The Torture Papers: The Road to Abu Ghraib, edited by Karen

Your relationship with government is simple: government knows everything about you, and you know nothing about government. In practice this means government can do whatever it wants to you before you know it's going to happen. Government policy makers think this is a good way of ensuring citizen compliance. Thus, all of these investigations are retrospective -- they look back at the squirrely shit that government has pulled, and occasionally wring their hands about trying to avoid it happening in the future. Not inspiring reading, but necessary if you are to face the cold reality that Big Brother is more than watching.

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:17 pm

PART 1 OF 2

MEMO __

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

April 8, 2002

MEMORANDUM FOR DANIEL J. BRYANT
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS
From: Patrick Philbin
Deputy Assistant Attorney General

Re: Swift Justice Authorization Act

This memorandum sets forth the views of the Office of Legal Counsel with regard to legislation proposed by Senator Patrick Leahy, entitled the Swift Justice Authorization Act ("SJAA"). The proposed legislation purports to vest the President with limited authority to order our Armed Forces to detain certain individuals involved in terrorist acts and to establish military commissions to try those individuals for violations of the laws of war. It also specifies procedural requirements that such military tribunals must meet.

As you know, the President has already contemplated seizing individuals involved in terrorist attacks and trying them by military commission under his Military Order of November 13, 2001. See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13,2001). That Order expressly relies on, among other things, the President's constitutional authority as Commander in Chief and Congress's September 15, 2001 joint resolution authorizing the use of military force. See Authorization for Use of Military Force, Pub. L. No. 107-40,115 Stat. 224 (2001).

The legislation suffers from a number of serious constitutional defects. First, the President's authority as Commander in Chief under Article II of the Constitution to engage the Armed Forces in hostile military operations includes the power both to detain enemy combatants and to convene military commissions to punish violators of the laws of war. Legislation expressly granting the President such powers is constitutionally unnecessary. The fundamental premise underpinning the first substantive objective of the legislation-namely, "authorizing" the President to convene military commissions-is thus mistaken. And to the extent the legislation, by purporting to authorize the President to convene commissions, maybe taken to suggest that the President could not act without such authorization, it raises a serious constitutional issue because it would impermissibly encroach on the President's powers as Commander in Chief.

Second, Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his constitutional authority as Commander in Chief to control the conduct of military operations during the course of a campaign. Congress cannot constitutionally restrict the President's authority to detain enemy combatants or to establish military commissions to enforce the laws of war. Indeed, Congress may no more regulate the President's ability to convene military commissions or to seize enemy belligerents than it may regulate his ability to direct troop movements on the battlefield. Accordingly, to the extent that the legislation purports to restrain the President's ability to exercise his core constitutional powers as Commander in Chief, it encroaches on authority committed by the Constitution solely to the Executive Branch and thus violates fundamental principles of separation of powers. Although the bill cites four provisions of Article I, Section 8 as sources of constitutional authority, none of those provisions authorizes Congress to encroach upon the President's constitutional power as Commander in Chief by restricting the President's ability to detain enemy combatants and to establish military commissions.

Finally, the bill states that it would provide a "clear and unambiguous legal foundation" for military tribunals. SJAA § 2(11). Again, such a foundation already exists in the Commander in Chief Clause of Article II and section 821 of title 10. As a result, it seems more likely that the legislation would confuse the legal framework for military commissions and open the door to meritless but nonetheless disruptive litigation.

Background

The proposed legislation recites that "[m]ilitary trials of certain terrorists are appropriate." SJAA § 2(9). It then proceeds from the initial premise, expressly stated in section 2, that "Congressional approval is necessary for the creation of extraordinary tribunals ... to adjudicate and punish offenses arising from the September 11, 2001 attacks against the United States and to provide clear and unambiguous legal foundation for such trials." Id. § 2(11).

Section 3 of the bill provides that the "President is hereby authorized to establish tribunals" to try persons for "violations of the law of war, including international laws of armed conflict and crimes against humanity." Id. § 3(a), (b). Section 4 sets out a lengthy list of procedural requirements that must apply in such tribunals including, inter alia, a right to counsel for the accused, a right for the accused not to be compelled to testify, and a right "at a minimum" to review by the "United States Court of Military Appeals."1

Section 5 establishes certain standards to govern detention of" persons who are not U.S. persons and are members of Al Qaeda, or of other terrorist organizations that planned, authorized, committed, or aided in the September I1 attacks or that harbored persons involved in those attacks." Id. § 5(a). It provides that "[t]he President may direct the Secretary of Defense to detain" such a person "upon a determination by a U.S. District Court that the person falls within the class described in this section." Id. Any determination to detain a person under the section "shall be appealable to the D.C. Circuit." Id. § 5(d).

The provisions of the bill would expire on December 31, 2005. See id. § 8.

Analysis

I.


The proposed legislation is premised on the express assumption that "Congressional approval is necessary" in order for the President to establish military commissions. SJAA § 2, cl. 11. A primary purpose of the legislation, therefore, appears to be providing such congressional authorization. The first operative clause of the statute provides that "[t]he President is hereby authorized to establish tribunals" to try violations of the law of war. Id. § 3(a). This purported authorization, however, reflects a mistaken premise of constitutional law. No statutory authorization is necessary for the President to convene military commissions because the President's constitutional power as Commander in Chief includes the authority to convene military commissions without any legislation from Congress. Indeed, the operative premise of the bill is particularly flawed because - even putting to one side the error of constitutional law - congressional authorization for military commissions already exists in section 821 of title 10.

A.

Article II of the Constitution vests the entirety of the "executive Power" of the United States government "in a President of the United States of America, "and expressly provides that "[t]he President shall be Commander in Chief of the Army and Navy of the United States." U.S. Const. art. 11, § 1, cl. 1; id. § 2, cl. 1. Because both "[t]he executive power and the command of the military and naval forces is vested in the President," the Supreme Court has unanimously stated that it is "the President alone[] who is constitutionally invested with the entire charge of hostile operations." Hamilton v. Dillin, 88 U.S. (21 Wall.) 73,87 (1874) (emphasis added). As Commander in Chief, the President possesses the full powers necessary to prosecute successfully a military campaign. As the Supreme Court has recognized, "[t]he first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of4he United States. And, of course, grant of war power includes all that is necessary and proper for carrying these powers into execution." Johnson v. Eisentrager, 339 U.S. 763, 788 (1950) (citation omitted). See also John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Calif. L. Rev. 167,252-54 (1996) (concluding that the "Commander in Chief' power was understood in Anglo-American constitutional thought as incorporating the fullest possible range of power available to a military commander). The measures to be taken in conducting a military campaign are up to the President alone to determine. The nature of a military threat and the character of the response it requires "is a question to be decided by him... 'He must determine what degree of force the crisis demands."' The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862).

The broad Commander-in-Chief power includes not only the power to direct the Armed Forces in battle, but also - as a necessary adjunct to the military campaign - the authority to detain enemy combatants and to try them by military commissions for violations of the laws of war. At the time of the Founding it was well understood that one of the powers of a military commander included authority to subject members of enemy forces to trial and punishment for violations of the law of war. General George Washington exercised that authority during the Revolutionary War by convening aboard of officers to try the British Major Andreas a spy in 1780, and British officers throughout the colonial period exercised a similar authority.

Today there is ample evidence from all three branches of the government that the power to convene military commissions is properly understood as part of the Commander-in-Chief power of the President.

Throughout the Nation's history, as a matter of practical implementation of constitutional powers, Presidents (and subordinate military commanders acting under the President's authority) have convened commissions based solely on the President's authority as Commander in Chief. It is well settled that on issues concerning the respective powers of the different branches of government, consistent governmental practice can play an important role in establishing the constitutional bounds of each branch's authority. As the Supreme Court has explained, "'a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress but never before questioned ... maybe treated as a gloss on "Executive Power" vested in the President by § 1 of Art. II. "' Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring)).2

In the case of military commissions, the historical record demonstrates that they have regularly been established under authority of the executive branch without any authorization from Congress. Andrew Jackson, for example, convened military commissions in 1818 in the war with the Creek Indians, and as one commentator has explained, he "did not find his authority to convene [these tribunals] in the statutory law, but in the laws of war." William E. Birkhimer, Military Government and Martial Law 353 (3d ed. 1914). See also George B. Davis, A Treatise on the Military Law of the United States 308 (1913) ("authority [of military commissions] is derived from the law of war"). In other words, there was no legislation authorizing the action. Rather, under the laws and usages of war it was deemed part of the traditional authority of a military commander. And as noted above, by making the President Commander in Chief the Framers intended to convey to the Executive all such authority of a commander under established usages of war. Similarly, in the Mexican-American War in 1847-48, in the early years of the Civil War, and in the Indian wars of the 1870s, military commissions were convened based solely on the authority of the President, without any sanction from Congress. See generally Ex parte Quirin,317U.S. 1, 31-32 & nn.9 & 10 (1942) (cataloging the "practice of our own military authorities before the adoption of the Constitution, and during the Mexican and Civil Wars"); see also The Modoc Indian Prisoners, 14 Op. Att'y Gen. 249 (1873 ). In the Civil War, for example, military commissions were convened as early as 1861, see, e.g., Davis, supra, at 308 n.2, but were not even mentioned in legislation until 1863, see Act of March 3,1863, § 30,12 Stat. 731, 736. This consistent practice is well documented in the leading treatises on American military law, and demonstrates that "[m]ilitary commissions maybe appointed ... under that clause of the Constitution vesting the power of commander-in-chief in the President." Berkhimer, supra, at 357. Cf. William Winthrop, Military Law and Precedents 57 (2d ed. 1920) (the "President is invested with a general and discretionary power to order statutory courts-martial for the army, by virtue of his constitutional capacity as Commander-in-chief independently of any article of war or other legislation of Congress") (emphasis original).

In keeping with this longstanding practice, the Executive Branch has consistently recognized that the use of military commissions is no less a part of the powers of a commander-and thus no less a constitutional exercise of the Commander-in-Chief power-than the conduct of a battle itself As Attorney General Speed explained at the close of the Civil War, "[t]he commander of an army in time of war has the same power to organize military tribunals and execute their judgments that he has to set his squadrons in the field and fight battles. His authority in each case is from the law and usage of war." Military Commissions, 11 Op. Att'y Gen. 297, 305 (1865). William Whiting, the legal adviser to the War Department during the Civil War, similarly observed that "military commissions ... were instituted under the general war power of the Commander-in-Chief, - a power which was fully conceded by the Supreme Court of the United States, - not under the authority of Congress." William Whiting, War Powers under the Constitution of the United States 282 (1864). They "constitute usual and necessary parts of the machinery of warfare, and are the essential instruments of that military government by which alone the permanency of conquest can be secured." Id. at 283.

Such commissions serve a particularly military function in controlling the conduct of a military campaign. They are the tool a commander can use to punish, and thereby deter, enemy violations of the laws that regulate the means of waging war. Thus, they are an integral part of the mechanisms a commander has at his disposal for bringing pressure to bear on the enemy and for shaping enemy behavior in the course of a conflict. As Justice Douglas observed, trials for war crimes are "a furtherance of the hostilities directed to a dilution of enemy power and involving retribution for wrongs done." Hirotav. MacArthur, 338 U.S. 197, 208 (1948) (Douglas, J., concurring). For example, an enemy's use of a particular weapon that maybe deemed illegal under relevant conventions may threaten the success of military operations or may threaten to fatally undermine the morale of troops subjected to the illegal attacks. A swift imposition of penalties on captured members of the enemy forces for use of the weapon may deter like conduct in the future and thus return the means of pursuing the conflict to terms more favorable to the commander. Likewise, the failure of enemy combatants to respect the distinction between civilians and military in their conduct of hostilities-for example, by using civilians and otherwise protected civilian structures (such as churches or mosques) to shield their troops and military equipment, or by targeting our civilians and civilian facilities for the use of force (as was done on September 11)-could also have effects on morale and frustrate our ability to minimize civilian casualties and focus our military campaign on actual combatants. The use of military commissions to punish such actions as violations of the laws of war would enhance our capacity to wage war effectively and to minimize civilian casualties by forcing enemy combatants to adhere to the strict distinction between civilians and combatants. Determining when and how such violations should be dealt with in a manner that best supports the overall conduct of a campaign requires assessment of numerous factors including the threat that the enemy conduct poses to the success of operations in the theater, the personnel and resources that can be spared for conducting war crimes trials, and the likelihood that pursuing such trials will have a beneficial result. All such decisions are quintessentially matters for the person charged with the conduct of military operations, which under the Constitution is the President in his role as Commander in Chief.

The Supreme Court has also acknowledged that the use of military commissions is fundamentally apart of prosecuting a military campaign. And although the Court has not expressly resolved the question, its reasoning in addressing military commissions strongly suggests that the authority for their creation must be found in the President's power as Chief Executive and Commander in Chief. During World War II, for example, the Court unanimously held that "[a]n important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." Quirin, 317 U.S. at 28-29; see also Application of Yamashita, 327 U.S. 1, 11 (1946) (same). Indeed, the Court even recognized that "[t]he trial and punishment of enemy combatants who have committed violations of the law of war" is "a part of the conduct of war operating as a preventive measure against such violations." Yamashita, 327 U.S. at 11 (emphasis added). See also id. at 12 (the "war power, from which the commission derives its existence, is not limited to victories in the field," but also extends to convening military commissions). The power to use commissions as a mechanism for deterring enemy conduct properly belongs to the President as Commander in Chief. As Justice Douglas recognized, the President's power as Commander in Chief "is vastly greater than that of troop commander. He not only has full power to repel and defeat the enemy; he has the power to occupy the conquered country, and to punish those enemies who violated the law of war." Hirota, 338 U.S. at 208 (Douglas, J., concurring) (citation omitted). In Justice Douglas's view, this power properly extended even to trying enemy prisoners before an international tribunal created solely by the Executive through agreement with allies without any sanction from Congress- a power that would include a fortiori the ability to convene American military commissions. As Justice Douglas put it: "[T]he capture and control of those who were responsible for the Pearl Harbor incident was a political question on which the President as Commander-in- Chief, and as spokesman for the nation in foreign affairs, had the final say." Id. at 215 (emphasis added).

It is true that in Quirin, the Court reserved the question whether the President, acting solely under his own constitutional authority and without congressional authorization, could convene military commissions for trying violations of the law of war. See 317 U.S. at 29. But at the same time, as the passages noted above make clear, the Court recognized that the military commission is a mechanism that is an integral part of the conduct of military operations in war, the complete control over which the Constitution assigns to the President as Commander in Chief. See also Hirota, 338 U.S. at 208 (Douglas, J., concurring) (noting that the creation of war crimes tribunals "is a furtherance of the hostilities directed to a dilution of enemy power and involving retribution for wrongs done'). The Court, moreover, indicated that serious questions would be raised if military commissions were treated as anything other than creatures of the President's authority as Commander in Chief, as it pointedly declined to address the question "whether Congress may restrict the power of the Commander in Chi of to deal with enemy belligerents" by imposing procedures for military commissions. Quirin, 317 U.S. at 47. Indeed, the President's plenary authority over enemy belligerents in an armed conflict is sufficiently great that the Court even reserved the question "whether the President is compelled by the Articles of War to afford unlawful enemy belligerents a trial before subjecting them to disciplinary measures." Id.

In its subsequent decision in Yamashita, the Court even more clearly suggested that military commissions could be convened by the President without reliance on authorization from Congress. In responding to claims that the commission at issue there had failed to adhere to procedures required by the Articles of War, the Court made clear that commissions convened to try enemy belligerents for violations of the law of war were not subject to those provisions at all. The Court explained that such a commission, "though sanctioned, and its jurisdiction saved, by Article 15, was not convened by virtue of the Articles of War, but pursuant to the common law of war." Yamashita, 327 U.S. at 20 (emphasis added). In other words, the authority for convening the commission did not derive from statute (the Articles of War), but from the traditional powers of the military commander-which the Constitution explicitly assigns to the President. Thus, while the Court may not have resolved the issue explicitly, its reasoning in cases such as Quirin and Yamashita plainly suggests that the authority to convene military commissions for trying violations of the law of war falls within the President's constitutional powers.

The Court has expressly held, moreover, that the President has the authority as Commander in Chief, without any sanction or authorization from Congress, to establish military commissions and other military tribunals to administer the law in occupied territory. In Santiago v. Nogueras, 214 U.S. 260 (1909), for example, the Court addressed the "provisional court" in Puerto Rico "established by military authority, with the approval of the President," id. at 264, during the occupation immediately following the Spanish-American War. The Court rejected the claim that "the military power, acting by the authority of the President as Commander in Chief, does not warrant the creation of the United States provisional court" and upheld the President's power to create the court. Id. at 265. See also Mechanics' & Traders 'Bank v. Union Bank, 89 U.S. (22 Wall.) 276,296 (1874) (stating, of military courts established in occupied territory in the South after the Civil War, that "though these courts and this judicial system were established by the military authority of the United States, without any legislation of Congress, this court ruled that they were lawfully established"); The Grapeshot, 76 U.S. (9 Wall.) 129,132 (1869) (stating that creation of provisional court in Louisiana "was a military duty, to be performed by the President as commander-in- chief'); Leitensdorfer v. Webb, 61 U.S. (20 How.) 176 (1857). See also United States v. Tiede, 86 F.R.D. 227,237 (U.S. Ct. Berlin 1979) ("As a matter of United States law, [the United States occupation court of Berlin] is a court established pursuant to the powers granted to the President by Article II of the United States Constitution."). If the President's inherent power as Commander in Chief extends to the creation of military commissions as occupation courts, there is no logical reason to conclude that it does not equally extend to the creation of military commissions as courts for enforcing the laws of war. If anything, the latter function is more inextricably involved in the President's role as military commander in supervising the actual conduct of hostilities.

Lastly, the Legislative Branch has also previously acknowledged that the President has independent authority to create military commissions without the aid of enabling legislation. As explained above, in numerous instances throughout the Nation's history Presidents exercised the authority to convene commissions absent any legislation, a practice that to our knowledge has never been contested by Congress. Moreover, at the beginning of the 20th century when Congress expanded the statutory jurisdiction of courts martial to reach violations of the law of war, it expressly acknowledged and left unimpaired the President's preexisting authority to convene military commissions to try the same offenses. In 1916, a new Article 15 was introduced into the Articles of War and provided that "[t]he provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions ... of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions." Act of August 29, 1916, 39 Stat. 619, 653. The provision was phrased as a form of savings clause. It did not create military commissions, nor did it purport to confer jurisdiction upon them. Rather, it assumed their existence entirely apart from any statute and provided merely that the expansion of court martial jurisdiction did not "depriv[e]" commissions of their jurisdiction.

The Supreme Court, indeed, has explained that this provision demonstrates a congressional recognition of a preexisting authority in the Executive to convene military commissions to try violations of the laws of war. Thus, the Court has held that, by enacting Article 15,Congress "recognized the 'military commission' appointed by military command, as it had previously existed in United States Army practice, as an appropriate tribunal for the trial and punishment of offenses against the law of war." Yamashita, 327 U.S. at 7 (emphasis added). Similarly, the Court noted that Article 15 "incorporated, by reference, as within the preexisting jurisdiction of military commissions created by appropriate military command, all offenses which are defined as such by the law of war .... By thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants unimpaired ... Congress gave sanction ... to any use of the military commission contemplated by the common law of war." Id. at 7-8, 20 (emphases added).3 The Court has also explained that the testimony of Judge Advocate General Crowder in the legislative history preceding the enactment of Article 15 is "authoritative" concerning the provision's meaning. Madsen v. Kinsella, 343 U.S. 341, 353(1952). In proposing the adoption of Article 15, General Crowder explained to Congress that the military commission is a common law tribunal that "has no statutory existence, though it is recognized by statute law," and that the purpose of Article 15 was to "save[] to these war courts the jurisdiction they now have and make[] it a concurrent jurisdiction with courts-martial." S. Rep. No. 64-130, at 40 (1916).4

The same statutory language recognizing the pre-existing authority to convene military commissions under the common law of war is still preserved in Article 21 of the Uniform Code of Military Justice, 10 U.S.C. § 821 (2000), which is simply a recodification of the former Article 15 of the Articles of War. See Madsen, 343 U.S. at 351 n.17 ("Article of War 15 ... was again reenacted May 5, 1950, as the present Article 21 of the Uniform Code of Military Justice.").

The proposed legislation purporting to authorize the President to convene military commissions thus proceeds from a flawed premise to the extent it suggests that the President cannot act without such authorization. No statutory approval is necessary because the President possesses constitutional power under the Commander-in-Chief Clause to establish such tribunals himself, and presidents have exercised that authority throughout the nation's history.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:18 pm

PART 2 OF 2

B.

The recodification of former Article 15 of the Articles of\Var as Article 21 of the current UCMJ also highlights another flaw in the fundamental premise underpinning this legislation. Even putting to one side the fact that as a matter of constitutional law there is no need for congressional authorization for military commissions, the proposed legislation is unnecessary because 10 U.S.C. § 821 already provides congressional approval for such commissions. As is apparent from the passages quoted above, the Supreme Court has authoritatively interpreted section 821 as both a recognition of the pre-existing jurisdiction of military commissions and as an express sanction for continued exercise of that jurisdiction. The Court has thus stated that, by the same language that is currently codified in section 821, Congress has given "sanction ... to any use of the military commission contemplated by the common law of war." Yamashita, 327 U.S. at 20. Similarly, the Court has explained that "[b ]y the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war." Quirin, 317 U.S. at 28. The Supreme Court's interpretation of this language is definitive.5

Thus, as a mechanism for "authorizing" military commissions, the proposed legislation is redundant. As a result, it misstates the law to suggest that this legislation is legally necessary to support the President's Military Order.

II.

The proposed legislation suffers from further flaws in that it purports to circumscribe the President's authority to detain enemies suspected of war crimes and to establish military commissions to try them for violations of the law of war. To the extent that the legislation is intended to suggest that the President may operate only within the confines of the legislation, it is unconstitutional as an encroachment on the President's powers as Commander in Chief. We are aware of no other legislation that similarly attempts to interfere in the manner in which the Commander in Chief deals with enemy combatants.

The President's Article]] authority as Commander in Chief includes, as demonstrated above, the power to detain enemy combatants and to establish military commissions to punish violations of the law of war. As explained in Part A below, fundamental principles of separation of powers forbid Congress from interfering with the President's exercise of his core constitutionally assigned duties, absent "exceptions and qualifications... expressed" in Article I. Myers v. United States, 272 U.S. 52, 139 (1926). Indeed, the structure of the Constitution demonstrates that any ambiguity in the allocation of a power that is executive in nature, such as the prosecution of war, must be resolved in favor of the Executive Branch. Article II, Section 1 of the Constitution states broadly that “the executive Power shall be vested in a President of the United States of America." It thus assigns the President an unenumerated "executive Power." U.S. Const. art. II, § 1. By contrast, Article I's Vesting Clause limits Congress to those "legislative Powers herein granted." U.S. Const. art. I, § 1(emphasis added). Article I thus limits Congress to the specific powers identified in the text of the Constitution. Article II, in contrast, vests the President with the entire executive power of the government without limitation, and the subsequent enumeration of executive powers within Article II should be understood as an illustration of some of those powers, but not an exhaustive catalogue of the President's authorities. As Alexander Hamilton wrote, Article II "ought ... to be considered as intended.. . to specify and regulate the principal articles implied in the definition of Executive Power, leaving the rest to flow from the general grant of that power." Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton 33,39 (Harold C. Syrett et al. eds., 1969)6

As explained in Part B, nothing in Article I vests in Congress the authority to restrict the President's ability to prosecute war successfully by detaining enemy combatants and establishing military commissions.

A.

The constitutional principle of separation of powers forbids one branch of government from usurping or controlling the exercise of powers assigned by the Constitution to another branch. As the Supreme Court has explained, the "Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." INS v. Chadha, 462 U.S. 919, 951 (1983). The structural separation of roles in the Constitution means that Congress may not "intrude[] into the executive function" by arrogating to itself control over duties assigned to the Executive. Boxsher v. Synar, 478 U.S. 714, 734 (1986). This prohibition on congressional encroachment is especially strict with respect to the President's express constitutional powers under Article II. See, e.g., Schick v. Reed, 419 U.S. 256 (1974) (addressing the pardon power). As Justice Kennedy has observed, "where the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch." Public Citizen v. United States Dept of Justice, 491 U.S. 440, 485 (1989) (Kennedy, J., concurring). See also id. at 486 ("Where a power has been committed to a particular Branch of the Government in the text of the Constitution, the balance already has been struck by the Constitution itself. It is improper for this Court to arrogate to itself the power to adjust a balance settled by the explicit terms of the Constitution.').

Accordingly, the Supreme Court has protected the express constitutional prerogatives of the executive from impairment by Congress on a number of occasions. For example, because the President's pardon power, U.S. Const. art. II, § 2, cl. 1, "flows from the Constitution alone, not from any legislative enactments," the Court has held that that power "cannot be modified, abridged, or diminished by the Congress." Schick v. Reed, 419 U.S. at 266. See also United States v. Klein, 80 U.S. (13 Wall.) 128, 148 (1871) ("[T]he legislature cannot change the effect of... a pardon anymore than the executive can change a law."). The President's constitutional duty to "take Care that the Laws be faithfully executed," U.S. Const. art. II, § 3, similarly vests him with a broad range Of Prosecutorial discretion with which Congress may not interfere. See Buckley v. Valeo, 424 U.S. 1,138 (1976) ("A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to 'take Care that the Laws be faithfully executed."'); Springer v. Philippine Islands, 277 U.S.189, 189,202 (1928) ("Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions."); Fletcher v. Peck, 10 U.S. (6 Cranch) 87,136 (1810) ("It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.').7

Particularly where the Constitution expressly assigns a duty to the Executive, the Supreme Court has recognized grave constitutional flaws with attempts by Congress to effect encroachments upon subjects within the Executive's control. In Public Citizen v. United States Department of Justice, for example, the Court concluded that there would be "formidable constitutional difficulties" with applying the Federal Advisory Committee Act ("FACA") to the American Bar Association's ("ABA") former practice of advising the President with respect to judicial nominations. 491 U.S. at 466. FACA merely regulates the manner in which executive branch officials obtain information from private individuals and organizations. Nevertheless, the Court concluded that applying FACA to the ABA might "infringe[] unduly on the President's Article II power to nominate federal judges" and thereby "violate[] the doctrine of separation of powers." Id.; see also id. at 488-89 (Kennedy, J., concurring) ("The mere fact that FACA would regulate so as to interfere with the manner in which the President obtains information necessary to discharge his duty assigned under the Constitution to nominate federal judges is enough to invalidate the Act.").

These principles apply with equal if not greater force with regard to the President's express constitutional war powers as Commander in Chief. As the Supreme Court has made clear, by virtue of the Commander-in-Chief Clause, it is "the President alone[] who is constitutionally invested with the entire charge of hostile operations." Hamilton, 88 U.S. at 87. As explained above, military commissions are an instrumental ity of the commander used in carrying out military operations against enemy forces. They are "[a]n important incident to the conduct of war," Quirin, 317 U.S. at 28-29, and "operat[e] as a preventive measure against" violations of the law of war, Yamashita, 327 U.S. at 11.

The proposed legislation thus would unconstitutionally infringe on the President's powers as Commander in Chief in at least two ways. First, it would dictate the procedures for military commissions and impose- in some instances -requirements that have never before applied to military commissions as convened in the past under the President's authority. Precisely because commissions are an instrument used as part and parcel of the conduct of a military campaign, congressional attempts to dictate their precise modes of operation interfere with the means of conducting warfare no less than if Congress were to attempt to dictate the tactics to be used in an engagement against hostile forces. As explained above, the Supreme Court has indicated that such efforts to impose congressional control in this field would raise grave constitutional questions, as the Court has pointedly declined to decide whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents" by imposing procedures for military commissions. Quirin, 317 U.S. at 47. It bears noting, moreover, that in over 225 years, Congress has never before attempted to dictate the procedures used by military commissions to try enemy combatants. To the contrary, as the Supreme Court has made clear, the purpose of the provision now codified in 10 U.S.C. § 821 was to preserve "unimpaired" the jurisdiction of military commissions, Yamashita, 327 U.S. at 20, and to give "sanction" to the existing practice of convening commissions under military command "without qualification as to the exercise of this authority so long as a state of war exists," id. at 11-12 (emphasis added). Thus, the statutory provisions currently addressing military commissions "left the control over the procedure in such a case where it had previously been, with the military command." Id. at 20. As the Supreme Court has noted in another context, an "utter lack of statutes" over the course of American history "suggests an assumed absence of such power." Printz v. United States, 521 U.S. 898,907-08 (1997).8

Second, beyond regulating the procedures for military commissions, the legislation apparently purports to restrict the President's ability even to detain enemy combatants with a view to bringing them before military commissions. Section 5 provides that the President "may direct the Secretary of Defense to detain persons who are not U.S. persons and are members of Al Qaeda ... upon a determination by a U.S. District Court that the person falls within the class described in this section." SJAA § 5(a). Although the bill does not make entirely clear how this provision would operate, it seems to apply even to the detention of persons captured in the midst of the armed conflict in Afghanistan who are suspected of having engaged in terrorist activities with at Qaeda. The bill makes it express, after all, that it addresses treatment of persons "who are apprehended in Afghanistan, fleeing there from, or engaged outside the United States in terrorist activities directed against the United States." Id. § 3(a)(2). If the legislation is intended to apply in this manner, it is a flatly unconstitutional encroachment on the President's powers as Commander in Chief to conduct a military campaign. It is no exaggeration to say that, since time immemorial, it has been an inherent power of a military commander to take prisoners and to detain enemy forces seized in combat. Presidents have exercised this authority in virtually every armed conflict in the Nation's history. See generally Lt. Col. George G. Lewis & Capt. John Mewha, History of Prisoner of War Utilization by the United States Army 1776-1945, Dep't of the Army Pamphlet No. 20-213 (1955); Major General George S. Prugh, Law at War: Vietnam 1964-1973 (Dep't of the Army 1975). The apparent effort in this proposed legislation to require civilian court approval before the Commander in Chief can hold enemy combatants for purposes of pursuing war crimes trials would thus be a wholly unprecedented and unconstitutional effort to interfere with the President's constitutionally assigned powers.

The Supreme Court, indeed, has expressly addressed the encroachment on the President's powers as Commander in Chief that would result from even permitting - far less requiring - a recourse to the courts to review or approve the detention of enemies captured abroad in battle:

It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.


Eisentrager, 339 U.S. at 779. This passage could have been written with the provisions of this bill in mind, and it amply demonstrates the unconstitutional infringement on the President's powers that the bill would effect.

B.

Nor can the restrictions the bill purports to impose on the President be justified by any grant of power to Congress in the Constitution. To be sure, the Constitution does assign Congress certain specific powers that relate to war. Congress has the power to declare war. U.S. Const. art. I, § 8, cl. 11. It can also deprive the Executive Branch of the funds necessary to prosecute war successfully. Id. § 8, cls. 12- 13; id. § 9, cl. 7. But Congress's war-related powers "extend[] to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief." Ex parte Milligan, 71 U.S. (4 Wall.) 2,139 (1866) (Chase, C.J., concurring). Congress thus may not use its express Article I war powers to restrict or regulate directly the President's ability to exercise his constitutional powers as Commander in Chief, absent an express assignment of authority in the Constitution related to a specific matter. As explained below, none of the four provisions of Article I, Section 8 cited in the proposed legislation, see SJAA, § 2(10), authorizes Congress to restrict the President's ability to detain enemy combatants and to bring them for trial before military commissions.

1.

The proposed legislation is plainly not a valid exercise of Congress’s power to "constitute Tribunals inferior to the supreme Court." U.S. Const. art. I, § 8, cl. 9 ("Inferior Tribunals Clause"). For purposes of that clause, it is long settled that the term "Tribunals" includes only certain kinds of courts- namely, only those courts that are established pursuant to Article III of the Constitution. It cannot plausibly be contended that the term "Tribunals" covers every arm of the United States government authorized to conduct proceedings that might be described as judicial in nature. Indeed, the text and structure of the Constitution itself indicate a contrary interpretation. The Inferior Tribunals Clause tracks closely the language in Article III, which provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, § I (emphasis added). Accordingly, it has long been established by decisions of the Supreme Court that Congress's authority under the Inferior Tribunals Clause is limited solely to the establishment of Article III courts. As the Supreme Court explained in Glidden Co. v. Zdanok, 370 U.S. 530 (1962), "[t]he power given Congress in Art. I, § 8, cl. 9, 'To constitute Tribunals inferior to the supreme Court,' plainly relates to the 'inferior Courts' provided for in Art. IN, § 1; it has never been relied on for establishment of any other tribunals." Id. at 543 (emphasis added). See also Freytag v. Commissioner, 501 U.S. 868,902 (1991) (Scalia, J., concurring) (same); 3 Joseph Story, Commentaries on the Constitution of the United States § 1573, at 437 (reprinted 1991) (1833) (Congress's power under the Inferior Tribunals Clause "is but a mere repetition" of its Article III power to ordain and establish inferior courts).

Thus, the Inferior Tribunals Clause has not been relied upon as a source of authority for courts created by Congress other than Article lII courts. In American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511(1828), for example, the Supreme Court held that Congress's power to establish territorial courts is found not in the Inferior Tribunals Clause, but rather in its power under Article IV of the Constitution to "make all needful Rules and Regulations respecting the Territory... belonging to the United States." U.S. Const. art. IV, § 3, cl. 2. The Inferior Tribunals Clause is not the basis on which Congress is authorized to create territorial courts, because they are not courts within the meaning of Article I of the Constitution. See Am. Ins., 26 U.S. at 546 ("territorial Courts" of Florida "are not constitutional Courts, in which the judicial power conferred by the Constitution on the general government, can be deposited," but instead "are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States"); see also Williams v. United States, 289 U.S. 553, 565-66 (1933) (same); Frey-tag, 501 U.S. at 913 (Scalia, J., concurring) (referring to territorial courts as "Article IV courts").

