TORTURE MEMORANDUM: SUMMARY

Section 2340A
- Proscribes acts inflicting, and that are specifically intended to inflict,
severe pain or suffering, whether mental or physical
- Must be of an extreme nature to rise to the level of torture within the
meaning of this
- Certain acts may be cruel, inhuman, degrading but still not produce
pain and suffering of the intensity to fall within its proscription
- Other acts not included in enumeration are not within the statutory
prohibition (Expressio unius est exclusion alterius)
Text and History
- To be defined in the statue, it must inflict pain that is difficult to endure
- Pain must be equivalent intensity to the pain accompanying serious
physical injury (organ failure, impairment of bodily function, or death)
- Purely mental pain/suffering must result to in significant psychological
harm of significant duration (lasting months/years)
- Mental harm must result from: threats of imminent death, threats of
infliction
- PLAIN THAT IT PROHIBITS ONLY EXTREME ACTS
I. Section 2340A
- Makes it a criminal offense for any person outside the U.S. to commit
or attempt to commit torture
- Torture: an act committed by a person acting under the 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.
- To convict a defendant, prosecution MUST establish
1. Torture occurred outside US
2. Defendant acted under color of law
3. Victim was within defendants custody/physical control
4. Defendant specifically intended to cause severe physical
or mental pain or suffering
5. Act inflicted severe physical or mental pain/suffering, and
suffering, and be intended to cause severe pain and
suffering
A. SPECIFIC INTENT
- Intention to achieve forbidden act
- Express purpose to disobey the law
- Must be precise objective
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Good faith negates specific intent

B. SEVERE PAIN OR SUFFERING

- Key statutory phrase
- Per se insufficient to amount to torture
- Must be SEVERE to fall under torture
- Severe: Unsparing in exaction, punishment or censure, or
inflicting discomfort or pain hard to endure; sharp; afflictive;
distressing; violent; extreme; as severe pain, anguish, torture.
Conveys that the pain/suffering must be of such a high level of
intensity that the pain is difficult for subject to endure
- Severe pain: Such damage may rise to the level of death,
organ failure, or the permanent impairment of a significant body
function. Associated with a sufficiently physical condition or
injury such as death, organ failure, or serious impairment of
body functionsin order to constitute torture.
C. SEVERE MENTAL PAIN OR SUFFERING
- Definition: 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/personality
c) Threat of imminent death
d) Treat that another person will imminently be subjected to
death, severe physical pain/suffering
1) PROLONGED MENTAL HARM
a. E.g. Post-traumatic stress disorder, chronic depression
b. Must be cause by/result from one of the acts listed in the
statute
c. Must have been specifically intended; good faith is a
defense
2) HARM CAUSE BY/RESULTING FROM PREDICATE ACTS
a. Intentional infliction or threatened infliction of severe
physical pain or suffering
b. Administration or application or threatened administration
or application of mind-altering substances or other
procedures calculated to disrupt profoundly the senses or
the personality
i. Shows that the use of such substances must also
cause a profound disruption of the senses or
personality (can be drugs OR procedures)
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ii. OTHER signals that the words to which it

attaches are of the same kind, type or class as the
more specific item previously listed
iii. Drugs and procedures must produce EXTREME
EFFECT
iv. Disruption of senses must be PROFOUND
penetrate to the CORE of an individuals ability to
perceive the world around him
v. *If you watch Stranger Things yung ginawa kay
Eleven
c. Threatening a prisoner with imminent death
i. E.g. mock executions
ii. Existence of threat
3) LEGISLATIVE HISTORY
4) SUMMARY
II. UN Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (CAT)
CAT defines torture as: (see page 16)
-

at the farthest end of impermissible actions

distinct and separate from the lower level of cruel, inhuman or
degrading treatment or punishment
extreme end of the spectrum

