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Summary:
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 Convention was not self-executing and therefore
required domestic 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 sections 2340 and 2340A of the United States Criminal Code,
which prohibit torture occurring "outside the United States" (torture occurring inside
the United States was already prohibited under several federal and state statutes of
general application prohibiting acts such as assault, battery, and murder). The
applicability and scope of these statutes were the subject of widely-reported
memoranda by the Department of Defense and Department of Justice that have been
made at least partially available by several news sites.
It does not appear that sections 2340 and 2340A would cover acts of torture
committed at U.S. facilities abroad if those acts were committed by or against U.S.
nationals. Section 2340 defines "United States" to include areas covered under U.S.
special and maritime jurisdiction, such as military facilities and other buildings in
foreign States used for U.S. governmental purposes when a U.S. national is the
offender or victim of an offense. Accordingly, sections 2340 and 2340A would
generally appear not to apply to cases of torture that might occur in such facilities,
because they are not "outside the United States" for purposes of U.S. law. A number
of separate federal statutes would nevertheless prohibit harsh mistreatment occurring
at such facilities; a detailed discussion of these laws can be found in CRS Report
RL32395, U.S. Treatment of Prisoners in Iraq: Selected Legal Issues.
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. A reviewing body might examine
decisions made by both the European Court of Human Rights and the Committee
against Torture, the monitoring body of CAT, which have examined interrogation
methods including the use of such tactics as sleep deprivation, "hooding" of detained
individuals, and subjecting detainees to loud noise to determine whether such acts
constituted torture. Although these decisions are not binding precedent for the
United States, they may inform deliberations here. This report will be updated as
events require.