Similarly, Congress's authority to establish local courts for the District of Columbia arises out of its Article I power to "exercise exclusive Legislation in all Cases whatsoever, over such District ... as may . become the Seat of the Government of the United States." U.S. Const. all. I, § 8, cl. 17. See Palmore v. United States, 411 U.S. 389, 398 (1973); Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899). And other so-called "Article I courts "have likewise been created under provisions of Article 1, Section 8 other than the Inferior Tribunals Clause. Congress established the United States Court of Federal Claims (formerly known as the Court of Claims) as "a court established under article I of the Constitution of the United States," 28 U.S.C. § 171, pursuant to its Article I power "to pay the Debts.. . of the United States," U.S. Const. art. I, § 8, c1.1, and not its power under the Inferior Tribunals Clause. See Ex parte Bakelite Corp., 279 U.S. 438,452 (1929) ("The Court of Claims... was created, and has been maintained, as a special tribunal to examine and determine claims for money against the United States. This is a function which belongs primarily to Congress as an incident of its power to pay the debts of the United States.'). Article I courts have also been established to consider certain questions arising out of the customs laws, pursuant to Congress's "Power To lay and collect ... Duties." U.S. Const. art. I, § 8, cl. 1. See, e.g., Bakelite Corp., 279 U.S. at 458 ("The Court of Customs Appeals was created by Congress in virtue of its power to lay and collect duties on imports..."). Likewise, Congress has long established the United States Tax Court as a court of record "under article I of the Constitution of the United States," 26 U.S.C. § 7441, on the basis of its "Power To lay and collect Taxes," U.S. Const. art. I, § 8, cl. 1. See Burns, Sax Friedman & Co., Inc. v. Commissioner, 57 T.C. 392, 394-95 (1971) ("In article 1, section 8, clause 1, Congress is given the power to lay and collect taxes... [and] [i]t was in the exercise of that power that Congress ... created ... the Tax Court of the United States").

As the Supreme Court has unanimously and repeatedly recognized, military commissions are not "courts" established under Article III. See Ex parte Vallandigham, 68 U.S. (1 Wall.) 243, 253 (1863) (military commissions are not' judicial" in the "sense in which judicial power is granted to the courts of the United States'); Quirin, 317 U.S. at 39 ("military tribunals ... are not courts in the sense of the Judiciary Article"). See also Mechanics' & Traders' Bank, 89 U.S. at 295 (holding, in the context of military courts created for the governance of occupied territory, that they are not created under Article UI because that provision "refers only to courts of the United States, which military courts are not"). The power to create military commissions derives from the President's Article II power as Commander in Chief. As the Supreme Court explained in Yamashita, although military commissions have been sanctioned by Congress, they are "not convened by virtue of the Articles of War, but pursuant to the common law of war." 327 U.S. at 20. They are Article II courts, not Article III courts. Accordingly, there is no basis for contending that the Inferior Tribunals Clause empowers Congress to establish or regulate military commissions.

2.

Nor is the legislation a valid exercise of Congress's power to "make Rules concerning Captures on Land and Water." U.S. Const. art. I, § 8, cl. 11("Captures Clause"). That provision has never been applied by the courts or by Congress to captured persons. Rather, it has consistently been understood as pertaining to captured property only.

The roots of the Captures Clause can be traced to Article IX of the Articles of Confederation, which vested in Congress the power "of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated." Articles of Confederation, art. IX, reprinted in Encyclopedia of the American Constitution app. 2, at 2094 (Leonard W. Levy ed., 1986). Read as a unit, this provision vested with the Confederation Congress the power to establish rules governing the circumstances under which wartime "captures" would be adjudged lawful "prizes," to which the captors are entitled at least partial title. This construction is supported by the fact that, during the Revolution, captors could not claim lawful title to captured property until after a prize court had granted it. See generally C. Kevin Marshall, Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars, 64 U. Chi. L. Rev. 953, 963, 974-77 (1997). Article IX therefore could not have been meant to apply to captured enemy soldiers, an interpretation that is bolstered by the fact that persons can neither be "divided" nor "appropriated" as the provision expressly contemplates. Moreover, the term "capture," which is used both in the Articles of Confederation and in the Constitution, is defined by international law as "[t]he taking of property by one belligerent from another or from an offending neutral." I Bouvier's Law Dictionary 422 (Rawle's 3d rev. 1914). Thus, in his exhaustive commentaries on the Constitution, Justice Story noted that Article 1, Section 8, Clause l 1 confers on Congress the power to "authorize the seizure and condemnation of the property of the enemy within, or without the territory of the United States." 3 Story, supra, § 1172, at 64. He made no mention of any authority being vested in Congress over captured persons.

This contextual understanding of the Captures Clause, buttressed by the absence in the historical record of any invocations of the clause by Congress or the courts in support of legislation applying to captured persons, leaves no doubt that Congress's power to "make Rules concerning Captures on Land and Water" applies only to captured property.

3.

The legislation also cites Congress's Article I authority to "define and punish ... Offenses against the Law of Nations" as a basis for restricting the President's authority to punish violators of the laws of war. U.S. Const. art. I, § 8, c1. 10 ("Define and Punish Clause"). But nothing in this generalized grant of authority relating to offenses against the law of nations constitutes a specific grant of power that would permit Congress to interfere with the President's constitutional authority as Commander in Chief to establish, and conduct trials before, military commissions.

The Constitution authorizes Congress "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." U.S. Const. art. 1, § 8, cl. 10.9 As the records of the Philadelphia Constitutional Convention of 1787 make clear, the delegates understood that the purpose of the Clause was simply to correct a particular inadequacy in the power of the national government under the Articles of Confederation. Federal remedies against acts of piracy, felonies on the high seas, and other violations of the laws of nations under the Articles were inadequate. Thus, Edmund Randolph argued in favor of the new provision on the ground that the Articles of Confederation were deficient in that Congress "could not cause infractions of treaties or of the law of nations, to be punished." I Farrand, supra note 10, at 19. As a result, claims based on the law of nations - such as claims of wrongs by ambassadors- were relegated to state courts, not all of which provided any protections. That system also ensured that no stable and consistent federal law was developed. See id. at 25 (statement by Randolph that "[i] f the rights of an ambassador be invaded by any citizen it is only in a few States that any laws exist to punish the offender"). See also 2 Fatrand, supra note 10, at 316 (Aug. 17,1787) (statement of James Madison); see also The Federalist No. 42 (James Madison); 3 Story, supra, §§ 1153,1158, at 52, 56. These defects were to be remedied by the power granted to Congress in the Constitution.

The debates about the Clause, moreover, centered wholly on Congress's power to create federal law defining and criminalizing offenses against the law of nations. They demonstrate that including the power to "punish" offenses was not meant in any way to give Congress a distinct power to interfere with the machinery of enforcement - such as by creating special tribunals. The original phrasing of the provision assigned Congress the power "To declare the law and punishment of piracies and felonies &c." 2 Farrand, supra note 10, 315. That phrasing clearly indicates that the provision was intended to assign Congress nothing more than the ordinary power to set the punishment for violations of criminal laws. The debate that produced the current phrasing of the clause demonstrates that the changes in wording were not intended to alter the substance of the provision at all. Instead, they were prompted largely in response to a concern raised by Edmund Randolph about the "efficacy of the word 'declare."' Id. The same powers to "declare the law and punishment" for offenses against the law of nations were thus conveyed by more active verb forms allowing Congress to "define" and "punish" such offenses. See id. at 316. The change in no way reflected an attempt to give Congress a greater role in the enforcement mechanisms used for addressing such offenses. It bears noting that other provisions of the Constitution that gave Congress powers such as the power to create inferior tribunals to the Supreme Court generated extensive debate. The absence of any similar discussion in relation to the Define and Punish Clause suggests that the Framers did not understand the provision as creating any new power in Congress to create additional tribunals or otherwise to embark on forays into the enforcement of the laws that had been assigned to the Executive.

The records of the Convention certainly in no way suggest that the Framers understood the Define and Punish Clause as having anything to do with empowering Congress to control the Executive Branch's ability to enforce the laws and customs of war during a military campaign. Instead, as noted above, the provision was intended simply to ensure adequate federal enforcement mechanisms for prosecuting violations of the law of nations, such as offenses against ambassadors, diplomats, and other foreign subjects,10 piracy, and felonies on the high seas. Indeed, unlike debates over other Congressional powers under Article I (such as the "declare War" clause, U.S. Const. art. I, § 8, cl. 11), nothing in the convention discussion about the Define and Punish Clause suggests that it was intended to confer a war-related power upon Congress at the expense of the President's power as Commander in Chief.11

Given the express textual commitment of the Commander-in-Chief power to the president, the Constitution should not be read to pen-nit Congress to encroach on the Commander's traditional functions unless there is an equally express assignment of particular functions to Congress. The Framers clearly knew how to make such an assignment of power to the Legislative Branch when it was intended. For example, in the absence of further direction in the Constitution, the authority to establish mechanisms for enforcing discipline within the armed forces would likely have been included in the grant of the Commander-in-Chief power to the President. The Constitution, however, makes it express that Congress has the power "To make Rules for the Government and Regulation of the land and naval Forces." U.S. Const. art. I, § 8, cl. 14.12 Absent an equally express grant of power to Congress over the task of enforcing the laws of war against the enemy, the Constitution should be understood as leaving that function with the Commander in Chief.

It is true that the Supreme Court has pointed to the Define and Punish Clause as the authority for the provision now codified at 10 U.S.C. § 821, which gives congressional sanction, without limitation or restriction, to the President's use of military commissions to enforce the laws of war (which are a part of the "Law of Nations"). See, e.g., Yamashita, 327 U.S. at 7. But that in no way suggests that the Clause provides Congress power to dictate to the President the manner in which he may operate military commissions to enforce the laws of war. The Court has definitively determined that section 821 acknowledges and sanctions the existing practice of convening military commissions under the authority of military command "without qualification." Id. at 11. Thus, military commissions convened to punish enemy violations of the law of war are not convened under a congressional grant of power, but rather "pursuant to the common law of war." Id. at 20. The Court's suggestion that Congress may properly express its unqualified approval of Executive practice in this field in no way suggests that Congress possesses the far different power to curtail the President's ability as Commander in Chief to prescribe the procedures for such commissions. To the contrary, the Court has acknowledged that assertion of such a power would raise a serious constitutional issue and has expressly declined to address whether Congress has any such power to restrict the President's use of military commissions. See, e.g., Quirin, 317 U.S. at 47 (declining to address "whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents" through regulations on military commissions).

Nothing in the text or the history of Article I's general grant of authority to incorporate international law into federal law authorizes Congress to interfere with the President's specific authority as Commander in Chief to convene military commissions to punish violators of the laws of war.

4.

Lastly, the legislation relies on the Necessary and Proper Clause as its constitutional basis. U.S. Const. art. 1, § 8, c1. 18. But nothing in that provision-which the Supreme Court recently described as "the last, best hope of those who defend ultra wires congressional action," Printz, 521 U.S. at 923 - authorizes Congress to enact legislation that would infringe upon the core constitutional powers of the Executive Branch. See, e.g., Chadha, 462 U.S. 919 (invalidating legislative veto provision, holding that Necessary and Proper Clause does not authorize Congress to usurp President's legislative role under Article 1, Section 7); Buckley, 424 U.S. at 138-39 (Necessary and Proper Clause does not authorize Congress to violate Presidential powers under the Appointments Clause); cf. also Printz, 521 U.S. at 923- 24 ("When a 'La[w] ... for carrying into Execution' the Commerce Clause violates the principle of state sovereignty reflected in ... various constitutional provisions... . it is not a' La[w] ... proper for carrying into Execution the Commerce Clause,' and is thus, in the words of The Federalist, 'merely [an) ac[t] of usurpation' which 'deserve[s] to be treated as such."); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (Necessary and Proper Clause confers upon Congress authority only to legislate through "means ... which are not prohibited, but consist with the letter and spirit of the constitution ... ').

III.

The bill recites that the proposed legislation would "provide a clear and unambiguous legal foundation for such trials" by military commission. SJAA § 2(11). This finding implies that, without this legislation, the "legal foundation" for military commissions would be uncertain or suspect. For the reasons outlined above, we believe that suggestion is incorrect. There is no need for additional statutory authorization for the President to establish military commissions. The authority both to detain enemy combatants and to try them for violations of the laws of war by military commission falls squarely within the President's constitutional power as Commander in Chief. Moreover, statutory authorization already exists in 10 U.S.C. § 821.

If the legislation merely reaffirmed the President's existing authority, it would like]y do no harm. As drafted, however, the proposed legislation attempts to impose substantive limits on the President's authority that, as explained above, are unconstitutional. Moreover, the legislation might even undermine the President's ability to proceed expeditiously with military commissions, because it would likely trigger meritless but nonetheless burdensome and disruptive litigation. Some defendants undoubtedly would argue that the legislation provides them rights that they may seek to enforce through actions (including petitions for writs of habeas corpus) in the federal courts. Although we believe that such assertions would be meritless, even frivolous litigation would impose substantial costs and delays on the President's efforts to prosecute the campaign against terror-ism. Baseless lawsuits would unnecessarily distract the Executive from devoting attention and resources to the successful prosecution of the war.

_______________

Notes:

1. This appears to be a drafting error in the legislation. The United States Court of Military Appeals no longer exists under that name. The court is known today as the United States Court of Appeals for the Armed Forces. See National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, § 924(a)(1), 108 Stat. 2663, 2831 (1994) ("The United States Court of Military Appeals shall hereafter be known and designated as the United States Court of Appeals for the Armed Forces.').

2. See also Schick v. Reed, 419 U.S. 256, 266 (1974) ("[T]he unbroken practice since 1790 compels the conclusion that the [pardon] power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress."); Ludecke v Watkins, 335 U.S. 160, 171 (1948) (explaining importance of historical practice in interpreting the Constitution and noting that "[t]he [Alien Enemy) Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights").

3. See also Yamashita, 327 U.S. at 10 ("The congressional recognition of military commissions and its sanction of their use in trying offenses against the law of war ... sanctioned their creation by military command in conformity to long-established American precedents.").

4. Even in 1952, when the substance of Article 15 had been law for over 30 years, the Supreme Court could still say of military commissions that "(n)either their procedure nor their jurisdiction has been prescribed by statute." Madsen, 343 U.S. at 347.

5. Indeed, Congress is ordinarily presumed to act with knowledge of the Court's interpretation of statutory language, and reenactment of the same language is thus deemed a congressional endorsement of the Court's reading. See, e.g., Davis v. United States, 495 U.S. 472, 482 (1990) (reenactment of same language "indicates [Congress's) apparent satisfaction with the prevailing interpretation of the statute"). Here, Congress must be presumed to have endorsed interpretation established in Quirin and Yamashita of the terms now codified in section 821. That conclusion is further buttressed in this case because the legislative history of the UCMJ indicates that the "language of [Article] 15 has been preserved" in 10 U.S.C. § 821 precisely "because it has been construed by the Supreme Court. See Ex parte Quirin, 317 U.S. I (1942)." Uniform Code of Military Justice: Text, References and Commentary based on the Report of the Committee on a Uniform Code of Military Justice to the Secretary of Defense ("Morgan Draft") (1950), reprinted in 2 Index and Legislative History to the Uniform Code of Military Justice, 1950, at 1367 (1985).

6. See also The Examination No. 1 (Dec. 17, 1801), reprinted in 25 The Papers of Alexander Hamilton 444, 455 (Harold C. Syren et al. eds, 1977) ("[T]he Constitution of a particular country may limit the Organ charged with the direction of the public force, in the use or application of that force, even in time of actual war but nothing short of the strongest negative words, of the most express prohibitions, can be admitted to restrain that Organ from so employing it. as to derive the fruits of actual victory, by making prisoners of the persons and detaining the property of a vanquished enemy. Our Constitution happily is not chargeable with so great an absurdity. The framers of it would have blushed at a provision, so repugnant to good sense, so inconsistent with national safety and inconvenience [sic).").

7. See also Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 326(1984) ("the decision not to prosecute an individual may not be controlled [by Congress] because it is fundamental to the Executive's prerogative"); id. at 142 ("If the President is to preserve, protect, and defend the Constitution, if he is faithfully to execute the laws, there may come a time when it is necessary for him . to refuse to prosecute those who assist him in the exercise of his duty... . To seek criminal punishment for those who have acted to aid the President's performance of his duty would be ... inconsistent with the Constitution.-).

8. But see Madsen, 343 U.S. at 34849 (stating in dicta that "[t]he policy of Congress to refrain from legislating in this ... area does not imply its lack of power to legislate"). In fact, members of Congress have explicitly acknowledged the President's plenary constitutional power as Commander in Chief to deal with prisoners of war. In 1865, the Senate debated a resolution merely urging - without requiring - President Lincoln to retaliate against captured Confederate soldiers in an effort to secure better treatment for Union soldiers then held by the South. The resolution expressly disclaimed that "Congress do[es] not ... intend by this resolution to limit or restrict the power of the President to the modes or principles of retaliation herein mentioned, but only to advise a resort to them as demanded by the occasion." Cong. Globe, 38th Cong., 2d sess. 364 (1865) (statement of Sen. Wade).

9. The records of the Philadelphia Constitutional Convention make clear that the delegates treated this entire provision as a unit. See, e.g., 2. The Records of the Federal Convention of 1787 at 315-16 (Max Farrand ed., rev. ed 1966) (1911) (proceedings of Aug. 17, 1787); id. at 614-15 (Sep. 14, 1787).

10. See, e.g., Boos v. Barry, 485 U.S. 312,316,323-24(1988) (Congress authorized under Define and Punish Clause to enact laws protecting foreign officers and governments); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 436 (1989) (Congress authorized under Define and Punish Clause to enact Foreign Sovereign Immunities Act); United States v. Arjona, 120 U.S. 479, 483-84 (1887) (Congress authorized under Define and Punish Clause to criminalize counterfeiting of foreign currency).

11. Similarly, the Supreme Court has declined to include the Define and Punish Clause as among Congress's war powers on a number of occasions. See Eisentrager, 339 U.S. at 788 (listing Congress's Article I war powers without mentioning Define and Punish Clause); Stewart v. Kahn, 78 U.S. (I I Wall.) 493, 506 (1870) (same); New York Times Co. v. United States, 403 U.S. 713, 727 & n. I (1971) (Stewart, l., concurring) (noting the Executive's "largely unchecked" war power, notwithstanding list of various war powers enumerated in Article I, without mentioning Define and Punish Clause); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 212 & n. 15 (1963) (Stewart, J., dissenting on other grounds) (noting that "the Framers expressly conferred upon Congress a compendium of powers which have come to be called the 'war power,"' and listing a number of Article I war powers, without mentioning Define and Punish Clause); Yakus v. United States, 321 U.S. 414, 459 (1944) (Roberts, 1., dissenting) (describing "the 'War Power' of Congress ... [as] the powers embodied in Article 1, § 8, of the Constitution" without mentioning Define and Punish Clause).

12. The proposed legislation here does not rely on this clause as a source of authority, and with good reason. This provision refers solely to rules for the regulation of the forces of the United States. The military commissions being considered, however, would be designed to try and punish enemy belligerents.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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MEMO __

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

June 8, 2002

MEMORANDUM

TO: THE ATTORNEY GENERAL

THROUGH: THE DEPUTY ATTORNEY GENERAL

FROM: JAY S. BYBEE
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL

SUBJECT: DETERMINATION OF ENEMY BELLIGERENCY AND MILITARY DETENTION

You have asked our opinion whether you should recommend to the Secretary' of Defense that Jose Padilla. aka "Abdullah Al Muhair," qualifies as an enemy combatant under the laws of armed conflict, and whether he may be detained by the United States Armed Forces. Based on the facts provided to us by the Criminal Division, [1] we conclude that the military has the legal authority to detain him as a prisoner captured during an international armed conflict Additionally, we conclude that the Posse Comitatus Act, 18 U.S.C. § 1385 (1994), poses no bar to the military's operations in detaining Padilla.

The facts provided to us show that Padilla, who is a U.S. citizen, is associated with al Qaeda, the terrorist organization that launched the attacks of September 11, 2001, and that he recently entered the United States as part of plot to commit acts of sabotage that might have resulted in massive loss of life. We conclude that Padilla is properly considered an enemy combatant and may be turned over to military authorities for detention as an unlawful enemy combatant.

I.

We note at the outset that the authority of the President as Commander in Chief to seize and detain enemy combatants in an armed conflict is settled beyond peradventure. As Chief Executive of the Nation and the "Commander in Chief of the Army and Navy of the United States," U S. Const., Art. II, section 2. the President has full authority to direct the armed forces to seize enemy forces in an armed conflict and detain them until the end of any armed conflict. See generally Memorandum for William J. Haynes II, General Counsel of the Department of Defense, from Jay S Bybee, Assistant Attorney General, Office of Legal Counsel, Re: The President's power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations (Mar. 13, 2002) ("OLC Transfer Memorandum"). The authority of a belligerent to seize enemy forces is long-settled under the laws and customs of war, see. e.g., L. Oppenheim. International Law 368-69 (H. Lauterpacht ed , 7th ed. 1952), and has been reflected in international conventions on the law of armed conflict since some of the very first codifications were produced, see, e.g. Geneva Convention Relative to the Treatment of Prisoners of War, Aug 12, 1949, 6 U.S.T. 3316 ("GPW"); Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, Annex I arts. 4-20. As the Supreme Court explained in Ex parte Quirin, 317 U.S. 1, 31 (1942), "[l]awful combatants are subject to capture and detention as prisoners of war by opposing military forces" and "[u]nlawful combatants are likewise subject to capture and detention."

This authority to seize enemy combatants has been exercised in conflicts throughout the history of the Nation, from the time of the Founding to the present. See generally Lt. Col. George G Lewis & Capt. John Mewha, History of Prisoner of War Utilization by the United Slates Army 1776-1945, Dep't of the Army Pamphlet No. 20-213 (1955); see also Case of Jefferson Davis, 11 U.S. Op. Att'y Gen. 411, 411 (1866) (stating that Jefferson Davis and others "have been heretofore and are yet held as prisoners of war" and that "[u]ntil peace shall come in fact and in law, they can rightfully be held as prisoners of war"). Indeed, early in the Nation's history it was determined that the President could direct the capture of those in the service of an enemy whenever the United States was engaged in hostilities - even without a declaration of war, see 1 Op. Att'y Gen. 84, 85 (1798) (explaining that a person acting with a commission from France during the Quasi-War should be "confined as a prisoner of war"), and that authority has been routinely exercised ever since, most recently in conflicts such as Korea, Vietnam, and the Gulf War. See generally OLC Transfer Memorandum.

In addition, we note that it is well established that the United States is currently in a state of armed conflict to which the laws of armed conflict apply. In response to the attacks of September 11,Congress passed S.J. Res. 23, which authorizes the President to use military force against the "nations, organizations, or persons" that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or [that] harbored such organizations or persons." Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). The President, acting under his authority as Commander in Chief, and with congressional support, dispatched the armed forces of the United States to Afghanistan to seek out and subdue the al Qaeda terrorist network and the Taliban regime that had supported and protected it. and our armed forces are still engaged in hostilities in Afghanistan Moreover, in issuing the Military Order of November 13, 2001 that provides for the creation of military commissions, the President expressly concluded that "[international terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces." Military Order, The Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001) This Office has also previously concluded that the United States is in a state of armed conflict with the al Qaeda terrorist network and with the Taliban. See, e.g.. Memorandum from Patrick F Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Legality of the Use of Military Commissions To Try-Terrorists, Nov. 6, 2001, at 22-33 ("Military Commission Memorandum"), Memorandum to Alberto Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General. Office of Legal Counsel, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002).

The facts provided to us establish that Padilla is properly considered an enemy combatant. The facts show that he recently entered the United States as part of a plan to conduct acts of sabotage that could result in a massive loss of life. Specifically, Padilla was traveling to the United States from Pakistan, and while abroad he had meetings with a senior al Qaeda operative with whom he discussed a plan to detonate a radiological explosive device in the United States Padilla apparently has already conducted research into the construction of such a weapon and had considered ways with which to obtain the necessary nuclear material. He had received training, at the direction of a senior al Qaeda official, in the use of explosives. It is well settled under the laws of war that such saboteurs are combatants who may be seized and detained; indeed, they are unlawful enemy combatants. See, e.g.. Ex parte Quirin, 317 U.S. at 35-37 ("Those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants . . . .").

Padilla entered the country without any weapons or materials for the planned bomb. because it appears that he was engaged in preliminary reconnaissance at the direction of al Qaeda officials That is irrelevant, however, to the determination of his status as an enemy combatant He entered the United States in furtherance of the plan to later deploy a radiological explosive. Even if Padilla's immediate purpose upon this visit was only reconnaissance or gathering information, he still qualifies as an enemy combatant subject to seizure and detention Under the laws of war, it is well settled that scouts or other members of enemy forces whose only purpose is gathering information may be seized and detained. Moreover, as the Supreme Court explained in Quirin, persons are "not any the less belligerents if. . . they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations." 317 U.S. at 38. Because Padilla entered the United States in furtherance of a plan to commit sabotage, the mere fact that he did not succeed (or was not so close to consummating the plan that he would have weapons material with him) does not alter his status as a combatant subject to seizure.

II

The only difficulty presented by this case arises from the fact that Padilla is a U.S. citizen who was seized in the United States He was detained upon his entry into the United States at Chicago's 0"Hare International Airport. This fact scenario thus implicates the limitations on applying the laws of war to U.S. citizens that the Supreme Court set out in Ex parte Milligan, 71 U.S. 2(1866), and Ex parte Quirin, 317 U.S. 1 (1942).

In Ex Parte Milligan, Union forces in the state of Indiana had seized a civilian named Milligan and tried him by military commission on various charges including giving aid and comfort to the enemy conspiring to seize weapons in federal arsenals, and planning to liberate Confederate prisoners of war. Milligan was a U.S. citizen and resident of Indiana He had not, however, ever been a resident of one of the Confederate states, nor had he crossed into enemy territory, nor been a member of the military of the United States nor, it appears, of the Confederacy. It is unclear from the case whether Milligan actually ever communicated with members of the Confederate government or armed forces.

The Supreme Court held that Milligan could not be constitutionally subjected to trial by military commission. It found that the military could not apply the laws of war to citizens in states in which no direct military threat exists and the courts are open. It is worth quoting the relevant passage

[the laws of war] can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service.


71 U.S. at 121-22 Thus, the Court made clear that the military could not extend its authority to try violators of the laws of war to citizens well behind the lines who are not participating in the military service.

Milligan left open, however, whether the laws of war could apply to a person who was more directly associated with the forces of the enemy, and hence could be detained as a prisoner captured during war. [2] The government argued that Milligan was such a prisoner of war. The Court, however, rejected that claim because Milligan had not committed any "legal acts of hostilities against the government," but instead had "conspired with bad men to assist the enemy." As the Court explained:

But it is insisted that Milligan was a prisoner of war, and, therefore, excluded from the privileges of the statute [of habeas corpus] It is not easy to see how he can be treated as a prisoner of war. when he lived in Indiana for the past twenty years, was arrested there. and had not been, during the late troubles [i.e., the Civil War], a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war; for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?


Id. at 131. [3] Thus, the Supreme Court concluded that Milligan could not be held as a prisoner of war because his actions were not sufficient "acts of hostility" to place him within the category of enemy belligerents.

In Ex parte Quirin, the Court clarified and restricted the scope of its holding in Milligan. In Quirin, several members of the German armed forces who had covertly entered the United States with the objective of committing acts of sabotage were seized and ultimately tried by military commission. The FBI captured the saboteurs within the United States after they had hidden their uniforms and infiltrated into New York and Chicago. The Supreme Court concluded that they were properly held by the military and tried by military commission even though one of the defendants (Haupt) was allegedly a citizen, their plans occurred behind the front lines within states unthreatened by war, and the courts within the United States were operating openly.

The Court found that Milligan does not apply to enemy belligerents captured within the United States See Military Commissions Memorandum at 14-16. The status of the saboteurs in Quirin as enemy belligerents, rather than non-belligerent civilians, was easily determined due to their training in the German Reich, their membership in its Marine Infantry, their transportation by German submarine, and their initial dress in German uniforms. The Court expressly distinguished Milligan on the basis that Milligan had been a civilian, and not an enemy belligerent. From the facts of Milligan. "the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as—in circumstances found not there to be present and not involved here—martial law might be constitutionally established." 317 U.S. at 45 (emphasis added). Because the Nazi saboteurs were belligerents, the Quirin Court found that Milligan did not apply.

Indeed, the Court made clear that status as a citizen would not allow one who had the status of a belligerent to escape military jurisdiction, even if he were captured within the United States. As the Court declared, "[citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war " Id at 37 The Court continued: "[citizens who associate themselves with the military arm of the enemy government, and with its aid. guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war." Id. at 37-38.

In discussing the fact that the German saboteurs also fell into the category of unlawful combatants, the Court explained why a mission of sabotage within the United States qualified as acts of belligerency According to the Court:

[E]ntry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States. [The rules of land warfare] plainly contemplate that the hostile acts and purposes for which unlawful belligerents may be punished are not limited to assaults on the Armed Forces of the United States.


317 U.S. at 36-37. Thus, the Court found that capture of the defendants away from the front did not alter the status of the German saboteurs as enemy belligerents. Instead, the Court found that enemy belligerents who sought to commit sabotage remained subject to military jurisdiction, even if captured in areas of the United States free from threat of direct enemy attack.

Moreover, the Court explained that the fact that the German saboteurs had only entered the country and had not yet implemented their destructive plans did not alter their status as belligerents As the Court observed, "[n]or are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations." Id. at 38. Indeed, an opposite result would be absurd. It would allow the government to apply the laws of war to those captured outside the United States, while requiring the government to provide enemies who attack the nation directly with the higher standards of treatment required for those accused under the federal criminal laws.

Thus, Quirin made clear the limitations on Milligan. Milligan found that non-belligerent civilians behind the lines, where martial law is not declared and the courts are open, could not be subject to treatment as combatants subject to seizure by the military under the laws of war. Quirin makes clear that Milligan does not apply to enemy belligerents, even if those belligerents are citizens and are captured within the United States outside any theatre of active operations.

The facts in this case are not squarely on all fours with either Milligan or Quirin. Unlike the circumstances of Quirin, the nation's current enemy is not a traditional nation-state with a uniformed, regular armed force. Instead, the nation is at war with an international terrorist organization, whose members have entered the nation covertly and have infiltrated our society in sleeper cells. As demonstrated by the attacks on September 11, al Qaeda members seek to attack American civilian targets without any military value, rather than conduct conventional military campaigns We conclude, however, that the instant case is far closer to the scenario presented in Quirin than Milligan. Under the reasoning in Quirin, Padilla properly qualifies as a belligerent (or combatant) who may be seized by the military and held at least until the end of the conflict. The nature of Padilla's plan in itself qualifies him as a belligerent. The detonation of a radiological bomb could result in massive loss of life. Moreover, the mere fact that Padilla is still apparently in the planning stages for this act and may only have entered the United States now for reconnaissance purposes in no way takes him out of the category of a combatant.

Finally, in Milligan, the Court emphasized that Milligan had always been a resident of Indiana and it appeared that he had never been within Confederate territory, nor was it clearly-alleged that he had ever actually communicated with the enemy. In some ways, therefore, he appeared to be an enemy sympathizer, but could not really be said to be part of the enemy forces Here, in contrast, Padilla has recently been in Pakistan and has been in direct communication with a top al Qaeda leader concerning his plan to detonate a radiological bomb and other missions That clear evidence shows that Padilla entered the United States as part of a plan of destruction sponsored and supported by enemy forces further confirms his status as an enemy combatant.

III.

As we have previously advised elsewhere, the Posse Comitatus Act (PCA) does not limit the President's authority to deploy the military against international terrorists operating within the United States. See generally Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel. Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 2-3 (Oct. 23, 2001). For the reasons explained there, and summarized here, we similarly conclude that the PCA does not impose a statutory prohibition on the use of the military to detain an international terrorist captured within the United States.

The PCA states:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, orboth.


18U.S.C. § 13S5. [4] There are several reasons why the detention of Padilla by the military would not violate the PCA.

First, both the express language of the PCA and its history show clearly that it was intended to prevent the use of the military for domestic law enforcement purposes. It does not address the deployment of troops for domestic military operations against potential attacks on the United States. Both the Justice Department and the Defense Department have accordingly interpreted the PCA not to bar military deployments that pursue a military or foreign policy function. In Application of the Posse Comitatus Act to Assistance to the United States National Central Bureau, 13 Op. O.L.C. 195 (1989), our Office cited and agreed with a Department of Defense regulation that interpreted the PCA not to bar military actions undertaken primarily for a military purpose. We said (id at 197):

[T]he regulations provide that actions taken for the primary purpose of Furthering a military or foreign affairs function of the United States are permitted. 3C.F.R. § 213.10(a)(2)(i). We agree that the Posse Comitatus Act does not prohibit military involvement in actions that are primarily military or foreign affairs related, even if they have an incidental effect on law enforcement, provided that such actions are not undertaken for the purpose of executing the laws. [5]

Because using military force to combat terrorist attacks would be for the purpose of protecting the nation's security, rather than executing the laws, domestic deployment in the current situation would not violate the PCA.

