A ff one 15 Feb U6 Suhj: The lx/ioCe.in Amendment and US. Obligations under Artiole ld of the Coe vention Against Torture Article 16 of the Convention Ageinet Torture panties "to prevent io any territory uoderits jurisdiiztioo other acts of cruel, inhuman, or degredio treemeot or punishment which do not amount to torture The State Department agreed with the Justice Department May 2005 oonolusiorl that this Article did not apply to CIA ioterrogetions io foreign countries. That situation. has now changed. Ae rhettet oipolioy, the US. govemmeot publicly extended the prohibition against cruel, iohumeo., or~degre.ciing treetozeiit tool] conduct worldwide. And then, as emetter of law, the MoCe.io Amendment exteoded the epplieetioo ofAi'tic:ie 16 of the Convention A.geiostTott1ire to hy US. officials aiiywhere in the world. . The of Article i6 of the CAT now do apply to the eoheooed interrogation teehoiquee euthorieed for employment hy CIA. .hi this case, given the reieti ouship of domestic law to the question of treaty iuteipretetioii, the responsibility of advising oo interpretation ie shared by both die Departmgent of State and the Depmicnent of Justice. The Sene.te'e reservation stated that the CATS ben oo "oi'uel, or degrading treatment or punishment# would hind the U.S. only insofar es it meant the omel, imosuel and inhumane treatment or pimiehment prohibited by the Fifth, Eighth, and/or Fourteenth Arneociments. So, to define the we are to look principally to America? 'cruel and tmusuel' standard. Though that standard is found in the Eighth Amendment, the Seoatcfs invocation of the Fifth and Fourteenth sense because. as matter of substantive doe process, "the Due Process C1auee,oi` the Fourteenth fmzieiidrnent [which uses the game language as thelhifth Amendment] _incorporates the Eighth .Amoodme:ot'e guerantee against c-:mel fl gl- oepi 3 gg; )Df%ny( "gr Exemption" ,r 'Qi ildgi one esiroeeiv otoeoscs or-cocci# end cousuel puo.isltment." Goodman on Georgie; 3.26 877, S79 (Jen. 10, 2006), citing Louisiana ex rel Francis if. Resycbez, 32? US. 459, 463 (1947). The "cruel and is also the restrictive standard available anywhere ic American ,After ell, the Eighth Amendment. sets the floor oo what ceo be dcoc to the most dangerous ciieoders American law, people who can legally be punished, even legally put to death, All other stenderds of treatment in American lew ere ,cmgge restrictive, since to people who have not been convicted of crimes (as with pretrial detention, civil commitment, etc.) eodwhere the clue process standard judges whetlmer they can be deprived of their liberty at ell. This is why the "cruel and ttousual' test one aspect of substantive doe process, where it is kind of floor in larger of protections. Jones v, Johnsen, 781 F.2d 769 (9th Cir. Amendment ss minimum standard in case involviogpretriel detention). Further, the term "degrading" isa vegcer arid potentially more restrictive term than "cruel" or "inhumeri." This is another reason wby it is fortunate that the Senate pointed to the "cruel and unusual" lice of cases as the place . to define the ban. 1 There ere greet many cases on meaning of "cruel and unusual." As the Supreme Court has repeatedly said, writing about conditions of the words should be interpreted in 'fflexible and dynamic manner." "No static test can exist by which courts may determine whether conditions of GLC did not cite Eighth Amendment precedents in its .2005 opinion because the Eighth Amendment ld ta to ec lc who had not been judged guilty crime Cl) This argument confuses two "ffl" 11? PP kinda The Senate commanded that 'cruel and unusual' standard bc used for substantive i ld definition cf conduct prevented ey the treaty, not for a the categories of people who cou claim the tzcaty's protections, (2) The is also immaterial. No constitutional protections formally apply to these prisoners. The protections, including the Fife: Amendment once that DLC acknowledges, are being artificially imported to them by the operation and the Senate reservedoe. The Eighth Amendment carries ovcrjust as well, both directly and through