User:Zoticogrillo/Standards of Conduct for Interrogation under 18 U.S.C. sections 2340-2340A

Jay Bybee, then Assistant Attorney General of the United States of America, addressed a memorandum to Alberto Gonzales, then Counsel to the President, dated August 1, 2002, entitled “Standards for Conduct for Interrogation under 18 U.S.C. 2340-2340A,” in response to the President’s reported request for legal opinion on the U.N. Convention Against Torture and 18 U.S.C. section 2340 and the interrogation of al Qaeda operatives. This is the primary “torture memo,” which defines the Department of Justice’s interpretation of torture, and is relied upon heavily by the subsequent “torture memos.” It discusses the language of the torture statute (18 U.S.C. sections 2340-2340A) in great detail in order to derive its definition of torture, states that “cruel, inhuman, or degrading” treatment is not torture according to that statute, and examines “possible defenses that would negate any claim that certain interrogation methods violate the statute.”  It concludes that torture is only extreme acts according to the Convention Against Torture, that severe pain (a requisite for his definition of torture) is “serious physical injury, such as organ failure, impairment of bodily function, or even death,” that prolonged mental harm is harm that must last for “months or even years,” that “prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war,” and that “under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.”

Part I
Part one, in which the text and history of the U.S. torture statute (18 U.S.C. 2340-2340A) is examined, mainly addresses Bybee's interpretation of the definition of torture, including the definition of severe physical and mental pain or suffering.

In the first section, the memorandum reminds the reader that the statute requires specific intent (the convention only requires general intent, but the specific intent language is found in the U.S. ratification reservation), and in citing case law precedent states that specific intent means that "the infliction of [severe] pain must be the defendant's precise objective" and reminds the reader that general intent only requires intent of the actions which would be reasonably likely to result in a violation of the statute. The article then concludes that, "even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent," but makes no attempt to explain how one can act knowing that a result is certain without the intending the outcome, and instead claims that a jury would likely act contrary to law (out of misunderstanding) by finding such an individual guilty regardless.

The second section is key to the definition given by this memo of torture, yet provides the least precedent or legal reasoning of the memo sections. The memo admits difficulty in finding and clear definition for the "severe pain or suffering" required by the torture statute (which is also required by the convention). After examining the definition provided in various dictionaries, it concludes that "pain" is synonymous with "suffering" ("it is difficult to conceive of such suffering that would not involve severe physical pain"), and it selects among the many definitions and proposes that severe pain must be difficult to endure (some definitions quoted in the memo define severe pain as "inflicting discomfort"). In searching for a reference to the term in other U.S. statutes and law, it quotes from a health care law which defines "emergency condition," but merely mentions "severe pain" in passing. That statutory subsection, 8 U.S.C. section 1395w-22(d)(3)(B), defines an emergency condition as a condition "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that [one]... could reasonably expect the absence of immediate medical attention to result in placing the health of the individual... in serious jeapardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part." The memorandum then concludes that severe pain necessarily be pain associated with "death, organ failure, or serious impairment of body functions," and does not explain the possibility left open in that statute of severe pain existing without the existence of those characteristics (and vice-versa), or the fact that the statute only loosely associates the concepts with "severe pain" as opposed to defining the term. Furthermore, even though this section spends considerable effort interpreting such terms as "or," it totally ignores paranthetical language directly relevant to the meaning of "severe pain," which states, "severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions)." The memo then consumes copious space to find the most strict definition of mental pain and prolonged mental harm, which is nonetheless already defined by the statute. It concludes that "prolonged" must be a duration of months or even years. It also erroneously states that the statute requires long-term mental harm to accompany mental or physical pain.

