b"Definition of Torture Under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A\nThis opinion interprets the federal criminal prohibition against torture codified at 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x93\n2340A. It supersedes in its entirety the August 1, 2002 opinion of this Office entitled Standards of\nConduct under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A.\nThat statute prohibits conduct \xe2\x80\x9cspecifically intended to inflict severe physical or mental pain or\nsuffering.\xe2\x80\x9d This opinion concludes that \xe2\x80\x9csevere\xe2\x80\x9d pain under the statute is not limited to \xe2\x80\x9cexcruciating\nor agonizing\xe2\x80\x9d pain or pain \xe2\x80\x9cequivalent in intensity to the pain accompanying serious physical injury,\nsuch as organ failure, impairment of bodily functions, or even death.\xe2\x80\x9d\nThe statute also prohibits certain conduct specifically intended to cause \xe2\x80\x9csevere physical suffering\xe2\x80\x9d\ndistinct from \xe2\x80\x9csevere physical pain.\xe2\x80\x9d\n\nDecember 30, 2004\n\nMEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL\nTorture is abhorrent both to American law and values and to international\nnorms. This universal repudiation of torture is reflected in our criminal law, for\nexample, 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A; international agreements, exemplified by the\nUnited Nations Convention Against Torture (the \xe2\x80\x9cCAT\xe2\x80\x9d);1 customary international\nlaw;2 centuries of Anglo-American law;3 and the longstanding policy of the United\nStates, repeatedly and recently reaffirmed by the President.4\nThis Office interpreted the federal criminal prohibition against torture\xe2\x80\x94\ncodified at 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A\xe2\x80\x94in Standards of Conduct for Interrogation\nUnder 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A (Aug. 1, 2002) (\xe2\x80\x9cAugust 2002 Memorandum\xe2\x80\x9d).\nThe August 2002 Memorandum also addressed a number of issues beyond\ninterpretation of those statutory provisions, including the President\xe2\x80\x99s Commander\n\n1\nConvention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,\nadopted by the U.N. General Assembly Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465\nU.N.T.S. 85. See also, e.g., International Covenant on Civil and Political Rights, adopted by the U.N.\nGeneral Assembly Dec. 16, 1966, S. Exec. Doc. E, 95-2 (1978), 999 U.N.T.S. 171.\n2\nIt has been suggested that the prohibition against torture has achieved the status of jus cogens (i.e.,\na peremptory norm) under international law. See, e.g., Siderman de Blake v. Republic of Argentina, 965\nF.2d 699, 714 (9th Cir. 1992); Regina v. Bow Street Metro. Stipendiary Magistrate and others, Ex\nParte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147, 198; see also Restatement (Third) of Foreign\nRelations Law of the United States \xc2\xa7 702 reporters\xe2\x80\x99 note 5.\n3\nSee generally John H. Langbein, Torture and the Law (1977).\n4\nSee, e.g., Statement on United Nations International Day in Support of Victims of Torture, 40\nWeekly Comp. Pres. Doc. 1167 (July 5, 2004) (\xe2\x80\x9cFreedom from torture is an inalienable human right\xe2\x80\x9d);\nStatement on United Nations International Day in Support of Victims of Torture, 39 Weekly Comp.\nPres. Doc. 824 (June 30, 2003) (\xe2\x80\x9cTorture anywhere is an affront to human dignity everywhere.\xe2\x80\x9d); see\nalso Letter of Transmittal from President Ronald Reagan to the Senate (May 20, 1988), in Message\nfrom the President of the United States Transmitting the Convention Against Torture and Other Cruel,\nInhuman or Degrading Treatment or Punishment, S. Treaty Doc. No. 100-20, at iii (1988) (\xe2\x80\x9cRatification of the Convention by the United States will clearly express United States opposition to torture, an\nabhorrent practice unfortunately still prevalent in the world today.\xe2\x80\x9d).\n\n297\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nin Chief power, and various defenses that might be asserted to avoid potential\nliability under sections 2340\xe2\x80\x932340A. See id. at 31\xe2\x80\x9346.\nQuestions have since been raised, both by this Office and by others, about the\nappropriateness and relevance of the non-statutory discussion in the August 2002\nMemorandum, and also about various aspects of the statutory analysis, in particular the statement that \xe2\x80\x9csevere\xe2\x80\x9d pain under the statute was limited to pain \xe2\x80\x9cequivalent in intensity to the pain accompanying serious physical injury, such as organ\nfailure, impairment of bodily function, or even death.\xe2\x80\x9d Id. at 1.5 We decided to\nwithdraw the August 2002 Memorandum, a decision you announced in June 2004.\nAt that time, you directed this Office to prepare a replacement memorandum.\nBecause of the importance of\xe2\x80\x94and public interest in\xe2\x80\x94these issues, you asked that\nthis memorandum be prepared in a form that could be released to the public so that\ninterested parties could understand our analysis of the statute.\nThis memorandum supersedes the August 2002 Memorandum in its entirety.6\nBecause the discussion in that memorandum concerning the President\xe2\x80\x99s Commander in Chief power and the potential defenses to liability was\xe2\x80\x94and remains\xe2\x80\x94\nunnecessary, it has been eliminated from the analysis that follows. Consideration\nof the bounds of any such authority would be inconsistent with the President\xe2\x80\x99s\nunequivocal directive that United States personnel not engage in torture.7\nWe have also modified in some important respects our analysis of the legal\nstandards applicable under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A. For example, we disagree\nwith statements in the August 2002 Memorandum limiting \xe2\x80\x9csevere\xe2\x80\x9d pain under the\nstatute to \xe2\x80\x9cexcruciating and agonizing\xe2\x80\x9d pain, id. at 19, or to pain equivalent in\nintensity to the pain accompanying serious physical injury, such as organ failure,\nimpairment of bodily function, or even death,\xe2\x80\x9d id. at 1. There are additional areas\n\n5\nSee, e.g., Anthony Lewis, Making Torture Legal, N.Y. Rev. of Books, July 15, 2004; R. Jeffrey\nSmith, Slim Legal Grounds for Torture Memos, Wash. Post, July 4, 2004, at A12; Kathleen Clark &\nJulie Mertus, Torturing the Law; the Justice Department\xe2\x80\x99s Legal Contortions on Interrogation, Wash.\nPost, June 20, 2004, at B3; Derek Jinks & David Sloss, Is the President Bound by the Geneva\nConventions?, 90 Cornell L. Rev. 97 (2004).\n6\nThis memorandum necessarily discusses the prohibition against torture in sections 2340\xe2\x80\x932340A in\nsomewhat abstract and general terms. In applying this criminal prohibition to particular circumstances,\ngreat care must be taken to avoid approving as lawful any conduct that might constitute torture. In\naddition, this memorandum does not address the many other sources of law that may apply, depending\non the circumstances, to the detention or interrogation of detainees (for example, the Geneva\nConventions; the Uniform Code of Military Justice, 10 U.S.C. \xc2\xa7\xc2\xa7 801 et seq.; the Military Extraterritorial Jurisdiction Act, 18 U.S.C. \xc2\xa7\xc2\xa7 3261\xe2\x80\x933267; and the War Crimes Act, 18 U.S.C. \xc2\xa7 2441, among\nothers). Any analysis of particular facts must, of course, ensure that the United States complies with all\napplicable legal obligations.\n7\nSee, e.g., Statement on United Nations International Day in Support of Victims of Torture, 40\nWeekly Comp. Pres. Doc. 1167\xe2\x80\x9368 (July 5, 2004) (\xe2\x80\x9cAmerica stands against and will not tolerate\ntorture. We will investigate and prosecute all acts of torture . . . in all territory under our jurisdiction. . . . Torture is wrong no matter where it occurs, and the United States will continue to lead the\nfight to eliminate it everywhere.\xe2\x80\x9d).\n\n298\n\n\x0cDefinition of Torture Under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A\n\nwhere we disagree with or modify the analysis in the August 2002 Memorandum,\nas identified in the discussion below.8\nThe Criminal Division of the Department of Justice has reviewed this memorandum and concurs in the analysis set forth below.\nI.\nSection 2340A provides that \xe2\x80\x9c[w]hoever outside the United States commits or\nattempts to commit torture shall be fined under this title or imprisoned not more\nthan 20 years, or both, and if death results to any person from conduct prohibited\nby this subsection, shall be punished by death or imprisoned for any term of years\nor for life.\xe2\x80\x9d9 Section 2340(1) defines \xe2\x80\x9ctorture\xe2\x80\x9d as \xe2\x80\x9can act committed by a person\nacting under the color of law specifically intended to inflict severe physical or\nmental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.\xe2\x80\x9d10\n\n8\nWhile we have identified various disagreements with the August 2002 Memorandum, we have\nreviewed this Office\xe2\x80\x99s prior opinions addressing issues involving treatment of detainees and do not\nbelieve that any of their conclusions would be different under the standards set forth in this memorandum.\n9\nSection 2340A provides in full:\n\n(a) Offense.\xe2\x80\x94Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if\ndeath results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.\n(b) Jurisdiction.\xe2\x80\x94There is jurisdiction over the activity prohibited in subsection (a)\nif\xe2\x80\x94\n(1) the alleged offender is a national of the United States; or\n(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.\n(c) Conspiracy.\xe2\x80\x94A person who conspires to commit an offense under this section\nshall be subject to the same penalties (other than the penalty of death) as the penalties\nprescribed for the offense, the commission of which was the object of the conspiracy.\n18 U.S.C. \xc2\xa7 2340A (2000).\n10\nSection 2340 provides in full:\nAs used in this chapter\xe2\x80\x94\n(1) \xe2\x80\x9ctorture\xe2\x80\x9d means an act committed by a person acting under color of law\nspecifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person\nwithin his custody or physical control;\n(2) \xe2\x80\x9csevere mental pain or suffering\xe2\x80\x9d means the prolonged mental harm caused\nby or resulting from\xe2\x80\x94\n(A) the intentional infliction or threatened infliction of severe physical\npain or suffering;\n\n299\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nIn interpreting these provisions, we note that Congress may have adopted a\nstatutory definition of \xe2\x80\x9ctorture\xe2\x80\x9d that differs from certain colloquial uses of the\nterm. Cf. Cadet v. Bulger, 377 F.3d 1173, 1194 (11th Cir. 2004) (\xe2\x80\x9c[I]n other\ncontexts and under other definitions [the conditions] might be described as\ntorturous. The fact remains, however, that the only relevant definition of \xe2\x80\x98torture\xe2\x80\x99\nis the definition contained in [the] CAT.