.22 Perhaps most significantly, the United States included a
declaration in its instruments of ratification that CAT Articles 1 through 16 were not
self-executing.23 The following sections discuss relevant declarations, reservations,
gov/g/drl/rls/45738.htm]. The Committee’s conclusions and recommendations in response
to this report were issued on July 25, 2006. Conclusions and Recommendations of the
Committee Against Torture regarding the United States of America, July 25, 2006, available
from the United Nations website at [http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b
(hereinafter “Committee Recommendations”).
16 CAT at arts. 19-23.
17 Id. at arts. 20-23.
18 Id. at art. 24.
19 Id. at art. 30(1).
20 CAT at art. 30(1).
21 Id. at art. 30(2).
22 See SEN. EXEC. RPT. 101-30, Resolution of Advice and Consent to Ratification, (1990)
(hereinafter “Sen. Resolution”).
23 Id. at III.(2). U.S. courts hearing cases concerning the removal of aliens have regularly
interpreted CAT provisions prohibiting alien removal to countries where an alien would
likely face torture to be non-self executing and judicially unenforceable except to the extent
permitted under domestic implementing legislation. See, e.g., Castellano-Chacon v. I.N.S.,th
341 F.3d 533 (6 Cir. 2003) (applicant for withholding of removal could not invoke CAT
directly, but could rely upon implementing regulations); Akhtar v. Reno, 123 F.Supp.2d 191
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
As previously mentioned, the Senate’s advice and consent to CAT ratification24
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.25 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.26
The Convention’s definition of torture includes not only acts committed by27
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
(S.D.N.Y. 2000) (rejecting challenge made by criminal alien to removal pursuant to CAT,
and stating that “[g]iven the apparent intent of the United States that the Convention not be
self-executing, this Court joins the numerous other courts that have concluded that the
Convention is not self-executing”). Pursuant to the Foreign Affairs Reform and
Restructuring Act of 1998 (FARRA), P.L. 105-277 at § 2242, the United States implemented
certain provisions of CAT by announcing a policy not to expel, extradite, or otherwise effect
the involuntary removal of any person to a country where there are substantial grounds for
believing that the person would be in danger of being subjected to torture. Regulations
adopted pursuant to this legislation are codified at 8 C.F.R. §§ 208.16-18, 1208.16-18, and
24 Sen. Resolution, supra note 22, at III.(2).
25 See RESTATEMENT, supra note 2, § 111 (“ a ‘non-self- executing’ agreement will not be
given effect as law in the absence of necessary implementation”). The United States
nevertheless has an international obligation to adjust its laws as necessary to give legal
effect to international agreements. Id. at comment h. See generally CRS Report RL32528,
International Law and Agreements: Their Effect Upon U.S. Law, by Michael Garcia and
26 Sen. Resolution, supra note 22, at II.(1)(a) (emphasis added).
27 CAT at Art. 1.
activity and thereafter breach his or her legal responsibility to intervene to prevent
such activity.”28 U.S. implementing regulations barring the removal of aliens to
countries where they would more likely than not face torture reflect this
understanding.29 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,”30 but
acquiescence does not occur when a government or public official is aware of third-
party torture but unable to stop it.31 In addition, mere noncompliance with applicable
legal procedural standards does not per se constitute torture.32
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 for provide a private right of action
for acts of torture committed in territory under the State’s jurisdiction.33
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.34 These Amendments apply in different contexts. The Eighth
Amendment bars the use of “cruel and unusual punishment” as a form of criminal
28 Sen. Resolution, supra note 22, at II.(1)(d).
29 8 C.F.R. § 1208.18(a)(7).
