George Anderson

by Peter Dimock

  (C) the threat of imminent death; or

  (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality[.]

  18 U.S.C. § 2340(2). Torture is defined under the statute to include an act specifically intended to inflict severe mental pain or suffering. Id. § 2340(1).

  An important preliminary question with respect to this definition is whether the statutory list of the four “predicate acts” in section 2340(2)(A)-(D) is exclusive. We conclude that Congress intended the list of predicate acts to be exclusive—that is, to constitute the proscribed “severe mental pain or suffering” under the statute, the prolonged mental harm must be caused by acts falling within one of the four statutory categories of predicate acts. We reach this conclusion based on the clear language of the statute, which provides a detailed definition that includes four categories of predicate acts joined by the disjunctive and does not contain a catchall provision or any other language suggesting that additional acts might qualify (for example, language such as “including” or “such acts as”).23 Congress plainly considered very specific predicate acts, and this definition tracks the Senate’s understanding concerning mental pain or suffering when giving its advice and consent to ratification of the CAT. The conclusion that the list of predicate acts is exclusive is consistent with both the text of the Senate’s understanding, and with the fact that it was adopted out of concern that the CAT’s definition of torture did not otherwise meet the requirement for clarity in defining crimes. See supra note 21. Adopting an interpretation of the statute that expands the list of predicate acts for “severe mental pain or suffering” would constitute an impermissible rewriting of the statute and would introduce the very imprecision that prompted the Senate to adopt its understanding when giving its advice and consent to ratification of the CAT.

  Another question is whether the requirement of “prolonged mental harm” caused by or resulting from one of the enumerated predicate acts is a separate requirement, or whether such “prolonged mental harm” is to be presumed any time one of the predicate acts occurs. Although it is possible to read the statute’s reference to “the prolonged mental harm caused by or resulting from” the predicate acts as creating a statutory presumption that each of the predicate acts always causes prolonged mental harm, we do not believe that was Congress’s intent. As noted, this language closely tracks the understanding that the Senate adopted when it gave its advice and consent to ratification of the CAT:

  in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (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. We do not believe that simply by adding the word “the” before “prolonged harm,” Congress intended a material change in the definition of mental pain or suffering as articulated in the Senate’s understanding to the CAT. The legislative history, moreover, confirms that sections 2340-2340A were intended to fulfill—but not go beyond—the United States’ obligations under the CAT: “This section provides the necessary legislation to implement the [CAT]. . . . The definition of torture emanates directly from article 1 of the [CAT]. The definition for ‘severe mental pain and suffering’ incorporates the [above mentioned] understanding.” S. Rep. No. 103-107, at 58-59 (1993). This understanding, embodied in the statute, was meant to define the obligation undertaken by the United States. Given this understanding, the legislative history, and the fact that section 2340(2) defines “severe mental pain or suffering” carefully in language very similar to the understanding, we do not believe that Congress intended the definition to create a presumption that any time one of the predicate acts occurs, prolonged mental harm is deemed to result.

  Turning to the question of what constitutes “prolonged mental harm caused by or resulting from” a predicate act, we believe that Congress intended this phrase to require mental “harm” that is caused by or that results from a predicate act, and that has some lasting duration. There is little guidance to draw upon in interpreting this phrase.24 Nevertheless, our interpretation is consistent with the ordinary meaning of the statutory terms. First, the use of the word “harm”—as opposed to simply repeating “pain or suffering”—suggests some mental damage or injury. Ordinary dictionary definitions of “harm,” such as “physical or mental damage: injury,” Webster’s Third New International Dictionary at 1034 (emphasis added), or “[p]hysical or psychological injury or damage,” American Heritage Dictionary of the English Language at 825 (emphasis added), support this interpretation. Second, to “prolong” means to “lengthen in time” or to “extend in duration,” or to “draw out,” Webster’s Third New International Dictionary at 1815, further suggesting that to be “prolonged,” the mental damage must extend for some period of time. This damage need not be permanent, but it must continue for a “prolonged” period of time.25 Finally, under section 2340(2), the “prolonged mental harm” must be “caused by” or “resulting from” one of the enumerated predicate acts.26

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

  [The defendant] also caused or participated in the plaintiffs’ mental torture. Mental torture consists of “prolonged mental harm caused by or resulting from: the intentional infliction or threatened infliction of severe physical pain or suffering; . . . the threat of imminent death . . . .” As set out above, plaintiffs noted in their testimony that they feared that they would be killed by [the defendant] during the beatings he inflicted or during games of “Russian roulette.” Each plaintiff continues to suffer long-term psychological harm as a result of the ordeals they suffered at the hands of defendant and others.

