Torture in the United States includes documented and alleged cases of

torture Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogation for information, or intimidating third parties. Some definitions are restricted to acts c ...

both inside and outside the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...

by members of the

government A government is the system or group of people governing an organized community, generally a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...

, the

military A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. It is typically authorized and maintained by a sovereign state, with its members identifiable by their distinct ...

law enforcement agencies A law enforcement agency (LEA) is any government agency responsible for the enforcement of the laws. Jurisdiction LEAs which have their ability to apply their powers restricted in some way are said to operate within a jurisdiction. LEAs ...

intelligence agencies An intelligence agency is a government agency responsible for the collection, analysis, and exploitation of information in support of law enforcement, national security, military, public safety, and foreign policy objectives. Means of informatio ...

health care services The healthcare industry (also called the medical industry or health economy) is an aggregation and integration of sectors within the economic system that provides goods and services to treat patients with curative, preventive, rehabilitative, ...

, and other public organizations. Torture is illegal in the United States. The United States came under scrutiny for controversial practices, both from within and without, following the

Military Commissions Act of 2006 The Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. The Act's stated purpose was "to authorize trial by military commission for violations of the law of ...

. After the U.S. dismissed

United Nations The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...

concerns about torture in 2006, one UK judge observed 'America's idea of what is torture ... does not appear to coincide with that of most civilized nations'. While the term "torture" has a variety of definitions and cultural contexts, this article addresses only those practices qualifying as torture under the definition of that term articulated in the

codified law In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law. Codification is one of the defining features of civil law jurisdi ...

(primarily

statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...

) and

case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...

of the United States.''See'' article on

precising definition A precising definition is a definition that contracts or reduces the scope of the lexical definition of a term for a specific purpose by including additional criteria that narrow down the set of things meeting the definition. For example, a dicti ...

. The Human Rights Measurement Initiative gives the US a score of 3.6 out of 10 for the right to freedom from torture and ill-treatment.

Legislation, regulation, and treaties regarding torture

Torture Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogation for information, or intimidating third parties. Some definitions are restricted to acts c ...

is illegal and punishable within U.S. territorial bounds. Prosecution of abuse occurring on foreign soil, outside of usual U.S. territorial jurisdiction, is difficult.

Prohibition under domestic law

Bill of Rights

Torture as a punishment falls under the cruel and unusual punishment clause of the

Eighth Amendment to the United States Constitution The Eighth Amendment (Amendment VIII) to the United States Constitution protects against imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment was adopted on December 15, 1791, along with the rest of the ...

. The text of the Amendment states that:

Excessive bail The Excessive Bail Clause of the Eighth Amendment to the United States Constitution prohibits excessive bail set in pre-trial detention. If a judge posts excessive bail, the defendant's lawyer may make a motion in court to lower the bail or appe ...
shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments Cruel and unusual punishment is a phrase in common law describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisd ...
inflicted.

The

U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

has held since at least the 1890s that punishments which involved torture are forbidden under the Eighth Amendment.

18 U.S.C. § 2340 (the "Torture Act")

An act of torture committed outside the United States by a U.S. national or a non-U.S. national who is present in the United States is punishable under . The definition of torture used is as follows:

Military Commissions Act of 2006

In October 2006, the United States enacted the

, authorizing the

President President most commonly refers to: *President (corporate title) *President (education), a leader of a college or university *President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ful ...

to conduct

military tribunals Military justice (also military law) is the legal system (bodies of law and procedure) that governs the conduct of the active-duty personnel of the armed forces of a country. In some nation-states, civil law and military law are distinct bodie ...

enemy combatants Enemy combatant is a person who, either lawfully or unlawfully, engages in hostilities for the other side in an armed conflict. Usually enemy combatants are members of the armed forces of the state with which another state is at war. In the case ...

and to hold them indefinitely without judicial review under the terms of ''

habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...

''. Testimony coerced through humiliating or degrading treatment would be admissible in the tribunals.

Amnesty International Amnesty International (also referred to as Amnesty or AI) is an international non-governmental organization focused on human rights, with its headquarters in the United Kingdom. The organization says it has more than ten million members and sup ...

and others have criticized the Act for approving a system that uses torture, destroying the mechanisms for judicial review created by ''

Hamdan v. Rumsfeld ''Hamdan v. Rumsfeld'', 548 U.S. 557 (2006), is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay violated both the Uniform Code of Mili ...

