OLC Memo: undated draft analyzing CIA's interrogation program under the Convention Against Torture

<p>This document (identical to ACLU-RDI 4589, 4590, and 4592) is an undated draft memo from the OLC analyzing whether the CIA interrogation program would violate Article 16 of the Convention Against Torture. The document argues that they do not violate U.S. obligations because the interrogations take place outside of the jurisdiction of the United States. It also concludes that even if the Convention did apply, the CIA interrogation program does not &quot;shock the conscience,&quot; and therefore would not violate the CAT. The document states that the interrogation techniques are not &quot;beyond the pale&quot; because SERE techniques are used on U.S. troops during training. [OLC Vaughn Index #136]</p>

Legal Memo
Sunday, August 23, 2009

I. COPY -T NT'L c N INF( M . Not 0;xmii txper:w,3 akilhorimc: tssi. yoi?. are T.xE dQc.z1.-,n);Inzi o:*.;.-$mfic.mg • ;-.k);.3;;-rm ac.knowN:dp afld wai ft;:•;•)-:km by 14'm Unik:d Statin -f:;osneivmni Ws) ,arly diu:knum d A ;:ed. irifxrr:atin is.skt '.0 k.s., kaw ,,,,,,,,,,, "¦•¦••••••••• [)ATE NAME DATE NAME r. • \S. • J OLC 0 120P z ETD The CIA interrogation program, which is conducted outside the special maritime and territorial juisdiction of the United States, is not subject to the requirements of Anicle 1$ of the CAT. t) Article 16(I) requires that. the 'United States "undertake to pre: ;t rod.fluman or degradinF treatment of putilahment" only in "an.i. , ferriton, under its ju.risdicOoe The. CAT uses the phrage any territotvi'der 4 -) r „ over which a state may "take . . ; aivejudchi or other I easures. Art. 2(1); see also Alt. SG). :.rervation under which the UniteA States is bound only with respect to "the cruel, untmal and inhumane treatment or punishment prohibited by the Fifth. Eighth, and/or Fou.ftent.11 Ame.ndment -provisions that do not apply to aiiens -oumide of tk Iinitv3 State& tele limited iCrritOtial reach is- confirmed by a ren- The CIA intettoktation progarrt would not viollate U.S, obligations under Article [6 ifit wow, Article 16 w(nlid mohibit the United States fiotn tteating detainees in a manner that shocks the conscience:" • \e1.her government • .„:110.1‘., ..vnte 4 :4 (1). V,Thether the conductis -arbitrary in the crN'Oltutional sem. (2) Whether, (oni,idereri in light attaditiona contemporary ext ctiye practice, the conduct is sufficietthy "e.g:c4(ws"' to "O lock Ihe mrtemporary conscience." • The CIA intarogation progtam, which ffitthers the pvernment'$ inieleSt in national security and in which techniques are a:Allot:I:zed necelp.-ily to protect that iaie.rtg, cannot be said to be constitutionally arbitrary. • The techniques do not "shock the contemporary conscience,' although their use in other contexts (such as ordinary criminal investigations or traditional armed conflicts) might. ImportarAly,.the CIA, interrogation techniques are all adapted from the Survival, Evasion, Resistance, Escape ("SERr) tnlinirm.. The that the United States uses these techniques on its own troops strotwly suggests that these techniques RrO nOt. -­ ZItec!Xie...ally beyond the pale. 4 (Iiiven the. vague mttore of the shocks-the-conseiem-,e teat and the lack of procei.,%ii,t in this context, We eannOt prediet With COnfideMe Wil her a court s,,ould ‘a.:Tee th a i...aivsia But because of territorial limitation in 1-rticie If.: and. tht fkt that it is non-seIf-executine„ we think the question should not mach the COUnS. Qr DOJ OLC 001191