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 permitted.
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 chapter 113C of the United States Criminal Code, which prohibits 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. The memorandums were criticized by some for taking an overly restrictive view of treatment constituting torture. In late 2004, the Department of Justice released a memorandum superseding its earlier memo and modifying some of its conclusions. 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.
Assuming for the purposes of discussion that a U.S. body had to review a harsh interrogation method to determine whether it constitutes torture under either CAT or applicable U.S. law, it might examine international jurisprudence analyzing 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 Although these decisions are not binding precedent for the United States, they may inform deliberations here.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 RL33655, Interrogation of Detainees: Requirements of the Detainee Treatment Act, by Michael John Garcia.
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 permitted.
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 chapter 113C of the United States Criminal Code, which prohibits 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. The memorandums were criticized by some for taking an overly restrictive view of treatment constituting torture. In late 2004, the Department of Justice released a memorandum superseding its earlier memo and modifying some of its conclusions. 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.
Assuming for the purposes of discussion that a U.S. body had to review a harsh interrogation method to determine whether it constitutes torture under either CAT or applicable U.S. law, it might examine international jurisprudence analyzing 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 RL33655, Interrogation of Detainees: Requirements of the Detainee Treatment Act, by [author name scrubbed].
Over the past several decades, multiple international agreements and declarations have condemned and/or sought to prohibit the practice of torture by public officials,1 leading many 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.4
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."5 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."6 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,"7 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."8 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.9
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.10 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
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."11 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."12
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."13
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."14 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 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.15 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.16 The committee monitors State compliance with Convention obligations,17 investigates allegations of systematic CAT violations by State parties and makes recommendations for improving compliance,18 and submits annual reports to CAT parties and the U.N. General Assembly.19
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.20 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.21 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 30.22
The United States signed CAT on April 18, 1988, and ratified the Convention on October 21, 1994, subject to certain declarations, reservations, and understandings.23 Perhaps most significantly, the United States included a declaration in its instruments of ratification that CAT Articles 1 through 16 were not self-executing.24 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.
As previously mentioned, the Senate's advice and consent to CAT ratification was subject to the declaration that the Convention was not self-executing,25 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.26 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.27
The Convention's definition of torture includes not only acts committed by public officials, but also those acts to which they acquiesced.28 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."29 U.S. implementing regulations barring the removal of aliens to countries where they would more likely than not face torture reflect this understanding.30 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,"31 but acquiescence does not occur when a government or public official is aware of third-party torture but unable to stop it.32 In addition, mere noncompliance with applicable legal procedural standards does not per se constitute torture.33
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.34
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.35 These Amendments apply in different contexts. The Eighth Amendment bars the use of "cruel and unusual punishment" as a form of criminal penalty.36 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."37 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.38
The United States has also opted out of the dispute-settlement provisions of CAT Article 30,39 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.
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,"40 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."41 18 U.S.C. § 2340 further defines "severe mental pain and suffering" as prolonged mental harm caused by
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.43 In cases where death results from the prohibited conduct, the offender may be subject to life imprisonment or the death penalty.44 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.45 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.46 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.47
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,48 including statutes criminalizing assault,49 maiming with the intent to torture,50 manslaughter,51 and murder,52 as well as conspiracies to commit such crimes.53 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.54 "Grave breaches" of the 1949 Geneva Conventions, including the torture or cruel treatment of detained combatants and civilians in armed conflicts,55 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.56 U.S. military law provides further restrictions on the treatment of individuals detained by the military.57
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.58 Specific intent is "the intent to accomplish the precise criminal act that one is later charged with."59 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)."60
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."61 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.62 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."63 In late 2004, the Department of Justice released a memorandum superseding its earlier memo and modifying some of its conclusions.64 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."65 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.66 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."67 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.68
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.69
The statute of limitations for prosecution under the Federal Torture Statute is generally eight years after the offense was committed.70 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."71
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.72 For purposes of the TVPA, "torture" is defined in a similar manner to the definition found in the federal statute criminalizing torture.73 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.74
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.75
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,76 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).77 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.78 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.79 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."80
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."81 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."82 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.83 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.84 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."85 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."86
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:
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.88
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.89 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.90 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."91 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.92 In 2009, the Obama Administration released at least some of the memorandums discussed in these news reports.93
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.94 According to CIA director Michael Hayden, the CIA waterboarded three high-level Al Qaeda suspects but had not used the technique since 2003.95 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."96
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.97 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
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,98 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:
This memorandum was subsequently withdrawn by the OLC in June 2009, after it concluded that the memorandum no longer reflected its views.100
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.101 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."102
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.103
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.104
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."105 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."106
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."107 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.