'', and creating a parallel legal system below international standards. Part of the act was an amendment that retroactively rewrote the War Crimes Act, effectively making policymakers (i.e., politicians and military leaders), and those applying policy (i.e.,

Central Intelligence Agency The Central Intelligence Agency (CIA ), known informally as the Agency and historically as the Company, is a civilian foreign intelligence service of the federal government of the United States, officially tasked with gathering, processing, ...

interrogators and U.S. soldiers), no longer subject to legal prosecution under

U.S. law The law of the United States comprises many levels of Codification (law), codified and uncodified forms of law, of which the most important is the nation's Constitution of the United States, Constitution, which prescribes the foundation of the ...

for what, before the amendment, was defined as a war crime, such as torture. Because of that, critics describe the MCA as an

amnesty law An Amnesty law is any legislative, constitutional or executive arrangement that retroactively exempts a select group of people, usually military leaders and government leaders, from criminal liability for the crimes that they committed. More speci ...

for crimes committed during the

War on Terror The war on terror, officially the Global War on Terrorism (GWOT), is an ongoing international Counterterrorism, counterterrorism military campaign initiated by the United States following the September 11 attacks. The main targets of the campa ...

U.S. Army Field Manuals

In late 2006, the military issued updated

U.S. Army Field Manuals United States Army Field Manuals are published by the United States Army's Army Publishing Directorate. As of 27 July 2007, some 542 field manuals were in use. They contain detailed information and how-tos for procedures important to soldiers ser ...

on intelligence collection
FM 2-22.3. Human Intelligence Collector Operations
September 2006) and counterinsurgency
FM 3-24. Counterinsurgency
December 2006). Both manuals reiterated that "no person in the custody or under the control of DOD, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in U.S. law." Specific techniques prohibited in the intelligence collection manual include: * Forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner; *

Hooding Hooding is the placing of a hood over the entire head of a prisoner. Hooding is widely considered to be a form of torture; one legal scholar considers the hooding of prisoners to be a violation of international law, specifically the Third and Fo ...

, that is, placing hoods or sacks over the head of a detainee; using duct tape over the eyes; * Applying beatings, electric shock, burns, or other forms of physical pain; *

Waterboarding Waterboarding is a form of torture in which water torture, water is poured over a cloth covering the face and breathing passages of an immobilized captive, causing the person to experience the sensation of drowning. In the most common method ...

; * Using military

working dogs A working dog is a dog used to perform practical tasks, as opposed to pet or companion dogs. Definitions vary on what a working dog is, they are sometimes described as any dog trained for and employed in meaningful work; other times as any dog ...

; * Inducing

hypothermia Hypothermia is defined as a body core temperature below in humans. Symptoms depend on the temperature. In mild hypothermia, there is shivering and mental confusion. In moderate hypothermia, shivering stops and confusion increases. In severe h ...

or heat injury; * Conducting

mock execution A mock execution is a stratagem in which a victim is deliberately but falsely made to feel that their execution or that of another person is imminent or is taking place. The subject is made to believe that they are being led to their own executio ...

s; * Depriving the detainee of necessary food, water, sleep, or medical care.

Prohibition under international law

Torture in all forms is banned by the 1948

Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal De ...

(UDHR), which the United States participated in drafting. The United States is a party to the following international treaties that prohibits torture, such as the 1949

Geneva Conventions upright=1.15, Original document in single pages, 1864 The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conven ...

(signed 1949; ratified 1955), the

American Convention on Human Rights The American Convention on Human Rights, also known as the Pact of San José, is an international human rights instrument. It was adopted by many countries in the Western Hemisphere in San José, Costa Rica, on 22 November 1969. It came into forc ...

(signed 1977), the

International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedo ...

(signed 1977; ratified 1992), and the

United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention Against Torture (UNCAT)) is an International human rights instruments, international human rights treat ...

(signed 1988; ratified 1994). It has neither signed nor ratified the

Inter-American Convention to Prevent and Punish Torture The Inter-American Convention to Prevent and Punish Torture (IACPPT) is an international human rights instrument, created in 1985 within the Western Hemisphere Organization of American States and intended to prevent torture and other similar ac ...

International law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...

defines torture during an armed conflict as a war crime. It also mandates that any person involved in ordering, allowing, and even insufficiently preventing and prosecuting war crimes is criminally liable under the

command responsibility Command responsibility (superior responsibility, the Yamashita standard, and the Medina standard) is the legal doctrine of hierarchical accountability for war crimes.

doctrine.

