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Aclu v Dod Olc Combined Torture Documents 2004 Partb

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Central Intelligence Aaency
Offlce of General Counsel
,Washington, D.C. 20505

Date: 06123104

To: Jack Goldsnllth
'Organ1mtlon: Departmenj' JUBtIcelOLC
Phone: [ ,
Fax:

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From:

OrgllnJza~on:
Phone:

Scott W. Muller
J)ff1ce of'General Counsel

Fax:

Number Of Pages (Including Cover) 2
COlDlllenls:

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..' CENTRAL INTELLIGENCE A(,1ENCY
W.ashlngtan, 0.0.20506

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Genaral Co~n8el

22 June 2004

The Honorable Jaok L. Goldsmith
Attorney General

Ass~st~t

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Offioe'of Legal Counsel
Department of ':Justice
Wa$hington, D.C. 20530

Dear Mr. Goldsmith:

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lllb:Ls responde to your "8 June 2004 .

letter to.the Director of Cent~al Intelligence in which yo~
suggested mo4!fioations to the Inspeator General's report on'the
Central Intal1igGnc$ Agen~y's (CIA) Countarterroriem ~etention
an4 Interrogation Activities. We have forwarded to the Inspeotor
General your letter and ita attached memorandum and addendum
oontainingyour $ug-gested changes to' the repox:t. The In,speotoX'
. General will consult wieb YOu and decerminQ whether t:he report
.should be supplemented with the.changes you have re~ommended.

(~I
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We will forward the Inapeotor General' ~
report to th~ intellig$noe oversight t:!ottimittees thd.a week. As
you know, Appendix.c of the rElPort inoluc:Jes IS dOpy of the
1 A~gust 2002 legal opinion from your offioe to CIA regarding the
use of oertain interrogation techniques with Abu zubaydah.

Scott W. Muller

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Inspector Gmexal
703-874-2555

2 July 2004

Mr. Jack L. Goldsmith III
'Assistant Attorney General
Office of Legal Counsel
.Department of Justice
Washington, D.C. '20530

Dear Mr. Goldsmi th:

~i
This is in response to your letter to
the Director of Central Intelligence (DCI), dated 18 June
2004, and a memorandum of the same date addressed to me,
regarding the "Special Review: Counterterrorism Detention
and Interrogation Activities." The DCI has requ~sted that I
respond. directly to you.

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The purpose of the Special Review was to
document and assess the actions of CIA with respect to
counterterrorism detention and. interrogation activities and
to develop recommendations to strengthen the management and
conduct of the activities. We limited the scope of the
Special Review to Agency activities and the perspective of
Agency officers regarding the activities under review. In
doing so, we attributed factual assertions to the officers
making the assertions, rather than drawing factual
conclusions that might be inaccurate·or be viewed
differently by those outside the Agency.

(U//FOUO) We have carefully reviewed the comments of
the Department of Justice regarding the Special Review. We
concluded that it would not be practicable to recall the
Review and integrate those comments into the body of the
Review. However, we do agree that it is appropriate for
those reading the Review to have the benefit of those
comments. Accordingly, we intend to include your 18 June
memorandum with any future circulation of the. Review. After
consultation with you, we did transmit the memorandum to the
'Chairmen and ranking minority members of tqe Congressional

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Mr.

Jack L. 'Goldsmi thIII

Intelligence Oversight Comrnittee~. I am also transmitting"
the memorandum to the Chairman of the Intelligence Oversight
Board, who has already re~eived a copy of the Review".
(U) If you have any questions regarding these mattBrs
yoU may contact me or

Sincerely,

John L. Helgerson

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COpy

NATIONAL SECURITY
COUNCIL,
INFORMATION
Notice
The attached document contains classifled Nallonal Security Council Information.
It Is to be read and discussed only by persons authorized by law.
Your signature aclmowfedges you are such a person and you promise you will
show or discus,S Inlormatlon contamed In the document only with persons who
are authorized by law to have such access to this document
Persons hancUlng thls document ~rloWledge he or she knows and underslands
the security law relating thereto and win cooperate fully with fIlr/lawfullnvestlgalion by the United States Government Into any, unauthorized disclosure 01 classified information contained herein.

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2 July 2004

.Memorandtim fot John Bellinger

SUbsequent to today's meeclUg we 'have hact'further discussions that clarified the
extent oftaday's apptQy.~ o~~~ teclm,iques. The a.uthor~ed teohniques are those
previously approved for use wIth Abu Zubaydah (with the exception ofthe watel:boa1'd)
and the 24 ~pp'roved ~y the Secr~ta:ry ofJ)efense Qn 16 Aptil 206~ for use by the
,Department of Defense. I have relaye<;t this infolluatio1l, to the CIA~s Counterterrorist.

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2 July 2004
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. . .MemorandUm for John Bellinger
Subsequent to today' s ni~eclllg we have hact" further discussions that clarified the
extent ofroday's apprQY~ of~rl$ tec1miques. The autbor~ed teohniques are those
previously approved for use with Abu Zubaydah (with the exception of the watel'bOard)
and the 24 ~pp'ro:ved QY the. SeC1'~tfl:1'Y pfpefense on 16 April 200~ for. use by the
.Department otDefense. I have relaye(i this information. to the CIA's Counterterrorist .

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cc. James B. Comey

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U.S. Department of Justice

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Office of Lega! Counsel

Office ofthe Assisl<Int Attorney ~Iltral

Washing/an. D.C. 10530

July 7, 2004
lvlr. Scott W. MuUer
General Counsel
Central hltelligence Agency
VV~ngton,D.C.20505

Dear Scott:

I am writing to follow up on your discussion last Friday with the Attorney General and
the Deputy Attorney General concerning the use of interrogation techniques on a certain high, value detainee.
I

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The, Deputy Attorney General asked me to emphasize to you that approval of the nine
techniques described in the Memorandum for John Rizzo, Acting General CounSel, Cen~
Intelligence Agellcy, from Jay S. Bybee, Assistant Attorney General, Office of Legal, Counsel,
Re: Interrogation of a1 Qaeda Operative (Aug. 1, 2002), presupposes that the techniques will
adhere closely to the assumptions and limitations stated in that memorandum.
The Deputy Attorney General also asked me to emphasize that approval of the twentyfour interrogation techniques in the Secretary of Defense's April 15, 2003, memorandmn was
conditioned on the set 'of "General Safeguards" set out as an attachment to that memorandum,
and on the cross-referenced descriptions of seventeen of the' twentY-four techniques set forth in
, Army Field Manllal 34-54: Intelligence Interrogation (1992). Please ensure that your use of
these techniques follows the "General Safeguards" and the descriptions and conditions set forth
in. the Field Manual.
Sincerely,

9

Af)t7D
M\ IVcf\JL---

J k L. Goldsmith UI

Assistant A.ttomey General

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Omce ofGeneral CoUJtSeI
Washington, D*C_ 20505

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lilly 13,2002
lobe Rizzo
ActIng O....ral.C""""'1
Centia! I!1lel1igecce Aseocy
Washin&ton. D.C. lOSOS
D... Mr. Rizzo:

Thi. leltU is in respoose 10 your inquiry at our m.~ ll>dai' about v.n.t i. neu.ssary to
establhh the
ofterllll:e, as setfonh in l8 U,S.C. § 2340tr seq. The clem<nn oftbe cd..neof
tOl1J.lJ'e a"" (1) the tortme 0<:CUn'ed outside the Um«d SUleS; (Z) the dofetlOont acted under the
colorofiaw; (3) the victim
with", ti:cd.~'. eustody or physieal COlllroI;(4) th.d.fendJml
specifically intended 10 e.use
re mental or physical paln or sufi'erin.g; illld (5) tt>.c .ct W1ict.d
.evere mental or physico! pm or .wr.rl.,g. S<t 18 U.S.C. § 2340(1); ia:, § 2340. With r••pe.Uo
. 'evete mental pain or sufi'cring <peein..l!y, prolonged mental harm must be esu.l;ji<h.d. Th3t
prolong.d mentJliJw:m au:st!<Slllt from one ofth. following am: i.tentio",,! iollietion threatened
infliction of $C'VetC physied pain or suJrering; administration or a.pplication of or threatened
admini_tion or application of nili:d.a!t<ri.ng droll" or other pro",durcs dffigned to profoundly
disropt the '.nses or personality; We'" of imrni Dent de<lh; or thremllil:g to subject lll101he:t petSon
[0 tauninent death, seve:e'phYllica1 p~n or $u:ffering. or the ad.m.inistration at application of tnind~
..lUting StJ.b.s:taa.QCS or other procedures eaJC:\lJatcd to dlSNp' F'Dfq<.mdly tho::: sen~ Qr p::sonwty.
S.. U U.S.C. P340(2).

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Mor<:ovcr. '" esta!>lish!hat llll individualhc< 4Cted wilh the <peeitie intent to iollict !<ve:n:
",."ta) paiD or suffering.an indiVidual mustnctwlth"P"Cifie inlcol, i.•.• with thaexptess pu."ose. of

causiDgproloD.fledlmllta! limn in order!or the use of..yoith. predlct>te actS to constitut. tortUre.
Specific intent eon be negated by l.how',J'g'of good faith. Th;"', if"" iodividusi undertook any of
Ih. predkl!te ""Is for severe:Mll!ll1 pain '" rJffering, but did <0 i.~ the good faith beHeflhattho•• acts
would no! c.auseth.cpns<meTprolonged tne:nr.cl ha.rm1 he would not haveactcd'-'1th th,e specific in:~~"'l(
necessary 'to establis-h torture. If, for ex.:unpJe. tffo!t.5 we:,c nade to dett::cin~ y"ila..: long-term
imyac l. If my. specific conduct would have ;nd it 'lk23 Jearned that the eocduct would not result in
prolonge4 mental harm, 4..'1Y ectioc.s 'W:::ld~ tclying on thAt adviee wO'~ld ha.ve ~ u."1drrtak:..n in
good faith. Due diligence to mc~tt!,>j$ st2ndard might include such acti~ns as su.. .veyrng pr~fe!.5kmal
Jite!a.tllrt.. t;onsuItiog with e~p~"1S. or ~videnoe gaced from past experience.

