by Peter Dimock
18 U.S.C. § 2340A (2000).
10. Section 2340 provides in full:
As used in this chapter—
(1) “torture” means an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means 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;
(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; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
18 U.S.C. § 2340 (as amended by Pub. L. No. 108-375, 118 Stat. 1811 (2004)).
11. Our task is only to offer guidance on the meaning of the statute, not to comment on policy. It is of course open to policymakers to determine that conduct that might not be prohibited by the statute is nevertheless contrary to the interests or policy of the United States.
12. Congress limited the territorial reach of the federal torture statute, providing that the prohibition applies only to conduct occurring “outside the United States,” 18 U.S.C. § 2340A(a), which is currently defined in the statute to mean outside “the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.” Id. § 2340(3).
13. Common dictionary definitions of “torture” further support the statutory concept that the pain or suffering must be severe. See Black’s Law Dictionary 1528 (8th ed. 2004) (defining “torture” as “[t]he infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure”) (emphasis added); Webster’s Third New International Dictionary of the English Language Unabridged 2414 (2002) (defining “torture” as “the infliction of intense pain (as from burning, crushing, wounding) to punish or coerce someone”) (emphasis added); Oxford American Dictionary and Language Guide 1064 (1999) (defining “torture” as “the infliction of severe bodily pain, esp. as a punishment or a means of persuasion”) (emphasis added).
This interpretation is also consistent with the history of torture. See generally the descriptions in Lord Hope’s lecture, Torture, University of Essex/Clifford Chance Lecture 7-8 (Jan. 28, 2004), and in Professor Langbein’s book, Torture and the Law of Proof: Europe and England in the Ancien Régime. We emphatically are not saying that only such historical techniques—or similar ones—can constitute “torture” under sections 2340-2340A. But the historical understanding of “torture” is relevant to interpreting Congress’s intent. Cf. Morissette v. United States, 342 U.S. 246, 263 (1952).
14. This approach—distinguishing torture from lesser forms of cruel, inhuman, or degrading treatment—is consistent with other international law sources. The CAT’s predecessor, the U.N. Torture Declaration, defined torture as “an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.” Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Res. 3452, art. 1(2) (Dec. 9, 1975) (emphasis added); see also S. Treaty Doc. No. 100-20 at 2 (The U.N. Torture Declaration was “a point of departure for the drafting of the [CAT].”). Other treaties also distinguish torture from lesser forms of cruel, inhuman, or degrading treatment. See, e.g., European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 3, 213 U.N.T.S. 221 (Nov. 4, 1950) (“European Convention”) (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”); Evans, Getting to Grips with Torture, 51 Int’l & Comp. L.Q. at 370 (“[T]he ECHR organs have adopted . . . a ‘vertical’ approach . . . , which is seen as comprising three separate elements, each representing a progression of seriousness, in which one moves progressively from forms of ill-treatment which are ‘degrading’ to those which are ‘inhuman’ and then to ‘torture’. The distinctions between them is [sic] based on the severity of suffering involved, with ‘torture’ at the apex.”); Debra Long, Association for the Prevention of Torture, Guide to Jurisprudence on Torture and Ill-Treatment: Article 3 of the European Convention for the Protection of Human Rights 13 (2002) (The approach of distinguishing between “torture,” “inhuman” acts, and “degrading” acts has “remained the standard approach taken by the European judicial bodies. Within this approach torture has been singled out as carrying a special stigma, which distinguishes it from other forms of ill-treatment.”). See also CAT Handbook at 115-17 (discussing the European Court of Human Rights (“ECHR”) decision in Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) (1978) (concluding that the combined use of wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink constituted inhuman or degrading treatment but not torture under the European Convention)). Cases decided by the ECHR subsequent to Ireland have continued to view torture as an aggravated form of inhuman treatment. See, e.g., Aktas v. Turkey, No. 24351/94 ¶ 313 (E.C.H.R. 2003); Akkoc v. Turkey, Nos. 22947/93 & 22948/93 ¶ 115 (E.C.H.R. 2000); Kaya v. Turkey, No. 22535/93 ¶ 117 (E.C.H.R. 2000).
The International Criminal Tribunal for the Former Yugoslavia (“ICTY”) likewise considers “torture” as a category of conduct more severe than “inhuman treatment.” See, e.g., Prosecutor v. Delalic, IT-96-21, Trial Chamber Judgment ¶ 542 (ICTY Nov. 16, 1998) (“[I]nhuman treatment is treatment which deliberately causes serious mental and physical suffering that falls short of the severe mental and physical suffering required for the offence of torture.”).
15. Deputy Assistant Attorney General Mark Richard testified: “[T]he essence of torture” is treatment that inflicts “excruciating and agonizing physical pain.” CAT Hearing at 16 (prepared statement).
16. See S. Treaty Doc. No. 100-20, at 4-5 (“The United States understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering.”).