  198 F. Supp. 2d at 1346 (emphasis added; first ellipsis in original). In reaching its conclusion, the court noted that the plaintiffs were continuing to suffer serious mental harm even ten years after the events in question: One plaintiff “suffers from anxiety, flashbacks, and nightmares and has difficulty sleeping. [He] continues to suffer thinking about what happened to him during this ordeal and has been unable to work as a result of the continuing effects of the torture he endured.” Id. at 1334. Another plaintiff “suffers from anxiety, sleeps very little, and has frequent nightmares. . . . [He] has found it impossible to return to work.” Id. at 1336. A third plaintiff “has frequent nightmares. He has had to use medication to help him sleep. His experience has made him feel depressed and reclusive, and he has not been able to work since he escaped from this ordeal.” Id. at 1337-38. And the fourth plaintiff “has flashbacks and nightmares, suffers from nervousness, angers easily, and has difficulty trusting people. These effects directly impact and interfere with his ability to work.” Id. at 1340. In each case, these mental effects were continuing years after the infliction of the predicate acts.

  And in Sackie v. Ashcroft, 270 F. Supp. 2d 596 (E.D. Pa. 2003), the individual had been kidnapped and “forcibly recruited” as a child soldier at the age of 14, and over the next three to four years had been forced to take narcotics and threatened with imminent death. Id. at 597-98, 601-02. The court concluded that the resulting mental harm, which continued over this three-to-f
our-year period, qualified as “prolonged mental harm.” Id. at 602.

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

  (4) The meaning of “specifically intended.”

  It is well recognized that the term “specific intent” is ambiguous and that the courts do not use it consistently. See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e), at 355 & n.79 (2d ed. 2003). “Specific intent” is most commonly understood, however, “to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.” Id. at 354; see also Carter v. United States, 530 U.S. 255, 268 (2000) (explaining that general intent, as opposed to specific intent, requires “that the defendant possessed knowledge [only] with respect to the actus reus of the crime”). As one respected treatise explains:

  With crimes which require that the defendant intentionally cause a specific result, what is meant by an “intention” to cause that result? Although the theorists have not always been in agreement . . . , the traditional view is that a person who acts . . . intends a result of his act . . . under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.

  1 LaFave, Substantive Criminal Law, § 5.2(a), at 341 (footnote omitted).

  As noted, the cases are inconsistent. Some suggest that only a conscious desire to produce the proscribed result constitutes specific intent; others suggest that even reasonable foreseeability suffices. In United States v. Bailey, 444 U.S. 394 (1980), for example, the Court suggested that, at least “[i]n a general sense,” id. at 405, “specific intent” requires that one consciously desire the result. Id. at 403-05. The Court compared the common law’s mens rea concepts of specific intent and general intent to the Model Penal Code’s mens rea concepts of acting purposefully and acting knowingly. Id. at 404-05. “[A] person who causes a particular result is said to act purposefully,” wrote the Court, “if ‘he consciously desires that result, whatever the likelihood of that result happening from his conduct.’” Id. at 404 (internal quotation marks omitted). A person “is said to act knowingly,” in contrast, “if he is aware ‘that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.’” Id. (internal quotation marks omitted). The Court then stated: “In a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific intent, while ‘knowledge’ corresponds loosely with the concept of general intent.” Id. at 405.

  In contrast, cases such as United States v. Neiswender, 590 F.2d 1269 (4th Cir. 1979), suggest that to prove specific intent it is enough that the defendant simply have “knowledge or notice” that his act “would have likely resulted in” the proscribed outcome. Id. at 1273. “Notice,” the court held, “is provided by the reasonable foreseeability of the natural and probable consequences of one’s acts.” Id.

