The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) makes a promise to the world that no person “shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 2(2) makes that promise absolute. These provisions dictate to any State that has acceded to the Convention, that they will torture no person, regardless of circumstance. However, since the Convention’s ratification and effect, there have been several distinct infractions by various State parties.
Recently, President Barack Obama admitted to the world that the United States, has “tortured some folks.” The President was referring to actions taken by the Central Intelligence Agency (“CIA”) while it was carrying out its now publically known Extraordinary Rendition Program (“ERP”). The United States government released documents detailing this program and the “Enhanced Interrogation Techniques” (“EIT”) that the CIA used to extract information from its detainees. Some of the methods mentioned in reports include: sleep deprivation, stress positions, and water boarding. A legal memorandum from the Department of Justice’s Office of Legal Counsel (the legal enforcement body that would prosecute if the activity were deemed to be illegal) sent to the Department of Defense’s Office of General Counsel on 14 March 2003, justified the interrogation methods and deemed them as not fitting the definition of torture. The portion of the memorandum that specifically covered the application of international law and the Convention Against Torture explicitly said, “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.” The memorandum then purported to justify the use of EITs, despite the Convention’s explicit absolute prohibition, by exclaiming, “We do not believe . . . that a treaty may eliminate the United States’ right, under international law, to use necessary measures for its self-defense.”
The Committee Against Torture disagreed with the Department of Justice’s assessment on whether the EITs constituted torture under the Convention. According to the CAT’s Concluding Observations on the U.S. in 2006:
- “24. The Committee is concerned that in 2002 the State party authorized the use of certain interrogation techniques, which have resulted in the death of some detainees during interrogation. The Committee also regrets that “confusing interrogation rules” and techniques defined in vague and general terms, such as “stress positions,” have led to serious abuses of detainees. (Articles 11, 1, 2 and 16)
The State party should rescind any interrogation technique, including methods involving sexual humiliation, “water boarding,” “short shackling” and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control, in order to comply with its obligations under the Convention.”
So why did the Department of Justice’s memorandum come out the way it did? There is some gray area in the law, as presented by the memorandum by the DOJ, but that does not quite fully explain the department’s position. The author opines that the reason the memorandum came out the way it did was because the real question presented to the Department of Justice was “can we do this?” and not “should we do this?” 
Steven Ziegler is a 3L and a Resident Student Blogger with the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.
 John Rizzo, Company Man: Thirty Years Of Controversy And Crisis In The CIA, (2014), pp. 181-195.
 Blog post excerpted from paper by Ziegler, Steven. Original filed with author
Additional citations to articles & documents are included in the aforementioned underlined hyperlinks.