Central to this conclusion is the nature of the current conflict and the facts of this specific case. As we have advised elsewhere, the September 11. 2001 attacks on the World Trade Center and the Pentagon began an international armed conflict between the United States and the al Qaeda terrorist organization. See generally Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001); Military Commissions Memorandum As a consequence of those operations, the armed forces have captured al Qaeda members as enemy combatants. As we have discussed above, capture and detention of enemy combatants is a critical part of international armed conflict, as demonstrated by the fact that the laws of armed conflict have long regulated the treatment of prisoners of war.

Here, the detention of Padilla by the military is part of that international armed conflict The President has ample authority as Commander-in-Chief and Chief Executive to employ the military to protect the nation from further attack and to conduct operations against al Qaeda both at home and abroad. Detaining al Qaeda operatives who attempt to enter the United States to attack military or civilian targets is part of our ongoing military operations in this international armed conflict As a result, detention of Padilla is not law enforcement, but instead constitutes military operations to protect the national security exempted from the PCA.

Second, the PCA includes both a constitutional and a statutory exception. It excludes military actions taken "in cases and under circumstances expressly authorized by the Constitution or Act of Congress." Both of these exceptions apply to the use of the Armed Forces to detain al Qaeda operatives in response to the September 11 attacks. By its own terms, the PCA excludes from its coverage any use of the military for constitutional purposes. As Attorney General Brownell noted in reviewing the PCA's legislative history, "[t]here are in any event grave doubts as to the authority of the Congress to limit the constitutional powers of the President to enforce the laws and preserve the peace under circumstances which he deems appropriate." President's Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders - Little Rock. Arkansas, 41 Op. Att'y Gen. 313, 331 (1957). Thus, the dispositive question is whether the President is deploying troops pursuant to a plenary constitutional authority. Here, that is clearly the case. The President is deploying the military pursuant to his powers as Chief Executive and Commander in Chief in response to a direct attack on the United States. Detention of al Qaeda operatives within the United States is undertaken pursuant to this constitutional authority. Thus, the PCA by its own terms does not apply to the domestic use of the military as contemplated in this case.

Even if the PCA's constitutional exception were not triggered, Pub. L. No. 107-40 would allow the President to avoid application of the PCA in this case. Pub. L. No. 107-40 authorizes "the use of United States Armed Forces against those responsible for the recent attacks launched against the United States." This authorization does not distinguish between deployment of the military either at home or abroad, nor does it make any distinction between use of the Armed Force for law enforcement or for military purposes Rather, it simply authorizes the use of force against terrorists linked to the September 11 attacks. It is clear that the al Qaeda terrorist organization is one of the groups responsible for the September 11 attacks on the United States Detention of al Qaeda operatives within the United States is part of the military use of force against those linked to the September 11 attacks. Thus. Pub. L. No. 107-40 provides the statutory authorization envisioned by the PCA's drafters to allow the use of the military domestically, whether for law enforcement purposes or not.

Conclusion

We believe that you have ample grounds to recommend to the Secretary of Defense that Jose Padilla qualifies as an enemy combatant under the laws of armed conflict, and that he may be detained as a prisoner by the U.S. Armed Forces. The Posse Comitatus Act presents no statutory bar to the transfer of Padilla to the Department of Defense.

Please do not hesitate to contact us if we can provide any further assistance.

_______________

Notes:

1. See Memorandum for Jay S. Bybee. Assistant Attorney General. Office of Legal Counsel, from Michael Chertoff Assistant Attorney General. Criminal Division. Re: JOSE PADILLA, aka "Abdullah Al Muhajir'' (June 7. 2002).

In fact, even when the United States is not itself involved in an armed conflict, in order to preserve the United States' position as a neutral power with respect to an armed conflict being waged between other belligerents, the President may direct the armed forces to capture and detain combatants from another nation who seek refuge in U.S. territory. See, e.g.. Ex parte Toscano, 208 F 938, 940 (S.D. Cal. 1913) (rejecting petition for habeas corpus filed by Mexican soldiers so captured and interned during civil war in Mexico). Such combatants may be seized and, without being charged with any violation of law, interned for the duration of the conflict See id.

2. We are using prisoner of war here not in the Geneva Convention sense, but only as it refers to individuals who can be legitimately detained under the customary laws of war.

3. The end of this passage might be read to suggest that the government may apply the laws of war only to lawful combatants That is plainly incorrect, as the Supreme Court itself explained in Ex Parte Quirin: "Unlawful combatants are likewise subject to capture and detention, but in addition the are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." 317 U.S. at 31.

4. The PCA originated as the Act of June 18, 1878, ch. 263, § 15, 20 Stat 145. 152. It was amended in 1956 to cover the Air Force. Act of Aug. 10, 1956, § 18(a),70A Stat. 626; see United States v. Walden, 490 F.2d 372, 375 n.5 (4th Cir.), cert, denied, 416 U.S. 983 (1974). The contemporary version of the PCA differs only slightly from the original.

5. Accord United States v. Thompson, 30 M.J. 570, 573 (A.F.C.M.R.) (The prohibitions contained in the Posse Comitatus Act... do not now, nor were they ever intended to, limit military activities whoseprimary purpose is the furtherance of a military (or foreign affairs) function, regardless of benefits which may incidentally accrue to civilian law enforcement), affd, 32 M.J. 5 (CM.A. 1990), cert, denied, 502 U.S. 1074 (1992).

Department of Defense ("DoD") regulations promulgated pursuant to a congressional directive in 10 U.S.C. § 375 also recognize that the PCA does not apply to or restrict "actions that are taken for the primary purpose of furthering a military or foreign affairs function of the United States, regardless of incidental benefits to civilian authorities." DoD Directive 5525.5. Enclosure 4. E4.1.2.1 (Jan. 15. 1996(as amended Dec. 20, 19S9). See generally United States v. Hitchcock, No. 00-10251 (D. Haw. 2001) at *4-*5 (reviewing and applying DoD Directive 5525.5). Several courts (including the court of appeals in Hitchcock) have accepted and applied the DoD Directive in a variety of circumstances to find that the use of the military was not in violation of the PCA or 10 U.S.C. § 375. See, e.g., United States v. Chon, 210 F.3d 990. 993 (9th Cir.) (activities of Navy Criminal Investigative Service "were permissible because there was an independent military purpose for their investigation -the protection of military equipment"), cert. denied,531 U.S. 910 (2000): Applewhite v. United States Air Force, 995 F.2d 997. 1001 (10th Cir. 1993) (military may investigate illegal drug transactions by active duty military personnel), cert, denied,510 U.S. 1190 (1994).
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MEMO __

U.S. Department of Justice
Office of Legal Counsel

Office of the Deputy Assistant Attorney General
Washington, D.C. 20530

June 27, 2002

Memorandum for Daniel J. Bryant
Assistant Attorney General, Office of Legislative Affairs

Re: Applicability of 18 U.S C. § 4001(a) to Military Detention of United States Citizens

You have asked us whether the detention of United States citizens as enemy belligerents by the U.S. Armed Forces violates 18 U.S.C. § 4001(a) (2000). We understand that the question has arisen in briefings before the Senate Judiciary Committee and the Senate Select Committee on Intelligence concerning the recent transfer of Jose Padilla, aka Abdullah a] Mujahir, from the custody of the Department of Justice to the control of the Department of Defense.

Section 4001 of Title 18 states:

(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

(b) (1) The control and management of Federal penal and correctional institutions, except military and naval institutions, shall be vested in the Attorney General, who shall promulgate rules for the government thereof, and appoint all necessary officers and employees in accordance with the civil-service laws, the Classification Act, as amended and the applicable regulations.

(2) The Attorney General may establish and conduct industries, farms, and other activities and classify the inmates; and provide for their proper government, discipline, treatment, care, rehabilitation, and reformation.


18 U.S.C. § 4001.

As we explain below, the President's authority to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief. We conclude that section 4001(a) does not, and constitutionally could not, interfere with that authority.

I.

In order to understand the scope of section 4001(a), we first set out the proper context established by the President's authority to detain enemy combatants during war. That authority arises out of the President's constitutional status as Commander in Chief. Under the Commander in Chief Clause, the President is authorized to detain all enemy combatants, including U.S. citizens. Finally, we note that Congress has specifically authorized the President to use force against enemy combatants in response to the terrorist attack of September 11.

A.

Article 11 of the Constitution vests the entirety of the "executive power" of the United States government "in a President of the United States of America," and expressly provides that "[t]he President shall be Commander in Chief of the Army and Navy of the United States." U.S. Const. art. II, § 1, c1. 1; id., § 2, cl. 1. Because both "[t]he executive power and the command of the military and naval forces is vested in the President," the Supreme Court has unanimously stated that it is "the President alone [] who is constitutionally invested with the entire charge of hostile operations." Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874) (emphasis added). As Commander in Chief, the President possesses the full powers necessary to prosecute successfully a military campaign. As the Supreme Court has recognized, "[t)he first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of the United States. And, of course, grant of war power includes all that is necessary and proper for carrying these powers into execution." Johnson v. Eisentrager, 339 U.S. 763, 788 (1950) (citation omitted).

By their terms, these provisions vest full control of the military operations of the United States in the President. It has long been the view of this Office that the Commander in Chief Clause is a substantive grant of authority to the President, see. e.g., Memorandum for Honorable Charles W. Colson, Special Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970); Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sep. 25, 2001). This authority includes all those powers not expressly delegated by the Constitution to Congress that have traditionally been exercised by commanders in chief of armed forces. See, e.g., Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: The President's Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (March 13, 2002).

One of the core functions of the Commander in Chief is that of capturing and detaining members of the enemy. See id. at 3 ("the Commander-in-Chief Clause constitutes an independent grant of substantive authority to engage in the detention and transfer of prisoners captured in armed conflicts"). It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict.1 Numerous Presidents, for example, have ordered the capture and detention of enemy combatants during virtually every major conflict in the Nation's history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. Recognizing this authority, Congress never has attempted to restrict or interfere with the President's authority on this score. It is obvious that the current President plainly has authority to detain enemy combatants in connection with the present conflict, just as he has in every previous armed conflict.

The Supreme Court has also recognized the President's authority as Commander in Chief to order to capture and detention of enemy belligerents. For example, in Ex parte Quirin, 317 U.S. 1 (1942), the Supreme Court unanimously stated as follows:

By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.


Id. at 30-31 (emphasis added and footnotes omitted). See also id. at 31 n.8 (citing authorities); Duncan v. Kahanamoku, 327 U.S. 304, 313-14 (1946); In re Territo, 156 F.2d 142, 145 (9th Cir. 1946); Ex parte Toscano, 208 F. 938, 940 (S.D. Cal. 1913); L. Oppenheim, International Law 368-69 (H. Lauterpacht ed., 7th ed. 1952).

We should emphasize here that military detention of enemy combatants serves a particular goal, one that is wholly distinct from that of detention of civilians for ordinary law enforcement purposes. The purpose of law enforcement detention is punitive: to punish individuals, to collect evidence establishing that a crime may have been committed, to ensure that an individual will appear at a criminal trial, or for other related purposes. The purpose of military detention, by contrast, is exclusively preventive. See, e.g., In re Territo, 156 F.2d 142, 145 (9th Cir. 1946) ("The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on he must be removed as completely as practicable from the front."); Ex parte Toscano, 208 F. 938, 941 (S.D. Cal. 1913) ("Internment is not a punishment for crime. [b ]elligerent troops are disarmed as soon as they cross the neutral frontier, and detained in honorable confinement until the end of the war.") (quotations omitted). As Commander in Chief, the President may order the detention of enemy combatants in order to prevent the individual from engaging in further hostilities against the United States, to deprive the enemy of that individual's service, and to collect information helpful to the United States' efforts to prosecute the armed conflict successfully. See Quirin, 317 U.S. at 28 ("An important incident to the conduct of war is the adoption of measures by the military command ... to seize... those enemies who ... attempt to thwart or impede our military effort"). While enemy combatants also may be subject to criminal prosecution under United States or international law, see id. at 28-29 (President's war power to detain enemy combatants includes power to "subject to disciplinary measures those enemies who have violated the law of war"), evidence of criminal liability is legally unnecessary in order for the U.S. Armed Forces to detain an enemy combatant.

B.

It is also settled that the President's authority to detain an enemy combatant is not diminished by a claim, or even a showing, of American citizenship. See, e.g., id. at 37 ("Citizenship in the United States of an enemy belligerent does not relieve him from the consequence of a belligerency which is unlawful."); In re Territo, 156 F.2d at 144 ("[I]t is
immaterial to the legality of petitioner's detention as a prisoner of war by American military authorities whether petitioner is or is not a citizen of the United States of America."); Colepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956), cert. denied 352 U.S. 1014 (1957) ("[T]he petitioner's citizenship in the United States does not ... confer upon him any constitutional rights not accorded any other belligerent under the laws of war.").

The fact that a detainee is an American citizen, thus, does not affect the President's constitutional authority as Commander in Chief to detain him, once it has been determined that he is an enemy combatant. As the Supreme Court has unanimously held, all individuals, regardless of citizenship, who "associate" themselves with the "military arm of the enemy" and "with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war." 317 U.S. at 37-38. Nothing further need be demonstrated to justify their detention as enemy combatants. The individuals need not be caught while engaged in the act of war or captured within the theatre of war. See id. at 38 ("Nor are petitioners any the less belligerents if ... they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations."). They need not be found carrying weapons. See id. at 37 ("It is without significance that petitioners were not alleged to have borne conventional weapons ... ."). Nor must their acts be targeted at our military. See id. ("It is without significance that ... their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States. [The rules of land warfare] plainly contemplate that the hostile acts and purposes for which unlawful belligerents may be punished are not limited to assaults on the Armed Forces of the United States."). Accordingly, all "those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants ... ." Id. at 35.

For example, in Quirin, several members of the German armed forces who had covertly entered the United States with the objective of committing acts of sabotage were seized and ultimately tried by military commission. The FBI captured the saboteurs within the United States after they had hidden their uniforms and infiltrated into New York and Chicago. The Supreme Court concluded that they were properly held by the military and tried by military commission even though one of the defendants (Haupt) was allegedly a citizen, their plans occurred behind the front lines within states unthreatened by war, and the courts within the United States were operating openly.

Ex parte Milligan, 71 U.S. 2 (1866), does not affect this conclusion. In Milligan, Union forces in the state of Indiana had seized a civilian named Milligan and tried him by military commission on various charges including giving aid and comfort to the enemy, conspiring to seize weapons in federal arsenals, and planning to liberate Confederate prisoners of war.

Milligan was a U.S. citizen and resident of Indiana. He had not, however, ever been a resident of one of the Confederate states, nor had he crossed into enemy territory, nor been a member of the military of the United States, nor, it appears, of the Confederacy. It is unclear from the case whether Milligan actually ever communicated with members of the Confederate government or armed forces.

The Supreme Court held that Milligan could not be constitutionally subjected to trial by military commission. It found that the military could not apply the laws of war to citizens in states in which no direct military threat exists and the courts are open. It is worth quoting the relevant passage:

[the laws of war] can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service.


71 U.S. at 121-22. Thus, the Court made clear that the military could not extend its authority to try violators of the laws of war to citizens well behind the lines who are not participating in the military service.

Milligan left open, however, whether the laws of war could apply to a person who was more directly associated with the forces of the enemy, and hence could be detained as a prisoner captured during war. The government argued that Milligan was such a prisoner of war. The Court, however, rejected that claim because Milligan had not committed any "legal acts of hostilities against the government," but instead had "conspired with bad men to assist the enemy." As the Court explained:

But it is insisted that Milligan was a prisoner of war, and, therefore, excluded from the privileges of the statute [of habeas corpus]. It is not easy to see how he can be treated as a prisoner of war, when he lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles [i.e., the Civil War], a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war; for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?


Id. at 131.2 Thus, the Supreme Court concluded that Milligan could not be held as a prisoner of war because his actions were not sufficient "acts of hostility" to place him within the category of enemy belligerents.

In Quirin, the Court clarified and restricted the scope of its earlier holding in Milligan. The Court found that Milligan does not apply to enemy belligerents captured within the United States. The status of the saboteurs in Quirin as enemy belligerents, rather than non-belligerent civilians, was easily determined due to their training in the German Reich, their membership in its Marine Infantry, their transportation by German submarine, and their initial dress in German uniforms. The Court expressly distinguished Milligan on the basis that Milligan had been a civilian, and not an enemy belligerent. From the facts of Milligan, "the Court concluded that Milligan, not being a part of or associated with the armed forces of th4 enemy, was a non-belligerent, not subject to the law of war save as-in circumstances found not there to be present and not involved here-martial law might be constitutionally established." 317 U.S. at 45 (emphasis added). In some ways, Milligan appeared to be an enemy sympathizer, but he could not really be said to be part of the enemy forces. Because the Nazi saboteurs were belligerents, by contrast, the Quirin Court found that Milligan did not apply.

We accordingly conclude that, under Milligan and Quirin, the President's constitutional authority as Commander in Chief to detain enemy combatants extends to U.S. citizens and noncitizens alike.

C.

Finally, we note that the President's constitutional authority to detain enemy combatants during the present conflict is bolstered by Senate Joint Resolution 23, which went into effect on September 18, 2001. That resolution recognizes that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Authorization for Use of Military Force, Pub. L. No. 107-40, preamble, 115 Stat. 224 (2001). Additionally, the resolution explicitly authorizes "the President ... to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 200], or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Id., § 2(a). Thus, Congress has specifically endorsed the use not only of deadly force, but also of the lesser- included authority to detain enemy combatants to prevent them from furthering hostilities against the United States.

II.

Section 4001(a) cannot be read to interfere with the President's constitutional authority as Commander in Chief to detain enemy combatants. When examined in the context of section 4001 and of the U.S. Code as a whole, it becomes apparent that subsection (a) does not attempt to reach so broadly. In fact, the canon of construction that statutes be construed to avoid constitutional defects requires section 4001(a) to be given this reading.

To be sure, section 4001(a) uses broad language. It neither draws a distinction between differing types of detention nor mentions military detention for explicit inclusion or exclusion.3 It is important, however, to examine section 4001 in its entirety to understand the scope of subsection (a). See Kokoszka v. Belford, 417 U.S. 642, 650 (1974) ("When `interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute ... and the objects and policy of the law, as indicated by its various provisions, and give to it such a construction as will carry into execution the will of the Legislature.") (quoting Brown v. Duchesne, 60 U.S. (19 How.) 183, 194 (1857)).

Nothing in section 4001 indicates that its provisions were meant to reach the President's authority, as Commander in Chief, to detain enemy combatants. To the contrary, section 4001 addresses the Attorney General's authority with respect to the federal civilian prison system, rather than the President's constitutional power as Commander in Chief to detain enemy combatants. Congress specifically added subsection (a) to 18 U.S.C. § 4001 in 1971. Act of Sep. 25, 1971, Pub. L. No. 92-128, § 1, 85 Stat. 347 (adding new language to section 4001 of title 18). Prior to 1971, section 4001 simply gave the Attorney General the power to "control and manage[]" the federal civilian prison system. Act of June 25, 1948, ch. 645, § 4001, 62 Stat 683, 847. The earlier language was identical to subsection (b) as it is now. Then, as now, the plain terms of the provision specifically carve out "military or naval institutions" from the statute's coverage of "Federal penal and correctional institutions." Construing the scope of subsection (a) broadly to cover all types of detention is difficult to reconcile with its coupling with subsection (b). The better reading is that subsections (a) and (b) have the same scope, which is applies exclusively to the federal civilian prison system.

As a structural matter, the placement of section 4001(a) in the United States Code signifies that it was not intended to govern the detention of enemy combatants by the U.S. Armed Forces. Title 18 of the United States Code covers "Crime and Criminal Procedure." Statutes concerning the military and national security, by contrast, are generally found in Title 10 ("Armed Forces") and in Title 50 ("War and National Defense"). Moreover, the particular part of Title 18 in which section 4001 is located contains chapters governing exclusively federal criminal confinement. Part III of Title 18, which contains section 4001, is entitled "Prisons and Prisoners" and contains chapters relating to the Bureau of Prisons, good time allowances, parole, and institutions for women, among other topics. Nothing in those provisions can plausibly be construed to apply to the detention of enemy combatants. Congress's decision to place section 4001 (a) in this particular provision of the U.S. Code thus provides further support for our conclusion that subsection (a) does not apply to the President's constitutional power to detain enemy combatants. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, 1. concurring) ("The meaning of terms on the statute books ought to be determined ... on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind.").

Congress likewise has effectively construed section 4001(a) not to restrict the President's constitutional power as Commander in Chief to detain enemy combatants.

In 1984, thirteen years after the enactment of section 4001(a), Congress added section 956 to Title 10 of the U.S. Code, which specifically governs the U.S. Armed Forces. That statute explicitly authorizes the U.S. Armed Forces to use any funds appropriated to the Department of Defense to pay for the detention of prisoners of war and other enemy combatants. Specifically, 10 U.S.C. § 956 (2000) states that:

[f]unds appropriated to the Department of Defense may be used for ... expenses incident to the maintenance, pay, and allowances of prisoners of war, other persons in the custody of the Army, Navy, or Air Force whose status is determined by the Secretary concerned to be similar to prisoners of war, and persons detained in the custody of the Army, Navy, or Air Force pursuant to Presidential proclamation.


This provision plainly contemplates that the President has the power to detain prisoners of war and other enemy combatants, presumably as an exercise of his constitutional authority as Commander in Chief, notwithstanding the prior enactment of section 4001(a). The language of 10 U.S.C. § 956 is thus difficult to reconcile with section 4001(a) unless subsection (a) does not interfere with the President's constitutional power to detain enemy combatants. When it enacted 10 U.S.C. § 956, Congress must have understood that the President already had the authority to direct the U.S. Armed Forces to detain prisoners of war, and that the enactment of section 4001 (a) had done nothing to undermine that authority.

More recently, as discussed in Section I, last September Congress recognized that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States," and specifically authorized "the President ... to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 200], or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Pub. L. No. 107-40, preamble & § 2(a), 115 Stat. 224 (2001). Nothing in that resolution contemplates that the President's authority to detain enemy combatants is limited to non-U.S. citizens, or that section 4001(a) could be read to so limit that authority. If anything, the joint resolution provides further support to the President's existing constitutional authority to detain enemy combatants, even those who enjoy the status of citizens.4

We also note that no court has ever construed section 4001 (a) to apply to the detention of enemy belligerents in an armed conflict, or to restrict the President's constitutional authority to detain enemy combatants. See Howe v. Smith, 452 U.S. 473, 479 (1981) (noting "the authority of the Federal Government, in the official person of the Attorney General, to receive and to hold [state convicts subsequently transferred to] a federal penitentiary," (citing 18 U.S.C. §§ 4001(a) & 5003));5 see also Lono v. Fenton, 581 F.2d 645, 648 (7th Cir. 1978) (section 4001 (a) "forbid[s] non-statutory confinement in federal prisons"); Seller v. Ciccone, 530 F.2d 199, 201 (8th Cir. 1976) (section 4001 (b) vests Attorney General with "[t]he administration of the rehabilitative programs for federal prisoners"); Marchesani v. McCune, 531 F.2d 459, 461 (10th Cir. 1974) (section 4001 vests Attorney General with discretion to classify prisoners); Bono v. Saxbe, 462 F. Supp. 146, 148 (E.D. 111. 1978) (section 4001 authorizes Attorney General "to manage and control the federal prison system").

Our conclusion that section 4001(a) does not interfere with the President's constitutional authority as Commander in Chief is compelled by the well established canon of statutory construction that statutes are not to be construed in a manner that presents constitutional difficulties so long as a reasonable alternative construction is available. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (citing NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501, 504 (1979)) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, [courts] will construe [a) statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."). This canon of construction applies where an act of Congress could be read to encroach upon powers constitutionally committed to a coordinate branch of government. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 800-1 (1992) (citation omitted) ("Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the [Administrative Procedure Act). We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion."); Public Citizen v. United States Dept of Justice, 491 U.S. 440, 465-67 (1989) (construing Federal Advisory Committee Act not to apply to advice given by American Bar Association to the President on judicial nominations, to avoid potential constitutional question regarding encroachment on Presidential power to appoint judges).

In the area of foreign affairs, and war powers in particular, the avoidance canon has special force. See, e.g., Dept of Navy v. Egan, 484 U.S. 518, 530 (1988) ("unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs."); Japan Whaling Assn v. American Cetacean Soc'y, 478 U.S. 221, 232-33 (1986) (construing federal statutes to avoid curtailment of traditional presidential prerogatives in foreign affairs). We do not lightly assume that Congress has acted to interfere with the President's constitutionally superior position as Chief Executive and Commander in Chief in the areas of foreign affairs and national security, and the Supreme Court's consistent view that "`foreign policy [is] the province and responsibility of the Executive."' Egan, 484 U.S. at 529 (quoting Haig v. Agee, 453- U.S. 280, 293-94 (1981)). See also Agee, 453 U.S. at 291 (deference to Executive Branch is "especially" appropriate "in the areas of foreign policy and national security'). As the Court has repeatedly emphasized, the President's foreign affairs power necessarily exists independently of Congress: "In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation... [I]t is the very delicate, plenary and exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319, 320 (1936).

As we have already explained, the most reasonable construction of section 4001(a) is that it does not restrict the President's constitutional authority as Commander in Chief to detain U.S. citizens who are enemy combatants. Any other construction would raise serious constitutional questions. The President's power to detain enemy combatants, including U.S. citizens, arises out of his constitutional authority as Commander in Chief. As our office has consistently held during this Administration and previous Administrations, Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander in Chief to control the conduct of military operations during the course of a campaign. See, e.g., Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from Patrick Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Swift Justice Authorization Act (Apr. 8, 2002); Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sep. 25, 2001); Memorandum for Andrew Fois, Assistant Attorney General, Office of Legislative Affairs, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Defense Authorization Act (Sep. 15, 1995). Congress may no more regulate the President's ability to detain enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe section 4001 (a) to avoid this constitutional difficulty, and conclude that subsection (a) does not apply to the President's detention of enemy combatants pursuant to his Commander in Chief authority.

A review of the legislative history of 18 U.S.C. § 4001(a) underscores our conclusion that Congress never intended that provision to restrict the President's constitutional authority as Commander in Chief to detain enemy combatants. While some in Congress questioned the law's scope as potentially infringing on the President's war powers, others assured members that the statute could not extend so far. At best, the legislative history demonstrates that Congress had no fully shared understanding that section 4001 either regulated the President's Commander in Chief authority or did not. The inconclusive nature of the legislative history, therefore, requires us to rely upon the scope of the President's war power, the structure of section 4001 and its placement in the U.S. Code, and the canon of avoidance.

First, the 1971 addition of section 4001(a) was accompanied by, and closely identified with, the repeal of the Emergency Detention Act of 1950, ch. 1024, 64 Stat. 1019, 1019-31, codified at 50 U.S.C. §§ 811-826, repealed by Pub. L. No. 92-128, 85 Stat. 347. That Act authorized the federal government exclusively to detain individuals suspected of violating certain criminal statutes. Specifically, it empowered the Attorney General to "to apprehend and by order detain . . each person as to whom there is [a] reasonable ground to believe that such person ... will engage in, or probably will conspire with others to engage in, acts of espionage or . sabotage." Id. at 1021.6 Espionage and sabotage were expressly defined in relation to particular sections of Title 18 of the United States Code. Id. In other words, the Act authorized detention of individuals based on suspected criminal conduct. Accordingly, we view the repeal of the 1950 Act, and the accompanying codification of section 4001 (a), to address similar forms of detention and not the detention of enemy combatants.

Second, an earlier version of the legislation enacting section 4001(a) suggests that the provision was not intended to reach the detention of enemy combatants. The original version of the House bill ultimately enacted, H.R. 234, did not include the language "except pursuant to an Act of Congress." 18 U.S.C. § 4001(a). Instead, it more broadly prohibited the detention of any U.S. citizen "except in conformity with the procedures and the provisions of title 18." H.R. Rep. No. 92-116 (1971), reprinted in 1971 U.S.C.C.A.N. 1435, 1437. A Department of Justice witness objected to the language on the ground that the drafters had incorrectly assumed that "all provisions for the detention of convicted persons are contained in title 18." Id. at 1437. The witness went on to list the numerous other federal statutes, outside of title 18, authorizing the confinement of persons convicted of federal crimes. See id. (citing, among others, provisions dealing with crimes involving narcotics in title 21, Internal Revenue violations in title 26, and crimes involving aircraft hijacking, carrying explosives aboard an aircraft and related crimes in title 49). The Committee accepted the witness's objection and recommended an amendment that changed the language to "except pursuant to an Act of Congress." Id. Notably, neither the witness nor any member of the Committee ever mentioned expanding the scope of the prohibition beyond detention related to criminal activity. Thus, the change in the legislation occurred in order to recognize other forms of detention of "convicted persons" under the federal criminal laws, and not the preventive detention of enemy combatants that occurs pursuant to the President's Commander in Chief authority.

Third, the House floor debate fails to demonstrate a universal, shared understanding of section 4001(a) as an effort to regulate or interfere with the President's Commander in Chief authority to detain enemy combatants. Over a two-day period in September, 1971, the House debated two competing bills: H.R. 234, reported out of the Judiciary Committee, which repealed the Emergency Detention Act and added section 4001(a), and H.R. 820, reported out of the Internal Security Committee, which acted to amend the Emergency Detention Act to prohibit its use "solely on account of race, color, or ancestry." 117 Cong. Rec. at 31754 (1971). The House floor debate reflected the presence of three distinct views of the legislation.

In the first camp, there was wide support for eliminating the possibility of any future use or creation of civilian detention camps. The internment of Japanese-Americans during World War II, without regard to their status as non-combatants, was frequently invoked by members of Congress to highlight the need for statutory action. Noting that the Emergency Detention Act was not in place during World War 11, proponents of H.R. 234 argued that a simple repeal of the Emergency Detention Act would not necessarily eliminate the possibility of future creation or use of detention camps. See 117 Cong. Rec. at 31541 (statement of Cong. Kastenmeier) ("It has been suggested that repeal alone would leave us where we were prior to 1950. The committee believes that imprisonment or other detention of citizens should be limited to situations in which a statutory authorization, an act of Congress, exists. This will assure that no detention camps can be established without at least the acquiescence of the Congress."). Such concern was the impetus for the addition of the language now found in 18 U.S.C. § 4001 (a). This view was not at odds with our interpretation of section 4001 (a), as the Japanese-Americans detained during World War II were not held as enemy combatants, and so any decision to prevent similar forms of detention in the future would not reach the President's Commander in Chief power on that score.

Members of the second camp, however, feared that the legislation went too far and violated the principle of separation of powers because it infringed upon the President's constitutional powers and duties. See 117 Cong. Rec. at 31542 (statement of Cong. Ichord) ("[The amendment] would deprive the President of his emergency powers and his most effective means of coping with sabotage and espionage agents in war-related crises. Hence the amendment also has the consequence of doing patent violence to the constitutional principle of separation of powers... . Although many Members of this House are committed to the repeal of the Emergency Detention Act of 1950, they have no purpose, I am sure, to confound the President in his exercise of his constitutional duties to defend this Nation, nor would they wish to render this country helpless in the face of its enemies."). These critics of the legislation appear to have suggested that the law's broad language could be read to interfere with the President's power to detain enemy combatants. We would note, however, that they did not offer this reading as an authoritative interpretation of the statute's meaning, but as an effort to narrow its scope.

Finally, then Congressman Abner Mikva, responding to both groups, stated that, while Congress indeed lacked the authority to interfere with the President's constitutional powers, H.R. 234 should not be interpreted to do so. He argued:

If there is any inherent power of the President of the United States, either as the Chief Executive or Commander in Chief, under the Constitution of the United States, to authorize the detention of any citizen of the United States, nothing in [H.R. 234] interferes with that power, because obviously no act of Congress can derogate the constitutional power of a President.


Id. at 31555. Moments later, Mikva elaborated on this point:

The next group of opinion would hold that the Federal Government does have certain emergency powers which can be exercised if necessary for self-preservation. Some in this group would give extensive latitude to the President to exercise such war powers, finding the justification in his [powers] as Commander in Chief of the Aimed Forces, as well as in his sworn duty to uphold the Constitution and to preserve the Republic. Once again, it is difficult to see how proponents of this view could consistently oppose H.R. 234 on the grounds that it would undercut the President's ability to act in an emergency. After all, if the President's war powers are inherent, he must have the right to exercise them without regard to congressional action. Arguably, any statute which impeded his ability to preserve and protect the Republic from imminent harm could be suspended from operation. It is a contradiction in terms to talk of Congress limiting or undercutting an inherent power given by the Constitution or some higher authority.

* * *

The conclusion to be drawn from all of this is that, historical and philosophical questions aside, the repeal of the Emergency Detention Act which is proposed in H.R. 234 would have no measurable effect on the war powers of the President, whatever those powers are deemed to be at present.


Id. at 31557.

This discussion demonstrates that there was no agreement in Congress that the law would reach enemy combatants, or that section 4001(a) could regulate the President's authority as Commander in Chief to detain such individuals. The legislative history of section 4001(a), therefore, cannot be read to undermine our conclusion, and the apparent conclusion of subsequent sessions of Congress, that subsection (a) does not apply to the detention of U.S. citizens held as enemy combatants by U.S. Armed Forces under the direction of the President in the exercise of his constitutional authority as Commander in Chief.

If I can be of further assistance, please let me know.

Sincerely,

John C. Yoo
Deputy Assistant Attorney General

_______________

Notes:

1. The practice of capturing and detaining enemy combatants is as old as war itself. See Allan Rosas, The Legal Status of Prisoners of War 44-45 (1976). In modem conflicts, the practice of detaining enemy combatants and hostile civilians generally has been designed to balance the humanitarian purpose of sparing lives with the military necessity of defeating the enemy on the battlefield. Id. at 59-80.