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.108 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.109 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 conflict110 (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 countries111). 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.112 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."113 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.114
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 110th Congress, several appropriation bills were enacted that barred funds made available from being used in contravention of CAT and its implementing legislation.115 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 111th 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.
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,116 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.117 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."118 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. 119
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.120
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.
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).121 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 officials122 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."123 According to the ECHR, these five interrogation techniques, which were sometimes used in combination and other times individually, included:
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."125
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."126 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."127 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."128 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."129 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.
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.130 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.131 The committee concluded, however, that such tactics were "completely unacceptable" given Israel's obligations under CAT Articles 2 and 16.132
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:
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 1.134 The committee opinion suggests that some of the interrogation techniques employed by Israel might constitute torture when employed singularly,135 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.136 Accordingly, the committee recommended that Israel immediately cease its use of the interrogation tactics described above.137
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,138 including five specific interrogation techniques at issue in the petitions before it, namely:
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.'"139 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.140
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.141 For its part, the State Department reported in 2000 that Israeli security forces "abused, and in some cases, tortured Palestinians suspected of security offenses."142 More recently, the State Department has noted that human rights groups claim that torture is being employed.143
| 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 and Political Rights, G.A. Res. 2200A, U.N. GAOR, 3rd Comm., 21st Sess., 1496th 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"]. |
| 4. |
As of January 19, 2010, there are 146 parties to the CAT. United Nations Treaty Collection, Status of Treaties: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en (last accessed January 19, 2010). |
| 5. |
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). The Senate Foreign Relations Committee subsequently included the State Department Summary in its report recommending Senate consent to ratification of the Convention. Report of Senate Committee on Foreign Relations Concerning the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Sen. Exec. Rep. 101-30, Aug. 30, 1990. |
| 6. |
State Dept. Summary, at 4. Presumably, police brutality of extreme severity could rise to the level of "torture." |
| 7. |
CAT at art. 16(2). |
| 8. |
CAT at art. 2(1). |
| 9. |
For a more detailed discussion 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 [author name scrubbed]. |
| 10. |
CAT at art. 4(1). |
| 11. |
Id. at art. 2(2). |
| 12. |
State Dept. Summary, supra footnote 5, at 5. |
| 13. |
Id. at 13-14. |
| 14. |