\xe2\x80\x9d). We must, of course, give effect to the\nstatute as enacted by Congress.11\nCongress enacted sections 2340\xe2\x80\x932340A to carry out the United States\xe2\x80\x99 obligations under the CAT. See H.R. Conf. Rep. No. 103-482, at 229 (1994). The CAT,\namong other things, obligates state parties to take effective measures to prevent\nacts of torture in any territory under their jurisdiction, and requires the United\nStates, as a state party, to ensure that acts of torture, along with attempts and\ncomplicity to commit such acts, are crimes under U.S. law. See CAT arts. 2, 4\xe2\x80\x935.\nSections 2340\xe2\x80\x932340A satisfy that requirement with respect to acts committed\noutside the United States.12 Conduct constituting \xe2\x80\x9ctorture\xe2\x80\x9d occurring within the\nUnited States was\xe2\x80\x94and remains\xe2\x80\x94prohibited by various other federal and state\ncriminal statutes that we do not discuss here.\nThe CAT defines \xe2\x80\x9ctorture\xe2\x80\x9d so as to require the intentional infliction of \xe2\x80\x9csevere\npain or suffering, whether physical or mental.\xe2\x80\x9d Article 1(1) of the CAT provides:\nFor the purposes of this Convention, the term \xe2\x80\x9ctorture\xe2\x80\x9d means any\nact by which severe pain or suffering, whether physical or mental, is\nintentionally inflicted on a person for such purposes as obtaining\nfrom him or a third person information or a confession, punishing\nhim for an act he or a third person has committed or is suspected of\nhaving committed, or intimidating or coercing him or a third person,\n(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to\ndisrupt profoundly the senses or the personality;\n(C) the threat of imminent death; or\n(D) the threat that another person will imminently be subjected to death,\nsevere physical pain or suffering, or the administration or application of\nmind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and\n(3) \xe2\x80\x9cUnited States\xe2\x80\x9d means the several States of the United States, the District\nof Columbia, and the commonwealths, territories, and possessions of the United States.\n18 U.S.C. \xc2\xa7 2340 (as amended by Pub. L. No. 108-375, 118 Stat. 1811 (2004)).\n11\nOur task is only to offer guidance on the meaning of the statute, not to comment on policy. It is of\ncourse open to policymakers to determine that conduct that might not be prohibited by the statute is\nnevertheless contrary to the interests or policy of the United States.\n12\nCongress limited the territorial reach of the federal torture statute, providing that the prohibition\napplies only to conduct occurring \xe2\x80\x9coutside the United States,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2340A(a), which is currently\ndefined in the statute to mean outside \xe2\x80\x9cthe several States of the United States, the District of Columbia,\nand the commonwealths, territories, and possessions of the United States.\xe2\x80\x9d Id. \xc2\xa7 2340(3).\n\n300\n\n\x0cDefinition of Torture Under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A\n\nor for any reason based on discrimination of any kind, when such\npain or suffering is inflicted by or at the instigation of or with the\nconsent or acquiescence of a public official or other person acting in\nan official capacity. It does not include pain or suffering arising only\nfrom, inherent in or incidental to lawful sanctions.\nThe Senate attached the following understanding to its resolution of advice and\nconsent to ratification of the CAT:\nThe United States understands that, in order to constitute torture, an\nact must be specifically intended to inflict severe physical or mental\npain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional\ninfliction or threatened infliction of severe physical pain or suffering;\n(2) the administration or application, or threatened administration or\napplication, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat\nof imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the\nadministration or application of mind altering substances or other\nprocedures calculated to disrupt profoundly the senses or personality.\nS. Exec. Rep. No. 101-30, at 36 (1990). This understanding was deposited with the\nU.S. instrument of ratification on October 21, 1994, see 1830 U.N.T.S. 320, and\nthus defines the scope of the United States\xe2\x80\x99 obligations under the treaty. See\nRelevance of Senate Ratification History to Treaty Interpretation, 11 Op. O.L.C.\n28, 32\xe2\x80\x9333 (1987). The criminal prohibition against torture that Congress codified\nin 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A generally tracks the prohibition in the CAT, subject\nto the U.S. understanding.\nII.\nUnder the language adopted by Congress in sections 2340\xe2\x80\x932340A, to constitute\n\xe2\x80\x9ctorture,\xe2\x80\x9d the conduct in question must have been \xe2\x80\x9cspecifically intended to inflict\nsevere physical or mental pain or suffering.\xe2\x80\x9d In the discussion that follows, we will\nseparately consider each of the principal components of this key phrase: (1) the\nmeaning of \xe2\x80\x9csevere\xe2\x80\x9d; (2) the meaning of \xe2\x80\x9csevere physical pain or suffering\xe2\x80\x9d;\n(3) the meaning of \xe2\x80\x9csevere mental pain or suffering\xe2\x80\x9d; and (4) the meaning of\n\xe2\x80\x9cspecifically intended.\xe2\x80\x9d\nA. The Meaning of \xe2\x80\x9cSevere\xe2\x80\x9d\nBecause the statute does not define \xe2\x80\x9csevere,\xe2\x80\x9d \xe2\x80\x9cwe construe [the] term in accordance with its ordinary or natural meaning.\xe2\x80\x9d FDIC v. Meyer, 510 U.S. 471, 476\n\n301\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n(1994). The common understanding of the term \xe2\x80\x9ctorture\xe2\x80\x9d and the context in which\nthe statute was enacted also inform our analysis.\nDictionaries define \xe2\x80\x9csevere\xe2\x80\x9d (often conjoined with \xe2\x80\x9cpain\xe2\x80\x9d) to mean \xe2\x80\x9cextremely\nviolent or intense: severe pain.\xe2\x80\x9d American Heritage Dictionary of the English\nLanguage 1653 (3d ed. 1992); see also 15 Oxford English Dictionary 101 (2d ed.\n1989) (\xe2\x80\x9cOf pain, suffering, loss, or the like: Grievous, extreme\xe2\x80\x9d and \xe2\x80\x9cOf events or\ncircumstances . . . : Hard to sustain or endure\xe2\x80\x9d).13\nThe statute, moreover, was intended to implement the United States\xe2\x80\x99 obligations under the CAT, which, as quoted above, defines as \xe2\x80\x9ctorture\xe2\x80\x9d acts that inflict\n\xe2\x80\x9csevere pain or suffering\xe2\x80\x9d on a person. CAT art. 1(1). As the Senate Foreign\nRelations Committee explained in its report recommending that the Senate consent\nto ratification of the CAT:\nThe [CAT] seeks to define \xe2\x80\x9ctorture\xe2\x80\x9d in a relatively limited fashion,\ncorresponding to the common understanding of torture as an extreme\npractice which is universally condemned. . . .\nThe term \xe2\x80\x9ctorture,\xe2\x80\x9d in United States and international usage, is usually reserved for extreme, deliberate and unusually cruel practices, for\nexample, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain.\nS. Exec. Rep. No. 101-30, at 13\xe2\x80\x9314. See also David P. Stewart, The Torture\nConvention and the Reception of International Criminal Law Within the United\nStates, 15 Nova L. Rev. 449, 455 (1991) (\xe2\x80\x9cBy stressing the extreme nature of\ntorture, . . . [the] definition [of torture in the CAT] describes a relatively limited set\nof circumstances likely to be illegal under most, if not all, domestic legal systems.\xe2\x80\x9d).\nFurther, the CAT distinguishes between torture and \xe2\x80\x9cother acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as\n\n13\nCommon dictionary definitions of \xe2\x80\x9ctorture\xe2\x80\x9d further support the statutory concept that the pain or\nsuffering must be severe. See Black\xe2\x80\x99s Law Dictionary 1528 (8th ed. 2004) (defining \xe2\x80\x9ctorture\xe2\x80\x9d as \xe2\x80\x9c[t]he\ninfliction of intense pain to the body or mind to punish, to extract a confession or information, or to\nobtain sadistic pleasure\xe2\x80\x9d) (emphasis added); Webster\xe2\x80\x99s Third New International Dictionary of the\nEnglish Language Unabridged 2414 (2002) (defining \xe2\x80\x9ctorture\xe2\x80\x9d as \xe2\x80\x9cthe infliction of intense pain (as\nfrom burning, crushing, wounding) to punish or coerce someone\xe2\x80\x9d) (emphasis added); Oxford American\nDictionary and Language Guide 1064 (1999) (defining \xe2\x80\x9ctorture\xe2\x80\x9d as \xe2\x80\x9cthe infliction of severe bodily\npain, esp. as a punishment or a means of persuasion\xe2\x80\x9d) (emphasis added).\nThis interpretation is also consistent with the history of torture. See generally the descriptions in\nLord Hope\xe2\x80\x99s lecture, Torture, University of Essex/Clifford Chance Lecture 7\xe2\x80\x938 (Jan. 28, 2004), and in\nProfessor Langbein\xe2\x80\x99s book, Torture and the Law of Proof: Europe and England in the Ancien R\xc3\xa9gime.\nWe emphatically are not saying that only such historical techniques\xe2\x80\x94or similar ones\xe2\x80\x94can constitute\n\xe2\x80\x9ctorture\xe2\x80\x9d under sections 2340\xe2\x80\x932340A. But the historical understanding of \xe2\x80\x9ctorture\xe2\x80\x9d is relevant to\ninterpreting Congress\xe2\x80\x99s intent. Cf. Morissette v. United States, 342 U.S. 246, 263 (1952).\n\n302\n\n\x0cDefinition of Torture Under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A\n\ndefined in article 1.\xe2\x80\x9d CAT art. 16. The CAT thus treats torture as an \xe2\x80\x9cextreme\nform\xe2\x80\x9d of cruel, inhuman, or degrading treatment. See S. Exec. Rep. No. 101-30, at\n6, 13; see also J. Herman Burgers & Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other\nCruel, Inhuman or Degrading Treatment or Punishment 80 (1988) (\xe2\x80\x9cCAT\nHandbook\xe2\x80\x9d) (noting that Article 16 implies \xe2\x80\x9cthat torture is the gravest form of\n[cruel, inhuman, or degrading] treatment [or] punishment\xe2\x80\x9d) (emphasis added);\nMalcolm D. Evans, Getting to Grips with Torture, 51 Int\xe2\x80\x99l & Comp. L.Q. 365, 369\n(2002) (The CAT \xe2\x80\x9cformalises a distinction between torture on the one hand and\ninhuman and degrading treatment on the other by attributing different legal\nconsequences to them.\xe2\x80\x9d).14 The Senate Foreign Relations Committee emphasized\nthis point in its report recommending that the Senate consent to ratification of the\nCAT. See S. Exec. Rep. No. 101-30, at 13 (\xe2\x80\x9c\xe2\x80\x98Torture\xe2\x80\x99 is thus to be distinguished\nfrom lesser forms of cruel, inhuman, or degrading treatment or punishment, which\nare to be deplored and prevented, but are not so universally and categorically\n14\nThis approach\xe2\x80\x94distinguishing torture from lesser forms of cruel, inhuman, or degrading treatment\xe2\x80\x94is consistent with other international law sources. The CAT\xe2\x80\x99s predecessor, the U.N. Torture\nDeclaration, defined torture as \xe2\x80\x9can aggravated and deliberate form of cruel, inhuman or degrading\ntreatment or punishment.