30 See, e.g., Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (declaring that the correct
inquiry in deciding whether a Chinese immigrant was entitled to relief from removal from
U.S. under CAT was not whether Chinese officials would commit torture against him, but
whether public officials would turn a blind eye to the immigrant’s torture by specifiedth
individuals); Ontunez-Turios v. Ashcroft, 303 F.3d 341 (5 Cir. 2002) (upholding Board of
Immigration Appeals’ deportation order, but noting that “willful blindness” constitutes
acquiescence under CAT); Bullies v. Nye, 239 F. Supp.2d 518 (M.D. Pa. 2003) (under CAT-
implementing regulations, acquiescence by government to torture by non-governmental
agents requires either willful acceptance by government officials or at least turning a blindth
eye); see also Pascual-Garcia v. Ashcroft, 73 Fed.Appx. 232 (9 Cir. 2003) (holding that
relief under CAT does not require that torture will occur while victim is in the custody or
physical control of a public official).
31 See, e.g., Moshud v. Blackman, 68 Fed. Appx. 328 (3rd Cir. 2003) (denying alien’s claim
to reopen removal proceedings to assert a CAT claim based on her fear of female genital
mutilation in Ghana: although the practice was widespread, the Ghanian government had
not acquiesced to the practice because it had been made illegal and public officials had
condemned the practice); Matter of S-V-, 22 I&N December 1306 (BIA 2000) (holding that
protection under CAT does not extend to persons fearing entities that a government is
unable to control).
32 Sen. Resolution, supra note 22, at II.(1)(e).
33 Id. at II.(3).
34 Id. at I.(2).
penalty.35 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.”36 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.37
The United States has also opted out of the dispute-settlement provisions of
CAT Article 30,38 but it has reserved the right to specifically agree to follow its
provisions or any other arbitration procedure to resolve particular disputes concerning
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,”39 such as those criminalizing assault, manslaughter, and murder.
However, the United States did add §§ 2340 and 2340A of the United States
Criminal Code, which criminalize 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.”40 Section 2340 further defines “severe
mental pain and suffering” as prolonged mental harm caused by
35 Ingraham v. Wright, 430 U.S. 651 (1977). Whether treatment by public officials
constitutes “cruel and unusual” treatment that is prohibited by the Constitution is assessed
using a two-prong test. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, it must be
determined whether the individual who has been mistreated was denied “the minimal
civilized measures of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
This standard may change over time to reflect evolving societal standards of decency. Id.
at 346. Secondly, the offending individual must have a “sufficiently culpable state of mind,”
indicating that the infliction of pain was “wanton” or, in the context of general prison
conditions, reflected “deliberate indifference to inmate health or safety.” Wilson v. Seiter,
36 See, e.g, Rochin v. California, 342 U.S. 165 (1952).
37 E.g., Robinson v. California, 370 U.S. 660 (1962).
38 See Sen. Resolution, supra note 22, at I.(3).
39 S.Rept. 103-107, at 59 (1993) (discussing legislation implementing CAT Articles 4 and
40 18 U.S.C. § 2340(1).
(1) the intentional infliction or threatened infliction of severe physical pain or
(2) 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;
(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 or41
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.42 In cases where death results from the prohibited conduct, the
offender may be subject to life imprisonment or the death penalty.43 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.44 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.45
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 would now cover alleged acts of torture that might occur at
U.S. facilities abroad. The United States claims jurisdiction over actions criminalized
41 18 U.S.C. § 2340(2).
42 18 U.S.C. § 2340A(a).
45 See 18 U.S.C. § 2340(3) (2003). With respect to offenses committed by or against U.S.
citizens, the special territorial jurisdiction of the United States includes (1) the premises of
United States diplomatic, consular, military or other United States Government missions or
entities in foreign States, including the buildings, parts of buildings, and land appurtenant
or ancillary thereto or used for purposes of those missions or entities, irrespective of
ownership; and (2) residences in foreign States and the land appurtenant or ancillary thereto,
irrespective of ownership, used for purposes of those missions or entities or used by United
States personnel assigned to those missions or entities. 18 U.S.C. § 7(9).