Historical practices of torture

Slavery

Scourged back by McPherson & Oliver, 1863, retouched

People living as slaves were regulated both in their service and when walking in public by legally authorized violence. On large

plantations A plantation is an agricultural estate, generally centered on a plantation house, meant for farming that specializes in cash crops, usually mainly planted with a single crop, with perhaps ancillary areas for vegetables for eating and so on. The ...

, slave overseers were authorized to whip and brutalize noncompliant slaves.

Slave codes The slave codes were laws relating to slavery and enslaved people, specifically regarding the Atlantic slave trade and chattel slavery in the Americas. Most slave codes were concerned with the rights and duties of free people in regards to ensla ...

authorized, indemnified or even required the use of violence and were long criticized by

abolitionists Abolitionism, or the abolitionist movement, is the movement to end slavery. In Western Europe and the Americas, abolitionism was a historic movement that sought to end the Atlantic slave trade and liberate the enslaved people. The Britis ...

for their brutality. Slaves as well as free

Blacks Black is a racialized classification of people, usually a political and skin color-based category for specific populations with a mid to dark brown complexion. Not all people considered "black" have dark skin; in certain countries, often in ...

were regulated by the

Black Codes The Black Codes, sometimes called the Black Laws, were laws which governed the conduct of African Americans (free and freed blacks). In 1832, James Kent (jurist), James Kent wrote that "in most of the United States, there is a distinction in re ...

, and had their movements regulated by patrollers and

slave catchers In the United States a slave catcher was a person employed to track down and return escaped slaves to their enslavers. The first slave catchers in the Americas were active in European colonies in the West Indies during the sixteenth century. I ...

, conscripted from the white population, who were allowed to use summary punishment against escapees, which included maiming or killing them.

Lynching

Lynching was a public act of murder, torture, and mutilation carried out by crowds, primarily against

African Americans African Americans (also referred to as Black Americans and Afro-Americans) are an ethnic group consisting of Americans with partial or total ancestry from sub-Saharan Africa. The term "African American" generally denotes descendants of ens ...

. A form of mob violence and social control, usually involving (but by no means restricted to) the illegal hanging and burning of suspected criminals, lynch law cast its pall over the

Southern United States The Southern United States (sometimes Dixie, also referred to as the Southern States, the American South, the Southland, or simply the South) is a geographic and cultural region of the United States of America. It is between the Atlantic Ocean ...

from the mid-19th to the mid-20th centuries. Victims were usually black men, often accused of acting

uppity {{Short pages monitor The Bush administration told the CIA in 2002 that its interrogators working abroad would not violate U.S. prohibitions against torture unless they "have the specific intent to inflict severe pain or suffering," according to a previously secret Justice Department memo released on 24 July 2008. The interrogator's "good faith" and "honest belief" that the interrogation will not cause such suffering protects the interrogator, the memo adds. "Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture," Jay Bybee, then the Assistant Attorney General for the Office of Legal Counsel, wrote in the memo. The 18-page memo is heavily redacted, with 10 its 18 pages completely blacked out and only a few paragraphs legible on the others. Another memo released on the same day advises that "the waterboarding, waterboard" does "not violate the Torture Statute." It also cites a number of warnings against torture, including statements by President Bush and a then-new Supreme Court ruling "...which raises possible concerns about future U.S. judicial review of the [interrogation] Program." A third memo instructs interrogators to keep records of sessions that use "enhanced interrogation techniques." The memo is signed by then-CIA director George Tenet and dated January 28, 2003. The memos were made public by the American Civil Liberties Union, which obtained the three CIA-related documents under Freedom of Information Act (United States), Freedom of Information Act requests.Previously secret torture memo released
July 24, 2008, CNN.com Intentionally causing mental suffering — as well as physical suffering — is prohibited, according to an unclassified analysis written by the U.S. Office of Legal Counsel in December 2004.

