June 27, 2004

Defining Torture: Russian Roulette, Yes. Mind-Altering Drugs, Maybe.


OF all the memos released by the White House last week in response to the prison abuse scandal in Iraq, none have been more incendiary than the so-called torture memo, dated Aug. 1, 2002, and written by Jay S. Bybee, the assistant attorney general in charge of the Office of Legal Counsel at the Justice Department.

The department and the White House have distanced themselves from the document. But the memorandum's antiseptic discussion of the definition of torture is likely to continue to fuel the debate. Following are a few excerpts.

The memo starts by explaining that some acts may be "cruel, inhuman or degrading" but not constitute torture under Section 2340, the federal law criminalizing torture. To rise to the level of torture, it argues, the acts must be of an extreme nature, specifically intended to inflict severe pain or suffering, mental or physical. But the statute is vague on the meaning of "severe," so the authors try to construct one.

In the absence of such a definition, we construe a statutory term in accordance with its ordinary and natural meaning. The dictionary defines severe as "unsparing in exaction, punishment or censure" or "inflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture" "extremely violent or grievous, severe pain" "of pain, suffering, loss, or the like: grievous, extreme" and "of circumstances hard to sustain or endure." Thus the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.

A good model, the memo suggests, can be found in statutes regulating what kind of emergency medical conditions qualify for payments of health benefits.

Although these statutes address a substantially different subject from Section 2340, they are nonetheless helpful for understanding what constitutes severe pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure or the permanent impairment of a significant body function. These statutes suggest that "severe pain" as used in Section 2340, must rise to a similarly high level, the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure or serious impairment of body functions in order to constitute torture.

Turning to the matter of what constitutes severe mental pain, the memo notes that the statute prohibits torture caused by mind-altering substances, which the authors take to mean drugs. But, the memo argues, this doesn't rule out all drugs.

Instead, it prohibits the use of drugs that "disrupt profoundly the sense or the personality." By requiring that the procedures and the drugs create a profound disruption, the statue requires more than that the acts "forcibly separate" or "rend" the senses or personality. Those acts must penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities or fundamentally alter his personality.

The authors say they cannot find a definition of profound mental disruption in mental health literature or United States law, so they offer some examples of their own.

Such an effect might be seen in a drug-induced dementia. In such a state, the individual suffers from significant memory impairment, such as the inability to retain any new information or recall information about thin previously of interest to the individual. This impairment is accompanied by one or more of the following: deterioration of language function, e.g., repeating sounds and words over and over again; impaired ability to execute simple motor activities, e.g., inability to dress or wave goodbye; inability to recognize and identify objects such as chairs or pencils despite normal vision functioning. Moreover, we think that pushing someone to the brink of suicide, particularly where the person comes from a culture with strong taboos against suicide and it is evidenced by acts of self-mutilation, would be a sufficient disruption of the personality to constitute a "profound disruption."

The torture statute also says that severe mental pain can result from the threat of imminent death, the authors note. Imminent, however, is the operative word.

Threats referring vaguely to things that might happen in the future do not satisfy this immediacy requirement. Such a threat fails to satisfy this requirement not because it is too remote in time but because there is a lack of certainty it will occur. Indeed, timing is an indicator of certainty that the harm will befall the defendant. Thus, a vague threat that someday the prisoner might be killed would not suffice. Instead, subjecting a prisoner to mock executions or playing Russian roulette with him would have sufficient immediacy to constitute a threat of imminent death.

The authors then look to the federal Torture Victims Protection Act to see how it defines torture. They note that the courts have not given lengthy analysis on this subject. But at least seven acts consistently reappear in decisions about violations of the law, suggesting to the authors at least seven firm examples of torture.

1) Severe beatings using instruments such as iron barks, truncheons and clubs; 2) threats of imminent death, such as mock executions; 3) threats of removing extremities; 4) burning, especially burning with cigarettes; 5) electric shocks to genitalia or threats to do so; 6) rape or sexual assault, or injury to an individual's sexual organs, or threatening to do any of these sorts of acts; and 7) forcing the prisoner to watch the torture of others. While we cannot say with certainty that acts falling short of these seven would not constitute torture under Section 2340, we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate the law.

In an appendix, the memo lists several cases in which American courts have ruled that the victim was tortured. One case describes what happened to three Americans who were held as hostages in Lebanon. They sued the government of Iran for its role in their kidnapping.

Plaintiff was kidnapped at gunpoint. He was beaten for several days after his kidnapping. He was subjected to daily torture and threats of death. He was kept in solitary confinement for two years. During that time, he was blindfolded and chained to the wall in a 6-foot-by-6-foot room infested with rodents. He was shackled in a stooped position for 44 months, and he developed eye infections as a result of the blindfolds. Additionally, his captors did the following: forced him to kneel on spikes; administered electric shocks to his hands; battered his feet with iron bars and struck him in the kidneys with a rifle; struck him on the side of his head with a hand grenade, breaking his nose and jaw; placed boiling tea kettles on his shoulders; and they laced his food with arsenic.

The memo ends by noting two cases in which courts ruled there was no torture.

The plaintiff was held for eight days in a filthy cell with drug dealers and an AIDS patient. He received no food, no blanket and no protection from other inmates. Prisoners murdered one another in front of the plaintiff. The court flatly rejected the plaintiffs claim that this constituted torture.

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