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. |
| 15. |
CAT at arts. 17-18. |
| 16. |
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.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/898586b1dc7b4043c1256a450044f331/e2d4f5b2dccc0a4cc12571ee00290ce0/$FILE/G0643225.pdf [hereinafter "Committee Recommendations"]. The next periodic report of the United States is due November 19, 2011. |
| 17. |
CAT at arts. 19-23. |
| 18. |
Id. at arts. 20-23. |
| 19. |
Id. at art. 24. |
| 20. |
Id. at art. 30(1). |
| 21. |
CAT at art. 30(1). |
| 22. |
Id. at art. 30(2). |
| 23. |
See Sen. Exec. Rpt. 101-30, Resolution of Advice and Consent to Ratification, (1990) [hereinafter "Sen. Resolution"]; 136 Cong. Record 36192-36199 (Senate consideration of CAT). |
| 24. |
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. Yuen Jin v. Mukasey 538 F.3d 143(2nd Cir. 2008) (CAT Article 3 is not self-executing); Castellano-Chacon v. I.N.S., 341 F.3d 533 (6th 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 (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 22 C.F.R. § 95.2. |
| 25. |
Sen. Resolution, supra footnote 23, at III.(2). |
| 26. |
See Restatement, supra footnote 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 [author name scrubbed]. |
| 27. |
Sen. Resolution, supra footnote 23, at II.(1)(a) (emphasis added). |
| 28. |
CAT at Art. 1. |
| 29. |
Sen. Resolution, supra footnote 23, at II.(1)(d). |
| 30. |
8 C.F.R. § 1208.18(a)(7). |
| 31. |
See, e.g., Silva-Rengifo v. Atty. Gen. of United States, 473 F.3d 58, 70 (3rd Cir. 2007) ("acquiescence to torture requires only that government officials remain willfully blind to torturous conduct and breach their legal responsibility to prevent it"); 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 specified individuals); Ontunez-Turios v. Ashcroft, 303 F.3d 341 (5th 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 blind eye); see also Pascual-Garcia v. Ashcroft, 73 Fed.Appx. 232 (9th 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). |
| 32. |
See, e.g., 8 C.F.R. § 208.18(a)(7); Rodriguez Morales v. United States Atty. Gen., 488 F.3d 884 (11th Cir. 2007) ("acquiescence" to torture means that the government was aware of the torture, yet breached responsibility to intervene); 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). |
| 33. |
Sen. Resolution, supra footnote 23, at II.(1)(e). |
| 34. |
Id. at II.(3). |
| 35. |
Id. at I.(2). |
| 36. |
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, 501 U.S. 294, 297 (1991). |
| 37. |
See, e.g, Rochin v. California, 342 U.S. 165 (1952). |
| 38. |
E.g., Robinson v. California, 370 U.S. 660 (1962). |
| 39. |
See Sen. Resolution, supra footnote 23, at I.(3). |
| 40. |
S.Rept. 103-107, at 59 (1993) (discussing legislation implementing CAT Articles 4 and 5). |
| 41. |
18 U.S.C. § 2340(1). |
| 42. |
18 U.S.C. § 2340(2). |
| 43. |
18 U.S.C. § 2340A(a). |
| 44. |
Id. |
| 45. |
Id. |
| 46. |
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). |
| 47. |
18 U.S.C. § 2340A(b). |
| 48. |
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). |
| 49. |
18 U.S.C. § 113 |
| 50. |
18 U.S.C. § 114. For purposes of the statute, "torture" is defined by 18 U.S.C. § 2340. |
| 51. |
18 U.S.C. § 1112(b). |
| 52. |
18 U.S.C. § 1111(b). |
| 53. |
18 U.S.C. § 371. |
| 54. |
18 U.S.C. § 956(a). |
| 55. |
The 1949 Geneva Conventions establish standards of conduct by High Contracting Parties toward specified categories of vulnerable persons (e.g., detained 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 ... willfully 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. 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 3). |
| 56. |
For additional background on the War Crimes Act, see CRS Report RL33662, The War Crimes Act: Current Issues, by [author name scrubbed]. |
| 57. |
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 [author name scrubbed]. |
| 58. |
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"). |
| 59. |
Black's Law Dictionary 814 (7th ed. 1999) |
| 60. |
Id. at 813. |
| 61. |
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"] at 4. |
| 62. |
DOD Memo, supra footnote 61, at 9; 2002 DOJ Memo, supra footnote 61, at 4. |
| 63. |
DOD Memo, supra footnote 61, at 9; 2002 DOJ Memo, supra footnote 61, at 4. |
| 64. |
