Related Rule
United States of America
Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
The US Field Manual (1956) restates common Article 3 of the 1949 Geneva Conventions. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 11.
The manual provides: “In no case shall disciplinary penalties be inhuman, brutal or dangerous for the health of internees.” 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 93, 163, 215, 271 and 326.
The manual specifies that “torture or inhuman treatment” is a war crime under the 1949 Geneva Conventions. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 502.
The US Air Force Pamphlet (1976) states that both human rights law and IHL “safeguard such fundamental rights as freedom from torture or cruel and inhuman punishment”. It further refers to Article 12 of the 1949 Geneva Convention II, which provides that sick and wounded members of the opposing forces shall not be subjected to torture. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, §§ 11–5 and 12-2(a).
The US Air Force Commander’s Handbook (1980) prohibits “torture, threats, or other coercion against prisoners of war to obtain further information”. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(a).
The US Soldier’s Manual (1984) and Instructor’s Guide (1985) provide that no physical or mental torture, nor any other form of coercion, may be inflicted on detainees. 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 5; Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 10.
The Soldier’s Manual provides that inhumane treatment of civilians is a violation of the law of war for which every soldier can be prosecuted and that “inhumane treatment of any person is a capital offence prohibited at any time and in any place whatsoever”. 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, pp. 16 and 20.
The US Naval Handbook (1995) provides with regard to prisoners of war and civilians that “torture or inhumane treatment, subjection to public insult or curiosity” are representative war crimes. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1–10, October 1989), § 6.2.5.1.
The US Manual for Military Commissions (2007) states:
Confessions, admissions, and other statements
(a) General rules.
(1) A statement obtained by use of torture shall not be admitted into evidence against any party or witness, except against a person accused of torture as evidence that the statement was made.
(2) A statement alleged to be the product of coercion may only be admitted as provided in section (c) below.
(3) A statement produced by torture or otherwise not admissible under section (c) may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this rule.
(b) Definitions. As used in these rules:
(1) Confession. A “confession” is an acknowledgment of guilt.
(2) Admission. An “admission” is a self-incriminating statement not comprising an acknowledgment of guilt, whether or not intended by its maker to be exculpatory.
(3) Torture. For the purpose of determining whether a statement must be excluded under section (a) of this rule, “torture” is defined as an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control. “Severe mental pain or suffering” is defined as the prolonged mental harm caused by or resulting from:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) 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.
(4) Cruel, inhuman or degrading treatment. The cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
(c) Statements allegedly produced by coercion. When the degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted in accordance with this section.
(1) As to statements obtained before December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into evidence.
(2) As to statements obtained on or after December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (B) the interests of justice would best be served by admission of the statement into evidence; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part III, Rule 304(a)-(c), pp. III-8 and III-9.
In Part IV, Crimes and Elements, the manual includes in the list of crimes triable by military commissions:
TORTURE.
a. Text. “Any person subject to this chapter who commits an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused inflicted severe physical or mental pain or suffering upon one or more persons;
(2) The accused did so for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind;
(3) The accused intended to inflict such severe physical or mental pain or suffering;
(4) The infliction of pain or suffering was not incidental to lawful sanctions;
(5) Such person or persons were in the custody or under the control of the accused at the time of the alleged offense; and
(6) The conduct took place in the context of and was associated with armed conflict.
c. Explanation.
(1) This offense does not include pain or suffering arising only from, inherent in, or incidental to, lawfully imposed sanctions or punishments. This offense does not include the incidental infliction of pain or suffering associated with the lawful conduct of hostilities.
(2) Severe “mental pain or suffering” is the prolonged mental harm caused by or resulting from:
(a) the intentional infliction or threatened infliction of severe physical pain or suffering;
(b) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(c) the threat of imminent death; or
(d) 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.
(3) “Prolonged mental harm” is a harm of some sustained duration, though not necessarily permanent in nature, such as a clinically identifiable mental disorder.
(4) Element (b)(4) of this offense does not require a particular formal relationship between the accused and the victim. Rather, it precludes prosecution for pain or suffering consequent to a lawful military attack.
d. Maximum punishment. Death, if the death of any person occurs as a result of the torture. Otherwise, confinement for life.
CRUEL OR INHUMAN TREATMENT.
a. Text. “Any person subject to this chapter who commits an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused wrongfully and unlawfully inflicted severe or serious physical or mental pain or suffering upon one or more persons;
(2) The accused intended to inflict such severe or serious physical or mental pain or suffering upon the person;
(3) The infliction of such pain or suffering was not incidental to lawful sanctions;
(4) Such person or persons were in the custody or under the control of the accused at the time of the alleged offense; and
(5) The conduct took place in the context of and was associated with armed conflict.
c. Definitions.
(1) The term “serious physical pain or suffering” means bodily injury that involves—
(A) a substantial risk of death;
(B) extreme physical pain;
(C) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(D) significant loss or impairment of the function of a bodily member, organ, or mental faculty.
(2) The term “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) 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.
(3) The term “serious mental pain or suffering” means the prolonged mental harm (if the alleged act occurred prior to or on October 17, 2006) or serious and non-transitory mental harm which need not be prolonged (if the alleged act occurred after October 17, 2006) caused by or resulting from—
(A) the intentional infliction or threatened infliction of serious physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, serious physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
d. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.
e. Maximum punishment. Death, if the death of any person occurs as a result of the cruel or inhuman treatment. Otherwise, confinement for life.
INTENTIONALLY CAUSING SERIOUS BODILY INJURY.
a. Text. “Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused caused serious injury to the body or health of one or more persons;
(2) The accused intended to inflict such serious injury upon the person or persons;
(3) The injury was done with unlawful force or violence;
(4) The serious bodily injury inflicted by the accused was in violation of the law of war; and
(5) The conduct took place in the context of and was associated with armed conflict.
c. Definition. SERIOUS BODILY INJURY DEFINED.— the term “serious bodily injury” means bodily injury which involves—
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
d. Comment. For the accused to have been acting in violation of the law of war, the accused must have taken acts as a combatant without having met the requirements for lawful combatancy. It is generally accepted international practice that unlawful enemy combatants may be prosecuted for offenses associated with armed conflicts, such as murder; such unlawful enemy combatants do not enjoy combatant immunity because they have failed to meet the requirements of lawful combatancy under the law of war.
e. Maximum punishment. Death, if the death of any person occurs as a result of the serious bodily injury. Otherwise, 20 years confinement. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(11), (12) and (13), pp. IV-8 to IV-11.
The US Naval Handbook (2007) states that “the following acts are prohibited with respect to detainees in DOD [Department of Defense] custody and control: … cruel treatment and torture … [and] [o]utrages upon personal dignity, in particular humiliating and degrading treatment”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.2.
The Handbook further states: “All detainees shall … not be subjected to sensory deprivation.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.2.
The Handbook also states with respect to prisoners of war: “Torture, threats, or other coercive acts are prohibited.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.3.1.
The Handbook further states that examples of war crimes that could be considered as grave breaches of the 1949 Geneva Conventions include:
1. Offenses against prisoners of war, including … torture or inhumane treatment; subjection to public insult or curiosity …
2. Offenses against civilian inhabitants of occupied territory, including … torture or inhumane treatment.
3. Offenses against the sick and wounded, including … mistreating enemy forces disabled by sickness or wounds. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6(1)–(3).
The Handbook also states: “The inhumane treatment of detainees is prohibited and is not justified by the stress of combat or deep provocations.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.2.
The US Manual on Detainee Operations (2008) states:
Inhumane treatment of detainees is prohibited by the Uniform Code of Military Justice, domestic and international law, and DOD [Department of Defense] policy. There is no exception to this humane treatment requirement. Accordingly, the stress of combat operations, the need for intelligence, or deep provocation by captured and/or detained personnel does not justify deviation from this obligation. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. vii; see also pp. I-1–I-2.
The manual further states:
Detaining officials must recognize that detained enemy combatants [ECs] who have not satisfied the applicable criteria in the … [1949 Geneva Convention III] will have a status as unlawful ECs, but are still entitled to humane treatment. The inhumane treatment of detainees is prohibited and is not justified by the stress of combat or deep provocation. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. I-4.
The manual also states:
As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts …
… Common Article 3 to the Geneva Conventions of 1949, as construed and applied by U.S. law, establishes minimum standards for the humane treatment of all persons detained by the United States, coalition, and allied forces. Common Article 3 prohibits at any time and in any place: “cruel treatment and torture; … outrages upon personal dignity, in particular humiliating and degrading treatment … ”. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
The manual further states:
DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program] requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949 …
Article 3 Common to the Geneva Convention of 1949
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities … shall in all circumstances be treated humanely …
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) … cruel treatment and torture;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. III-11–III-12.
The manual quotes a statement by the US President to the United Nations on the occasion of the International Day in Support of Victims of Torture, 26 June 2004, as follows:
American personnel are required to comply with all U.S. laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees. The United States also remains steadfastly committed to upholding the [1949] Geneva Conventions, which have been the bedrock of protection in armed conflict for more than 50 years. These Conventions provide important protections designed to reduce human suffering in armed conflict. We expect other nations to treat our service members and civilians in accordance with the Geneva Conventions. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. I-1.
[emphasis in original]
The US Manual for Military Commissions (2010), in Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
(11) TORTURE.
a. Text. “Any person subject to this chapter who commits an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused inflicted severe physical or mental pain or suffering upon one or more persons;
(2) The accused did so for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind;
(3) The accused intended to inflict such severe physical or mental pain or suffering;
(4) The infliction of pain or suffering was not incidental to lawful sanctions;
(5) Such person or persons were in the custody or under the control of the accused at the time of the alleged offense; and
(6) The conduct took place in the context of and was associated with hostilities.
c. Explanation.
(1) This offense does not include pain or suffering arising only from, inherent in, or incidental to, lawfully imposed sanctions or punishments. This offense does not include the incidental infliction of pain or suffering associated with the lawful conduct of hostilities.
(2) Severe “mental pain or suffering” is the prolonged mental harm caused by or resulting from:
(a) the intentional infliction or threatened infliction of severe physical pain or suffering;
(b) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(c) the threat of imminent death; or
(d) 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.
(3) “Prolonged mental harm” is a harm of some sustained duration, though not necessarily permanent in nature, such as a clinically identifiable mental disorder.
(4) Element (b)(4) of this offense does not require a particular formal relationship between the accused and the victim. Rather, it precludes prosecution for pain or suffering consequent to a lawful military attack.
d. Maximum punishment. Death, if the death of any person occurs as a result of the torture. Otherwise, confinement for life.
(12) CRUEL OR INHUMAN TREATMENT.
a. Text. “Any person subject to this chapter who subjects another person in their custody or under their physical control, regardless of nationality or physical location, to cruel or inhuman treatment that constitutes a grave breach of common Article 3 of the [1949] Geneva Conventions shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused wrongfully and unlawfully subjected another person or persons to cruel or inhuman treatment;
(2) The accused intended to subject another person or persons to cruel or inhuman treatment;
(3) The subjection of such person or persons to cruel or inhuman treatment was a grave breach of common Article 3 of the Geneva Conventions;
(4) The subjection of such cruel or inhuman treatment was not incidental to lawful sanctions;
(5) Such person or persons were in the custody or under the control of the accused at the time of the alleged offense; and
(6) The conduct took place in the context of and was associated with hostilities.
c. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.
d. Maximum punishment. Death, if the death of any person occurs as a result of the cruel or inhuman treatment. Otherwise, confinement for life.
(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.
a. Text. “Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including privileged belligerents, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused caused serious injury to the body or health of one or more persons;
(2) The accused intended to inflict such serious injury upon the person or persons;
(3) The injury was done with unlawful force or violence;
(4) The serious bodily injury inflicted by the accused was in violation of the law of war; and
(5) The conduct took place in the context of and was associated with hostilities.
c. Definition. … [T]he term “serious bodily injury” means bodily injury which involves—
(1) a substantial risk of death;
(2) extreme physical pain;
(3) protracted and obvious disfigurement; or
(4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
d. Comment. For purposes of offenses (13) [intentionally causing serious bodily injury], (15) [murder in violation of the law of war], (16) [destruction of property in violation of the law of war], and (27) [spying] in Part IV of this Manual (corresponding to offenses enumerated in paragraphs (13), (15), (16), and (27) of § 950t of title 10, United States Code), an accused may be convicted in a military commission for these offenses if the commission finds that the accused employed a means (e.g., poison gas) or method (e.g., perfidy) prohibited by the law of war; intentionally attacked a “protected person” or “protected property” under the law of war; or engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.
e. Maximum punishment. Death, if the death of any person occurs as a result of the serious bodily injury. Otherwise, 20 years confinement. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, §§ 5(11)–5(13), pp. IV-9–IV-11.
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region I (1945) established military commissions which had jurisdiction over offences such as torture and ill-treatment of prisoners of war or persons on the seas and ill-treatment of hostages or civilians of or in an occupied territory. 
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region I, 1945, Regulation 5.
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region II (1945) established military commissions which had jurisdiction over offences such as ill-treatment of the civilian population of or in occupied territory, prisoners of war or internees, or persons on the seas or elsewhere or improper treatment of hostages. 
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region II, 1945, Regulation 2(b).
In 1961, the US Congress adopted an act on foreign assistance (1961), as amended in 1974, to other nations in which it defined torture, cruel, inhuman or degrading treatment or punishment as “gross violations of internationally recognized human rights” that would call into question whether or not a country should receive military aid. 
United States, Foreign Assistance Act, 1961, as amended in 1974, Sections 116 and 502 B.
Under the US War Crimes Act (1996), violations of common Article 3 and grave breaches of the 1949 Geneva Conventions are war crimes. 
United States, War Crimes Act, 1996, Section 2441(c).