2. The end of this passage might be read to suggest that the government may apply the laws of war only to lawful combatants. That is plainly incorrect, as the Supreme Court itself explained in Quirin: "Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render then belligerency unlawful." 317 U.S. at 31.

3. Courts have found section 4001(a) to be judicially enforceable through the writ of habeas corpus. See, eg., Lono v. Fenton, 581 F.2d 645 (7th Cir. 1978).

4. Last October the Congressional Research Service issued a report analyzing the power of the Executive Branch to detain individuals during the current conflict in the interest of national security. See Jennifer Elsea, Congressional Research Service, Race-based Civil Detention for Security Purposes, Order Code RS21039 (2001). That report specifically discusses 18 U.S.C. § 4001(a). It concludes that section 4001(a) was "intended to prevent the President from authorizing civil detention of citizens without an act of Congress." Id. at 3 (emphasis added). Notably, the report makes no mention of military detention of U.S. citizens who are enemy combatants, and does not even hint at the possibility that section 4001(a) has any application outside of ordinary civilian detention.

5. Under 18 U.S.C. § 5003(a) (2000), "[t]he Attorney General ... is ... authorized to contract with the proper officials of a State or Territory for the custody ... of persons convicted of criminal offenses in the courts of such State or Territory: Provided, That any such contract shall provide for reimbursing the United States." Howe, 452 U.S. at 475 n.1. In Howe, the Court held that section 5003(a) constituted sufficient statutory authority to authorize federal detention of state prisoners under section 4001(a). We note that there is loose language in Howe that might be mistakenly read to apply section 4001 (a) to the President's constitutional authority to detain enemy combatants. The Court noted that "the plain language of § 4001(a) proscrib[es] detention of any kind by the United States, absent a congressional grant of authority to detain. If the petitioner is correct that neither § 5003 nor any other Act of Congress authorizes his detention by federal authorities, his detention would be illegal even though that detention is on behalf, and at the pleasure, of the State of Vermont." Howe, 452 U.S. at 479 n.3. This passage simply states that § 4001(a) applies to the entire federal criminal prison system, regardless of how each federal prisoner was originally taken into custody. It does not address any other form of detention by the United States, such as detention of enemy combatants pursuant to the President's authority as Commander in Chief.

6. The Attorney General's authority was made available when the President proclaimed an emergency pursuant to one of three triggering events: invasion, declaration of war, and insurrection. The detainee was to be released by an order of release, or at the termination of the emergency by proclamation of the President or by concurrent resolution of the Congress. Orders of release could issue from the Attorney General, the Board of Detention Review (established by the Act), or a United States court, after reviewing the action of the Board of Detention Review or upon a writ of habeas corpus. The Act authorized the Attorney General to issue warrants for the apprehension of persons believed to fall within the statutory language.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 1 OF 4

MEMO 14

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

August 1, 2002

MEMORANDUM FOR ALBERTO R. GONZALES COUNSEL TO THE PRESIDENT

RE: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A

You have asked for our Office's views regarding the standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340-2340A of title 18 of the United States Code. As we understand it, this question has arisen in the context of the conduct of interrogations outside of the United States. We conclude below that Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A's proscription against torture. We conclude by examining possible defenses that would negate any claim that certain interrogation methods violate the statute.

In Part I, we examine the criminal statute's text and history. We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual's personality; or threatening to do any of these things to a third party. The legislative history simply reveals that Congress intended for the statute's definition to track the Convention's definition of torture and the reservations, understandings, and declarations that the United States submitted with its ratification. We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.

In Part II, we examine the text, ratification history, and negotiating history of the Torture Convention. We conclude that the treaty's text prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for "cruel, inhuman, or degrading treatment or punishment." This confirms our view that the criminal statute penalizes only the most egregious conduct. Executive branch interpretations and representations to the Senate at the time of ratification further confirm that the treaty was intended to reach only the most extreme conduct.

In Part III, we analyze the jurisprudence of the Torture Victims Protection Act, 28 U.S.C. § 1350 note (2000), which provides civil remedies for torture victims, to predict the standards that courts might follow in determining what actions reach the threshold of torture in the criminal context. We conclude from these 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. Moreover, these cases demonstrate that most often torture involves cruel and extreme physical pain. In Part IV, we examine international decisions regarding the use of sensory deprivation techniques. These cases make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.

In Part V, we discuss whether Section 2340A may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President's Commander-in-Chief power's. We find that in the circumstances of the current war against al Qaeda and its allies, 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. In Part VI, we discuss defenses to an allegation that an interrogation method might violate the statute. We conclude that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.

I. 18 U.S.C. §§2340-2340A

Section 2340A makes it a criminal offense for any person "outside the United States [to] commit or attempt to commit torture." [1] Section 2340 defines the act of torture as 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.


18 U.S.C.A. § 2340(1); see id. § 2340A. Thus, to convict a defendant of torture, the prosecution must establish that: (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant's custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) that the act inflicted severe physical or mental pain or suffering. See also S. Exec. Rep. No. 101-30, at 6 (1990) ("For an act to be 'torture,' it must ... cause severe pain and suffering, and be intended to cause severe pain and suffering."). You have asked us to address only the elements of specific intent and the infliction of severe pain or suffering. As such, we have not addressed the elements of "outside the United States," "color of law," and "custody or control." [2] At your request, we would be happy to address these elements in a separate memorandum.

A. "Specifically Intended"

To violate Section 2340A, the statute requires that severe pain and suffering must be inflicted with specific intent. See 18 U.S.C. § 2340(1). In order for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act. See United States v. Carter, 530 U.S. 255, 269 (2000); Black's Law Dictionary at 814 (7th ed. 1999) (defining specific intent as "[t]he intent to accomplish the precise criminal act that one is later charged with"). For example, in Ratzlaf v. United States, 510 U.S. 135, 141 (1994), the statute at issue was construed to require that the defendant act with the "specific intent to commit the crime." (Internal quotation marks and citation omitted). As a result, the defendant had to act with the express "purpose to disobey the law" in order for the mens rea element to be satisfied. Ibid. (internal quotation marks and citation omitted)

Here, because Section 2340 requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant's precise objective. If the statute had required only general intent, it would be sufficient to establish guilt by showing that the defendant "possessed knowledge with respect to the actus reus of the crime." Carter, 530 U.S. at 268. If the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent. See id. at 269; Black's Law Dictionary 813 (7th ed. 1999) (explaining that general intent "usu[allyl takes the form of recklessness (involving actual awareness of a risk and the culpable taking of that risk) or negligence (involving blameworthy inadvertence)"). The Supreme Court has used the following example to illustrate the difference between these two mental states:

[A] person entered a bank and took money from a teller at gunpoint, but deliberately failed to make a quick getaway from the bank in the hope of being arrested so that he would be returned to prison and treated for alcoholism. Though this defendant knowingly engaged in the acts of using force and taking money (satisfying "general intent"), he did not intend permanently to deprive the bank of its possession or the money (failing to satisfy "specific intent").


Carter, 530 U.S. at 268 (citing 1 W. LaFave & A. Scott, Substantive Criminal Law §§ 3.5. at 315 (1986)).

As a theoretical matter, therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent. As the Supreme Court explained in the context of murder, "the ... common law of homicide distinguishes ... between a person who knows that another person will be killed as a result of his conduct and a person who acts with the specific purpose of taking another's life[.]" United States v. Bailey, 444 U.S. 394, 405 (1980). "Put differently, the law distinguishes actions taken 'because of' a given end from actions taken in spite of their unintended but foreseen consequences." Vacco v. Quill, 521 U.S. 793, 802-03 (1997). Thus, 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 even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control. While as a theoretical matter such knowledge does not constitute specific intent, juries are permitted to infer from the factual circumstances that such intent is present. See, e.g., United States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001); United States v. Karro, 257 F.3d 112, 118 (2d Cir. 2001); United States v. Wood, 207 F.3d 1222, 1232 (10th Cir. 2000); Henderson v. United States, 202 F.2d 400, 403 (6th Cir. 1953). Therefore, when a defendant knows that his actions will produce the prohibited result, a jury will in all likelihood conclude that the defendant acted with specific intent.

Further, a showing that an individual acted with a good faith belief that his conduct would not produce the result that the law prohibits negates specific intent. See, e.g., South Atl. Lmtd. Ptrshp. of Tenn. v. Reise, 218 F.3d 518, 531 (4th Cir. 2002). Where a defendant acts in good faith, he acts with an honest belief that he has not engaged in the proscribed conduct. See Cheek v. United States, 498 U.S. 192, 202 (1991); United States v. Mancuso, 42 F.3d 836, 837 (4th Cir. 1994). For example, in the context of mail fraud, if an individual honestly believes that the material transmitted is truthful, he has not acted with the required intent to deceive or mislead. See, e.g., United States v. Sayakhom, 186 F.3d 928, 939-40 (9th Cir. 1999). A good faith belief need not be a reasonable one. See Cheek, 498 U.S. at 202.

Although a defendant theoretically could hold an uneasonable belief that his acts would not constitute the actions prohibited by the statute, even though they would as a certainty produce the prohibited effects, as a matter of practice in the federal criminal justice system it is highly unlikely that a jury would acquit in such a situation. Where a defendant holds an unreasonable belief, he will confront the problem of proving to the jury that he actually held that belief. As the Supreme Court noted in Cheek, "the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury ... will find that the Government has carried its burden of proving" intent. Id. at 203-04. As we explained above, a jury will be permitted to infer that the defendant held the requisite specific intent. As a matter of proof, therefore, a good faith defense will prove more compelling when a reasonable basis exists for the defendant's belief.

B. "Severe Pain or Suffering"

The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering." In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) ("This Court has noted on numerous occasions that in all cases involving statutory construction, our starting point must be the language employed by Congress, ... and we assume that the legislative purpose is expressed by the ordinary meaning of the words used.") (internal quotations and citations omitted). Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the text provides that pain or suffering must be "severe." The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Webster's New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572 (1978) ("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.

Congress' use of the phrase "severe pain" elsewhere in the United States Code can shed more light on its meaning. See, e.g., West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 3, 100 (1991) ("[W]e construe [a statutory term] to contain that permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law."). Significantly, the phrase "severe pain" appears in statutes defining an emergency medical condition for the purpose of providing health benefits. See, e.g., 8 U .S.C. § 1369 (2000); 42 U.S.C § 1395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id. § 1396b (2000); id. § 1396u-2 (2000). These statutes define an emergency condition as one "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d) (3)(B) (emphasis added). Although these statutes address a substantially different subject from Section 2340, they are nonetheless helpful for understanding what constitutes severe physical 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. [3l

C. "Severe mental pain or suffering"

Section 2340 gives further guidance as to the meaning of "severe mental pain or suf-fering," as distinguished from severe physical pain and suffering. The statute defines "severe mental pain or suffering" as:

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.


18 U.S.C. § 2340(2). In order to prove "severe mental pain or suffering," the statute requires proof of "prolonged mental harm" that was caused by or resulted from one of four enumerated acts. We consider each of these elements.

1. "Prolonged Mental Harm". As an initial matter, Section 2340(2) requires that the severe mental pain must be evidenced by "prolonged mental harm." To prolong is to "lengthen in time" or to "extend the duration of, to draw out." Webster's Third New International Dictionary 1815 (1988); Webster's New International Dictionary 1980 (2d ed. 1935). Accordingly, "prolong" adds a temporal dimension to the harm to the individual, namely, that the harm must be one that is endured over some period of time. Put another way, the acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage. For example, the mental strain experienced by an individual during a lengthy and intense interrogation -- such as one that state or local police might conduct upon a criminal suspect -- would not violate Section 2340(2). On the other hand, the development of a mental disorder such as post-traumatic stress disorder, which can last months or even years, or even chronic depression, which also can last for a considerable period of time if untreated, might satisfy the prolonged harm requirement. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 426, 439-45 (4th ed. 1994) ("DSM-IV"). See also Craig Homey & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 509 (1997) (noting that post-traumatic stress disorder is frequently found in torture victims); cf: Sana Loue, Immigration Law and Health § 10:46 (2001) (recommending evaluating for post-traumatic stress disorder immigrant-client who has experienced torture). [4] By contrast to "severe pain," the phrase "prolonged mental harm" appears nowhere else in the U.S. Code nor does it appear in relevant medical literature or international human rights reports.

Not only must the mental harm be prolonged to amount to severe mental pain and suffering, but also it must be caused by or result from one of the acts listed in the statute. In the absence of a catch-all provision, the most natural reading of the predicate acts listed in Section 2340(2)(A)-(D) is that Congress intended it to be exhaustive. In other words, other acts not included within Section 2340(2)'s enumeration are not within the statutory prohibition. See Leatherman v. Tarrant Country Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) ("Expressio unius est exclusio alterius."); Norman Singer, 2A Sutherland on Statutory Construction §47.23 (6th ed. 2000) ("[W]here a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.") (footnotes omitted). We conclude that torture within the meaning of the statute requires the specific intent to cause prolonged mental harm by one of the acts listed in Section 2340(2).

A defendant must specifically intend to cause prolonged mental harm for the defendant to have committed torture. It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered prolonged mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute. The statute requires that the defendant specifically intend to inflict severe mental pain or suffering. Because the statute requires this mental state with respect to the infliction of severe mental pain, and because it expressly defines severe mental pain in terms of prolonged mental harm, that mental state must be present with respect to prolonged mental harm. To read the statute otherwise would read the phrase "the prolonged mental harm caused by or resulting from" out of the definition of "severe mental pain or suffering."

A defendant could negate a showing of specific intent to cause severe mental pain or suffering by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute. Thus, if a defendant has a good faith belief that his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture. A defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience. See, e.g., Ratlzlaf; 510 U.S. at 142 n.10 (noting that where the statute required that the defendant act with the specific intent to violate the law, the specific intent element "might be negated by, e.g., proof that defendant relied in good faith on advice of counsel.") (citations omitted). All of these steps would show that he has drawn on the relevant body of knowledge concerning the result proscribed that the statute, namely prolonged mental harm. Because the presence of good faith would negate the specific intent element of torture, it is a complete defense to such a charge. See, e.g., United States v. Wall, 130 F.3d 739, 746 (6th Cir. 1997); United States v. Casperson, 773 F.2d 216, 222-23 (8th Cir. 1985).

2. Harm Caused By Or Resulting From Predicate Acts. Section 2340(2) sets forth four basic categories of predicate acts. First in the list is the "intentional infliction or threatened infliction of severe physical pain or suffering." This might at first appear superfluous because the statute already provides that the infliction of severe physical pain or suffering can amount to torture. This provision, however, actually captures the infliction of physical pain or suffering when the defendant inflicts physical pain or suffering with general intent rather than the specific intent that is required where severe physical pain or suffering alone is the basis for the charge. Hence, this subsection reaches the infliction of severe physical pain or suffering when it is but the means of causing prolonged mental harm. Or put another way, a defendant has committed torture when he intentionally inflicts severe physical pain or suffering with the specific intent of causing prolonged mental harm. As for the acts themselves, acts that cause "severe physical pain or suffering" can satisfy this provision.

Additionally, the threat of inflicting such pain is a predicate act under the statute. A threat may be implicit or explicit. See, e.g., United States v. Sachdev, 279 F.3d 25, 29 (1st Cir. 2002). In criminal law, courts generally determine whether an individual's words or actions constitute a threat by examining whether a reasonable person in the same circumstances would conclude that a threat had been made. See, e.g., Watts v. United States, 394 U.S. 705, 708 (1969) (holding that whether a statement constituted a threat against the President's life had to be determined in light of all the surrounding circumstances); Sachdev, 279 F.3d at 29 ("a reasonable person in defendant's position would perceive there to be a threat, explicit, or implicit, of physical injury"); United States v. Khorrami, 895 F.2d 1186, 1190 (7th Cir. 1990) (to establish that a threat was made, the statement must be made "in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm upon [another individual]") (citation and internal quotation marks omitted); United States v. Peterson, 483 F.2d 1222, 1230 (D.C. Cir. 1973) (perception of threat of imminent harm necessary to establish self-defense had to be "objectively reasonable in light of the surrounding circumstances"). Based on this common approach, we believe that the existence of a threat of severe pain or suffering should be assessed from the standpoint of a reasonable person in the same circumstances.

Second, Section 2340(2)(B) provides that prolonged mental harm, constituting torture, can be caused by "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." The statute provides no further definition of what constitutes a mind-altering substance. The phrase "mind-altering substances" is found nowhere else in the U.S. Code nor is it found in dictionaries. It is, however, a commonly used synonym for drugs. See, e.g., United States v. Kingsley, 241 F.3d 828, 834 (6th Cir.) (referring to controlled substances as "mind-altering substance[s]") cert. denied, 122 S. Ct. 137 (2001); Rogue v. Johnson, 131 F.3d 466, 501 (5th Cir. 1997) (referring to drugs and alcohol as "mind-altering substance[s]"), cert. denied, 523 U.S. 1014 (1998). In addition, the phrase appears in a number of state statutes, and the context in which it appears confirms this understanding of the phrase. See, e.g., Cal. Penal Code § 3500(c) (West Supp. 2000) ("Psychotropic drugs also include mind-altering ... drugs ...."); Minn. Stat. Ann. § 260B.201(b) (West Supp. 2002) ("'chemical dependency treatment'" define as programs designed to "reduc[e] the risk of the use of alcohol, drugs, or other mind-altering substances").

This subparagraph, however, does not preclude any and all use of drugs. Instead, it prohibits the use of drugs that "disrupt profoundly the senses or the personality." To be sure, one could argue that this phrase applies only to "other procedures," not the application of mind-altering substances. We reject this interpretation because the terms of Section 2340(2) expressly indicate that the qualifying phrase applies to both "other procedures" and the "application of mind-altering substances. The word "other" modified "procedures calculated to disrupt profoundly the senses." As an adjective, "other" indicates that the term or phrase it modifies is the remainder of several things. See Webster's Third New International Dictionary 1598 (1986) (defining "other" as "the one that remains of two or more") Webster's Ninth New Collegiate Dictionary 835 (1985) (defining "other" as "being the one (as of two or more) remaining or not included"). Or put another way, "other" signals that the words to which it attaches are of the same kind, type, or class as the more specific item previously listed. Moreover, where statutes couple words or phrases together, it "denotes an intention that they should be understood in the same general sense." Norman Singer, 2A Sutherland on Statutory Construction §47:16 (6th ed. 2000); see also Beecham v. United States, 511 U.S. 368, 371 (1994) ("That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well."). Thus, the pairing of mind-altering substances with procedures calculated to disrupt profoundly the senses or personality and the use of "other" to modify "procedures" shows that the use of such substances must also cause a profound disruption of the senses or personality.

For drugs or procedures to rise to the level of "disrupt[ing] profoundly the senses or personality," they must produce an extreme effect. And by requiring that they be "calculated" to produce such an effect, the statute requires for liability the defendant has consciously designed the acts to produce such an effect. 28 U.S.C. § 2340(2)(B). The word "disrupt" is defined as "to break asunder; to part forcibly; rend," imbuing the verb with a connotation of violence. Webster's New International Dictionary 753 (2d ed. 1935); see Webster's Third New International Dictionary 656 (1986) (defining disrupt as "to break apart: Rupture" or "destroy the unity or wholeness of'); IV The Oxford English Dictionary 832 (1989) (defining disrupt as "[t]o break or burst asunder; to break in pieces; to separate forcibly"). Moreover, disruption of the senses or personality alone is insufficient to fall within the scope of this subsection; instead, that disruption must be profound. The word "profound" has a number of meanings, all of which convey a significant depth. Webster's New International Dictionary 1977 (2d ed. 1935) defines profound as: "Of very great depth; extending far below the surface or top; unfathomable[;] ... [c]oming from, reaching to, or situated at a depth or more than ordinary depth; not superficial; deep-seated; chiefly with reference to the body; as a profound sigh, wound, or pain[;] ... [c]haracterized by intensity, as of feeling or quality; deeply felt or realized; as, profound respect, fear or melancholy; hence, encompassing; thoroughgoing; complete; as, profound sleep, silence, or ignorance." See Webster's Third New International Dictionary 1812 (1986) ("having very great depth: extending far below the surface ... not superficial"). Random House Webster's Unabridged Dictionary 1545 (2d ed. 1999) also defines profound as "originating in or penetrating to the depths of one's being" or "pervasive or intense; thorough; complete" or "extending, situated, or originating far down, or far beneath the surface." By requiring that the procedures and the drugs create a profound disruption, the statute 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 phrase "disrupt profoundly the senses or personality" is not used in mental health literature nor is it derived from elsewhere in U.S. law. Nonetheless, we think the following examples would constitute a profound disruption of the senses or personality. 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 things previously of interest to the individual. See DSM-IV at 134.5 This impairment is accompanied by one or more of the following: deterioration of language function, e.g., repeating sounds or words over and over again; impaired ability to execute simple motor activities, e.g., inability to dress or wave goodbye; "[in]ability to recognize [and identify] objects such as chairs or pencils" despite normal visual functioning; or "[d]isturbances in executive level functioning," i.e., serious impairment of abstract thinking. Id. at 134-35. Similarly, we think that the onset of "brief psychotic disorder" would satisfy this standard. See id. at 302-03. In this disorder, the individual suffers psychotic symptoms, including among other things, delusions, hallucinations, or even a catatonic state. This can last for one day or even one month. See id. We likewise think that the onset of obsessive-compulsive disorder behaviors would rise to this level. Obsessions are intrusive thoughts unrelated to reality. They are not simple worries, but are repeated doubts or even "aggressive or horrific impulses." See id. at 418. The DSM-IV further explains that compulsions include "repetitive behaviors (e.g., hand washing, ordering, checking)" and that "[b ]y definition, [they] are either clearly excessive or are not connected in a realistic way with what they are designed to neutralize or prevent." See id. Such compulsions or obsessions must be "time-consuming." See id. at 419. 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." These examples, of course, are in no way intended to be exhaustive list. Instead, they are merely intended to illustrate the sort of mental health effects that we believe would accompany an action severe enough to amount to one that "disrupt[s] profoundly the senses or the personality."

The third predicate act listed in Section 2340(2) is threatening a prisoner with "imminent death." 18 U.S.C. § 2340(2) (C). The plain text makes clear that a threat of death alone is insufficient; the threat must indicate that death is "imminent." The "threat of imminent death" is found in the common law as an element of the defense of duress. See Bailey, 444 U.S. at 409. "[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them." Morissette v. United States, 342 U.S. 246, 263 ( 1952). Common law cases and legislation generally define imminence as requiring that the threat be almost immediately forthcoming. 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7, at 655 (1986). By contrast, threats referring vaguely to things that might happen in the future do not satisfy this immediacy requirement. See United States v. Fiore, 178 F.3d 917, 923 (7th Cir. 1999). Such a threat fails to satisfy this requirement not because it is too remote in time but because there is a lack of certainty that 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. Additionally, as discussed earlier, we believe that the existence of a threat must be assessed from the perspective of a reasonable person in the same circumstances.

Fourth, if the official threatens to do anything previously described to a third party, or commits such an act against a third party, that threat or action can serve as the necessary predicate for prolonged mental harm. See 18 U.S.C. § 2340 2)(D). The statute does not require any relationship between the prisoner and the third party.

3. Legislative History. The legislative history of Sections 2340-2340A is scant. Neither the definition of torture nor these sections as a whole sparked any debate. Congress criminalized this conduct to fulfill U.S. obligations under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), adopted Dec.10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 (entered into force June 26, 1987), which requires signatories to "ensure that all acts of torture are offenses under its criminal law." CAT Article 4. These sections appeared only in the Senate version of the Foreign Affairs Authorization Act, and the conference bill adopted them without amendment. See H. R. Conf. Rep. No. 103-482, at 229 ( 1994 ). The only light that the legislative history sheds reinforces what is already obvious from the texts of Section 2340 and CAT: Congress intended Section 2340's definition of torture to track the definition set forth in CAT, as elucidated by the United States' reservations, understandings, and declarations submitted as part of its ratification. See S. Rep. No. 103-107, at 58 (1993) ("The definition of torture emanates directly from Article 1 of the Convention."); id. at 58-59 ("The definition for 'severe mental pain and suffering' incorporates the understanding made by the Senate concerning this term.").

4. Summary. Section 2340's definition of torture must be read as a sum of these component parts. See Argentine Rep. v. Amerada Hess Shipping Carp., 488 U.S. 428, 434-35 (1989) (reading two provisions together to determine statute's meaning); Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 405 (1988) (looking to "the language and design of the statute as a whole" to ascertain a statute's meaning). Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result. If that pain or suffering is psychological, that suffering must result from one of the acts set forth in the statute. In addition, these acts must cause long-term mental harm. Indeed, this view of the criminal act of torture is consistent with the term's common meaning. Torture is generally understood to involve "intense pain" or "excruciating pain," or put another way, "extreme anguish of body or mind." Black's Law Dictionary at 1498 (7th Pod. 1999); Random House Webster's Unabridged Dictionary 1999 (1999); Webster's New International Dictionary 2674 (2d ed. 1935) In short, reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts. [6l

II. U.N. Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment

Because Congress enacted the criminal prohibition against torture to implement CAT, we also examine the treaty's text and history to develop a fuller understanding of the context of Sections 2340-2340A. As with the statute, we begin our analysis with the treaty's text. See Eastern Airlines Inc. v. Floyd, 499 U.S. 530, 534-35 (1991) ("When interpreting a treaty, we begin with the text of the treaty and the context in which the written words are used.) (quotation marks and citations omitted). CAT defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.


Article 1(1) (emphasis added). Unlike Section 2340, this definition includes a list of purposes for which such pain and suffering is inflicted. The prefatory phrase "such purposes as'' makes clear that this list is, however, illustrative rather than exhaustive. Accordingly, severe pain or suffering need not be inflicted for those specific purposes to constitute torture; instead, the perpetrator must simply have a purpose of the same kind. More importantly, like Section 2340, the pain and suffering must be severe to reach the threshold of torture. Thus, the text of CAT reinforces our reading of Section 2340 that torture must be an extreme act. [7]

CAT also distinguishes between torture and other acts of cruel, inhuman, or degrading treatment or punishment. [8] Article 16 of CAT requires state parties to "undertake to prevent ... other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1." (Emphasis added). CAT thus establishes a category of acts that are not to be committed and that states must endeavor to prevent, but that states need not criminalize, leaving those acts without the stigma of criminal penalties. CAT reserves criminal penalties and the stigma attached to those penalties for torture alone. In so doing, CAT makes clear that torture is at the farthest end of impermissible actions, and that it is distinct and separate from the lower level of "cruel, inhuman, or degrading treatment or punishment." This approach is in keeping with CAT's predecessor, the U.N. Declaration on the Protection from Torture. That declaration defines torture as "an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment." Declaration on Protection from Torture, UN Res. 3452, Art. 1(2) (Dec. 9, 1975)
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 2 OF 4 (MEMO 14 CONT'D.)

A. Ratification History

Executive branch interpretation of CAT further supports our conclusion that the treaty, and thus Section 2340A, prohibits only the most extreme forms of physical or mental harm. As we have previously noted, the "division of treaty-making responsibility between the Senate and the President is essentially the reverse of the division of lawmaking authority, with the President being the draftsman of the treaty and the Senate holding the authority to grant or deny approval." Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. O.L.C. 28, 31 (Apr 9, 1987) ("Sofaer Memorandum"). Treaties are negotiated by the President in his capacity as the "sole organ of the federal government in the field of international relations." United States v. Curtis Wright Export Corp. , 299 U.S. 304, 320 (1936). Moreover, the President is responsible for the day-to-day interpretation of a treaty and retains the power to unilaterally terminate a treaty. See Goldwater v. Carter, 617 F.2d 697, 707-08 (D.C. Cir.) (en banc) vacated and remanded with instructions to dismiss on other grounds, 444 U.S. 996 (1979). The Executive's interpretation is to be accorded the greatest weight in ascertaining a treaty's intent and meaning. See, e.g., United States v. Stuart, 489 U.S. 353, 369 (1989) ("'the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight'") (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982)); Kolovrat v. Oregon, 366 U.S. 187, 194 ( 1961) ("While courts interpret treaties for themselves, the meaning given them by the department of government particularly charged with their negotiation and enforcement is given great weight."); Charlton v. Kelly, 229 U.S. 447, 468 (1913) ("A construction of a treaty by the political departments of the government, while not conclusive upon a court ..., is nevertheless of much weight.").

A review of the Executive branch's interpretation and understanding of CAT reveals that Congress codified the view that torture included only the most extreme forms of physical or mental harm. When it submitted the Convention to the Senate, the Reagan Administration took the position that CAT reached only the most heinous acts. The Reagan Administration included the following understanding:

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.


S. Treaty Doc. No.100-20, at 4-5. Focusing on the treaty's requirement of "severity," the Reagan administration concluded, "The extreme nature of torture is further emphasized in [this] requirement." S. Treaty Doc. No. 100-20, at 3 (1988); S. Exec. Rep. 101-30, at 13 (1990). The Reagan administration also determined that CAT's definition of torture fell in line with "United States and international usage, [where it] is usually reserved for extreme deliberate and unusually cruel practices, for example, sustained systematic beatings, application of electric currents to sensitive parts of the body and tying up or hanging in positions that cause extreme pain." S. Exec. Rep. No. 101-30, at 14 (1990). In interpreting CAT's definition of torture as reaching only such extreme acts, the Reagan administration underscored the distinction between torture and other cruel, inhuman, or degrading treatment or punishment. In particular, the administration declared that Article 1's definition of torture ought to be construed in light of Article 16. See S. Treaty Doc. No. 100-20, at 3. Based on this distinction, the administration concluded that: "'Torture' is thus to be distinguished from lesser forms of cruel, inhuman, or degrading treatment or punishment, which are to be deplored and prevented, but are not so universally and categorically condemned as to warrant the severe legal consequences that the Convention provides in case of torture." S. Treaty Doc. 100-20, at 3. Moreover, this distinction was "adopted in order to emphasize that torture is at the extreme end of cruel, inhuman and degrading treatment or punishment." S. Treaty Doc. No. 100-20, at 3. Given the extreme nature of torture, the administration concluded that "rough treatment as generally falls into the category of 'police brutality,' while deplorable, does not amount to 'torture.'" S. Treaty Doc. No. 100-20, at 4.

Although the Reagan administration relied on CAT's distinction between torture and "cruel, inhuman, or degrading treatment or punishment," it viewed the phrase "cruel, inhuman, or degrading treatment or punishment" as vague and lacking in a universally accepted meaning. Of even greater concern to the Reagan administration was that because of its vagueness this phrase could be construed to bar acts not prohibited by the U.S. Constitution. The administration pointed to Case of X v. Federal Republic of Germany as the basis for this concern. In that case, the European Court of Human Rights determined that the prison officials' refusal to recognize a prisoner's sex change might constitute degrading treatment. See S. Treaty Doc. No. 100-20, at 15 (citing European Commission on Human Rights, Dec. on Adm., Dec. 15, 1977, Case of X v. Federal Republic of Germany (No. 6694/74), 11 Dec. & Rep.16)). As a result of this concern, the Administration added the following understanding:

The United States understands the term, 'cruel, inhuman or degrading treatment or punishment,' as used in Article 16 of the Convention, to mean the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States."


S. Treaty Doc. No.100-20, at 15-16. Treatment or punishment must therefore rise to the level of action that U.S. courts have found to be in violation of the U.S. Constitution in order to constitute cruel, inhuman, or degrading treatment or punishment. That which fails to rise to this level must fail, a fortiori, to constitute torture under Section 2340. [9]

The Senate did not give its advice and consent to the Convention until the first Bush administration. Although using less vigorous rhetoric, the Bush administration joined the Reagan administration in interpreting torture as only reaching extreme acts. To ensure that the Convention's reach remained limited, the Bush administration submitted the following understanding:

The United States understands that, 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 pain caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) 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. This understanding accomplished two things. First, it ensured that the term "intentionally" would be understood as requiring specific intent. Second, it added form and substance to the otherwise amorphous concept of mental pain or suffering. In so doing, this understanding ensured that mental torture would rise to a severity seen in the context of physical torture. The Senate ratified CAT with this understanding, and as is obvious from the text, Congress codified this understanding almost verbatim in the criminal statute.

To be sure, it might be thought significant that the Bush administration's language differs from The Reagan administration understanding. The Bush administration said that it had altered The CAT understanding in response to criticism that the Reagan administration's original formulation had raised the bar for the level of pain necessary for the act or acts to constitute torture. See Convention Against Torture: Hearing Before the Senate Comm. On Foreign Relations, 101st Cong. 9-10 (1990) ("1990 Hearing") (prepared statement of Hon. Abraham D. Sofaer, Legal Adviser, Department of State). While it is true that there are rhetorical differences between the understandings, both administrations consistently emphasize the extraordinary or extreme acts required to constitute torture. As we have seen, the Bush understanding as codified in Section 2340 reaches only extreme acts. The Reagan understanding, like the Bush understanding, ensured that "intentionally" would be understood as a specific intent requirement. Though The Reagan administration required that the "act be deliberate and calculated" and that it be inflicted with specific intent, in operation there is little difference between requiring specific intent alone and requiring that the act be deliberate and calculated. The Reagan understanding's also made express what is obvious from the plain text of CAT: torture is an extreme form of cruel and inhuman treatment. The 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.