its inclusion as ad aspect of the substantive duo process protected under the Fifth and Fourteenth. (3) The Eighth Amendment is a standard. If we reject this standard becsusefthe people have not been convicted of crime, time must find a standard oven higher; and more restrictive, that would apply in like pretrial detention or civil commitment. OFORN git' V. #fu I . "5 5lN cw it tel Draft 15 Feb O6 3-V 3 5 tilt confinement are cruel and unusual, for the Eighth Amendment 'must draw its meaning from the evolving standards of decency that mark the progress - ofa maturing Rhodes if, Chapman, 452 33 7, 346 (1981), citing Trop if. Dolls, 356 U.S. So, ld! (1958). The 'ofeatmeor or punishment need not be harbarous. The Court has used terms like "serious depriw/ations of human needs" or conditions whieh "deprive inmates of the minimal civilized roeasore oi`life's necessities." Bot oeaonent or punishment, if it is otherwise justified, can certainly be "restrictive and even harsh." Rhodes, s52t1s,ais47. Though the Supreme Court has frequently been divided on applying the "evolving standards of decency" test, it has clearly agreed that, "In discerning those 'evolving s.tandards,' we have looked to objective evidence ofhow our societyyiews a particular punishment today," looking for reliable eobjective evidence of contemporary values, such as the practices of legislatures. Peng v, Lynaugh,/192 U.S. 302, 331 (l989)(uuanimous portion of opinion), Liniaddition to the 'cruel and unusual' standard, which especially applies to conditions of confinement, the substantive due process requirements also prohibit methods of interrogation that would "shock the conscience." Both standards must be discussed. The enhanced interrogation techniques combine manipulations of the conditions of confinement with the use of specific coercive methods during the questioning itseli The 'shocks the conscience' test has been applied to interrogations on several occasions, but such cases are new relatlvelyrwe. The Courtruled in 2003, for example, that aa :man who had been questioned for ten minutes while in pain after being justifiably wounded by police ofticers could sue with a claim that his right to substantive due process had been violated by conduct that shocked the conscience. Chavez v, Marti; ez, 538 U.S. 760 (2003). Such interrogation cases have seldom risen to Supreme Court review in the post-Mirandaera since the 1960s. Among the last such cases the Court found violations of due process where the prisoner had been held ineorumunzicado and questioned for a prolonged period. Eg., Darwin v. 9. oFoaN iaaodasos dee Wwixifis heavier? 3 22 IUQHY /Nososs oss is so Us Coo.neotict1t,39l US. 346 (l96S); Clegis v. 386 US. 707 (l967}. Io soothe: case where police officer questioned wounded prisoner, threatened to kill him, sod fired s. gun nest his est, the Court also "gross eoercion."Beecl1et v. Algbams, 389 U.S, 35, 38 (1957). In opplyiog both tests, courts look to cumulative effect-itjt1dges the sets both alone ot in combination, Rhodes, 452 U.S. (sometimes also referred to as the "totality of The cases reveal spectrum of views. Some techniques that are merely intrusive or pass either test if there is worthy state interest in' using them. Almost all of the techniques in question here would be deemed wanton and unnecessary and would immediately fail to peso muster unless there was a. strong state interest in using them. So we presume for this opinion that they all justified hy valid state interest the need to obtain itiformotioo to protect the country. But that is only pert ofthe test. Under American low, there is no precedent for excusing treatment ther is "cruel" even if the state asserts compelling need to use it. I The GLC sgtees that some conduct is prohibited oo matter how compelling the stste interest rosy he. lo attempting to define such prohibited conduct, OLC'loolced at whether the enhanced interrogation techniques io question caused severe pain or suffering or inflicted significant or harm. In other words, OLC concluded that "the techniques do not amount to torture." OLC opinion of