Two Mistaken Defenses of Torture

by Kevin Jon Heller

Both Humblelawstudent and Stuart Taylor have criticized my previous post.  Both misunderstand the federal torture statute and the concept of torture in important — and unfortunately all too common — ways, so it is worth explaining their errors in a separate post.

Let’s begin with HLS.  He claims that, contrary to my assertion, “the statute requires the interrogator to actually cause “severe mental pain or suffering,” because “'[t]hreatening’ is only torture where the threat of the ‘infliction of several physical pain or suffering’ causes “severe mental pain or suffering.”  That is incorrect, although the poor drafting of the statute makes it an easy mistake to make.  Again, here is the text of the statute:

(1) “torture” means 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;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(C) the threat of imminent death.

The elements of torture are contained in the first paragraph of s. 2340.  As defined, the actus reus of the crime consists of three elements: (1) an “act”; (2) the commission of that act by a “person acting under color of law”; and (3) the commission of that act “upon another person within his custody or control.”  (1) is a conduct element; (2) and (3) are circumstance elements.  The mens rea of the crime is then the commission of the act with the specific intent to inflict “severe physical or mental pain or suffering.”

Notice what is missing from the crime: a consequence element.  Nothing in paragraph one requires the act to actually cause “severe physical or mental pain or suffering”; to be guilty of torture, the interrogator must simply specifically intend to cause it.  If he specifically intends to cause “severe physical or mental pain or suffering” but fails, he has still committed the crime.

To be sure, it is easy to misunderstand the crime as HLS does, assuming that the second paragraph of s. 2340 means that torture requires the act to cause a particular consequence.  The statute is not well drafted.  But paragraph two simply defines what it is that the interrogator must specifically intend to do — he must specifically intend his act to cause “severe mental pain or suffering,” which is defined as “prolonged mental harm.”  In other words, to be guilty of torture, the interrogator must specifically intend to cause “prolonged mental harm”; whether he actually causes such harm is irrelevant.

And how does he do that?  How does an interrogator specifically intend to cause “prolonged mental harm”?  That question is answered by the first quoted subparagraphs of paragraph two: an interrogator specifically intends to cause “prolonged mental harm” if he actually inflicts “severe physical pain or suffering” capable of causing such mental harm, or if he threatens to inflict “severe physical pain or suffering” capable of causing such mental harm.  Differently put, the interrogator cannot be said to have specifically intended to cause “severe physical or mental pain or suffering” if his actual violence or his threats of violence are not capable of producing “prolonged mental harm.”  Whether he actually produces such harm is irrelevant.

Again, HLS’s fundamental mistake is to assume that the federal torture statute contains a consequence element.  It doesn’t, as the above analysis indicates.  Need more proof?  Consider the Convention Against Torture and the Rome Statute.  Here are their definitions of the crime:

CAT, art. 1(1): For the purposes of this Convention, the term “torture” means 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.

Rome Statute, art. 7(2)(e): “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.

Notice the difference?  Both CAT and the Rome Statute define torture as a crime of consequence: the intentional conduct must actually cause severe pain or suffering; it is not enough for the interrogator to specifically intend to cause it.  The federal torture statute, by contrast, only requires the specific intent.

Now, onto Taylor.  Taylor’s criticism, once you cut through the bombast, is more serious, though still mistaken.  Here is what he wrote:

In addition, it is fatuous for Heller to claim that interrogators who threaten to cause (or who do cause) cause short-term “severe mental pain or suffering” in the colloquial sense must therefore “specifically intend” to cause (or even to threaten) severe mental pain in the statutory sense, which requires proof of “prolonged mental harm.” The same is true even if one assumes that the interrogator intends to threaten severe physical pain. Yes, such a threat is intended to cause severe mental pain in the colloquial, short-term sense. But it clearly would not be specifically intended to cause prolonged mental harm — not unless the interrogator’s only motivation is sadism, which no honest person has claimed.