The US Intelligence Reform and Terrorism Prevention Act (2004) states in Title V—Border Protection, Immigration and Visa Matters; Subtitle E—Treatment of Aliens Who Commit Acts of Torture, Extrajudicial Killings or Other Atrocities Abroad:
§ 5501. Inadmissibility and Deportability of Aliens Who have Committed Acts of Torture or Extrajudicial Killings Abroad
(a) INADMISSIBILITY.—Section 212(a)(3)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(E)) is amended—
(1) in clause (ii), by striking “has engaged in conduct that is defined as genocide for purposes of the International Convention on the Prevention and Punishment of Genocide is inadmissible” and inserting “ordered, incited, assisted, or otherwise participated in conduct outside the United States that would, if committed in the United States or by a United States national, be genocide, as defined in section 1091(a) of title 18, United States Code, is inadmissible”;
(2) by adding at the end the following: ‘‘(iii) COMMISSION OF ACTS OF TORTURE OR EXTRAJUDICIAL KILLINGS.—Any alien who, outside the United States, has committed, ordered, incited, assisted, or otherwise participated in the commission of—
(I) any act of torture, as defined in section 2340 of title 18, United States Code; or
(II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note), is inadmissible.; and
(3) in the subparagraph heading, by striking “PARTICIPANTS IN NAZI PERSECUTION OR GENOCIDE” and inserting “PARTICIPANTS IN NAZI PERSECUTION, GENOCIDE, OR THE COMMISSION OF ANY ACT OF TORTURE OR EXTRAJUDICIAL KILLING”
(b) DEPORTABILITY.—Section 237(a)(4)(D) of such Act (8 U.S.C. 1227(a)(4)(D)) is amended—
(1) by striking “clause (i) or (ii)” and inserting “clause (i), (ii), or (iii)”; and
(2) in the subparagraph heading, by striking “ASSISTED IN NAZI PERSECUTION OR ENGAGED IN GENOCIDE” and inserting “PARTICIPATED IN NAZI PERSECUTION, GENOCIDE, OR THE COMMISSION OF ANY ACT OF TORTURE OR EXTRAJUDICIAL KILLING”. 
United States, Intelligence Reform and Terrorism Prevention Act, 2004, Public Law 108-458, 17 December 2004, Title V, Subtitle E, § 5501(a) and (b).
The US Detainee Treatment Act (2005) states:
Sec. 1003. Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government
(a) In General – No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. 
United States, Detainee Treatment Act, 2005, Title X of Public Law 109-148 (the 2006 Department of Defense Appropriations Act), 119 Stat 2680, 30 December 2005, § 1003(a).
In July 2006, the US Deputy Secretary of Defense issued a memorandum to senior military and civilian personnel in the Department of Defense (DoD) on the subject of common Article 3 of the 1949 Geneva Conventions and its application to the treatment of detainees:
The Supreme Court Hamdan v. Rumsfeld, 548 US 557, 29 June 2006] has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.
It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive [President George W. Bush, Memorandum, Humane Treatment of Al Qaeda and Taliban Detainees, 7 February 2002] that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3. 
United States, Department of Defense, Deputy Secretary of Defense, Gordon England, Memorandum, Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense, 7 July 2006.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(11) TORTURE.—
“(A) OFFENSE.—Any person subject to this chapter who commits an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) SEVERE MENTAL PAIN OR SUFFERING DEFINED.— In this section, the term “severe mental pain or suffering” has the meaning given that term in section 2340(2) of title 18.
“(12) CRUEL OR INHUMAN TREATMENT.—
“(A) OFFENSE.—Any person subject to this chapter who commits an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) DEFINITIONS.—In this paragraph:
(i) The term “serious physical pain or suffering” means bodily injury that involves—
(I) a substantial risk of death;
(II) extreme physical pain;
(III) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(IV) significant loss or impairment of the function of a bodily member, organ, or mental faculty.
(ii) The term “severe mental pain or suffering” has the meaning given that term in section 2340(2) of title 18.
(iii) The term “serious mental pain or suffering” has the meaning given the term “severe mental pain or suffering” in section 2340(2) of title 18, except that—
(I) the term “serious” shall replace the term “severe” where it appears; and
(II) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears.
“(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—
“(A) OFFENSE.—Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) SERIOUS BODILY INJURY DEFINED.—In this paragraph, the term “serious bodily injury” means bodily injury which involves—
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2626–2627, § 950v(b)(11)–(13).
The Military Commissions Act further provides:
Sec. 6. Implementation of Treaty Obligations
“ …
“(b) REVISION OF WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE.—
“(1) IN GENERAL.—Section 2441 of title 18, United States Code, is amended—
“ …
“(B) by adding at the end the following new subsection:
“(d) COMMON ARTICLE 3 VIOLATIONS.—
“(1) PROHIBED CONDUCT.—In subsection (c)(3), the term ‘grave breach of common Article 3’ means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
“(A) TORTURE.—The act of a person who commits, or conspires or attempts to commit, an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
“(B) CRUEL OR INHUMAN TREATMENT.—The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
“ …
“(F) INTENTIONALLY CAUSING BODILY INJURY.—The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2633 and 2634, Sec. 6(b)(1)(B)(d)(1)(A), (B) and (F).
In July 2007, and in accordance with section 6(a)(3) of the Military Commissions Act (2006), the US President George W. Bush issued an Executive Order which stated that a “Program of Detention and Interrogation Operated by the Central Intelligence Agency” complied with US obligations under common Article 3 of the 1949 Geneva Conventions. The Executive Order stated in part:
Sec. 2. Definitions. As used in this order:
(c) “Cruel, inhuman, or degrading treatment or punishment” means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3.
(a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(A) torture, as defined in section 2340 of title 18, United States Code;
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;
(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 148 and section 1403 of Public Law 109 163);
(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or
(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual. 
United States, Executive Order 13440, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, 20 July 2007.
In 2009, the US President issued Executive Order 13491, Ensuring Lawful Interrogations, which stated:
By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the [1949] Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:
Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order.
Sec. 2. Definitions. As used in this order:
(f) … “cruel treatment,” “torture,” “outrages upon personal dignity,” and “humiliating and degrading treatment” refer to, and have the same meaning as, those same terms in Common Article 3 [to the 1949 Geneva Conventions].
Sec. 3. Standards and Practices for Interrogation of Individuals in the Custody or Control of the United States in Armed Conflicts.
(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340–2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.
(b) Interrogation Techniques and Interrogation-Related Treatment. Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2–22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other 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.
(c) Interpretations of Common Article 3 and the Army Field Manual.
From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2–22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation –including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2–22.3, and its predecessor document, Army Field Manual 34–52 – issued by the Department of Justice between September 11, 2001, and January 20, 2009. 
United States, Executive Order 13491, Ensuring Lawful Interrogations, 2009, Sections 1, 2(f) and 3.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(11) TORTURE.—
“(A) OFFENSE.—Any person subject to this chapter who commits an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) SEVERE MENTAL PAIN OR SUFFERING DEFINED.—In this paragraph, the term “severe mental pain or suffering” has the meaning given that term in section 2340(2) of title 18.
“(12) CRUEL OR INHUMAN TREATMENT.—Any person subject to this chapter who subjects another person in their custody or under their physical control, regardless of nationality or physical location, to cruel or inhuman treatment that constitutes a grave breach of common Article 3 of the [1949] Geneva Conventions shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.
“(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—
“(A) OFFENSE.—Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including privileged belligerents, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) SERIOUS BODILY INJURY DEFINED.—In this paragraph, the term “serious bodily injury” means bodily injury which involves—
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. 
United States, Military Commissions Act, 2009, § 950t(11)–(13).
In its judgment in the List case (The Hostages Trial) in 1948, the US Military Tribunal at Nuremberg found the accused, former high-ranking German army officers, guilty of having tortured civilians as a form of retaliation for attacks by non-combatants. 
United States, Military Tribunal at Nuremberg, List case (The Hostages Trial), Judgment, 19 February 1948.
In the Filartiga case in 1984, a civil lawsuit filed in a US court against an official from Paraguay who had allegedly tortured the applicant – a national of Paraguay – in Paraguay, the US Government, acting as amicus curiae, submitted that the practice of official torture amounted to a violation of customary international law. 
United States, District Court of the Eastern District of New York, Filartiga case, Judgment, 10 January 1984.
In 2002, in the Mehinovic case, a civil lawsuit filed on behalf of four Bosnian Muslims who were tortured by a Bosnian-Serb soldier in Bosnia-Herzegovina in 1992, the US District Court Northern District of Georgia found the defendant liable for: torture; cruel, inhuman and degrading treatment; arbitrary detention; war crimes; crimes against humanity; and genocide. The Court awarded the plaintiffs US$ 140 million in damages. In its judgment, the Court stated:
Torture
Plaintiffs have shown that defendant Vuckovic acted with the intent required to establish that his acts constituted torture. Vuckovic’s anti-Muslim statements, and the entire context in which the beatings occurred, evidence the fact that the defendant beat and threatened plaintiffs for discriminatory reasons. Plaintiffs have also established that the acts of defendant Vuckovic were carried out with the intent of intimidating or terrorizing them because of their ethnicity, pursuant to the Bosnian Serb government’s campaign of ethnic cleansing.
Finally, the beatings carried out by Vuckovic and his accomplices were clearly perpetrated, instigated, and acquiesced in, by persons acting in an official capacity as part of the police or military forces of Republika Srpska. Vuckovic himself was a soldier in a unit tied to and supported by the Bosnian Serb and Serbian governments. He often carried out beatings with other soldiers. The beatings inflicted by Vuckovic all were committed in official or designated detention facilities, guarded by Bosnian Serb or Serbian police or soldiers. Without their permission or acquiescence, and that of those in the political and military hierarchy above him, Vuckovic could not have perpetrated abuses against plaintiffs. Plaintiff Subasic described frequently hearing guards scheduling beatings in advance. The fact that the beatings carried out by Vuckovic and others were routine, daily occurrences at these facilities also indicates that the beatings were, in fact, ordered, authorized, and perpetrated as part and parcel of official policy.
For these reasons, defendant Vuckovic is liable for torture under the ATCA [Alien Tort Claims Act, 28 U.S.C. § 1350 (1988)].
The TVPA [Torture Victim Protection Act of 1991] also provides a cause of action for official torture. The TVPA provides in relevant part:
An individual who, under actual or apparent authority, or color of law, of any foreign nation—(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual.
TVPA § 2(a).
As set out in the section above, defendant Vuckovic clearly committed abuses against plaintiffs under official authority. In light of the de facto governmental authority of the Republika Srpska, under which Vuckovic served as a soldier, and the control exerted over it by the Serbian government, Vuckovic may be considered also to have been acting under the authority of a “foreign nation.” Kadic v. Karadzic, 70 F.3d at 244-46 Additionally, as the definition of torture under the TVPA closely follows the definition of torture under the Torture Convention in all relevant respects, for the same reasons as above, Vuckovic’s actions also constitute torture under the TVPA. Accordingly, defendant Vuckovic also is liable to plaintiffs for torture under the TVPA.
Cruel, Inhuman or Degrading Treatment
Cruel, inhuman, or degrading treatment is a discrete and well-recognized violation of customary international law and is, therefore, a separate ground for liability under the ATCA. Abebe-Jira, 72 F.3d at 847; Estate of Cabello v. Fernandez-Larios, 157 F.Supp.2d 1345, 1362 (S.D.Fla.2001); Xuncax, 886 F.Supp. at 187. In particular, the Eleventh Circuit and other courts have recognized cruel, inhuman, or degrading treatment as a violation of customary international law, at least to the extent that the conduct also would be prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the U.S. Constitution. Abebe-Jira, 72 F.3d at 847; Cabello, 157 F.Supp.2d at 1362; Paul, 901 F.Supp. at 330; Xuncax, 886 F.Supp. at 187-89. These courts, accordingly, have allowed defendants to be held liable for the infliction of cruel, inhuman or degrading treatment. International instruments and decisions also recognize cruel, inhuman and degrading treatment as a distinct violation of international law.
War Crimes
Acts of torture, inhuman treatment, and arbitrary detention of civilians committed in the course of hostilities violate the international law of war as codified in the Geneva Conventions and, hence, are a proper basis for liability under the ATCA. Kadic v. Karadzic, 70 F.3d at 24243. Such acts, whether committed in an international armed conflict or a non-international armed conflict, violate customary international law and are enforceable under the ATCA. 
United States, District Court Northern District of Georgia, Mehinovic case, Judgment, 29 April 2002.
In 2007, in the Charles Emmanuel case, in which the defendant was indicted on conspiracy to commit and the commission of acts of torture in the country of Liberia, the US District Court for the Southern District of Florida denied the defendant’s motion to dismiss the indictment based on the unconstitutionality of the US Torture Statute. The Court stated:
The prohibition against official torture has attained the status of a jus cogens norm, not merely the status of customary international law. In reaching the not surprising conclusion that prohibition of official torture was a jus cogens norm, the Ninth Circuit [Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992) explained:
[W]e conclude that the right to be free from official torture is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens. The crack of the whip, the clamp of the thumb screw, the crush of the iron maiden, and, in these more efficient modern times, the shock of the electric cattle prod are forms of torture that the international order will not tolerate. To subject a person to such horrors is to commit one of the most egregious violations of the personal security and dignity of a human being. That states engage in official torture cannot be doubted, but all states believe it is wrong, all that engage in torture deny it, and no state claims a sovereign right to torture its own citizens.
It is beyond peradventure that torture and acts that constitute cruel, inhuman or degrading punishment, acts prohibited by jus cogens, are similarly abhorred by the law of nations … Certainly the numerous international treaties and agreements, and several domestic statutes that contain varying proscriptions against torture, addressing both civil and criminal reparation, demonstrate the law of nations’ repudiation of torture.
The Torture Statute contains specific intent as one of its elements, as it defines “torture” to be “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering …” The Indictment informs Defendant that he and his co-conspirators, acting under color of law and with the specific intent to inflict severe physical pain and suffering, burned the alleged victim’s flesh with a hot iron, forced the alleged victim at gunpoint to hold scalding water in his hands, burned parts of the victim’s body with scalding water, repeatedly shocked the genitalia and other parts of the body with an electrical device, and rubbed salt into the alleged victim’s wounds. Such allegations, coupled with the statutory language contained in the Torture Statute, certainly advise the ordinary person of prohibited conduct with sufficient definiteness. The Torture Statute, enacted to fulfill the United States’ treaty obligations with most of the countries of the world, certainly put the Defendant, a person born in the United States, on notice of conduct prohibited not only in this country, but in much of the civilized world. 
United States, District Court for the Southern District of Florida, Charles Emmanuel case, Judgment, 5 July 2007.