17. Thus, we do not agree with the statement in the August 2002 Memorandum that “[t]he Reagan administration’s understanding that the pain be ‘excruciating and agonizing’ is in substance not different from the Bush administration’s proposal that the pain must be severe.” August 2002 Memorandum at 19. Although the terms are concededly imprecise, and whatever the intent of the Reagan Administration’s understanding, we believe that in common usage “excruciating and agonizing” pain is understood to be more intense than “severe” pain.
The August 2002 Memorandum also looked to the use of “severe pain” in certain other statutes, and concluded that to satisfy the definition in section 2340, pain “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Id. at 1; see also id. at 5-6, 13, 46. We do not agree with those statements. Those other statutes define an “emergency medical condition,” for purposes of providing health benefits, as “a condition manifesting itself by acute symptoms of sufficient severity (including severe pain)” such that one could reasonably expect that the absence of immediate medical care might result in death, organ failure or impairment of bodily function. See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C. § 1395w-22(d)(3)(B) (2000); id. § 1395dd(e) (2000). They do not define “severe pa
in” even in that very different context (rather, they use it as an indication of an “emergency medical condition”), and they do not state that death, organ failure, or impairment of bodily function cause “severe pain,” but rather that “severe pain” may indicate a condition that, if untreated, could cause one of those results. We do not believe that they provide a proper guide for interpreting “severe pain” in the very different context of the prohibition against torture in sections 2340-2340A. Cf. United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 213 (2001) (phrase “wages paid” has different meaning in different parts of Title 26); Robinson v. Shell Oil Co., 519 U.S. 337, 343-44 (1997) (term “employee” has different meanings in different parts of Title VII).
18. Despite extensive efforts to develop objective criteria for measuring pain, there is no clear, objective, consistent measurement. As one publication explains:
Pain is a complex, subjective, perceptual phenomenon with a number of dimensions—intensity, quality, time course, impact, and personal meaning—that are uniquely experienced by each individual and, thus, can only be assessed indirectly. Pain is a subjective experience and there is no way to objectively quantify it. Consequently, assessment of a patient’s pain depends on the patient’s overt communications, both verbal and behavioral. Given pain’s complexity, one must assess not only its somatic (sensory) component but also patients’ moods, attitudes, coping efforts, resources, responses of family members, and the impact of pain on their lives.
Dennis C. Turk, Assess the Person, Not Just the Pain, Pain: Clinical Updates, Sept. 1993 (emphasis added). This lack of clarity further complicates the effort to define “severe” pain or suffering.
19. Section 3(b)(2) of the TVPA defines “mental pain or suffering” similarly to the way that section 2340(2) defines “severe mental pain or suffering.”
20. Common dictionary definitions of “physical” confirm that “physical suffering” does not include mental sensations. See, e.g., American Heritage Dictionary of the English Language at 1366 (“Of or relating to the body as distinguished from the mind or spirit”); Oxford American Dictionary and Language Guide at 748 (“of or concerning the body (physical exercise; physical education)”).
21. This is particularly so given that, as Administration witnesses explained, the limiting understanding defining mental pain or suffering was considered necessary to avoid problems of vagueness. See, e.g., CAT Hearing at 8, 10 (prepared statement of Abraham Sofaer, Legal Adviser, Department of State: “The Convention’s wording . . . is not in all respects as precise as we believe necessary. . . . [B]ecause [the Convention] requires establishment of criminal penalties under our domestic law, we must pay particular attention to the meaning and interpretation of its provisions, especially concerning the standards by which the Convention will be applied as a matter of U.S. law. . . . [W]e prepared a codified proposal which . . . clarifies the definition of mental pain and suffering.”); id. at 15-16 (prepared statement of Mark Richard: “The basic problem with the Torture Convention—one that permeates all our concerns—is its imprecise definition of torture, especially as that term is applied to actions which result solely in mental anguish. This definitional vagueness makes it very doubtful that the United States can, consistent with Constitutional due process constraints, fulfill its obligation under the Convention to adequately engraft the definition of torture into the domestic criminal law of the United States.”); id. at 17 (prepared statement of Mark Richard: “Accordingly, the Torture Convention’s vague definition concerning the mental suffering aspect of torture cannot be resolved by reference to established principles of international law. In an effort to overcome this unacceptable element of vagueness in Article I of the Convention, we have proposed an understanding which defines severe mental pain constituting torture with sufficient specificity to . . . meet Constitutional due process requirements.”).
22. Support for concluding that there is an extended temporal element, or at least an element of persistence, in “severe physical suffering” as a category distinct from “severe physical pain” may also be found in the prevalence of concepts of “endurance” of suffering and of suffering as a “state” or “condition” in standard dictionary definitions. See, e.g., Webster’s Third New International Dictionary at 2284 (defining “suffering” as “the endurance of or submission to affliction, pain, loss”; “a pain endured”); Random House Dictionary of the English Language 1901 (2d ed. 1987) (“the state of a person or thing that suffers”); Funk & Wagnalls New Standard Dictionary of the English Language 2416 (1946) (“A state of anguish or pain”); American Heritage Dictionary of the English Language at 1795 (“The condition of one who suffers”).
