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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 memorandums by the Department of Defense and Department of Justice in 2002. In late 2004, the Department of Justice released a memorandum superseding its earlier memo and modifying some of its conclusions.
Until recently, for purposes of the federal torture statute, the term "United States" referred to all areas under the jurisdiction of the United States, including those falling within its special maritime and territorial jurisdiction, such as military bases and buildings abroad when an offense was committed by or against a U.S. national. Accordingly, the federal torture statute would not appear to have applied to cases of torture that might have occurred in such facilities, because they were not considered to be "outside the United States." However, pursuant to section 1089 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Pub. Law 108-375), the torture statute was amended so that, for purposes of the statute, "United States" refers to the several states of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States. Accordingly, the federal torture statute would now cover alleged acts of torture that might occur at U.S. facilities abroad. In addition, a number of separate federal statutes would 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. Although these decisions are not binding precedent for the United States, they may inform deliberations here. This report will be updated as events require.