In 2008, in the Travis case, the US Court of Appeals for the Armed Forces affirmed the judgment of a lower court that had found the accused, a former Marine guard, who had been a supervisor at a detention facility in Iraq, guilty of various crimes including wilful dereliction of duty, conspiracy to commit cruelty and maltreatment of an Iraqi detainee. In doing so, the Court stated: “The offenses in this case are serious. Travis’s conduct reflects disdain for the human dignity of detainees under American control and custody, as well as an abandonment of his supervisory role as a non-commissioned officer.” 
United States, , US Court of Appeals for the Armed Forces, Travis case, Judgment, 15 May 2008, p.3.
In 2008, in the Harman case, in which the appellant appealed the finding of a military court that had convicted her of conspiracy to maltreat detainees, dereliction of duty by wilfully failing to protect detainees from abuse, and maltreatment of detainees – charges that had arisen from a series of incidents that had occurred at the US Baghdad Central Confinement Facility at Abu Ghraib, Baghdad, Iraq, in 2003 – the US Army Court of Criminal Appeals upheld the finding of the lower court and its sentence of rank reduction, forfeiture of pay and allowances, confinement for six months and a bad-conduct discharge. The Court of Appeals stated:
Charge III accuses appellant of cruelty and maltreatment in violation of Article 93. To obtain a conviction of this offense, the government must prove beyond a reasonable doubt: “(1) That a certain person was subject to the orders of the accused; and (2) That the accused was cruel toward, or oppressed, or maltreated that person.” MCM Manual for Courts-Martial, United States (2005 ed.)], Part IV, para. 17b. The MCM does not define cruelty, oppression, or maltreatment, other than to say that the offending conduct is “not necessarily physical” and that it “must be measured by an objective standard.” Id. at para. 17c(2).
Specification 1 of Charge III alleges that appellant “at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003 did maltreat several detainees, persons subject to her orders, by taking two or more photographs of the naked detainees in a pyramid of human bodies.” Specification 2 alleges that appellant “at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003, did maltreat a detainee, a person subject to her orders, by photographing another guard, Corporal [CG], with one arm cocked back as if he was going to hit the detainee in the neck or back.”
In the totality of the circumstances, we conclude that appellant’s actions described in Specifications 1 and 2 constitute maltreatment. Taking the photographs reasonably could have caused the detainees mental suffering. No reasonable detainee would want to be abused and, more importantly here, would wish his abusers to record this pointless, humiliating conduct. The detainees, in addition, had no ability to leave or to object or to do anything but what they were told. Appellant abused her authority as a guard in photographing the detainees.
Specification 3 of Charge III alleges that appellant “at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 6 November 2003, did maltreat a detainee, a person subject to her orders, by placing wires on the detainee’s hands while he stood on a Meals Ready to Eat box with this (sic) head covered and then telling him if he fell off the box he would be electrocuted.”
[A]ppellant argues, consistent with her sworn statement, that she believed they were joking when they put the wires on the detainee and that she did not believe he suffered any harm. This argument also has no merit. … Any reasonable observer would conclude that the conduct was so abusive that it constitutes maltreatment in violation of Article 93 [of the Uniform Code of Military Justice].
Specification 4 of Charge III alleges that appellant “at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003 did maltreat a detainee, a person subject to her orders, by writing the word ‘rapeist [sic]’ on the detainee’s leg who was then made to pose naked with other detainees.” Appellant admitted in her sworn statement that she wrote the word on the detainee. But she contends that this act does not constitute maltreatment.
Appellant argues that it was not unusual to write words and figures on the bodies of detainees. Testimony established that the MPs at the prison sometimes used markers to write prisoners’ cell numbers on their arms. In at least one instance, the MPs also wrote the word “knife” on the hand of a detainee who had been caught with a knife. Appellant further argues that the detainee upon whom she wrote the word was in fact a suspected rapist. She points out that there is no evidence that this detainee knew what was written on him, objected to it, or suffered any harm from it.
We disagree. Again, under Carson [United States v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002)], it is the objective perspective of a reasonable person, rather than the subjective reaction of the victim, that determines whether maltreatment has occurred. From an objective perspective, appellant’s action constituted maltreatment. Staff Sergeant IF testified that guards did not write the names of crimes on detainees. No evidence showed that guards wrote on parts of the body observable only when the detainee was naked. Writing the word on the detainee could serve no purpose other than to humiliate him for the sake of amusement. Specialist JS confirmed this conclusion. He testified that during the incident, appellant was “kind of happy, like it was a joke.” For these reasons, we conclude that the evidence was legally and factually sufficient. 
United States, US Army Court of Criminal Appeals, Harman case, Judgment, 30 June 2008.
In 1987, the deputy legal adviser of the US Department of State affirmed:
We support the principle that [all persons who are in the power of a party to a conflict and who do not benefit from more favorable treatment under the 1949 Geneva Conventions] not be subjected to violence to life, health, or physical or mental well-being … The basic core of [the 1977 Additional] Protocol II is, of course, reflected in common article 3 of the 1949 [Geneva] Conventions and therefore is, and should be, a part of generally accepted customary law: This specifically includes its prohibitions [of] … degrading treatment. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American Journal of International Law and Policy, Vol. 2, 1987, pp. 427 and 430–431.
In 1991, in a diplomatic note to Iraq concerning operations in the Gulf War, the United States stated:
Iraqi prisoners of war will not be mistreated and will be provided humane and safe detention.
The Government of Iraq appears to have subjected [captured American and coalition military personnel] to unlawful treatment for propaganda purposes and coercion – both physical and mental – in order to secure information and statements from them. If these broadcasts are authentic, Iraq has committed serious violations of the Third Geneva Convention.
The Government of the United States protests the apparently unlawful coercion and misuse of prisoners of war for propaganda purposes, the failure to respect their honor and well-being, and the subjection of such individuals to public humiliation.
The mistreatment of prisoners of war is a war crime, and the inhumane treatment of prisoners of war is a grave breach of the Convention.
The Government of the United States again reminds the Government of Iraq that prisoners of war must at all times be humanely treated. 
United States, Department of State, Diplomatic Note to Iraq, Washington, 19 January 1991, annexed to Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, 21 January 1991, p. 4.
In 1991, in a diplomatic note to Iraq concerning operations in the Gulf War, the United States stated: “The Government of the United States reminds the Government of Iraq that Iraqi individuals who are guilty of … other war crimes such as the exposure of prisoners of war to mistreatment, coerced statements, public curiosity and insult, are personally liable.” 
United States, Department of State, Diplomatic Note to Iraq, Washington, 21 January 1991, annexed to Letter dated 22 January 1991 to the President of the UN Security Council, UN Doc. S/22130, 22 January 1991, p. 4.
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
All US POWs [prisoners of war] suffered physical abuse at the hands of their Iraqi captors, in violation of Articles 13, 14 and 17 [of the 1949 Geneva Convention III]. Most POWs were tortured, a grave breach, in violation of Article 130 [of the 1949 Geneva Convention III].
The report further dealt with specific crimes, including “inhumane treatment of Kuwaiti and third country civilians … in violation of Articles 27, 32 and 147 [of the 1949 Geneva Convention IV]”, and mentioned “torture and other inhumane treatment of POWs, in violation of Articles 13, 17, 22, 25, 26, 27, and 130 [of the 1949 Geneva Convention III]”. 
United States, Department of Defense, Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, pp. 630, 632, 634 and 635.
In 1992, in reports submitted pursuant to paragraph 5 of UN Security Council Resolution 771 (1992) on grave breaches of the 1949 Geneva Convention IV committed in the former Yugoslavia, the United States described acts of “torture of prisoners” perpetrated by the parties to the conflict. 
United States, Former Yugoslavia: Grave Breaches of the Fourth Geneva Convention, annexed to Letter dated 22 September 1992 to the UN Secretary-General, UN Doc. S/24583, 23 September 1992, pp. 6–7; Former Yugoslavia: Grave Breaches of the Fourth Geneva Convention (Second Submission), annexed to Letter dated 22 October 1992 to the UN Secretary-General, UN Doc. S/24705, 23 October 1992, p. 10; Former Yugoslavia: Grave Breaches of the Fourth Geneva Convention (Third Submission), annexed to Letter dated 5 November 1992 to the UN Secretary-General, UN Doc. S/24791, 10 November 1992, pp. 11–16; Former Yugoslavia: Grave Breaches of the Fourth Geneva Convention (Fourth Submission), annexed to Letter dated 7 December 1992 to the UN Secretary-General, UN Doc. S/24918, 8 December 1992, pp. 12–13.
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” 
Report on US Practice, 1997, Chapter 5.3.
According to the Report on US Practice, it is the opinio juris of the United States that military necessity will not justify derogation of the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment. 
Report on US Practice, 1997, Chapter 5.3 and 5.7.
In March 2003, the US Deputy Assistant Attorney General, Office of Legal Council, Department of Justice, wrote a memorandum to William J. Haynes II, General Counsel of the Department of Defense, which provided a legal analysis governing the military interrogation of alien “unlawful combatants” held outside the United States. The memorandum stated in part:
Two constitutional provisions that might be thought to extend to interrogations – the Fifth and Eighth Amendments – do not apply here. The Fifth Amendment provides in relevant part that “[n]o person … shall be deprived of life, liberty, or property, without due process of law.” … The Eighth Amendment bars the “inflict[ion]” of “cruel and unusual punishments.” … These provisions, however, do not regulate the interrogation of alien enemy combatants outside the United States during an international armed conflict. This is clear as a matter of the text and purpose of the Amendments, as they have been interpreted by the federal courts.
The Eighth Amendment, however, applies solely to those persons upon whom criminal sanctions have been imposed. As the Supreme Court has explained, the Cruel and Unusual Punishments Clause “was designed to protect those convicted of crimes. Ingraham v. Wright, 430 U.S. 651, 664 (1977) … The Eighth Amendment therefore cannot extend to the detention of wartime detainees, who have been captured pursuant to the President’s power as Commander in Chief.
The detention of enemy combatants can in no sense be deemed “punishment” for purposes of the Eighth Amendment. Unlike imprisonment pursuant to a criminal sanction, the detention of enemy combatants involves no sentence judicially imposed or legislatively required and those detained will be released at the end of the conflict. Indeed, it has long been established that “[c]aptivity [in wartime] is neither a punishment nor an act of vengeance, but merely a temporary detention which is devoid of all penal character.” William Winthrop, Military Law and Precedents 788 (2d ed. 1920) (quoting British War Office, Manual of Military Law (1882)).
[T]he President’s power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander in Chief. Any construction of criminal laws that regulated the President’s authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President’s constitutional authority. Moreover, we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maiming, interstate stalking, and torture pursuant to any express authority that would allow it to infringe on the President’s constitutional control over the operation of the Armed Forces in wartime. In our view, Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. In fact, the general applicability of these statutes belies any argument that these statutes apply to persons under the direction of the President in the conduct of war.
[T]o establish the offense of torture, the prosecution must show that: (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) that the act inflicted severe physical or mental pain or suffering. See also S. Exec. Rep. No. 101-30, at 6 (1990) (“For an act to be ‘torture’: it must … cause severe pain and suffering, and be intended to cause severe pain and suffering.”)
Section 2340’s [US Code Title 18 Section 2340 – Torture] definition of torture must be read as a sum of these component parts. See Argentine Rep. v: Amerada Hess Shipping Corp., 488 U.S. 428, 434–35 (1989) (reading two provisions together to determine statute’s meaning); Bethesda Hosp. Ass n v. Bowen, 485 U.S. 399, 405 (1988) (looking to “the language and design of the statute as a whole” to ascertain a statute’s meaning). Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another, but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result. If that pain or suffering is psychological, that suffering must result from one of the acts set forth in the statute. In addition, these acts must cause long-term mental harm. Indeed, this view of the criminal act of torture is consistent with the term’s common meaning. Torture is generally understood to involve “intense pain” or “excruciating pain” or put another way, “extreme anguish of body or mind.” Blacks Law Dictionary 1498 (7th Ed. 1999); Random House Websters Unabridged Dictionary 1999 (1999); Websters New International Dictionary 2674 (2d ed. 1935). In short, reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts.
[W]e [now] examine CAT [1984 Convention against Torture] [and] the applicability of customary international law to the conduct of interrogations. At the outset, it is important to emphasize that the President can suspend or terminate any treaty or provision of a treaty. See generally Memorandum for John Bellinger, III, Senior Associate Counsel to the President and Legal Adviser to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001); Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General. Re: Authority of the President to Denounce the ABM Treaty (Dec. 14, 2001). Any presidential decision to order interrogation methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions. Moreover, as U.S. declarations during CAT’s ratification make clear, the Convention is non-self-executing and therefore places no legal obligations under domestic law on the Executive Branch, nor can it create any cause of action in federal court. Letter for Alberto R. Gonzales, Counsel to the President from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, 1 (July 22, 2002). Similarly, customary international law lacks domestic legal effect and in any event can be overridden by the President at his discretion..
CAT also distinguishes between torture and other acts of cruel, inhuman, or degrading treatment or punishment. Article 16 of CAT requires state parties to “undertake to prevent … other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1.” (Emphasis added). CAT thus establishes a category of acts that states should endeavor to prevent but need not criminalize. CAT reserves for torture alone the criminal penalties and the stigma attached to those penalties. In so doing, CAT makes clear that torture is at the farthest end of impermissible actions, and that it is distinct and separate from the lower level of “cruel, inhuman, or degrading treatment or punishment.”
The Senate consented to the Convention during the first Bush administration. The Bush administration agreed with the Reagan administration’s cruel, inhuman, and degrading treatment or punishment understanding and upgraded it from an understanding to a reservation. The Senate consented to the reservation in consenting to CAT. Although using less vigorous rhetoric, the Bush administration joined the Reagan administration in interpreting torture as reaching only extreme acts. To ensure that the Convention’s reach remained limited, the Bush administration submitted the following understanding:
The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental pain caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
S. Exec. Rep. No.1 01-30, at 36. This understanding accomplished two things. First, it ensured that the term “intentionally” would be understood as requiring specific intent. Second, it defined the amorphous concept of mental pain or suffering. In so doing, this understanding ensured that mental torture would rise to a severity seen in the context of physical torture. The Senate ratified CAT with this understanding, and Congress codified it in 18 U.S.C. § 2340.
We conclude that the Bush administration’s understanding created a valid and effective reservation to CAT. Even if it were otherwise, there is no international court that could take issue with the United States’ interpretation of the Convention. In an additional reservation, the United States refused to accept the jurisdiction of the ICJ to adjudicate cases under the Convention. Although CAT creates a committee to monitor compliance, it can only conduct studies and has no enforcement powers.