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.46
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,47 including statutes criminalizing assault,48 maiming with the intent to
torture,49 manslaughter,50 and murder,51 as well as conspiracies to commit such
crimes.52 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.53 “Grave breaches” of the 1949 Geneva Conventions, including
the torture or inhumane treatment of detained combatants and civilians in armed
conflicts,54 are criminalized under the War Crimes Act (18 U.S.C. § 2441), and
46 18 U.S.C. § 2340A(b).
47 U.S. special maritime and territorial jurisdiction covers specified areas within and outside
of U.S. territorial boundaries, including territory within U.S. territorial boundaries under
federal control, such as military bases. 18 U.S.C. § 7(3).
48 18 U.S.C. § 113
49 18 U.S.C. § 114. For purposes of the statute, “torture” is defined by 18 U.S.C. § 2340.
50 18 U.S.C. § 1112(b).
51 18 U.S.C. § 1111(b).
52 18 U.S.C. § 371.
53 18 U.S.C. § 956(a).
54 The 1949 Geneva Conventions establish standards of conduct by High Contracting
Parties toward specified categories of vulnerable persons (e.g., civilians, prisoners of war)
during armed conflicts between States. It is considered a “grave breach” of Convention
requirements to subject such persons to “torture or inhuman treatment ... wilfully causing
great suffering or serious injury to body or health.” See Geneva Convention (First) for the
Amelioration of the Condition of the Wounded and the Sick in the Armed Forces in the
Field, August 12, 1949, 6 U.S.T. 3314, 75 U.N.T.S. 31, at art. 50; Geneva Convention
(Second) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked,
August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, at art. 51; Geneva Convention (Third)
Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S.
135, at art. 130; Geneva Convention (Fourth) Relative to the Protection of Civilian Persons
in Times of War, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, at art. 147. In conflicts
“not of an international character,” Article 3 of each of the 1949 Geneva Conventions
(Common Article 3) establishes base protections for all persons taking no active part in
hostilities, including those who have laid down their arms or been incapacitated by capture
or injury. Such persons are to be treated humanely and protected from certain treatment,
including “violence to life and person,” “cruel treatment and torture,” and “outrages upon
personal dignity, in particular, humiliating and degrading treatment.” The U.S. Supreme
Court has interpreted Common Article 3 to apply to the conflict with Al Qaeda, according
captured Al Qaeda suspects and other “unlawful combatants” with minimal protections.
Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). Although the Geneva Conventions do not list
violations of Common Article 3 as a “grave breach” of Convention requirements, under U.S.
persons convicted for an offense under the act may be sentenced to life imprisonment
or, if death results from the breach, be executed.55 U.S. military law provides further
restrictions on the treatment of individuals detained by the military.56
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.57
Specific intent is “the intent to accomplish the precise criminal act that one is later
charged with.”58 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
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.”60 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.61 Accordingly, “when
a defendant knows that his actions will produce the prohibited result, a jury will in
law, violations of Common Article 3 of similar severity as “grave breaches” of Convention
requirements are subject to the same criminal penalties. See 18 U.S.C. § 2441
(criminalizing “grave breaches” of both the 1949 Geneva Conventions and Common Article
55 For additional background on the War Crimes Act, see CRS Report RL33662, The War
Crimes Act: Current Issues, by Michael John Garcia.
56 For a more comprehensive discussion of U.S. laws applicable to the treatment of prisoners
of war, see CRS Report RL32395, U.S. Treatment of Prisoners in Iraq: Selected Legal
Issues, by Jennifer Elsea.
57 See 18 U.S.C. § 2340 (defining torture as “an act committed by a person acting under the
color of law specifically intended to inflict severe physical or mental pain or suffering”).