\xe2\x80\x9d Declaration on the Protection of All Persons from Being Subjected to\nTorture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Res. 3452, art. 1(2)\n(Dec. 9, 1975) (emphasis added); see also S. Treaty Doc. No. 100-20 at 2 (The U.N. Torture\nDeclaration was \xe2\x80\x9ca point of departure for the drafting of the [CAT].\xe2\x80\x9d). Other treaties also distinguish\ntorture from lesser forms of cruel, inhuman, or degrading treatment. See, e.g., European Convention for\nthe Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4, 1950, 213 U.N.T.S. 221\n(\xe2\x80\x9cEuropean Convention\xe2\x80\x9d) (\xe2\x80\x9cNo one shall be subjected to torture or to inhuman or degrading treatment\nor punishment.\xe2\x80\x9d); Evans, Getting to Grips with Torture, 51 Int\xe2\x80\x99l & Comp. L.Q. at 370 (\xe2\x80\x9c[T]he ECHR\n[European Court of Human Rights] organs have adopted . . . a \xe2\x80\x98vertical\xe2\x80\x99 approach . . . , which is seen as\ncomprising three separate elements, each representing a progression of seriousness, in which one\nmoves progressively from forms of ill-treatment which are \xe2\x80\x98degrading\xe2\x80\x99 to those which are \xe2\x80\x98inhuman\xe2\x80\x99\nand then to \xe2\x80\x98torture.\xe2\x80\x99 The distinctions between them is [sic] based on the severity of suffering involved,\nwith \xe2\x80\x98torture\xe2\x80\x99 at the apex.\xe2\x80\x9d); Debra Long, Association for the Prevention of Torture, Guide to\nJurisprudence on Torture and Ill-Treatment: Article 3 of the European Convention for the Protection\nof Human Rights 13 (2002) (The approach of distinguishing between \xe2\x80\x9ctorture,\xe2\x80\x9d \xe2\x80\x9cinhuman\xe2\x80\x9d acts, and\n\xe2\x80\x9cdegrading\xe2\x80\x9d acts has \xe2\x80\x9cremained the standard approach taken by the European judicial bodies. Within\nthis approach torture has been singled out as carrying a special stigma, which distinguishes it from\nother forms of ill-treatment.\xe2\x80\x9d). See also CAT Handbook at 115\xe2\x80\x9317 (discussing the ECHR decision in\nIreland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) (1978)) (concluding that the combined use of\nwall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink\nconstituted inhuman or degrading treatment but not torture under the European Convention). Cases\ndecided by the ECHR subsequent to Ireland have continued to view torture as an aggravated form of\ninhuman treatment. See, e.g., Akta\xc5\x9f v. Turkey, App. No. 24351/94, \xc2\xb6 313 (Eur. Ct. H.R. 2003); Akko\xc3\xa7 v.\nTurkey, Apps. Nos. 22947/93 & 22948/93, \xc2\xb6 115 (Eur. Ct. H.R. 2000); Kaya v. Turkey, App. No.\n22535/93, \xc2\xb6 117 (Eur. Ct. H.R. 2000).\nThe International Criminal Tribunal for the Former Yugoslavia (\xe2\x80\x9cICTY\xe2\x80\x9d) likewise considers\n\xe2\x80\x9ctorture\xe2\x80\x9d as a category of conduct more severe than \xe2\x80\x9cinhuman treatment.\xe2\x80\x9d See, e.g., Prosecutor v.\nDelalic, Case No. IT-96-21, Trial Chamber Judgment \xc2\xb6 542 (Int\xe2\x80\x99l Crim. Trib. for the Former\nYugoslavia Nov. 16, 1998) (\xe2\x80\x9c[I]nhuman treatment is treatment which deliberately causes serious\nmental and physical suffering that falls short of the severe mental and physical suffering required for\nthe offence of torture.\xe2\x80\x9d).\n\n303\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\ncondemned as to warrant the severe legal consequences that the Convention\nprovides in the case of torture. . . . The requirement that torture be an extreme\nform of cruel and inhuman treatment is expressed in Article 16, which refers to\n\xe2\x80\x98other acts of cruel, inhuman or degrading treatment or punishment which do not\namount to torture . . . .\xe2\x80\x99\xe2\x80\x9d). See also Cadet, 377 F.3d at 1194 (\xe2\x80\x9cThe definition in\nCAT draws a critical distinction between \xe2\x80\x98torture\xe2\x80\x99 and \xe2\x80\x98other acts of cruel,\ninhuman, or degrading punishment or treatment.\xe2\x80\x99\xe2\x80\x9d).\nRepresentations made to the Senate by executive branch officials when the\nSenate was considering the CAT are also relevant in interpreting the CAT\xe2\x80\x99s torture\nprohibition\xe2\x80\x94which sections 2340\xe2\x80\x932340A implement. Mark Richard, a Deputy\nAssistant Attorney General in the Criminal Division, testified that \xe2\x80\x9c[t]orture is\nunderstood to be that barbaric cruelty which lies at the top of the pyramid of\nhuman rights misconduct.\xe2\x80\x9d Convention Against Torture: Hearing Before the\nSenate Comm. on Foreign Relations, 101st Cong. 16 (1990) (\xe2\x80\x9cCAT Hearing\xe2\x80\x9d)\n(prepared statement). The Senate Foreign Relations Committee also understood\ntorture to be limited in just this way. See S. Exec. Rep. No. 101-30, at 6 (noting\nthat \xe2\x80\x9c[f]or an act to be \xe2\x80\x98torture,\xe2\x80\x99 it must be an extreme form of cruel and inhuman\ntreatment, causing severe pain and suffering, and be intended to cause severe pain\nand suffering\xe2\x80\x9d). Both the Executive Branch and the Senate acknowledged the\nefforts of the United States during the negotiating process to strengthen the\neffectiveness of the treaty and to gain wide adherence thereto by focusing the\nConvention \xe2\x80\x9con torture rather than on other relatively less abhorrent practices.\xe2\x80\x9d\nLetter of Submittal from George P. Shultz, Secretary of State, to President Ronald\nReagan (May 10, 1988), in S. Treaty Doc. No. 100-20, at v; see also S. Exec. Rep.\nNo. 101-30, at 2\xe2\x80\x933 (\xe2\x80\x9cThe United States\xe2\x80\x9d helped to focus the Convention \xe2\x80\x9con\ntorture rather than other less abhorrent practices.\xe2\x80\x9d). Such statements are probative\nof a treaty\xe2\x80\x99s meaning. See 11 Op. O.L.C. at 35\xe2\x80\x9336.\nAlthough Congress defined \xe2\x80\x9ctorture\xe2\x80\x9d under sections 2340\xe2\x80\x932340A to require\nconduct specifically intended to cause \xe2\x80\x9csevere\xe2\x80\x9d pain or suffering, we do not\nbelieve Congress intended to reach only conduct involving \xe2\x80\x9cexcruciating and\nagonizing\xe2\x80\x9d pain or suffering. Although there is some support for this formulation\nin the ratification history of the CAT,15 a proposed express understanding to that\neffect16 was \xe2\x80\x9ccriticized for setting too high a threshold of pain,\xe2\x80\x9d S. Exec. Rep. No.\n101-30, at 9, and was not adopted. We are not aware of any evidence suggesting\nthat the standard was raised in the statute and we do not believe that it was.17\n15\nDeputy Assistant Attorney General Mark Richard testified: \xe2\x80\x9c[T]he essence of torture\xe2\x80\x9d is treatment that inflicts \xe2\x80\x9cexcruciating and agonizing physical pain.\xe2\x80\x9d CAT Hearing at 16 (prepared statement).\n16\nSee S. Treaty Doc. No. 100-20, at 4\xe2\x80\x935 (\xe2\x80\x9cThe United States understands that, in order to constitute\ntorture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature,\nspecifically intended to inflict excruciating and agonizing physical or mental pain or suffering.\xe2\x80\x9d).\n17\nThus, we do not agree with the statement in the August 2002 Memorandum that \xe2\x80\x9c[t]he Reagan\nadministration\xe2\x80\x99s understanding that the pain be \xe2\x80\x98excruciating and agonizing\xe2\x80\x99 is in substance not\ndifferent from the Bush administration\xe2\x80\x99s proposal that the pain must be severe.\xe2\x80\x9d Id. at 19. Although the\nterms are concededly imprecise, and whatever the intent of the Reagan Administration's understanding,\n\n304\n\n\x0cDefinition of Torture Under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A\n\nDrawing distinctions among gradations of pain (for example, severe, mild,\nmoderate, substantial, extreme, intense, excruciating, or agonizing) is obviously\nnot an easy task, especially given the lack of any precise, objective scientific\ncriteria for measuring pain.18 We are, however, aided in this task by judicial\ninterpretations of the Torture Victims Protection Act (\xe2\x80\x9cTVPA\xe2\x80\x9d), 28 U.S.C. \xc2\xa7 1350\nnote (2000). The TVPA, also enacted to implement the CAT, provides a civil\nremedy to victims of torture. The TVPA defines \xe2\x80\x9ctorture\xe2\x80\x9d to include:\nany act, directed against an individual in the offender\xe2\x80\x99s custody or\nphysical control, by which severe pain or suffering (other than pain\nor suffering arising only from or inherent in, or incidental to, lawful\nsanctions), whether physical or mental, is intentionally inflicted on\nthat individual for such purposes as obtaining from that individual or\na third person information or a confession, punishing that individual\nfor an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual\n\nwe believe that in common usage \xe2\x80\x9cexcruciating and agonizing\xe2\x80\x9d pain is understood to be more intense\nthan \xe2\x80\x9csevere\xe2\x80\x9d pain.\nThe August 2002 Memorandum also looked to the use of \xe2\x80\x9csevere pain\xe2\x80\x9d in certain other statutes, and\nconcluded that to satisfy the definition in section 2340, pain \xe2\x80\x9cmust be equivalent in intensity to the pain\naccompanying serious physical injury, such as organ failure, impairment of bodily function, or even\ndeath.\xe2\x80\x9d Id. at 1; see also id. at 5\xe2\x80\x936, 13, 46. We do not agree with those statements. Those other statutes\ndefine an \xe2\x80\x9cemergency medical condition,\xe2\x80\x9d for purposes of providing health benefits, as \xe2\x80\x9ca condition\nmanifesting itself by acute symptoms of sufficient severity (including severe pain)\xe2\x80\x9d such that one could\nreasonably expect that the absence of immediate medical care might result in death, organ failure or\nimpairment of bodily function. See, e.g., 8 U.S.C. \xc2\xa7 1369 (2000); 42 U.S.C. \xc2\xa7 1395w-22(d)(3)(B)\n(2000); id. \xc2\xa7 1395dd(e) (2000). They do not define \xe2\x80\x9csevere pain\xe2\x80\x9d even in that very different context\n(rather, they use it as an indication of an \xe2\x80\x9cemergency medical condition\xe2\x80\x9d), and they do not state that\ndeath, organ failure, or impairment of bodily function cause \xe2\x80\x9csevere pain,\xe2\x80\x9d but rather that \xe2\x80\x9csevere pain\xe2\x80\x9d\nmay indicate a condition that, if untreated, could cause one of those results. We do not believe that they\nprovide a proper guide for interpreting \xe2\x80\x9csevere pain\xe2\x80\x9d in the very different context of the prohibition\nagainst torture in sections 2340\xe2\x80\x932340A. Cf. United States v. Cleveland Indians Baseball Co., 532 U.S.