Some may argue that permitting the assertion of justification defenses under domestic law, such as necessity or self-defense, would place the United States in violation of its international obligations. Such an argument would point to article 2(2) of CAT, which provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” We do not believe, however that a treaty may eliminate the United States’ right, under international law, to use necessary measures for its self-defense. The right of national self-defense is well established under international law. …
Thus, if interrogation methods were inconsistent with the United States’ obligations under CAT, but were justified by necessity or self-defense, we would view these actions still as consistent ultimately with international law. Although these actions might violate CAT, they would still be in service of the more fundamental principle of self-defense that cannot be extinguished by CAT or any other treaty. Further, if the President ordered that conduct, such an order would amount to a suspension or termination of the Convention. In so doing, the President’s order and the resulting conduct would not be a violation of international law because the United States would no longer be bound by the treaty.
[With regard to customary international law] even if there is a uniform and universal state practice concerning torture sufficient to raise it to the level of customary international law, we believe it analytically incoherent to establish a norm of customary international law that differs from a recent, broadly accepted, multilateral agreement on the same exact issue. CAT provides substantive content to the prohibition on torture and cruel, inhuman, or degrading treatment or punishment. CAT is a multilateral agreement, ultimately joined by 132 state parties, to establish a definition of torture. In this context, we cannot see evidence of customary international law that could be a more compelling or conclusive definition of state practice.
Thus, it is CAT’s substantive obligations as defined by our reservations, understandings, and declarations that govern the United States’ international law obligations on torture. CAT not only governs U.S. obligations with respect to torture but it also does so with respect to cruel, inhuman, or degrading treatment or punishment. Thus, even if customary international law prohibits cruel, inhuman, or degrading treatment or punishment, CAT and the reservations, understandings, and declarations that the United States has taken with respect to the scope of that term’s reach are definitive of United States’ obligations. Customary international law cannot override carefully defined U.S. obligations through multilateral treaties on the exact same subject.
Finally, even if customary international law on torture created a different standard than that which the Torture Convention creates, and even if such a standard were somehow considered binding under international law, it could not bind the President as a matter of domestic law. We have previously concluded that customary international law is not federal law. See Treaties and Laws Memorandum at 32–33. This has been the longstanding view of this Office and of the Department of Justice. See Authority of the Federal Bureau of Investigation to Override International in Extraterritorial Law Enforcement Activities, 13 Op. a.L.c. at 168–171. The constitutional text provides no support for the notion that customary international law’ is part of federal law. See id. at 33. Indeed, because customary international has not undergone the processes the Constitution requires for “the enactment of constitutional amendments, statutes, or treaties,” it is not law and “can have no legal effect on the government or on American citizens.” – Treaties and Laws Memorandum at 33–34. As we explained, to elevate customary international law to federal law would “raise deep structural problems” by “import[ing] a body of law to restrain the three branches of American government that never underwent any approval by our democratic political process.” Id. at 36. Further, treating customary international law as federal law would directly invade “the President’s discretion as the Commander in Chief and Chief Executive to determine how best to conduct the Nation’s military affairs.” Id. at 36. Thus, we concluded that “customary international law does not bind the President or the U.S. Armed Forces in their decisions concerning the detention conditions of al Qaeda and Taliban prisoners.” Id. at 37. That conclusion is no less true there than here. Customary international law cannot interfere, as a matter of domestic law, with the President and the U.S. Armed Forces as they carry out their constitutional duties to successfully prosecute war against an enemy that has conducted a direct attack on the United States.
[W]e conclude that the Fifth and Eighth Amendments do not extend to alien enemy combatants held abroad. Moreover, we conclude that different canons of construction indicate that generally applicable criminal laws do not apply to the military interrogation of alien unlawful combatants held abroad. Were it otherwise, the application of these statutes to the interrogation of enemy combatants undertaken by military personnel would conflict with the President’s Commander-in-Chief power.
We further conclude that CAT defines U.S. international law obligations with respect to torture and other cruel, inhuman, or degrading treatment or punishment. The standard of conduct regarding torture is the same as that which is found in the torture statute, 18 U.S.C. §§ 234D 2340A. Moreover, the scope of U.S. obligations under CAT regarding cruel, inhuman, or degrading treatment or punishment is limited to conduct prohibited by the Eighth, Fifth and Fourteenth Amendments. Customary international law does not supply any additional standards. 
United States, Department of Justice, Office of Legal Counsel, John C. Yoo, Deputy Assistant Attorney General, Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Military Interrogation of Alien Unlawful Enemy Combatants Held Outside the United States, 14 March 2003.
[emphasis in original]
On 8 May 2004, during his weekly radio address, the US President spoke of recent public revelations regarding the abuse of detainees at Abu Ghraib prison in Iraq by US Army personnel:
In recent days, America and the world have learned of shocking conduct in Iraqi prisons by a small number of American servicemen and women. These individuals had been given the responsibility of overseeing Iraqis in American custody, and doing so in a decent and humane manner, consistent with U.S. law and the Geneva conventions. Instead we have seen shameful images of prisoners being subjected to abuse and humiliation. Such practices do not reflect our values. They are a stain on our country’s honor and reputation.
Shortly after reports of abuse became known to our military, an investigation was launched. Today several formal investigations, led by senior military officials, are underway. Some soldiers have already been charged with crimes. We will learn all the facts and determine the full extent of these abuses. Those involved will be identified; they will answer for their actions. All prison operations in Iraq will be thoroughly reviewed to make certain that similar disgraceful incidents are never repeated. 
United States, President George W. Bush, transcript of a weekly radio address which discussed the abuse of detainees at Abu Ghraib prison, Iraq, by US Army personnel, 8 May 2004.
In June 2004, the US President issued a statement on the occasion of the UN International Day in Support of Victims of Torture:
Today, on United Nations International Day in Support of Victims of Torture, the United States reaffirms its commitment to the worldwide elimination of torture. The non-negotiable demands of human dignity must be protected without reference to race, gender, creed, or nationality. Freedom from torture is an inalienable human right, and we are committed to building a world where human rights are respected and protected by the rule of law.
To help fulfill this commitment, the United States has joined 135 other nations in ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction. American personnel are required to comply with all U.S. laws, including the United States Constitution, Federal statutes, including statutes prohibiting torture, and our treaty obligations with respect to the treatment of all detainees.
The United States also remains steadfastly committed to upholding the Geneva Conventions, which have been the bedrock of protection in armed conflict for more than 50 years. These Conventions provide important protections designed to reduce human suffering in armed conflict. We expect other nations to treat our service members and civilians in accordance with the Geneva Conventions. Our Armed Forces are committed to complying with them and to holding accountable those in our military who do not.
The American people were horrified by the abuse of detainees at Abu Ghraib prison in Iraq. These acts were wrong. They were inconsistent with our policies and our values as a Nation. I have directed a full accounting for the abuse of the Abu Ghraib detainees, and investigations are underway to review detention operations in Iraq and elsewhere.
It is often American men and women in uniform who fight for the freedom of others from tyrannical regimes that routinely use torture to oppress their citizens. From Nazi Germany to Bosnia, and Afghanistan to Iraq, American service members have fought to remove brutal leaders who torture and massacre. It is the American people and their contributions that have helped to rebuild these traumatized nations to give former victims hope.
A little over a year ago, American service members and our coalition partners freed the Iraqi people from a dictatorship that routinely tortured and executed innocent citizens because of what they believed in or what ethnic or religious group they came from. In torture chambers, innocent Iraqis were brutalized and the bodies of the dead left in mass graves. Throughout the past year, Americans have assisted the Iraqi people in establishing institutions to ensure accountability so that such acts do not occur again and to help victims recover.
Despite international efforts to protect human rights around the world, repressive regimes continue to victimize people through torture. The victims often feel forgotten, but we will not forget them. America supports accountability and treatment centers for torture victims. We contribute to the U.N. Fund for the Victims of Torture and support the work of non-governmental organizations to end torture and assist the victims. We also provide protection, counseling, and where necessary and possible, relocation in the United States. We stand with the victims to seek their healing and recovery, and urge all nations to join us in these efforts to restore the dignity of every person affected by torture.
These times of increasing terror challenge the world. Terror organizations challenge our comfort and our principles. The United States will continue to take seriously the need to question terrorists who have information that can save lives. But we will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere. 
United States, President George W. Bush, President's Statement on the U.N. International Day in Support of Victims of Torture, 26 June 2004.
In December 2004, the US Acting Assistant Attorney General, Office of Legal Counsel, wrote a memorandum to the Deputy Attorney General which provided interpretation of the federal criminal prohibition against torture, superseding (and indicating where it disagreed with) the 1 August 2002 memorandum from the Office of Legal Counsel (“Standards of Conduct for Interrogation under 18 U.S.C. sections 2340–2340A”), which had been withdrawn in June 2004. The memorandum stated in part:
Torture is abhorrent both to American law and values and to international norms. This universal repudiation of torture is reflected in our criminal law, for example, 18 U.S.C. §§ 2340–2340A; international agreements, exemplified by the United Nations Convention Against Torture (the “CAT”); customary international law; centuries of Anglo-American law; and the longstanding policy of the United States, repeatedly and recently reaffirmed by the President.
This Office interpreted the federal criminal prohibition against torture – codified at 18 U.S.C. §§ 2340–2340A – in Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340 2340A (Aug. 1, 2002) (“August 2002 Memorandum”). The August 2002 Memorandum also addressed a number of issues beyond interpretation of those statutory provisions, including the President’s Commander-in-Chief power, and various defenses that might be asserted to avoid potential liability under sections 2340–2340A. See id. at 31–46.
Questions have since been raised, both by this Office and by others, about the appropriateness and relevance of the non-statutory discussion in the August 2002 Memorandum, and also about various aspects of the statutory analysis, in particular the statement that “severe” pain under the statute was limited to pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Id. at I. We decided to withdraw the August 2002 Memorandum, a decision you announced in June 2004. At that time, you directed this Office to prepare a replacement memorandum. Because of the importance of – and public interest in – these issues, you asked that this memorandum be prepared in a form that could be released to the public so that interested parties could understand our analysis of the statute.
This memorandum supersedes the August 2002 Memorandum in its entirety. Because the discussion in that memorandum concerning the President’s Commander-in-Chief power and the potential defenses to liability was – and remains – unnecessary, it has been eliminated from the analysis that follows. Consideration of the bounds of any such authority would be inconsistent with the President’s unequivocal directive that United States personnel not engage in torture.
We have also modified in some important respects our analysis of the legal standards applicable under 18 U.S.C. §§ 2340–2340A. For example, we disagree with statements in the August 2002 Memorandum limiting “severe” pain under the statute to “excruciating and agonizing” pain, id. at 19, or to pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” id. at 1. There are additional areas where we disagree with or modify the analysis in the August 2002 Memorandum, as identified in the discussion below.
I
In interpreting these provisions [applicable under 18 U.S.C. §§ 2340–2340A], we note that Congress may have adopted a statutory definition of “torture” that differs from certain colloquial uses of the term. Cf. Cadet v. Bulger, 311 F.3d 1173, 1194 (11th Cir. 2004) (“[I]n other contexts and under other definitions [the conditions] might be described as torturous. The fact remains, however, that the only relevant definition of ‘torture’ is the definition contained in [the] CAT …”). We must, of course, give effect to the statute as enacted by Congress.”
Congress enacted sections 2340–2340A to carry out the United States’ obligations under the CAT. See H.R. Conf. Rep. No. 103-482, at 229 (1994). The CAT, among other things, obligates state parties to take effective measures to prevent acts of torture in any territory under their jurisdiction, and requires the United States, as a state party, to ensure that acts of torture, along with attempts and complicity to commit such acts, are crimes under U.S. law. See CAT arts. 2, 4–5. Sections 2340–2340A satisfy that requirement with respect to acts committed outside the United States. Conduct constituting “torture” occurring within the United States was – and remains – prohibited by various other federal and state criminal statutes that we do not discuss here.
The Senate attached the following understanding to its resolution of advice and consent to ratification of the CAT:
The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
S. Exec. Rep. No. 101-30, at 36 (1990). This understanding was deposited with the U.S. instrument of ratification, see 1830 U.N.T.S. 320 (Oct. 21, 1994), and thus defines the scope of the United States’ obligations under the treaty. See Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. O.L.C. 28, 32–33 (1987). The criminal prohibition against torture that Congress codified in 18 U.S.C. §§ 2340–2340A generally tracks the prohibition in the CAT, subject to the U.S. understanding.
II.
Under the language adopted by Congress in sections 2340–2340A, to constitute “torture,” the conduct in question must have been “specifically intended to inflict severe physical or mental pain or suffering.” In the discussion that follows, we will separately consider each of the principal components of this key phrase: (1) the meaning of “severe”; (2) the meaning of “severe physical pain or suffering”; (3) the meaning of “severe mental pain or suffering”; and (4) the meaning of “specifically intended.”
(I) The meaning of severe
Because the statute does not define “severe,” “we construe [the] term in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U.S. 471,476 (1994). The common understanding of the term “torture” and the context in which the statute was enacted also inform our analysis.
Dictionaries define “severe” (often conjoined with “pain”) to mean “extremely violent or intense: severe pain. American Heritage Dictionary of the English Language 1653 (3d ed. 1992); see also XV Oxford English Dictionary 101 (2d ed. 1989) (“Of pain, suffering, loss, or the like: Grievous, extreme” and “Of circumstances … Hard to sustain or endure”).
Although Congress defined “torture” under sections 2340–2340A to require conduct specifically intended to cause “severe” pain or suffering, we do not believe Congress intended to reach only conduct involving “excruciating and agonizing” pain or suffering. Although there is some support for this formulation in the ratification history of the CAT, a proposed express understanding to that effect was “criticized for setting too high a threshold of pain,” S. Exec. Rep. No. 101-30 at 9, and was not adopted. We are not aware of any evidence suggesting that the standard was raised in the statute and we do not believe that it was.