58 BLACK’S LAW DICTIONARY 814 (7th ed. 1999)
59 Id. at 813.
60 See Department of Defense, Working Group Report on Detainee Interrogations in the
Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational
Considerations (March 6, 2003), available at [http://www.defenselink.mil/news/Jun2004/
d20040622doc8.pdf] (hereinafter “DOD Memo”) at 9; Memorandum from the Office of
Legal Counsel, Department of Justice, to Alberto R. Gonzales, Counsel to the President, Re:
Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (August 1, 2002),
on the Washington Post website, available at [http://www.washingtonpost.com/wp-
srv/nation/documents/dojinterrogationmemo20020801.pdf] (hereinafter “2002 DOJ Memo”)
61 DOD Memo, supra note 60, at 9; 2002 DOJ Memo, supra note 60, at 4.
all likelihood conclude that the defendant acted with specific intent.”62 In late 2004,
the Department of Justice released a memorandum superseding its earlier memo and
modifying some of its conclusions.63 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.”64 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.65 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.”66
Although § 2340A provides the United States with a wide jurisdictional grant
to prosecute acts of torture, it does not appear that this authority has ever been used.
A legal search by CRS did not reveal any cases in which the DOJ has relied on §
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
62 DOD Memo, supra note 60, at 9; 2002 DOJ Memo, supra note 60, at 4.
63 Memorandum from the Office of Legal Counsel, Department of Justice, to James B.
Comey, Deputy Attorney General, Re: Legal Standards Applicable Under 18 U.S.C. §§
2340-2340A (December 30, 2004), available at [http://www.usdoj.gov/olc/18usc
64 Id. at 16-17. The memo cited to declarations made by President George W. Bush in 2003
and 2004 describing freedom from torture as “an inalienable human right” and that “[t]orture
anywhere is an affront to human dignity everywhere.” Id. at n.4.
65 Id. at 17. The 2002 DOJ and DOD memorandums suggested that defenses of necessity
(i.e., taking unlawful conduct the actor believes is necessary to avoid the occurrence of a
greater harm or evil) or self-defense might in some cases justify violations of the federal
criminal torture statute and potentially eliminate criminal liability. DOD Memo, supra note
60, at 25-31; 2002 DOJ Memo, supra note 60, at 39-46. The 2004 DOJ Memo does not
directly address these potential defenses, though it does note that there is “no exception
under the statute permitting torture to be used for a ‘good reason.’” 2004 DOJ Memo, supra
note 63, at 17.
66 2004 DOJ Memo, supra note 63, at 17.
apparent authority, or color of law, of any foreign nation.67 For purposes of the
TVPA, “torture” is defined in a similar manner to the definition found in the federal
statute criminalizing torture.68 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.69
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
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 those forms of
treatment or punishment prohibited under the U.S. Constitution. Given this
understanding, U.S. obligations under Article 16 can be interpreted in one of two
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
67 P.L. 102-256.
68 For purposes of the TVPA, “torture” describes “any act, directed against an individual in
the offender’s custody or physical control, by which severe pain or suffering (other than
pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether
physical or mental, is intentionally inflicted on that individual for such purposes as
obtaining from that individual or a third person information or a confession, punishing that
individual for an act that individual or a third person has committed or is suspected of
having committed, intimidating or coercing that individual or a third person, or for any
reason based on discrimination of any kind.” Id. at § 3(b)(1).
69 Id. at §§ 2(b)-(c).
70 See, e.g., 22 U.S.C. § 1350 (providing that an alien may bring a civil action for a tort only
for a violation of the law of nations or a treaty of the United States); 28 U.S.C. §§ 1346,
and U.S. tort liability); 42 U.S.C. §§ 1982-1988 (providing civil right of action for violation
of civil rights).
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,71 non-citizens arguably only receive constitutional protections
after they have effected entry into the United States.72 Under this interpretation, CAT
Article 16, as agreed to by the United States, would not necessarily prohibit the U.S.
from subjecting certain non-U.S. citizens to “cruel, inhuman, and degrading
treatment or punishment” at locations outside U.S. territorial boundaries where the
U.S. nonetheless asserts territorial jurisdiction (e.g., on the premises of U.S. missions
in foreign States). The DOJ has taken this position in arguing that CAT Article 16,
as agreed to by the United States, does not cover aliens detained overseas.73
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, and 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
71 See, e.g., Reid v. Covert, 354 U.S. 1, 6 (1957) (“When the Government reaches out to
punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the
Constitution provide to protect his life and liberty should not be stripped away just because
he happens to be in another land.”).