\n200, 213 (2001) (phrase \xe2\x80\x9cwages paid\xe2\x80\x9d has different meaning in different parts of Title 26); Robinson v.\nShell Oil Co., 519 U.S. 337, 343\xe2\x80\x9344 (1997) (term \xe2\x80\x9cemployee\xe2\x80\x9d has different meanings in different parts\nof Title VII).\n18\nDespite extensive efforts to develop objective criteria for measuring pain, there is no clear,\nobjective, consistent measurement. As one publication explains:\nPain is a complex, subjective, perceptual phenomenon with a number of dimensions\xe2\x80\x94\nintensity, quality, time course, impact, and personal meaning\xe2\x80\x94that are uniquely experienced by each individual and, thus, can only be assessed indirectly. Pain is a subjective experience and there is no way to objectively quantify it. Consequently, assessment of a patient\xe2\x80\x99s pain depends on the patient\xe2\x80\x99s overt communications, both verbal\nand behavioral. Given pain\xe2\x80\x99s complexity, one must assess not only its somatic (sensory) component but also patients\xe2\x80\x99 moods, attitudes, coping efforts, resources, responses\nof family members, and the impact of pain on their lives.\nDennis C. Turk, Assess the Person, Not Just the Pain, Pain: Clinical Updates, Sept. 1993 (emphasis\nadded). This lack of clarity further complicates the effort to define \xe2\x80\x9csevere\xe2\x80\x9d pain or suffering.\n\n305\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nor a third person, or for any reason based on discrimination of any\nkind . . . .\n28 U.S.C. \xc2\xa7 1350 note, \xc2\xa7 3(b)(1) (emphases added). The emphasized language is\nsimilar to section 2340\xe2\x80\x99s \xe2\x80\x9csevere physical or mental pain or suffering.\xe2\x80\x9d19 As the\nCourt of Appeals for the District of Columbia Circuit has explained:\nThe severity requirement is crucial to ensuring that the conduct proscribed by the [CAT] and the TVPA is sufficiently extreme and outrageous to warrant the universal condemnation that the term \xe2\x80\x9ctorture\xe2\x80\x9d both connotes and invokes. The drafters of the [CAT], as well\nas the Reagan Administration that signed it, the Bush Administration\nthat submitted it to Congress, and the Senate that ultimately ratified\nit, therefore all sought to ensure that \xe2\x80\x9conly acts of a certain gravity\nshall be considered to constitute torture.\xe2\x80\x9d\nThe critical issue is the degree of pain and suffering that the alleged torturer intended to, and actually did, inflict upon the victim.\nThe more intense, lasting, or heinous the agony, the more likely it is\nto be torture.\nPrice v. Socialist People\xe2\x80\x99s Libyan Arab Jamahiriya, 294 F.3d 82, 92\xe2\x80\x9393 (D.C. Cir.\n2002) (citations omitted). That court concluded that a complaint that alleged\nbeatings at the hands of police but that did not provide details concerning \xe2\x80\x9cthe\nseverity of plaintiffs\xe2\x80\x99 alleged beatings, including their frequency, duration, the\nparts of the body at which they were aimed, and the weapons used to carry them\nout,\xe2\x80\x9d did not suffice \xe2\x80\x9cto ensure that [it] satisf[ied] the TVPA\xe2\x80\x99s rigorous definition\nof torture.\xe2\x80\x9d Id. at 93.\nIn Simpson v. Socialist People\xe2\x80\x99s Libyan Arab Jamahiriya, 326 F.3d 230 (D.C.\nCir. 2003), the D.C. Circuit again considered the types of acts that constitute\ntorture under the TVPA definition. The plaintiff alleged, among other things, that\nLibyan authorities had held her incommunicado and threatened to kill her if she\ntried to leave. See id. at 232, 234. The court acknowledged that \xe2\x80\x9cthese alleged acts\ncertainly reflect a bent toward cruelty on the part of their perpetrators,\xe2\x80\x9d but,\nreversing the district court, went on to hold that \xe2\x80\x9cthey are not in themselves so\nunusually cruel or sufficiently extreme and outrageous as to constitute torture\nwithin the meaning of the [TVPA].\xe2\x80\x9d Id. at 234. Cases in which courts have found\ntorture suggest the nature of the extreme conduct that falls within the statutory\ndefinition. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 789, 790\xe2\x80\x9391, 795 (9th\nCir. 1996) (concluding that a course of conduct that included, among other things,\nsevere beatings of plaintiff, repeated threats of death and electric shock, sleep\n\n19\nSection 3(b)(2) of the TVPA defines \xe2\x80\x9cmental pain or suffering\xe2\x80\x9d similarly to the way that section\n2340(2) defines \xe2\x80\x9csevere mental pain or suffering.\xe2\x80\x9d\n\n306\n\n\x0cDefinition of Torture Under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A\n\ndeprivation, extended shackling to a cot (at times with a towel over his nose and\nmouth and water poured down his nostrils), seven months of confinement in a\n\xe2\x80\x9csuffocatingly hot\xe2\x80\x9d and cramped cell, and eight years of solitary or near-solitary\nconfinement constituted torture); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322,\n1332\xe2\x80\x9340, 1345\xe2\x80\x9346 (N.D. Ga. 2002) (concluding that a course of conduct that\nincluded, among other things, severe beatings to the genitals, head, and other parts\nof the body with metal pipes, brass knuckles, batons, a baseball bat, and various\nother items; removal of teeth with pliers; kicking in the face and ribs; breaking of\nbones and ribs and dislocation of fingers; cutting a figure into the victim\xe2\x80\x99s\nforehead; hanging the victim and beating him; extreme limitations of food and\nwater; and subjection to games of \xe2\x80\x9cRussian roulette\xe2\x80\x9d constituted torture); Daliberti\nv. Republic of Iraq, 146 F. Supp. 2d 19, 22\xe2\x80\x9323 (D.D.C. 2001) (entering default\njudgment against Iraq where plaintiffs alleged, among other things, threats of\n\xe2\x80\x9cphysical torture, such as cutting off . . . fingers, pulling out . . . fingernails,\xe2\x80\x9d and\nelectric shocks to the testicles); Cicippio v. Islamic Republic of Iran, 18 F. Supp.\n2d 62, 64\xe2\x80\x9366 (D.D.C. 1998) (concluding that a course of conduct that included\nfrequent beatings, pistol whipping, threats of imminent death, electric shocks, and\nattempts to force confessions by playing Russian roulette and pulling the trigger at\neach denial constituted torture).\nB. The Meaning of \xe2\x80\x9cSevere Physical Pain or Suffering\xe2\x80\x9d\nThe statute provides a specific definition of \xe2\x80\x9csevere mental pain or suffering,\xe2\x80\x9d\n18 U.S.C. \xc2\xa7 2340(2), but does not define the term \xe2\x80\x9csevere physical pain or\nsuffering.\xe2\x80\x9d Although we think the meaning of \xe2\x80\x9csevere physical pain\xe2\x80\x9d is relatively\nstraightforward, the question remains whether Congress intended to prohibit a\ncategory of \xe2\x80\x9csevere physical suffering\xe2\x80\x9d distinct from \xe2\x80\x9csevere physical pain.\xe2\x80\x9d We\nconclude that under some circumstances \xe2\x80\x9csevere physical suffering\xe2\x80\x9d may constitute torture even if it does not involve \xe2\x80\x9csevere physical pain.\xe2\x80\x9d Accordingly, to the\nextent that the August 2002 Memorandum suggested that \xe2\x80\x9csevere physical\nsuffering\xe2\x80\x9d under the statute could in no circumstances be distinct from \xe2\x80\x9csevere\nphysical pain,\xe2\x80\x9d id. at 6 n.3, we do not agree.\nWe begin with the statutory language. The inclusion of the words \xe2\x80\x9cor suffering\xe2\x80\x9d\nin the phrase \xe2\x80\x9csevere physical pain or suffering\xe2\x80\x9d suggests that the statutory\ncategory of physical torture is not limited to \xe2\x80\x9csevere physical pain.\xe2\x80\x9d This is\nespecially so in light of the general principle against interpreting a statute in such a\nmanner as to render words surplusage. See, e.g., Duncan v. Walker, 533 U.S. 167,\n174 (2001).\nExactly what is included in the concept of \xe2\x80\x9csevere physical suffering,\xe2\x80\x9d however, is difficult to ascertain. We interpret the phrase in a statutory context where\nCongress expressly distinguished \xe2\x80\x9cphysical pain or suffering\xe2\x80\x9d from \xe2\x80\x9cmental pain\nor suffering.\xe2\x80\x9d Consequently, a separate category of \xe2\x80\x9cphysical suffering\xe2\x80\x9d must\n\n307\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\ninclude something other than any type of \xe2\x80\x9cmental pain or suffering.\xe2\x80\x9d 20 Moreover,\ngiven that Congress precisely defined \xe2\x80\x9cmental pain or suffering\xe2\x80\x9d in the statute, it is\nunlikely to have intended to undermine that careful definition by including a broad\nrange of mental sensations in a \xe2\x80\x9cphysical suffering\xe2\x80\x9d component of \xe2\x80\x9cphysical pain\nor suffering.21\xe2\x80\x9c Consequently, \xe2\x80\x9cphysical suffering\xe2\x80\x9d must be limited to adverse\n\xe2\x80\x9cphysical\xe2\x80\x9d rather than adverse \xe2\x80\x9cmental\xe2\x80\x9d sensations.\nThe text of the statute and the CAT, and their history, provide little concrete\nguidance as to what Congress intended separately to include as \xe2\x80\x9csevere physical\nsuffering.\xe2\x80\x9d Indeed, the record consistently refers to \xe2\x80\x9csevere physical pain or\nsuffering\xe2\x80\x9d (or, more often in the ratification record, \xe2\x80\x9csevere physical pain and\nsuffering\xe2\x80\x9d), apparently without ever disaggregating the concepts of \xe2\x80\x9csevere\nphysical pain\xe2\x80\x9d and \xe2\x80\x9csevere physical suffering\xe2\x80\x9d or discussing them as separate\ncategories with separate content. Although there is virtually no legislative history\nfor the statute, throughout the ratification of the CAT\xe2\x80\x94which also uses the\ndisjunctive \xe2\x80\x9cpain or suffering\xe2\x80\x9d and which the statutory prohibition implements\xe2\x80\x94\nthe references were generally to \xe2\x80\x9cpain and suffering,\xe2\x80\x9d with no indication of any\ndifference in meaning. The Summary and Analysis of the Convention Against\nTorture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which\nappears in S. Treaty Doc. No. 100-20, at 3, for example, repeatedly refers to \xe2\x80\x9cpain\nand suffering.\xe2\x80\x9d See also S. Exec. Rep. No. 101-30, at 6 (three uses of \xe2\x80\x9cpain and\nsuffering\xe2\x80\x9d); id. at 13 (eight uses of \xe2\x80\x9cpain and suffering\xe2\x80\x9d); id. at 14 (two uses of\n\xe2\x80\x9cpain and suffering\xe2\x80\x9d); id. at 35 (one use of \xe2\x80\x9cpain and suffering\xe2\x80\x9d). Conversely, the\nphrase \xe2\x80\x9cpain or suffering\xe2\x80\x9d is used less frequently in the Senate report in discussing\n(as opposed to quoting) the CAT and the understandings under consideration, e.g.,\n20\nCommon dictionary definitions of \xe2\x80\x9cphysical\xe2\x80\x9d confirm that \xe2\x80\x9cphysical suffering\xe2\x80\x9d does not include\nmental sensations. See, e.g., American Heritage Dictionary of the English Language at 1366 (\xe2\x80\x9cOf or\nrelating to the body as distinguished from the mind or spirit\xe2\x80\x9d); Oxford American Dictionary and\nLanguage Guide at 748 (\xe2\x80\x9cof or concerning the body (physical exercise; physical education)\xe2\x80\x9d).