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/18usc23402340a2.htm [hereinafter "2004 DOJ Memo"]. |
| 65. |
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. |
| 66. |
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 footnote 61, at 25-31; 2002 DOJ Memo, supra footnote 61, 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 footnote 64, at 17. |
| 67. |
2004 DOJ Memo, supra footnote 64, at 17. |
| 68. |
Executive Order, "Ensuring Lawful Interrogations," January 22, 2009 [hereinafter "2009 Executive Order"]. |
| 69. |
Department of Justice, "Roy Belfast Jr., aka Chuckie Taylor, Convicted On Torture Charges," press release, October 30, 2008, http://miami.fbi.gov/dojpressrel/pressrel08/mm20081030a.htm. |
| 70. |
18 U.S.C. § 3296(a) (describing statute of limitations for any offense listed under 18 U.S.C. § 2332b(g)(5), which references violations of the Federal Torture Statute). |
| 71. |
Id. at § 3296(b). |
| 72. | |
| 73. |
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). |
| 74. |
Id. at §§ 2(b)-(c). |
| 75. |
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, 2674 (providing federal jurisdiction over certain constitutional and federal statutory claims, and describing U.S. tort liability); 42 U.S.C. §§ 1982-1988 (providing civil right of action for violation of civil rights). |
| 76. |
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."). |
| 77. |
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"). In the 2008 case of Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229, the Supreme Court held that the constitutional writ of habeas corpus extended to non-citizen detainees held at Guantanamo, in significant part because Guantanamo, while not technically part of the United States, was nonetheless subject to its complete control. The Court's opinion did not address the extent to which other constitutional protections extended to Guantanamo detainees, and it suggested that non-citizens held by the United States in foreign territories where U.S. control was less absolute than Guantanamo would be afforded lesser protections. See id. at 2262 (noting that the Court had never before found that the non-citizens detained in another country's territory have any rights under the U.S. Constitution, but concluding that the case before it "lack[ed] any precise historical parallel"). Notably, the Court did not overrule its decision in Johnson v. Eisentrager, 339 U.S. 763 (1950), where it held that the constitutional writ of habeas did not extend to enemy aliens held in postwar Germany. Instead, the Court distinguished the two cases, and noted that unlike the petitioners in Eisentrager, the Guantanamo detainees denied they were enemy combatants and the government's control over post-WWII German territory was not nearly as complete as its control over Guantanamo. Boumediene, 128 S. Ct. at 2259-2260. |
| 78. |
The Bush-era Department of Justice took 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, made available by http://www.scotusblog.com/movabletype/archives/CAT%20Article%2016.Leahy-Feinstein-Feingold%20Letters.pdf (a copy of this letter is on file with the author). The continuing relevance of this legal opinion to U.S. agents is questionable, given President Obama's Executive Order generally barring reliance on Bush-era DOJ opinions regarding the laws of interrogation. See 2009 Executive Order, supra footnote 68. |
| 79. |
Letter from Abraham Sofaer to Senator Patrick J. Leahy, January 21, 2005, reprinted in 151 Cong. Rec. S12382-S12383 (November 4, 2005). |
| 80. |
Committee Recommendations, supra footnote 16, at ¶ 15. |
| 81. |
P.L. 109-148, Title X, § 1004; P.L. 109-163, Title XIV, § 1404. |
| 82. |
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://georgewbush-whitehouse.archives.gov/news/releases/2005/12/20051230-8.html. |
| 83. |
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). |
| 84. |
See supra pp. 10-11. |
| 85. |
P.L. 109-148, Title X, § 1004; P.L. 109-163, Title XIV, § 1404. |
| 86. |
P.L. 109-148, Title X, § 1004; P.L. 109-163, Title XIV, § 1404. |
| 87. |
Department of the Army Field Manual 2-22.3 (FM 34-52), Human Intelligence Collector Operations, at 5-75 (2006), available at http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/dod/armyfm2223humanintel.pdf [hereinafter "2006 Field Manual"]. |
| 88. |