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As you know, our office is in the course of £ina !iring amore detailed memorandum opinion
analyzing section 2340, We look forward to working with you as we finish. that project. Please
contact me or Jennifer Koester if you have any further questions.

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S' cerefy.

J;'

Yoo(fr

puty Assistant Attorney General

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u.s. Department of Justice

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Office ofLegal Counsel

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Office of the Assistlmt Attorney General

Washington, D.C. 20530

July 22, 2004
Scott \V. MUlIer, Esq.
General Counsel
Central Intelligence Agency
VVas~on,D.C. 20505
Dear Scott:

We have been asked whether a certain detainee in the war on terrorism may be subjected
to the <<Waterboard" interrogation technique, consistent with 18 U.S.C. §§ 2340 and 2340A In
connection with this opinion, we woUld be grateful if you could provide us with a precise
description ofthe techniqUe. As you know, the CIA Office ofInspector General, mits Special
Review: Counterterrorism Detention and Interrogation Activities (September 200i-October
2003) (May 7, 2004) C01G RevieW'), raised several questions about whether the technique, as
actuaUyused, conforms to the description in the Memorandum for John A. Rizzo, Acting
General Counse~ CIA, :from Jay S. Bybee, Assistant Attorney General, Office of Legal CounseL
Re: Interrogation oIal Qaeda Operative (Aug. 1,2002). For example, the OIG Review
repeatedly disputes that the technique, in practice, matches the technique as used at the U.S. Air
Force Survival, Evasion, Resistance, and Escape ("SERE") training program, although our .
opinion assumed that we were addressing the SERE technique. See OIG Review at 21 n.26, 37,
44. It would greatly assist us if you could address the details of the technique, including whether
the technique on which we would now opine differs in any respect from the one considered in
our earlier memorandum. If there are differences but you believe those differences should not
alter our conclusion that the technique is lawful under the statute, we would appreciate receiving
an explanation of your view, including any medical or other factual support on which you rely.
Finally, we would be grateful if you could provide information about the facts and circumstances
_of this detainee, including his medic.-al and PSYChOlOgical.condition, Of.th: ~provided with
respect to the detainee discussed in our earlier opinion.

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Thank you for your assistance. (U)

Sincerely,

Daniel B. Levin
Acting Assistant Attorney General

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of tItt .Attorntt! ~tn~ral

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July 22, 2004

]ohn E. McLaughlin
Acting Director of Ceiltrallntelligence
Central Intelligence.Agency
Washington, D.C. 20505 ~
Dear John;

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This letter will confirm my advice that, in the contemplated interrogation o~
the use ofthe following interrogation techniques outside territory subject to Unite~
jurisdiction would not violate the United States Constitution or any statute or treaty obligation of
the United States, including Article 16 ofthe Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment, adopted Dec. 10, 1984, R Treaty Doc. No.
100-20 (1988) (entered into force June 26, 1987); the nine techniques (other than the
waterboard) described in the Memorandum for John A. Rizzo, Acting General CounseL Central
Intelligence Agency, from Jay S. Bybee, Assistant Attorney General, Re: Interrogation ofal
~~Aug. 1, 2002)" subject to the assumptions and limitations stated there:

Sincerely,

~D
JOhnD.~ft
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Attorney General

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5 August 2004
Transmitted by Secu~e Facsimile
Dan Levin
Acting Assistant Attorney General
Office 'of Legal Counsel
Department of Justice
Washington,.DC 20530

Dear Mr. Levin:

1.1)

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This letter responds' to the quaetions
you and members of your office raised in a meeting yesterday
with officers from the DCI Counterterrorist Center regarding use
of the waterboard as an interrogation technique. Specifically,
you asked whether the Agency had limits in- p~ace for the
duration of each application of water,' for each session of -the
waterboard, for how many waterboard sessions may be held in ~ny'
one da.y,and for how many days the waterboard technique oould be
applied. Answers to your questions follow.
.

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Our guidelines.

a. Approvals for use of the waterboard last for only 30
days. During tha.t 30-day period, the waterboard may not be u~ed
on more than 20 days during that 30-day period.
b. The number of waterboard sessions on a given day way .
not exceed four.
c. A waterboard "session" is the period of time in Which: a
subject is strapped to the waterboard before being removed. It
may involve mUltiple applications of water. You were informed
yesterday that our Office of M~dical Services had e8tablis~ed a
20-minute time limit for waterboard sessions. That was in

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Dan Levint Esq.
error. OMS has not established any time limit for a waterboard
session.
d. An t'application" during a waterboard session is the
time period in which water is poured on the cloth being held on
the subject's face. Under. the DCI interrogation g~idelines( the
time of total contact of water with the face will n.ot exceed 40
seconds. The vast majority of applications are less than 40.
seconds, many for ,fewer than 10 seconds . .Individual
applications lasting 10 seconds or longer will be limited to no
more than 10 applications during anyone waterboard session.

(Uf/roUO) If you have any question$, or would like
briefings, please contact !
He will
obtain answers 'and/or arrange those briefings ..

Sincerely,

~

AS6oCi~al counsel

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5 August 2004

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5 August 2004
T~ansmitted by

Secure Facsimile

Dan Levin

Aoting Assistant Attorney General
Office of Legal Counsel
D~partment of Justice
Washington, DC 20530
Dear Mr. Levin:

.)

(~I
,OC) This letter responds to the questions
you arldmembars of your office raised in a meeting yesterday
with officers from the DCI CounterteI:rorist Center regarding use
of the waterboard as an interrogation technique, specifically,
you asked whether the Agenoy had limits in place for the
duration of each application of water, for each sassion of the
watel:boaro., for how many waterboard sessions may be held in any.
one day, and for how many days the waterboard technique could be
applied. Answers to your questions follow .
. OC)

Our

guidelines ~

a.Approvals for use of the waterboard last fot only 30
days. During that 30-day period, the waterboard may not be used
on more than 20 days during that 30-day period.
b. The number of waterboard sessions on a given day may .
not exceed four.

c. 'A t>laterboard "session"is the period of time in which: a
subject is 'strapped to the waterboard before being removed.
It
may ~nvolve mUltiple applications of water. You were informed
yesterday that our Office of Medical Services had established a
20-rrJ.nute time limit. for waterboard sassi.ons. That was in

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Dan Levin/ Esq.

error. OMS has not established any time limit for a waterboard
session ..
d. An t1appliaation" during awaterboard session is the
time period in whioh water is poured on the cloth being held
the subject's face~ Onder the Dcr interrogation guidelines,
time of total contact of water with the face 'Ilill not exceed
seconds. The vast majority of applications are less than 40
seconds, many for fewer than 10 seconds. Individu~l
applications lasting 10 seconds or longer will be li~~ted to
mOJ;e than 10 a.pplications during anyone waterboarq session.

on
the
40

no

{U//FOUO} If you have any questions, or would like
briefings, please contact _.
He will
obta.in answers and/or arrange those briefings.

Sincerely,

.)

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JOnT!!LY

lW.

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u.s. Department of Justice
Office of Legal Counsel

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Office of the Assistant Attomey General

fuFOiNIi\1!t
Washington, D.C. 20.530

August 6, 2004
John A. Rizzo, Esq.
Acting General Counsel .
Central Intelligence Agency
Washington, D.C. 20505

Dear John:

...

(

~ This letter will confirin our advice that, although it is a close and
difficult question, the use ofthe waterboard technique in the contemplated interrogation o f .
-.Ioutside territory subject to United States jurisdiction would not violate any United States
statute, including 18 U.S.C. § 2340A, nor would it violate the United States Constitution or any
treaty obligation of the United States. We will supply, at a later date, an opinion that explains the
basis for this conclusioIL Our advice is based on, and limited by, the following conditions:
L The use ofthe technique will conform to the description attached to your letter to me of
August 2, 2004 (''Rizzo Letter'').
.
2. A physician and psychologist, will approve the use of the technique before each session, will
be present throughout the session, and will have authority to stop the use of the technique at any
time.
3. There is no material change in the medical and psychological facts and assessments set out in
the attachment to your August 2 letter, including that there are no medic~chological
contraindications to the use of the technique as you plan to employ it o n _

4. The technique will be used in no more than two sessions, of two hours each, per day. On each
day, the total time ofthe applications of the technique will not exceed 20 minutes. The period
over which the technique is used will not extend longer than 30 days, and the technique will not
be used on more than 15 days in this period. These limits are consistent with the Memorandum
for John A. Rizzo, Acting General Counse~ Central Intelligence Agency, from Jay S. Bybee,
Assistant Attorney GeneraL Re: Interrogation ofal Qaeda Operative (Aug. 1, 2002), and with
the previous uses ofthe technique; as they have been described to us. As we understand the
facts, the detainees previously subjected to the teclurique "are in good physiological and

•

psychological health,u see Rizzo Letter at 2, and they have not descnbed the technique as
physically painful. This understanding ofthe facts is material to our conclusion that the
tecbniquet as limited in accordance with this lettert would not violate any statute of the United
States.

~ We express no opinion on any other uses ofthe tecl5et nor do we
address any techniques other than the waterboard or any conditions under whic~r other
.
detainees are held. Furthermore, this letter does not constitute the Department ofJustice's policy
approval for use ofthe technique in this ~r any other case·,

Sincerely,

~~Daniel B. Levin
Acting Assistant Attorney General

•

•

•

••

•

u.s. Department of Justice
Office ofLegal Counsel

•

Office of the Assistant Attorney General

Washington, D.C. 20530

September 20 1 2004
John A. Rizzo~ Esq.
Acting General Counsel
Centrallntelligence Agency
Washington, D.C. 20505

Dear John;

l. ,

•

~ You have asked our advice regarding whether the use oftw~lve
particular interrogation techniques (attention grasp, walling, facial hold, facial slap (insult slap),
cramped confinement, wall standing, stress positions, sleep deprivatio diet manipulation,'
nudity, water dousing, and abdominal slap) in the interrogation 0
ould violate
any United States statute (including 18 U.S.C. § 2340A), the Unit
tates onstltution, or any
treaty obligation ofthe United States. We understand tha~ an 81- Qa'ida operative
who "is believed to be involved in the operational planning ofan al-Qa'ida attack or attacks to
take lace in the United States prior to the November 2004 elections." September 19, 2004 letter
fro
a Dan Levin. This letter confirms our advice that the use ofthese
techniques on
utside territory subject.to· United States jurisdiction would not violate
any ofthese provisions. We will supply, at a later date, an opinion that explains the basis for this
conclusion. Our advice is based on, and limited by, the following conditions:
1. The use of these techniques will conform to all representations previously made to us,
including those listed in my August 26, 2004 letter to you.
2. The medical and psychological facts and assessments for~dicate that there
are no medical or psychological contraindications to the use of any ~ecbni.ques as you
plan to emPloy them.
3. Medical officers will be present to observe~henever any enhanced
techniques are applied and will closely monitor him while he is subject to sleep deprivation or
dietary manipulation, in addition to the normal monitoring of him throughout his detention, to
ensure that he does not sustain any physical or mental harm.

