E/CN.4/2006/120 page 15 to the Convention and ICCPR made by the United States, indicating that it considers itself bound by the prohibition of cruel, inhuman and degrading treatment only to the extent that it means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States.47 In this regard, he would like to recall the concerns of the relevant treaty bodies, which deplored the failure of the United States to include a crime of torture consistent with the Convention definition in its domestic legislation and the broadness of the reservations made by the United States.48 A. Lack of clarity/confusing rules 46. Beginning in 2001, the Administration of the United States, while officially reiterating its adherence to the absolute prohibition of torture,49 has put in place a number of policies that effectively weaken the prohibition. A concrete example is the memorandum of 1 August 2002 from Jay S. Bybee, then Assistant Attorney-General for the Office of Legal Council at the Department of Justice and now federal judge, to Alberto Gonzales, then Counsel to the President of the United States and now Attorney-General, which attempts to significantly narrow the definition of torture and claims that the necessity of self-defence can justify violations of the law prohibiting the use of torture.50 The Special Rapporteur notes that, as indicated in the response by the United States Government to the questionnaire of 21 October 2005, this memorandum was superseded by a Department of Justice memorandum dated 30 December 2004. 47. However, several subsequent internal Department of Defense memoranda have sought to widen the boundaries of what is permissible in terms of “counter-resistance techniques” (see also section B below). On 16 April 2003, a memorandum was issued, authorizing 24 specific techniques. Its introduction states that “US Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions.”51 This formulation is ambiguous in that it implies that military necessity may override the principles of the Geneva Conventions. In this context, the Special Rapporteur also notes that in its reply to the questionnaire the United States exclusively uses the term “torture” and makes no reference to “cruel, inhuman and degrading treatment and punishment”. 48. The debate in the Senate on 5 October 2005 is telling.52 Senator McCain, describing the confusion that exists regarding authorized and unauthorized interrogation techniques, said: “What this also means is that confusion about the rules becomes rampant again. We have so many differing legal standards and loopholes that our lawyers and generals are confused. Just imagine our troops serving in prison in the field.”53 The Special Rapporteur welcomes that the acceptance made on 15 December 2005 by President Bush of the McCain amendment to the Department of Defense Appropriations Bill prohibiting cruel, inhuman and degrading treatment or punishment (CIDT) with regard to persons kept in detention by the Department of Defense and in the custody or control of the United States Government worldwide, thereby clarifying the confusing rules and codifying the prohibition of CIDT.54 He also considers a significant progress the failure of the attempts of Vice-President Cheney and CIA Director Goss to explicitly exempt the CIA from the legal prohibition of CIDT.