George Anderson

by Peter Dimock

  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 or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent 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 disrupt profoundly the senses or personality.

  S. Exec. Rep. No. 101-30, at 36 (1990). This understanding was deposited with the U.S. instrument of ratification, see 1830 U.N.T.S. 320 (Oct. 21, 1994), and thus defines the scope of the United States’ obligations under the treaty. See Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. O.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 “torture,” the conduct in question must have been “specifically intended to inflict severe physical or mental pain or suffering.” In the discussion that follows, we will separately consider each of the principal 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 pain 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 common understanding of the term “torture” and the context 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.” American Heritage Dictionary of the 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

  The statute, moreover, was intended to implement the United States’ obligations under the CAT, which, as quoted above, defines as “torture” acts that inflict “severe pain or suffering” on a person. CAT art. 1(1). As the Senate Foreign Relations Committee explained in its report recommending that the Senate consent to ratification of the CAT:

  The [CAT] seeks to define “torture” in a relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned. . . .

  . . . .

  . . . The term “torture,” in United States and international usage, is usually reserved for extreme, deliberate and unusually cruel practices, for 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 of International 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 a relatively limited set of circumstances likely to be illegal under most, if not all, domestic legal systems.”).

  Further, the CAT distinguishes between torture and “other acts of cruel, inhuman or degrading treatment 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 6, 13; see also J. Herman 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 Handbook”) (noting that Article 16 implies “that torture is the gravest form of [cruel, inhuman, or degrading] treatment [or] punishment”) (emphasis added); Malcolm D. Evans, Getting to Grips with Torture, 51 Int’l & Comp. L.Q. 365, 369 (2002) (The CAT “formalises a distinction between torture on the one hand and inhuman and degrading treatment on the other by attributing different legal consequences to them.”).14 The Senate Foreign Relations Committee emphasized 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 treatment 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 form 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 ‘other 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 interpreting the CAT’s torture prohibition—which sections 2340-2340A implement. Mark Richard, a Deputy Assistant Attorney General in the Criminal Division, testified that “[t]orture is understood to be that barbaric cruelty which lies at the top of the pyramid of human rights misconduct.” Convention Against Torture: Hearing Before the Senate Comm. on Foreign Relations, 101st Cong. 16 (1990) (“CAT Hearing”) (prepared statement). The Senate Foreign Relations Committee also understood torture to be limited in just this way. See S. Exec. Rep. No. 101-30, at 6 (noting that “[f ]or an act to be ‘torture,’ it must be an extreme form of cruel and inhuman treatment, causing severe pain and suffering, and be intended to cause severe pain and suffering”). Both the 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 Convention “on torture rather than on other relatively less abhorrent practices.” Letter of Submittal from George P. Shultz, Secretary of State, to President Ronald Reagan (May 10, 1988), in S. Treaty Doc. No. 100-20, at v; see also S. Exec. Rep. No. 101-30, 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. O.L.C. at 35-36.

  Although Congress defined “torture” under sections 2340-2340A to require conduct specifically intended to cause “severe” pain or suffering, we do not believe Congress intended to reach only conduct involving “excruciating and agonizing” pain or suffering. Although there is some support for this formulation in the ratification history of the CAT,15 a proposed express understanding to that effect16 was “criticized for setting too high a threshold of pain,” S. Exec. Rep. No. 101-30, at 9, and was not adopted. We are not aware of any evidence suggesting that the standard was raised in the statute and we do not believe that it was.17

  Drawing distinctions among gradations of 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.18 We are, however, aided in this task by judicial interpretations of the Torture Victims Protection Act (“TVPA”), 28 U.S.C. § 1350 note (2000). The TVPA, also enacted to implement the CAT, provides a civil remedy to victims of torture. The TVPA defines “torture” to incl
ude:

  any act, directed 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 committed, intimidating or coercing that individual or a third person, or for any reason based on 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.”19 As the Court of Appeals for the District of Columbia Circuit has explained:

  The 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 “torture” both connotes and invokes. The drafters of the [CAT], 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 of pain 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. Cir. 2002) (citations omitted). That court concluded that a complaint that alleged beatings at the hands of police but that did not provide details concerning “the severity of plaintiffs’ alleged beatings, including their frequency, duration, the parts of the body at which they were aimed, and the weapons used to carry them out,” did not suffice “to ensure that [it] satisf[ied] the TVPA’s rigorous definition of torture.” Id. 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. The 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 acknowledged that “these alleged acts certainly reflect a bent toward cruelty on the part of their 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 within the meaning of the [TVPA].” Id. at 234. Cases in which courts have found torture suggest the nature of the extreme conduct that falls within the statutory definition. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 789, 790-91, 795 (9th Cir. 1996) (concluding that a course of conduct that included, among other things, severe beatings of plaintiff, repeated threats of death and electric shock, sleep deprivation, extended shackling to a 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 eight years of solitary or near-solitary confinement, constituted torture); Mehinovic v. 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 genitals, head, and other parts of the body with metal pipes, brass knuckles, batons, a baseball bat, and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim’s forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of “Russian roulette,” constituted torture); Daliberti v. Republic of Iraq, 146 F. Supp. 2d 19, 22-23 (D.D.C. 2001) (entering default judgment against Iraq where plaintiffs alleged, among other things, threats of “physical torture, such as cutting off . . . fingers, pulling out . . . fingernails,” and electric shocks to the testicles); Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62, 64-66 (D.D.C. 1998) (concluding that a course of conduct that included frequent beatings, pistol whipping, threats of imminent death, electric shocks, and attempts to force confessions by playing Russian roulette and pulling the trigger at each denial, constituted torture).

  (2) The meaning of “severe physical pain or suffering.”

  The statute provides a specific definition of “severe mental pain or suffering,” see 18 U.S.C. § 2340(2), but does not define the term “severe physical pain 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 that under some circumstances “severe physical suffering” may constitute torture even if it does not involve “severe physical pain.” Accordingly, to the extent that the August 2002 Memorandum suggested that “severe physical suffering” 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 of physical torture is not limited to “severe physical pain.” This 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 pain or suffering” from “mental pain or suffering.” Consequently, a separate category of “physical suffering” must include something other than any type of “mental pain or suffering.”20 Moreover, given that Congress precisely defined “mental pain or suffering” in the statute, it is unlikely to have intended to undermine that careful definition by including a broad range of mental 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 of 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 consistently refers to “severe physical pain or suffering” (or, more often in the ratification record, “severe physical pain and suffering”), apparently without ever disaggregating the concepts of “severe physical pain” and “severe physical suffering” or discussing them as separate categories 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 implements—the references were generally to “pain and suffering,” with no indication of any difference in meaning. The Summary and Analysis of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which appears in S. Treaty Doc. No. 100-20, 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”); id. at 14 (two uses of “pain and suffering”); id. at 35 (one use of “pain and suffering”). Conversely, the phrase “pain or suffering” is used less frequently in the Senate report in discussing (as opposed to quoting) the CAT and the understandings under consideration, e.g., id. at 5-6 (one use of “pain or suffering”), id. at 14 (two uses of “pain or suffering”); id. at 16 (two uses of “pain or suffering”), and, when used, 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 pa
in,” we also 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 the 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 of sufficient intensity and duration to meet the statutory definition of torture even if it does not involve “severe physical pain.” To constitute such torture, “severe physical suffering” would 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 pain,” and that also does not undermine the limited definition Congress provided for torture, along with the requirement that any such physical suffering be “severe,” calls for an interpretation 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.22 Otherwise, the inclusion of such a category would lead to the kind of uncertainty in interpreting the statute that Congress sought to reduce both through its understanding 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;

  (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;