'.:.,.

TO)PP~ae:r,
•

_
We express no opinion on any other uses of these techniques,
nor do we address any oth« techniques or any cooditions under whicb~r other
detainees are held. Furthamore, this letter does not constitute the Department of Justice's poliey
approval for use of the techniques in this or any other ease.

Sincerely,

Daniel Levin
Acting Assistant Attorney General

•

_._

TO

-_ ..•.

.•. .._..

-~.

--_. ---'-"

~

- ._-_.

__

.....

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-- - - .. _-.- ..
"

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•

•

•

u.~.

JJepanment 01 JUSnCe

Office ofLegal Counsel

•

Office of the Assistant AttorncyGcneraJ

Washington. D.C. 20530

AUgUst 26, 2004

John A Rizzo Esq.
Acting General Counsel
Central Intelligence Agency
Washington, D.C. 20505
J

Dear John:

••

_
You have asked our advice regarding whether the use offour
particular interrogation techniques (d~ipuIation, nudity, water dous~g, and abdominal
slaps) in the ongoing interrogation o~ould violate any United States statute
(including 18 U.S.C. § 2340A), the United States Constitution, or any treaty obligation ofthe
United States. We understand tha_a high-value a] Qaeda operative who is believed to
possess information concerning an mmnnent terrorist threat to the United States. This letter
confirms our advice that the use of these techniques~utside territory subject to United
States jurisdiction would not violate any ofthese provisions. We will supply, at a later date, an
opinion that explains the basis for this conclusion. Our advice is based on, and limited bYJ the
following conditions:

~euse

ofthese techniques will conform to: (i) the representations made ~
_~etters to me ofJuly 30,2004 (and attachment) and August 25,2004; and ~
representations made by CIA officials, includingrepresentatives of the Office ofMedical
Services, during our August 13,2004 ·meeting. Based on that meeting, we understand that
ambient air temperature is the most important determinate for hypothermia in water dousing.
AdditionallyJ we were informed that the Agency has based the safety margins set forth in its
water dousing procedures on experience with actual extended submersion in water of comparable
temperature. Thus J although water as cold as 41 degrees maybe used for short periods of time,
.in view ofthese factors and the comparatively small amount ofwater used, especially compared
to submersio~ we were advised that the dousing technique as it will be employed poses virtually
no risk of hypothermia or any other serious medical condition. We were further advised that the
dousing technique is designed to get the detainee's attention and it is not intended to causeJ and
does not cause, any appreciable pain.
2. There is no material change in the medical and psychological facts and assessments for

_in

~

~

the attachment to your August 2 letter, and ~ugust 25,2004,
letter, including that there are no medical ~hological contraindications to the use of these
techniques as you plan to employ them on"

will

3. Medical officers
be present to observ"henever water dousing and/or .
abdominal slaps are used and will closely monitor him while he is subject to dietarymampulation
(in addition to the normal monitoring ofhim throughout his detenti0.&.!2 ensure that he does not
sustain any physical or mental harm. This includes making sure tha~an sustain a normal
body temperature after dousing and that his intake offluids and nutrition are adequate.
ugust 25,2004, letter that the
measures are "designed ... to weake
hysical ability and mental desire to resist
interrogation over the long run" (Letter at 3), and that "water dousing sessions, in conjunction
with sleep deprivation, facilitates in weakening a detainee's ability and motivation to resist
interrogations" (Letter at 4), to be consistent with the prior representatio~ we have received ie., these techniques are not physically painful and are not intended to, or expected to, cause any
physical or psychological harm. Rather, they~e intended to reduce~esire to continue to
engage in the counter-interrogation techniques he has been utilizing~. Indeed, you
consider these four techniques to be "more subtle" than some of the interrogation measures used
to date (Letter at 3.)
.

•

~ We express no opinion on any other uses ofthese.
t ' ues,

nor do we address any techniques other than these four or any conditions under whic
r
other detainees are held. Furthermore, this letter does not constitute the Department 0 ustice's
policy approval for use of the techniques in this or any other case.

Sincerely,

Daniel Levin
Acting Assistant Attorney General

"".

•

•

•

_.. _.. --r---- .. ". " ....

_._~

Office ofLegal Counsel

.•

Office of the Assistant Attorney General

Washington. D.C.l0530

September 6, 2004

John A. Rizzo, Esq.
Acting General Counsel
Central Intelligence Agency
Washington. D.C. 20505

Dear John:

•

~ You have asked our advice regarding whether the use of twelve
particular interrogation techniques (attention grasp, walling, facial hold, facial slap (insult slap),
. ••
I . ••
cramped confinement, wall standing, stress positions, sleep depri ..•di•
nudity, water dousing, and abdominal slap) in the interrogation 0
ould
violate any United States statute (including 18 U.S.C. § 2340A), the United States Constitution,
or any treaty obligation ofthe United States. We understand tha~s an al· Qa'ida
operative who "is believed to be involved in the operational planning of an al-Qa'ida attack or
attacks to take lace'
.ted States prior to the November eleCtions." September 5, 2004
letter fro
0 Dan Levin. This letter confirms ow-advice that the use ofthese
techniques on
utside territory subject to United States jurisdiction would not violate any
,of these proviSIOns. e will supply, at a later date, an opinion that explains the basis for this
conclusion. Our advice is based on, and limited by, the following conditions:
1. The use of these techniques will conform. to all representatIons previously made to, us,
including those listed in my August 26, 2004 letter to you.
2. The medical and psychological facts and assessments fo~dicate that there are
no medical or psychological contraindicatioDS to the use of any ofthese techniques as you plan to
employ them.
3. Medical officers will be present to observ~henever any enhanced 1echniqu~
are applied and will closely monitor him while he is subject to sleep deprivation or die1ary
manipulation, in addition to the nonnal monitoring of him throughout his detention, to ensure that
he does not sustain any physical or mental hann.

•

~

•

T
We express no opinion on any other lISes ofthese techniques,
nor do we address any other techniques or any conditions under whi~r other detainees
are beld. Furthermore, this Jetter does not constitute the Department o~ policy approval
for use of the techniques in this or any other case.

Sincerely,

Daniel Levin
Acting Assistant Attorney General

•

•

•

•

•

TOP ~CRETt __

MEMORANDUM
TO:

ATTORNEY GENERAL

DEPUTY ATTORNEY GENERAL
FROM:

Dan Levin
Acting Assistant Attorney General

RE:

Status ofinterrogation Advice

DATE:

September ----:J 2004

You bave asked for an ·update on the status ofinterrogation advice.
GENERAJJ ADVICE

A.

1.

Previously Given

•
a..

2.

CuxrentIPending

a.

B.

The primary prior general advice was an unclassified August 1, 2002
memorandum from Jay Bybee to Judge Gonzales interpreting the torture
statute. It contains discussion of a variety of matters that are no t neceSsarY
to resolving any issues raised to date.

CIA ADVICE
1.

Previously Glven
a.

The primary prior advice was a classified August 1,2002 memorandum
from Jay Bybee to John Rizzo discllssing ten techniques under the torture
statute (attention grasp, walling, facial hold, facial slap (insult ship),
cramped confinement, wall standing, stress positions, sleep deprivation,
insects placed in a confinement box, and the waterboard).

TOP,¢CRE{ .
~\

J

[

'.

JO~IMR

I..... ~." .",

~-.'

•••

J~0y6_RNIMR

TOP~RE~
2.

CurrentIPending
a.

The Attorney General reaffirmed the con<;:lusion as to nine ofthe
techniques (excluding the waterboard) in a July 22, 2004 letter to Jobn
McLaughlin.

b.

In adclitioJ\ ] have written letters as to three detainees to date:

I,t

.~

waterboard is clUTently subject to the following limits: no more
than two sessions-a day; sessions on no more than 5 out 000 days;
sessions last no more than two hours each; no single application
can exceed 40 seconds and no more than 6 applications exceeding
10 seconds in any one ~ession; no more than ] 2 minutes total ]
application per day]

r

[.
ii.

llJ.

[

.

J
J

-c.

d.

,
~ ~/ .

CIA has .also reCluested an opinion on whether any of their techniques
CUld "shock the conscience~' if thallegal standard a]l]llic<'

J

I
I -",,"

II

c.

TOP/CREe
DOD ADVICE
1.

2.

Previously Given
a.

There was a classified March 14, 2003 opinion to William Haynes- from
John Yoo which contains extensive discussion ofthe torture statute and
other mat!ers that is no t necessary to resolve any issue.

b,

In addition, we approved 24 specific techniques the use ofwhich the
Secretary of Defense approved. Although it is not entirely clear to me
when tbflt was done it was reaffu:med, for example, in a July 7,2004 letter
from Jack Goldsmith to Scott Muller (referring to approval of both CIA
and DOD techniques) and also in_ a July 17,2004 fax by Jack.

CurrentlPending

n.