Reagan: rough treatment as generally falls into the category of police brutality,
while deplorable, does not amount to torture
Bush: INTENTIONAL, EXTEREME ACTS
Torture is understood to be that barbaric cruelty which lies at the top of the
pyramid of human rights misconduct
Constitution as the baseline for determining whether conduct amounted to cruel
inhuman degrading treatment or punishment
NEGOTIATING HISTORY
- Harm sustained need not be permanent
- Rejected proposal to include CATs definition of torture the use
of truth drugs (where no physical harm/mental suffering was
apparent
III. US Judicial Interpretation
Torture Victims Protection Act (TVPA)
- Similar definition with 2340
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However contains illustrative list of purposes for which such

pain may have been inflicted
Arising only from or inherent in

Vuckovic
1. Single incident can constitute torture
2. Courts may be willing to find that a wide range of physical pain can
rise to the necessary level of severe pain or suffering
IV. International Decisions
A. European Court of Human Rights
- prohibits torture (no definition), cruel, inhuman or degrading
treatment or punishment
- Torture is a grave act beyond cruel, inhuman (by barring
both)
- Difference in intensity of suffering inflicted
B. Isareli Supreme Court
- Same as EU, both have recognized a wide array of acts that
constitute cruel, inhuman or degrading treatment/punishment,
but do not amount to torture
- They appear to permit, under intl law, an aggressive
interpretation as to what amounts to torture, leaving that label to
be applied only where EXTREME CIRCUMSTANCES exist
V. Presidents Commander-in-Chief Power
Statute would be unconstitutional if it impermissibly encroached on the
Presidents constitutional power to conduct a military campaign.
President has constitutional authority to order interrogations to gain
intelligence information.
A. Al Qaeda
9/11 attacks
Needed to interrogate to prevent further attacks on civilians
B. Interpretation to Avoid Constitutional Problems
- President enjoys complete discretion in the exercise of his
Commander-in-Chief authority / conducting operations against
hostile forces
- Statutes are to be construed in a manner that avoids
constitutional difficulties so long as a reasonable
alternative construction is available
o This canon of construction applies especially where an act of
Congress could be read to encroach upon powers
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constitutionally committed to a coordinate branch of

government
2340A must be construed as not applying to interrogations
undertaken pursuant to Presidents Commander-in-Chief
authority

C. The Commander-in-Chief Power

- Department of Justice could not enforce 2340A against federal
officials acting pursuant to the Presidents constitutional
authority to wage a military campaign
- Application of federal criminal laws to activity that is authorized
pursuant to one of the Presidents constitutional powers should
be rejected
- There can be no limitation to this authority, which is to provide
for the defense and protection of the community, in any matter
essential to its efficacy
- One of the core functions is capturing, detaining and
interrogating members of the enemy
- Only successful interrogations can provide information
necessary to prevent the success of cover terrorist attacks
- Congress can no more interfere with the Presidents conduct of
the interrogation of enemy combatants than it can dictate
strategic or tactical decisions on the battlefield
VI. Defenses
The ban on torture is limited to only the most extreme forms of physical
and mental harm.
2340A when applied to interrogations ordered by the President pursuant
to CIC Power is unconstitutional

A. Necessity
State of necessity could be raised to an allegation of 2340A violation.
Necessity of defense could be maintained as a response to an allegation
of 2340A violation (in relation to Al Qaeda)
This defense is only available in situations wherein the legislature has not
itself, in its criminal statute, made a determination of values. Thus, if Congress
explicitly has made clear that violation of a statute cannot be outweighed by the
harm avoided, courts cannot recognize the necessity defense.
B. Self-defense
Defendant can raise a claim of self-defense.
Doctrine permits the use of force to prevent harm to another person.
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Elements:
1. Requires that the use of force be necessary to avoid the danger of
unlawful bodily harm
2. Requires that the defendants belief in the necessity of using force be
reasonable.
3. Defender must reasonably believe that the unlawful violence is
imminent before he can use force in his defense.
4. Amount of force should be proportional to threat
The threat of an impending terrorist attack threatens lives of thousands.
Whether such a defense will be upheld depends on the specific context within
which the interrogation decision is made.
Defendant could claim that he was fulfilling the Executive Branchs
authority to protect the federal government and the nation from attack.
The Nations right to self-defense has been triggered by the events of
September 11.
CONCLUSION
Torture as defined in and proscribed by Sections 2340-2340A covers only
extreme acts. Severe pain is generally the kind difficult for the victim to endure.
Physical: must be of an intensity akin to that which accompanies serious
physical injury: death/organ failure
Mental: requires suffering not just at moment of infliction but also requires
lasting psychological harm (e.g. post-traumatic stress disorder)
Must be extreme: there is significant range of acts that though might
constitute cruel, inhuman, degrading treatment/punishment fail to rise to the
level of torture.
The circumstances of the current war against Al Queda and its allies may
bar the application of 2340A to interrogations undertaken pursuant to the
Presidents CIC powers because of unconstitutionality.
Even if an interrogation method might violate 2340A, necessity or selfdefense are valid justifications that could eliminate criminal liability.

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