Part II
The memo then discusses the Convention Against Torture (which the memo calls the "Torture Convention") and concludes that the convention makes a distinction between torture and "cruel, inhuman, or degrading treatment or punishment," and that therefore torture is "only the most extreme acts," which the memo concludes, together with the ratifying reservations of the United States, confirms the interpretation of torture found in part one. It concludes that torture does not include "other acts of cruel, in human or degrading treatment or punishment" because such language is found in a different article than the definition of torture, and because it appears that the convention does not intend to criminalize such action, but instead discourage it. The memo then examines the ratification history, and cites U.S. case law which states that the executive branch's interpretation of the treaty "is to be accorded the greatest weight in ascertaining a treaty's intent and meaning." It finds in the congressional record that the Reagan administration understood torture to be "at the extreme end of cruel, inhuman and degrading treatment or punishment," and that such treatment or punishment which is not torture be "the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States." However, the memo fails to point out that since the Reagan administration was no longer in power at the time of ratification, the understanding of the H.W. Bush administration was controlling in interpreting the meaning of the reservation which was filed with ratification. That understanding was different than that of the Reagan administration in that it failed to promote any language regarding torture to be only "extremely cruel" behavior resulting in "excruciating and agonizing" pain, and instead the reservation that was filed merely quoted the text of the U.S. torture statute. Instead, the memorandum states that, on the basis of its own novel and tenuous conclusions reached in part one of the memorandum, "there was little difference between these two understandings and... the further definition of mental pain or suffering merely sought remove [sic] the vagueness created by concept of "agonizing and excruciating" mental pain." The memo quotes a legal adviser of the Department of State, who stated that, "no higher standard was intended by the Reagan administration understanding than was present in the Convention or the Bush understanding" as evidence for the memo's interpretation, which however minimizes the impact of the terms "excruciating and agonizing" and "extremely cruel" in an unusual manner, rather than state (as the memo proposes) that H.W. Bush intended "severe pain" to have the same meaning as is normally associated with the terms used by Reagan. The memo then examines the negotiating history of the convention, and finds that the U.S. originally proposed the terms "extremely severe pain or suffering," and that the U.K. proposed the terms, "extreme pain or suffering rather than... severe pain or suffering," (but doesn't mention the proposals of any other countries), and states that "[u]ltimately, in choosing the phrase "severe pain," the parties concluded that this phrase "sufficient[ly]... convey[ed] the idea that only acts of a certain gravity shall... constitute torture," rather than all acts that are inhumane and degrading. The memorandum however passingly reads into these statements a meaning of "severe pain," being synonymous with "extreme pain," but gives no reason for such an interpretation.  It concludes that the "ratification history and negotiating history [of the convention] all confirm that Section 2340A reaches only the most heinous acts," and thus implies that this confirms its definition of torture in part one, section two of this memo.

Part III
Part three summarizes various case law to outline the kind of conduct which the courts have previously found to be torture. The memo states that through an analysis of those cases, "that courts are likely to take a totality-of-the-circumstances approach, and will look to an entire course of conduct, to determine whether certain acts will violate Section 2340A." After reviewing a number of torture-related cases in the U.S., in which victims were subjected to beatings, burning, electric shocks, and the threat of such actions, it states that, "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." It does discuss one case in which the federal court states that an isolated incident, such as a single blow to the stomach, is sufficient alone to be torture, but the memo states that this is in error, because "a single blow does not reach the requisite level of severity [to constitute torture]," and later explains that this conclusion is "based on our interpretation of the criminal statute" found in section two of part one of this memo. Although the memo states that no where in the case law can a clear interpretation or definition of torture be found, because the cases it did find were all regarding extreme acts, it concludes that this confirms the memo's definition of torture.

Part IV
Part four examines international case law regarding torture, and concludes that while there are many methods that might be cruel, inhuman and degrading treatment, "they do not produce pain or suffering of the necessary intensity to meet the definition of torture." It discusses a case in the European Court of Human Rights that found that wall standing, hooding, subjection to noise, sleep deprivation, and deprivation of food and drink, used in combination for a long period fall into the category of inhuman treatment, but not torture, since "they did not occasion suffering of the particular intensity and cruelty implied by the word torture." It also discusses a case from the Israel Supreme Court that does not mention torture at all, but only cruel and inhumane treatment, which the memo curiously states is evidence that the actions addressed by that court were not torture. While there are a host of other international cases regarding torture, those two were the only ones addressed by the memo.

Part V
Part five of the memo analysis constitutional law as to whether the statute passed by congress infringes on the powers of the president to conduct war, and concludes that it is unconstitutional. It states specifically that the nation was "in the middle of a war in which the nation [had] already suffered a direct attack," and that interrogations would encroach on the president's ability to prevent future attacks. The memo summarizes the terrorist threat from al Qaeda, including the September 11th attacks, and states that interrogation of al Qaeda operatives allegedly lead to the stopping of Jose' Padilla's planned attack. It provides case law which supports its position of the executive branch to conduct war, but it does not discuss how positions previously taken by the Department of Justice regarding obligations under the Geneva Conventions impact this topic. It also discusses how any prosecution of individuals following orders from the President, even if in violation of Section 2340A, should not be possible, since it would impinge upon the president's powers as commander-in-chief.

Part VI
Part six of the memo is entitled "Defenses" and concludes that "under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A." However, this is provided as merely a fail safe argument, because the memorandum feels secure that, according to its view part five of the memo, prosecution would probably be impossible.

Conclusion
In the conclusion section of the memorandum, Bybee summarizes what is viewed as the most important conclusions of the memorandum, namely the definition of torture, the possible unconstitutionality of the torture statute as applied to the president, and the legal justification of necessity or self-defense for any acts which might be torture.