Oakley I’ve gone back to reading the info dump from this Monday. Here is some stuff I found interesting.
DoJ Legal Analysis
1- pg. 16 point 36: CIA’s OGC (Office of General Counsel) sought guidance from DoJ regarding the legal bounds of EITs vis-a-vis individuals detained. The ensuing legal opinions focus on the Convention Against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment (Torture Convention)
point 37: The Torutre Convention specifically prohibits “torture,” which it defines in Article I as: any act by which sever pain of suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted be or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanction. Article 4 of the Torture Convention provides that states party to the Convention are to ensure that all acts of “torture” are offenses under their criminal laws. Article 16 additionally provides that each state party “shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to acts of torture defined in Article 1.”
2- pg. 17 point 38: “The Torture Convention applies to the United States only in accordance with the reservations and understandings made by the United States at the time of ratification. As explained to the Senate by the Executive Branch prior to ratification: Article 6 is arguably broader than existing US law. The phrase ‘cruel, inhuman or degrading treatment or punishment’ is a standard formula in international instruments and is found in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights. To the extent the phrase has been interpreted in the context of those agreements, ‘cruel’ and ‘inhuman’ treatment or punishment appears to be roughly equivalent to the treatment or punishment barred in the United States by the Fifth, Eigth and Fourteenth Amendments. ‘Degrading’ treatment or punishment, however, has been interpreted as potentionally including treatment that would probably not be prohibited by the US Constitution. [Citing a ruling that German refusal to recognize individual’s gender change might be considered ‘degrading’ treatment.] To make clear that the United States construes the phrase to be coextensive with its constitutional guarantees against cruel, unusual, and inhuman treatment, the following understanding is reccomended: ‘The United Stated understands the term ‘cruel, inhuman or degrading treatment or punishment,’ as used in Article 16 of the Convention, to mean the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments tot he Constitution of the United States.’ “
3- pg. 18 point 39: “In accordance with the Convention, the United States criminalized acts of torture in 18 U.S.C. 2340A(a), which provides as follows: Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any terms of years or for life.
The statute adopts the Convention definition of ‘torture’ as ‘an act committed by a person acting under the color of lat specifically intended to inflict sever physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control. ‘Sever physical pain and suffering’ is not further defined, but Congrss added a definition of ‘severe mental pain or suffering:’
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