\n21\nThis 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,\ne.g., CAT Hearing at 8, 10 (prepared statement of Abraham Sofaer, Legal Adviser, Department of\nState) (\xe2\x80\x9cThe Convention\xe2\x80\x99s wording . . . is not in all respects as precise as we believe necessary. . . .\n[B]ecause [the Convention] requires establishment of criminal penalties under our domestic law, we\nmust pay particular attention to the meaning and interpretation of its provisions, especially concerning\nthe standards by which the Convention will be applied as a matter of U.S. law. . . . [W]e prepared a\ncodified proposal which . . . clarifies the definition of mental pain and suffering.\xe2\x80\x9d); id. at 15\xe2\x80\x9316\n(prepared statement of Mark Richard) (\xe2\x80\x9cThe basic problem with the Torture Convention\xe2\x80\x94one that\npermeates all our concerns\xe2\x80\x94is its imprecise definition of torture, especially as that term is applied to\nactions which result solely in mental anguish. This definitional vagueness makes it very doubtful that\nthe United States can, consistent with Constitutional due process constraints, fulfill its obligation under\nthe Convention to adequately engraft the definition of torture into the domestic criminal law of the\nUnited States.\xe2\x80\x9d); id. at 17 (prepared statement of Mark Richard) (\xe2\x80\x9cAccordingly, the Torture Convention\xe2\x80\x99s vague definition concerning the mental suffering aspect of torture cannot be resolved by\nreference to established principles of international law. In an effort to overcome this unacceptable\nelement of vagueness in Article I of the Convention, we have proposed an understanding which defines\nsevere mental pain constituting torture with sufficient specificity to . . . meet Constitutional due process\nrequirements.\xe2\x80\x9d).\n\n308\n\n\x0cDefinition of Torture Under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A\n\nid. at 5\xe2\x80\x936 (one use of \xe2\x80\x9cpain or suffering\xe2\x80\x9d), id. at 14 (two uses of \xe2\x80\x9cpain or suffering\xe2\x80\x9d); id. at 16 (two uses of \xe2\x80\x9cpain or suffering\xe2\x80\x9d), and, when used, it is with no\nsuggestion that it has any different meaning.\nAlthough we conclude that inclusion of the words \xe2\x80\x9cor suffering\xe2\x80\x9d in \xe2\x80\x9csevere\nphysical pain or suffering\xe2\x80\x9d establishes that physical torture is not limited to\n\xe2\x80\x9csevere physical pain,\xe2\x80\x9d we also conclude that Congress did not intend \xe2\x80\x9csevere\nphysical pain or suffering\xe2\x80\x9d to include a category of \xe2\x80\x9cphysical suffering\xe2\x80\x9d that would\nbe so broad as to negate the limitations on the other categories of torture in the\nstatute. Moreover, the \xe2\x80\x9cphysical suffering\xe2\x80\x9d covered by the statute must be \xe2\x80\x9csevere\xe2\x80\x9d\nto be within the statutory prohibition. We conclude that under some circumstances\n\xe2\x80\x9cphysical suffering\xe2\x80\x9d may be of sufficient intensity and duration to meet the\nstatutory definition of torture even if it does not involve \xe2\x80\x9csevere physical pain.\xe2\x80\x9d To\nconstitute such torture, \xe2\x80\x9csevere physical suffering\xe2\x80\x9d would have to be a condition of\nsome extended duration or persistence as well as intensity. The need to define a\ncategory of \xe2\x80\x9csevere physical suffering\xe2\x80\x9d that is different from \xe2\x80\x9csevere physical\npain,\xe2\x80\x9d and that also does not undermine the limited definition Congress provided\nfor torture, along with the requirement that any such physical suffering be\n\xe2\x80\x9csevere,\xe2\x80\x9d calls for an interpretation under which \xe2\x80\x9csevere physical suffering\xe2\x80\x9d is\nreserved for physical distress that is \xe2\x80\x9csevere\xe2\x80\x9d considering its intensity and duration\nor persistence, rather than merely mild or transitory.22 Otherwise, the inclusion of\nsuch a category would lead to the kind of uncertainty in interpreting the statute\nthat Congress sought to reduce both through its understanding to the CAT and in\nsections 2340\xe2\x80\x932340A.\nC. The Meaning of \xe2\x80\x9cSevere Mental Pain or Suffering\xe2\x80\x9d\nSection 2340 defines \xe2\x80\x9csevere mental pain or suffering\xe2\x80\x9d to mean:\nthe prolonged mental harm caused by or resulting from\xe2\x80\x94\n(A) the intentional infliction or threatened infliction of severe\nphysical pain or suffering;\n(B) the administration or application, or threatened administration\nor application, of mind-altering substances or other procedures\ncalculated to disrupt profoundly the senses or the personality;\n22\nSupport for concluding that there is an extended temporal element, or at least an element of\npersistence, in \xe2\x80\x9csevere physical suffering\xe2\x80\x9d as a category distinct from \xe2\x80\x9csevere physical pain\xe2\x80\x9d may also\nbe found in the prevalence of concepts of \xe2\x80\x9cendurance\xe2\x80\x9d of suffering and of suffering as a \xe2\x80\x9cstate\xe2\x80\x9d or\n\xe2\x80\x9ccondition\xe2\x80\x9d in standard dictionary definitions. See, e.g., Webster\xe2\x80\x99s Third New International Dictionary\nat 2284 (defining \xe2\x80\x9csuffering\xe2\x80\x9d as \xe2\x80\x9cthe endurance of or submission to affliction, pain, loss\xe2\x80\x9d; \xe2\x80\x9ca pain\nendured\xe2\x80\x9d); Random House Dictionary of the English Language 1901 (2d ed. 1987) (\xe2\x80\x9cthe state of a\nperson or thing that suffers\xe2\x80\x9d); Funk & Wagnalls New Standard Dictionary of the English Language\n2416 (1946) (\xe2\x80\x9cA state of anguish or pain\xe2\x80\x9d); American Heritage Dictionary of the English Language at\n1795 (\xe2\x80\x9cThe condition of one who suffers\xe2\x80\x9d).\n\n309\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n(C) the threat of imminent death; or\n(D) the threat that another person will imminently be subjected to\ndeath, severe physical pain or suffering, or the administration or\napplication of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality[.]\n18 U.S.C. \xc2\xa7 2340(2). Torture is defined under the statute to include an act\nspecifically intended to inflict severe mental pain or suffering. Id. \xc2\xa7 2340(1).\nAn important preliminary question with respect to this definition is whether the\nstatutory list of the four \xe2\x80\x9cpredicate acts\xe2\x80\x9d in section 2340(2)(A)\xe2\x80\x93(D) is exclusive.\nWe conclude that Congress intended the list of predicate acts to be exclusive\xe2\x80\x94that\nis, to constitute the proscribed \xe2\x80\x9csevere mental pain or suffering\xe2\x80\x9d under the statute,\nthe prolonged mental harm must be caused by acts falling within one of the four\nstatutory categories of predicate acts. We reach this conclusion based on the clear\nlanguage of the statute, which provides a detailed definition that includes four\ncategories of predicate acts joined by the disjunctive and does not contain a catchall provision or any other language suggesting that additional acts might qualify\n(for example, language such as \xe2\x80\x9cincluding\xe2\x80\x9d or \xe2\x80\x9csuch acts as\xe2\x80\x9d).23 Congress plainly\nconsidered very specific predicate acts, and this definition tracks the Senate\xe2\x80\x99s\nunderstanding concerning mental pain or suffering when giving its advice and\nconsent to ratification of the CAT. The conclusion that the list of predicate acts is\nexclusive is consistent with both the text of the Senate\xe2\x80\x99s understanding and the fact\nthat it was adopted out of concern that the CAT\xe2\x80\x99s definition of torture did not\notherwise meet the requirement for clarity in defining crimes. See supra note 21.\nAdopting an interpretation of the statute that expands the list of predicate acts for\n\xe2\x80\x9csevere mental pain or suffering\xe2\x80\x9d would constitute an impermissible rewriting of\nthe statute and would introduce the very imprecision that prompted the Senate to\nadopt its understanding when giving its advice and consent to ratification of the\nCAT.\nAnother question is whether the requirement of \xe2\x80\x9cprolonged mental harm\xe2\x80\x9d\ncaused by or resulting from one of the enumerated predicate acts is a separate\nrequirement, or whether such \xe2\x80\x9cprolonged mental harm\xe2\x80\x9d is to be presumed any time\none of the predicate acts occurs. Although it is possible to read the statute\xe2\x80\x99s\nreference to \xe2\x80\x9cthe prolonged mental harm caused by or resulting from\xe2\x80\x9d the predicate acts as creating a statutory presumption that each of the predicate acts always\ncauses prolonged mental harm, we do not believe that was Congress\xe2\x80\x99s intent. As\n\n23\nThese four categories of predicate acts \xe2\x80\x9care members of an \xe2\x80\x98associated group or series,\xe2\x80\x99 justifying\nthe inference that items not mentioned were excluded by deliberate choice, not inadvertence.\xe2\x80\x9d Barnhart\nv. Peabody Coal Co., 537 U.S. 149, 168 (2003) (quoting United States v. Vonn, 535 U.S. 55, 65\n(2002)). See also, e.g., Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507\nU.S. 163, 168 (1993); 2A Norman J. Singer, Statutes and Statutory Construction \xc2\xa7 47.23 (6th ed.\n2000). Nor do we see any \xe2\x80\x9ccontrary indications\xe2\x80\x9d that would rebut this inference. Vonn, 535 U.S. at 65.\n\n310\n\n\x0cDefinition of Torture Under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A\n\nnoted, this language closely tracks the understanding that the Senate adopted when\nit gave its advice and consent to ratification of the CAT:\nin order to constitute torture, an act must be specifically intended to\ninflict severe physical or mental pain or suffering and that mental\npain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of\nsevere physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering\nsubstances or other procedures calculated to disrupt profoundly the\nsenses or the personality; (3) the threat of imminent death; or (4) the\nthreat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application\nof mind altering substances or other procedures calculated to disrupt\nprofoundly the senses or personality.\nS. Exec. Rep. No. 101-30, at 36. We do not believe that simply by adding the word\n\xe2\x80\x9cthe\xe2\x80\x9d before \xe2\x80\x9cprolonged harm,\xe2\x80\x9d Congress intended a material change in the\ndefinition of mental pain or suffering as articulated in the Senate\xe2\x80\x99s understanding\nto the CAT. The legislative history, moreover, confirms that sections 2340\xe2\x80\x932340A\nwere intended to fulfill\xe2\x80\x94but not go beyond\xe2\x80\x94the United States\xe2\x80\x99 obligations under\nthe CAT: \xe2\x80\x9cThis section provides the necessary legislation to implement the\n[CAT]. . . . The definition of torture emanates directly from article 1 of the [CAT].