Authorization and methods of torture and abuse

The ''Post'' article continues that sensory deprivation, through the use of hoods and spraypainted goggles, sleep deprivation, and selective use of painkillers for at least one captive who was shot in the groin during his apprehension are also used. The agents also indicate in the report that the CIA as a matter of course hands suspects over to foreign intelligence services with far fewer qualms about torture for more enhanced interrogation, intensive interrogation. (The act of handing a suspect to another organization or country, where it is foreseeable that torture would occur, is a violation of the UNCAT, Convention against torture; see torture by proxy.) The ''Post'' reported that one U.S. official said, "If you don't violate someone's human rights some of the time, you probably aren't doing your job." Based on the Justice Department analyses, Defense Secretary Donald Rumsfeld later approved in 2003 the use of 24 classified interrogation techniques for use on detainees at Guantanamo Bay, which after use on one prisoner were withdrawn. In court filings made public in January 2007, FBI agents reported that detainees at Guantanamo Bay were: chained in a fetal position to the floor for at least 18 hours, urinating and defecating on themselves; subjected to extremes of temperature; gagged with duct tape; held in stress positions while shackled; and subjected to loud music and flashing lights.FBI
FOIA document
/ref> Senior administration officials have repeatedly denied that torture is being conducted in the detention camps at Camp X-ray, Guantanamo Bay. However, the Bush administration explicitly endorsed the use of interrogation techniques such as waterboarding in memos to the CIA,Joby Warrick
CIA Tactics Endorsed In Secret Memos
Washington Post Staff Writer, October 15, 2008; A01 and one Pentagon official has publicly admitted that torture was conducted at Guantanamo Bay. Manfred Nowak, United Nations Special Rapporteur on

, said that numerous cases of torture ordered by U.S. officials and perpetrated by U.S. authorities are well documented.

We possess all the evidence which proves that the torture methods used in interrogation by the U.S. government were explicitly ordered by former U.S. defence minister Donald Rumsfeld...Obviously, these orders were given with the highest U.S. authorities' knowledge.

Allegations emerged that in the Coalition occupation of Iraq after the second Gulf war, there was extensive use of torture techniques, allegedly supported by American military intelligence agents, in Iraqi jails such as Abu Ghraib and others. In 2004 photos showing humiliation and abuse of prisoners leaked from Abu Ghraib prison, causing a political and media scandal in the U.S. and the whole world. Condoleezza Rice, Secretary of State ultimately told the CIA the harsher interrogation tactics were acceptable,''As Bush Adviser, Rice Gave OK to Waterboard'' Fox News, April 22, 2009
''Senate Report: Rice, Cheney OK'd CIA use of waterboarding'' CNN, April 23, 2009 In 2009 Rice stated, "We never tortured anyone." On February 14, 2010, in an appearance on American Broadcasting Company, ABC's This Week (ABC TV series), This Week, Vice-President Dick Cheney reiterated his support of

waterboarding Waterboarding is a form of torture in which water torture, water is poured over a cloth covering the face and breathing passages of an immobilized captive, causing the person to experience the sensation of drowning. In the most common method ...

and enhanced interrogation techniques for captured terrorist suspects, saying, "I was and remain a strong proponent of our enhanced interrogation program." Pressed by the BBC in 2010 on his personal view of waterboarding, Presidential Advisor Karl Rove said: "I'm proud that we kept the world safer than it was, by the use of these techniques. They're appropriate, they're in conformity with our international requirements and with U.S. law."

Secret detention facilities

Both United States citizens and foreign nationals are occasionally captured outside of the United States and transferred to secret U.S. administered detention facilities, sometimes being held incommunicado for periods of months or years. Overseas detention facilities are known to be or to have been maintained at least in Thailand, the Philippines, Pakistan, Afghanistan, Uzbekistan, Azerbaijan, Jordan, Egypt, Iraq, Kuwait, UAE, Saudi Arabia, Morocco, Cyprus, Cuba, Diego Garcia, and unspecified Oceania, South Pacific island nation(s). In addition, individuals are suspected to be or to have been held in temporary or permanent U.S. controlled facilities in Indonesia, El Salvador, Nigeria, Equatorial Guinea, Libya, Israel, Denmark, Poland, Romania, Bulgaria, Albania, Hungary, Germany, and Scotland. There are also allegations that persons categorized as prisoners of war have been tortured, abused or humiliated; or otherwise have had their rights afforded by the Geneva Convention violated.

Torture and extraordinary rendition

Extraordinary rendition is the apprehension and extrajudicial transfer of a person from one country to another.Michael John Garcia, Legislative Attorney American Law Division
Renditions: Constraints Imposed by Laws on Torture
8 September 2009; link from the United State

The term "torture by proxy" is used by some critics to describe situations in which the CIABackground Paper on CIA's Combined Use of Interrogation Techniques
. 30 December 2004. Retrieved 2 January 2010.
. ''Huffington Post''. 28 August 2009. Retrieved 2 January 2010.
American Civil Liberties Union. Retrieved 29 March 2007 and other U.S. agencies have transferred suspected terrorists to countries known to employ

, whether they meant to enable torture or not. It has been claimed, though, that torture has been employed with the knowledge or acquiescence of U.S. agencies (a transfer of anyone to anywhere for the purpose of torture is a violation of U.S. law), although Condoleezza Rice (then the United States Secretary of State) stated that:

the United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured.