First, like HLS, Taylor does not understand that torture does not require proof that “prolonged mental harm” actually resulted from the waterboarding; again, the crime only requires proof that the interrogator specifically intended to cause such prolonged harm.  But Taylor’s mistake does not actually affect the core of his argument, which is that, when we delve into the minds of the waterboarders, we find only the subjective intent to cause short-term mental harm.  Differently put, Taylor believes that the interrogator specifically intends to cause severe mental harm — the threat of death — only for the duration of the waterboarding; once the waterboarding ends, the specific intent to cause severe mental harm ends.

That is not a ludicrous position, but it is incorrect.  If we assume that that the CIA interrogators honestly believed that one act of waterboarding would normally be enough to convince a detainee to speak, Taylor would have an argument — in such a situation, the interrogators would not have needed to intend to cause “prolonged” mental harm, because the specific intent to cause transitory mental harm (lasting the duration of the waterboarding) would have been enough.  But that assumption is clearly false, given how often the CIA interrogators waterboarded the detainees.  Waterboarding a detainee 183 times (or even just multiple times) is a clear indication that the interrogators were fully aware that only a series of waterboardings would suffice to terrify a detainee into talking.  The detainee — particularly a hardened, well-trained terrorist — might not fear death in the first waterboarding.  Perhaps not even in the first few.  But enough waterboardings?  Eventually the detainee would realize that his interrogators might kill him if he didn’t eventually talk.

The point of the CIA’s waterboarding, then, was precisely to create prolonged mental harm in the mind of the detainee.  The interrogator wanted the detainee to fear death from the first waterboarding until the final waterboarding (however many that was) that convinced him to talk.  And more than that: the interrogator wanted the detainee’s fear of death to escalate with each waterboarding, because that escalation was the key to breaking down his resistance.

This is a much more convincing explanation of the purpose of waterboarding than Taylor’s.  Taylor would have us believe that each of the 183 waterboardings to which Khalid Sheikh Mohammed was subjected were completely independent of each other — that although the interrogators wanted to make KSM fear death during each waterboarding, they had no desire to make him fear death between waterboardings.  But that is absurd: if the CIA interrogators did not want the fear of death to carry over between waterboardings, it made no sense for them to waterboard him 183 times.  If KSM could resist talking despite the fear of death once, and if his fear of death did not grow over time, why would they continue to waterboard him?  Wouldn’t they have simply said, “bummer, he’s too tough to be convinced to talk by the short-term threat of death.  We will have to stop waterboarding him, because we are not trying to cause him to suffer prolonged mental harm by making him increasingly afraid that we will kill him if he doesn’t talk”?

They didn’t say that, of course, and they didn’t stop waterboarding him.  And the reason is clear: because they were not specifically intending to cause KSM only short-term mental harm.  They were specifically intending to cause him prolonged mental harm — harm that lasted long enough, and escalated far enough, to convince him to talk.  And that is his waterboarding, and all the other waterboardings like it, were torture.

A final point: although this process of creating an escalating fear of death through multiple waterboardings is sadistic, no one is claiming — Taylor’s strawman aside — that the interrogators are motivated by sadism.  They are motivated by the desire to convince the detainee to talk, which they accomplish by using multiple acts of waterboard to heighten the detainee’s fear of death.

http://opiniojuris.org/2010/02/27/two-mistaken-defenses-of-torture/

30 Responses

  1. Thank you for your response KJH.  It has allowed me to refine my argument.  That said, you still misread the statute. 

    My disagreement is that you are arguing that the specific intent to cause “severe mental pain or suffering” is somehow divorced from the statutory requirement in section (2) that the interrogator actually inflict (or intend to inflict) physical torture (severe physical pain or suffering) or threaten the interrogee with such an act. 