Drawing distinctions among gradations of pain (for example, severe, mild, moderate, substantial, extreme, intense, excruciating, or agonizing) is obviously not an easy task, especially given the lack of any precise, objective scientific criteria for measuring pain. We are, however, aided in this task by judicial interpretations of the Torture Victims Protection Act (“TVP A”), 28 U.S.C. § 1350 note (2000). The TVPA, also enacted to implement the CAT, provides a civil remedy to victims of torture. The TVPA defines “torture” to include:
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. …
28 U.S.C. § 1350 note, § 3(b)(l) (emphases added). The emphasized language is similar to section 2340’s “severe physical or mental pain or suffering.”
(2) The meaning of severe physical pain or suffering
The statute provides a specific definition of “severe mental pain or suffering,” see 18 U.S.C. § 2340(2), but does not define the term “severe physical pain or suffering.” Although we think the meaning of “severe physical pain” is relatively straightforward, the question remains whether Congress intended to prohibit a category of “severe physical suffering” distinct from “severe physical pain.” We conclude that under some circumstances “severe physical suffering” may constitute torture even if it does not involve “severe physical pain.” Accordingly, to the extent that the August 2002 Memorandum suggested that “severe physical suffering” under the statute could in no circumstances be distinct from “severe physical pain,” id. at 6 n.3, we do not agree.
We begin with the statutory language. The inclusion of the words “or suffering” in the phrase “severe physical pain or suffering” suggests that the statutory category of physical torture is not limited to “severe physical pain.” This is especially so in light of the general principle against interpreting a statute in such a manner as to render words surplusage. See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001).
Exactly what is included in the concept of “severe physical suffering,” however, is difficult to ascertain. We interpret the phrase in a statutory context where Congress expressly distinguished “physical pain or suffering” from “mental pain or suffering.” Consequently, a separate category of “physical suffering” must include something other than any type of “mental pain or suffering.” Moreover, given that Congress precisely defined “mental pain or suffering” in the statute, it is unlikely to have intended to undermine that careful definition by including a broad range of mental sensations in a “physical suffering” component of “physical pain or suffering.” Consequently, “physical suffering” must be limited to adverse “physical” rather than adverse “mental” sensations.
(3) The meaning of severe mental pain or suffering
Section 2340 defines “severe mental pain or suffering” to mean:
the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) 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[.]
Torture is defined under the statute to include an act specifically intended to inflict severe mental pain or suffering. Id. § 2340(1).
An important preliminary question with respect to this definition is whether the statutory list of the four “predicate acts” in section 2340(2)(A)–(D) is exclusive. We conclude that Congress intended the list of predicate acts to be exclusive – that is, to constitute the proscribed “severe mental pain or suffering” under the statute, the prolonged mental harm must be caused by acts falling within one of the four statutory categories of predicate acts. We reach this conclusion based on the clear language of the statute, which provides a detailed definition that includes four categories of predicate acts joined by the disjunctive and does not contain a catchall provision or any other language suggesting that additional acts might qualify (for example, language such as “including” or “such acts as”). Congress plainly considered very specific predicate acts, and this definition tracks the Senate’s understanding concerning mental pain or suffering when giving its advice and consent to ratification of the CAT. The conclusion that the list of predicate acts is exclusive is consistent with both the text of the Senate’s understanding, and with the fact that it was adopted out of concern that the CAT’s definition of torture did not otherwise meet the requirement for clarity in defining crimes. See supra note 21. Adopting an interpretation of the statute that expands the list of predicate acts for “severe mental pain or suffering” would constitute an impermissible rewriting of the statute and would introduce the very imprecision that prompted the Senate to adopt its understanding when giving its advice and consent to ratification of the CAT.
(4) The meaning of specifically intended
It is well recognized that the term “specific intent” is ambiguous and that the courts do not use it consistently. See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e), at 355 & n.79 (2d ed. 2003). “Specific intent” is most commonly understood, however, “to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.” Id. at 354; see also Carter v. United States, 530 U.S. 255, 268 (2000) (explaining that general intent, as opposed to specific intent, requires “that the defendant possessed knowledge [only] with respect to the actus reus of the crime”). As one respected treatise explains:
With crimes which require that the defendant intentionally cause a specific result, what is meant by an “intention” to cause that result? Although the theorists have not always been in agreement …, the traditional view is that a person who acts … intends a result of his act … under two quite different circumstances:
(1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.
1 LaFave, Substantive Criminal Law, § 5.2(a), at 341 (footnote omitted)
We do not believe it is useful to try to define the precise meaning of “specific intent” in section 2340. In 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. 
United States, Department of Justice, Office of Legal Counsel, Daniel Levin, Acting Assistant Attorney General, Memorandum for James B. Comey, Deputy Attorney General, Legal Standards Applicable Under 18 U.S.C. sections 2340-2340A, 30 December 2004.
In 2005, in its second periodic report to the Committee against Torture, the United States stated:
5. The President of the United States has made clear that the United States stands against and will not tolerate torture under any circumstances. On the United Nations International Day in Support of Victims of Torture, June 26, 2004, the President confirmed the continued importance of these protections and of U.S. obligations under the Torture Convention, stating:
[T]he United States reaffirms its commitment to the worldwide elimination of torture … To help fulfill this commitment, the United States has joined 135 other nations in ratifying the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction. …
These times of increasing terror challenge the world. Terror organizations challenge our comfort and our principles. The United States will continue to take seriously the need to question terrorists who have information that can save lives. But we will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere. …
6. The United States is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority, may be invoked as a justification for or defense to committing torture. This is a longstanding commitment of the United States, repeatedly reaffirmed at the highest levels of the U.S. Government.
7. All components of the United States Government are obligated to act in compliance with the law, including all United States constitutional, statutory, and treaty obligations relating to torture and cruel, inhuman or degrading treatment or punishment. The U.S. Government does not permit, tolerate, or condone torture, or other unlawful practices, by its personnel or employees under any circumstances. U.S. laws prohibiting such practices apply both when the employees are operating in the United States and in other parts of the world.
10. The United States is aware of allegations that detainees held in U.S. custody pursuant to the global war on terrorism have been subject to torture or other mistreatment. The President of the United States, as noted above, has clearly stated that torture is prohibited. When allegations of torture or other unlawful treatment arise, they are investigated and, if substantiated, prosecuted. 
United States, Second periodic report to the Committee against Torture, 13 January 2006, UN Doc. CAT/C/48/Add.3/Rev.1, submitted 6 May 2005, pp. 4–5, §§ 5–7 and 10.
[footnote in original omitted]
In 2005, the US Department of Defense released a report of an investigation, dated 1 April 2005 (as amended 9 June 2005), that had been commissioned by the Commander US Southern Command (USSOUTHCOM) and conducted by Lieutenant General R.M. Schmidt and Brigadier General J.T. Furlow, into FBI allegations of detainee abuse at the US Detention Facility, Joint Task Force Guantanamo Bay, Cuba. The Executive Summary of the report stated:
Detention and interrogation operations at Joint Task Force Guantanamo (JTF-GTMO) cover a three-year period and over 24,000 interrogations. This AR 15-6 [Army Regulation 15-6: Procedures for Investigating Officers and Boards of Officers, dated 30 September 1996] investigation found only three interrogation acts in violation of interrogation techniques authorized by Army Field Manual 34-52 [Intelligence Interrogation] and DoD guidance. The AR 15-6 also found that the Commander of JTF-GTMO failed to monitor the interrogation of one high value detainee in late 2002. The AR 15-6 found that the interrogation of this same high value detainee resulted in degrading and abusive treatment but did not rise to the level of being inhumane treatment. Finally, the AR 15-6 found that the communication of a threat to another high value detainee was in violation of SECDEF [US Secretary Department of Defense] guidance and the UCMJ [Uniform Code of Military Justice]. The AR 15-6 found no evidence of torture or inhumane treatment at JTF-GTMO. 
United States, Department of Defense, Commander United States Southern Command, Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility, 1 April 2005 (as amended 9 June 2005).
In 2005, in its third periodic report to the Human Rights Committee submitted under Article 40 of the International Covenant on Civil and Political Rights, the United States stated:
126. Torture … U.S. law prohibits torture at both the federal and state levels within the United States. On 27 October, 1990, the United States ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”). The United States deposited its instrument of ratification with the UN on 21 October, 1994. The Convention Against Torture entered into force for the United States on 20 November, 1994.
127. Federal Extraterritorial Offense of Torture. Coincident with the entry into force of the Convention Against Torture, the United States enacted the Torture Convention Implementation Act, codified at 18 U.S.C. § 2340A, which gave effect to obligations assumed by the United States under Article 5 of the Convention Against Torture. As provided in the statute, whoever commits or attempts to commit torture outside the United States (both terms as defined in the statute) is subject to federal criminal prosecution if the alleged offender is a national of the United States or the alleged offender is present in the United States, irrespective of the nationality of the victim. 
United States, Third Periodic Report to the Human Rights Committee submitted under Article 40 of the International Covenant on Civil and Political Rights, U.N. Doc. CCPR/C/USA/3 (2005), 28 November 2005, §§ 126–127.
In December 2005, the US Secretary of State, prior to her departure for Europe, made a detailed statement regarding US rendition, detention, interrogation and interrogation practices, including US obligations under the 1984 Convention against Torture. This stated in part:
Renditions take terrorists out of action, and save lives.
In conducting such renditions, it is the policy of the United States, and I presume of any other democracies who use this procedure, to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture. Torture is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate, or condone torture under any circumstances.
With respect to detainees, the United States Government complies with its Constitution, its laws, and its treaty obligations. Acts of physical or mental torture are expressly prohibited. The United States Government does not authorize or condone torture of detainees. Torture, and conspiracy to commit torture, are crimes under U.S. law, wherever they may occur in the world.
It is the policy of the United States that this questioning [of detainees] is to be conducted within U.S. law and treaty obligations, without using torture. It is also U.S. policy that authorized interrogation will be consistent with U.S. obligations under the Convention Against Torture, which prohibit cruel, inhuman, or degrading treatment.  
United States, Department of State, Remarks Upon Her Departure for Europe, Secretary C. Rice, Andrews Air Force Base, 5 December 2005.
In December 2005, the US President issued a President’s Statement on his Signing of H.R. 2863, “President’s Statement on the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006”, which, in part, made reference to the Detainee Treatment Act of 2005:
The legislation also addresses the legal framework for U.S. detention and interrogation activities. The detention and interrogation of captured terrorists are critical tools in the war on terror. It is vital that our government gather intelligence to protect the American people from terrorist attacks, including critical information that may be obtained from those terrorists we have captured. At the same time, the Administration is committed to treating all detainees held by the United States in a manner consistent with our Constitution, laws, and treaty obligations, which reflect the values we hold dear. U.S. law and policy already prohibit torture. Our policy has also been not to use cruel, inhuman or degrading treatment, at home or abroad. This legislation now makes that a matter of statute for practices abroad. It also requires that the Defense Department’s treatment of detainees be codified in the U.S. Army Field Manual. 
United States, President’s Statement on Signing of H.R. 2863, “President’s Statement on the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006”, 30 December 2005.
In May 2006, the head of the US delegation to the Committee against Torture made certain opening remarks to the Committee in Geneva prior to its consideration of the United States’ second periodic report:
[O]ur Second Periodic report and the written answers to your questions contain extensive information about U.S. detainee operations in Guantanamo Bay, Cuba, and in Afghanistan and Iraq. It is the view of the United States that these detention operations are governed by the law of armed conflict, which is the lex specialis applicable to those operations.
As a general matter, countries negotiating the Convention [against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment] were principally focused on dealing with rights to be afforded to people through the operation of ordinary domestic legal processes and were not attempting to craft rules that would govern armed conflict.
At the conclusion of the negotiation of the Convention, the United States made clear “that the convention … was never intended to apply to armed conflicts ….” The United States emphasized that having the Convention apply to armed conflicts “would result in an overlap of the different treaties which would undermine the objective of eradicating torture.” No country objected to this understanding.
In any case, regardless of the legal analysis, torture is clearly and categorically prohibited under both human rights treaties and the law of armed conflict. The obligation to prevent cruel, inhuman, or degrading treatment or punishment is in Article 16 of the Convention and in similar provisions in the law of armed conflict. 
United States, Department of State Legal Adviser, John B. Bellinger, US Meeting with the UN Committee Against Torture, Geneva, Switzerland, 5 May 2006.
On 8 May 2006, the US delegation to the Committee against Torture responded orally to questions regarding US obligations under the Convention against Torture. On a question concerning “waterboarding”, the US Department of Defense (DoD) Legal Adviser, Charles Stimson, responded:
I want to make two points. First, waterboarding is not listed in the current Army Field Manual and therefore is not permitted for detainees under DoD control. Second, waterboarding is specifically prohibited in the revised Army Field Manual. It would not be appropriate for me to discuss further specifics of the revised Army Field Manual at this time. 
United States, Department of State, Oral Statements by the United States Delegation to the Committee Against Torture, Geneva, Switzerland, 8 May 2006.
In May 2006, the US Department of State held an on-the-record press briefing during which its legal adviser, John Bellinger, responded to questions concerning the recently released Concluding Observations of the Committee against Torture to the US’s Second Periodic Report. In responding to a question on US policy regarding cruel, inhuman and degrading treatment, Mr Bellinger stated:
That’s where we didn’t have a legal obligation and, as you know, Secretary Rice said last December that we would have a policy against cruel, inhuman and degrading treatment, and then the McCain amendment also added it as a matter of law. So what we told the [Committee] Against Torture is that now it is prohibited for any U.S. Government agency anywhere in the world, either under the Convention or under the McCain Amendment, to subject a detainee to either torture or to cruel, inhuman and degrading treatment, so both of them, as a matter of law, applicable to all U.S. Government agencies. [In response to a follow-up question on whether the law also applied to contractors] It says to all U.S. Government agencies. So if a contractor were a contractor for a U.S. Government agency, then the same law would apply.
[W]e comply with our obligations not to subject individuals to torture. We have a new law that we are ensuring that all agencies will comply with not to subject detainees anywhere in the world to cruel, inhuman or degrading treatment. 
United States, Department of State Legal Adviser, John B. Bellinger, On-the-Record Briefing on the Committee Against Torture Report, Washington. D.C., 19 May 2006.
In September 2006, the US President, George W. Bush, spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency (CIA) detention program (thus publicly revealing that such a program existed) into military custody:
To win the war on terror, we must be able to detain, question, and, when appropriate, prosecute terrorists captured here in America, and on the battlefields around the world.