Whilst the Obama administration has tried to distance itself from some of the harshest counterterrorism techniques, it has also said that at least some forms of renditions will continue.Obama preserves renditions as counter-terrorism tool
. ''LA Times'' 1 February 2009. Access 21 November 2011. Currently the administration continues to allow rendition only "to a country with jurisdiction over that individual (for prosecution of that individual)" when there is a diplomatic assurance "that they will not be treated inhumanely." Panetta's clarification of current US "Rendition policy". The U.S. program has also prompted several official investigations in Europe into alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states. A #27 June 2006 Council of Europe resolution, June 2006 report from the Council of Europe estimated 100 people had been kidnapped by the CIA on EU territory (with the cooperation of Council of Europe members), and rendered to other countries, often after having transited through secret detention centres ("black sites") used by the CIA, some located in Europe. According to the separate #The European Parliament's 14 February 2007 report, European Parliament report of February 2007, the CIA has conducted 1,245 flights, many of them to destinations where suspects could face torture, in violation of Article 3 of the United Nations Convention Against Torture. Following the 11 September 2001 attacks the United States, in particular the CIA, has been accused of rendering hundreds of people suspected by the government of being terrorists—or of aiding and abetting terrorist organizations—to third-party states such as Egypt, Jordan, Morocco, and Uzbekistan. Such "ghost detainees" are kept outside judicial oversight, often without ever entering U.S. territory, and may or may not ultimately be devolved to the custody of the United States.Mayer, Jane. ''The New Yorker'', 14 February 2005.

Protests

On April 30, 2009, 62 members of Witness Against Torture were arrested at the gates of the White House demanding that the Obama administration support a criminal inquiry into torture under the Bush administration and release innocent detainees still held at Guantanamo. The protesters wearing orange jumpsuits and black hoods, were arrested, and charged with "failure to obey a lawful order" when they refused to leave the White House sidewalk. Protests have been held regarding the issue of torture and its legality as lately as 2015.

United Nations Convention Against Torture

History of U.S. Accession

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture) was adopted on 10 December 1984 at the thirty-ninth session of the United Nations General Assembly, General Assembly of the

. Official Text of Convention
The United States was one of the primary sponsors of a Convention to prohibit torture and to protect human right

; ''See In Matter of J-E,'' discussed herein. It was registered, and came into force, on 27 June 1987 in accordance with Article 27(1) of the Convention.Convention Status
/ref> The United States signed the Convention in the spring of the following year, officially declaring at the time of its signature on 18 April 1988 that

The Government of the United States of America reserves the right to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are deemed necessary.

Thereafter, the United States formally notified the United Nations and its member states, a few months prior to its ratification, that

...nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.

Ratification

The U.S. ratification itself, on 21 October 1994, came some six years after the spring 1988 signature and was subject to numerous (A) reservations, (B) understandings and (C) declarations. These can be read verbatim at the UN treaty website and are parsed here as follows: :A. Reservations: The U.S. made two reservations in connection with its ratification. :B. Understandings: The U.S. announced certain interpretive understandings, "which shall apply to the obligations of the United States under this Convention:" :(2) Pursuant to treaty option, the U.S. is not bound to resolve questions by international arbitration, but it "reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case." :B. Understandings: The U.S. announced certain interpretive understandings, "which shall apply to the obligations of the United States under this Convention:" :(1) Regarding the definition of certain terms in the Convention, ::(a) "Torture"The term "torture" is legally defined in Article 1(1) of the Convention, as follows: "For the purpose of this Convention, the term "torture" means any act by which severe pain or 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 has 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 by 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 sanctions." However, the U.S. has declared that the Convention is not self-executing and therefore the Convention's definition does not directly apply in U.S. law. The U.S. has implemented the Convention definition through its Code of Federal Regulations. must be specifically intended to inflict severe physical or mental pain. Furthermore, "mental pain" refers to prolonged mental harm resulting from either :::(1) the intentional infliction of severe physical pain; :::(2) the administration of mind altering drugs; :::(3) the use of other procedures that are also "calculated to disrupt profoundly the senses or the personality;" :::(4) the threat of imminent death; or :::(5) the threat that another person (e.g. a spouse or relative) will imminently be subjected to the foregoing. ::(b) "Torture" must be an action against a victim in the torturer's custody. ::(c) "Sanction"The term "sanction" is used in Article 1. includes judicially imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law. ::(d) "Acquiescence"The term "acquiescence" is used in Article 1. requires that the public official, prior to the activity constituting torture, be aware that such activity is imminent, thereafter violating his or her duty to prevent such activity. ::(e) A non-compliance with applicable legal procedural standardsFor instance, a failure to promptly inform a suspect that he has a right to see a lawyer, free of charge if he is indigent. does not ''wikt:per se, per se'' constitute torture. :(2) Article 3 forbids deporting a person "where there are substantial grounds for believing that he would be in danger of being subjected to torture." The U.S., attempting to avoid the difficulty of interpreting "substantial grounds for belief," interprets the phrase to mean "if it is more likely than not that he would be tortured." This is essentially the preponderance of evidence test. :(3) Article 14 requires a State Party to provide, in its domestic legal system, a private right of action for damages to victims of torture. The U.S. understands this to apply only for torture committed within territory under the jurisdiction of that State Party. :(4) The U.S. does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Constitution of the United States. :(5) The Convention will only be implemented by the United States "to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention." In other words, the Convention ''per se'' is not U.S. law. By itself, it has no legal effect within the U.S. or upon its representatives. Rather, the Convention imposes an obligationThis "obligation" might itself only be enforceable in the court of world opinion or through United Nations resolution against the US. on the U.S. to enact and implement such domestic laws as will cause it to come into conformity with the requirements of the Convention. This understanding is echoed in the declaration below. :C. Declarations: The U.S. declared that the provisions of Articles 1 through 16 the Convention are not self-executing self-executing.