[

]

~j~~ • •" : . _ : . . . . . . . . . . . . . . . _ • • • • 1

.~~
)

u.s. Department 'of Justice
Office of Legal Counsel
·., -"'.
Office ofthe Assistant Attorney General

Washington, D.C 20530

December 30, 2004
MEMORANDUlVl FOR JAMES B. COMEY·
DEPUTY A'ITORNEY GENERAL

Re: Legal Standards Applicable Under 18 U.S.c. §§ 2340-2340A
Torture is abhorrent both to American law and values and to intc:;ml1iional norms. "This
universalrepudiaqon oftorture is reflected in our criminal law, for example, 18 U.S.C. §§"2340~
2340A; international agrooments, exemplified by the United Nations Convention Against Torture
(the "CAT")]; customary intemationallaw; centurieS of A.I.\glo-American law; and the
longstanding policy of the United Stat~) repeatedly" and recently reaffirmed by the President!
This Office interpr~ted the federal criminal prohibition against tOrture----codified at 18
U.S.c.§§2340-2340A-~Standards afConductfor Interrogation WIder 18 U.S.C §§ 2340-

,,

)

2340A (Aug. 1,2002) ("August 2002 Memorandum"). The August 2002 Memorandum also
addressed a number ofissues beyond interpretation of those statutory pTovisions, includin$ the
President's Commander-in-Chiefpower, and v.arious 'defenses that might be asserted to avoid
potenti~ liabilityunder .sections 2340-2340A.- See id. at 31-46.
Questions have since been raised, both by this Office and by others, about the
I

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, DIX:. 10,

1984, S. Treaty Doe. No. 100-20,1465 U.N.T.S. 85. See also, e.g., International CovenantOD Civil and Political
Rights, Dec. 16, 1966, 999'U.N.T.S. 171.
.
2 It has been suggested that the prohibition against torture has achieved the status ofjus cogens(i.e., a
peremptory nonn) Under intemationallaw. See, e.g., Sidennan de Blake v. Republf.c ofArgentina, 965 F.2d 699, 714
(9th eiL 1992); Regina v. Bow Street Metro. Stipendiary Magistrate Ex Parte Pinochet Ugarte (No.3), [2000] I Ac
147,198; see also Restatement (Third) ofForeign Relatio.QS Law ofllie United States § 702 reporters' note 5.
.
3 See generally John H. Langbein, Torture and the Law ofProof: Europe and England in tlie Ancien Regime

(1977).
4 See, e.g., Statement on United Nations 1nternational Day in Support of Victims ofTorture, 40 Weekly Comp.
. Pres. Doc. 1167 (July 5, 2004) (''Freedom .from torture is an inalie.nable human riglit ...."); Statement on United
Nations International Day in Support of Victims of Torture, 39 Weekly Comp. Pres. Doc. 824 (June 3D, 2003)
('"'Torture anywhere is an affiont to human dignity everYwhere."); see also Letter o/Transmittalfrom President
Ronald Reagan to th~ Senate (May 20, 19&8), in Message from the President of the United States Transmitting the
Convention Against Torture and Other Cruel. Inhuman or Degrading Treatment or Punishment, S. Trelity
No.
100.20, at iii (1988) ('.'RatifieR tion of tho Convention by the United States will clearly express United Stales
opposition to torture, an abhorrent practice unfortunately still prevalent in the world todaY.'1.

Doc.

%

;;;;,~~

appropriateness and relevance of the non-statutory discussion in the August 2002 Memorandum,
and also about various aspects of the statutory analysis. in particular the statement that "seVere"
pain und~r the statute was limited to pain "equivalent in intensity to the pain accompanying
serious physical injury, such as organ failure, impairment of bodily function,- or even death." Id.
at 1.' We decided to withdraw the August 2002 Memorandum, a decision you announced in
June 2004. At that time, you directed this Office to 'prepare a replacement memorandum.
Because of the importance 'of-and pUblic interest in-these issues. you asked that this
, memorandum be prepared in a form that could be released to the pUblic so that interested parties
could understand our analysis of the statute.
This memorandum supersedes theAugust 2002 Memorandum in its entirety.6 Because
the discussion' in that memorandum concerning
Presideflt's Commander-in-Chiefpower and
the potential defenses to liability was-and remains-unnecessary, it has been eliminated from
the analysis that follows. Consideration of the bounds of any such authority would be
inconsist~n~ with-thePFeSident's unequivocal directive that United States persOnnel not engage in
torture. 1
.
,

the

We have also modified 'in somo important respects our analysis of the legal standards
applicable,under 18 U.S.c. §§ 234Q..2340A. For example, we disagree with, statements in the
August 2002 Memorandum liniiting "severe" pain under the statute to "excruciating and
agonizing" pain. id_ at 19, or to pain "equivalent in intensity to the pain accompanying serious
physie:aI injury, such as organ failure, impainnent of bodily ftmction, or even death," id: at 1.
There are addi~ional areas where we disagree with or modify the analysis in 'the August 2002
Memorandwn. as identified in the discussion below"
The Criminal Division of the Department of Justice has reviewed this memorandum and
concurs in the analysis set forth below.
os See, e.g., Anthony Lewis, Making Torture Legal, N.Y. Rev. of Books, July 15,.2004; R. Jeffrey Smith, Slim
Legal GroWlds for Torture Memos, Wash. Post, July 4, 2004, at AI2; Kathleen Clark & Tulie Mertus, Torturing the
'Law; ~e Jusrice Department's Legal Contortions on [nterrogation, Wash. Post, June 20, 2004, IIt'B3; Derek Jinh &
David Sloss, /~ the Presidt1lt Baund by the Geneva Conve1llions?, 90 Comell L.-Rev. 97 (2004).
6

This memomndum neccisarily discusses the prohibition against torture in sedions 2340-2340A in somewhat

abstract and general terms. In applying this criminal prohibition to particular eircumstances, great care must be
taken to avoid approving as lawful any conduct that might COIl$litute tor1ure. In addition, this memorandum does

not address the- many other sources oflaw thllt may apply, depending on the circurnstuK:es, to the detention or
intelTogatioQ of detainees (for example, the GeneYB Conventions; the Unifonn Code of Military Justice, to U.S.c.
§ 80 I et seq.; the Military ExtIaterritorialJurisdiction Act, 18 U.S.C. §§ 3261-3267; aDd the War Crimes Act,
18 y.S.C. § 2441, IlIDllng others). Any analysis ofparticutar facts must, of course, ensure that the United States
complies with all applicable leglll obligations.
1 See. e.g., Statement on United Nations International bay in Support ofYictims of Torture, 40 Weekly
Comp_ Pres. Doc, 1167-68 (July 5, 2004) ("America stands llgainst and will not tolerate torture. We will investigate
and prosecute all acts of torture ... in aU territory under our jurisdiction.... Torture is wrong no matter where it
ocCurs, and the Umted States will continue to lead the fight 10 eliminate it everywbere.'1.
I While we have identified vo.rious disagreements with the August 2002 Memorandum, we have Ievjewed this
Office's prior opinions addressing issues involving treatment of detainees and do not believe that IIny of their
conclusions would be different under the standards set forth in this memorandum.

2

--I.

Section 2340A provides, that "[w]hoever outside the United States commits or· attempts to
commit torture shaD be fined under.this title or imprisoned oot more than 20 years, or both, and
if death results to any person from coOOuct prohibited by this subsection, shall be punished by
death or imprisoned for any term aryears or for life.'" Section 2340(1) defines "torture" as "an
act committed by a person acting under the color oflaw specifically intended to ihflict severe
physical or mental pain or suffering (other tf.1an pain or suffering incidental to lawful sanctions)
upon another person within his custody or physical control:'"

, Section 2340A provides in full;

(a) Offc:ase.-Whocvm oulSidc the Unitm StaleS commits or attempts to commit tortuIe shall
be ftncclu:odet thiJ title or imprisoned not more than 20)"CUI. or botb. and if dalh r=ulb to any
penon from CODduc;t prolnOitcd by this subsec&n, .baIl be panbbcd by death OJ iqJrisoned for
my leIm. of years or for life.
(b) Jurisdiction.-Thae isjllIisdiction over the activity prohibited in subsectioD (a) if(I) tbc lUeged offeurle:r is a nationaJ of the United Stiles; or
_. - . (2) !be alleged offender is present in the United Slates, ~ve oftbe natioDJ.lity o'r
the victim Ot" alleged offender.
(e) Compiracy.-A penon who compiles to commit an offense UDder this section sh.a.ll be
subject to the same penalties (other than the penaIty of death) as the penalties prescribed for the
offense, the cotnmi!rion ofwbich was the object ofthe COlUpiDcy.
18 U.S.C. § 2340A (2000).
10

Section 1340 provides in full:
As used in this chapter-

(I) "tortu.re" means an act coDlIllitted by a penon acting under color of law specifically
intended to inflict severe physical or mental pain or suffering (other than pain or suffering
incidental to lawful salJCtions) upon anolhcz person within his custody or physical control;
(2) "severe mental pain or suffering" tneans tho prolOtlged mental bum caused by or resulting
fr,~

(A) the intentional infliction or threatened infliction of severe physical pain or mffering;
(B) the administration or application, or threatened administration or appliclltion. of
l1Jind..altering $Ubstances or other procedures calculated 10 disrupt profoundly the senses or

the peDOIlIlity;
(C) the threat of imminent du;tb; or
(0) the threat that another peBOD wi)! imminently be subjected to death, seven: physical
pain or suff"eriD& or the administration or application ofmind·altering substances or o!her
procedures calculated to disrupt profoundly the senses or personality, and
(3) "United Slates" means the sevenl Stltes of the United States, the Dulrict of Columbia,
and the commonwealths, tcnitories, and possessions of the United Stale!.