[I]n addition to the terrorists held at Guantanamo, a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency. This group includes individuals believed to be the key architects of the September the 11th attacks, and attacks on the USS Cole, an operative involved in the bombings of our embassies in Kenya and Tanzania, and individuals involved in other attacks that have taken the lives of innocent civilians across the world. These are dangerous men with unparalleled knowledge about terrorist networks and their plans for new attacks. The security of our nation and the lives of our citizens depend on our ability to learn what these terrorists know.
Many specifics of this program, including where these detainees have been held and the details of their confinement, cannot be divulged. Doing so would provide our enemies with information they could use to take retribution against our allies and harm our country. I can say that questioning the detainees in this program has given us information that has saved innocent lives by helping us stop new attacks – here in the United States and across the world. Today, I’m going to share with you some of the examples provided by our intelligence community of how this program has saved lives; why it remains vital to the security of the United States, and our friends and allies; and why it deserves the support of the United States Congress and the American people.
This program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers; they’ve determined it complied with our laws. This program has received strict oversight by the CIA’s Inspector General. A small number of key leaders from both political parties on Capitol Hill were briefed about this program. All those involved in the questioning of the terrorists are carefully chosen and they’re screened from a pool of experienced CIA officers. Those selected to conduct the most sensitive questioning had to complete more than 250 additional hours of specialized training before they are allowed to have contact with a captured terrorist.
I want to be absolutely clear with our people, and the world: The United States does not torture. It’s against our laws, and it’s against our values. I have not authorized it – and I will not authorize it. Last year, my administration worked with Senator John McCain, and I signed into law the Detainee Treatment Act, which established the legal standard for treatment of detainees wherever they are held.
Some may ask: Why are you acknowledging this [CIA] program now? There are two reasons why I’m making these limited disclosures today. First, we have largely completed our questioning of the men – and to start the process for bringing them to trial, we must bring them into the open. Second, the Supreme Court’s recent decision [Hamdan v. Rumsfeld, 548 US 557 (2006)] has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as “Common Article Three” applies to our war with al Qaeda. This article includes provisions that prohibit “outrages upon personal dignity” and “humiliating and degrading treatment.” The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act – simply for doing their jobs in a thorough and professional way.
This is unacceptable. Our military and intelligence personnel go face to face with the world’s most dangerous men every day. They have risked their lives to capture some of the most brutal terrorists on Earth. And they have worked day and night to find out what the terrorists know so we can stop new attacks. America owes our brave men and women some things in return. We owe them their thanks for saving lives and keeping America safe. And we owe them clear rules, so they can continue to do their jobs and protect our people.
So today, I’m asking Congress to pass legislation that will clarify the rules for our personnel fighting the war on terror. First, I’m asking Congress to list the specific, recognizable offenses that would be considered crimes under the War Crimes Act – so our personnel can know clearly what is prohibited in the handling of terrorist enemies. Second, I’m asking that Congress make explicit that by following the standards of the Detainee Treatment Act our personnel are fulfilling America’s obligations under Common Article Three of the Geneva Conventions. Third, I’m asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts – in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they’re doing their jobs. 
United States, President George W. Bush, White House speech, President Discusses Creation of Military Commissions to Try Suspected Terrorists, 6 September 2006.
In September 2007, the Central Intelligence Agency (CIA) Director, General Michael V. Hayden, addressed the Council on Foreign Relations in New York. During the question period following General Hayden’s speech, the following exchange took place on the subject of “enhanced interrogation techniques”:
QUESTIONER: Last year about this time, the president spoke, and he asked Congress for authority for the agency to be involved in what he called enhanced interrogation techniques. This is things like stress positions, use of dogs, hypothermia, mock drowning, waterboarding. The Congress said no to that, led by Senators McCain, Graham and Warner. The military’s also said no to that, and all of the senior military lawyers have been very clear that those techniques violate Common Article 3 of the Geneva Conventions, in public testimony before Congress.
And yet a month – six weeks ago, the administration passed an executive order seemingly allowing again the CIA to engage in these enhanced techniques.
From my perspective, it seems to me like this is more than asking for space; what you’re really trying to do is change the rules. The question is, why do you need these enhanced techniques? Why shouldn’t every U.S. agency operate by a single standard compliant with Common Article 3?
HAYDEN: First let me make comment on your listing of techniques and just frankly add that it’s a pretty good example of taking something to the darkest corner of the room and not reflective of what my agency does.
Now let’s talk about the history, last October. With the Hamdan decision, the Supreme Court extended the protection of Common Article 3 to the unlawful combatants of al Qaeda. I’m not a lawyer, but I’m frankly surprised by that aspect of the decision, in that Common Article 3 refers to conflicts not of an international character. And this one does certainly seem to be conflict of an international character.
Our problem was not that we wanted the Congress to approve any techniques. Our problem was, we didn’t know what Common Article 3 meant in the context of American law. When the Senate ratified a variety of other portions of the Geneva Convention, the legislative history or specific statements of the Senate clarified the meaning of the international treaty in terms of American law. For example, the Convention Against Torture is carefully hooked in the legislative history to the prohibition in domestic law against cruel and inhuman punishment articulated by the 5th, 8th and 14th Amendments to the Constitution.
The Congress had made no clarifying language with regard to Common Article 3. And any, I think, fair reading of Common Article 3 would point out that it would be very hard for me to direct an officer of the agency to do things with the vagaries of the language in Common Article 3. So I wasn’t looking for a carve out; I was looking for a definition.
One of the outs that was offered to the agency was that we in the – it turns out to be the Military Commissions Act. We in the Military Commissions Act will criminalize certain kinds of activities. And as long as your officers don’t do these activities, they won’t be prosecuted. And therefore you’ll be safe from – well, you’ll be safe from prosecution.
The agency as a whole and myself in particular rejected that solution. Because what it – what it would put me in the position of doing would be to turn to an agency officer and say, I would like you to do this with regard to this detainee, okay; I have no idea whether or not it violates the Geneva Convention, because I don’t know what it means, but I’m pretty sure you’ll never go to court for it, so would you go do that for me? And that’s about the worst locker room speech I can imagine giving to an agency employee.
So we insisted on clarity for Common Article 3. The Congress decided that they would not offer that clarity but they then would instead reinforce the already existent presidential right to define the meaning for treaties for the United States. And so there’s actual language in the Military Commissions Act that has the president doing that, and it requires him to publish his executive order in the Federal Register, which is what he did.
It’s clear that what it is we do as [an] agency is different from what is contained in the Army Field Manual. I don’t know of anyone who has looked at the Army Field Manual who could make the claim that what’s contained in there exhausts the universe of lawful interrogation techniques consistent with the Geneva Convention. The Army Field Manual was crafted to allow America’s Army to train large numbers of young men and women to debrief and interrogate, for tactical purposes, transient prisoners on a fast-moving battlefield.
CIA handles a very small number of senior al Qaeda leaders. The average age of our interrogators is 43. The amount of training for this specific activity is 240 hours. So the reason we’re not covered by the Army Field Manual is that we’re not in the DOD [Department of Defense]. We weren’t consulted about the Army Field Manual, and no one ever claimed that the Army Field Manual exhausted all the lawful tools that America could have to protect itself. 
United States, Central Intelligence Agency Director, General Michael V. Hayden, Remarks at the Council on Foreign Relations, 7 September 2007.
In 2007, in its comments on the concluding observations of the Human Rights Committee on the United States’ second and third periodic reports, the United States stated in response to a recommendation concerning interrogation techniques:
[I]nternational humanitarian law prohibits torture of detainees in international or non-international armed conflict. Consistent with international humanitarian law, there is a statutory prohibition in U.S. criminal law against the torture of anyone in the custody or under the physical control of the United States Government outside the territory of the United States. In addition, cruel, inhuman, and degrading treatment or punishment of anyone in the custody or under the physical control of the United States Government is prohibited both within and outside of the territory of the United States. All detainee interrogations are conducted in a manner consistent with these prohibitions, as well with Common Article 3 of the [1949] Geneva Conventions.
In September 2006, following the U.S. presentation of its report to the Committee, the Department of Defense [DOD] released the updated detainee program Directive 2310.01e (“The Department of Defense Detainee Program”) and the Army released its revised Field Manual on interrogation. … They provide guidance to military personnel to ensure compliance with the law, including Common Article 3 of the Geneva Conventions.
For instance, the revised Army Field Manual states that “[a]ll captured or detained personnel, regardless of status, shall be treated humanely, and in accordance with the Detainee Treatment Act of 2005 and DOD Directive 2310.1E … and no person in the custody or under the control of DOD, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in U.S. law.” The Field Manual also provides specific guidance, including a non-exclusive list of actions – such as “waterboarding” and placing a hood or sack over the head of a detainee, among others – that are prohibited when used in conjunction with interrogations. Finally, the Field Manual provides guidance to be used while formulating interrogation plans for approval. For example, the Field Manual [paras. 5-76 and 5-77] states:
“In attempting to determine if a contemplated approach or technique should be considered prohibited … consider these two tests before submitting the plan for approval:
- If the proposed approach technique were used by the enemy against one of your fellow soldiers, would you believe the soldier had been abused?
- Could your conduct in carrying out the proposed technique violate a law or regulation? Keep in mind that even if you personally would not consider your actions to constitute abuse, the law may be more restrictive.
If you answer yes to either of these tests, the contemplated action should not be conducted.”
We would also note that U.S. law provides several avenues for the domestic prosecution of United States Government officials and contractors who commit torture and other serious crimes overseas. For example, section 2340A of title 18 of the United States Code authorizes the prosecution of any U.S. national who commits torture outside of the United States, while section 2441 does the same for serious violations of Common Article 3. 
United States, Comments by the government on the concluding observations of the Human Rights Committee, 12 February 2008, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.1, submitted 1 November 2007, pp. 4 and 5.
[footnotes in original omitted]
In response to a recommendation concerning accountability, the United States stated:
As noted elsewhere in this submission, as a matter of application of the Covenant [1966 International Covenant on Civil and Political Rights], the United States is engaged in an armed conflict with al Qaida, the Taliban, and their supporters. As part of this conflict, the United States captures and detains enemy combatants, and is entitled under the law of war to hold them until the end of hostilities. The law of war, and not the Covenant, is the applicable legal framework governing these detentions. In addition, because Guantánamo Bay is not within the territory of the United States, U.S. obligations under the Covenant do not apply there. Although the Covenant as such does not apply to U.S. activities outside of its territory, the United States does not permit its personnel to engage in acts of torture or cruel, inhuman or degrading treatment of people in its custody either within or outside U.S. territory and takes vigilant action to prevent such conduct and to hold any such perpetrators accountable for their wrongful acts.
U.S. personnel engaged in detention operations are required to comply with U.S. domestic law, the law of war, and applicable international treaty obligations. Cruel, inhuman and degrading treatment or punishment by all U.S. personnel in all locations is prohibited under United States law. 
United States, Comments by the government on the concluding observations of the Human Rights Committee, 12 February 2008, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.1, submitted 1 November 2007, pp. 6 and 7.
In response to a recommendation concerning the transfer, rendition, extradition, expulsion or refoulement of personnel if there are substantial reasons for believing that they would be in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment, the United States stated:
The United States does not transfer or return persons to countries where it determines that it is more likely than not that the person will be tortured. This policy applies to all components of the U.S. Government and to all individuals in U.S. custody, including those outside U.S. territory. Within the territory of the United States, the United States applies this policy in implementation of its international treaty obligations under Article 3 of the [1984] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture or “CAT”). … United States policy and legal obligations on this matter are not governed by the International Covenant on Civil and Political Rights. 
United States, Comments by the government on the concluding observations of the Human Rights Committee, 12 February 2008, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.1, submitted 1 November 2007, p. 8.
In January 2008, in a letter to a Senator, the US Attorney General stated with regard to government-authorized interrogation techniques:
I write in response to your letter of January 23, 2008, concerning interrogation techniques, and in anticipation of my testimony before the Senate Judiciary Committee tomorrow. …
Your letter, which was signed by several of your colleagues, follows up on a request you made to me in a letter dated October 23, 2007. I responded to that inquiry in writing on October 30, 2007, explaining that I could not render an opinion about the legality of any specific techniques because “I have not been briefed on techniques used in any classified interrogation program conducted by any government agency.” I assured you, however, that “if confirmed, I will review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law. … ”
Since that time, I have conducted a thorough and careful review of the Department’s legal analysis concerning the techniques that are currently authorized for use in the Central Intelligence Agency’s program for interrogating high-value al Qaeda terrorists. I have kept the commitment that I made to you and to this Committee, and have concluded that the interrogation techniques currently authorized in the CIA program comply with the law.
Your January 23, 2008, letter also asks if “the use of waterboarding as an interrogation technique [is] illegal under U.S. law, including treaty obligations.” …
During the course of my review, I have been briefed on the CIA interrogation program. A limited set of methods is currently authorized for use in that program. I have been authorized to disclose publicly that waterboarding is not among those methods. Accordingly, waterboarding is not, and may not be, used in the current program. …
I understand that you and some other members of the Committee may feel that I should go further in my review, and answer questions concerning the legality of waterboarding under current law. I understand the strong interest in this question, but I do not think it would be responsible for me, as Attorney General, to provide an answer. As I explained to the Committee during my confirmation process, as a general matter, I do not believe that it is advisable to address difficult legal questions, about which reasonable minds can and do differ, in the absence of concrete facts and circumstances.
The principle that one should refrain from addressing difficult legal questions in the absence of concrete facts and circumstances has even more force as to this question. That is because any answer I give could have the effect of articulating publicly – and to our adversaries – the limits and contours of generally worded laws that define the limits of a highly classified interrogation program. Indeed, I understand that a number of Senators articulated this very concern in the fall of 2006, in the course of defeating an amendment that would have expressly prohibited waterboarding. 
United States, Letter from the Attorney General to Senator Patrick J. Leahy, US Senate, 29 January 2008.
In January 2008, in a statement at the Justice Department Oversight Hearing of the Senate Judiciary Committee, the US Attorney General stated with regard to government-authorized interrogation techniques:
I am aware that you and other Members of the Committee have asked specifically that I address the legality of waterboarding. I sought and received authorization to disclose publicly, however, that waterboarding is not among the techniques currently authorized for use in the CIA program. In that respect, passing [opinion] on its legality is beyond the scope of the commitment I made to this Committee. Waterboarding is not, and may not be, currently used.