Evidence of violations

By transferring military detainees to Iraqi control, the U.S. appears knowingly to have violated the Convention Against Torture. The Convention proscribes signatory states from transferring a detainee to other countries "where there are substantial grounds for believing that he would be in danger of being subjected to torture." The U.S. had received reports of more than a thousand allegations, many of them substantiated by medical evidence, of torture in Iraqi jails. Yet U.S. authorities transferred thousands of prisoners to Iraqi custody, including almost 2,000 who were transferred to the Iraqi government as recently as July 2010.

U.S. case law on the convention

Burden of proof

In the U.S., an alien seeking protection against deportation under Article 3 of the ConventionArticle 3 provides that

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

As noted, the U.S. opted to interpret the vague language of "substantial grounds" in article 3(1) as synonymous with the preponderance of evidence standard found in the common law; the "preponderance" standard has been subject of ample decided cases in the US, creating plenty of judicial precedent. must establish that it is more likely than not that he will be tortured in the country of removal.''See'' Understanding number 2 attached to the U.S. ratification of the Convention, establishing the preponderance of evidence rule for the US. Thus, the alien seeking to stop his deportation bears the Legal burden of proof, burden of proof (or risk of non-persuasion) to show that torture is "more likely than not" to occur in the destination country.

''In re M-B-A''

''In re M-B-A'', a 2002 decision by the Board of Immigration Appeals,23 I&N December 474 (BIA 2002) (ID#3480), available a
USDOJ.gov
concerned a 40-year-old Nigerian woman who was facing a deportation order due to a drug conviction in the US. She claimed that if returned to Nigeria, she would be imprisoned and tortured as a result of her U.S. conviction. In her December 1999 hearing before the immigration judge, she presented evidence of Nigeria's Decree No. 33, which authorized imprisonment in her situation. When asked how she knew she would be tortured, she said that some years ago, she had spoken with a Nigerian friend,She suggested that she had spoken to this person by telephone sometime in 1995, more than four years before she was giving her testimony. who had been convicted of a U.S. drug offense and then returned to Nigeria in 1995. The friend had told her that her family had to bring money to the jail for protection, that she slept on the floor and that "you probably get raped" by the guards because they have authority to do "whatever they can do." The friend remained in jail for two months until the family paid a bribe. M-B-A did not know if the friend had seen a judge before being incarcerated, or if the friend had been raped in the prison. M-B-A also presented evidence that she had a chronic ulcer, asthma and suffered from depression; that she was on medication but had no one to help her with medicine if she ended up in jail; that her father was deceased and her mother lived in the UK and that she had no relations to help her in Nigeria, aside from an uncle who had sexually abused her as a child. She claimed she would be beaten and raped in prison by the guards and that most women suffered this treatment, and that her ex-fiancé (who lived in Nigeria) would bribe prison guards to beat her. The full Board of AppealsThe Board consists of up to fifteen immigration law specialists, who sit as immigration appellate administrative law judges. The Board is a part of the executive branch of the U.S. Government, rather than the judicial branch; it is not an "Article III" court under the U.S. Constitution, but rather a type of administrative court within the executive branch. Its decisions are subject to appeal to a U.S. Court of Appeals. considered the question of whether M-B-A had carried her burden of proof in showing that it was more likely than not that she would be tortured by a public official upon her return to Nigeria. In a close 7-6 decision, the Board found that M-B-A had not demonstrated that it was more likely than not that she would be imprisoned in Nigeria on the basis of Decree 33. She did not present any evidence on the question of the extent to which the Decree was enforced, or against whom it was enforced. Her own evidence about enforcement was either (a) her own speculation or (b) based on the conversation with her friend's experience during a different Nigerian regime.In May 1999 the military regime in Nigeria was replaced with a civilian regime under President Obasanjo. Note 2 of decision. The Board stated