    I don’t believe the statute is quite as complicated as you make it.  But, let’s go through this point by point, and I’ll explain what I mean.
    The relevant part of Section (1) states: “’torture’ means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering . . . .”
    Section (2) defines “severe mental pain or suffering” so we can substitute Sections 2’s definition into Section 1. 
    Doing that substitution we get:
    “’torture’ means an act . . . specifically intended to inflict “prolonged mental harm caused by or resulting from . . . the intentional infliction or threatened infliction of severe physical pain or suffering.”
    Contrary to your argument, the statute requires the interrogator to either inflict (or intend to inflict) physical torture (“severe physical pain or suffering”) or threaten to inflict physical torture in order for any prolonged mental harm suffered by the interrogee from the act to constitute torture.   
    You are correct that it is irrelevant if the interrogee actual suffers the prolonged mental harm.  The statute requires the specific intent to inflict the prolonged mental harm, but that doesn’t help you that much because the statute contains additional requirements for an act to constitute torture for severe mental pain or suffering.
    Another way to put it is that “prolonged mental harm” is only torture when the act that causes or results in the “prolonged mental harm” is either the intentional infliction or threatened infliction of physical torture (severe physical pain or suffering).  If the act (or act intended) that causes the prolonged mental harm does not constitute physical torture, then the act does not satisfy the statutory definition for the severe mental pain or suffering to constitute torture.

  2. I stand by my post.  Paragraph 2 does not add an element to the definition of torture in Pargraph 1; it defines one of those elements — namely, the element concerning what the defendant must specifically intend to cause.  One can specifically intend to cause “severe physical pain or suffering” without actually causing it.

    You may be correct that the drafters of s. 2340 intended torture to require a consequence element.  But it is clear that it doesn’t, as the comparison to CAT and Article 7(2)(e) makes clear.

  3. If it is poorly written then the rule of lenity applies.  Plus, how can you just ignore the intent?

  4. KJH,

    Several things.

    First, your implied assertion to the contrary, a definition can contain its own elements, which is precisely what is occuring in the subsections of Section 2.  A failure to recognize this is, I believe, one of your biggest stumbling blocks on this issue.

    You write: “[Section (2)] defines one of those elements — namely, the element concerning what the defendant must specifically intend to cause.  One can specifically intend to cause ‘severe physical pain or suffering’ without actually causing it.” 

    That is correct!  To constitute mental torture, Section (2) requires the interrogator to specifically intend for his act to inflict “prolonged mental harm.”  But that is not all.  The subsections to section (2) explain what acts must cause the prolonged mental harm in order for the interrogator to have committed mental torture. 

    For section (2)(A), “the intentional infliction or threatened infliction of severe physical pain or suffering” is required for the prolonged mental harm to constitute mental torture.*  Here is the key again.    The specifically intended act (whether intended to be inflicted or threatened) must on its own constitute physical torture to allow a finding of mental torture under (2)(A).

    That is why if waterboarding does not constitute physical torture then it cannot constitute mental torture under Section (2)(A).  We can argue whether it counts as mental torture under (2)(c), but that is a slightly different argument.

    *(Other subsections of (2) have their own requirements for different acts to constitute mental torture). 

  5. Dangit, I wish there was an edit function.  My first main sentence is poorly written.  The following is better:  “First, your implied assertion to the contrary, a definition can contain its own subtypes (or different types of acts that can constitute mental torture) and elements for those subtypes.  This is precisely what is occuring in Section (2).  The subsections of section (2) include a variety of different acts (or subtypes that constitute mental torture) that can constitute mental torture.  And those subsections, such as (A), can contain their own elements.”

  6. HLS

    The specifically intended act (whether intended to be inflicted or threatened) must on its own constitute physical torture to allow a finding of mental torture under (2)(A).

    Shouldn’t 2(B) also be bought into consideration then?

    2(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;

    Kind of hard to say the Waterboarding is not torture when it’s a proven fact, that it has the capacity to cause brain damage (I would conclude that would be specified as a profound disruption to the senses), and lasting psychological damage (mental torture?)…

    New Stream Dream:

    If the rule of lenity was imposed, it would be likely to cancel itself out anyways?
    As it is contrary to legislative intent?