18 U.S.c. § 2340 (as amended by Pub. L No. 108--375. 118 StaL 1811 (2004».

,
3

In intewreting these provisions, we note that Congress may have adopted a statutory
definition of ''torture'' that differs from certain colloquial uses of the term. Cj Cadet v. Bulger,
377 F.3d 1173, 1194 (llth Cir. 2004) ("[1]n other cootext, and under other definitions [the
conditionsJ might be described as torturous. The fact remains, however, that the only relevant
definition of 'torture' is the definition contained in (the] CAT....'). We must, of course, give
effect to the statute as enacted by Congress. lI

Congress enacted sections 2340~2340A to carry out the United States' obligations under
the CAT. See H.R Conf. Rep. No. 103·482, at 229 (1994). The CAT, among other things,
obligates state parties to take effective measures to prevent acts of-torture in any territory under
their jurisdiction. 'cUld requires the United States, as a ~ate party, to ensure that acts of torture,
along with attempts and complicity to commit such acts, are crimes under U.S. law.' See CAT
arts. 2. 4-5. Sections 2340·2340A satisfy that requirement with respect to acts committed
outside the United States. l % Conduct constituting ''torture'' occurring within the United States
was-and remains-probfbited by various other federal and state criminal statutes that we do not
discuss here.
.
The CAT defines "torture" so as to require the intentional infliction of "severe pain or
suffering, whether. physical or menta!." Article 1(1) of the CAT provides:

term

For the purposes ofthis Convention, the
"torture" means any act by which
severe pain or suffering, whether physical or mental, is intentionally in.flicted on a
person for :ruch 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 conuuitted, 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 acquiescenoe
of a public official or other person acting in an official capaci.ty. It does not
include pain or suffering arising only from, inherent in or incid.ental to lawful
sanctions.
The Senate attached the following understanding to its resolution of advice and consent
to ratification of the CAT:
The United States understands that, in order to constitute torture, an act must be
specifically intended to inflict severe physical or mental pain or suffering and 'that
mental pain or suffering refers to prolonged mental harm caused by or resulting
from (1) the intentional infliction or threatened infliction of severe physical pain
11 Our task is only to offer guidance OD the nte311ing of the statute, D9t to comme.c.t on policy. It u of COUISe
open ta palicymakers to determine that conduct that might not be prohibited by the statute is nevertheles:s contrary to
the interests or poticy .of the United States.
11 ~ngress limited the territorial reach of the federal torture statute, providing that the prohibition applies only
to conduct oecurring ~outside the United States," 18 U.S.C. § 2340A(a), which is currently dermed in the statute to
mean outside "the 5everal States of the United States, the District of Columbia, and the commonwealths, territories,
and possessions of the United States." /d. § 2340(3).

4

-. :. . .

r.-~"'r~._r:.

I

....... --.-- ... -

._.';':-I~'!,t..A.-_r

••. - - - -. . . . -

or suffering; (2) the administration or applicatio~, or threatened administration or
application, ofmind altering substances other procedures calculated to disrupt
profoundly the senses or the personality; (3) the threat of imminent death; or
(4)
·threat that another
will imminently be subjected ~o death, severe
physical pain or suffering, or the administration or application of niind altering
substances or ·other procedures calculated to disrupt profoundly the senses or

or

i.·&:~'
.-.

the

person

personality.
S. Exec. Rep. No. ·101-30, at 36 (1990). This understanding was deposited wi~ the U.S.
~trument ofratification, see 1830 U.N.T.S. 320 (Oct. 21, 1994), and thus defines the scope of
th xUnited States' obligations under the treaty. See Relevance ofSenate Ratification History to
Treaty Interpretation, 11 Gp. a.L.C. 28, 32-33 (1987)..The criminal prohibition against torture
that Congress codified in 18 U.S.C. §§ 2340-2340A generally tracks the prohibition in the CAT,
subject to the U.S. understanding.
II.

Under the language adopted by Congress in sections 2340-2340A, to constitute ''tQrture,''
the conduct in .question must have been "specifically intended· to inflict severe physical or mental
pain or sUffering." Tn th~ discussion that follows, we will separately copsider each of the
prineipal components of this key phrase: (1) the meaning of "severe"; (2) the meaning of"
"severe physical pain or suffering"; (3) the meaning of "severe mental paln or suffering"; and
(4) the.meaning of "specifically intended."
.
(1) The meaning of "severe. ..
Because the statute does not define "severe," "we construe (the} term in accordance with
its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471,476 (1994). The coronion
understanding of the term ''torture'' and the cop.text in which the statute was enacted also inform

our analysis_
. Dictionaries define "severe" (often conjoined with "pain'') to mean "extremely violent or
intense: severe pain." A?Tlerican Heritage Dictionary ofthe English Language 1653 (3d ed.
1992); see also XV Oxford English Dictionary 101 (2d ed. 1989) ("Of pain, suffering, loss, or
the like: Grievous, extreme" and "Of circumstances ... : Hard to sustain or endure''). 13

l3 Common dictionary definitions of "torture" further support the statutory concept that the pain or suffering
mustbe severe. See Black's Law Dfr:tionary 1528 (8thed. 2004) (defining "torture" as "[t]he iniliction of in tense
pain to the body or mind to ptmish, to extract a co¢ession or information, or to obtain sadistic pleasure'') (emphasis
added); Webster's Third New International Dictionary ofthe English langUage Unabrldgd 2414 (2002) (defining
"torture" as "the infliction of intense pain (as from burning, crushing, wounding)·to punish or coerce someone")
(emphasis added); Oxford American Dictionary and Language Guide 1064 (1999) (defining "torture" as "the
infliction of severe bodily pain, esp. as a punishment or a means ofpersuasion") (emphasis added).

.

This interpretation is wo consistent with the history of torture. See generally the descriptions in Lord
Hope's lecture, Torture, University ofEssexlClifford Chance Lecture 7-8 (Jan. 28, 2004), and in Professor .
Langbein's book, Torture. and the Law ofProof Europe and England in the Ancien Regime. We emphatically are
not saying that only s~ch historical teclmiqucs--<lr similar oncs--can constitute "torture" under sectiOD5 2340-

5

-J,'::"':_ • •

The statute, moreover~ was intended to unplemertt the United States' obligations under
the CAT, whic~ as quoted above, defines as "torture" acts that inflict '·severe pain or suffering"
OD a person. CAT art. 1(1). As'the Senate Foreign Relations Committee explained in its report
recommending that the Senate consentto ratification ofthe CAT:
The [CAT) seeks to define "torture" in a relatively limited fashion, corresponding
to the common understanding oftarture as an extreme practice which is
universally condemned, ...

. . . The term ''torture,'' in United States and intemati.onal usage, is usually
reserved for extreme, de~oerate and unusually cruel practices, far example,
sustained systematic beating, applicatiOn of electric currents to sensitive parts of
the body, and tying up or hanging in positions that cause extreme pain.
S. Exec. Rep. No. 101-30 at 13-14. See also David P. Stewart, The Torture Convention and the
Reception ofInternational Criminal Law Within the United States, 15 Nova L. Rev. 449, 455
(1991) ("By stressing the extreme nature of torture, ... [the] definition [of torture in the CAT]
describes &relatively limited set of circumstances likely to be illegal under. most, if not all,
domestic legal systems.'').

",

j

Further, the CAT distinguishes bet\veen torture and "other acts of cruel, inhuman 'or
degrading treatnient or punishment Which do not amount to torture as defined in article 1." CAT
art. 16. The CAT thus treats torture as an "extreme form" of cruel, inhuman, or degrading
treatment. See S. Exec. Rep. No. 101-30 at 0, 13; see also J. Hennan Burgers & Hans Danelius,
The United Nations Convention Against Torture: A Handbook'on the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 80 (1988) ("CAT
HandboolC') (noting that Article 1Q implies "that torture is the gravest form of [cruel, inhuman,'
or degrading] treatment [or) punishmenf') (emphasis added); Malcolm D. Evans; Getting to
Grips with Torture, 51 Int'l & Compo L.Q. 365, 369 (2002) (The CAT uformalises a distinction
between torture on the one hand and inhmnan and degrading treatment on the other by attributing
different legal consequences to them.").I~ The Sen~te Forei~ Relations Conmlittee etnphasized
2340A. But the historical understanding of ''torture'' is relevant to intetpreting Congress's intent.
Um'ted States, 342 U.S. 246, 263 (1952).

Cf. Morissette v.
.

U This approacb--distinguishing torture from lesser fonns of cruel, inhuman, or degrading treatment-is
consistent with other internatiouallaw sources. The CAT's predecessor, the U,N. Torture Declaration, defined
torture as "an aggravated and deliberate fonn of croel, inhuman or degrading treatment or punishment."
Declaration on the Protection of All Persons from Being Subjected to Torture and Other CrocI, inhuman or
Degrading Treatment or Punishment, U.N. Res. 3452, art. 1(2) (Dec. 9, 1975) (emphasis added); see also S. Treaty
Doc. No: 100-20 at 2 (The U.N. Torture Declaration was "a point of departure for the drafting of the {CATJ.").
Other treaties also distinguish torture· from lesser forms of croeI, inhuman, or degrading I:relltment. See, e,g.,
European'Qmvention for the Protection ofHuman Rights and Fundamental Freedoms, art. 3,213 U.N.T.S. 221
(Nov. 4, 1950) ("European Convention'·) ("No one shall be subjected to torture or to inhUman or degrading
treatment or punishment."); Evans, Getting to Grips with Tortllre, 51 Int'I & Comp. L.Q. at 370 ("[T]he ECHR
organs have adopted ... a 'vertical' approach ... , which is seen as comprising three separate elements, each
representing a progression of seriousness, in which one mov~ progr~ively from fonDS of ill-treatment which are

6

-

this point in its report recommending that the Senate consent to ratification of the CAT: See
S. Exec. Rep. No. 101-30 at 13 ('''Torture' is thus to be-distinguished from lesser forms of cruel,
inhuman, or degrading tre~tment or punishment; which are to be deplored and prevented, but are
not so universally and categorically'condemned as to warrant the severe legal consequences that
the Convention provides in the case of torture. . .. The requirement that torture be an extreme
folIO of cruel and inhuman treatment is expressed in Article 16, which refers to 'other acts of
cruel, inhuman or degrading treatment or punishment which do not amount to tortUre . ...''').
See also Cadet, 377 F.3d at 1194 (''The definition in CAT draws a critical distinction between
'torture' and 'o.ther acts of cruel, inhuman" or degrading punishment or treatment. ''').

, ,

)

Representations made to the Senate by Executive Branch officials when the Senate was
considering the CAT are also relevant in inteTpreting the eAT's torture prohibition-which
sections 2340·2340A implement. Mark Richard, a DeputyAssistant Attorney General in the.
Criminal Division, testified that "[tlorture' is understood to be that barbaric cruelty which lies at
the top of the pyramid of human rights misconduct." Convention Against Torture: Hean'ng
Before the Senate Comm. on Foreign Relations, 101st Congo 16 (1990) ("CAT Hearing1
(prepared Statement). The Senate Foreign Relations Committee also underStood torture to be
limited injust this way. See'S. Exec. Rep. No. 101-30 ar6 (noting that "[fJor an act to be
'torture,' it must be an extreme form ofcruel and inhuman treatment, causing severe pain and
suffering, and be intended to cause severe·pain and suffering} Both ~e Executive Branch and
the Senate acknowledged the efforts of the United States during the negotiating process·to
strengthen the effectiveness of the treaty and to gain wide adherence thereto by focusing the
O:mvention "on torture ratber than on other relatively less abhorrent practices." Letter of
Submit/alfrom George P. Shultz, Secrerary ofState, to President Ronald Reagan (May 10,
1988), in S. Treaty Doc. No. 100-20 at v; see also S. Exec. Rep. No. tOI-30'at 2~3 ('The United
States" helped to focus the Convention "on torture rather than other less abhorrent practices:').
Such statements are probative of a treaty's meaning. See 11 Op. D.L.C. at" 35~36.