72 See, e.g., Verdugo-Urquidez v. United States, 494 U.S. 259, 270-71 (1990) (“aliens
receive constitutional protections when they have come within the territory of the United
States and developed substantial connections with the country”). But see Rasul v. Bush, 124
S.Ct. 2686, n.15 (2004) (noting in dicta that petitioners’ allegations that they had been held
in detention at Guantanamo Bay for more than two years “in territory subject to the
long-term, exclusive jurisdiction and control of the United States, without access to counsel
and without being charged with any wrongdoing — unquestionably describe ‘custody in
violation of the Constitution or laws or treaties of the United States’”) (citing federal habeas
statute 28 U.S.C. § 2241(c)(3), under which petitioners challenged their detention).
Whether the Rasul ruling meant only that federal habeas jurisdiction extended to
Guantanamo, or more broadly found that non-citizens detained at Guantanamo possessed
constitutional rights, has been subject to conflicting rulings by district courts. Compare
Hamdan v. Rumsfeld, 2006 U.S. Dist. LEXIS 89933 (D.D.C. December 13, 2006) (finding
that non-U.S. residents held at Guantanamo did not have a constitutional right to habeas);
Khalid v. Bush, 355 F. Supp.2d 311 (D.D.C. 2005) (holding that while federal habeas
statute covers Guantanamo detainees, non-U.S. residents detained there do not receive
constitutional protections) with In re Guantanamo Detainees, 355 F. Supp.2d 443 (D.D.C.
2005) (reading Rasul to mean that persons detained at Guantanamo are owed constitutional
protections). For further information, see CRS Report RS22173; Detainees at Guantánamo
Bay, by Jennifer Elsea.
73 The Department of Justice has taken the position that CAT Article 16, as read in light of
U.S. reservations, (1) does not cover acts overseas that are not under U.S. jurisdiction, and
(2) does not impose any new obligations upon the U.S. beyond those already required under
the U.S. Constitution. It has also argued that the Constitution does not cover non-citizens
held outside the United States. See Letter from Asst. Attorney General William E.
Moschella to Sen. Patrick Leahy, April 4, 2005, available at [http://www.scotusblog.com/
endorsed this interpretation as the correct one.74 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.”75
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.”76 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 RS22312, Interrogation of Detainees: Overview of the McCain
Amendment, by Michael John Garcia.
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.”77 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.78 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 McCain Amendment 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
74 Letter from Abraham Sofaer to Senator Patrick J. Leahy, January 21, 2005, reprinted in
CONG. REC. S12382-12383 (November 4, 2005).
75 Committee Recommendations, supra note 15, at ¶ 15.
76 P.L. 109-148, Title X, § 1004; P.L. 109-163, Title XIV, § 1404.
77 President’s Statement on Signing of H.R. 2863, the “Department of Defense, Emergency
Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic
Influenza Act, 2006,” December 30 2005, available at [http://www.whitehouse.gov/news/
78 See generally Charlie Savage, Bush Could Bypass New Torture Ban, BOSTON GLOBE,
January 4, 2006, at A1(quoting a senior White House official under condition of anonymity
and several legal scholars as to the meaning of the signing statement).
for such conduct under other statutes.79 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 McCain Amendment 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.”80 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.”81
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. 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
!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
!using military working dogs;
!inducing hypothermia or heat injury;
!conducting mock executions; and82
!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 those83
imposed by the McCain Amendment.