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 Prisoners of War, but is permitted in some circumstances against unlawful combatants. Id. at Chapter 8, Appendix M. |
| 89. |
Scott Shane, et al., "Secret U.S. Endorsement Of Severe Interrogations," New York Times, October 4, 2007, at A1. |
| 90. |
Id. |
| 91. |
Id. |
| 92. |
David Johnson and Scott Shane, "Debate Erupts On Techniques Used by C.I.A.," New York Times, October 5, 2007, at A1. The DTA does not describe the type of interrogation techniques that were believed to constitute "cruel, inhuman, or degrading treatment." During Senate consideration of the legislation, Senator Richard Durbin, a co-sponsor of the DTA, suggested that waterboarding, exposure to frigid temperatures, and sleep deprivation were "examples of conduct that is clearly prohibited by the McCain [A]mendment." 151 Congressional Record S14274 (December 21, 2005). |
| 93. |
See, e.g., Memorandum from the Office of Legal Counsel, Department of Justice, to John A. Rizzo, Senior Deputy General Counsel for the Central Intelligence Agency, Re: Application of United States Obligations under Article 16 of the Convention Against Torture to Certain Techniques That May Be Used against High Value Al Qaeda Detainees (May 30, 2009), available at http://documents.nytimes.com/justice-department-memos-on-interrogation-techniques#p=85. |
| 94. |
See Sheryl Gay Stolberg, "Bush Says Interrogation Methods Aren't Torture," New York Times, October 6, 2007, at A1 (quoting President Bush as stating that approved interrogation techniques were "fully disclosed" to appropriate Members); White House Office of the Press Secretary, "Press Briefing by White House Press Secretary Dana Perino," October 5, 2007 (claiming that appropriate congressional committees were "fully briefed" regarding approved interrogation methods). |
| 95. |
Hearing on Annual Threat Assessment Before the Senate Select Committee on Intelligence, CQ Transcriptions, February 5, 2008 (response by CIA director General Michael Hayden to question posed by Senator Bond). |
| 96. |
Hearing on Annual World Wide Threat Assessment Before the House Permanent Select Committee on Intelligence, February 7, 2008 (statement by CIA director General Michael Hayden during questioning). |
| 97. |
Executive Order 13340, "Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency," 72 Federal Register 40707 (July 20, 2007). |
| 98. |
See 2006 Field Manual, supra footnote 87, at Appendix M (requiring detainees who are subjected to the restricted interrogation technique of separation to receive at least four hours of continuous sleep every 24 hours) |
| 99. |
Department of Justice, Office of Legal Counsel, "Memorandum Regarding Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques That May Be Used by the CIA in the Interrogation of High-level Al Qaeda Detainees," July 20, 2007, available at http://www.washingtonpost.com/wp-srv/nation/documents/2007_0720_OLC_memo_warcrimesact.pdf. |
| 100. |
Department of Justice, Office of Legal Counsel, "Withdrawal of Office of Legal Counsel Opinion," June 11, 2009, available at http://www.washingtonpost.com/wp-srv/nation/documents/2009_0611_OLC_Barron_memo.pdf. |
| 101. |
2009 Executive Order, supra footnote 68, at § 3(b). |
| 102. |
Id., § 4. |
| 103. |
Id., § 5. Besides the Attorney General, the Task Force is comprised of the Director of National Intelligence and the Secretary of Defense (who serve as co-vice-chairs); the Secretary of State; the Secretary of Homeland Security; the Director of the CIA; the Chairman of the Joint Chiefs of Staff; and other officers or full-time or permanent part-time employees of the United States, as determined by the Attorney General, with the concurrence of the head of the department or agency concerned. |
| 104. |
See Department of Justice, "Detention Policy Task Force Issues Preliminary Report," press release, July 21, 2009, http://www.usdoj.gov/opa/pr/2009/July/09-ag-705.html. |
| 105. |
Department of Justice, "Special Task Force on Interrogations and Transfer Policies Issues Its Recommendations to the President," press release, August 24, 2009, http://www.usdoj.gov/opa/pr/2009/August/09-ag-835.html. |
| 106. |
Id. |
| 107. |
Id. The Task Force proposed that the HIG be subject to policy guidance and oversight coordinated by the National Security Council, and be administratively housed within the Federal Bureau of Investigation. |