May 30 27'snd note 26 in the May 26 draft). But the CAT's Article 16 states explicitly that the prohibited cruel, inhuman, or degrading acts "which do not amount to torture." Moreover, OLC's own opinion on the legal definition, of torture emphasises the diffetencc. OLC quoted the Senste's explanation that: "'Torture' is thus to be distinguished from lesser forms of cruel, inhuman, or degrading treelment or punishment, which are to 'oe depleted ood prevented, sei ifwi 325 if *fe "wif its fro eesteei edu fy 4 -Il -L. SIN SZUEMHY uf ff .qv 5 1 of 1~ Dreft 15 Feb 06 t.Z. 5 l, 3 . oarand oetegorioslly condemned ss to warrant the severe legal consequences that the Convention provides in the case of torture." GLC opinion ofDeo, 30, 2004, p. 4, see also note 14. If the techniques, taken togetlzer, are lntriosieell cruel, inliumen, or degsding - Le., if under Amerioeo constitutional low they would be either be eoosidered oruel end uirtusoel _oi shook the oonscienoe, theo they are prohibited. They een be owed, pet se, even if they do not amount to torture. And they een be barred even it" there is compelling state interest asserted to justify them. In looking to objective to inform judgment about evolving standards of docenoy or iotertogetioo techniques that shook the oonsoienoe, three sources stood out: Amerioeo any agency, in holding or questioning enemy oombetents -~'inol'oding enemy combatants who do not have Geneve protection or who were regexded at the time as suspected terrorists, guerrillas, spies, or ssboteurs. We are unaware or any precedent in World WM H, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here, Sven where the prisoners were presumed to be unlawful combatants. Recent practice bypolioe ood prison authorities in GOI1l`1l1lI1g or questioning their most dangerous suspects. This practice is espeoielly helpful since theseeuthorities are governed by substentively sirniler to those that would apply lander the CAT, given the Senete's reservation, We have not conducted review ofAmorioa;t1 domestic 2 SLC ated that some of the questioned prsotiees on: openly regarded as torture in the Army Field Manuel. It said that the Mammal sppiied to oombetants protections, and these do not. it did. et ueiify DLC dtdnot discuss in questaomeg enerny eombstams for Geneva protection Also, the question of whethot oombsfants ere protested or not is not necessarily relevant to noting whether the rnilitary regards the preetiees as torturous or cruel, for the purpose of establishing evolving standards of ill/ . OFORN ,ee . to 1 EIN ?w9 OFORN Draft psactics. From the available cases, it appears likely that some cf the techniques being used wculd likely pass muster; sex/eral almost certainly would act. 3 ll Recent practice by cthei' advanced that face potentially catasaephic terrorist ac. ers. have abandoned scveral cf" the techniques in question ere. It tberefcrc appears te us that several cf these tecimiqucs, singly cr in ccmbiaaliozi, should be considered "cruel, inhuman, or degrading treatmem: or p11eisl1mcnt"within the meaning of Article 16. The techniques least likely tc be sustained are the techniques described as "ccercive,"' especially viewed cumulatively, such' as the watcrboard, walling, dcusingl stress positions, and cramped cenfmement. Those mast likely tc be sustained are the basic detention conditions sad, in ccntext, the corrective techniques, such as slaps. The control ccnditiciis, such as nudity, sleep depiivaticn, and liquid diet, may also be sustainable, depending ca the circumstances and details cf how these techniques are used. 3 GLC did not review practice and prison authorities. DLC did argue that naticnal security cceld justify more invasive practices _than might perhaps be justifiable only by law interests. This may be valid argument where the technique might be close tc domestically, But if the technique, would viclatc domestic standards, it is nonetheless forbidden. The Senate pcirited tc domestic ccfraativcticnsl law as the scarce for defining this internsticnal treaty cbligsticn. osoaw if; gf diss; -ps si P, il .sf dave# *nu* em 32104:-nf 3