  We do not believe it is useful to try to define the precise meaning of “specific intent” in section 2340.27 In light of the President’s directive that the United States not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture. Some observations, however, are appropriate. It is clear that the specific intent element of section 2340 would be met if a defendant performed an act and “consciously desire[d]” that act to inflict severe physical or mental pain or suffering. 1 LaFave, Substantive Criminal Law § 5.2(a), at 341. Conversely, if an individual acted in good faith, and only after reasonable investigation establishing that his conduct would not inflict severe physical or mental pain or suffering, it appears unlikely that he would have the specific intent necessary to violate sections 2340-2340A. Such an individual could be said neither consciously to desire the proscribed result, see, e.g., Bailey, 444 U.S. at 405, nor to have “knowledge or notice” that his act “would likely have resulted in” the proscribed outcome, Neiswender, 590 F.2d at 1273.

  Two final points on the issue of specific intent: First, specific intent must be distinguished from motive. There is no exception under the statute permitting torture to be used for a “good reason.” Thus, a defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute. See Cheek v. United States, 498 U.S. 192, 200-01 (1991). Second, specific intent to take a given action can be found even if the defendant will take the action only conditionally. Cf., e.g., Holloway v. United States, 526 U.S. 1, 11 (1999) (“[A] defendant may not negate a proscribed intent by requiring the victim to comply with a condition the defendant has no right to impose.”). See also id. at 10-11 & nn. 9-12; Model Penal Code § 2.02(6). Thus, for example, the fact that a victim might have avoided being tortured by cooperating with the perpetrator would not make permissible actions otherwise constituting torture under the statute. Presumably that has frequently been the case with torture, but that fact does not make the practice of torture any less abhorrent or unlawful.28

  * * *

  1. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. See also, e.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

  2. It has been suggested that the prohibition against torture has achieved the status of jus cogens (i.e., a peremptory norm) under international law. See, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992); Regina v. Bow Street Metro. Stipendiary Magistrate Ex Parte Pinochet Ugarte (No. 3), [2000] 1 AC 147, 198; see also Restatement (Third) of Foreign Relations Law of the United States § 702 reporters’ note 5.

  3. See generally John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (1977).

  4. See, e.g., Statement on United Nations International Day in Support of Victims of Torture, 40 Weekly Comp. Pres. Doc. 1167 (July 5, 2004) (“Freedom from torture is an inalienable human right . . . .”); Statement on United Nations International Day in Support of Victims of Torture, 39 Weekly Comp. Pres. Doc. 824 (June 30, 2003) (“Torture anywhere is an affront to human dignity everywhere.”); see also Letter of Transmittal from President Ronald Reagan to the Senate (May 20, 1988), in Message from the President of the United States Transmitting the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Treaty Doc. No. 100-20, at iii (1988) (“Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.”).

  5. See, e.g., Anthony Lewis, Making Torture Legal, N.Y. Rev. of Books, July 15, 2004; R. Jeffrey Smith, Slim Legal Grounds for Torture Memos, Wash. Post, July 4, 2004, at A12; Kathleen Clark & Julie Mertus, Torturing the Law; the Justice Department’s Legal Contortions on Interrogation, Wash. Post, June 20, 2004, at B3; Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions?, 90 Cornell L. Rev. 97 (2004).

  6. This memorandum necessarily discusses the prohibition against torture in sections 2340-2340A in somewhat abstract and general terms. In applying this criminal prohibition to particular circumstances, great care must be taken to avoid approving as lawful any conduct that might constitute torture. In addition, this memorandum does not addre
ss the many other sources of law that may apply, depending on the circumstances, to the detention or interrogation of detainees (for example, the Geneva Conventions; the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq.; the Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261-3267; and the War Crimes Act, 18 U.S.C. § 2441, among others). Any analysis of particular facts must, of course, ensure that the United States complies with all applicable legal obligations.

  7. See, e.g., Statement on United Nations International Day in Support of Victims of Torture, 40 Weekly Comp. Pres. Doc. 1167-68 (July 5, 2004) (“America stands against and will not tolerate torture. 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 fight to eliminate it everywhere.”).

  8. While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.

  9. Section 2340A provides in full:

  (a) Offense.—Whoever 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 death 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.

  (b) Jurisdiction.—There is jurisdiction over the activity prohibited in subsection (a) if—

  (1) the alleged offender is a national of the United States; or

  (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

  (c) Conspiracy.—A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.