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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 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 Although these decisions are not binding precedent for the United States, they may inform deliberations here.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.

Related Reports:
• RL32438

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