79 See supra pp. 10-11.
80 P.L. 109-148, Title X, § 1004; P.L. 109-163, Title XIV, § 1404.
81 P.L. 109-148, Title X, § 1004; P.L. 109-163, Title XIV, § 1404.
82 Department of the Army Field Manual 34-52, Human Intelligence Collector Operations,
at 5-75 (2006), available at
83 The Manual provides that three interrogation techniques may only be used with higher-
level approval: (1) “Mutt and Jeff”, a good-cop, bad-cop interrogation tactic where a
detainee is made to identify with the more friendly interrogator; (2) “false flag,” where a
detainee is made to believe he is being held by another country known to subject prisoners
to harsh interrogation; and (3) separation, by which detainees are separated so that they
cannot coordinate their stories. Separation may not be used against “lawful combatants,”
as this tactic is prohibited under the 1949 Geneva Convention Relative to the Treatment of
Restrictions on Interrogation of Detainees by the CIA. On July 20,
2007, President Bush signed an Executive Order barring the Central Intelligence
Agency (CIA) from employing certain interrogation methods against aliens suspected
of being members or supporters of Al Qaeda, the Taliban, or associated84
organizations. Specifically, the Order prohibits the use of
!torture, as defined under the Federal Torture Statute (18 U.S.C. §
!cruel, inhuman, or degrading treatment or punishment, as defined
under the McCain Amendment 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.
The scope of activity prohibited by the Order is not immediately apparent.
Although some types of conduct barred by the Order are easily recognizable (e.g.,
murder, rape, the performance of sexual acts), it is not readily apparent as to what
interrogation techniques would fall 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 —
waterboarding, hooding, sleep deprivation, or forced standing for prolonged periods,
for example — are not specifically addressed by the Order. Whether or not such
conduct is deemed by the Executive to be barred under the more general restrictive
language of the Order, including that prohibiting “cruel, inhuman, or degrading
treatment,” remains unclear.
Prisoners of War, but is permitted in some circumstances against unlawful combatants. Id.
at Appendix M.
84 The Executive Order may be viewed at [http://www.whitehouse.gov/news/releases/2007/
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 same85
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 impose86
complementary duties. The current position of the U.S. executive branch appears
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,87
which were controlled by the laws of armed conflict. In support of this position, the
U.S. 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 the88
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.”89
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 McCain Amendment and MCA prohibit
cruel, inhuman, and degrading treatment of persons in U.S. custody, regardless of
85 See Robert M. Chesney, Leaving Guantánamo: the Law of International Detainee
Transfers, 40 U. RICH. L. REV. 657 (2006) (describing lex specialis rule and its application
86 See generally Heike Krieger, A Conflict of Norms: the Relationship Between
Humanitarian Law and Human Rights Law in the ICRC Customary Law Study, 11 J.
CONFLICT & SECURITY L. 265 (2006).
87 Committee Against Torture, Consideration of Reports Submitted by States Parties under
Article 19 of the Convention (United States), Summary Record, CAT/C/SR.703 (May 12,
89 Committee Recommendations, supra note 15, at ¶ 14.
where they are held or for what purpose. In the 110th Congress, 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.
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,90 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.91 Although few, if any, U.S. courts have had the
90 See, e.g, Zubeda v. Ashcroft, 333 F.3d 46 (3rd Cir. 2003) (“[r]ape can constitute torture”);
Al-Saher v. I.N.S., 268 F.3d 1143 (9th Cir. 2001) (finding that regular, severe beatings and
cigarette burns inflicted upon an Iraqi alien by prison guards entitled him to relief under
CAT Article 3 from removal to Iraq); Matter of Kuna, A76491421 (BIA July 12, 2001)
(unpublished) (Board of Immigration Appeals decision concluding that rape and sexual
assault may constitute torture for purposes of CAT). For purposes of the Torture Victims
Relief Act, 22 U.S.C. § 2152 note, torture is defined as including “the use of rape and other
forms of sexual violence by a person acting under the color of law....” As noted by the 2004
DOJ Memo, U.S. courts have reached differing conclusions as to whether death threats
constitute mental torture, with such findings largely dependent on whether the person
threatened suffered prolonged mental harm. See 2004 DOJ Memo, supra note 63, at 14-15,
citing Sackie v. Ashcroft, 270 F. Supp. 2d 596 (E.D. Pa. 2003) (finding that individual
forcibly recruited as child soldier and forced to take narcotics and threatened with imminent
death during a three to four year period had suffered prolonged mental harm constituting
torture during this period); Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp.