\nThe definition for \xe2\x80\x98severe mental pain and suffering\xe2\x80\x99 incorporates the [above\nmentioned] understanding.\xe2\x80\x9d S. Rep. No. 103-107, at 58\xe2\x80\x9359 (1993). This understanding, embodied in the statute, was meant to define the obligation undertaken\nby the United States. Given this understanding, the legislative history, and the fact\nthat section 2340(2) defines \xe2\x80\x9csevere mental pain or suffering\xe2\x80\x9d carefully in\nlanguage very similar to the understanding, we do not believe that Congress\nintended the definition to create a presumption that any time one of the predicate\nacts occurs, prolonged mental harm is deemed to result.\nTurning to the question of what constitutes \xe2\x80\x9cprolonged mental harm caused by\nor resulting from\xe2\x80\x9d a predicate act, we believe that Congress intended this phrase to\nrequire mental \xe2\x80\x9charm\xe2\x80\x9d that is caused by or that results from a predicate act, and\nthat has some lasting duration. There is little guidance to draw upon in interpreting\nthis phrase.24 Nevertheless, our interpretation is consistent with the ordinary\nmeaning of the statutory terms. First, the use of the word \xe2\x80\x9charm\xe2\x80\x9d\xe2\x80\x94as opposed to\nsimply repeating \xe2\x80\x9cpain or suffering\xe2\x80\x9d\xe2\x80\x94suggests some mental damage or injury.\n24\nThe phrase \xe2\x80\x9cprolonged mental harm\xe2\x80\x9d does not appear in the relevant medical literature or elsewhere in the United States Code. The August 2002 Memorandum concluded that to constitute\n\xe2\x80\x9cprolonged mental harm,\xe2\x80\x9d there must be \xe2\x80\x9csignificant psychological harm of significant duration, e.g.,\nlasting for months or even years.\xe2\x80\x9d Id. at 1; see also id. at 7. Although we believe that the mental harm\nmust be of some lasting duration to be \xe2\x80\x9cprolonged,\xe2\x80\x9d to the extent that that formulation was intended to\nsuggest that the mental harm would have to last for at least \xe2\x80\x9cmonths or even years,\xe2\x80\x9d we do not agree.\n\n311\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nOrdinary dictionary definitions of \xe2\x80\x9charm,\xe2\x80\x9d such as \xe2\x80\x9cphysical or mental damage:\ninjury,\xe2\x80\x9d Webster\xe2\x80\x99s Third New International Dictionary at 1034 (emphasis added),\nor \xe2\x80\x9c[p]hysical or psychological injury or damage,\xe2\x80\x9d American Heritage Dictionary\nof the English Language at 825 (emphasis added), support this interpretation.\nSecond, to \xe2\x80\x9cprolong\xe2\x80\x9d means to \xe2\x80\x9clengthen in time\xe2\x80\x9d or to \xe2\x80\x9cextend in duration,\xe2\x80\x9d or to\n\xe2\x80\x9cdraw out,\xe2\x80\x9d Webster\xe2\x80\x99s Third New International Dictionary at 1815, further\nsuggesting that to be \xe2\x80\x9cprolonged,\xe2\x80\x9d the mental damage must extend for some period\nof time. This damage need not be permanent, but it must continue for a \xe2\x80\x9cprolonged\xe2\x80\x9d period of time.25 Finally, under section 2340(2), the \xe2\x80\x9cprolonged mental\nharm\xe2\x80\x9d must be \xe2\x80\x9ccaused by\xe2\x80\x9d or \xe2\x80\x9cresulting from\xe2\x80\x9d one of the enumerated predicate\nacts.26\nAlthough there are few judicial opinions discussing the question of \xe2\x80\x9cprolonged\nmental harm,\xe2\x80\x9d those cases that have addressed the issue are consistent with our\nview. For example, in the TVPA case of Mehinovic, the court explained that:\n[The defendant] also caused or participated in the plaintiffs\xe2\x80\x99 mental\ntorture. Mental torture consists of \xe2\x80\x9cprolonged mental harm caused by\nor resulting from: the intentional infliction or threatened infliction of\nsevere physical pain or suffering; . . . the threat of imminent\ndeath . . . .\xe2\x80\x9d As set out above, plaintiffs noted in their testimony that\nthey feared that they would be killed by [the defendant] during the\nbeatings he inflicted or during games of \xe2\x80\x9cRussian roulette.\xe2\x80\x9d Each\nplaintiff continues to suffer long-term psychological harm as a result\nof the ordeals they suffered at the hands of defendant and others.\n198 F. Supp. 2d at 1346 (emphasis added; first ellipsis in original). In reaching its\nconclusion, the court noted that the plaintiffs were continuing to suffer serious\n\n25\nFor example, although we do not suggest that the statute is limited to such cases, development of\na mental disorder\xe2\x80\x94such as post-traumatic stress disorder or perhaps chronic depression\xe2\x80\x94could\nconstitute \xe2\x80\x9cprolonged mental harm.\xe2\x80\x9d See American Psychiatric Association, Diagnostic and Statistical\nManual of Mental Disorders 369\xe2\x80\x9376, 463\xe2\x80\x9368 (4th ed. 2000) (\xe2\x80\x9cDSM-IV-TR\xe2\x80\x9d). See also, e.g., Special\nRapporteur of the Commission on Human Rights, Torture and Other Cruel, Inhuman or Degrading\nTreatment or Punishment \xc2\xb6 49, U.N. Doc. A/59/324, at 14 (Sept. 1, 2004) (by Theo van Boven) (\xe2\x80\x9cThe\nmost common diagnosis of psychiatric symptoms among torture survivors is said to be post-traumatic\nstress disorder.\xe2\x80\x9d); see also Metin Basoglu et al., Torture and Mental Health: A Research Overview, in\nThe Mental Health Consequences of Torture 48\xe2\x80\x9349 (Ellen Gerrity et al. eds., 2001) (referring to\nfindings of higher rates of post-traumatic stress disorder in studies involving torture survivors); Murat\nParker et al., Psychological Effects of Torture: An Empirical Study of Tortured and Non-Tortured NonPolitical Prisoners, in Torture and Its Consequences: Current Treatment Approaches 77 (Metin\nBasoglu ed., 1992) (referring to findings of post-traumatic stress disorder in torture survivors).\n26\nThis is not meant to suggest that, if the predicate act or acts continue for an extended period,\n\xe2\x80\x9cprolonged mental harm\xe2\x80\x9d cannot occur until after they are completed. Early occurrences of the\npredicate act could cause mental harm that could continue\xe2\x80\x94and become prolonged\xe2\x80\x94during the\nextended period the predicate acts continued to occur. For example, in Sackie v. Ashcroft, 270 F. Supp.\n2d 596, 601\xe2\x80\x9302 (E.D. Pa. 2003), the predicate acts continued over a three-to-four-year period, and the\ncourt concluded that \xe2\x80\x9cprolonged mental harm\xe2\x80\x9d had occurred during that time.\n\n312\n\n\x0cDefinition of Torture Under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A\n\nmental harm even ten years after the events in question: One plaintiff \xe2\x80\x9csuffers\nfrom anxiety, flashbacks, and nightmares and has difficulty sleeping. [He]\ncontinues to suffer thinking about what happened to him during this ordeal and has\nbeen unable to work as a result of the continuing effects of the torture he endured.\xe2\x80\x9d\nId. at 1334. Another plaintiff \xe2\x80\x9csuffers from anxiety, sleeps very little, and has\nfrequent nightmares. . . . [He] has found it impossible to return to work.\xe2\x80\x9d Id. at\n1336. A third plaintiff \xe2\x80\x9chas frequent nightmares. He has had to use medication to\nhelp him sleep. His experience has made him feel depressed and reclusive, and he\nhas not been able to work since he escaped from this ordeal.\xe2\x80\x9d Id. at 1337\xe2\x80\x9338. And\nthe fourth plaintiff \xe2\x80\x9chas flashbacks and nightmares, suffers from nervousness,\nangers easily, and has difficulty trusting people. These effects directly impact and\ninterfere with his ability to work.\xe2\x80\x9d Id. at 1340. In each case, these mental effects\nwere continuing years after the infliction of the predicate acts.\nAnd in Sackie v. Ashcroft, 270 F. Supp. 2d 596 (E.D. Pa. 2003), the individual\nhad been kidnapped and \xe2\x80\x9cforcibly recruited\xe2\x80\x9d as a child soldier at the age of 14, and\nover the next three to four years had been forced to take narcotics and threatened\nwith imminent death. Id. at 597\xe2\x80\x9398, 601\xe2\x80\x9302. The court concluded that the\nresulting mental harm, which continued over this three-to-four-year period,\nqualified as \xe2\x80\x9cprolonged mental harm.\xe2\x80\x9d Id. at 602.\nConversely, in Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp.\n2d 1285 (S.D. Fla. 2003), the court rejected a claim under the TVPA brought by\nindividuals who had been held at gunpoint overnight and repeatedly threatened\nwith death. While recognizing that the plaintiffs had experienced an \xe2\x80\x9cordeal,\xe2\x80\x9d the\ncourt concluded that they had failed to show that their experience caused lasting\ndamage, noting that \xe2\x80\x9cthere is simply no allegation that Plaintiffs have suffered any\nprolonged mental harm or physical injury as a result of their alleged intimidation.\xe2\x80\x9d\nId. at 1294\xe2\x80\x9395.\nD. The Meaning of \xe2\x80\x9cSpecifically Intended\xe2\x80\x9d\nIt is well recognized that the term \xe2\x80\x9cspecific intent\xe2\x80\x9d is ambiguous and that the\ncourts do not use it consistently. See 1 Wayne R. LaFave, Substantive Criminal\nLaw \xc2\xa7 5.2(e), at 355 & n.79 (2d ed. 2003). \xe2\x80\x9cSpecific intent\xe2\x80\x9d is most commonly\nunderstood, however, \xe2\x80\x9cto designate a special mental element which is required\nabove and beyond any mental state required with respect to the actus reus of the\ncrime.\xe2\x80\x9d Id. at 354; see also Carter v. United States, 530 U.S. 255, 268 (2000)\n(explaining that general intent, as opposed to specific intent, requires \xe2\x80\x9cthat the\ndefendant possessed knowledge [only] with respect to the actus reus of the\ncrime\xe2\x80\x9d). As one respected treatise explains:\nWith crimes which require that the defendant intentionally cause a\nspecific result, what is meant by an \xe2\x80\x9cintention\xe2\x80\x9d to cause that result?\nAlthough the theorists have not always been in agreement . . . , the\ntraditional view is that a person who acts . . . intends a result of his\n\n313\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nact . . . under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result\nhappening from his conduct; and (2) when he knows that that result\nis practically certain to follow from his conduct, whatever his desire\nmay be as to that result.\n1 LaFave, Substantive Criminal Law, \xc2\xa7 5.2(a), at 341 (footnote omitted).