The Bush understanding simply took a rather abstract concept -- excruciating and agonizing mental pain -- and gave it a more concrete form. Executive branch representations made to the Senate support our view that there was little difference between these two understandings and that the further definition of mental pain or suffering merely sought to remove the vagueness created by concept of "agonizing and excruciating" mental pain. See 1990 Hearing, at 10 (prepared statement of Ron. Abraham D. Sofaer Legal Adviser, Department of State) ("no higher standard was intended" by the Reagan administration understanding than was present in the Convention or the Bush understanding); id. at 13-14 (statement of Mark Richard, Deputy Assistant Attorney General, Criminal Division, Department of Justice) ("In an effort to overcome this unacceptable element of vagueness [in the term "mental pain"], we have proposed an understanding which defines severe mental pain constituting torture with sufficient specificity ... to protect innocent persons and meet constitutional due process requirements.") Accordingly, we believe that the two definitions submitted by the Reagan and Bush administrations had the same purpose in terms of articulating a legal standard, namely, ensuring that the prohibition against torture reaches only the most extreme acts. Ultimately, whether the Reagan standard would have been even higher is a purely academic question because the Bush understanding clearly established a very high standard.

Executive branch representations made to the Senate confirm that the Bush administration maintained the view that torture encompassed only the most extreme acts. Although the ratification record, i.e., testimony, hearings, and the like, is generally not accorded great weight in interpreting treaties, authoritative statements made by representatives of the Executive Branch are accorded the most interpretive value. See Sofaer Memorandum, at 35-36. Hence, the testimony of the executive branch witnesses defining torture, in addition to the reservations, understandings and declarations that were submitted to the Senate by the Executive branch, should carry the highest interpretive value of any of the statements in the ratification record. At the Senate hearing on CAT, Mark Richard, Deputy Assistant Attorney General, Criminal Division, Department of Justice, offered extensive testimony as to the meaning of torture. Echoing the analysis submitted by the Reagan administration, he testified that "[t]orture is understood to be that barbaric cruelty which lies at the top of the pyramid of human rights misconduct." 1990 Hearing, at 16 (prepared statement of Mark Richard). He further explained, "As applied to physical torture, there appears to be some degree of consensus that the concept involves conduct, the mere intention of which sends chills down one's spine[.]" Id. Richard gave the following examples of conduct satisfying this standard: "the needle under the fingernail, the application of electrical shock to the genital area, the piercing of eyeballs, etc." Id. In short, repeating virtually verbatim the terms used in the Reagan understanding, Richard explained that under the Bush administration's submissions with the treaty "the essence of torture" is treatment that inflicts "excruciating and agonizing physical pain." Id. (emphasis added).

As to mental torture, Richard testified that "no international consensus had emerged [as to] what degree of mental suffering is required to constitute torture[,]" but that it was nonetheless clear that severe mental pain or suffering "does not encompass the normal legal compulsions which are properly a part of the criminal justice system[:] interrogation, incarceration, prosecution, compelled testimony against a friend, etc, -- notwithstanding the fact that they may have the incidental effect of producing mental strain." Id. at 17. According to Richard, CAT was intended to "condemn as torture intentional acts such as those designed to damage and destroy the human personality." Id. at 14. This description of mental suffering emphasizes the requirement that any mental harm be of significant duration and lends further support for our conclusion that mind-altering substances must have a profoundly disruptive effect to serve as a predicate act.

Apart from statements from Executive branch officials, the rest of a ratification record is of little weight in interpreting a treaty. See generally Sofaer Memorandum. Nonetheless, the Senate understanding of the definition of torture largely echoes the administrations' views. The Senate Foreign Relations Committee Report on CAT opined: "for an act to be 'torture' it must be an extreme form of cruel and inhuman treatment, cause severe pain and suffering and be intended to cause severe pain and suffering." S. Exec. Rep. No. 101-30, at 6 (emphasis added). Moreover, like both the Reagan and Bush administrations, the Senate drew upon the distinction between torture and cruel, inhuman or degrading treatment or punishment in reaching its view that torture was extreme. [10] Finally, the Senate concurred with the administrations' concern that "cruel, inhuman, or degrading treatment or punishment" could be construed to establish a new standard above and beyond that which the Constitution mandates and supported the inclusion of the reservation establishing the Constitution as the baseline for determining whether conduct amounted to cruel, inhuman, degrading treatment or punishment. See 136 Cong. Rec. 36, 192 (1990); S. Exec. Rep. 101-30, at 39.

B. Negotiating History

CAT's negotiating history also indicates that its definition of torture supports our reading of Section 2340. The state parties endeavored to craft a definition of torture that reflected the term's gravity. During the negotiations, state parties offered various formulations of the definition of torture to the working group, which then proposed a definition based on those formulations. Almost all of these suggested definitions illustrate the consensus that torture is an extreme act designed to cause agonizing pain. For example, the United States proposed that torture be defined as "includ[ing] any act by which extremely severe pain or suffering ... is deliberately and maliciously inflicted on a person." J. Herman Burgers & Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment 41 (1988) ("CAT Handbook"). The United Kingdom suggested an even more restrictive definition, i.e., that torture be defined as the "systematic and intentional infliction of extreme pain or suffering rather than intentional infliction of severe pain or suffering." Id. at 45 (emphasis in original). Ultimately, 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." Id. at 117.

In crafting such a definition, the state parties also were acutely aware of the distinction they drew between torture and cruel, inhuman, or degrading treatment or punishment. The state parties considered and rejected a proposal that would have defined torture merely as cruel, inhuman or degrading treatment or punishment. See id. at 42. Mirroring the Declaration on Protection From Torture, which expressly defined torture as an "aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment," some state parties proposed that in addition to the definition of torture set out in paragraph 2 of Article 1, a paragraph defining torture as "an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment" should be included. See id. at 41; see also S. Treaty Doc. No. 100-20, at 2 (the U.N. Declaration on Protection from Torture (1975) served as "a point of departure for the drafting of [CAT]"). In the end, the parties concluded that the addition of such a paragraph was superfluous because Article 16 "impl[ies] that torture is the gravest form of such treatment or punishment." CAT Handbook at 80; see S. Exec. Rep. No. 101- 30, at 13 ("The negotiating history indicates that [the phrase 'which do not amount to torture'] was adopted in order to emphasize that torture is at the extreme end of cruel, inhuman and degrading treatment or punishment and that Article 1 should be construed with this in mind.").

Additionally, the parties could not reach a consensus about the meaning of "cruel, inhuman, or degrading treatment or punishment." See CAT Handbook at 47. Without a consensus, the parties viewed the term as simply " 'too vague to be included in a convention which was to form the basis for criminal legislation in the Contracting States.'" Id. This view evinced by the parties reaffirms the interpretation of CAT as purposely reserving criminal penalties for torture alone.

CAT's negotiating history offers more than just support for the view that pain or suffering must be extreme to amount to torture. First, the negotiating history suggests that the harm sustained from the acts of torture need not be permanent. In fact, "the United States considered that it might be useful to develop the negotiating history which indicates that although conduct resulting in permanent impairment of physical or mental faculties is indicative of torture, it is not an essential element of the offence." Id. at 44. Second, the state parties to CAT rejected a proposal to include in CAT's definition of torture the use of truth drugs, where no physical harm or mental suffering was apparent. This rejection at least suggests that such drugs were not viewed as amounting to torture per se. See id. at 42.

C. Summary

The text of CAT confirms our conclusion that Section 2340A was intended to proscribe only the most egregious conduct. CAT not only defines torture as involving severe pain and suffering, but also it makes clear that such pain and suffering is at the extreme end of the spectrum of acts by reserving criminal penalties solely for torture. Executive interpretations confirm our view that the treaty (and hence the statute) prohibits only the worst forms of cruel, inhuman, or degrading treatment or punishment. The ratification history further substantiates this interpretation. Even the negotiating history displays a recognition that torture is a step far-removed from other cruel, inhuman or degrading treatment or punishment. In sum, CAT's text, ratification history and negotiating history all confirm that Section 2340A reaches only the most heinous acts.

III. U.S. Judicial Interpretation

There are no reported cases of prosecutions under Section 2340A. See Beth Stephens, Corporate Liability: Enforcing Human Rights Through Domestic Litigation, 24 Hastings Int'l & Comp. L. Rev. 401, 408 & n.29 (2001); Beth Van Schaack, In Defense of Civil Redress: The Domestic Enforcement of Human Rights Norms in the Context of the Proposed Hague Judgment." Convention, 42 Harv. Int'l L. J. 141, 148-49 (2001); Curtis A. Bradley, Universal Jurisdiction and U.S. Law, 2001 U. Chi. Legal F. 323, 327-28. Nonetheless, we are not without guidance as to how United States courts would approach the question of what conduct constitutes torture. Civil suits filed under the Torture Victims Protection Act ("TVPA"), 28 U.S.C. § 1350 note (2000), which supplies a tort remedy for victims of torture, provide insight into what acts U.S. courts would conclude constitute torture under the criminal statute.

The TVPA contains a definition similar in some key respects to the one set forth in Section 2340. Moreover, as with Section 2340, Congress intended for the TVPN's definition of torture to follow closely the definition found in CAT. See Xuncax v. Gramajo, 886 F. Supp. 162, 176 n.12 (D. Mass 1995) (noting that the definition of torture in the TVPA tracks the definitions in Section 2340 and CAT). [11] The TVPA defines torture as:

(1) ... any act, directed against an individual in the offender's custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and

(2) mental pain or suffering refers to 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 individual 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.

28 U.S.C. § 1350 note § 3(b). This definition differs from Section 2340's definition in two respects. First, the TVPA definition contains an illustrative list of purposes for which such pain may have been inflicted. See id. Second, the TVPA includes the phrase "arising only from or inherent in, or incidental to lawful sanctions"; by contrast, Section 2340 refers only to pain or suffering "incidental to lawful sanctions." Id. Because the purpose of our analysis here is to ascertain acts that would cross the threshold of producing "severe physical or mental pain or suffering," the list of illustrative purposes for which it is inflicted, generally would not affect this analysis. [12] Similarly, to the extent that the absence of the phrase "arising only from or inherent in" from Section 2340 might affect the question of whether pain or suffering was part of lawful sanctions and thus not torture, the circumstances with which we are concerned here are solely that of interrogations, not the imposition of punishment subsequent to judgment. These differences between the TVPA and Section 2340 are therefore not sufficiently significant to undermine the usefulness of TVPA cases here. [13l

In suits brought under the TVPA, courts have not engaged in any lengthy analysis of what acts constitute torture. In part, this is due to the nature of the acts alleged. Almost all of the cases involve physical torture, some of which is of an especially cruel and even sadistic nature. Nonetheless, courts appear to look at the entire course of conduct rather than any one act, making it somewhat akin to a totality-of-the-circumstances analysis. Because of this approach, it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture. Certain acts do, however, consistently reappear in these cases or are of such a barbaric nature, that it is likely a court would find that allegations of such treatment would constitute 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. Given the highly contextual nature of whether a set of acts constitutes torture, we have set forth in the attached appendix the circumstances in which courts have determined that the plaintiff has suffered torture, which include the cases from which these seven acts are drawn. 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.

Despite the limited analysis engaged in by courts, a recent district court opinion provides some assistance in predicting how future courts might address this issue. In Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, (N.D. Ga. 2002), the plaintiffs, Bosnian Muslims, sued a Bosnian Serb, Nikola Vuckovic, for, among other things, torture and cruel and inhumane treatment. The court described in vivid detail the treatment the plaintiffs endured. Specifically, the plaintiffs experienced the following:

Vuckovic repeatedly beat Kemal Mehinovic with a variety of blunt objects and boots, intentionally delivering blows to areas he knew to already be badly injured, including Mehinovic's genitals. Id. at 1333-34. On some occasions he was tied up and hung against windows during beatings. Id. Mehinovic, was subjected to the game of "Russian roulette" See id. Vuckovic, along with other guards, also forced Mehinovic to run in a circle while the guards swung wooden planks at him. Id.

Like Mehinovic, Muhamed Bicic was beaten repeatedly with blunt objects, to the point of loss of consciousness. See Id at 1335. He witnessed the severe beatings of other prisoners, including his own brother. "On one occasion, Vuckovic ordered Bicic to get on all fours while another soldier stood or rode on his back and beat him with a baton -- a game the soldiers called 'horse.'" Id. Bicic, like Mehinovic, was subjected to the game of Russian roulette. Additionally, Vuckovic and the other guards forcibly extracted a number of Bicic's teeth. Id. at 1336.

Safet Hadzialijagic was subjected to daily beatings with "metal pipes, bats, sticks, and weapons." Id. at 1337. He was also subjected to Russian roulette. See id. at 1336-37.

Hadzialijagic also frequently saw other prisoners being beaten or heard their screams as they were beaten. Like Bicic, he was subjected to the teeth extraction incident. On one occasion, Vuckovic rode Hadzialijagic like a horse, simultaneously hitting him in the head and body with a knife handle. During this time, other soldiers kicked and hit him. He fell down during this episode and was forced to get up and continue carrying Vuckovic. See id. "Vuckovic and the other soldiers [then] tied Hadzialijagic with a rope, hung him upside down, and beat him. When they noticed that Hadzialijagic was losing consciousness, they dunked his head in a bowl used as a toilet," Id. Vuckovic then forced Hadzialijagic to lick the blood off of Vuckovic's boots and kicked Hadzialijagic as he tried to do so. Vuckovic then used his knife to carve a semi-circle in Hadzialijagic's forehead. Hadzialijagic went into cardiac arrest just after this incident and was saved by one of the other plaintiffs. See id.

Hasan Subasic was brutally beaten and witnessed the beatings of other prisoners, including the beating and death of one of his fellow prisoners and the beating of Hadzialijagic in which he was tied upside down and beaten. See id. at 1338-39. Id. at 1338. Subasic also was subjected to the teeth pulling incident. Vuckovic personally beat Subasic two times, punching him and kicking him with his military boots. In one of these beatings, "Subasic had been forced into a kneeling position when Vuckovic kicked him in the stomach." Id.

The district court concluded that the plaintiffs suffered both physical and mental torture at the hands of Vuckovic. [14l With respect to physical torture, the court broadly outlined with respect to each plaintiff the acts in which Vuckovic had been at least complicit and that it found rose to the level of torture. Regarding Mehinovic, the court determined that Vuckovic's beatings of Mehinovic in which he kicked and delivered other blows to Mehinovic's face, genitals, and others body parts, constituted torture, The court noted that these beatings left Mehinovic disfigured, may have broken ribs, almost caused Mehinovic to lose consciousness, and rendered him unable to eat for a period of time. As to Bicic, the court found that Bicic had suffered severe physical pain and suffering as a result of Vuckovic's repeated beatings of him in which Vuckovic used various instruments to inflict blows, the "horse" game, and the teeth pulling incident. See id. at 1346. In finding that Vuckovic inflicted severe physical pain on Hadzialijagic, the court unsurprisingly focused on the beating in which Vuckovic tied Hadzialijagic upside down and beat him. See id. The court pointed out that in this incident, Vuckovic almost killed Hadzialijagic. See id. The court further concluded that Subasic experienced severe physical pain and thus was tortured based on the beating in which Vuckovic kicked Subasic in the stomach. See id.

The court also found that the plaintiffs had suffered severe mental pain. In reaching this conclusion, the court relied on the plaintiffs' testimony that they feared they would be killed during beatings by Vuckovic or during the "game" of Russian roulette. Although the court did not specify the predicate acts that caused the prolonged mental harm, it is plain that both the threat of severe physical pain and the threat of imminent death were present and persistent. The court also found that the plaintiffs established the existence of prolonged mental harm as each plaintiff "continues to suffer' long-term psychological harm as a result of [their] ordeals." Id. (emphasis added). In concluding that the plaintiffs had demonstrated the necessary "prolonged mental harm," the court's description of that harm as ongoing and "long-term" confirms that, to satisfy the prolonged mental harm requirement, the harm must be of a substantial duration.

The court did not, however, delve into the nature of psychological harm in reaching its conclusion. Nonetheless, the symptoms that the plaintiffs suffered and continue to suffer are worth noting as illustrative of what might in future cases be held to constitute mental harm. Mehinovic had "anxiety, flashbacks, and nightmares and has difficulty sleeping." Id. at 1334. Similarly, Bicic, "suffers from anxiety, sleeps very little, and has frequent nightmares" and experiences frustration at not being able to work due to the physical and mental pain he suffers. Id. at 1336. Hadzialijagic experienced nightmares, at times required medication to help him sleep, suffered from depression, and had become reclusive as a result of his ordeal. See id. at 1337-38. Subasic, like the others, had nightmares and flashbacks, but also suffered from nervousness, irritability, and experienced difficulty trusting people. The combined effect of these symptoms impaired Subasic's ability to work. See id. at 1340. Each of these plaintiff's suffered from mental harm that destroyed his ability to function normally, on a daily basis, and would continue to do so into the future.

In general, several guiding principles can be drawn from this case. First, this case illustrates that a single incident can constitute torture. The above recitation of the case's facts shows that Subasic was clearly subjected to torture in a number of instances, e.g., the teeth pulling incident, which the court finds to constitute torture in discussing Bicic. The court nevertheless found that the beating in which Vuckovic delivered a blow to Subasic's stomach while he was on his knees sufficed to establish that Subasic had been tortured. Indeed, the court stated that this incident "calls[ed] Subasic to suffer severe pain." Id. at 1346. The court's focus on this incident, despite the obvious context of a course of torturous conduct, suggests that a course of con-duct is unnecessary to establish that an individual engaged in torture. It bears noting, however, that there are no decisions that have found an example of torture on facts that show the action was isolated, rather than part of a systematic course of conduct. Moreover, we believe that had this been an isolated instance, the court's conclusion that this act constituted torture would have been in error because this single blow does not reach the requisite level of severity.

Second, the case demonstrates that courts may be willing to find that a wide range of physical pain can rise to the necessary level of "severe pain or suffering." At one end of the spectrum is what the court calls the "nightmarish beating" in which Vuckovic hung Hadzialijagic upside down and beat him, culminating in Hadzialijagic going into cardiac arrest and narrowly escaping death. Id. It takes little analysis or insight to conclude that this incident constitutes torture. At the other end of the spectrum, is the court's determination that a beating in which "Vuckovic hit plaintiff Subasic and kicked him in the stomach with his military boots while Subasic was forced into a kneeling position[]" constituted torture. Id. To be sure, this beating caused Subasic substantial pain. But that pain pales in comparison to the other acts described in this case. Again, to the extent the opinion can be read to endorse the view that this single act and the attendant pain, considered in isolation, rose to the level of "severe pain or suffering: we would disagree with such a view based on our interpretation of the criminal statute.

The district court did not attempt to delineate the meaning of torture. It engaged in no statutory analysis. Instead, the court merely recited the definition and described the acts that it concluded constituted torture. This approach is representative of the approach most often taken in TVPA cases. The adoption of such an approach suggests that torture generally is of such an extreme nature -- namely, the nature of acts are so shocking and obviously incredibly painful -- that courts will more likely examine the totality of the circumstances, rather than engage in a careful parsing of the statute. A broad view of this case, and of the TVPA cases more generally, shows that only acts of an extreme nature have been redressed under the TVPA's civil remedy for torture. We note, however, that Mehinovic presents, with the exception of the single blow to Subasic, facts that are well over the line of what constitutes torture. While there are cases that fall far short of torture, see infra app., there are no cases that analyze what the lowest boundary of what constitutes torture. Nonetheless, while this case and the other TVPA cases generally do not approach that boundary, they are in keeping with the general notion that the term "torture" is reserved for acts of the most extreme nature.

IV. International Decisions

International decisions can prove of some value in assessing what conduct might rise to the level of severe mental pain or suffering. Although decisions by foreign or international bodies are in no way binding authority upon the United States, they provide guidance about how other nations will likely react to our interpretation of the CAT and Section 2340. As this Part will discuss, other Western nations have generally used a high standard in determining whether interrogation techniques violate the international prohibition on torture. In fact, these decisions have found various aggressive interrogation methods to, at worst, constitute cruel, inhuman, and degrading treatment, but not torture. These decisions only reinforce our view that there is a clear distinction between the two standards and that only extreme conduct, resulting in pain that is of an intensity often accompanying serious physical injury, will violate the latter.

A. European Court of Human Rights

An analogue to CAT's provisions can be found in the European Convention on Human Rights and Fundamental Freedoms (the "European Convention"). This convention prohibits torture, though it offers no definition of it. It also prohibits cruel, inhuman, or degrading treatment or punishment. By barring both types of acts, the European Convention implicitly distinguishes between them and further suggests that torture is a grave act beyond cruel, inhuman, or degrading treatment or punishment. Thus, while neither the European Convention nor the European Court of Human Rights decisions interpreting that convention would be authority for the interpretation of Sections 2340-2340A, the European Convention decisions concerning torture nonetheless provide a useful barometer of the international view of what actions amount to torture.

The leading European Court of Human Rights case explicating the differences between torture and cruel, inhuman, or degrading treatment or punishment is Ireland v. the United Kingdom (1978). [15] In that case, the European Court of Human Rights examined interrogation techniques somewhat more sophisticated than the rather rudimentary and frequently obviously cruel acts described in the TVPA cases. Careful attention to this case is worthwhile not just because it examines methods not used in the TVPA cases, but also because the Reagan administration relied on this case in reaching the conclusion that the term torture is reserved in international usage for "extreme, deliberate, and unusually cruel practices." S. Treaty Doc. 100-20, at 4.

The methods at issue in Ireland were:

(1) Wall Standing. The prisoner stands spreadeagle against the wall, with fingers high above his head, and feet back so that he is standing on his toes such that his all of his weight falls on his fingers.

(2) Hooding. A black or navy hood is placed over the prisoner's head and kept there except during the interrogation.

(3) Subjection to Noise. Pending interrogation, the prisoner is kept in a room with a loud and continuous hissing noise.

(4) Sleep Deprivation. Prisoners are deprived of sleep pending interrogation.

(5) Deprivation of Food and Drink. Prisoners receive a reduced diet during detention and pending interrogation.

The European Court of Human Rights concluded that these techniques used in combination, and applied for hours at a time, were inhuman and degrading but did not amount to torture. In analyzing whether these methods constituted torture, the court treated them as part of a single program. See Ireland. §104. The court found that this program caused "if not actual bodily injury, at least intense physical and mental suffering to the person subjected thereto and also led to acute psychiatric disturbances during the interrogation." Id. § 167, Thus, this program "fell into the category of inhuman treatment[.]" Id. The court further found that "[t]he techniques were also degrading since they were such as to arouse in their victims feeling of fear, anguish and inferiority capable of humiliating and debasing them and possible [sicl breaking their physical or moral resistance." Id. Yet, the court ultimately concluded:

Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confession, the naming of others and/or information and although they were used ystematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture ...


Id. (emphasis added). Thus, even though the court had concluded that the techniques produce "intense physical and mental suffering" and "acute psychiatric disturbances," they were not sufficient intensity or cruelty to amount to torture.

The court reached this conclusion based on the distinction the European Convention drew between torture and cruel, inhuman, or degrading treatment or punishment. The court reasoned that by expressly distinguishing between these two categories of treatment, the European Convention sought to "attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering." Id. §167, According to the court, "this distinction derives principally from a difference in the intensity of the suffering inflicted." Id. The court further noted that this distinction paralleled the one drawn in the U.N. Declaration on the Protection From Torture, which specifically defines torture as "'an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.'" Id. (quoting U.N. Declaration on the Protection From Torture) .

The court relied on this same "intensity/cruelty" distinction to conclude that some physical maltreatment fails to amount to torture. For example, four detainees were severely beaten and forced to stand spreadeagle up against a wall. See id. § 110. Other detainees were forced to stand spreadeagle while an interrogator kicked them "continuously on the inside of the legs." Id. - 111. Those detainees were beaten, some receiving injuries that were "substantial" and, others received "massive" injuries. See id. Another detainee was "subjected to ... 'comparatively trivial' beatings" that resulted in a perforation of the detainee's eardrum and some "minor bruising." Id. §115. The court concluded that none of these situations "attain[ed] the particular level [of severity] inherent in the notion of torture." Id. § 174.

B. Israeli Supreme Court

The European Court of Human Rights is not the only other court to consider whether such a program of interrogation techniques was permissible. In Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 (1999), the Supreme Court of Israel reviewed a challenge brought against the General Security Service ("GSS") for its use of five techniques. At issue in Public Committee Against Torture In Israel were: (1) shaking, (2) the Shabach, (3) the Frog Crouch, (4) excessive tightening of handcuffs, and (5) sleep deprivation. "Shaking" is "the forceful shaking of the suspect's upper torso, back and forth, repeatedly, in a manner which causes the neck and head to dangle and vacillate rapidly." Id. § 9, The "Shabach" is actually a combination of methods wherein the detainee

is seated on a small and low chair, whose seat is tilted forward, towards the ground. One hand is tied behind the suspect, and placed inside the gap between the chair's seat and back support. His second hand is tied behind the chair against its back support. The suspect's head is covered by an opaque sack, falling down to his shoulders. Powerfully loud music is played in the room.


Id. ¶ 10.

The "frog crouch" consists of "consecutive, periodical crouches on the tips of one's toes, each lasting for five minute intervals." Id. ¶ 11, The excessive tightening of handcuffs simply referred to the use handcuffs that were too small for the suspects' wrists. See id. ¶ 12. Sleep deprivation occurred when the Shabach was used during "intense non-stop interrogations." [16] Id. ¶ 13.

While the Israeli Supreme Court concluded that these acts amounted to cruel, and inhuman treatment, the court did not expressly find that they amounted to torture. To be sure, such a conclusion was unnecessary because even if the acts amounted only to cruel and inhuman treatment the GSS lacked authority to use the five methods. Nonetheless, the decision is still best read as indicating that the acts at issue did not constitute torture. The court's descriptions of and conclusions about each method indicate that the court viewed them as merely cruel, inhuman or degrading but not of the sufficient severity to reach the threshold of torture. While its descriptions discuss necessity, dignity, degradation, and pain, the court carefully avoided describing any of these acts as having the severity of pain or suffering indicative of torture. See id, at ¶¶ 24-29. Indeed, in assessing the Shabach as a whole, the court even relied upon the European Court of Human Right's Ireland decision for support and it did not evince disagreement with that decision's conclusion that the acts considered therein did not constitute torture. See id. ¶ 30.

Moreover, the Israeli Supreme Court concluded that in certain circumstances GSS officers could assert a necessity defense. [17] CAT, however expressly provides that "[n]o exceptional circumstance whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency may be invoked as a justification of torture." Article 2(2). Had the court been of the view that the GSS methods constituted torture, the Court could not permit this affirmative defense under CAT. Accordingly, the court's decision is best read as concluding that these methods amounted to cruel and inhuman treatment, but not torture.

In sum, both the European Court on Human Rights and the Israeli Supreme Court have recognized a wide array of acts that constitute Cruel, inhuman, or degrading treatment or punishment, but do not amount to torture. Thus, they appear to permit, under international law, an aggressive interpretation as to what amounts to torture, leaving that label to be applied only where extreme circumstances exist.

V. The Presidents Commander-in-Chief Power

Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President's constitutional power to conduct a military campaign. As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy. The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack. In such a case, the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply Section 2340A in a manner that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.

A. The War with Al Qaeda

At the outset, we should make clear the nature of the threat presently posed to the nation. While your request for legal advice is not specifically limited to the current circumstances, we think it is useful to discuss this question in the context of the current war against the al Qaeda terrorist network. The situation in which these issues arise is unprecedented in recent American history. Four coordinated terrorist attacks, using hijacked commercial airliners as guided missiles, took place in rapid succession on the morning of September 11, 2001. These attacks were aimed at critical government buildings in the Nation's capital and landmark buildings in its financial center. These events reach a different scale of destructiveness than earlier terrorist episodes, such as the destruction of the Murrah Building in Oklahoma City in 1994. They caused thousands of deaths. Air traffic and communications within the United States were disrupted; national stock exchanges were shut for several days; and damage from the attack has been estimated to run into the tens of billions of dollars. Moreover, these attacks are part of a violent campaign against the United States that is believed to include an unsuccessful attempt to destroy an airliner in December 2001; a suicide bombing attack in Yemen on the U.S.S. Cole in 2000; the bombings of the United States Embassies in Kenya and in Tanzania in 1998; a truck bomb attack on a U.S. military housing complex in Saudi Arabia in 1996; an unsuccessful attempt to destroy the World Trade Center in 1993; and the ambush of U.S. servicemen in Somalia in 1993. The United States and its overseas personnel and installations have been attacked as a result of Osama Bin Laden's call for a "jihad against the U.S. government, because the U.S. government is unjust, criminal and tyrannical." [18]

In response, the Government has engaged in a broad effort at home and abroad to counter terrorism. Pursuant to his authorities as Commander-in-Chief, the President in October 2001, ordered the Armed Forces to attack al Qaeda personnel and assets in Afghanistan, and the Taliban militia that harbored them. That military campaign appears to be nearing its close with the retreat of al Qaeda and Taliban forces from their strongholds and the installation of a friendly provisional government in Afghanistan. Congress has provided its support for the use of forces against those linked to the September 11 attacks, and has recognized the President's constitutional power to use force to prevent and deter future attacks both within and outside the United States. S.J. Res. 23, Pub. L. No.107-40, 115 Stat. 224 (2001). We have reviewed the President's constitutional power to use force abroad in response to the September 11 attacks in a separate memorandum. See Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept, 25, 2001) ("September 11 War Powers Memorandum"). We have also discussed the President's constitutional authority to deploy the armed forces domestically to protect against foreign terrorist attack in a separate memorandum. See Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, at 2-3 (Oct. 17, 2001). The Justice Department and the FBI have launched a sweeping investigation in response to the September 11 attacks, and last fall Congress enacted legislation to expand the Justice Department's powers of surveillance against terrorists. See The USA Patriot Act, Pub. L. No, 107-56, 115 Stat. 272 (Oct. 26, 2001) This spring, the President proposed the creation of a new cabinet department for homeland security to implement a coordinated domestic program against terrorism.

Despite these efforts, numerous upper echelon leaders of al Qaeda and the Taliban, with access to active terrorist cells and other resources, remain at large. It has been reported that the al Qaeda fighters are already drawing on a fresh flow of cash to rebuild their forces. See Paul Haven, U.S.: al-Qaida vying to Regroup, Associated Press, Mar. 20, 2002. As the Director of the Central Intelligence Agency has recently testified before Congress, "al Qaeda and other terrorist groups will continue to plan to attack this country and its interests abroad. Their modus operandi is to have multiple attack plans in the works simultaneously, and to have al Qaeda cells in place to conduct them." Testimony of George J. Tenet, Director of Central Intelligence, Before the Senate Armed Services Committee at 2 (Mar. 19, 2002). Nor is the threat contained to Afghanistan. "Operations against US targets could be aunched by al Qaeda cells already in place in major cities in Europe and the Middle East. al Qaeda can also exploit its presence or connections to other groups in such countries as Somalia, Yemen, Indonesia, and the Philippines." Id. at 3. It appears that al Qaeda continues to enjoy information and resources that allow it to organize and direct active hostile forces against this country, both domestically and abroad.

Al Qaeda continues to plan further attacks, such as destroying American civilian airliners and killing American troops, which have fortunately been prevented. It is clear that bin Laden and his organization have conducted several violent attacks on the United States and its nationals, and that they seek to continue to do so. Thus, the capture and interrogation of such individuals is clearly imperative to our national security and defense. Interrogation of captured al Qaeda operatives may provide information concerning the nature of al Qaeda plans and the identities of its personnel, which may prove invaluable in preventing further direct attacks on the United States and its citizens. Given the massive destruction and loss of life caused by the September 11 attacks, it is reasonable to believe that information gained from al Qaeda personnel could prevent attacks of a similar (if not greater) magnitude from occurring in the United States. The case of Jose Padilla, a.k.a. Abdullah Al Mujahir, illustrates the importance of such information. Padilla allegedly had journeyed to Afghanistan and Pakistan, met with senior al Qaeda leaders, and hatched a plot to construct and detonate a radioactive dispersal device in the United States. After allegedly receiving training in wiring explosives and with a substantial amount of currency in his position, Padilla attempted in May, 2002, to enter the United States to further his scheme. Interrogation of captured al Qaeda operatives allegedly allowed U.S. intelligence and law enforcement agencies to track Padilla and to detain him upon his entry into the United States.

B. Interpretation to Avoid Constitutional Problems

As the Supreme Court has recognized, and as we will explain further below, the President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces. Because both " the executive power and the command of the military and naval forces is vested in the President," the Supreme Court has unanimously stated that it is "the President alone who is constitutionally invested with the entire charge of hostile operations." Hamilton v. Dillin, 88 U.S. (21 Wall,) 73, 87 (1874) (emphasis added). That authority is at its height in the middle of a war.

In light of the President's complete authority over the conduct of war, without a clear statement otherwise, we will not read a criminal statute as infringing on the President's ultimate authority in these areas. We have long recognized, and the Supreme Court has established a canon of statutory construction that statutes are to be construed in a manner that avoids constitutional difficulties so long as a reasonable alternative construction is available. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (citing NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501,504 (1979)) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, [courts] will construe [a] statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."). This canon of construction applies especially where an act of Congress could be read to encroach upon powers constitutionally committed to a coordinate branch of government, See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 800-1 (1992) (citation omitted) ("Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the [Administrative Procedure Act]. We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion."); Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 465-67 (1989) (construing Federal Advisory Committee Act not to apply to advice given by American Bar Association to the President on judicial nominations, to avoid potential constitutional question regarding encroachment on Presidential power to appoint judges).

In the area of foreign affairs, and war powers in particular, the avoidance canon has special force. See, e.g., Dep't of Navy v. Egan, 484 U.S. 518, 530 (1988) ("unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs."); Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 232-33 (1986) (construing federal statutes to avoid curtailment of traditional presidential prerogatives in foreign affairs). We do not lightly assume that Congress has acted to interfere with the President's constitutionally superior position as Chief Executive and Commander-in-Chief in the area of military operations. See Egan, 484 U.S. at 529 (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)). See also Agee, 453 U.S. at 291 (deference to Executive Branch is "especially" appropriate "in the area ... of ... national security").
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 3 OF 4 (MEMO 14 CONT'D.)