2d 1285 (S.D. Fla. 2003) (rejecting a torture claim under the Torture Victims Protection Act
brought by persons who had been held at gunpoint overnight and repeatedly threatened with
death, when they had failed to show that they had suffered any longstanding mental harm
as a result); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002) (finding that
plaintiffs had been victims of mental torture when they were forced to play Russian roulette
and suffered “long-term psychological harm” as a result).
91 Although “severe ... pain or suffering” is not specifically defined anywhere in the United
States Code, the War Crimes Act, as amended by the MCA, describes “serious physical pain
or suffering” as bodily injury that involves (1) a substantial risk of death; (2) extreme
physical pain; (3) a burn or physical disfigurement of a serious nature (other than cuts,
abrasions, or bruises); or (4) significant loss or impairment of the function of a bodily
member, organ, or mental faculty. 18 U.S.C. § 2441(d)(2). It is unclear whether a reviewing
court would view “severe ... pain and suffering” as having to be of greater intensity than the
type of pain and suffering labeled “serious” under the War Crimes Act. The kinds of pain
and suffering labeled “serious” under the War Crimes Act have previously been found to
opportunity to address this issue, decisions and opinions issued by foreign courts and
international bodies might serve as indicators of an international prohibition against
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
This next section briefly discusses two notable circumstances in which
international bodies have assessed whether a State’s interrogation techniques
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 Human93
Rights and Fundamental Freedoms (European Convention). One issue that the
ECHR was asked to resolve was whether five interrogation techniques previously94
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
be of sufficient severity to constitute torture. See Al-Saher, 268 F.3d at 1143 (regular,
severe beatings and cigarette burns constituted “torture”); Mehinovic, 198 F. Supp. 2d at
1322 (acts of brutality including tooth-pulling and severe beatings resulting in broken bones
and disfigurement constituted torture). Indeed, the 2002 DOJ memo discussing severe
physical pain and suffering constituting torture suggested that it must be “equivalent in
intensity to the pain accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death.” 2002 DOJ Memo supra note 60, at 1. In the
2004 DOJ Memo superseding the Department’s earlier memorandum on torture, the DOJ
rejected this earlier finding to the extent that it treated severe physical suffering as identical
to severe physical pain, and concluded that “severe physical suffering” may constitute
torture under the federal torture statute even if such suffering does not involve “severe
physical pain.” 2004 DOJ Memo, supra note 63, at 10.
92 The 1992 version of the Army Field Manual lists the following acts as examples of mental
or physical torture: mock execution; electric shock; infliction of pain through chemicals or
bondage (other than legitimate use of restraints to prevent escape); chemically-induced
psychosis; forcing an individual to stand, sit, or kneel in abnormal positions for prolonged
periods of time; food deprivation; abnormal sleep deprivation; and any form of beating.
Department of the Army Field Manual 34-52, Intelligence Interrogation (1992),at 1-8,
available at [http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse/FM34-52Intel
93 Ireland v. United Kingdom, Judgment, European Court of Human Rights (1978), available
at [http://www.worldlii.org/eu/cases/ECHR/1978/1.html] (hereinafter “Ireland”).
94 Id. at ¶ 97. At the time of the Court’s decision, Britain had pledged not to use the
interrogation techniques in the future. Id. at ¶ 153.
subjected to torture or to inhuman or degrading treatment or punishment.”95
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
!subjection to noise: pending their interrogations, holding the
detainees in a room where there was a continuous loud and hissing
!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.96
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 upon their “acute psychiatric systems ...
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.”98
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.”99 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.”100 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
95 213 U.N.T.S. 211(1955).