she has [not] met her burden of [establishing] that it is more likely than not that her return to Nigeria would result in her detention or imprisonment. . . . [She] must provide some current evidence, or at least more meaningful historical evidence, regarding . . . enforcement of Decree 33 on individuals similarly situation to herself. . . . [Her] case is based on a chain of assumptions and a fear of what might happen, rather than . . . demonstrating that it is ''more likely than not'' that she will be subjected to torture. . . .

Accordingly, the BIA held that M-B-A should be deported. There were two separate dissenting opinions,A total of six judges dissented, four of them joining in one of the dissenting opinions. both of which agreed with the enunciated standard of proof to be used ("more likely than not"), but disagreed over the question of whether the burden had been met by M-B-A. Judge Schmidt's dissent cited the U.S. State Department's report on Nigeria's prison system, reported that one area of abuse in Nigerian prison was the intentional withholding of medical aid or medication. He found on the basis of this report that such withholding (for purposes of e.g. gaining bribes or inflicting punishment) was common in Nigeria and that death from such actions was common. He did not, however, address the majority's assertion that M-B-A had failed to establish, by a preponderance of the evidence, that she would be imprisoned in the first place under Decree No. 33, apparently taking this for granted.The majority decision does not address the question of the likelihood of torture within prison; instead, it finds that M-B-A did not show, by the required evidence standard, that she would be imprisoned at all, which rendered the question of treatment within prison as moot.

Defining "torture"

"Torture" within the meaning of the Convention (and 8 Code of Federal Regulations, Section 208.18) is an extreme form of cruel and inhuman treatment and does not extend to lesser forms of cruel, inhuman, or degrading treatment or punishment.''In the Matter of J-E-''
volume 23
case 3466
(BIA decisions).This does not imply that such "lesser" forms can be committed by governments with impunity. Article 16 the Convention, for example, imposes on each State Party an obligation to try to prevent such "lesser" forms of cruel treatment, even though they do not rise to the level of torture. But only such severe actions that do rise to the level of "torture" are grounds for preventing deportation under the terms of Article 3 of the Convention. For an act to constitute "torture" it must satisfy each of the following five elements in the definition of torture: * the act must cause severe physical or mental pain or suffering * the act must be intentionally inflicted * the act must be inflicted for a proscribed purpose * the act must be inflicted by (or at the instigation of or with the consent or acquiescence of) a public official who has custody of the victim * the act cannot arise from lawful sanctions

Matter of J-E

In the U.S. immigration case of ''Matter of J-E-, 23 I&N December 291'' (BIA 2002)(ID 3466), the indefinite detention of criminal deportees by Haitian authorities did not constitute "torture" where there was no evidence that the authorities intentionally and deliberately detained deportees in order to inflict torture. Likewise, substandard prison conditions in Haiti did not constitute "torture" where there is no evidence that the authorities intentionally created and maintained such conditions in order to inflict torture. J-E was a Haitian who had entered the U.S. illegally and who was later convicted of selling cocaine. The Government sought to deport him, but J-E claimed that he would be imprisoned and tortured if he were returned to Haiti. Therefore, he argued, Article 3 of the Convention prevented his being deported. The Board set out the five-part test for torture and noted that

While the Convention Against Torture makes a clear distinction between torturous and non torturous acts, actually differentiating between acts of torture and other bad acts is not so obvious. Although not binding on the United States, the opinions of other governmental bodies adjudicating torture claims can be instructive.