In order to respect the President's inherent constitutional authority to manage a military campaign against al Qaeda and its allies, Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority. As our Office has consistently held during this Administration and previous Administrations, Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war. See, e.g., Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs, from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Swift Justice Authorization Act (Apr. 8, 2002); Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sep. 25, 2001) ("Flanigan Memorandum"); Memorandum for Andrew Fois, Assistant Attorney General, Office of Legislative Affairs, from Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Defense Authorization Act (Sep. 15, 1995). As we discuss below, the President's power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander-in-Chief. A construction of Section 2340A that applied the provision to regulate the President's authority as Commander-in-Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions. Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude that it does not apply to the President's detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.

This approach is consistent with previous decisions of our Office involving the application of federal criminal law. For example, we have previously construed the congressional contempt statute not to apply to executive branch officials who refuse to comply with congressional subpoenas because of an assertion of executive privilege. In a published 1984 opinion, we concluded that

if executive officials were subject to prosecution for criminal contempt whenever they carried out the President's claim of executive privilege, it would significantly burden and immeasurably impair the President's ability to fulfill his constitutional duties. Therefore, the separation of powers principles that underlie the doctrine of executive privilege also would preclude an application of the contempt of Congress statute to punish officials for aiding the President in asserting his constitutional privilege.


Prosecution for Contempt of Congress of an Executive Branch Official who Has Asserted A Claim of Executive Privilege, 8 Op. O.L.C. 101, 134 (May 30, 1984). Likewise, we believe that, if executive officials were subject to prosecution for conducting interrogations when they were carrying out the President's Commander-in-Chief powers, "it would significantly burden and immeasurably impair the President's ability to fulfill his constitutional duties." These constitutional principles preclude an application of Section 2340A to punish officials for aiding the President in exercising his exclusive constitutional authorities. Id.

C. The Commander-in-Chief Power

It could be argued that Congress enacted 18 U.S.C. § 2340A with full knowledge and consideration of the President's Commander-in-Chief power, and that Congress intended to restrict his discretion in the interrogation of enemy combatants. Even were we to accept this argument, however, we conclude that the Department of Justice could not enforce Section 2340A against federal officials acting pursuant to the President's constitutional authority to wage a military campaign.

Indeed, in a different context, we have concluded that both courts and prosecutors should reject prosecutions that apply federal criminal laws to activity that is authorized pursuant to one of the President's constitutional powers. This Office, for example, has previously concluded that Congress could not constitutionally extend the congressional contempt statute to executive branch officials who refuse to comply with congressional subpoenas because of an assertion of executive privilege. We opined that "Courts ... would surely conclude that a criminal prosecution for the exercise of a presumptively valid, constitutionally based privilege is not consistent with the Constitution." 8 Op. O.L.C. at 141. Further, we concluded that the Department of Justice could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the President's constitutional power. "The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual." Id. Although Congress may define federal crimes that the President, through the Take Care Clause, should prosecute, Congress cannot compel the President to prosecute outcomes taken pursuant to the President's own constitutional authority. If Congress could do so, it could control the President's authority through the manipulation of federal criminal law.

We have even greater concerns with respect to prosecutions arising out of the exercise of the President's express authority as Commander-in-Chief than we do with prosecutions arising out of the assertion of executive privilege. In a series of opinions examining various legal questions arising after September 11, we have explained the scope of the President's Commander-in-Chief power. [19] We briefly summarize the findings of those opinions here. The President's constitutional power to protect the security of the United States and the lives and safety of its people must be understood in light of the Founders' intention to create a federal government "clothed with all the powers requisite to the complete execution of its trust." The Federalist No.23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961). Foremost among the objectives committed to that trust by the Constitution is the security of the nation. As Hamilton explained in arguing for the Constitution's adoption, because "the circumstances which may affect the public safety" are not "reducible within certain determinate limits,"

it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defence and Protection of the community, in any matter essential to its efficacy.


Id. at 147-48. Within the limits that the Constitution itself imposes, the scope and distribution of the powers to protect national security must be construed to authorize the most efficacious defense of the nation and its interests in accordance "with the realistic purposes of the entire instrument." Lichter v. United States, 334 U.S. 742, 782 (1948).

The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to ensure the security of the United States in situations of grave and unforeseen emergencies. The decision to deploy military force in the defense of United States interests is expressly placed under Presidential authority by the Vesting Clause, U.S. Const. Art. I, § 1, cl. 1, and by the Commander-in-Chief Clause, id., §2. cl. 1.20 This Office has long understood the Commander-in-Chief Clause in particular as an affirmative grant of authority to the President. See, e.g., Memorandum for Charles W, Colson, Special Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970) ("Rehnquist Memorandum"). The Framers understood the Clause as investing the President with the fullest range of power understood at the time of the ratification of the Constitution as belonging to the military commander. In addition, the structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive -- which includes the conduct of warfare and the defense of the nation -- unless expressly assigned in the Constitution to Congress, is vested in the President. Article II, Section 1 makes this clear by stating that the "executive Power shall be vested in a President of the United States of America." That sweeping grant vests in the President an unenumerated "executive power" and contrasts with the specific enumeration of the powers -- those "herein" -- granted to Congress in Article I. The implications of constitutional text and structure are confirmed by the practical consideration that national security decisions require the unity in purpose and energy in action that characterize the Presidency rather than Congress. [21]

As the Supreme Court has recognized, the Commander-in-Chief power and the President's obligation to protect the nation imply the ancillary powers necessary to their successful exercise. "The first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy of the United States. And, of course, the grant of war power includes all that is necessary and proper for carrying those powers into execution." Johnson v. Eisentrager, 339 U.S. 763, 788 (1950). In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy. See, e.g., Rehnquist Memorandum; Flanigan Memorandum at 3. The President's complete discretion in exercising the Commander-in-Chief power has been recognized by the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court explained that whether the President "in fulfilling his duties as Commander-in-Chief" had appropriately responded to the rebellion of the southern states was a question "to be decided by him" and which the Court could not question, but must leave to "the political department of the Government to which this power was entrusted."

One of the core functions of the Commander-in-Chief is that of capturing, detaining, and interrogating members of the enemy. See, e.g. , Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: The Presidents Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations at 3 (March 13, 2002) ("the Commander-in-Chief Clause constitutes an independent grant of substantive authority to engage in the detention and transfer of prisoners captured in armed conflicts"). It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict, and the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength, and its plans. [22] Numerous Presidents have ordered the capture, detention, and questioning of enemy combatants during virtually every major conflict in the Nation's history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. Recognizing this authority, Congress has never attempted to restrict or interfere with the President's authority on this score. Id.

Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President. There can be little doubt that intelligence operations, such as the detention and interrogation of enemy combatants and leaders, are both necessary and proper for the effective conduct of a military campaign. Indeed, such operations may be of more importance in a war with an international terrorist organization than one with the conventional armed forces of a nation-state, due to the former's emphasis on secret operations and surprise attacks against civilians. It may be the case that only successful interrogations can provide the information necessary to prevent the success of covert terrorist attacks upon the United States and its citizens. Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.

VI. Defenses

In the foregoing parts of this memorandum, we have demonstrated that the ban on torture in Section 2340A is limited to only the most extreme forms of physical and mental harm. We have also demonstrated that Section 2340A, as applied to interrogations of enemy combatants ordered by the President pursuant to his Commander-in-Chief power would be unconstitutional. Even if an interrogation method, however, might arguably cross the line drawn in Section 2340, and application of the statute was not held to be an unconstitutional infringement of the President's Commander-in-Chief authority, we believe that under the current circumstances certain justification defenses might be available that would potentially eliminate criminal liability. Standard criminal law defenses of necessity and self-defense could justify interrogation methods needed to elicit information to prevent a direct and imminent threat to the United States and its citizens.

A. Necessity

We believe that a defense of necessity could be raised, under the current circumstances, to an allegation of a Section 2340A violation. Often referred to as the "choice of evils" defense, necessity has been defined as follows:

Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.


Model Penal Code § 3.02. See also Wayne R. LaFave & Austin W. Scott, 1 Substantive Criminal Law § 5.4 at 627 (1986 & 2002 supp.) ("LaFave & Scott"). Although there is no federal statute that generally establishes necessity or other justifications as defenses to federal criminal laws, the Supreme Court has recognized the defense. See United States v. Bailey, 444 U.S. 394, 410 (1980) (relying on LaFave & Scott and Model Penal Code definitions of necessity defense).

The necessity defense may prove especially relevant in the current circumstances. As it has been described in the case law and literature, the purpose behind necessity is one of public policy. According to LaFave and Scott, "[t]he law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law." LaFave & Scott, at 629. In particular, the necessity defense can justify the intentional killing of one person to save two others because "it is better that two lives be saved and one lost than that two be lost and one saved." Id. Or, put in the language of a choice of evils, "the evil involved in violating the terms of the criminal law (... even taking another's life) may be less than that which would result from literal compliance with the law (... two lives lost)." Id.

Additional elements of the necessity defense are worth noting here. First, the defense is not limited to certain types of harms. Therefore, the harm inflicted by necessity may include intentional homicide, so long as the harm avoided is greater (i.e., preventing more deaths). Id. at 634. Second, it must actually be the defendant's intention to avoid the greater harm; intending to commit murder and then learning only later that the death had the fortuitous result of saving other lives will not support a necessity defense. Id. at 635. Third, if the defendant reasonably believed that the lesser harm was necessary, even if, unknown to him, it was not, he may still avail himself of the defense. As LaFave and Scott explain, "if A kills B reasonably believing it to be necessary to save C and D, he is not guilty of murder even though, unknown to A, C and D could have been rescued without the necessity of killing B." Id. Fourth, it is for the court, and not the defendant to judge whether the harm avoided outweighed the harm done. Id. at 636. Fifth, the defendant cannot rely upon the necessity defense if a third alternative is open and known to him that will cause less harm.

It appears to us that under the current circumstances the necessity defense could be successfully maintained in response to an allegation of a Section 2340A violation. On September 11, 2001, al Qaeda launched a surprise covert attack on civilian targets in the United States that led to the deaths of thousands and losses in billions of dollars. According to public and governmental reports, al Qaeda has other sleeper cells within the United States that may be planning similar attacks. Indeed, al Qaeda plans apparently include efforts to develop and deploy chemical, biological and nuclear weapons of mass destruction. Under these circumstances, a detainee may possess information that could enable the United States to prevent attacks that potentially could equal or surpass the September 11 attacks in their magnitude. Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives.

Under this calculus, two factors will help indicate when the necessity defense could appropriately be invoked. First, the more certain that government officials are that a particular individual has information needed to prevent all attack, the more necessary interrogation will be. Second, the more likely it appears to be that a terrorist attack is likely to occur -- and the greater the amount of damage expected from such an attack, the more that an interrogation to get information would become necessary. Of course, the strength of the necessity defense depends on the circumstances that prevail, and the knowledge of the government actors involved, when the interrogation is conducted. While every interrogation that might violate Section 2340A does not trigger a necessity defense, we can say that certain circumstances could support such a defense.

Legal authorities identify an important exception to the necessity defense. The defense is available "only in situations wherein the legislature has not itself, in its criminal statute, made a determination of values." Id. at 629. 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. LaFave and Israel provide as an example an abortion statute that made clear that abortions even to save the life of the mother would still be a crime; in such cases the necessity defense would be unavailable. Id. at 630. Here, however, Congress has not explicitly made a determination of values vis-a-vis torture. In fact, Congress explicitly removed efforts to remove torture from the weighing of values permitted by the necessity defense. [23]

B. Self-Defense

Even if a court were to find that a violation of Section 2340A was not justified by necessity, a defendant could still appropriately raise a claim of self-defense. The right to self-defense, even when it involves deadly force, is deeply embedded in our law, both as to individuals and as to the nation as a whole. As the Court of Appeals for the D.C. Circuit has explained:

More than two centuries ago, Blackstone, best known or the expositors or the English common law, taught that "all homicide is malicious, and of course amounts to murder unless ... excused on the account of accident or self-preservation." Self-defense, as a doctrine legally exonerating the taking of human life, is as viable now as it was in Blackstone's time.


United States v. Peterson, 483 F.2d 1222, 1228-29 (D.C. Cir. 1973). Self-defense is a common-law defense to federal criminal law offenses, and nothing in the text, structure or history of Section 2340A precludes its application to a charge of torture. In the absence of any textual provision to the contrary, we assume self-defense can be an appropriate defense to an allegation of torture.

The doctrine of self-defense permits the use of force to prevent harm to another person. As LaFave and Scott explain, "one is justified in using reasonable force in defense of another person, even a stranger, when he reasonably believes that the other is in immediate danger of unlawful bodily harm from his adversary and that the use of such force is necessary to avoid this danger." Id. at 663-64. Ultimately, even deadly force is permissible, but "only when the attack of the adversary upon the other person reasonably appears to the defender to be a deadly attack." Id. at 664. As with our discussion of necessity, we will review the significant elements of this defense. [24] According to LaFave and Scott, the elements of the defense of others are the same as those that apply to individual self-defense.

First, self-defense requires that the use of force be necessary to avoid the danger of unlawful bodily harm Id. at 649. A defender may justifiably use deadly force if he reasonably believes that the other person is about to inflict unlawful death or serious bodily harm upon another, and that it is necessary to use such force to prevent it. Id. at 652. Looked at from the opposite perspective, the defender may not use force when the force would be as equally effective at a later time and the defender suffers no harm or risk by waiting. See Paul H. Robinson, 2 Criminal Law Defenses § 131 c) at 77 (1984). If, however, other options permit the defender to retreat safely from a confrontation without having to resort to deadly force, the use of force may not be necessary in the first place. La Fave and Scott at 659-60.

Second, self-defense requires that the defendant's belief in the necessity of using force be reasonable. If a defendant honestly but unreasonably believed force was necessary, he will not be able to make out a successful claim of self- defense. Id. at 654. Conversely, if a defendant reasonably believed an attack was to occur, but the facts subsequently showed no attack was threatened, he may still raise self-defense, As LaFave and Scott explain, "one may be justified in shooting to death an adversary who, having threatened to kill him, reaches for his pocket as if for a gun, though it later appears that he had no gun and that he was only reaching for his handkerchief." Id. Some authorities, such as the Model Penal Code, even eliminate the reasonability element, and require only that the defender honestly believed -- regardless of its unreasonableness -- that the use of force was necessary.

Third, many legal authorities include the requirement that a defender must reasonably believe that the unlawful violence is "imminent" before he can use force in his defense. It would be a mistake, however, to equate imminence necessarily with timing -- that an attack is immediately about to occur. Rather, as the Model Penal Code explains, what is essential is that, the defensive response must be "immediately necessary." Model Penal Code § 3.04(1). Indeed, imminence may be merely another way of expressing the requirement of necessity. Robinson at 78. LaFave and Scott, for example, believe that the imminence requirement makes sense as part of a necessity defense because if an attack is not immediately upon the defender, the defender has other options available to avoid the attack that do not involve the use of force. LaFave and Scott at 656. If, however, the fact of the attack becomes certain and no other options remain, the use of force may be justified. To use a well -known hypothetical, if A were to kidnap and confine B, and then tell B he would kill B one week later, B would be justified in using force in self-defense, even if the opportunity arose before the week had passed. Id. at 656; see also Robinson at § 131(c)(1) at 78. In this hypothetical situation, while the attack itself is not imminent, B's use of force becomes immediately necessary whenever he has an opportunity to save himself from A.

Fourth, the amount of force should be proportional to the threat. As LaFave and Scott explain, "the amount of force which [the defender] may justifiably use must be reasonably related to the threatened harm which he seeks to avoid." LaFave and Scott at 651. Thus, one may not use deadly force in response to a threat that does not rise to death or serious bodily harm. If such harm may result, however, deadly force is appropriate. As the Model Penal Code § 3.04 (2)(b) states, "[the] use of deadly force is not justifiable ... unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat."

Under the current circumstances, we believe that a defendant accused of violating Section 2340A could have, in certain circumstances, grounds to properly claim the defense of another. The threat of an impending terrorist attack threatens the lives of hundreds if not thousands of American citizens. Whether such a defense will be upheld depends on the specific context within which the interrogation decision is made. If an attack appears increasingly likely, but our intelligence services and armed forces cannot prevent it without the information from the interrogation of a specific individual, then the more likely it will appear that the conduct in question will be seen as necessary. If intelligence and other information support the conclusion that an attack is increasingly certain, then the necessity for the interrogation will be reasonable. The increasing certainty of an attack will also satisfy the imminence requirement. Finally, the fact that previous al Qaeda attacks have had as their aim the deaths or American citizens, and that evidence of other plots have had a similar goal in mind, would justify proportionality of interrogation methods designed to elicit information to prevent such deaths.

To be sure, this situation is different from the usual self-defense justification, and indeed, it overlaps with elements of the necessity defense. Self-defense as usually discussed involves using force against an individual who is about to conduct the attack. In the current circumstances, however, an enemy combatant in detention does not himself present a threat of harm. He is not actually carrying out the attack; rather, he has participated in the planning and preparation for the attack, or merely has knowledge of the attack through his membership in the terrorist organization. Nonetheless, leading scholarly commentators believe that interrogation of such individuals using methods that might violate Section 2340A would be justified under the doctrine of self-defense, because the combatant by aiding and promoting the terrorist plot "has culpably caused the situation where someone might get hurt. If hurting him is the only means to prevent the death or injury of others put at risk by his actions, such torture should be permissible, and on the same basis that self-defense is permissible." Michael S. Moore, Torture and the Balance of Evils, 23 Israel L, Rev. 280, 323 ( 1989) (symposium on Israel's Landau Commission Report). [25] Thus, some commentators believe that by helping to create the threat of loss of life, terrorists become culpable of the threat even though they do not actually carry out the attack itself. They may be hurt in an interrogation because they are part of the mechanism that has set the attack in motion, id. at 323, just as is someone who feeds ammunition or targeting information to an attacker. Under the present circumstances, therefore, even though a detained enemy combatant may not be the exact attacker -- he is not planting the bomb, or piloting a hijacked plane to kill civilians -- he still may be harmed in self-defense if he has knowledge of future attacks because he has assisted in their planning and execution.

Further, we believe that a claim by an individual of the defense of another would be further supported by the fact that, in this case, the nation itself is under attack and has the right to self-defense. This fact can bolster and support an individual claim of self-defense in a prosecution, according to the teaching of the Supreme Court in In Re Neagle, 135 U.S. 1 (1890). In that case, the State of California arrested and held deputy U.S. Marshal Neagle for shooting and killing the assailant of Supreme Court Justice Field. In granting the writ of habeas corpus for Neagle's release, the Supreme Court did not rely alone upon the marshal's right to defend another or his right to self-defense. Rather, the Court found that Neagle, as an agent of the United States and of the executive branch, was justified in the killing because, in protecting Justice Field, he was acting pursuant to the executive branch's inherent constitutional authority to protect the United States government. Id. at 67 ("We cannot doubt the power of the President to take measures for the protection of a judge of one of the courts of the United States who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death."). That authority derives, according to the Court, from the President's power under Article II to take care that the laws are faithfully executed. In other words, Neagle as a federal officer not only could raise self-defense or defense of another, but also could defend his actions on the ground that he was implementing the Executive Branch's authority to protect the United States government.

If the right to defend the national government can be raised as a defense in an individual prosecution, as Neagle suggests, then a government defendant, acting in his political capacity, should be able to argue that any conduct that arguably violated Section 2340A was undertaken pursuant to more than just individual self-defense or defense of another. In addition, the defendant could claim that he was fulfilling the Executive Branch's authority to protect the federal government, and the nation, from attack. The September 11 attacks have already triggered that authority, as recognized both under domestic and international law. Following the example of In re Neagle, we conclude that a government defendant may also argue that his conduct of an interrogation, if properly authorized, is justified on the basis of protecting the nation from attack.

There can be little doubt that the nation's right to self-defense has been triggered under our law, The Constitution announces that one of its purposes is "to provide for the common defense." U.S. Const., Preamble. Article I, § 8 declares that Congress is to exercise its powers to "provide for the common Defence." See also 2 Pub. Papers of Ronald Reagan 920, 921 (1988-89) (right of self-defense recognized by Article 51 of the U.N. Charter). The President has a particular responsibility and power to take steps to defend the nation and its people. In re Neagle, 135 U.S. at 64. See also U.S. Const., Article IV. § 4 ("The United States shall ... protect [each of the States] against invasion"). As Commander-in-Chief and Chief Executive, he may use the armed forces to protect the nation and its people. See, e.g., United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). And he may employ secret agents to aid in his work as Commander-in-Chief, Totten v. United States, 92 U.S. 105, 106 (1876), As the Supreme Court observed in The Prize Cases, 67 U.S. (2 Black) 635 (1862), in response to an armed attack on he United States "the President is not only authorized but bound to resist force by force ... without waiting for any special legislative authority." Id. at 668. The September 11 events were a direct attack on the United States, and as we have explained above, the President has authorized the use of military force with the support of Congress. [26]

As we have made clear in other opinions involving the war against al Qaeda, the nation's right to self-defense has been triggered by the events of September 11. If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate Section 2340A, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that his actions were justified by the executive branch's constitutional authority to protect the nation from attack. This national and international version of the right to self-defense could supplement and bolster the government defendant's individual right.

Conclusion

For the foregoing reasons, we conclude that torture as defined in and proscribed by Sections 2340-2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like post-traumatic stress disorder. Additionally, such severe mental pain can arise only from the predicate acts listed in Section 2340. Because the acts inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.

Further, we conclude that under the circumstances of the current war against al Qaeda and its allies, application of Section 2340A to interrogations undertaken pursuant to the President's Commander-in-Chief powers may be unconstitutional. Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.

Please let us know if we can be of further assistance.

Jay S. Bybee
Assistant Attorney General

APPENDIX

Cases in which U.S. courts have concluded the defendant tortured the plaintiff:

Plaintiff was beaten and shot by government troops while protesting the destruction of her property. See Wiwa v. Royal Dutch Petroleum, 2002 WL 319887 at *7 (S.D.N.Y. Feb. 28, 2002).

Plaintiff was removed from ship, interrogated, and held incommunicado for months. Representatives of the defendant threatened her with death if she attempted lo move from quarters where she was held. She was forcibly separated from her husband and unable to learn of his welfare or whereabouts. See Simpson v. Socialist People's Libyan Arab Jamahiriya, 180 F. Supp. 2d 78, 88 (D.D.C. 2001) ( Rule12(b)(6) motion).

Plaintiff was held captive for five days in a small cell that had no lights, no window, no water; and no toilet. During the remainder of his captivity, he was frequently denied food and water and given only limited access to the toilet. He was held at gunpoint, with his captors threatening to kill him if he did not confess to espionage. His captors threatened to cut off his fingers, pull out his fingernails, and shock his testicles. See Daliberti v. Republic of Iraq, 146 F. Supp. 2d 19, 22-23, 25 (D.D.C. 2001) (default judgment).

Plaintiff was imprisoned for 205 clays. He was confined in a car park that had been converted into a prison. His cell had no water or toilet and had only a steel cot for a bed. He was convicted of illegal entry into Iraq and transferred to another facility, where he was placed in a cell infested with vermin. He shared a single toilet with 200 other prisoners. While imprisoned he had a heart attack but was denied adequate medical attention and medication. See Daliberti v. Republic of Iraq, 146 F. Supp. 2d 19, 22-23 (D.D.C. 2001) (default judgment).

Plaintiff was imprisoned for 126 days. At one point, a guard attempted to execute him, but another guard intervened. A truck transporting the plaintiff ran over a pedestrian at full speed without stopping. He heard other prisoners being beaten and he feared being beaten. He had serious medical conditions that were not promptly or adequately treated. He was not given sufficient food or water. See Daliberti v. Republic of Iraq, 146 F. Supp. 2d 19, 22-23 (D,D.C. 2001) (default judgment).

Allegations that guards beat, clubbed, and kicked the plaintiff and that the plaintiff was interrogated and subjected to physical and verbal abuse sufficiently stated a claim for torture so as to survive Rule 12(b)(6) motion. See Price v. Socialist People's Libyan Arab Jamahiriya, 110 F. Supp.. 2d 10 (D.D.C 2000).

Plaintiffs alleged that they were blindfolded, interrogated and subjected to physical, mental and verbal abuse while they were held captive. Furthermore, one plaintiff was held eleven days without food, water, or bed. Another plaintiff was held for four days without food, water, or a bed, and was also stripped naked, blind-folded, and threatened with electrocution of his testicles. The other two remaining plaintiffs alleged that they were not provided adequate or proper medical care for conditions that were life threatening. The court concluded that these allegations sufficiently stated a claim for torture and denied defendants Rule 12(b)(6) motion. See Daliberti v. Republic v. Iraq, 97 F. Supp. 2d 38, 45 (D,D.C. 2000) (finding that these allegations were "more than enough to meet the definition of torture in the [TVPA]").

Plaintiff's kidnappers pistol-whipped him until he lost consciousness. They then stripped him and gave him only a robe to wear and left him bleeding, dizzy, and in severe pain. He was then imprisoned for 1,908 days. During his imprisonment, his captors sought to force a confession from him by playing Russian roulette with him and threatening him with castration. He was randomly beaten and forced to watch the beatings of others. Additionally, he was confined in a rodent and scorpion infested cell. He was bound in chains almost the entire time of his confinement. One night during the winter, his captors chained him to an upper floor balcony, leaving him exposed to the elements. Consequently, he developed frostbite on his hands and feet. He was also subjected to a surgical procedure for an unidentified abdominal problem. See Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62 (D.D.C. 1998).

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 six-foot by six-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. See Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62 (D.D.C 1998).

Plaintiff was pistol-whipped, bound and gagged, held captive in darkness or blind-fold for 18 months. He was kept chained at either his ankles or wrists, wearing nothing but his undershorts and a t-shirt. As for his meals, his captors gave him pita bread and dry cheese for breakfast, rice with dehydrated soup for lunch, and a piece of bread for dinner. Sometimes the guards would spit into his food. He was regularly beaten and incessantly interrogated; he overheard the deaths and beatings of other prisoners. See Cicippio v. Islamic Republic Of Iran, 18 F. Supp. 2d 62, (D.D.C. 1998).

Plaintiff spent eight years in solitary or near solitary confinement. He was threatened with death, blindfoldedd and beaten while handcuffed and fettered. He was denied sleep and repeatedly threatened him with death. At one point, while he was shackled to a cot, the guards placed a towel over his nose and mouth and then poured water down his nostrils. They did this for six hours. During this incident, the guards threatened him with death and electric shock. Afterwards, they left him shackled to his cot for six days. For the next seven months, he was imprisoned in a hot, unlit cell that measured 2.5 square meters. During this seven month period, he was shackled to his cot -- at first by all his limbs and later by one hand or one foot. He remained shackled in this manner except for the briefest moments, such as when his captors permitted him to use the bathroom. The handcuffs cut into his flesh. See Hilao v. Estate of Marcos, 103 F.3d 789, 790 (9th Cir. 1996). The court did not, however, appear to consider the solitary confinement per se to constitute torture. See id. at 795 (stating that to the extent that [the plaintiff's] years in solitary confinement do not constitute torture, they clearly meet the definition of prolonged arbitrary detention.").

High-ranking military officers interrogated the plaintiff and subjected him to mock executions. He was also threatened with death. See Hilao v. Estate of Marcos, 103 F.3d 789, 795 (9th Cir. 1996).

Plaintiff, a nun, received anonymous threats warning her to leave Guatemala. Later, two men with a gun kidnapped her. They blindfolded her and locked her in an unlit room for hours. The guards interrogated her and regardless of the answers she gave to their questions, they burned her with cigarettes. The guards then showed her surveillance photographs of herself. They blindfolded her again, stripped her, and raped her repeatedly. See Xuncax v. Gramajo, 886 F. Supp. 162, 176 (1995).

Plaintiffs were beaten with truncheons, boots, and guns and threatened with death. Nightsticks were used to beat their backs, kidneys, and the soles of their feet. The soldiers pulled and squeezed their testicles. When they fainted from the pain, the soldiers revived them by singeing their nose hair with a cigarette lighter. They were interrogated as they were beaten with iron barks, rifle butts, helmets, and fists. One plaintiff was placed in the "djak" position, i.e., with hands and feet bound and suspended from a pole. Medical treatment was withheld for one week and then was sporadic and inadequate. See Paul v. Avril, 901 F. Supp.. 330, 332 (S.D. Fla. 1994).

Alien subjected to sustained beatings for the month following his arrest. After his second arrest, suffered severe beatings and was burned with cigarettes over the course of an eight-day period. Al Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001) (deportation case).

Decedent was attacked with knifes and sticks, and repeatedly hit in the head with the butt of a gun as he remained trapped in his truck by his attackers. The attackers then doused the vehicle with gasoline. Although he managed to get out of the truck, he nonetheless burned to death. Tachiona v. Mugabe, No. 00 Civ. 6666VMJCF, 2002 WL 1424598 at * 1 (S.D.N.Y. July 1, 2002).

Decedent was attacked by a spear, stick, and stone wielding supports of defendant. He was carried off by the attackers and "was found dead the next day, naked and lying in the middle of the road[.]" From the physical injuries, it was determined that he had been severely beaten. According to his death certificate, he died from "massive brain injury from trauma; assault; and laceration of the right lung." Tachiona v. Mugabe, No. 00 Civ. 6666VMJCF, 2002 WL 1424598 at *2 ( S.D.N.Y. July 1, 2002).

Decedent was abducted, along with five others. He and the others were severely beaten and he was forced to drink diesel oil. He was then summarily executed. Tachiona v. Mugabe, No. 00 Civ. 6666VMJCF, 2002 WL 1424598 at *4 (S.D.N.Y. July 1, 2002).

Forced sterilization constitutes torture. Bi Zhu Lin v. Ashcroft, 183 F. Supp. 2d 551 (D. Conn. 2002) (noting determination by immigration judge that such conduct constitutes torture).


There are two cases in which U.S. courts have rejected torture claims on the ground that the alleged conduct did not rise to the level of torture. In Faulder v. Johnson, 99 F. Supp. 2d 774 (S.D. Tex. 1999), the district court rejected a death row inmate's claim that psychological trauma resulting from repeated stays of his execution and his 22-year-wait for that execution was torture under CAT. The court rejected this contention because of the United States' express death penalty reservation to CAT. See id. In Eastman Kodak v. Kavlin, 978 F. Supp. 1078, 1093 (S.D. Fla.. 1997), 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. Id. The court flatly rejected the plaintiff's claim that this constituted torture.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:33 pm

PART 4 OF 4 (MEMO 14 CONT'D.)

_______________

Notes:

1. If convicted of torture, a defendant faces a fine or up to twenty years' imprisonment or both. If, however, the act resulted in the victim's death, a defendant may be sentenced to life imprisonment or to death. See 18 U.S.C.A. § 2340A(a). Whether death results from the act also affects the applicable statute of limitations. Where death does not result, the statute of limitations is eight years: if death results, there is no statute of limitations. See 18 U.S.C.A. § 3286(b) (West Supp. 2002); id. § 2332b(g)(5)(B) (West Supp. 2002). Section 2340A as originally enacted did not provide for the death penalty as a punishment. See Omnibus Crime Bill, Pub. L. No.103-322, Title VI, Section 60020, 108 Stat. 1979 (1994) (amending section 2340A to provide for the death penalty); H. R. Conf. Rep. No 103-711 , at 388 (1994) (noting that the act added the death penalty as a penalty for torture).

Most recently, the USA Patriot Act, Pub. L. No.107-56, 115 Stat. 272 (2001 ), amended section 2340A to expressly codify the offense of conspiracy to commit torture. Congress enacted this amendment as part of a broader effort to ensure that individuals engaged in the planning of terrorist activities could be prosecuted irrespective of where the activities took place. See H. R. Rep. No. 107-236, at 70 (2001) (discussing the addition of "conspiracy" as a separate offense for a variety of "Federal terrorism offense[s]").

2. We note, however, that 18 U.S.C. § 2340(3) supplies a definition of the term "United States." It defines it as "all areas under the jurisdiction of the United States including any of the places described in" 18 U.S.C. §§ 5 and 7, and in 49 U.S.C. § 46501(2). Section 5 provides that United States "includes all places and waters, continental or insular subject to the jurisdiction of the United States." By including the definition set out in Section 7, the tern, "United States" as used in Section 2340(3) includes the "special maritime and territorial jurisdiction of the United States." Moreover, the incorporation by reference to Section 46501 (2) extends the definition of the "United States" to "special aircraft jurisdiction of the United States."

3. One might argue that because the statute uses "or" rather than "and" in the phrase "pain or suffering" that "severe physical suffering" is a concept distinct from "severe physical pain." We believe the better view of the statutory text is, however, that they are not distinct concepts. The statute does not define "severe mental pain" and "severe mental suffering" separately. Instead, it gives the phrase "severe mental pain or suffering" a single definition. Because "pain or suffering" is single concept for the purposes of "severe mental pain or suffering," it should likewise be read as a single concept for the purposes of severe physical pain or suffering, Moreover, dictionaries define the words "pain" and "suffering" in terms of each other. Compare, e.g., Webster's Third New International Dictionary 2284 (1993) (defining suffering as "the endurance of ... pain" or "a pain endured"); Webster's Third New International Dictionary 2284 (1986) (same); XVII The Oxford English Dictionary 125 (2d ed. 1989) (defining suffering as "the bearing or undergoing of pain"); with, e.g., Random House Webster's Unabridged Dictionary 1394 (2d ed. 1999) (defining "pain" as "physical suffering"); The American Heritage Dictionary of the English Language 942 (College ed 1976) (defining pain as "suffering or distress"). Further, even if we were to read the infliction of severe physical suffering as distinct from severe physical pain, it is difficult to conceive of such suffering that would not involve severe physical pain. Accordingly, we conclude that "pain or suffering" is a single concept within the definition of Section 2340.