'degrading' II> those which are 'inhuman' and then to 'torture'. The distinctions between them is [.rIc] based on the
severity of suffering involved, with 'torture' at the apex.''); Debra Long, Association for the Prevention ofTor1llre,
Guide to Jurisprudt.tlCe on TortJue and HI-Dearment: Article 3 ofthe European Ccnvelltionfor the Protection of
HU1l1(J1I Rights 13 (2002) (The approach of distinguishing between ''torture,'' "inhuman" acts, and "degrading" acts
has ''remained the standard approach taken oy the Europeanjudicial bodies. Within this approach -Iorture has been
singled out as cUrying a special stigma, which distinguishes it from other formS of ill-treatment."). See also CA T
Handbook at 115·17 (diu-ussing the European Court of Human Rights (''ECHR'') decision in lrel4nd v. United
Kingdom, 25 Eur. CI. H.R (ser. A) (1978) (concluding that the combined use of wall-standing, hooding, sUbjection
10 noise, deprivation of sleep, and deprivation of food and drink constituted inhuman or ~grading treatment but not
torture under the European Convention». Cases deCided by the ECHR subsequent to Ireland have continued to
view torture as an aggravated fonnofinhuman treatmenl See, e.g.,Alrtas Y. Turkey, No. 24351/94' 313 (E.C.H.R
2003); AkJcoc v. Thrke;y, Nos. 22947193 &2'2948/93 '.115 (E.C.H.R 2000); Kayo v. Turkey, No. 22535/93 , 117
(E.C.H.R 2000).

The International Criminal Tnounal for the Fonner Yugoslavia ("TcrY'11ikcwisc considers ''torture'' as a
category.of conduct more severe than ''inhuman tteatment" St:e. e.g., Prosecutor Y. Delatte, IT496.21, Trial
Chamber Judgment,. 542 (lCTY Nov. 16, 1998) {"[lJnhuman treatment is treatment which deliberately causes
seriow mental and physical suffering that faIls short of the severe mental aDd physical suffering requiI~ for the
offence oftorture.'l

7

.......

....

~

~

..~.A-...;..:;,.

:

Although Congress defined "torture" under, sections 2340-2340A to require conduct
specifically intended to cause "severe" pain or suffering, we do JIot believe CongreSs intended to
teach only conduct involving "excruciating and agonizing" pain'or suffering. Although there is
some support for this formulation in the ratification history of the CAT, U a proposed express
understanding to that effect U was "criticized for setting too high a threshold of pain," S. Exec.
Rep. No. 101-30 at 9, and was not adopted. We are uot aware of any evidence suggesting that
11
the standard was r~sed in the statute and we do not believe that it was.

..•.

,Drawing distinctions among gradations pf pain (for example, severe, mild, moderate,
substantial, extreme, intense, excruciating, or agonizing) is obviously not an easy task, especially
given.the lack of any precise, objective scientific criteria for measuring pain. IS" We are, however,

lJ DeputY ~sistant Attorney Gene:ral Mark Richard testified: "rrJhe essence of torture" is treatment that
inflicts "excruciatingmd agonizing physical pain." CA THearing at 16 (prepared statement).
16 See S. Treaty Doc. No. 100-20 at 4-5 ("The United States u.nderstands that, in brder to constitute Iortltte, an
act i:nust be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict
exCruciating and ago~ physical or mental pain or suffering.").
.

17, Thus, we do not agree with the s~ternent in the August 2002 Me(Oorandum that "(tJhe Reagan
administration's u.nd~standing that the pain be 'excruciating and agonizing' is in substance not different from the
Bush aclminislration's proposal that the pain must be severe." August 2002 Me:rnorandum at 19. Although the
tennsare concededly pnprecise, and whatever the intent of the Reagan Administration's understanding, we believe
that in common usage "excruciating and agonizing" pain is understood to be more intense than "severe" pain.

.i

The August 2002 Memorandum also looked to the use of "severe pain" in certain other statutes, and
C'Oncluded that to satisfy the definition in ~ection 2340, pain "must be equivalent in intensity to the pain
accompanying seriOus physical injUry, such as organ failure, impairment ofbodily function, or oven death." Id. all;
see also /d. at 5-6, 13, 46. We do not agree with those statement!. Those other statutes define an "emergency
medical condition," for purposes of providing health benefits, as "a condition manifesting itseffby acute symptoms
of sufficient severity (including severe pain)" such that one could reasonably expect that the absence of immediate
medical care might result in death, organ failure or impainnent of bodily function. See, e.g., 8 U.S.C. § 1369
(2000); 42 U.s.C. § 1395w-22(d)(3)(B) (2000); id. § 1395dd(e) (2000). They do not define "severe pain" even in
"that very different context (rather, they use it as an indication of nn "emergency medical condition"), and they do not
state ihat death, organ failure, or impainnent 'ofbodily function cause "severe pain,.. but rather that "seyCIe pain"
may indicate a condition that, ifuntreated, could cause one pfthose results. We do not believe that they provide a
proper guide for interpreti,ng "severe pain" in the very different context of the prohibition against tortUre in sections
2340-2340A. Cf ,United States 'Y. Cleveland India7U Baseball Co., 532 U.S. 200, 213 (2001) (phrase "wages paid"
has different meaning in different parts of Title 26); Robinson v. Shell Oil Co., 519 U.S. 337, 343-44 (1997) (term
.
"employee" has different lp.eanings in different parts ofTitle VII).
18

Despite extensive efforts to develop objective criteria for measuring pain, there is no clear, objective,

consistent me!lSurement. As one publication explains:

Pain is a complex, subjective, perceptual phenomenon with a IlUlIlber of dimensions-intensity,
quality, time course, impact, and personal meaning-that are uniquely experienced by each
individual and, thus, can only be assessed indirectly. Pain is a subjective experience and there is
no way to oPjecttvely quantify it. Consequently, assessment of a patient's pain depends on the
patient's overt communications, both verbal and behavioral. Given pain's complexity, one must
assess not only its somatic (sensory) component but also patients' moods, attitudes, coping efforts,
resources, re~onses offamily members, and the impact of pain on their lives.

8

,,~

• • • "...' . • . • "

: ._,'"

. . -~

aided in this task by judicial interpretations of the Torture Victims Protection Act (''TVPA'j, 28
U.S.C. § 1350 note (2000). The TVPA, also enacted to implement the. CAT, provides a civil
remedy to victims oftorture. The·TVPA defines "torture" to include:
any act, diiected' against an individual in the offender's custody or physical
control, by which severe pain or suffering (other than pain or suffering, arising
only from or inherent in, or incidental to.. lawful sanctions), whether physical or
mental, is intentionally inflicted on that individual for such purposes as obtaining
from that individual or a third person information or a confession, punishing .that
individual for an act that individual or a third person has committed or is
suspected of having connnitted, intimidating ~r coercing that individual or a third
person, or for any reason based ~n discrimination of any kind ....
28 U.S.C. § 1350 note, § 3(b)(1) (emphases added). The emphasized language is similar to
section 2340's "severe phySical or mental'pain or suffering."" '~ the Court of Appeals for the
DistriCt of ColQmbia Circuit has explained:
'
The severity requirement is cmcial to ensuring that the conduct proscnoed by the
[CAT] and the TVPA is sufficiently extreme and outrageous to warrant the
universal condemnation that the tenn ''torture''-both connotes and invokes, The
drafters of the [CATJ~ as well as the Reagan Administration that signed it, the
Bush Administration that submitted it to Congress, and the Senate that ultimately
ratified it, therefore all sought to ensure that !'only acts ,of a certain gravity shall
be considered to constitute torture,"
.
The critical issue is the degree ofpain and suffering that the alleged
torturer intended to, and actually did~ inflict upon the victim. The more intense,
lasting. or heinous the agony. the more likely it is to be torture.

Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 92-93 (D.C. CiT. 2002)
(citations omitted). That court concl1,lded that a complaint that alleged beatings at the hands of
police but that did not provide details concerning "the severity ofplaintiffs, alleged beatlngs,
including their frequency, duration, the parts ofthe body at which they were aimed, and the
weapons used to carry them out," did not suffice lito ensure that [it] satisflied] the TVPA's
rigorous definition of torture." [d. at 93.
.

In Simpson v. 'Socialist People's Libyan Arab Jamahiriya, 326 F.3d 230 (D.C. Cir. 2003),

the D.C. Circuit again considered the types of acts that constitute torture under the TVPA
definition, ~ plaintiff alleged, among other things, that Libyan authorities had held her
incommunicado and threatened to kill her if she tried to leave. See id. at 232, 234. The court
aclrnowledged that "these alleged acts certainly reflect a bent toward cruelty on the part of their
Dellllis C. Turk, Assess the Person, Not Just the Pain, Pain; Clinical Updates, Sept. 1993 (emphasis added). This
lack of clarity further complicates the effort to define "severe" pain or suffering.
19 Section 3(b)(2) of the TVPA defines "mental pain or suffering" similarly to the 'Way that s~ction 2340(2)
defines "severe mental pain or suffering."
',.'

.....