The Board thereupon considered ''Five techniques, Ireland v. United Kingdom'', 2 Eur. Ct. H.R. 25 (1978), where the European Court of Human Rights held that suspected Provisional Irish Republican Army, IRA members who were subjected to wall standing, hooding, a constant loud and hissing noise in addition to being deprived of sleep, food and drink were subjected to "inhuman and degrading treatment" but not to "torture". It was admitted by all parties that J-E would be indefinitely detained upon return to Haiti. Deportees were held by police in holding cells for weeks before release. However, the State Department report (relied upon by all parties) confirmed that the Haitian government used this policy as a warning and a deterrent, to try to prevent deportees from committing crimes in Haiti.

Thus, Haiti's detention policy in itself appears to be a lawful enforcement sanction ... to protect the populace from criminal acts by Haitians who are forced to return to the country after having been convicted of crimes abroad. ... this policy is a lawful sanction and, therefore, does not constitute torture.... [Also] there is no evidence that Haitian authorities are detaining criminal deportees with the specific intent to inflict severe physical or mental pain or suffering. Nor is there evidence that the procedure is inflicted on criminal deportees for a proscribed purpose, such as obtaining information or a confession.... Haiti's detention practice alone does not constitute torture within the meaning of the regulations.

J-E contended that in any case, the combination of indefinite detention with the admittedly substandard conditions of Haitian prison constitute torture. However, the Board noted that the Convention required that "torture" required a "specific intent" by the accused country in order for torture to result:

Although Haitian authorities are intentionally detaining criminal deportees knowing that the detention facilities are substandard, there is no evidence that they are intentionally and deliberately creating and maintaining such prison conditions in order to inflict torture. ... the Haitian prison conditions are the result of budgetary and management problems as well as the country's severe economic difficulties.... there is no effective delivery system [for food]... we cannot find that these inexcusable prison conditions constitute torture within the meaning of the regulatory definition.

Finally, J-E maintained that mistreatment was common in Haitian prison and that he would be subjected to such mistreatment, and that constituted torture. The Board found that there was, in Haiti,

Beating with fists, sticks and belts ... by far the most common form of abuse. However [there are] other forms of mistreatment, such as burning with cigarettes, choking, hooding and ... severe boxing of the ears, which can result in eardrum damage.... there were also isolated allegations of electric shock...[and] withholding medical treatment.

The Board considered all the evidence submitted and concluded that it showed that isolated incidents of torture did occur in Haitian detention facilities. However, this evidence was not sufficient to demonstrate that it was ''more likely than not'' that J-E would be subjected to torture upon his detention. There was no evidence that the torture was persistent or widespread; or that the Haitian government used torture as a policy; or that there was no meaningful international oversight.The Board noted that the Haitian government cooperated with the Red Cross in delivering aid and allowed a ''Miami Herald'' reporter access to the prisons (part of the newspaper story was used by J-E as his evidence in the hearing). Furthermore, the U.S. had urged the Haitian government to discontinue the indefinite detention practice and the President of Haiti had visited jails and had pardoned several women there, due to the awful conditions. The Board accordingly held—in yet another 7-6 opinion with substantial dissenting opinions—that J-E had failed to carry his burden of showing that the admitted mistreatment was so pervasive that it therefore was ''more likely than not'' that he would be ''tortured'' in a Haitian jail, as opposed to being subjected to cruel and inhuman acts that, while despicable, were less than torture within the meaning of the applicable law. Most of the actions reported against Haiti, the Board decided, were sanctioned under Article 16 the Convention as acts that were "cruel and inhuman" and that State Parties were obliged to correct, but nevertheless did not constitute "torture" within the meaning of Article 1 of the Convention. J-E's appeal to the BIA was therefore dismissed and the deportation order remained in effect.

Notes

;Footnotes

References

* Yee, Sienho (2004). ''International crime and punishment: selected issues', University Press of America'',

External links

released April 16, 2009, in response to a Freedom of Information Act lawsuit

released April 22, 2009

* [https://web.archive.org/web/20100705080839/http://acdis.illinois.edu/publications/207/publication-WarranttoTortureACritiqueofDershowitzandLevinson.html Warrant to Torture?: A Critique of Dershowitz and Levinson], ACDIS Occasional Paper by Jonathan Allen, published by the Program in Arms Control, Disarmament, and International Security (ACDIS), University of Illinois, 2005
Convention Status

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'The Past is a Foreign Country?' Obama and the Torture Files
by Alexandra Barahona de Brito, Opinion, May 2009 European Union Institute for Security Studies * Human Rights First
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{{DEFAULTSORT:Torture And The United States Torture in the United States, Crime in the United States Political history of the United States Violence in the United States