  7. HLS You should be able to edit within the first 4 mins of the post going up…

  8. A,

    From what I understand, 2(B) is intended to cover drugs, etc. 

  9. 2(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;

    Is waterboarding not considered a procedure?  All too ambiguous…

  10. Everything HLS says is correct except for this: “If the act (or act intended) that causes the prolonged mental harm does not constitute physical torture, then the act does not satisfy the statutory definition for the severe mental pain or suffering to constitute torture.”  He has not, and cannot, point to anything in the statute that supports his claim.  The act must be specifically intended to cause “severe physical or mental pain or suffering,” which means it must be specifically intended to cause “prolonged mental harm.”  As 2(A) makes clear, prolonged mental harm can exist even in the absence of actual “severe pain or suffering”; the mere threat of such suffering or imminent death suffices to establish the prolonged harm.  As an act, waterboarding intentionally threatens the detainee with imminent death (drowning) or “severe pain or suffering.”  Waterboarding thus intentionally threatens to cause the detainee prolonged mental harm.  And that is all that the torture statute requires — whether the waterboarding actually causes severe pain or suffering is irrelevant.

  11. I think statutes in general should be broadly construed, but only as best to do justice and avoid unfair/nonsensical results.  If you don’t then you turn into Kansas:
    http://lawblog.legalmatch.com/2010/02/22/if-you-dont-shoot-your-attacker-in-kansas-then-waive-bye-bye-to-claiming-self-defense/

  12. What KJH said, but he says it more eloquently and logically than I do!

  13. KJH:  Any thoughts on the rule of lenity?

  14. According to the Supreme Court, the rule of lenity applies only to statutes that contain a “grievous ambiguity or uncertainty.”  Muscarello v. United States, 524 U.S. 125, 138-29 (1998).  There is nothing grievously ambiguous about the federal torture statute, despite the efforts of people like Taylor to create the illusion of ambiguity by misreading the statute. (A trick much like the one Luban rightly decries.)

    By the way, I find it ironic that conservatives, who would never think to apply the rule of lenity in the context of “ordinary” crimes, suddenly rediscover it when it might help one of their own.

  15. A,

    Did you get the note I left for you on your blog?

    K.

  16. K.

    Yup, I did, but I have a feeling this week will be crazy at work.  I’ve had enough trouble leaving the office this last week.
    I’ll e-mail you sometime this week, maybe catch up on fri/sat?  Depending on how busy it is on fri…

    A.

  17. Anytime.  As you know, I live in Collingwood.  (Damn St. Kilda. 100-99!)  Send me an email and I’ll give you my mobile number.

  18. If we’re going to go this far off topic…

    http://www.quixreason.wordpress.com

    My first Hypo just went up… :-)

  19. I found it interesting that the statute did not seem to qualify the act or threat in the terms of the CAT “. . .  intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.”.  Whatever the ostensible purpose of waterboarding and the like, there seems to be a major degree of simple demonstration of power involved.  These seem understandable as simple abuses of power in acts of degradation.

  20. I’m surprised there isn’t more of a discussion of United States v. Lee which (in my reading at least) supports the contention that waterboarding is torture.

    HLS – Your definition of torture excludes various acts, such as the threat to execute one’s family in front of someone in order to gain intelligence or to actually execute or ‘torture’ that family member in order to get someone to talk–both of which are torture against the third party. None of these acts physically harm the third party at all, yet both the threat and actual execution of a family member would (I hope we can agree) cause severe prolonged mental harm. While I’m in agreement with KJH that the relevant statutes do not require physical harm for an act to qualify as ‘mental torture,’ even if that weren’t the case, customary international law would decouple mental torture from physical torture to account for the acts described above

    Lastly even if the torture statute required a consequent element, is someone really willing to defend that someone can be waterboarded 183 times and walk away from the situation after a week or so?

  21. Effy,

    No it doesn’t.  Such acts would probably fall under 2(D).  I was merely dealing with 2(A).