4. The DSM-IV explains that post-traumatic disorder ("PTSD") is brought on by exposure to traumatic events, such as serious physical injury or witnessing the deaths of others and during those events the individual felt "intense fear" or "horror." Id. at 424. Those suffering from this disorder re-experience the trauma through, inter alia, "recurrent and intrusive distressing recollections of the event," "recurrent distressing dreams of the event," or "intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event." Id. at 428. Additionally, a person with PTSD "[persistent[ly]" avoids stimuli associated with the trauma, including avoiding conversations about the trauma, places that stimulate recollections about the trauma; and they experience a numbing of general responsiveness, such as a "restricted range of affect (e.g., unable to have loving feelings)," and "the feeling of detachment or estrangement from others." Ibid. Finally, an individual with PTSD has "[p]ersistent symptoms of increased arousal," as evidenced by "irritability or outbursts of anger," "hypervigilance," "exaggerated startle response," and difficulty sleeping or concentrating. Ibid.

5. Published by the American Psychiatric Association, and written as a collaboration of over a thousand psychiatrists, the DSM-IV is commonly used in U.S. courts as a source of information regarding mental health issues and is likely to be used in trial should charges be brought that allege this predicate act. See, e.g., Atkins v. Virginia, 122 S. Ct. 2242, 2245 n.3 (2002); Kansas v. Crane, 122 S. Ct. 867, 871 (2002); Kansas v. Hendricks, 521 U.S. 346, 359-60 (1997); McClean v. Merrifield, No. 00-CV-0120E(SC), 2002 WL 1477607 at *2 n.7 (W.D.N.Y. June 28, 2002); Peoples v. Coastal Office Prods., 203 F. Supp. 2cd. 432, 439 (D. Md. 2002); Lassiegne v. Taco Bell Corp., 202 F. Supp. 2d 512, 519 (E.D. La. 2002)

6. Torture is a term also found in state law. Some states expressly proscribe "murder by torture." See, e.g., Idaho Code § 18-4001 (Michie 1997); N.C. Gen. Stat. Ann. § 14-17 ( 1999); see also Me. Rev. Stat, Ann. tit. 17-A, § 152-A (West Supp. 2001) (aggravated attempted murder is "[t]he attempted murder ... accompanied by torture, sexual assault or other extreme cruelty inflicted upon the victim"). Other states have made torture an aggravating factor suppositing imposition of the death penalty. See, e.g., Ark. Code Ann. § 5-4-604((B); Del. Code Ann. tit. 11, § 4209(e)(1 )(l) (1995); Ga. Code Ann. § 17-10-30(b)(7) (1997);; 720 Ill. Comp. Stat. Ann. 5/9-1(b)(14) (West Supp. 2002); Mass. Ann. Laws ch. 279, § 69(a) (Law. Co-op. 1992); Mo. Ann. Stat. § 565.032(2)(7) (West 1999); Nev. Rev. Stat. Ann. 200-033(8) (Michie 2001); N.J. Stat. Ann. § 2C: 11-3 (West Supp 2002) (same); Tenn. Code Ann. § 39-13- 204(i)(5) (Supp. 2001); see also Alaska Stat. § 12.55.125(a)(3) (2000) (term of 99 years' imprisonment mandatory where defendant subjected victim to "substantial physical torture"). All of these laws support the conclusion that torture is generally an extreme act far beyond the infliction of pain or suffering alone.

California law is illustrative on this point. The California Penal Code not only makes torture itself an offense, see Cal. Penal Code § 206 (West Supp. 2002), it also prohibits murder by torture, see Cal. Penal Code § 189 (West Supp. 2002), and provides that torture is an aggravating circumstance supporting the imposition of the death penalty, see Cal. Penal Code § 190.2 (West Supp. 2002). California's definitions of torture demonstrate that the term is reserved for especially cruel acts inflicting serious injury. Designed to "fill a gap in existing law dealing with extremely violent and callous criminal conduct[.]" People v. Hale, 88 Ca1. Rptr. 2d 904, 913 (1999) (internal quotation marks and citation omitted), Section 206 defines the offense of torture as:

[e]very person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury ... upon the person of another, is guilty of torture. The crime of torture does not require any proof that the victim suffered pain.


(Emphasis added). With respect to sections 190.2 and 189, neither of which are statutorily defined, California courts have recognized that torture generally means an "[a]ct or process of inflicting severe pain, esp[ecially] as a punishment to extort confession, or in revenge. ... Implicit in that definition is the requirement of an intent to cause pain and suffering in addition to death." People v. Barrera, 18 Cal Rptr. 2d 395, 399 (Ct. App. 1993) (quotation marks and citation omitted). Further, "'murder by torture was and is considered among the most reprehensible types of murder because of the calculated nature of the acts causing death." Id. at 403 (quoting People v. Wiley, 133 Cal. Rptr. 135, 138 (1976) (in bank)). The definition of murder by torture special circumstance, proscribed under Cal. Penal Code § 190.2, likewise shows an attempt to reach the most heinous acts imposing pain beyond that which a victim suffers through death alone. To establish murder by torture special circumstance, the "intent to kill, intent to torture, and infliction of an extremely painful act upon a living victim" must be present. People v. Bemore, 94 Cal. Rptr. 2d 840, 861 (2000). The intent to torture is characterized by a "'sadistic intent to cause the victim to suffer pain in addition to the pain of death.'" Id. at 862 (quoting People v. Davenport, 221 Cal. Rptr. 794, 875 (1985). Like the Torture Victims Protection Act and the Convention Against Torture, discussed infra at Parts II and III, each of these California prohibitions against torture require an evil intent -- such as cruelty, revenge or even sadism. Section 2340 does not require this additional intent, but as discussed supra pp. 2-3, requires that the individual specifically intended to cause severe pain or suffering. Furthermore, unlike Section 2340, neither section 189 nor section 206 appear to require proof of actual pain to establish torture.

7. To be sure, the text of the treaty requires that an individual act "intentionally." This language might be read to require only general intent for violations of the Torture Convention. We believe, however, that the better interpretation is that the use of the phrase "intentionally" also created a specific intent-type standard. In that event, the Bush administrations understanding represents only an explanation of how the United States intended to implement the vague language of the Torture Convention. If, however the Convention established a general intent standard, then the Bush understanding represents a modification of the obligation undertaken by the United States.

8. Common Article 3 of Geneva Convention on prisoners of war, Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3517 ("Geneva Convention III") contains somewhat similar language. Article 3(1)(a) prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture." (Emphasis added). Article 3(1)(c) additionally prohibits "outrages upon personal dignity, in particular, humiliating and degrading treatment." Subsection (c) must forbid more conduct than that already covered in subsection (a) otherwise subsection (c) would be superfluous. Common Article 3 does not, however, define either of the phrases "outrages upon personal dignity" or "humiliating and degrading treatment." International criminal tribunals, such as those respecting Rwanda and former Yugoslavia have used common Article 3 to try individuals for committing inhuman acts lacking any military necessity whatsoever. Based on our review of the case law, however, these tribunals have not yet articulated the full scope of conduct prohibited by common Article 3. Memorandum for John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel from James C. Ho, Attorney-Advisor, Office of Legal Counsel Re: Possible Interpretations of Common Article 3 or the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (Feb. 1, 2002).

We note that Section 2340A and CAT protect any individual from torture. By contrast, the standards of conduct established by common Article 3 of Convention III, do not apply to "an armed conflict between a nation-state and a transnational terrorist organization." Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department or Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees at 8 (Jan. 22, 2002).

9. The vagueness of "cruel, inhuman and degrading treatment" enables the term to have a far-ranging reach. Article 3 of the European Convention on Human Rights similarly prohibits such treatment. The European Court or Human Rights has construed this phrase broadly, even assessing whether such treatment has occurred from the subjective standpoint of the victim. See Memorandum from James C. Ho, Attorney-Advisor to John C. Yoo, Deputy Assistant Attorney General, Re: Possible Interpretations of Common Article 3 of the 1949 Geneva Conventions Relative to the Treatment of Prisoners of War (Feb 1. 2002) (finding that European Court of Human Right's construction of inhuman or degrading treatment "is broad enough to arguably forbid even standard U.S. law enforcement interrogation techniques, which endeavor to breakdown a detainee's 'moral resistance' to answering questions.")

Moreover, despite the Reagan and Bush administrations' efforts to limit the reach of the cruel, inhuman and degrading treatment language, it appears to still have a rather limitless reach. See id. (describing how the Eighth Amendment ban on "cruel and unusual punishment" has been used by courts to, inter alia, "engage in detailed regulation of prison conductions, including the exact size cells, exercise, and recreational activities, quality of food, access to cable television, Internet, and law libraries.")

10. Hearing testimony, though the least weighty evidence of meaning of all of the ratification record, is not to the contrary. Other examples of torture mentioned in testimony similarly reflect acts resulting in intense pain: the "gouging out of childrens' [sic] eyes, the torture death by molten rubber; the use of electric shocks," cigarette burns, hanging by hands or feet. 1990 Hearing at 45 (Statement of Winston Nagan, Chairman, Board of Directors, Amnesty International USA); id. at 79 (Statement of David Weissbrodt, Professor of Law, University of Minnesota, on behalf of the Center for Victims of Torture, the Minnesota Lawyers International Human Rights Committee).

11. See also 137 Cong. Rec. 34, 785 (statement of Rep. Mazzoli) ("Torture is defined in accordance with the definition contained in [CAT]"); see also Torture Victims Protection Act: Hearing and Markup on H.R. 1417 Before the Subcomm. On Human Rights and International Organizations of the House Comm. on Foreign Affairs, 100th Cong. 38 (1988) (Prepared Statement of the Association of the Bar of the City of New York, Committee on International Human Rights) ("This language essentially tracks the definition or 'torture' adopted in the Torture Convention.").

12 This list of purposes is illustrative only. Nevertheless, demonstrating that a defendant harbored any or these purposes "may prove valuable in assisting in the establishment of intent at trial." Matthew Lippman, The Development and Drafting of the United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 17 B.C. Int'l & Comp. L. Rev. 275, 314 ( 1994).

13. The TVPA also requires that an individual act "intentionally." As we noted with respect to the text of CAT, see supra n. 7, this language might be construed as requiring general intent. It is not clear that this is so. We need not resolve that question, however, because we review the TVPA cases solely to address the acts that would satisfy the threshold of inflicting "severe physical or mental pain or suffering."

14. The Court also found that a number of acts perpetrated against the plaintiffs constituted cruel, inhuman, or degrading treatment but not torture. In its analysis, the court appeared to fold into cruel, inhuman, or degrading treatment two distinct categories, First, cruel, inhuman, or degrading treatment includes acts that "do not rise to the level of 'torture.'" Id, at 1348. Second, cruel, inhuman, or degrading treatment includes acts that "do not have the same purposes as 'torture.'" Id. By including this latter set of treatment as cruel, inhuman or degrading, the Court appeared to take the view that acts that would otherwise constitute torture fall outside that definition because of the absence of the particular purposes listed in the TVPA and the treaty. Regardless of the relevance of this concept to the TVPA or CAT, the purposes listed in the TVPA are not an element of torture for purposes of sections 2340-2340A.

15. According to one Commentator, the Inter-American Court of Human Rights has also followed this decision. See Julie Lantrip, Torture and Cruel, Inhuman and Degrading Treatment in the Jurisprudence of the Inter-American Court of Human Rights, 5 ILSA J. Int'l & Comp. L. 551, 560-61 (1999). The Inter-American Convention to Prevent and Punish Torture, however, defines torture much differently than it is defined in CAT or U.S. law. See Inter-American Convention to Prevent and Punish Torture, opened for signature Dec. 9, 1985, art. 2, OAS T.S. No. 67 (entered into force Feb. 28, 1987 but the United States has never signed or ratified it). It defines torture as "any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish." Article 2. While the Inter-American Convention to Prevent and Punish Torture does not require signatories to criminalize cruel, inhuman, or degrading treatment or punishment, the textual differences in the definition of torture are so great that it would be difficult to draw from that jurisprudence anything more than the general trend of its agreement with the Ireland decision.

16. The court did, however distinguish between this sleep deprivation and that which occurred as part of routine interrogation, noting that some degree of interference with the suspect's regular sleep habits was to be expected. Public Committee Against Torture in Israel, ¶ 23.

17. In permitting a necessity defense, the court drew upon the ticking time bomb hypothesis proferred by the GSS as a basis for asserting a necessity defense. In that hypothesis, the GSS has arrested a suspect, who holds information about the location of a bomb and the time at which it is set to explode. The suspect is the only source of this information, and without that information the bomb will surely explode, killing many people. Under those circumstances, the Court agreed that the necessity defense's requirement of imminence, which the court construed as the "imminent nature of the act rather than that of danger," would be satisfied. Id. ¶ 34. It further agreed "that in appropriate circumstances" this defense would be available to GSS investigators. Id. ¶ 35.

18. See Osama Bill Laden v. The U.S.: Edicts and Statements, CNN Interview with Osama bin Laden, March 1997, available at http://www.pbs.org/wgbh/pages/frontline ... dicts.html

19. See, e.g. , September 11 War Powers Memorandum; Memorandum for Alberto R. Gonzales, Counsel
to the President, from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel,
Re: Legality of the Use of Military Commissions to Try Terrorists (Nov. 6, 2001).

20. See Johnson v. Eisentrager, 339 U.S. 763, 789 ( 1950) (President has authority to deploy United States armed forces "abroad or to any particular region"); Fleming v. Page, 50 U.S. (9 How.) 603, 614- 15 (1850) ("As Commander-in-Chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual") Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring in judgment) (The "inherent powers" of the Commander-in-Chief "are clearly extensive"); Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes, JJ., concurring) (President "may direct any revenue cutter to cruise in any waters in order to perform any duty of the service"); Commonwealth of Massachusetts v. Laird, 451 F.2d 26, 32 ( 1st Cir. 1971) (the President has "power as Commander-in-Chief to station forces abroad"); Ex parte Vallandigham, 28 F.Cas. 874, 922 (C.C.S.D. Ohio 1863) (No. 16,816) (in acting "under this power where there is no express legislative declaration, the president is guided solely by his own judgment and discretion"); Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6, 6 (Dec. 4, 1992) (Barr, Attorney General).

21. Judicial decisions since the beginning of the Republic confirm the President's constitutional power and duty to repel military action against the United States and to take measures to prevent the recurrence of an attack. As Justice Joseph Story said long ago, "[i]t may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are not found in the text of the laws." The Apollon, 22 U.S. (9 Wheat.) 362, 366-67 (1824). If the President is confronted with an unforeseen attack on the territory and people of the United States, or other immediate, dangerous threat to American interests and security, it is his constitutional responsibility to respond to that threat with whatever means are necessary. See, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 ( 1862) ("If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force ... without waiting for any special legislative authority."); United States v. Smith, 27 F. Cas. 1192, 1229-30 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, Circuit Justice) (regardless or statutory authorization, it is "the duty ... of the executive magistrate ... to repel an invading foe") see also 3 Story, Commentaries §1485 ("[t]he command and application of the public force ... to maintain peace, and to resist foreign invasion" are executive powers).

22. The practice of capturing and detaining enemy combatants is as old as war itself. See Allan Rosas, The Legal Status of Prisoners of War 44-45 (1976). In modern conflicts, the practice of detaining enemy combatants and hostile civilians generally has been designed to balance the humanitarian purpose of sparing lives with the military necessity of defeating the enemy on the battlefield. Id. at 59-80. While Article 17 of the Geneva Convention Relative to the Treatment of Prisoners of War Aug. 12, 1949, 6 U.S. T. 3517, places restrictions on interrogation, of enemy combatants, members of al Qaeda and the Taliban militia are not legally entitled to the status of prisoners of war as defined in the Convention. See Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22. 2002).

23. In the CAT, torture is defined as the intentional infliction of severe pain or suffering "for such purpose as obtaining from him or a third person information or a confession." CAT Article 1.1. One could argue that such a definition represented an attempt to to indicate that the good of or obtaining information no matter what the circumstances -- would not justify an act of torture. In other words, necessity would not be a defense. In enacting Section 2340, however, Congress removed the purpose element in the definition of torture, evidencing an intention to remove any fixing of values by statute. By leaving Section 2340 silent as to the harm done by torture in comparison to other harms, Congress allowed the necessity defense to apply when appropriate.

Further the CAT contains an additional provision that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." CAT Article 2.2. Aware of this provision of the treaty, and of the definition of the necessity defense that allows the legislature to provide for an exception to the defense, see Model Penal Code § 3.02(b), Congress did not incorporate CAT Article 2.2 into Section 2340. Given that Congress omitted CAT's effort to bar a necessity or wartime defense, we read Section 2340 as permitting the defense.

24. Early cases had suggested that in order to be eligible for defense of another, one should have some personal relationship with one one in need of protection. That view has been discarded. LaFave & Scott at 664.

25. Moore distinguishes that case from one in which a person has information that could stop a terrorist attack but who does not take a hand in the terrorist activity itself, such as an innocent person who learns of the attack from her spouse. Moore, 23 Israel L. Rev. at 324. Such individuals, Moore finds, would not be subject to the use of force in self-defense, although they might be under the doctrine of necessity.

26. While the President's constitutional determination alone is sufficient to justify the nation's resort to self-defense, it also bears noting that the right to self-defense is further recognized under international law. Article 51 of the UN. Charter declares that "[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken the measures necessary to maintain international peace and security." The attacks of September 11, 2001 clearly constitute an armed attack against the United States, and indeed were the latest in a long history of al Qaeda sponsored attacks against the United States. This conclusion was acknowledged by the United Nations Security Council on September 28, 2001, when it unanimously adopted Resolution 1373 explicitly "reaffirming the inherent right of individual and collective self-defence as recognized by the charter or the United Nations." This right of self-defense is a right to effective self-defense. In other words, the victim shall have the right to use force against the aggressor who has initiated an "armed attack" until the threat has abated. The United States, through its military and intelligence personnel, has a right recognized by Article 51 to continue using force until such time as the threat posed by al Qaeda and other terrorist groups connected to the September 11th attacks is completely ended" Other treaties reaffirm the right or the United Stales to use force in its self-defense. See, e.g., Inter-AmericanTreaty or Reciprocal Assistance, art. 3, Sept 2, 1947, T.I.A.S. No. 1838, 21 UN.T.S. 77 (Rio Treaty); North Atlantic Treaty, art 5, Apr. 4, 1949, 63 Stat 2241, 34 U.N.T.S. 243.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:47 pm

"Second Bybee Memo"

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

August 1, 2002

MEMORANDUM FOR JOHN RIZZO
ACTING GENERAL COUNSEL OF THE CENTRAL INTELLIGENCE AGENCY

RE: Interrogation of al Qaeda Operative

You have asked for this Office's views on whether certain proposed conduct would violate the prohibition against torture found at Section 2340A of title 18 of the United States Code. You have asked for this advice in the course of conducting interrogations of Abu Zubaydah. As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization, with which the United States is currently engaged in an international armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001. This letter memorializes our previous oral advice, given on July 24, 2002 and July 26, 2002, that the proposed conduct would not violate this prohibition

I.

Our advice is based upon, the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently a level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described, as an "increased pressure phase."

As part of this increased pressure phase, Zubaydah will have contact only with a new interrogation specialist, whom he has not met previously, and the Survival, Evasion, Resistance, Escape ("SERE") training psychologist who has been involved with the interrogations since they began. This phase will likely last no more than several days but could last up to thirty days. In this phase, you would like to employ ten techniques that you believe will dislocate his expectations regarding the treatment he believes he will receive and encourage him to disclose the crucial information mentioned above. These ten techniques are: (1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard. You have informed us that the use of these techniques would be on an as-needed basis and that not all of these techniques will necessarily be used. The interrogation team would use these techniques in some combination to convince Zubaydah that the only way he can influence his surrounding environment is through cooperation. You have, however, informed us that vou expect these techniques to be used in some sort of escalating fashion, culminating with the waterboard, though not necessarily ending with this technique. Moreover, you have also orally informed us that although some of these techniques may be used with more than once, that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions. You have also informed us that Zabaydah sustained a wound during his capture, which is being treated.

Based on the facts you have given, us, we understand each of these techniques to be as follows. The attention grasp consists of grasping the individual with both hands, one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the individual is drawn toward the interrogator.

For walling, a flexible false wall will be constructed. The individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual's shoulder blades that hit the wall. During this motion, the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash. To further reduce the probability of injury, the individual is allowed to rebound from the flexible wall. You have orally informed us that the false wall is in part constructed to create a loud sound when the individual hits it, which, will further shock or surprise in the individual. In part, the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action.

The facial hold is used to hold the head immobile. One open palm is placed on either side of the individual's face. The fingertips are kept well away from the individual's eyes.

With the facial slap or insult slap, the interrogator slaps the individual's face with fingers slightly spread. The hand, makes contact with the area directly between the tip of the individual's chin and the bottom of the corresponding earlobe. The interrogator invades the individual's personal space. The goal of the facial slap is not to inflict physical pain that is severe or lasting. Instead, the purpose of the facial slap is to induce shock, surprise, and/or humiliation.

Cramped confinement involves the placement of the individual in a confined space, the dimensions of which restrict the individual's movement. The confined space is usually dark. The duration of confinement varies based upon the size of the container. For the larger confined space, the individual can stand up or sit down; the smaller space is large enough for the subject to sit down. Confinement in the larger space can last up to eighteen hours; for the smaller space, confinement lasts for no more than two hours.

Wall standing is used to induce muscle fatigue. The individual stands about four to five feet from a wall, with his feet spread approximately to shoulder width. His arms are stretched out in front of him, with his fingers resting on the wall. His fingers support all of his bodyweight. The individual is not permitted to move or reposition his hands or feet.

A variety of stress positions may be used. You have informed us that these positions are not designed to produce the pain associated with contortions or twisting of the body. Rather, somewhat like walling, they are designed to produce the physical discomfort associated with muscle fatigue. Two particular stress positions are likely to be used on Zubaydah: (1) sitting on the floor with legs extended straight out in front of him with his arms raised above his head; and (2) kneeling on the floor while leaning back at a 45 degree angle. You have also orally informed us that through observing Zubaydah in captivity, you have noted that he appears to be quite flexible despite his wound.

Sleep deprivation may be used. You have indicated that your purpose in using this technique is to reduce the individual's ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate. The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction. You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.

You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him. You would, however, place a harmless insect in the box. You have, orally informed us that you would in fact place a harmless insect such as a caterpillar in the box with him. [Big delete]

Finally, you would like to use a technique called the "waterboard." In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of "suffocation and incipient panic," i.e., the perception, of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The-procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. You have also orally informed us that it is likely that this procedure would not last more than 20 minutes in any one application.

We also understand that a medical expert with SERE experience will be present throughout this phase and that the procedures will be stopped if deemed medically necessary to prevent severe mental or physical harm to Zubaydah. As mentioned above, Zubaydah suffered an injury during his capture. You have informed us that steps will be taken to ensure that this injury is not in any way exacerbated by the use of these methods and that adequate medical attention will be given to ensure that it will heal properly.

II.

In this part, we review the context within which these procedures will be applied. You have informed us that you have taken various steps to ascertain what effect, if any, these techniques would have on Zubaydah's mental health. These same techniques, with the exception of the insect in the cramped, confined space, have been used and continue to be used, on some members of our military personnel during their SERE training. Became of the use of these procedures in training our own military personnel to resist interrogations, you have consulted with various individuals who have extensive experience in the use of these techniques. You have done so in order to ensure that no prolonged mental harm would result from the use of these proposed procedures.

Through your consultation with various individuals responsible tor such training, you have learned that these techniques have been [Delete] conduct without any reported [delete] mental [delete] the SERE school, [big delete] has reported that, during the seven-year period that he spent in those positions, there were two requests from Congress for information concerning alleged injuries resulting from the training. One of these inquiries was prompted by the temporary physical injury a trainee sustained as result of being placed in a confinement box. The other inquiry involved claims that the SERE training caused two individuals to engage in criminal behavior, namely, felony shoplifting and downloading child pornography onto a military computer. According to this official, these claims were found to be baseless. Moreover, he has indicated that during the three and a half years he spent as [delete] [delete] of the SERE program, he trained 10,000 students. Of those students, only two dropped out of the training following the use of these techniques. Although on rare occasions some students temporarily postponed the remainder of their training and received psychological counseling, those students were able to finish the program without any indication of subsequent mental health effects.

You have informed us that you have consulted with [delete] who has ten years of experience with SERE training [big delete]. He stated that, during those ten years, insofar as he is aware, none of the individuals who completed the program suffered any adverse mental health effects. He informed you that there was one person who did not complete the training. That person experienced an adverse mental health reaction that lasted only two hours. After those two hours, the individual's symptoms spontaneously dissipated without requiring treatment or counseling and no other symptoms were ever reported by this individual. According to the information you have provided to us, this assessment of the use of these procedures includes the use of the waterboard.

Additionally, you received a memorandum from the [Big delete] which you supplied to us. [Delete] has experience with the use of all of these [delete] a course of conduct, with the exception of the insect in the confinement box and the waterboard. This memorandum confirms that the use of these procedures has not resulted in any reported instances of prolonged mental harm, and very few instances of immediate and temporary adverse psychological responses to the training. [Delete] reported that a small minority of students have had temporary adverse psychological reactions during training. Of the 26,829 students trained from 1992 through 2001 in the Air Force SERE training, 4.3 percent of those students had contact with psychology services. Of those 4.3 percent, only 3.2 percent were pulled from the program for psychological reasons. Thus, out of the students trained overall, only [delete] percent were pulled from the program for psychological reasons. Furthermore, although [delete] indicated that surveys of students having completed this training are not done, he expressed confidence that the training did not cause any long-term psychological impact. He based his conclusion on the debriefing of students that is done after the training. More importantly, he based this assessment on the fact that although training is required to be extremely stressful in order to be effective, very few complaints have been made regarding the training. During his tenure, in which 10,000 students were trained, no congressional complaints have been made. While there was one Inspector General complaint, it was not due to psychological concerns. Moreover, he was aware of only one letter inquiring about the long-term impact of these techniques from an individual trained over twenty years ago. He found that it was impossible to attribute this individual's symptoms to his training. [Delete] concluded that if there are any long-term psychological effects of the United States Air Force training using the procedures outlined above they "are certainly minimal."

With respect to the waterboard, you have also orally informed us that the Navy continues to use it in training. You have informed us that your on-site psychologists, who have extensive experience with the use of the waterboard in Navy training, have not encountered any significant long-term mental health consequences from its use. Your on-site psychologists have also indicated that JPRA has likewise not reported any significant long-term mental health consequences from the use of the waterboard. You have informed us that other services ceased use of the waterboard because it was so successful as an interrogation technique, but not because of any concerns over any harm, physical or mental, caused by it. It was also reported to be almost 100 percent effective in producing cooperation among the trainees. [Delete] also indicated that he had observed the use of the waterboard in Navy training some ten to twelve times. Each time it resulted in cooperation but it did not result in any physical harm to the student.

You have also reviewed the relevant literature and found no empirical data on the effect of these techniques, with the exception of sleep deprivation. With respect to sleep deprivation, you have informed us that is not uncommon for someone to be deprived of sleep for 72 hours and still perform excellently on visual-spatial motor tasks and short-term memory tests. Although some individuals may experience hallucinations, according to the literature you surveyed, those who experience such psychotic symptoms have almost always had such episodes prior to the sleep deprivation. You have indicated the studies of lengthy sleep deprivation showed no psychosis, loosening of thoughts, flattening of emotions, delusions, or paranoid ideas. In one case, even after eleven days of deprivation, no psychosis or permanent brain damaged occurred. In fact the individual reported feeling almost back to normal after one night's sleep. Further, based on the experiences with its use in military training (where it is induced for up to 48 hours), you found that rarely, if ever, will the individual suffer harm after the sleep deprivation is discontinued. Instead, the effects remit after a few good nights of sleep.

You have taken the additional step of consulting with U.S. interrogations experts, and other individuals with oversight over the SERE training process. None of these individuals was aware of any prolonged psychological effect caused by the use of any of the above techniques either separately or as a course of conduct. Moreover, you consulted with outside psychologists who reported that they were unaware of any cases where long-term problems have occurred as a result of these techniques.

Moreover, in consulting with a number of mental health experts, you have learned that the effect of any of these procedures will be dependant on the individual's personal history, cultural history and psychological tendencies. To that end, you have informed us that you have completed a psychological assessment of Zubadyah. This assessment is based on interviews with Zubaydah, observations of him, and information collected from other sources such as intelligence and press reports. Our understanding of Zubaydah's psychological profile, which we set forth below, is based on that assessment.

According to this assessment, Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Osama Bin Laden's senior lieutenant. In that capacity, he has managed a network of training camps. He has been instrumental in the training of operatives for al Qaeda, the Egyptian Islamic Jihad, and other terrorist elements inside Pakistan and Afghanistan. He acted as the Deputy Camp Commander for al Qaeda training camp in Afghanistan, personally approving entry and graduation of all trainees during 1999-2000. From 1996 until 1999, he approved all individuals going in and out of Afghanistan to the training camps. Further, no one went in and out of Peshawar, Pakistan without his knowledge and approval. He also acted as al Qaeda's coordinator of external contacts and foreign communications. Additionally, he has acted as al Qaeda's counter-intelligence officer and has been trusted to find spies within the organization

Zubaydah has been involved in every major terrorist operation carried out by al Qaeda. He was a planner for the Millennium plot to attack U.S. and Israeli targets during the Millennium celebrations in Jordan. Two of the central figures in this plot who were arrested have identified Zubaydah as the supporter of their cell and the plot. He also served as a planner for the Paris Embassy plot in 2001. Moreover, he was one of the planners of the September 11 attacks. Prior to his capture, he was engaged in planning future terrorist attacks against U.S. interests.

Your psychological assessment indicates that it is believed Zubaydah wrote al Qaeda's manual on resistance techniques. You also believe that his experiences in al Qaeda make him well-acquainted with and well-versed in such techniques. As part of his role in al Qaeda, Zubaydah visited individuals in prison and helped them upon their release. Through this contact and activities with other al Qaeda mujahedin, you believe that he knows many stories of capture, interrogation, and resistance to such interrogation. Additionally, he has spoken with Ayman al-Zawahiri, and you believe it is likely that the two discussed Zawahiri's experiences as a prisoner of the Russians and the Egyptians.

Zubaydah stated during interviews that he thinks of any activity outside of jihad as "silly." He has indicated that his heart and mind are devoted to serving Allah and Islam through jihad and he has stated that he has no doubts or regrets about committing himself to jihad. Zubaydah believes that the global victory of Islam is inevitable. You have informed us that he continues to express his unabated desire to kill Americans and Jews.

Your psychological assessment describes his personality as follows. He is "a highly self-directed individual who prizes his independence." He has "narcissistic features," which are evidenced in the attention he pays to his personal appearance and his "obvious 'efforts' to demonstrate that he is really a rather "humble and regular guy.'" He is "somewhat compulsive" in how he organizes his environment and business. He is confident, self-assured, and possesses an air of authority. While he admits to at times wrestling with how to determine who is an "innocent," he has acknowledged celebrating the destruction of the World Trade Center. He is intelligent and intellectually curious. He displays "excellent self-discipline." The assessment describes him as a perfectionist, persistent, private, and highly capable in his social interactions. He is very guarded about opening up to others and your assessment repeatedly emphasizes that he tends not to trust others easily. He is also "quick to recognize and assess the moods and motivations of others." Furthermore, he is proud of his ability to lie and deceive others successfully. Through his deception he has, among other things, prevented the location of al Qaeda safehouses and even acquired a United Nations refugee identification card.

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods. Through reading his diaries and interviewing him, you have found no history of "mood disturbance or other psychiatric pathology[,]" "thought disorder[,].... enduring mood or mental health problems." He is in fact "remarkably resilient and confident, that he can overcome adversity." When he encounters stress or low mood, this appears to last only for a short time. He deals with stress by assessing its source, evaluating the coping resources available to him, and then taking action. Your assessment notes that he is "generally self-sufficient and relies on his understanding and application of religious and psychological principles, intelligence and discipline to avoid and overcome problems." Moreover, you have found that he has a "reliable and durable support system" in his faith, "the blessings of religious leaders, and camaraderie of like-minded mujahedin brothers." During detention, Zubaydah has managed his mood, remaining at most points "circumspect, calm, controlled, and deliberate." He has maintained this demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Zubaydah showed signs of sympathetic nervous system arousal, which you think was possibly fear. Although this incident led him to disclose intelligence information, he was able to quickly regain his composure, his air of confidence, and his "strong resolve" not to reveal any information.

Overall you summarize his primary strengths as the following: ability to focus, goal-directed discipline, intelligence, emotional resilience, street savvy, ability to organize and manage people, keen observation skills, fluid adaptability (can anticipate and adapt under duress and with minimal resources), capacity to assess and exploit the needs of others, and ability to adjust goals to emerging opportunities.

You anticipate that he will draw upon his vast knowledge of interrogation techniques to cope with the interrogation. Your assessment indicates that Zubaydah may be willing to die to protect the most important information that he holds. Nonetheless, you are of the view that his belief that Islam will ultimately dominate the world and that this victory is inevitable may provide the chance that Zubaydah will give information and rationalize it solely as a temporary setback. Additionally, you believe he may be willing to disclose some information, particularly information he deems to not be be critical, but which may ultimately be useful to us when pieced together with other intelligence information you have gained.

III.

Section 2340A makes it a criminal offense for any person "outside of the United States [to] commit[] or attémpt[] to commit torture." Section 2340(1) defines torture as:

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 of physical control.