\nAs noted, the cases are inconsistent. Some suggest that only a conscious desire\nto produce the proscribed result constitutes specific intent; others suggest that even\nreasonable foreseeability suffices. In United States v. Bailey, 444 U.S. 394 (1980),\nfor example, the Court suggested that, at least \xe2\x80\x9c[i]n a general sense,\xe2\x80\x9d id. at 405,\n\xe2\x80\x9cspecific intent\xe2\x80\x9d requires that one consciously desire the result. Id. at 403\xe2\x80\x9305. The\nCourt compared the common law\xe2\x80\x99s mens rea concepts of specific intent and\ngeneral intent to the Model Penal Code\xe2\x80\x99s mens rea concepts of acting purposefully\nand acting knowingly. Id. at 404\xe2\x80\x9305. \xe2\x80\x9c[A] person who causes a particular result is\nsaid to act purposefully,\xe2\x80\x9d wrote the Court, \xe2\x80\x9cif \xe2\x80\x98he consciously desires that result,\nwhatever the likelihood of that result happening from his conduct.\xe2\x80\x99\xe2\x80\x9d Id. at 404\n(internal quotation marks omitted). A person \xe2\x80\x9cis said to act knowingly,\xe2\x80\x9d in\ncontrast, \xe2\x80\x9cif he is aware \xe2\x80\x98that that result is practically certain to follow from his\nconduct, whatever his desire may be as to that result.\xe2\x80\x99\xe2\x80\x9d Id. (internal quotation\nmarks omitted). The Court then stated: \xe2\x80\x9cIn a general sense, \xe2\x80\x98purpose\xe2\x80\x99 corresponds\nloosely with the common-law concept of specific intent, while \xe2\x80\x98knowledge\xe2\x80\x99\ncorresponds loosely with the concept of general intent.\xe2\x80\x9d Id. at 405.\nIn contrast, cases such as United States v. Neiswender, 590 F.2d 1269 (4th Cir.\n1979), suggest that to prove specific intent it is enough that the defendant simply\nhave \xe2\x80\x9cknowledge or notice\xe2\x80\x9d that his act \xe2\x80\x9cwould have likely resulted in\xe2\x80\x9d the\nproscribed outcome. Id. at 1273. \xe2\x80\x9cNotice,\xe2\x80\x9d the court held, \xe2\x80\x9cis provided by the\nreasonable foreseeability of the natural and probable consequences of one\xe2\x80\x99s acts.\xe2\x80\x9d\nId.\nWe do not believe it is useful to try to define the precise meaning of \xe2\x80\x9cspecific\nintent\xe2\x80\x9d in section 2340.27 In light of the President\xe2\x80\x99s directive that the United States\nnot engage in torture, it would not be appropriate to rely on parsing the specific\nintent element of the statute to approve as lawful conduct that might otherwise\namount to torture. Some observations, however, are appropriate. It is clear that the\nspecific intent element of section 2340 would be met if a defendant performed an\nact and \xe2\x80\x9cconsciously desire[d]\xe2\x80\x9d that act to inflict severe physical or mental pain or\nsuffering. 1 LaFave, Substantive Criminal Law \xc2\xa7 5.2(a), at 341. Conversely, if an\nindividual acted in good faith, and only after reasonable investigation establishing\n27\nIn the August 2002 Memorandum, this Office concluded that the specific intent element of the\nstatute required that infliction of severe pain or suffering be the defendant\xe2\x80\x99s \xe2\x80\x9cprecise objective\xe2\x80\x9d and that\nit was not enough that the defendant act with knowledge that such pain \xe2\x80\x9cwas reasonably likely to result\nfrom his actions\xe2\x80\x9d (or even that that result \xe2\x80\x9cis certain to occur\xe2\x80\x9d). Id. at 3\xe2\x80\x934. We do not reiterate that test\nhere.\n\n314\n\n\x0cDefinition of Torture Under 18 U.S.C. \xc2\xa7\xc2\xa7 2340\xe2\x80\x932340A\n\nthat his conduct would not inflict severe physical or mental pain or suffering, it\nappears unlikely that he would have the specific intent necessary to violate\nsections 2340\xe2\x80\x932340A. Such an individual could be said neither consciously to\ndesire the proscribed result, see, e.g., Bailey, 444 U.S. at 405, nor to have\n\xe2\x80\x9cknowledge or notice\xe2\x80\x9d that his act \xe2\x80\x9cwould likely have resulted in\xe2\x80\x9d the proscribed\noutcome, Neiswender, 590 F.2d at 1273.\nTwo final points on the issue of specific intent: First, specific intent must be\ndistinguished from motive. There is no exception under the statute permitting\ntorture to be used for a \xe2\x80\x9cgood reason.\xe2\x80\x9d Thus, a defendant\xe2\x80\x99s motive (to protect\nnational security, for example) is not relevant to the question whether he has acted\nwith the requisite specific intent under the statute. See Cheek v. United States, 498\nU.S. 192, 200\xe2\x80\x9301 (1991). Second, specific intent to take a given action can be\nfound even if the defendant will take the action only conditionally. Cf., e.g.,\nHolloway v. United States, 526 U.S. 1, 11 (1999) (\xe2\x80\x9c[A] defendant may not negate\na proscribed intent by requiring the victim to comply with a condition the defendant has no right to impose.\xe2\x80\x9d). See also id. at 10\xe2\x80\x9311 & nn. 9\xe2\x80\x9312; Model Penal Code\n\xc2\xa7 2.02(6). Thus, for example, the fact that a victim might have avoided being\ntortured by cooperating with the perpetrator would not make permissible actions\notherwise constituting torture under the statute. Presumably that has frequently\nbeen the case with torture, but that fact does not make the practice of torture any\nless abhorrent or unlawful.28\nDANIEL L. LEVIN\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n28\nIn the August 2002 Memorandum, this Office indicated that an element of the offense of torture\nwas that the act in question actually result in the infliction of severe physical or mental pain or\nsuffering. See id. at 3. That conclusion rested on a comparison of the statute with the CAT, which has a\ndifferent definition of \xe2\x80\x9ctorture\xe2\x80\x9d that requires the actual infliction of pain or suffering, and we do not\nbelieve that the statute requires that the defendant actually inflict (as opposed to act with the specific\nintent to inflict) severe physical or mental pain or suffering. Compare CAT art. 1(1) (\xe2\x80\x9cthe term \xe2\x80\x98torture\xe2\x80\x99\nmeans any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted\xe2\x80\x9d)\n(emphasis added) with 18 U.S.C. \xc2\xa7 2340 (\xe2\x80\x9c\xe2\x80\x98torture\xe2\x80\x99 means an act . . . specifically intended to inflict\nsevere physical or mental pain or suffering\xe2\x80\x9d) (emphasis added). It is unlikely that any such requirement\nwould make any practical difference, however, since the statute also criminalizes attempts to commit\ntorture. 18 U.S.C. \xc2\xa7 2340A(a).\n\n315\n\n\x0c"


b'Proposed Constitutional Amendment to Limit\nthe Tenure of Judges\nA proposed constitutional amendment to limit the tenure of judges to a term, subject to reconfir\xc2\xad\nmation, is antagonistic to the overall structural design of the Constitution.\nThe present guarantee o f judicial tenure \xe2\x80\x9cduring good Behaviour," U.S. Const, art. Ill, \xc2\xa7 1, is\nnecessary to secure independence and impartiality. Judges limited by term and subject to\nreappointm ent will be unacceptably dependent upon the political branch exercising the power\nof appointment.\nUnder the specific proposal the appointing authority would be the Senate, thereby frustrating the\npresent delicate balance between the legislative and executive branches that exists with\nrespect to judicial appointments.\n\nJanuary 18, 1984\nLetter\n\nto the\n\nC h a ir m a n , S e n a t e C o m m it t e e\n\non th e\n\nJ u d ic ia r y\n\nThis responds to your request for the views of the Department of Justice on\nS.J. Res. 39, 98th Cong., 1st Sess., which would propose a constitutional\namendment pursuant to which federal judges would be appointed for a term of\noffice of ten years and hold office for that term during good behavior. The bill\nwould provide that:\nDuring the tenth year of each term of office of any such judge,\nhis nomination for an additional term of office for that judgeship\nshall be placed before the Senate for its advice and consent to\nsuch additional term, unless that judge requests that his nomina\xc2\xad\ntion not be so placed. Any judge whose nomination for an\nadditional term of office is so placed may remain in office until\nthe Senate gives its advice and consent to, or rejects, such\nnomination.\nAlthough the proposal is not explicit as to the manner in which a judge\xe2\x80\x99s\nnomination is to be placed before the Senate, the implication to be drawn from\nthe language of the resolution is that, unless the judge requests that his name\nnot be considered, the nomination is submitted to the Senate automatically by a\nprocedure not involving the President.1\n1 U nder the C onstitution, the President\xe2\x80\x99s functions are, with a few exceptions, discretionary rather than\nm inisterial. We therefore do not interpret the proposal as intending to impose on the President a ministerial\nduty to renom inate a ju d g e w hose term is about to expire.\n\ni\n\n\x0cIn commenting on the proposed amendment, the Department of Justice\nacknowledges that Article V of the Constitution assigns to Congress the\nresponsibility for proposing constitutional amendments to the States and that\nthe Executive branch has no direct role in this process, in particular that joint\nresolutions of this variety are not subject to the veto power of the President,\nH ollingsw orth v. Virginia, 3 U.S. (3 Dali.) 378 (1798). Nonetheless, you have\nasked for the views of the Department of Justice, and we set them forth in this letter.\nThe Department of Justice strongly opposes the proposed amendment. The\nconstitutional requirement \xe2\x80\x9cthat the judges, both of the supreme and inferior\nCourts shall hold their Offices during good Behaviour,\xe2\x80\x9d U.S. Const, art. Ill,\n\xc2\xa7 1, is one of the cornerstones of the constitutional plan for the independence of\nthe Judicial Branch and therefore of the separation of powers, the basic struc\xc2\xad\ntural doctrine of the Constitution. Northern Pipeline Constr. Co. v. Marathon\nP ipe Line Co., 458 U.S. 50 (1982).\nIn The F ederalist No. 78, Alexander Hamilton stated:\nThe standard of good behavior for the continuance in office of\nthe judicial magistracy is certainly one of the most valuable of\nthe modem improvements in the practice of government. In a\nmonarchy it is an excellent barrier to the despotism of the\nprince; in a republic it is a no less excellent barrier to the\nencroachments and oppressions of the representative body. And\nit is the best expedient which can be devised in any government\nto secure a steady, upright, and impartial administration of the laws.\nThe F ederalist No. 78, at 465 (A. Hamilton) (C. Rossiter ed. 1961).2\n\nDuring the last decade Congress, including your Committee, conducted\nextensive and searching inquiries into the crucial interrelationship between the\nindependence of the judiciary and the provision in Article III for judicial tenure\nduring good behavior terminable only by impeachment proceedings. The issue\narose in connection with legislative proposals to provide in judicial proceed\xc2\xad\nings for the removal or the involuntary retirement of judges who had allegedly\nviolated the good behavior requirement or who had become incapacitated.