Whether or not waterboarding is something that will be authorized in the future is not for me to decide – certainly not for me alone. But I can tell you what it would take for waterboarding to be added to the CIA program. First, the CIA director would have to request its authorization. Second, he would have to ask me, or any successor of mine, if its use would be lawful – taking into account the particular facts and circumstances at issue, including how and why it is to be used, the limits of its use, and the safeguards that are in place for its use. And third, the issue would have to go to the President. Those steps may never be taken, but if they are I commit to you today that this Committee will be notified of the fact in the same manner as the Intelligence Committees.
Given that waterboarding is not part of the current program, and may never be added to the program, I do not think it would be appropriate for me to pass definitive judgment on the technique’s legality. 
United States, Statement by the Attorney General at the Justice Department Oversight Hearing of the Senate Judiciary Committee, Washington, D.C., 30 January 2008.
In February 2008, in a statement to Central Intelligence Agency (CIA) employees, the Director of the CIA stated:
In Congressional testimony last week, I confirmed publicly that waterboarding had been used on three hardened terrorists in our high-value interrogation program. That tactic, which has not been employed since 2003, was deemed legal by the Department of Justice when it was used. Beyond those two facts, I also shared with the Congress my view of changes in the legal landscape over the past five years, and the need to take those changes into account should waterboarding ever be considered for use again. My testimony attracted a fair amount of public attention and comment, not all of it accurate. Before both the Senate and the House, I emphasized that our program has operated within a strict legal framework, subject to review and oversight. Indeed, CIA has over time and at its own initiative modified the methods it has applied, in keeping with – or in anticipation of – modifications to the law. The Agency’s decision to employ waterboarding in the wake of 9/11 was not only lawful, it reflected the circumstances of the time. In reply to a question at the Senate hearing, I said: “Very critical to those circumstances was the belief that additional catastrophic attacks against the homeland were imminent. In addition to that, my Agency and our Community writ large had limited knowledge about al-Qa’ida and its workings. Those two realities have changed.” Two days later, at the House hearing, I was asked whether waterboarding is prohibited under current law. My response was: “It’s not a technique that I’ve asked for. It is not included in the current program, and in my own view, the view of my lawyers and the Department of Justice, it is not certain that the technique would be considered lawful under current statute.” Put bluntly, I could not – and would not – presume to prejudge the outcome of a legal assessment that has not even been requested. It was as simple as that. CIA’s terrorist interrogation program, lawful and effective, was born of necessity. As [the] President … told the nation in September 2006, the Agency applied its methods of questioning when other techniques did not work and when a captured terrorist “had more information that could save innocent lives.” Unlike traditional law enforcement, the CIA’s chief objective in interrogations is not forensics on past events, but actionable, forward-looking intelligence. My testimony was in accord with recent statements from the White House and Department of Justice. The Attorney General, in particular, told Congress that his Department had authorized the Agency’s use of specific interrogation methods and that there is a process in place to review the legality of any technique that might in the future be proposed for inclusion in the CIA program. As befits a Republic of laws, this vital counter-terror initiative rests on a strong legal foundation. 
United States, Statement by the Director of the Central Intelligence Agency, “Lawful Interrogation”, 13 February 2008.
In February 2008, in a statement on the US Department of Justice’s legal review of the Central Intelligence Agency (CIA) programme of detention and interrogation before the House Committee on the Judiciary Sub-Committee on the Constitution, Civil Rights, and Civil Liberties, the Principal Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, stated:
As the President and [the CIA Director] have also stated, this program has involved the limited use of alternative (also called “enhanced”) interrogation methods, judged to be necessary in certain cases because hardened al Qaeda operatives are trained to resist the types of methods approved in the Army Field Manual, which guides military interrogations.
The CIA’s interrogation methods were developed for use by highly trained professionals, subject to careful authorizations, conditions, limitations, and safeguards. They have been reviewed on several occasions by the Justice Department over the past five-plus years and determined on each occasion to be lawful under then-applicable law. These alternative interrogation methods have been used with fewer than one-third of the terrorists who have ever been detained in this program, and certain of the methods have been used on far fewer still. As [the CIA Director] has disclosed, one interrogation method that has received considerable public attention, waterboarding, was used on only three individuals, and was never used after March 2003.
From the very beginning, the CIA has sought the views of the Department of Justice to ensure that its interrogation program complied with the law. In 2002, when the CIA was establishing the program and first sought advice, the relevant federal law applicable to the CIA program was the federal anti-torture statute, 18 U.S.C. §§ 2340-2340A, which prohibits government conduct occurring outside the United States that is intended to inflict severe physical or mental pain or suffering, as defined in the statute. Since then, new legal requirements have become applicable: Congress has passed the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, and the Supreme Court held for the first time in Hamdan v. Rumsfeld [548 U.S. 557 (2006] that Common Article 3 of the [1949] Geneva Conventions applies to a worldwide armed conflict with an international terrorist organization – specifically, our armed conflict with al Qaeda.
After enactment of the Detainee Treatment Act in December 2005, the CIA commenced a comprehensive policy and operational review of the program, which eventually resulted in a narrower set of proposed interrogation methods. While that process was underway, the Supreme Court handed down its decision in Hamdan in June 2006, and, in response to Hamdan, Congress enacted the Military Commissions Act in the fall of 2006, in part to ensure that the CIA could continue to operate its program in an effective form. Among other things, the Military Commissions Act amended the War Crimes Act to spell out the specific War Crimes Act provisions that apply in Common Article 3 conflicts. In addition, the Military Commissions Act helped to clarify how the United States would apply Common Article 3.
In conjunction with the CIA’s policy and operational review, OLC [Office of Legal Counsel] evaluated the legality of the narrower program against the new legal framework, including not only the Detainee Treatment Act but also the Military Commissions Act and Common Article 3.
The CIA program is now operated in accordance with the President’s executive order of July 20th, 2007, which was issued pursuant to the Military Commissions Act. The President’s executive order requires that the CIA program comply with a host of substantive and procedural requirements.
Number one, of course, the executive order makes clear to the world that the CIA program must and will be operated in complete conformity with all applicable statutory standards, including the federal prohibition on torture, the prohibition on cruel, inhuman, or degrading treatment contained in the Detainee Treatment Act, and the prohibitions on grave breaches of Common Article 3 of the Geneva Conventions, as defined in the amended War Crimes Act.
Number two, the executive order makes clear that the program must be very narrow in scope, to include only those high-value terrorist detainees believed to possess critical knowledge of potential attack planning or the whereabouts of senior al Qaeda leadership … [T]heir treatment must be free of religious denigration or acts of humiliating and degrading personal abuse that rise to the level of an outrage upon personal dignity …
As noted, the specifics of the program authorized today are not the same as they were in the initial years. The set of interrogation methods authorized for current use is narrower than before, and it does not today include waterboarding. As the Attorney General has made clear, before any additional interrogation method could be authorized for use in the program, three things would have to happen:
First, the Director of the CIA, together with the Director of National Intelligence, would have to determine that the new method is necessary to obtain information on terrorist attack planning or the location of senior al Qaeda leadership; second, the Attorney General would have to conclude that the use of the method, subject to all conditions, limitations, and safeguards proposed for its use, would be lawful under current law (and that includes the requirements of the Detainee Treatment Act, the Military Commissions Act, and Common Article 3); and, three, even if the Attorney General concludes that the method’s use is lawful, the President would have to personally authorize its use. In addition, Congress would be appropriately notified – including, per the commitment from the Attorney General, specific notification to the Judiciary Committees if there were a plan to add waterboarding to the program.
Let me be clear, though: There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law. 
United States, Statement by the Principal Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, before the House Committee on the Judiciary Sub-Committee on the Constitution, Civil Rights, and Civil Liberties, 14 February 2008, pp. 2–6.
In February 2008, in a statement to Central Intelligence Agency (CIA) employees concerning the past use of Diego Garcia, a British Indian Ocean Territory, for rendition flights, the Director of the CIA stated: “There have also been allegations that we transport detainees for the purpose of torture. That, too, is false. Torture is against our laws and our values. And, given our mission, CIA could have no interest in a process destined to produce bad intelligence.”  
United States, Statement by the Director of the Central Intelligence Agency, “Past Use of Diego Garcia”, 21 February 2008.
In May 2008, a US Department of Justice report that documented the Federal Bureau of Investigation’s involvement in and observations of detainee interrogations in Guantánamo Bay, Afghanistan and Iraq, stated:
A. Legal Background: the Geneva Conventions, the Convention Against Torture, and Related Statutes
In general, the [1949] Geneva Conventions require that enemy prisoners of war and certain captured civilians be treated humanely at all times. The Geneva Conventions also prohibit the use of physical or mental torture, or other forms of coercion, to obtain information from prisoners of war, and prohibit the use of physical or moral coercion to obtain information from protected civilians. The provision known as “Common Article 3” protects detainees from cruel treatment, torture, and outrages upon personal dignity, “in particular, humiliating and degrading treatment.” The War Crimes Act, 18 U.S.C. § 2441, criminalizes under U.S. law certain breaches of the Geneva Conventions, including breaches of Common Article 3.
On February 7, 2002, [the] President … issued a memorandum declaring that none of the provisions of the Geneva Conventions apply to members of al Qaeda in Afghanistan or elsewhere. The memorandum also stated that members of the Taliban are “unlawful combatants” and do not qualify as prisoners of war entitled to the stronger protections of the Geneva Conventions. However, the President stated that al Qaeda and Taliban detainees were to be treated “humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” Church Report [Department of Defense, Review of Department of Defense Detention Operations and Detainee Interrogation Techniques (The Church Report), 7 March 2005] at 187.
The United States also has obligations under the [1984] Convention Against Torture. The Convention Against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” for certain purposes. The United States conditioned its ratification of the treaty on an understanding that in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering, and that mental pain or suffering refers to prolonged mental harm from:
(1) the intentional infliction or threatened infliction of severe physical pain or suffering;
(2) the administration or threatened administration of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(3) the threat of imminent death; or
(4) the threat that another person will be imminently subjected to death, severe physical pain or suffering, or the administration of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
The Convention Against Torture also prohibits cruel, inhuman, or degrading treatment or punishment. However, the Bush Administration has taken the position that the Convention Against Torture does not apply to alien detainees held outside of the United States.
The Torture Statute, 18 U.S.C. § 2340, prohibits torture outside the United States. Its definition of torture tracks the language of the U.S. understanding on which the Convention Against Torture was ratified, summarized above. Citing a DOJ [Department of Justice] Office of Legal Counsel Opinion (6 Op. OLC 236 (1982)), the DOD [Department of Defense] has stated that GTMO [US Naval Base, Guantánamo Bay] is within the special maritime and territorial jurisdiction of the United States, and, as such, is not “outside of the United States” for purposes of the Torture Statute. Therefore, according to this interpretation, the Torture Statute applies in Afghanistan and Iraq but does not apply in GTMO.
On December 30, 2005, the President signed into law the Detainee Treatment Act, Pub L. No. 109-148. Section 1002 of the Detainee Treatment Act established the U.S. Army Field Manual as a uniform standard for detainee treatment and interrogation techniques available for use on detainees in DOD custody. Section 1003 provided for a global prohibition on the use of cruel, inhuman, or degrading treatment on all persons in the custody or effective control of the U.S. government. This provision responded to the Administration’s argument that the Convention Against Torture did not apply to alien detainees held outside U.S. territory.
E. Recent Changes to DOD Policy
In September 2006, the U.S. Army issued Field Manual 2-22.3 regarding Human Intelligence Collector Operations. This manual responded to the mandate of the Detainee Treatment Act, which was enacted in December 2005, for a uniform standard for treatment of detainees under DOD custody. Id. at 5-74. Field Manual 2-22.3 reiterated and elaborated on many of the techniques listed in its predecessor, Field Manual 34-52, but placed much greater emphasis on rapport-based interrogation techniques similar to those endorsed by the FBI. It also identified several prohibited actions, including:
• Nudity, or sexual acts or poses
• Hooding or duct-tape over the detainee’s eyes
• Beatings, shock, burns, or other pain
• Waterboarding
• Using military working dogs in interrogations
• Inducing hypothermia or heat injury
• Mock executions
• Deprivation of food, water, or medical care. 
United States, Department of Justice, Oversight and Review Division, Office of the Inspector General, A Review of the FBI’s Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq, May 2008, pp. 54–56 and 63.
In 2009, in further comments on the concluding observations of the Human Rights Committee on the United States’ second and third periodic reports, the United States stated:
[O]n January 22, 2009, [the] President … signed three executive orders relating to U.S. detention and interrogation policies broadly and the Guantánamo Bay detention facility specifically. … [One of these orders,] Executive Order 13491 (“Ensuring Lawful Interrogations”) … states that no individuals held in any armed conflict in the custody of the United States shall be subject to any interrogation techniques other than those authorized in the Army Field Manual. 
United States, Further comments by the government on the concluding observations of the Human Rights Committee, 24 September 2009, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.2, submitted 24 July 2009.
In August 2009, in a speech made in Washington DC on the occasion of the 60th Anniversary of the 1949 Geneva Conventions, the US White House Counsel stated:
I am someone who believes that the issue of torture is not just a legal issue. It is certainly that, of course. It is not just a moral issue. It is that, too. But it is also a terrible strategic mistake that does enormous damage to our nation’s security. Whatever former Vice President […] might claim to be the benefits of torture, no one can dispute one basic and fundamental truth. The fact that the United States – in its effort to win the global war on terror– used torture as a means to that end did enormous damage to our standing in the world, to our self-respect, to our ability to lead others and to our ability to work with friends and allies. And it did damage to our security. As President Obama said in his May 21 speech at the National Archives:
Some have argued that brutal methods like water boarding were necessary to keep us safe. I could not disagree more. . . [These interrogation techniques] undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. They did not advance our war and our counterterrorism efforts … they undermined them. That is why I ended them once and for all. 
United States, Remarks by the White House Counsel on the occasion of the 60th Anniversary of the Geneva Conventions, The Newseum, Washington DC, 12 August 2009.
In September 2009, in a speech before the UN General Assembly, the US President stated: “On my first day in office, I prohibited – without exception or equivocation – the use of torture by the United States of America.” 
United States, Remarks by the President to the UN General Assembly, New York, 23 September 2009.