9

·-,~.

perpetrators," but, reversing the district court, went on to hold that "they are not in themselves so .
unusually cruel or'sufficiently extreme and outrageous as to. constitute torture withln the meaning
ofllie [TVPA)." Id. at 234. CaseS in whic~ courts have found torture suggest the nanrre ofth~
eXtreme conduct that falls within the statutory definition. See. e.g., Hi/ao v. Estate ofMarcos,
103 F.3d 789,790-91, 795 (9th Cir. 1996) (concluding that a course of conduct that included,
among other things, severe beatings ofplaintiff, repeated threats of death and electric shock,
sleep deprivation, extended shackling to cot (at times with a towel over his nose and mouth and
water poured down his nostrils), seven months of confinement in a "suffocatingly hot" and
.
cramped cell, and ~ight years of solitary or near-solitary confinement, constituted torture);
. Mehinovicv. Vuckovic, 198 F. Supp. 2d "1322,1332-40,1345-46 (N.D. Ga. 2002) (concluding
that a course of conduct that included, among other things, severe beatings to the g~tals, head,
and other parts of the body with metal pipes,.brass knuckles, batons, a baseball bat,
various
other items; removal of teeth with plierS; kicking in the face and ribs; breaking of bones and nos
and. dislocation of fingers; cutting a figure into the victim's forehead; hanging the victim and
beating him; extreme limitations offood and water; and subjection to games of ''Russian :
roulette," constituted torture); Dalibeml'. Republic ofIraq, 146 F .. Supp. 2d 19,12-23 (D.D.C.
2001) (entering default judgment a~st Iraq where plaintiffs alleged,. among other thiIigs,
threats of ''physical torture, suches cutting off ... fingers, pulling out ... fingernails," and
electric shocks to the testicles); Cicippio v. Islamic Republic ofIrcl1l, 18 F. Supp. 2d 62, 64-66
(D.D.C. 1998) (con~ludingthat a course of conduct that included frequent beatings, pistol .
whipPlng, ~hreats ofimminent death, electric shocks, and attempts to force confessions by
playing Russian roulette and pulling $e trigger at each denial, cODStitu~ed torture).

a

and

"

j

(2) The meaning oj "severe physical pain or suffering. "
The statute provides a sp~cific definition of "severe mental pain or suffering," see l8
U.S.C. § 2340(2), but does not define the term "severe physical pl:l-in or suffering." Although we .
think the meaning of "severe physical pain" is relatively straightforward., the question remains .
whether Congress intended to prohibit a category of"severe physical suffering" distinct from
"severe physical pain." We conclude tfuit under some circumstances "severe physical suffering"
may constitute torture even ifit does not involve "severe physical pain." Accordingly, to the
extent that the August 2002 Memorandum suggested that "severe physical Buffeting" under the
statute could in no' circumstances be distinct from "severe physical pain," id. at 6 n.3, we do not.
agree.
We begin with the statutory language. The inclusion of the words "or suffering" in the
phrase "severe physical pain or suffering" suggests that the statutory category ofpbysical torture
is not limited to "severe. physical pain." 11lls is especially so in light of the general principle
against interpreting a statute in such a manner as to render words surplusage. See, e.g., Duncan
v. Walker, 533 U.S. 167, 174 (2001).

Exactly what is included in the concept of "severe physical suffering," however, is
difficult to ascertain. We interpret the phrase in a statutory context where Congress expressly
distinguished "physical paU:i or suffering" from "mental pain or suffering." Consequently, a
separate category of "'Physical suffering" must.include something other than any type of ''mental

10

·~_

......:........,. .....

pain or suff'ering."l0 Moreover, given that Congress.precisely de.fined "mental pain or su:fferin~t' .
in the statute, it is unlikely to. have intended to undetmine that careful definition by including a
broad range dfmental,sensations in a "physical suffering" component of "physical pain or
suffering."21· Consequently, ''physical suffering" must be limited to adverse "physical" rather
than adverse "mental" sensations,
.
The·text ot-the statute and the CAT, and their history, provide little concrete guidance as
to what Congress intended separately to include as "severe physical suffering:' Indeed, the

record consistentIyrefers to "severe pb,ys,ical pain or suffering" (or, more often in the ratification
record, "severe physical pain and suffering"), apparently without ever dis aggregating the
concepts of "severe' physical pain" and "severe physical suffering" or iliscussing them as
separate ca~egories with separate content. Although there is virtually no legislative history for
the statute, throughout' the ratification of the CAT-which also uses the disjunctive "pain or
suffering".and'which the statutory prohibition iniplement~the references were generally to
"pain and -suffering," with no indication of-any difference in meaning. The Summary and
Analysis ofthe Convention Against Torture and Other Cruel, Inhuman or Degrading TreCl/menl
or Punishment, whichappeam inS. Treaty Doc. No.. ! 00-20 at 3, for example, repeatedly refers

to "pain and suffering." See"also S. Exec. Rep, No. 101-30'at 6 (three uses of "pain and
suffering");id, -at 13 (eight uses of "pain and suffering"); i.d. at 14 (two uses of<lpain and
suffering"); id. at 35 (one use of ' 'pain and suffering"). C~versely, the phrase "pain or
suffering" is used less frequently in the Senate report in mscussing (as opposed to quoting) the

i

CAT and the understandings under consideration, e,g., id. at 5-6 (one use of "p~in or suffering"),
id. at 14 (two uses of "pain or suffering"); id. at 16 (two uses of "pain or suffering"), an,!, when
us6d, it is with no suggestion that it has any different meaning.

.'

Although we conclude that inclusion of the words "or suffering" in "severe- physical pain
or suffering" establishes that physical torture is not limited to "severe physical pain," we also
.

ZlI

Common dictionary definitions of "physical" confirm that "physical suffering" does not include mental

sensations. See. e.g., American HeriJage Dictionrrry ofthe English Language at 1366 ("Of or relating to the body as
distinguished from the nlind or spirif"); Oxford American Dictionary and Language Guide at 748 ("of or concerning
the body (physical exercise; physical education)'')..
21 TIlis is.particularly so given' that, as Administration witnesses explained, the limiting understanding defining
mental pain or suffering was considered neceSsary to avoid problems of vagueness. See. e,g., CAT Hearing at 8, 10
(prepared statement of Abrabam Sofaer, Legal Adviser, Depart:ment of State: 'The Conventioo's wording ... is not
in aU respects as precise as we believe necessary.... fB]ecause [the Convention] requires establishment of criminal
penalties under our domestic law; we must pay particular attention to the meaning aud inteIpretation of its
provisi(JDS, especially'concerning the standards by which the Convention will be applied-as a matter ofD.S.law....
[W]e prepared a codified proposal which ... clarifies the definition ofmenta! pain. and suffering."); id. at 15-16
(prepared statement of Mark Richard: 'The basic problem with the Torture Convention-one that penneates all our
concerns-is its imprecise definition of torture, especially as that term is applied to actions which result solely in'
mental anguish. This definitional vagueness makes it very doubtful.that the United States can, consistent with
Constirutional due process constraints, fulfill its obligatio" under the Convention to adequately engraft the definition
of torture into the domClitic criminal law of the United States."); id. at 17 (prepared.statement of Mark Richard:
"Accordingly, the Torture Convention's vague detinition concerning the mental sufferiIlg aspect of torture cannot be
resolved by reference to established principles of international law. In an effort to over<:om.e this unacceptable
element of vagueness ·in Article I of the Convention, we have proposed an understanding i",hicb defines severe
mental pain.constituting torture with sufficient specificity to .. , meet Constitutional due process requirements.')

11

.-.

":';'-A.,
.J

:,.;.....

......... , ....

~~.:.,-'-----

~

.-~-'

.... _."

conclude that Congress did not intend "severe physical pain or suffering" to include a category
of ''physical suffering" that would be so broad as to negate the limitations on the. other categories
of torture in fue statute. Moreover, the ''physical suffering' covered by the statute must be
"severe" .to be within the statutory prohibition. We conclude that under some circumstances
"physical suffering" may be ofsuflicientintensity and duration to meet the statutory definition of
torture even if it does not involve "severe physical pain." To constitute such torture, "severe
physical sufferingHwQuld have to be a condition of some extended duration or persistence as
well as intensity. The need to define a category of "severe physical suffering'·' that is different
from "severe physical paiD," and that also does not undermine the limited definition Congress
provided for toltu!e. along with the requirement that any such physical suffering be "severe,"
calls for an interpr.etation,under which "severe physical suffering" is reserved for physical
distress that is "severe" considering its intensity and duration or persistence, rather than merely
mild or transitory.:U Otherwise, the inclusion of such a oategory would lead to the kind of
uncertainty in interpreting the statute that Congress sought to reduce both through its
lUlderstanding to" the> CAT and in sections 2340-2340A
'
(3) The meaning of "severe mental pain or suffering. "

Section "2340 defines "severe mental pain or suffering" to mean:
the prolonged mental harm caused by or resulting from-

(A) the intentional infliction or threatened infliction of severe
physical pain or suffering;
(E) the administration or application, or threatened
adnllnistration or application, ofmind-altering substances or other
procedures calculated to disrupt profoundly the senses or the
personality;

(C) the threat of imminent death; or
{D). the threat that another person will imminently be subjected to

death. severe physical pain or suffering; or the administration or
application ofmind-altering substances or other procedures calculated
to disrupt profoundly the senses or personality[.)
18 U.S.C. § 2340(2). Torture is defined under. the statute to include an act specifically intended
to inflict severe mental pain or suffering. ld. § 2340(1).
An important preliminary question with respect to this definition is whether the statutory
. 22 Suppon for concluding that there is an extended temporal element, or at least an element of persistence, in .
"s,evere physical suffering" as a category distinct from "severe physical pain" may also be found in the prevalence of
concepts of "endurance" of suffering and of suffering as a "state" or "condition" in standard dictionary definitions.
See, e.g., Webster's Third New Inlernatianal Dictionary at 2284 (defming "suffering" as "the endurance of or
submission to affliction, pain, loss"; "a pain endlll"ed"); Random House Dictionary ofthe English Language 190I
, (2d ed. 1987) ("the state ofa person or thing that suffers"); Funk & Wagna//s New Standard Dictionary ofthe
English Langllage 2416 (1946) C"A state of anguish or pain"); American Heritage Dfcticnary cfthe English
Language at 1795 ("The condition of one who sullers").