96 Ireland, supra note 92, at ¶ 96.
97 Id. at ¶ 104.
98 Id. at ¶ 167.
mental effects and, in some cases, the sex, age and state of health of the victim.”101
Accordingly, it may be possible that in different circumstances these interrogation
techniques might be judged by the ECHR to rise to the level of torture.
Israeli Interrogation Techniques Employed Against Palestinian
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 law102
prohibiting torture. It specifically noted the ECHR decision declaring that the
interrogation techniques employed by Britain in Northern Ireland during the early103
1970s did not constitute torture. The committee concluded, however, that such
tactics were “completely unacceptable” given Israel’s obligations under CAT Articles104
In response to committee concerns about its interrogation techniques, Israel
submitted additional information concerning the nature of the interrogation
techniques it employed against Palestinian 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.105
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 defined106
by CAT Article 1. The committee opinion suggests that some of the interrogation
techniques employed by Israel might constitute torture when employed singularly,107
101 Id. at ¶ 162.
102 Committee Against Torture, Initial reports of States Parties Due in 1992: Israel, U.N.
Doc. CAT/C/16/Add.4 (1994), at ¶ 34.
104 See Committee Against Torture, Concluding Observations of the Committee Against
Torture: Israel, A/49/44 (1994) at ¶ 168.
105 Concluding Observations of the Committee Against Torture: Israel, 18th Sess., U.N. Doc.
A/52/44 (1997) at ¶ 257.
106 Id. at ¶ 256.
107 See id. at ¶ 257 (noting that the Committee’s conclusion that the interrogation techniques
constituted torture was “particularly evident where such methods of interrogation [were]
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.108 Accordingly,
the committee recommended that Israel immediately cease its use of the interrogation
tactics described above.109
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,
concluded that the interrogation techniques evaluated by the committee were contrary
to Israeli law, and prohibited their usage except in cases when “special permission”
was granted permitting their usage against detainees believed to possess information
about an imminent attack.110 In doing so, however, the High Court did not expressly
determine whether such actions constituted “torture.” According to the State
Department, Israel is reported to have used such techniques at least 90 times since the
Israeli High Court’s ruling.111 For its part, the State Department reported in 2000 that
Israeli security forces “abused, and in some cases, tortured Palestinians suspected of
security offenses.”112 More recently, the State Department has described Israel’s
interrogation tactics as “degrading treatment,” but noted that human rights groups
claim that torture is being employed.113
used in combination, which appears to be the standard case”).
108 Id. at ¶ 258.
109 Id. at ¶ 260.
110 See Pub. Comm. Against Torture in Israel v. State of Israel, Judgment, H.C. 5100/94,
Israeli High Court of Justice (1999), available at [http://www.hamoked.org.il/items/260_
111 U.S. Dept. of State, Bureau Of Democracy, Human Rights, and Labor, Country Reports
on Human Rights Practices - 2002 (March 31, 2003), available at [http://www.state.gov/
g/ drl/rls/hrrpt/2002/18289.htm] .
112 U.S. Dept. of State, Bureau Of Democracy, Human Rights, and Labor, Country Reports
on Human Rights Practices - 1999: Israel and the Occupied Territories (February 23, 2000),
available at [http://www.state.gov/g/drl/rls/hrrpt/1999/416.htm].
113 U.S. Dept. of State, Bureau Of Democracy, Human Rights, and Labor, Country Reports
on Human Rights Practices - 2003: Israel and the Occupied Territories (February 25, 2004),
available at [http://www.state.gov/g/drl/rls/hrrpt/2003/27929.htm]. See also U.S. Dept. of
State, Bureau Of Democracy, Human Rights, and Labor, Country Reports on Human Rights
Practices - 2005: Israel and the Occupied Territories (March 5, 2006), available at
[ h t t p : / / www.st at e.go v/ g/ dr l / r l s / h r r p t / 2003/ 27929.ht m] .