In November 2009, in a statement marking the occasion of the 60th Anniversary of the 1949 Geneva Conventions, the legal adviser of the US State Department stated:
By the presence of the three of us here today [the Legal Adviser was speaking alongside two senior representatives from the Office of General Counsel of the US Department of Defense], we symbolize the strong partnership between the U.S. military and its civilian leadership to carry forward our absolute commitment to fulfilling and implementing the Common Article 3 [to the 1949 Geneva Conventions] prohibitions on torture, as well as on cruel, inhumane, and degrading treatment. 
United States, Statement by the Legal Adviser, US Department of State, at a conference marking the 60th Anniversary of the Geneva Conventions, Geneva, 9 November 2009.
In December 2009, in his Nobel Peace Prize acceptance speech, the US President stated:
Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture. 
United States, Remarks by the President at the Acceptance of the Nobel Peace Prize, Oslo, 10 December 2009.
In March 2010, in a speech given at the Annual Meeting of the American Society of International Law, the Legal Adviser of the US State Department stated:
To ensure humane treatment, on his second full day in office, the President unequivocally banned the use of torture as an instrument of U.S. policy, a commitment that he has repeatedly reaffirmed in the months since. He directed that executive officials could no longer rely upon the Justice Department OLC [Office of Legal Counsel] opinions that had permitted practices that I consider to be torture and cruel treatment – many of which he later disclosed publicly – and he instructed that henceforth, all interrogations of detainees must be conducted in accordance with Common Article 3 of the [1949] Geneva Conventions and with the revised Army Field Manual. An interagency review of U.S. interrogation practices later advised – and the President agreed – that no techniques beyond those in the Army Field Manual (and traditional non-coercive FBI techniques) are necessary to conduct effective interrogations. That Interrogation and Transfer Task Force also issued a set of recommendations to help ensure that the United States will not transfer individuals to face torture. The President also revoked Executive Order 13440, which had interpreted particular provisions of Common Article 3, and restored the meaning of those provisions to the way they have traditionally been understood in international law.  
United States, “The Obama Administration and International Law”, Speech given by the Legal Adviser of the US Department of State at the Annual Meeting of the American Society of International Law, Washington DC, 25 March 2010.
In May 2010, the US President issued the 2010 National Security Strategy, which stated:
America's commitment to democracy, human rights, and the rule of law are essential sources of our strength and influence in the world. They too must be cultivated by our rejection of actions like torture that are not in line with our values.
Prohibit Torture without Exception or Equivocation: Brutal methods of interrogation are inconsistent with our values, undermine the rule of law, and are not effective means of obtaining information. They alienate the United States from the world. They serve as a recruitment and propaganda tool for terrorists. They increase the will of our enemies to fight against us, and endanger our troops when they are captured. The United States will not use or support these methods. 
United States, Report by the President, 2010 National Security Strategy, The White House, Washington DC, 26 May 2010, pp. 2 and 36.
In November 2010, in responding to the recommendations made by the Working Group of the UN Human Rights Council’s Universal Periodic Review of US human rights records, the Legal Adviser of the US Department of State stated:
Most of these recommendations referred to our country’s continuing armed conflicts in Afghanistan, Iraq, and against Al Qaeda and associated forces. … We defend the legality under the laws of war of using detention to remove adversaries from the conflict, but do not – and will not – countenance torture or inhumane treatment of detainees in our custody, wherever they are held. 
United States, Statement by the Legal Adviser, US Department of State, before the UN Human Rights Council, Geneva, 9 November 2010, p. 2.
The US Field Manual (1956) restates Article 32 of the 1949 Geneva Convention IV, which provides that States have agreed not to take any “measures of such character as to cause the physical suffering … of protected persons in their hands”. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 271.
According to the US Instructor’s Guide (1985), “beating a prisoner or applying electric shocks, dunking his head into a barrel of water, and putting a plastic bag over his head to make him talk” are acts of torture and inhumane treatment. 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 10.
The US Manual for Military Commissions (2007) states:
Confessions, admissions, and other statements
(b) Definitions. As used in these rules:
(3) Torture. For the purpose of determining whether a statement must be excluded under section (a) of this rule, “torture” is defined as an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control. “Severe mental pain or suffering” is defined as the prolonged mental harm caused by or resulting from:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) 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. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part III, Rule 304(b), pp. III-8 and III-9.
The US Manual for Military Commissions (2010) states:
Confessions, admissions, and other statements
(b) Definitions. As used in these rules:
(3) Torture. For the purpose of determining whether a statement must be excluded under section (a) of this rule, “torture” is defined as an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incident to lawful sanctions) upon another person within the actor’s custody or physical control. “Severe mental pain or suffering” is defined as the prolonged mental harm caused by or resulting from:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) 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.
(4) Cruel, inhuman or degrading treatment. The term “cruel, inhuman, or degrading treatment or punishment” means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984, without geographical limitation. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 304(b)(3) and (4), pp. III-7, III-9 and III-10.
The US Torture Victim Protection Act (1991) defines torture as “any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering … whether physical or mental, is intentionally inflicted on that individual”. 
United States, Torture Victim Protection Act, 1991, Section 3.
The US War Crimes Act (1996), as amended by the Military Commissions Act (2006), includes in its definition of war crimes any conduct constituting a grave breach of common Article 3 of the 1949 Geneva Conventions:
§ 2441. War crimes
(c) Definition.—As used in this section the term “war crime” means any conduct—
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or
(d) Common Article 3 Violations.—
(1) Prohibited conduct.—In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(A) Torture.—The act of a person who commits, or conspires or attempts to commit, an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
(B) Cruel or inhuman treatment.—The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
(F) Intentionally causing serious bodily injury.—The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.
(2) Definitions.—In the case of an offense under subsection (a) by reason of subsection (c)(3)—
(A) the term “severe mental pain or suffering” shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340 (2) of this title;
(B) the term “serious bodily injury” shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113 (b) (2) of this title;
(D) the term “serious physical pain or suffering” shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves—
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and
(E) the term “serious mental pain or suffering” shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term “severe mental pain or suffering” (as defined in section 2340 (2) of this title), except that—
(i) the term “serious” shall replace the term “severe” where it appears; and
(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears.
(3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack.—The intent specified for the conduct stated in subparagraph … (F) o[f] paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to—
(A) collateral damage; or
(B) death, damage, or injury incident to a lawful attack.
(5) Definition of grave breaches.—The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article. 
United States, War Crimes Act, 1996, 18 United States Code Sec. 2441, as amended by Military Commissions Act, 2006, 17 October 2006, § 2441(c)(3) and (d).
The US Detainee Treatment Act (2005) states:
Sec. 1003. Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government
(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined – In this section, the term “cruel, inhuman, or degrading treatment or punishment” means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984. 
United States, Detainee Treatment Act, 2005, Title X of Public Law 109-148 (the 2006 Department of Defense Appropriations Act), 119 Stat 2680, 30 December 2005, § 1003(d).
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“…
“(11) TORTURE.—
“(A) OFFENSE.—Any person subject to this chapter who commits an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) SEVERE MENTAL PAIN OR SUFFERING DEFINED.—In this section, the term “severe mental pain or suffering” has the meaning given that term in section 2340(2) of title 18.
“(12) CRUEL OR INHUMAN TREATMENT.—
“(A) OFFENSE.—Any person subject to this chapter who commits an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) DEFINITIONS.—In this paragraph:
(i) The term “serious physical pain or suffering” means bodily injury that involves—
(I) a substantial risk of death;
(II) extreme physical pain;
(III) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(IV) significant loss or impairment of the function of a bodily member, organ, or mental faculty.
(ii) The term “severe mental pain or suffering” has the meaning given that term in section 2340(2) of title 18.
(iii) The term “serious mental pain or suffering” has the meaning given the term “severe mental pain or suffering” in section 2340(2) of title 18, except that—
(I) the term “serious” shall replace the term “severe” where it appears; and
(II) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears.
“(13) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—
“(A) OFFENSE.—Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
“(B) SERIOUS BODILY INJURY DEFINED.—In this paragraph, the term “serious bodily injury” means bodily injury which involves—
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the function
of a bodily member, organ, or mental faculty. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2626-2627, § 950v(b)(11)–(13).
The Military Commissions Act also states:
Sec. 6. Implementation of Treaty Obligations
“ …
“(b) REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE.—
“(1) IN GENERAL.—Section 2441 of title 18, United States Code, is amended—
“ …
“(B) by adding at the end the following new subsection:
“(d) COMMON ARTICLE 3 VIOLATIONS.—
“(1) PROHIBITED CONDUCT.—In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
“(A) TORTURE.—The act of a person who commits, or conspires or attempts to commit, an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
“(B) CRUEL OR INHUMAN TREATMENT.—The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
“ …
“(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2633 and 2634, Sec. 6(b)(1)(B)(d)(1)(A), (B) and (F).
In 2002, in the Mehinovic case, a civil lawsuit filed on behalf of four Bosnian Muslims who were tortured by a Bosnian-Serb soldier in Bosnia-Herzegovina in 1992, the US District Court Northern District of Georgia found the defendant liable for: torture; cruel, inhuman and degrading treatment; arbitrary detention; war crimes; crimes against humanity; and genocide. The Court awarded the plaintiffs US$ 140 million in damages. In its judgment, the Court stated:
Generally, cruel, inhuman, or degrading treatment includes acts which inflict mental or physical suffering, anguish, humiliation, fear and debasement, which do not rise to the level of “torture” or do not have the same purposes as “torture.”
[U]nder international law, “inhuman treatment” includes “not only acts such as torture and intentionally causing great suffering or inflicting serious injury to body, mind or health but also extends to other acts contravening the fundamental principle of humane treatment, in particular those which constitute an attack on human dignity.” ICTY, Prosecutor v. Blaskic, Case No. IT-95-14, Judgment (Trial Chamber I, March 3, 2000) § 155 (citing Delalic, Judgment (Trial Chamber) § 544. Similarly, “willfully causing great suffering or serious injury to body or health” includes injury to “mental health” and “includes those acts which do not fulfill the conditions set for the characterization of torture, even though acts of torture may also fit the definition given.” ICTY, Prosecutor v. Blaskic, Case No. IT-95-14, Judgment (Trial Chamber I, March 3, 2000) § 155 (citing Delalic, Judgment (Trial Chamber) § 511. 
United States, District Court Northern District of Georgia, Mehinovic case, Judgment, 29 April 2002.
The Agent Orange case in 2005 involved a class action suit filed on behalf of various Vietnamese nationals and an organization, The Vietnamese Association for Victims of Agent Orange/Dioxin, against Dow Chemical and other US chemical manufacturers, for harms allegedly done to them and their land through the United States’ use of Agent Orange and other herbicides during the Vietnam War from 1965 to 1971 and by the South Vietnamese government’s subsequent use of such herbicides until 1975. In dismissing the claims, the Court found that, while recognizing the evolution of international law since 1975, the use of herbicides did not violate, at the time they were used, either customary or conventional international law binding on the United States. With regard to the question of whether the use of herbicides constituted torture, the Court stated:
The use of herbicides in Vietnam does not fit within the definition of either torture or extrajudicial killing. Plaintiffs were not within the defendants’ custody or physical control, nor that of the United States, when herbicides were used. Nor were herbicides used to intentionally inflict pain and suffering. They were used to kill plants. 
United States, Eastern States District Court (EDNY), Agent Orange case, Judgment, 28 March 2005, pp. 176–177.
In August 2002, in response to a request from the Counsel to the President, the Office of Legal Counsel, Department of Justice, provided its views regarding the standards of conduct under the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340–2340A of Title 18 of the US Code. These included:
We conclude below that Section 23440A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture …
… We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g. lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party. The legislative history simply reveals that Congress intended for the statute’s definition to track the Convention’s definition of torture and the reservations, understandings, and declarations that the United States submitted with its ratification. We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.
… We conclude that the treaty’s text prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for “cruel, inhuman, or degrading treatment or punishment.” This confirms our view that the criminal statute penalizes only the most egregious conduct. Executive branch interpretations and representations to the Senate at the time of ratification further confirm the treaty was intended to reach only the most extreme conduct.
In Part III, we analyze the jurisprudence of the Torture Victims Protection Act, 28 U.S.C. § 1350 note (2000), which provides civil remedies for torture victims, to predict the standards that courts might follow in determining what actions reach the threshold of torture in the criminal context. We conclude from these cases that courts are likely to take a totality-of-the-circumstances approach, and will look to an entire course of conduct, to determine whether certain acts will violate Section 2340A. Moreover, these cases demonstrate that most often torture involves cruel and extreme physical pain. In Part IV, we examine international decisions regarding the use of sensory deprivation techniques. These cases make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.
In Part V, we discuss whether Section 2340A may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President’s Commander-in-Chief powers. We find that in the circumstances of the current war against al Qaeda and its allies, prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war. In Part VI, we discuss defenses to an allegation that an interrogation method might violate the statute. We conclude that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A. 
United States, Department of Justice, Office of Legal Counsel, Memorandum by Jay S. Bybee, Assistant Attorney General, for Alberto R. Gonzales, Counsel to the President, Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A, 1 August 2002, pp. 1–2.
In May 2006, the US Department of State held an on-the-record press briefing during which its legal adviser responded to questions concerning the recently-released Concluding Observations of the Committee Against Torture to the United States’ second periodic report. In responding to a question on what was the legal definition of torture and humane treatment, and the nature of any differences between the United States and the Committee on that matter, he stated:
We don’t think that there is a difference. Torture is a term that is defined in the Convention. Much has been made by some who want to suggest that there is a difference between the definition of torture in the Convention and the definition in our U.S. criminal laws. There are some differences in wording that have to do with the intent that’s required, but that really only has to do with the fact that when a country, and particularly the United States, enacts a criminal statute, in order for the criminal statute to hold up in court, it’s important that there be a very specific intent requirement, that someone is not actually held guilty and accountable for violating a criminal statute unless they intended to do something.
So there were some fine word changes that were made in our U.S. criminal statute that some people have suggested we had nefarious intent, but these were changes that were made by our Senate 10 years ago and not anything – we don’t think there’s a substantial difference between the Convention and the definition in our criminal laws here. 
United States, Department of State Legal Adviser, John B. Bellinger, On-the-Record Briefing on the Committee Against Torture Report, Washington. D.C., 19 May 2006.