12

list ofthe four "predicate acts" in section 2340(2)(A)-(D) is exclusive. We conclude th~
.Congress intended the list ofpredicate acts to'be exclusive-that is, to constitute the proscribed
"severe mental pain or suffering" under the statUte, the prolonged mental harm must be caused
by acts falling within one of the four statutory categories of predicate acts. We reach this
conclusion based on the clear language of the statute, which provides a detailed definition that
includes four categories 9fpredicate acts joined by the disjunctive and does not contain a
catchall provision or any other language suggesting that additional acts might qualify (for
example, language such as "including" or "such acts as'').1.3 Congress plainly considered very
specific predicate acts, and this definition tracks the Senate's understanding concerning mental
pain or suffering when giving its advice and consent to ratification ofthe CAT. The conclusion.
that the list ofpredicate acts is exclusive is consistent with both the text ofthe Senate's
.
understanding, and with the fact that it was adopted out of concern that the CAT's definition of
torture· did not otherwise meet the requirement for clarity in defining crimes" See supra note 21.
Adopting an interpretation ofthe statute that expands the list of predicate acts for "severe mental
pain or suffering" would constitute an impenmssible rewriting of the statute and would introd\lCe
the very imprecision that prompted the Senate to adopt its understanding when giving its advice
and consent to ratification of the CAT.

~,

Another questiOn is whether the requirement of;'prolong~d mental harm" caused by or
resulting from one of the enumerated predicate acts is a separate requirement, or whether such
"prolonged mental harm" is to be presumed any time one ofthe.predicate acts occurs. Although
it is possible to read the statute's reference to "the prolonged mental hann caused by or resulting
from" the predicate acts as creating a statutory presumption that each of the predicate acts always
causes prolonged mental ~ we do not believe that was Congress's intent. As noted, this
language closely tracks the understanding that the Senate adopted when it gave its advice and
consent to ratification of the CAT:
in order to constitute torture, an act must be specifically intended to inflict severe
physical or mental pain or suffering and that mental pain or suffering refers. to .
prolonged mental harm caused by or resulting from(!) the intentional infliction or
threatened infliction ofsevere physical pain or suffering; (2) the administration or
application, or threatened administration or application, ofmind altering
substances or other procedures calculated to disrupt profoundly the senses or the
personality; (3) the threat of irnmizlent death; or (4) the threat that another person
will imminently be subjected to death, severe physical pain or suffering, or the
administration or application of mind altering substances or other procedures
calculated to disnipt profoundly the senses or personality.
S. Exec. Rep. No. 101-30 at 36. We do not believe that simply by adding the word "the" before
"prolonged harm," Congress intended a material change in the definition of mental pain or
.

23 These fOUI categories ofpredicate acts "are members of an 'associated group or series.,' justifying the
inference t~t items not mentioned were excluded by deliberate choice, not inadvertence." Barnhart v. Peabody
Coal Co., 537 U.~. 149,168 (ZOO3) (quoting United States v. Vonn, 535 U.S. 55, 65 (2002)). See also, e.g.,
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993); 2A Norman
J. Singer, Statutes and Statutory Construction § 47.23 (6th ed. 2000). Nor do we see any "contrary indications" that
would rebut this inference. Vonn, 535 U.S. at 65.

~
--'

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suffering as articulated in the Senate's understanding to the CAT. The legislati'(e history,
moreover, confirms·that sections 2340·2340Awere intended to fulfill-but not go beyond-the
United States' obligations under the CAT: "This section provid~ the Decessary legislation to
implement the [GAT]. ... The definition oftorture emanates directly from article 1 of the
.[CAT]. The definition for 'severe mental pain and suffering' incorporates the [above mentioned]
understanding.!' S·. Rep. No. 103-107, at 58-59 (1993). This understanding, emb~died in the·
statute, was meant to define the obligation undertaken by the United States. Given this
understanding, the legislative history, and the fact that section 2340(2) defines "severe mental
pain or suffering" carefully in language very similar to the understanding,
do not believe that
Congress intende.d the definition to create a presumption that any time one 0 f the predicate acts
occurs, prolonged mental harm is deemed to result.

we

I

,;

Tuming to.the question of What constitutes "prolonged mental harm caused· by Or
resulting from" a predicate act, we believe that Congress intended this phrase to require mental
''bann'' that is caused by or that results from a predicate act, and that has some lasting duration.
There is little guidance to draw upon' in interpreting this p-hrase.loI Nevertheless, our
interpretation is consistent with the ordinary meaning ofthe statutory tenns, First, the use of the
word "harto"-as opposed to simply repeating "pain or suffering"-suggests some mental
damage or injury. Ordinary dictionary definitions of~'harm:' such as "physical or mental
damage: injury," Webster'$ Third New International Dictionary at 1034 (emphasis ad.ded), or
«[p]hysical or psychological injury or damage," American Heritage Dictionary ofthe English
Language at 825 (emphasis added), sapport this interpretation. Second, to "prolong" means- to
"lengthen in time" or to "extend in duration," or to "draw out," Webster's Third New
International Dictionary at 1815, further suggesting that to be "prolonged," the mental damage
must extend ·for some period oftime. This damage need not be permanent, but it must continue
for a "prolonged" period oftime.1.S Finally, under section 2340(2), the "prolonged mental harm"
must be "caused by" or "resulting from" one ofthe emnnerated predicate acts. 26

24 The pbJase "prolonged mentul bann" does Dot appear in the relevant medical literature or elsewhere in the
.United States Code. The August 2002 Memorandum concluded that to constitute "prolonged mental hann," there
must be "significant psychological hllIIll of significant duration, e.g., lasting for months or even years.'" [d. at 1; see
also id. at 7. Although we believe that the mental hann must be of some lasting duration to be 'prolonged," to the
extent that that fonnulation was intended to suggest that the mental harm would have to last for at least "months or
even years," we do not agree.

II For example. although we do not suggest that the statute is limited to such cases, development of a mental
disorder-such as post-traumatic stress disorder or perhaps chronic depression-<:ould constitute "prolonged mental
harm." See American Psychiatric Association, Diagnostic and Statistical Manual ofMental Disorders 369-76,46368 (4th ed. 2000) ("DSM-IV-TR"). See aLro, e.g., Report ofthe Special Rapporteur on Torture and Other Cruel,
Inhll17laJI or Degrading Treatment or Punishment, U.N. Doc. A/591324, at 14 (2004) ("The most common diagnosis
ofpsychiatric symptoms among torture survivors is said to be post-traumatic stress disorder."); see also Metin
Basoglu et aL, Toi1lire and Metrtal HeuIth: A Research Overview, in Ellen Gerrity et al. cds., The Mental Health
Consequences ofTorture 48-49 (2001) (refetring to findings ofbigher rates ofpost-trauroatic stress disorder in
studies involving tortuIe survivors); Murat Parker et al, PsycJwTogicaJ Effects o!Torture: An Empirical Study of
Tortured ani! Non-Tortured Non-PolitidaIPrlsoners, in Metin Basoglu ed.., TOr1ure and Its Consequences: c;urrent
Treatment Approaches 77 (1992) (referring to findings of post· traumatic stress disorder in torture survivors).

•

.....

2.6

This is not meant to suggest that, if the predicate act or acts continue for an extended period, "prolonged

mental harm" cannot occur tmtil after they are completed. Early occurrences of the predicate act could cause mental

•,'- i
k

14

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I

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.

. Although there are few judicial opinions discussing the question of "prolonged mental
consistent with our view. For example, in
harm ,. " those cases "that .have
. addressed the issue'are
.
the TVPA case ofMehinovic~ the court explained that:
.

.

[Th.e defendant] also caused or participated in the plaintiffs' mental torture.
Mental torture consists of'1Jrolonged mental hann caused by or resulting from:
the intentional infliction or threatened infliction ofsevere physical pain or
suffering; . , . the threat.ofitnrninent death ...." As set out above, plaintiffs
noted in their testimony that- they feared that they would be killed by [the
defendant].during the beatings he inflicted or during games of "Russian roulette."
Each plClintiff continues to suffer long-tenn psychological harm as a result a/the
ordea/.s they suffered at the hands ofdefendant and others.
198 F. Supp. 2d:at 134(5 (emphasis added; first ellipsis in ,original). In reaching-its concluSion,
the court noted that the plaintiffs were confunting to suffer serious mental harm even ten years
after the events in question: . One plaintift"suffers from anxiety, flashbacks, and nightmares and
has difficulty· sleeping. [He] COD~Ues to suffer thinking about what happened to him during this .
ordeal and has been unable to WOIk,as a result oft~e contip,uing effects of the torture he
endured." Id. at 1334. Another plaintiff "suffers from anxiety; sleeps vrfty little, and, has
, frequent nightmares.... [He] bas found it impossible to return tQ work." Id. at 1336. A third
plaintiff"has freque:nt nightmares. He has bad to use medication to help him·sleep. His
experience has made him feel depressed and reclusive, and he has not been able to work since he
escaped from this ordeal." Id. at 1337-38. And.the fourth plaintiff ''has flashbacks and
nightmares, suffers from nervousness, angers easily, and has difficulty trusting people. These
effects directly 4npact and interfere With his ability to work." Id' at 1340. In each case, these
mental effects were continuing years afterthe infliction ofllie predicate acts.
And inSackie v. Ashcrojt,.270 F. Supp. 2d 596 (En.' Pa. 2003), the individual had been
kidnapped and "forcibly recruited" as a child soldier at the age of 14, and over the next three to
four yeat:s had been forced to take narcotics and threatened with imminent death. Id. at 597-98,
601-02. The court concluded that l1le resulting mental harm, which continued over this three-tofour-year period, qualified as ''prolonged mental barm." [d. at 602.

Conversely, in Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285
(S.D. Fla. 2003), the court rejected a claim under th~ TVPA brought by individuals who had
been held at gunpoint OVernlght and repeatedly threatened with death. While fycognizing that
the plaintiffs had experienced an "ordeal," the court concluded that they had failed to show that
their experience caused lasting damage, noting that "tbere is simply no allegation that Plaintiffs
have suffered any pro19nged mental harm or physical injury as a result oftheir alleged
intimidation." ld. at 1294-95.

harm that could continue--and become prolonged-during the extended period the predicate acts continued io
oCcur. For example, in Sat:kie v. Ashcroft. 270 F. Supp. 2d 596, 601-02 (E.D. Pa. 2003). the predicate acts continued
over a three-to-four.year:period, a09 the court concluded that "prolonged mental harm" had occurre'd during that
time.

15

J._

 

 

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