DOS Memo: The McCain Amendment and U.S. Obligations under Article 16 of the Convention Against Torture

<p>A State Department memo addressing whether Article 16 of the Convention Against Torture applies to the CIA's interrogations in foreign countries. The State Department determined that the prohibitions against torture do apply, despite its initial conclusion made in May 2005. The memo states that the &quot;situation has now changed&quot; and that &quot;several of these techniques, singly or in combination, should be considered 'cruel, inhuman, or degrading treatment or punishment' within the meaning of Article 16.&quot;</p>
<p>[Memo released Apr. 3, 2012 by the State Department in response to a FOIA request by the National Security Archive]</p>

Legal Memo
Wednesday, February 15, 2006
Monday, April 2, 2012

Draft 15 Feb 06 February 15, 2006 Subj: The Iv.fcCain Amendment and U.S. Obligations under Artic1e 16 ofllie Convention Agains't Torture Article 16 of the Convention Against Torture requires parties "to prevent in any territory under its jlli.'"'isdi6tion other acts of cruel, in.human, or degrading treatment or punishment which do nat amount to torture .... " The State Department agreed with the Justice Department I\1ay 2005 conclusion that this Article did not apply to CIA mterrogations in foreign countries. That situation has now changed. As a matter of policy, the U.S. government publicly extended the prohibition against cruel, inhuman, or degrading . treniment to all conduct worldwide. And then, as a matter of law ~ the McCain .l1mendment extended the application of Article 16 of the Convention Against Torture to conduct by U.S. officials anywhere in the world. The prohibitions of iuticle 16 of the CAT now do apply to the enhanced interrogation techniques authorized for employment by CLA. In this case, given the relationship of domestic law to the questiolloftreaty . interpretation, the responsibility of advising on interpretation is shared by both the Departm;:nt of State and the Depa.rtment of Justice. The Senate's reservation stated that 'the CAT's ban on "cruel, inhuman, or degrading treatment or punishment': 'Yo1l1d bind the U.S. only insofar as it meant the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth ·Amendments. So, to define the CAT's,ban, we are to look principally to America's