23. These four categories of predicate acts “are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (quoting United States v. Vonn, 535 U.S. 55, 65 (2002)). See also, e.g., Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993); 2A Norman J. Singer, Statutes and Statutory Construction § 47.23 (6th ed. 2000). Nor do we see any “contrary indications” that would rebut this inference. Vonn, 535 U.S. at 65.
24. The phrase “prolonged mental harm” does not appear in the relevant medical literature or elsewhere in the United States Code. The August 2002 Memorandum concluded that to constitute “prolonged mental harm,” there must be “significant psychological harm of significant duration, e.g., lasting for months or even years.” Id. at 1; see also id. at 7. Although we believe that the mental harm must be of some lasting duration to be “prolonged,” to the extent that that formulation was intended to suggest that the mental harm would have to last for at least “months or even years,” we do not agree.
25. For example, although we do not suggest that the statute is limited to such cases, development of a mental disorder—such as post-traumatic stress disorder or perhaps chronic depression—could constitute “prolonged mental harm.” See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 369-76, 463-68 (4th ed. 2000) (“DSM-IV-TR”). See also, e.g., Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/59/324, at 14 (2004) (“The most common diagnosis of psychiatric symptoms among torture survivors is said to be post-traumatic stress disorder.”); see also Metin Basoglu et al., Torture and Mental Health: A Research Overview, in Ellen Gerrity et al. eds., The Mental Health Consequences of Torture 48-49 (2001) (referring to findings of higher rates of post-traumatic stress disorder in studies involving torture survivors); Murat Parker et al., Psychological Effects of Torture: An Empirical Study of Tortured and Non-Tortured Non-Political Prisoners, in Metin Basoglu ed., Torture and Its Consequences: Current Treatment Approaches 77 (1992) (referring to findings of post-traumatic stress disorder in torture survivors).
26. This is not meant to suggest that, if the predicate act or acts continue for an extended period, “prolonged mental harm” cannot occur until after they are completed. Early occurrences of the predicate act could cause mental harm that could continue—and become prolonged—during the extended period the predicate acts continued to occur. For example, in Sackie v. Ashcroft, 270 F. Supp. 2d 596, 601-02 (E.D. Pa. 2003), the predicate acts continued over a three-to-four-year period, and the court concluded that “prolonged mental harm” had occurred during that time.
27. In the August 2002 Memorandum, this Office concluded that the specific intent element of the statute required that infliction of severe pain or suffering be the defendant’s “precise objective” and that it was not enough that the defendant act with knowledge that such pain “was reasonably likely to result from his actions” (or even that that result “is certain to occur”). Id. at 3-4. We do not reiterate that test here.
28. In the August 2002 Memorandum, this Office indicated that an element of the offense of torture was that the act
in question actually result in the infliction of severe physical or mental pain or suffering. See id. at 3. That conclusion rested on a comparison of the statute with the CAT, which has a different definition of “torture” that requires the actual infliction of pain or suffering, and we do not believe that the statute requires that the defendant actually inflict (as opposed to act with the specific intent to inflict) severe physical or mental pain or suffering. Compare CAT art. 1(1) (“the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted”) (emphasis added) with 18 U.S.C. § 2340 (“’torture’ means an act . . . specifically intended to inflict severe physical or mental pain or suffering”) (emphasis added). It is unlikely that any such requirement would make any practical difference, however, since the statute also criminalizes attempts to commit torture. Id. § 2340A(a).
Letter
February 5, 2010
Dear Leda,
I have found no counter-narrative that is not complicit in the history we are living of absolute possession and perfect loss.
Still, in your singing there is time itself and the grace of unformed reciprocity. No event has been completed.
History creates an unformed future out of love’s immediacy: I’m valuable because she came back. Make reading this into love’s requited listening.
All my love to you and yours,
Theo Fales
Author’s Note
More than thirty years ago I did research in early nineteenth-century records looking for evidence that recorded ordinary Americans’ understanding of the history they were living. Like most historians, I found I could not use most of what I found and read. There were a surprising number of preserved attempts by townspeople of New England, both men and women, to trace in writing for their posterity the grand, mysterious, Providential arc of the history they had been living that so recently had ended in Revolution and nationhood. But most of these documents, not surprisingly perhaps, broke off abruptly, ending almost before they could begin. There was a disturbing incoherence about them I was unable to summarize or subject to interpretation. Most proclaimed soaring, happy ambitions but then shut down almost immediately after their optimistic openings. This, at least, is how I now remember them.