18 U.S.C. § 2340(1). As we outlined in our opinion on standards of conduct under Section 2340A, a violation of 2340 requires a showing that: (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant's custody or control; (4) the defendant specifically intended to inflict severe pain or suffering; and (5) that the acted inflicted severe pain or suffering. See Memorandum for John Rizzo, Acting General Counsel for the Central Intelligence Agency, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A at 3 (August 1, 2002) ("Section 2340A Memorandum"). You have asked us to assume that Zubayadah is being held outside the United States, Zubayadah is within U.S. custody, and the interrogators are acting under the color of law. At issue is whether the last two elements would be met by the use of the proposed procedures, namely, whether those using these procedures would have the requisite mental state and whether these procedures would inflict severe pain or suffering within the meaning of the statute.

Severe Pain or Suffering. In order for pain or suffering to rise to the level of torture, the statute requires that it be severe. As we have previously explained, this reaches only extreme acts. See id. at 13. Nonetheless, drawing upon cases under the Torture Victim Protection Act (TVPA), which has a definition of torture that is similar to Section 2340's definition, we found that a single event of sufficiently intense pain may fall within this prohibition. See id. at 26. As a result, we have analyzed each of these techniques separately. In further drawing upon those cases, we also have found that courts tend to take a totality-of-the-circumstances approach and consider an entire course of conduct to determine whether torture has occurred. See id. at 27.Therefore, in addition to considering each technique separately, we consider them together as a course of conduct.

Section 2340 defines torture as the infliction of severe physical or mental pain or suffering. We will consider physical pain and mental pain separately. See 18 U.S.C. § 2340(1). With respect to physical pain, we previously concluded that "severe pain" within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury. See Section 2340A Memorandum at 6. Drawing upon the TVPA precedent, we have noted that examples of acts inflicting severe pain that typify torture are, among other things, severe beatings with weapons such as clubs, and the burning of prisoners. See id at 24. We conclude below that none of the proposed techniques inflicts such pain.

The facial hold and the attention grasp involve no physical pain. In the absence of such pain it is obvious that they cannot be said to inflict severe physical pain or suffering, The stress positions and wall standing both may result in muscle fatigue. Each involves the sustained holding of a position. In wall standing, it will be holding a position in which all of the individual's body weight is placed on his finger tips. The stress positions will likely include sitting on the floor with legs extended straight out in front and arms raised above the head, and kneeling on the floor and leaning back at a 45 degree angle. Any pain associated with muscle fatigue is not of the intensity sufficient to amount to "severe physical pain or suffering" under the statute, nor, despite its discomfort, can it be said to be difficult to endure. Moreover, you have orally informed us that no stress position will be used that could interfere with the healing of Zubaydah's wound. Therefore, we conclude that these techniques involve discomfort that falls far below the threshold of severe physical pain.

Similarly, although the confinement boxes (both small and large) are physically uncomfortable because their size restricts movement, they are not so small as to require the individual to contort his body to sit (small box) or stand (large box). You have also orally informed us that despite his wound, Zubaydah remains quite flexible, which would substantially reduce any pain associated with being placed in the box. We have no information from the medical experts you have consulted that the limited duration for which the individual is kept in the boxes causes any substantial physical pain. As a result, we do not think the use of these boxes can be said to cause pain that is of the intensity associated with serious physical injury.

The use of one of these boxes with the introduction of an insect does not alter this assessment. As we understand it, no actually harmful insect will be placed in the box. Thus, though the introduction of an insect may produce trepidation in Zubaydah (which we discuss below), it certainly does not cause physical pain.

As for sleep deprivation, it is clear that depriving someone of sleep does not involve severe physical pain within the meaning of the statute. While sleep deprivation may involve some physical discomfort, such as the fatigue or the discomfort experienced in the difficulty of keeping one's eyes open, these effects remit after the individual is permitted to sleep. Based on the facts you have provided us, we are not aware of any evidence that sleep deprivation results in severe physical pain or suffering. As a result, its use does not violate Section 2340A.

Even those techniques that involve physical contact between the interrogator and the individual do not result in severe pain. The facial slap and walling contain precautions to ensure that no pain even approaching this level results. The slap is delivered with fingers slightly spread, which you have explained to us is designed to be less painful than a closed-hand slap. The slap is also delivered to the fleshy part of the face, further reducing any risk of physical damage or serious pain. The facial slap does not produce pain that is difficult to endure. Likewise, walling involves quickly pulling the person forward and then thrusting him against a flexible false wall. You have informed us that the sound of hitting the wall will actually be far worse than any possible injury to the individual. The use of the rolled towel around the neck also reduces any risk of injury. While it may hurt to be pushed against the wall, any pain experienced is not of the intensity associated with serious physical injury.

As we understand it, when the waterboard is used, the subject's body responds as if the subject were drowning - even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. As we explained in the Section 2340A Memorandum, "pain and suffering" as used in Section 2340 is best understood as a single concept, not distinct concepts of "pain" as distinguished from "suffering." See Section 2340A Memorandum at 6 n.3. The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view inflict "severe pain or suffering." Even if one were to parse the statute more finely to attempt to treat "suffering" as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.

Finally, as we discussed above, you have informed us that in determining which procedures to use and how you will use them, you have selected techniques that will not harm Zubaydah's wound. You have also indicated that numerous steps will be taken to ensure that none of these procedures in any way interferes with the proper healing of Zubaydah's wound. You have also indicated that, should it appear at any time that Zuhaydah is experiencing severe pain or suffering, the medical personnel on hand will STOP the use of any technique.

Even when all of these methods are considered combined in an overall course of conduct, they still would not inflict severe physical pain or suffering. As discussed above, a number of these acts result in no physical pain, others produce only physical discomfort. You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition. Accordingly, we conclude that these acts neither separately nor as part of a course of conduct would inflict severe physical pain or suffering within the meaning of the statute.

We next consider whether the use of these techniques would inflict severe mental pain or suffering within the meaning of Section 2340. Section 2340 defines severe mental pain or suffering as "the prolonged mental harm caused by or resulting from" one of several predicate acts. 18 U.S.C. § 2340(2). [Delete] predicate acts are: (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 any of the preceding acts will be done to another person. See 18 U.S.C. § 2340(2)(A)-(D). As we have explained, this list of predicate acts is exclusive. Sec Section 2340A Memorandum at 8. No other acts can support a charge under Section 2340A based on the infliction of severe menial pain or suffering. See id. Thus, if the methods that you have described do not either in and of themselves constitute one of these acts or as a course of conduct fulfill the predicate act requirement, the prohibition has not been violated. See id. Before addressing these techniques, we note that it is plain that none of these procedures involves a threat to any third party, the use of any kind of drugs, or for the reasons described above, the infliction of severe physical pain. Thus, the question is whether any of these acts, separately or as a course of conduct, constitutes a threat of severe physical pain or suffering, a procedure designed to disrupt profoundly the senses, or a threat of imminent death. As we previously explained, whether an action constitutes a threat must be assessed from the standpoint of a reasonable person in the subject's position. See id. at 9.

No argument can be made that the attention grasp or the facial hold constitute threats of imminent death or are procedures designed to disrupt profoundly the senses or personality. In general the grasp and the facial hold will startle the subject, produce fear, or even insult him. As you have informed us, the use of these techniques is not accompanied by a specific verbal threat of severe physical pain or suffering. To the extent that these techniques could be considered a threat of severe physical pain or suffering, such a threat would have to be inferred from the acts themselves. Because these actions themselves involve no pain, neither could be interpreted by a reasonable person in Zubaydah's position to constitute a threat of severe pain or suffering. Accordingly, these two techniques are not predicate acts within the meaning of Section 2340.

The facial slap likewise falls outside the set of predicate acts. It plainly is not a threat of imminent death, under Section 2340(2)(C), or a procedure designed to disrupt profoundly the senses or personality under Section 2340(2)(B). Though it may hurt, as discussed above, the effect is one of smarting or stinging and surprise or humiliation, but not severe pain. Nor does it alone constitute a threat of severe pain or suffering, under Section 2340(2)(A). Like the facial hold and the attention grasp, the use of this slap is not accompanied by a specific verbal threat of further escalating violence. Additionally, you have informed us that in one use this technique will typically involve at most two slaps. Certainly, the use of this slap may dislodge any expectation that Zubaydah had that he would not be touched in a physically aggressive manner. Nonetheless, this alteration in his expectations could hardly be construed by a reasonable person in his situation to be tantamount to a threat of severe physical pain or suffering. At most, this technique suggests that the circumstances of his confinement and interrogation have changed. Therefore, the facial slap is not within the statute's exclusive list of predicate acts.

Walling plainly is not a procedure calculated to disrupt profoundly the senses or personality. While walling involves what might be characterized as rough handling, it does not involve the threat of imminent death or, as discussed above, the infliction of severe physical pain. Moreover, once again we understand that use of this technique will not be accompanied by any specific verbal threat that violence will ensue absent cooperation. Thus, like, the facial slap, walling can only constitute,a threat of severe physical pain if a reasonable person would infer such a threat from the use of the technique itself. Walling does not in and of itself inflict severe pain or suffering. Like the facial slap, walling may alter the subject's expectation as to the treatment he believes he will receive. Nonetheless, the character of the action falls so far short of inflicting severe pain or suffering within the meaning of the statute that even if he inferred that greater aggressiveness was to follow, the type of actions that could be reasonably he anticipated would still fall below anything sufficient to inflict severe physical pain or suffering under the statute. Thus, we conclude that this technique falls outside the proscribed predicate acts.

Like walling, stress positions and wall-standing are not procedures calculated to disrupt profoundly the senses, nor are they threats of imminent death. These procedures, as discussed above, involve the use of muscle fatigue to encourage cooperation and do not themselves constitute the infliction of severe physical pain or suffering. Moreover, there is no aspect of violence to either technique that remotely suggests future severe pain or suffering from which such a threat of future harm could be inferred. They simply involve forcing the subject to remain in uncomfortable positions. While these acts may indicate to the subject that he may be placed in these positions again if he does not disclose information, the use of these techniques would not suggest to a reasonable person in the subject's position that he is being threatened with severe pain or suffering. Accordingly, we conclude that these two procedures do not constitute any of the predicate acts set forth in Section 2340(2).

As with the other techniques discussed so far, cramped confinement is not a threat of imminent death. It may be argued that, focusing in part on the fact that the boxes will be without light, placement in these boxes would constitute a procedure designed to disrupt profoundly the senses. As we explained in our recent opinion, however, to "disrupt profoundly the senses" a technique must produce an extreme effect in the subject. See Section 2340A Memorandum at 10-12. We have previously concluded that this requires that the procedure cause substantial interference with the individual's cognitive abilities or fundamentally alter his personality. See id. at 11. Moreover, the statute requires that such procedures must be calculated to produce this effect. See id at 10; 18 U.S.C. § 2340(2)(B).

With respect to the small confinement box, you have informed us that he would spend at most two hours in this box. You have informed us that your purpose in using these boxes is not to interfere with his senses or his personality, but to cause him physical discomfort that will encourage him to disclose critical information. Moreover, your imposition of time limitations on the use of either of the boxes also indicates that the use of these boxes is not designed or calculated to disrupt profoundly the senses or personality. For the larger box, in which he can both stand and sit, he may be placed in this box for up to eighteen hours at a time, while you have informed us that he will never spend more than an hour at time in the smaller box. These time limits further ensure that no profound disruption of the senses or personality, were it even possible, would result. As such, the use of the confinement boxes does not constitute a procedure calculated to disrupt profoundly the senses or personality.

Nor does the use of the boxes threaten Zubaydah with severe physical pain or suffering. While additional time spent in the boxes may be threatened, their use is not accompanied by any express threats of severe physical pain or suffering. Like the stress positions and walling, placement in the boxes is physically uncomfortable but any such discomfort does not rise to the level of severe physical pain or suffering. Accordingly, a reasonable person in the subject's position would not infer from the use of this technique that severe physical pain is the next step in his interrogator's treatment of him. Therefore, we conclude that the use of the confinement boxes does not fall within the statute's required predicate acts.

In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah. As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. If you do so, to ensure that you are outside the predicate act requirement, you must inform him that the insects will not have a sting that would produce death or severe pain. If, however, you were to place the insect in the box without informing him that you are doing so, then, in order to not commit a predicate act, you should not affirmatively lead him to believe that any insect's [delete] which has a sting known to produce severe pain or suffering or even cause his death. [Big delete] so long as you [delete] of the approaches we have described, the insect's placement in the box would not constitute a threat of severe physical pain or suffering to a reasonable person in his position. An individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpillar was placed in the box. Further, you have informed us that you are not aware that Zubaydah has any allergies to insects, and you have not informed us of any other factors that would cause a reasonable person in that same situation to believe that an unknown insect would cause him severe physical pain or death. Thus, we conclude that the placement of the insect in the confinement box with Zubaydah would not constitute a predicate act.

Sleep deprivation also dearly does not involve a threat of imminent death. Although it produces physical discomfort, it cannot be said to constitute a threat of severe physical pain or suffering from the perspective of a reasonable person in Zubaydah's position. Nor could sleep deprivation constitute a procedure calculated to disrupt profoundly the senses, so long as sleep deprivation (as you have informed us is your intent) is used for limited periods, before hallucinations or other profound disruptions of the senses would occur. To be sure, sleep deprivation may reduce the subject's ability to think on his feet. Indeed, you indicate that this is the intended result. His mere reduced ability to evade your questions and resist answering does not, however, rise to the level of disruption required by the statute. As we explained above, a disruption within the meaning of the statute is an extreme one, substantially interfering with an individual's cognitive abilities, for example, inducing hallucinations, or driving him to engage in uncharacteristic self-destructive behavior. See infra 13; Section 2340A. Memorandum at II. Therefore, the limited use of sleep deprivation does not constitute one of the required predicate [delete]

We find that the use of the waterboard constitutes a threat of imminent death. Ás you have explained the waterboard procedure to us, it creates in the subject the uncontrollable physiological sensation that the subject is drowning. Although the procedure will be monitored by personnel with medical training and extensive SÉRE school experience with this procedure who will ensure the subject's mental and physical safety, the subject is not aware of any of these precautions. From the vantage point of any reasonable person undergoing this procedure in such circumstances, he would feel as if he is drowning at very moment of the procedure due to the uncontrollable physiological sensation he is experiencing. Thus, this procedure cannot be viewed as too uncertain to satisfy the imminence requirement. Accordingly, it constitutes a threat of imminent death and fulfills the predicate act requirement under the statute.

Although the waterboard constitutes a threat of imminent, death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering. See Section 2340A Memorandum at 7. We have previously concluded that prolonged mental harm is mental harm of some lasting duration, e.g., mental harm lasting months or years. See id. Prolonged mental harm is not simply the stress experienced in, for example, an interrogation by state police. See id. Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged mental harm would result from the use of the waterboard. Indeed, you have advised us that the relief is almost immediate when the cloth is removed from the nose and mouth. In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture within the meaning of the statute.

When these acts are considered as a course of conduct, we are unsure whether these acts may constitute a threat of severe physical pain or suffering. You have indicated to us that you have not determined either the order or the precise timing for implementing these procedures. It is conceivable that these procedures could be used in a course of escalating conduct, moving incrementally and rapidly from least physically intrusive, e.g., facial hold, to the most physical contact, e.g., walling or the waterboard. As we understand it, based on his treatment so far, Zubaydah has come to expect that no physical harm will be done to him. By using these techniques in increasing intensity and in rapid succession, the goal would be to dislodge this expectation. Based on the facts you have provided to us, we cannot say definitively that the entire course of conduct would cause a reasonable person to believe that he is being threatened with severe pain or suffering within the meaning of section 2340. On the other hand, however, under certain circumstances—for example, rapid escalation in the use of these techniques culminating in the waterboard (which we acknowledge constitutes a threat of imminent death) accompanied by verbal, or other suggestions that physical violence will follow—might cause a reasonable person to believe that they are faced with such a threat. Without more information, we are uncertain whether the course of conduct would constitute a predicate act under Section 2340(2).

Even if the course of conduct were thought to pose a threat of physical pain or suffering, it would nevertheless—on the facts before us—not constitute a violation of Section 2340A. Not only must the course of conduct be a predicate act, but also those who use the procedure must actually cause prolonged mental harm. Based on the information that you have provided to us, indicating that no evidence exists that this course of conduct produces any prolonged mental harm, we conclude that a course of conduct using these procedures and culminating in the waterboard would not violate Section 2340A.

Specific Intent. To violate the statute, an individual must have the specific intent to inflict severe pain or suffering. Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. As we previously opined, to have the required specific intent, an individual must expressly intend to cause such severe pain or suffering. See Section 2340A Memorandum at 3 citing Carter v. United States, 530 U.S. 255. 267 (2000). We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent. See id at. 4 citing South Atl. Lmtd. Ptrshp. of Tenn. v. Reise, 218 F.3d 518. 531 (4th Cir. 2002). A defendant acts in good faith when he has an honest belief that his actions will not result in severe pain or suffering. See id. citing Cheek v. United States, 498 U.S. 192, 202 (1991). Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it. See id. at 5. Good faith may be established by, among other thing's, the reliance on the advice of experts. See id. at 8.

Based on the information you have provided us, we believe that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering. The objective of these techniques is not to cause severe physical pain. First, the constant presence of personnel with medical training who have the authority to stop the interrogation should it appear it is medically necessary indicates that it is not your intent to cause severe physical pain. The personnel on site have extensive experience with these specific techniques as they are used in SERE school training. Second, you have informed us that you are taking steps to ensure that Zubaydah's injury is not worsened or his recovery impeded by the use of these techniques.

Third, as you have described them, to us, the proposed techniques involving physical contact between the interrogator and Zubaydah actually contain precautions to prevent any serious physical harm to Zubaydah. In "walling," a rolled hood or towel will be used to prevent whiplash and he will be permitted to rebound from the flexible wall to reduce the likelihood of injury. Similarly, in the "facial hold," the fingertips will be kept well away from the his eyes to ensure that there is no injury to them. The purpose of that facial hold is not to injure him but to hold the head immobile. Additionally, while the stress positions and wall standing will undoubtedly result in physical discomfort by tiring the muscles, it is obvious that these positions are not intended to produce the kind of extreme pain required by the statute.

Furthermore no specific intent to cause severe mental pain or suffering appears to be present. As we explained in our recent opinion, an individual must have the specific intent to cause prolonged mental harm in order to have the specific intent to inflict severe mental pain or suffering. See Section 2340A Memorandum at 8. Prolonged mental harm is substantial mental harm of a sustained duration, e.g., harm lasting months or even years after the acts were inflicted upon the prisoner. As we indicated above, a good faith belief can negate this element. Accordingly, if an individual conducting the interrogation has a good faith belief that the procedure he will apply, separately or together, would not result in prolonged menial harm, that individual lacks the requisite specific intent. This conclusion concerning specific intent is further bolstered by the due diligence that has been conducted concerning the effects of these interrogation procedures.

The mental health experts that you have consulted have indicated that the psychological impact of a course of conduct must be assessed with reference to the subject's psychological history and current mental health status. The healthier the individual, the less likely that the use of any one procedure or set of procedures as a course of conduct will result in prolonged mental harm. A comprehensive psychological profile of Zubaydah has been created. In creating this profile, your personnel drew on direct interviews, Zubaydah's diaries, observation of Zubaydah since his [delete] reports. [Big delete]

As we indicated above, you have informed us that your proposed interrogation methods have been used and continue to be used in SERE training. It is our understanding that these techniques are not used one by one in isolation, but as a full course of conduct to resemble a real interrogation. Thus, the information, derived from SERE training bears both upon the impact of the use of the individual techniques and upon their use as a course of conduct. You have found that the use of these methods together or separately, including the use of the waterboard, has not resulted in any negative long-term, mental health consequences. The continued use of these methods without mental health consequences to the trainees indicates that it is highly improbable that such consequences would result here. Because you have conducted the due diligence to determine that these procedures, either alone or in combination, do not produce prolonged mental harm, we believe that you de not meet the specific intent requirement necessary to violate Section 2340A.

You have also informed us that you have reviewed the relevant literature on the subject and consulted with outside psychologists. Your review of the literature uncovered no empirical data on the use of these procedures, with the exception of sleep deprivation for which no long-term health consequences resulted. The outside psychologists with whom you consulted indicated were unaware of any cases where long-term problems have occurred as a result of these techniques.

As described above, it appears you have conducted an extensive inquiry to ascertain what impact, if any, these procedures individually and as a course of conduct would have on Zubaydah. You have consulted with interrogation experts, including those with substantial SERE school experience, consulted with outside psychologists, completed a psychological assessment and reviewed the relevant literature on this topic. Based on this inquiry, you believe that the use of the procedures, including the waterboard, and as a course of conduct would not result in prolonged mental harm. Reliance on this information about Zubaydah and about the effect of the use of these techniques more generally demonstrates the presence of a good faith belief that no prolonged mental harm will result from using these methods in the interrogation of Zubaydah. Moreover, we think that this represents not only an honest belief but also a reasonable belief based on the information that you have supplied to us. Thus, we believe that the specific intent to inflict prolonged mental is not present, and consequently, there is no specific intent to inflict severe mental pain or suffering. Accordingly, we conclude that on the facts in this case the use of these methods separately or a course of conduct would not violate Section 2340A.

Based on the foregoing, and based on the facts that you have provided, we conclude that the interrogation procedures that you propose would not violate Section 2340A. We wish to emphasize that this is our best reading of the law; however, you should be aware that there are no cases construing this statute; just as there have been no prosecutions brought under it.

Please let us know if we can be of further assistance.

Jay S. Bybee
Assistant Attorney General
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:48 pm

MEMO 15

U.S. Department of Justice
Office of Legal Counsel

Office of the Deputy Assistant Attorney General
Washington, D.C. 20530

August 1, 2002

The Honorable Alberto R. Gonzales
Counsel to the President
The White House
Washington, D.C.

Dear Judge Gonzales:

You have requested the views of our Office concerning the legality, under international law, of interrogation methods to be used during the current war on terrorism. More specifically, you have asked whether interrogation methods used on captured al Qaeda operatives, which do not violate the prohibition on torture found in 18 U.S.C. § 2340-2340A, would either: a) violate our obligations under the Torture Convention, [1] or b) create the basis for a prosecution under the Rome Statute establishing the International Criminal Court (ICC). [2] We believe that interrogation methods that comply with § 2340 would not violate our international obligations under the Torture Convention, because of a specific understanding attached by the United States to its instrument of ratification. We also conclude that actions taken as part of the interrogation of al Qaeda operatives cannot fall within the jurisdiction of the ICC, although it would be impossible to control the actions of a rogue prosecutor or judge. This letter summarizes our views; a memorandum opinion will follow that will more fully explain our reasoning.

I.

Section 2340A makes it a criminal offense for any person "outside the United States [to] commit[] or attempt[] to commit torture." [3] The act of torture is defined as 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.


18 U.S.C.A. § 2340(1); see id. § 2340A. Thus, to convict a defendant of torture, the prosecution must establish that: (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant's custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) that the act inflicted severe physical or mental pain or suffering. See also S. Exec. Rep. No. 101-30, at 6 (1990) ("For an act to be 'torture,' it must ... cause severe pain and suffering, and be intended to cause severe pain and suffering."). As we have explained elsewhere, in order to violate the statute a defendant must have specific intention to inflict severe pain or suffering -- in other words, "the infliction of such pain must be the defendant's precise objective." See Memorandum for Alberto R. Gonzales, Counsel to the President, from: Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Standards of Conduct for Interrogation under under 18 U.S.C. §§ 2340-2340A at 3 (August 1, 2002).

Section 2340 further defines "severe mental pain or suffering" as:

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, or 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.


18 U.S.C. § 2340(2). As we have explained, in order to inflict severe mental or suffering, a defendant both must commit one of the four predicate acts, such as threatening imminent death, and intend to cause "prolonged mental harm."

II.

You have asked whether interrogation methods used on al Qaeda operatives that comply with 18 U.S.C. §§ 2340-2340A neveretheless could violate the United States' obligations under the Torture Convention. The Torture Convention defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or4 acquiescence of a public official or other person acting in an official capacity.


Article 1(1) (emphasis added).

Despite the apparent differences in language between the Convention and § 2340, international law clearly could not hold the United States to an obligation different than that expressed in § 2340. When it acceded to the Convention, the United States attached to its instrument of ratification a clear understanding that defined torture in the exact terms used by § 2340. The first Bush administration submitted the following understanding of the treaty:

The United States understands that, 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 pain caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) 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. 10-30, at 36. The Senate approved the Convention based on this understanding, and the United States including the understanding in its instrument of ratification. [4]

This understanding accomplished two things. First, it made crystal clear that the intent requirement for torture was specific intent. By its terms, the Torture Convention might be read to require only general intent although we believe the better argument is that that the Convention's use of the phrase "intentionally inflicted" also created a specific intent-type standard. Second, it added form and substance to the otherwise amorphous concept of mental pain or suffering. In so doing, this understanding ensure that mental torture would rise to a severity comparable to that required in the context of physical torture.

It is one of the core principles of international law that in treaty relations a nation is not bound without its consent. Under international law, a reservation made when ratifying a treaty validly alters or modifies the treaty obligation, subject to certain conditions that will be discussed below. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980); 1 Restatement of the Law (Third) of the Foreign Relations Law of the [see alternative text ending this paragraph below] one nation, Germany appears to have commented on the United States' reservations, and even Germany did not oppose any U.S. reservation outright.

Thus, we conclude that the Bush administration's understanding created a valid and effective reservation to the Torture Convention. Even if it were otherwise, there is no international court to review the conduct of the United States under the Convention. In an additional reservation, the United States refused to accept the jurisdiction of the ICJ (which, in any event, could hear only a case brought by another state, not by an individual) to adjudicate cases under the Convention. Although the Convention creates a Committee to monitor compliance, it can only conduct studies and has no enforcement powers.

III.

You have also asked whether interrogations of al Qaeda operatives could be subject to criminal investigation and prosecution by the ICC. We believe that the ICC cannot take action based on such interrogations.

First, as noted earlier, one of the most established principles of international law is that a state cannot be bound by treaties to which it has not consented. Although President Clinton signed the Rome Statute, the United States has withdrawn its signature from the agreement before submitting it to the Senate for advice and consent -- effectively terminating it. The United States, therefore, cannot be bound by the provisions of the ICC Treaty nor can U.S. nationals be subject to ICC prosecution. We acknowledge, however, that the binding nature of the ICC treaty on non-parties is a complicated issue and do not attempt to definitively answer it here.

Second. even if the ICC could in some way act upon the United States and its citizens, interrogation of an al Qaeda operative could not constitute a crime under the Rome Statute. Even if certain interrogation methods being contemplated amounted to torture (and we have no facts that indicate that they would), the Rome Statute makes torture a crime subject to the ICC's jurisdiction in only two contexts. Under article 7 of the Rome Statute, torture may fall under the ICC's jurisdiction as a crime against humanity if it is committed as "part of a widespread and systematic attack directed against any civilian population." Here, however, the interrogation of al Qaeda operatives is not occurring as part of such an attack. The United States' campaign against al Qaeda is an attack on a non-state terrorist organization, not a civilian population. If anything, the interrogations are taking place to elicit information that could prevent attacks on civilian populations.

Under article 8 of the Rome statute, torture can fall within the ICC's jurisdiction as a war crime. In order to constitute a war crime, torture must be committed against "persons or property protected under the provisions of the relevant Geneva Conventions." Rome Statute, art. 8. On February 27, 2002, the President determined that neither members of the al Qaeda terrorist network nor Taliban soldiers were entitled to the legal status of prisoners of war under the Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3517 ("GPW"). As we have explained elsewhere, members of al Qaeda cannot receive the protections accorded to POWs under GPW because al Qaeda is a non-state terrorist organization that has not signed the Conventions. Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees at 8 (Jan. 22, 2002). The President has appropriately determined that al Qaeda members are not POWs under the GPW, but rather are illegal combatants, who are not entitled to the protections of any of the Geneva Conventions. Interrogation of al Qaeda members, therefore, cannot constitute a war crime because article 8 of the Rome Statute applies only to those protected by the Geneva Conventions.

We cannot guarantee, however, that the ICC would decline to investigate and prosecute interrogations of al Qaeda members. By the terms of the Rome Statute, the ICC is not checked by any other international body, not to mention any democratically-elected or accountable one. Indeed, recent events indicate that some nations even believe that the ICC is not subject to the authority of the United Nations Security Council. It is possible that an ICC official would ignore the clear limitations imposed by the Rome Statute, or at least disagree with the President's interpretation of GPW. Of course, the problem of the "rogue prosecutor" is not limited to questions about the interrogation of al Qaeda operatives, but is a potential risk for any number of actions that have been undertaken during the Afghanistan campaign, such as the collateral loss of civilian life in the bombing of legitimate military targets. Our Office can only provide the best reading of international law on the merits. We cannot predict the political actions of international institutions.

Please let us know if we can be of further assistance.

Sincerely,
John C. Yoo
Deputy Assistant Attorney General

_______________

Notes:

1. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 (entered into force June 26, 1987)

2. U.N. Doc. A/CONF.183/9 (1998), reprinted in 37 I.L.M. 999 (1998) [hereinafter ICC Statute].

3. If convicted of torture, a defendant faces a fine or up to twenty years' imprisonment or both. If, however, the act resulted in the victim's death, a defendant may be sentenced to life imprisonment or to death. See 18 U.S.C.A. § 2340A(a). Whether death results from the act also affects the applicable statute of limitations. Where death does not result, the statute of limitations is eight years; if death results, there is no statute of limitations. See 18 U.S.C.A. § 3286(b) (West Supp. 2002); id. § 2332b(g)(5)(B) (West Supp. 2002). Section 2340A as originally enacted did not provide for the death penalty as a punishment. See Omnibus Crime Bill, Pub. L. No. 103-322, Title VI, Section 60020, 108 Stat. 1979 (1994) (amending section 2340A to provide for the death penalty); H.R. Conf. Rep. No. 103-711, at 388 (1994) (noting that the act added the death penalty as a penalty for torture).

Most recently, the USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272 (2001), amended section 2340A to expressly codify the offense of conspiracy to commit torture. Congress enacted this amendment as part of a broader effort to ensure that individuals engaged in the planning of terrorist activities could be prosecuted irrespective of where the activities took place. See H.R. Rep. No. 107-236, at 70 (2001) (discussing the addition of "conspiracy" as a separate offense for a variety of "Federal terrorism offense[s]").

4. See http://www.un.org/Depts/Treaty/final/ts ... /iv_9.html.

_______________

Librarian's Comment:
There must have been two versions of this document. See alternative text with extra footnotes below.

Alternative Text:

United States § 313 (1987). [5] The right to enter reservations applies to multilateral international agreements just as in the more familiar context of bilateral agreements. Id. Under international law, therefore, the United States thus is bound only by the text of the Torture Convention as modified by the first Bush administration's understanding. [6] As is obvious from its text, Congress codified the understanding almost verbatim when it enacted § 2340. The United States' obligation under the Torture Convention is thus identical to the standard set by § 2340. Conduct that does not violate the latter does not violate the former. Put another way, so long as the interrogation methods do not violate § 2340, they also do not violate our international obligations under the Torture Convention.

Although the Vienna Convention on Treaties recognizes several exceptions to the right to make reservations, none of them apply here. [7] First, a reservation is valid and effective unless it purports to defeat the object and purpose of the treaty. Vienna Convention, art. 19. Our initial research indicates that international law has provided little guidance regarding the meaning of the "object and purpose" test. Nonetheless, it is clear that here the United States had not defeated the object and purpose of the Torture Convention. The United States nowhere reserved the right to conduct torture; in fact, it enacted Section 2340 to expand the prohibition on torture in its domestic criminal law. Rather than defeat the object of the Torture Convention, the United States simply accepted its prohibition and attempted, through the Bush administration's understanding, to make clear the scope and meaning of the treaty's obligations.

Second, a treaty reservation will not be valid if the treaty itself prohibits states from taking reservations. The Torture Convention nowhere prohibits state parties from entering reservations. To be sure, two provisions of the Torture Convention -- the competence of the Committee Against Torture, art. 28, and the mandatory jurisdction of the International Court of Justice, art. 30 -- specifically note that nations may take reservations from their terms. Nonetheless, the Convention contains no provision that explicitly attempts to preclude states from exercising their basic right under international law to enter reservations to other provisions. Without such a provision, we do not believe that the Torture Convention precludes reservations.

Third, in regard to multilateral agreements, a treaty reservation may not be valid if it is objected to in a timely manner by other states. Vienna Convention art. 20. If another state does not object within a certain period of time, it is deemed to have acquiesced in the reservation. Even if, however, another nation objects, that only means that the provision of the treaty to which the reservation applies is not in force between the two nations -- unless the objecting nation opposes entry into force of the treaty as a whole between the two nations. Id. art 21(3). Here, no nation appears to have objected to the United States' further definition of torture. Only one nation, Germany appears to have commented on the United States' reservations, and even Germany did not oppose any U.S. reservation outright.

_______________

Notes:

5. Although, under domestic law, the Bush administration's definition of torture was categorized as an "understanding," it was deposited with the instrument of ratification as a condition of the United States' ratification, and so under international law we consider it to be a reservation if it indeed modifies the Torture Convention standard. See Restatement (Third) at § 313 cmt. g.

6. Further, if we are correct in our suggestion that the Torture Convention itself creates a heightened intent standard, then the understanding attached by the Bush Administration is less a modification of the Convention's obligations and more of an explanation of how the United States would implement its somewhat ambiguous terms.

7. It should be noted that the United States is not a signatory to the Vienna Convention, although it has said that it considers some of its provisions to be customary international law.
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