\nSenators and Representatives o f both political parties considered this proposal\nso serious a threat to the independence of the judiciary that it was ultimately\nabandoned and replaced by the disciplinary provisions of \xc2\xa7 3 of the Judicial\nCouncils Reform and Judicial Conduct and Disability Act of 1980, 94 Stat.\n2036 (codified at 28 U.S.C. \xc2\xa7 372(c)).3\n2 In Toth v. Quarles, 355 U .S. 11,1 6 (1 9 5 5 ), the Suprem e C ourt stated: \xe2\x80\x9cThe provisions o f A rticle III [of the\nC onstitu tio n , w hich include the Good B eh av io r C lause] w ere designed to give judges maximum freedom\nfrom possible coercion o r influence by th e executive o r legislative branches o f the G overnm ent." See\ngenerally United States v. Will, 449 U.S. 200, 21 7 -1 9 (1980); Northern Pipeline Constr. Co. v. Marathon\nPipe Line Co.. 458 U .S. 50 (1982).\n3 S. R ep. No. 3 6 2 ,96th C ong., 1st Sess. 4 - 7 ,2 3 ,2 9 - 3 0 (1979); H.R. Rep. No. 1313,96th Cong. 2d Sess. 15, 1 6 -1 9 (1980); Hearings on the Independence o f Federal Judges before the Subcomm. on Separation o f\nPowers o f the Senate Comm, on the Judiciary, 91st C ong. 2d Sess. 329-51 (1970); Hearings on Judicial\n\nTenure and Discipline 1979-1980, before the Subcomm. on Courts, Civil Liberties, and the Administration o f\nJustice o f the House Comm, on the Judiciary. 96th C ong., 1st & 2d Sess. (1980).\n\n2\n\n\x0cFor example, Senator Laxalt stated his view that even 28 U.S.C. \xc2\xa7 372(c) as\nultimately enacted went too far in impinging on judicial independence. He stated:\nLifetime appointment and a slow and cumbersome system of\nimpeachment have insured us of a Federal judiciary which re\xc2\xad\nmains free and independent, and has helped to assure us that\ncases are decided on their merits and on the law. Where unpopu\xc2\xad\nlar decisions are warranted by the law, as they often are, a judge\nmay render such a decision knowing that he will be free of\npressure from the public, from the press, and from the rest of the\njudiciary. We are assured, in short, that the case will be decided\nas it should be, and according to law.\nThe Federal Courts are the final link in our system of checks\nand balances. They are the last to act, and the last to change.\nAfter the legislature and the executive branches have acted, after\nthe press has analyzed, reported and commented, and even after\nthe public has experienced changes and additions to our system\nand to our laws, the courts finally rule on the legality, the\nconstitutionality, the application, and the scope of those changes\nand laws. That review follows the debate on the need for and the\nadvisability of such changes with good cause. Making that\nprocess more susceptible to political pressure will not, in my\nopinion, improve our system of Government.\nS. Rep. No. 362, 96th Cong., 1st Sess. 29 (1979).\nProposals to appoint judges for terms of years \xe2\x80\x9cto make their decisions\nconform to the will of the people\xe2\x80\x9d are not new.4 A century-and-a-half ago\nJustice Story felt it necessary to demonstrate that the appointment of judges for\nterms of years would not have the effect of subjecting their decisions to the\n\xe2\x80\x9cwill of the people\xe2\x80\x9d but rather would make judges subservient to the political\nbranches of the Government, and make the meaning of the Constitution depen\xc2\xad\ndent on every biennial or quadrennial election rather than on the judges\xe2\x80\x99\ndeliberate judgment. 2 J. Story, Commentaries on the Constitution o f the\nUnited States, \xc2\xa7\xc2\xa7 1613-1621 (5th ed. 1891).\nThe following passages are representative of Justice Story\xe2\x80\x99s discussion:\nIf the judges are appointed at short intervals, either by the\nlegislative or the executive department, they will naturally, and,\nindeed, almost necessarily, become mere dependents upon the\nappointing power. If they have any desire to obtain, or to hold\noffice, they will at all times evince a desire to follow and obey\nthe will of the predominant power in the state. Public justice will\nbe administered with a faltering and feeble hand. . . . It will\ndecree what best suits the opinions of the day, and it will forget\nthat the precepts of the law rest on eternal foundations.\n4 See 2 J. Story, Commentaries on the Constitution o f the United States, \xc2\xa7 1615 (5th ed. 1891). The first\nedition o f the Commentaries was published in 1833.\n\n3\n\n\x0c* * *\n\nIf the will of the people is to govern in the construction of the\npowers of the constitution, and that will is to be gathered at\nevery successive election at the polls, and not from their deliber\xc2\xad\nate judgment, and solemn acts in ratifying the Constitution, or in\namending it, what certainty can there be in those powers? If the\nConstitution is to be expounded, not by its written text, but by\nthe opinions of the rulers for the time being, whose opinions are\nto prevail, the first, or the last? When, therefore, it is said that the\njudges ought to be subjected to the will of the people, and to\nconform to their interpretation of the Constitution, the practical\nmeaning must be, that they should be subjected to the control of\nthe representatives of the people in the executive and legislative\ndepartments, and should interpret the Constitution as the latter\nmay, from time to time, deem correct.\nId. \xc2\xa7\xc2\xa7 1613, 1616. The logic of Justice Story\xe2\x80\x99s analysis is still valid. If judges\n\nare appointed for a definite term subject to reappointment, it is inevitable that at\nleast some of them will seek to avoid offending those who have the power to\nblock their reappointment. It would, of course, be possible to guard against that\ndanger by providing that judges would be ineligible for reappointment. In that\nevent, however, many lawyers, although highly qualified to become judges,\nmight be reluctant to give up their practice for a temporary judicial appoint\xc2\xad\nment, and even among those who do, some may be suspected toward the end of\ntheir term of seeking to curry favor with those who may be of assistance to\nthem in reentering private practice. See The F ederalist No. 78, supra, at 471.\nFor the foregoing reasons, and without intending to foreclose further con\xc2\xad\ngressional consideration of the good behavior issue or the entirely separate\nissue of \xe2\x80\x9cjudicial restraint,\xe2\x80\x9d the Department of Justice is in principle opposed to\nthe abolition of tenure during good behavior for the federal judiciary as\ncontemplated by S.J. Res. 39. Two significant aspects of S.J. Res. 39 which\naggravate the harm connected with the abolition of such tenure require addi\xc2\xad\ntional comment.\nFirst, as we understand the proposal, the renomination of a judge whose term\nhas expired would come automatically before the Senate, and if the Senate\nwere to give its advice and consent to the additional term, the term would be\nautomatically extended. The President would take no part in the processes of\nnomination and appointment; he would not have the power to refuse to renomi\xc2\xad\nnate a judge or to deny reappointment to a judge to whose reappointment the\nSenate has given its advice and consent. The reappointment process thus would\nbe under the exclusive control of the Senate. The Department of Justice\nstrenuously objects to this aspect of the joint resolution, because it is in conflict\nwith the constitutional plan embodied in Article II, \xc2\xa7 2 of the Constitution,\npursuant to which the nomination and appointment of federal officers are the\ndiscretion ary acts of the President, even if as regards certain officers the latter\ncan be performed only with the advice and consent of the Senate. Marbury v.\n4\n\n\x0cMadison, 5 U.S. (1 Cranch) 137, 155 (1803). We are not aware why this rule\n\nshould not apply to the reappointment of judges. Indeed, this aspect of the joint\nresolution accentuates the objections to the provisions giving judges terms of\nyears, because it makes judges dependent exclusively on the Senate for their\nreappointment. This alters the constitutional plan of checks and balances and\ntilts the scale toward one branch, the Legislative, and away from the Judiciary\nand the President.\nSecond, the joint resolution would provide that when a nomination for an\nadditional term is placed before the Senate, the judge \xe2\x80\x9cmay remain in office\nuntil the Senate gives its advice and consent to, or rejects, such nomination.\xe2\x80\x9d\nBy refusing to take any action on the renomination, the Senate, or indeed a\nCommittee of the Senate or, under Senate practice relating to confirmations,\ninitially one Senator,5 can place the judge in a position for an indefinite period\nin which he or she can be ousted at any time for any decision which may\ndisplease the Senate. To have such a sword of Damocles hang over a judge is\ntotally inconsistent with our constitutional system of three separate branches\n\xe2\x80\x9centirely free from the control or coercive influence direct or indirect of either\nof the others.\xe2\x80\x9d H um phrey\xe2\x80\x99s Executor v. United States, 295 U.S. 602 (1935). As\nthe Court held in that case: \xe2\x80\x9c[I]t is quite evident that one who holds his office\nonly during the pleasure of another cannot be depended upon to maintain an\nattitude of independence against the latter\xe2\x80\x99s will.\xe2\x80\x9d Id. at 629.\nWe should not forget that one of the charges against King George III in the\nDeclaration of Independence was:\nHe has made Judges dependent on his Will alone for the tenure\nof their offices, and the amount and payment of their salaries.\nThe Department of Justice therefore opposes the proposed constitutional amend\xc2\xad\nment.\nThe Office of Management and Budget has advised that it has no objection to\nthe submission of this report from the standpoint of the Administration\xe2\x80\x99s\nprogram.\nR o bert A. M cC o n n ell\n\nAssistant Attorney General\nOffice o f Legislative Affairs *\n\n5 In The Changing Role o f the Senate Judiciary Committee on Judicial Selection, 62 Judicature 502, 504-05\n(1979), Professor Slotnick docum ents the fact that, under the \xe2\x80\x9cBlue Slip\xe2\x80\x9d procedure, a single Senator o f the\nnom inee\xe2\x80\x99s home state may prevent the scheduling o f the hearing and consequently the advice and consent o f\nthe Senate on a Presidential nominee. See also Slotnick, Reforms in Judicial Selection: Will They Affect the\nSenate\xe2\x80\x99s Role?, 64 Judicature 60, 6 2-63 (1980). This process is also described in Adams and KavanaghBaran, Promise and Performance: Carter Builds a New Administration 111-13 (1979). Thus, a single S enator\ncould utilize current practices to keep a ju d g e \xe2\x80\x99s reconfirm ation in suspense for an indefinite period o f time.\n* NOTE: T his letter was drafted by the O ffice o f Legal Counsel for the signature of the Assistant Attorney\nG eneral for the O ffice o f L egislative A ffairs.\n\n5\n\n\x0c'