| 108. |
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 to CAT). |
| 109. |
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). |
| 110. |
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, 2006) [hereinafter "U.S. Report on CAT"]. |
| 111. |
Declaration of Joseph Benkert, Principal Deputy Assistant Secretary of Defense for Global Security Affairs, DoD, executed on June 8, 2007, at para. 6, In re Guantanamo Bay Detainee Litigation, Case No. 1:05-cv-01220 (D.D.C. 2007) (stating that "it is the policy of the United States, consistent with the approach taken by the United States in implementing ... [CAT], not to repatriate or transfer ...[Guantanamo detainees] to other countries where it believes it is more likely than not that they will be tortured"). |
| 112. |
U.S. Report on CAT, supra footnote 110. |
| 113. |
Committee Recommendations, supra footnote 16, at ¶ 14. |
| 114. |
2009 Executive Order, supra footnote 68, at § 3(a). |
| 115. |
P.L. 110-28; P.L. 110-116; P.L. 110-161; P.L. 110-252; P.L. 110-329. |
| 116. |
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 footnote 64, 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). |
| 117. |
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 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 footnote 61. |
| 118. |
2004 DOJ Memo, supra footnote 64, at 10. |
| 119. |
2009 Executive Order, supra footnote 68. |
| 120. |
For example, 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 chapter 1-8, available at http://www.fas.org/irp/doddir/army/fm34-52.pdf. |
| 121. |
Ireland v. United Kingdom, Judgment, European Court of Human Rights (1978), available at http://www.ena.lu/judgement_european_court_human_rights_ireland_united_kingdom_18_january_1978-020004468.html [hereinafter "Ireland"]. |
| 122. |
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. |
| 123. |
213 U.N.T.S. 211(1955). |
| 124. |
Ireland, supra footnote 121, at ¶ 96. |
| 125. |
Id. at ¶ 104. |
| 126. |
Id. at ¶ 167. |
| 127. |
Id. |
| 128. |
Id. |
| 129. |
Id. at ¶ 162. |
| 130. |
Committee Against Torture, Initial reports of States Parties Due in 1992: Israel, U.N. Doc. CAT/C/16/Add.4 (1994), at ¶ 34. |
| 131. |
Id. |
| 132. |
See Committee Against Torture, Concluding Observations of the Committee Against Torture: Israel, A/49/44 (1994) at ¶ 168. |
| 133. |
Concluding Observations of the Committee Against Torture: Israel, 18th Sess., U.N. Doc. A/52/44 (1997) at ¶ 257. |
| 134. |
Id. at ¶ 256. |
| 135. |
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] used in combination, which appears to be the standard case"). |
| 136. |
Id. at ¶ 258. |
| 137. |
Id. at ¶ 260. |
| 138. |
HJC 5100/94 Public Committee Against Torture in Israel v. The State of Israel et al., 53(4) P.D. 817 (5759/60-1999), translation available at The State of Israel: The Judicial Authority website, at http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.pdf (last accessed January 19, 2010), at ¶23. While not fully rejecting the defense of necessity in cases involving an extraordinary "ticking time bomb" situation, the Court stated that this defense "does not itself [pre-]authorize … [the use of unauthorized interrogation techniques] and the concomitant infringement of human rights." Id. at ¶ 36. |
| 139. |
Id. For additional information regarding the High Court ruling and subsequent developments, see Ruth Levush, Israel: Interrogation Techniques on Both Sides of the Green Line (Report for Congress, LL File No. 2009-01935, Dec. 2008). |
| 140. |
See id. at ¶ 30 (comparing the "Shabach" position to interrogation techniques at issue in the ECHR ruling in Ireland v. United Kingdom, and noting that although the ECHR did not find that these techniques constituted "torture," it nonetheless concluded that they were prohibited on account of being "inhuman and degrading"). |
| 141. |
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/2002/18278.htm. |
| 142. |
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. |
| 143. |
U.S. Dept. of State, Bureau Of Democracy, Human Rights, and Labor, Country Reports on Human Rights Practices - 2008: Israel and the Occupied Territories (February 15, 2009), available at http://www.state.gov/g/drl/rls/hrrpt/2008/nea/119117.htm. |