  22. KJH,
    For 2(A), you keep leaving out the key word in your quotes!  Section 2(A) says, “the intentional infliction or threatened infliction of severe physical pain or suffering.”  Whether or not the act is actually committed against the interrogee is irrelevant as you point out.  But, and this is the key, the intended or threatened act that causes the prolonged mental harm must itself otherwise be capable of constituting physical torture if it was actually committed against the interrogee. 

    What this means is that if you threaten someone with having to stare at a picture of HLS for 5 minutes a day, it isn’t torture under 2(A), even if quite unpleasant J  The reason it isn’t torture is that, assuming the prolonged mental harm element, the act that was intended must have been an act that if actually committed against the interrogee would have otherwise constituted physical torture (severe physical pain or suffering). 
    So, for the case of waterboarding, the importance becomes clear.  Many liberals have conceded that we don’t torture our own servicemen when we torture them as part of SERE training.  So, we must ask ourselves what permits the act of waterboarding to be torture in one instance but not in another.
    The typical distinction drawn is that a detainee (as contrasted to a soldier) suffers great(er) mental harm because of several factors: (1) the detainee isn’t being waterboarded willingly, (2) the detainee doesn’t know how far his interrogators will go (death, etc.), and (3) the detainee can’t stop the waterboarding on his own volition (outside of agreeing to cooperate).  All of these relate to the psychological (or mental) aspects of the waterboarding rather than the actual act of waterboarding.  (I’m leaving aside if a detainee is waterboarded numerous times in quick succession, because that would be a non-mental difference and provide a stronger argument for torture).
    As explained above, 2(A) requires that the intended or threatened act must be caused by or resulting from the intended infliction or threatened infliction of “severe physical pain or suffering” (physical torture). 
    Therefore, we have established that the actual act of waterboarding isn’t by nature an act of physical torture because the general distinctions that make it torture against a detainee but not against one of our soldiers in SERE Training are psychological (or mental factors).  As such, using, intending, or threatening to inflict waterboarding against a detainee isn’t torture under 2(A) because the underlying intended or threatened act must itself be able to constitute physical torture, which waterboarding is not.

  23. Dear KJH, Dear HS,

    quite apart from this interesting debate over § 2340, my question to you both is: if HS were right, and mental torture was so narrowly defined in the US, would the US be in full compliance with its CAT obligations (this is quite an old debate, isn’t it – I remember reading many times the answer was no, but maybe you disagree)?

    If not, HS, shouldn’t US lawyers prefer the interpretation that best fulfills those obligations?

    That said, I find hyper-technical legal discussions on what exactly constitutes torture somewhat distasteful (as Philip Allot once said). By providing a framework to discuss these fine details, much scope is left for the type of dishonest arguments of the previous US administration and their legal counsels. In other words, even with all best intentions, the debate ends up creating a smokescreen over the absolute moral bankruptcy of a practice which cannot find any legal or moral justification (not even during SERE training, btw)*, under any circumstance. Torture is the disgusting, sclerotic face of unchecked state power, and we banned it a long time ago. Waterboarding is torture under international law, whatever the US criminal code says in this respect.

    F.

    * Just because it is done in the context of training, it does not mean it is not torture. I take no position on this as I don’t know the details, but to convince me it is not torture I would need something more than the argument that ‘because they know they are not going to be killed, they are not going to fear they’ll die’. How many of those who argue in favor of the practice have tried waterboarding themselves? And why exactly is it necessary to make training soldiers go through this type of violent experience? Their benchmark of what is and isn’t allowed in terms of interrogation will be shifting quite a lot if they have already been brutalized themselves. Do we really need to go down this path?

  24. Francesco,

    You wrote: “shouldn’t US lawyers prefer the interpretation that best fulfills those obligations?”

    I’m not necessarily opposed to that.  But, that just raises a host of questions.  First, perhaps the wording in the US torture statute reflects the US understanding of its obligations under CAT?  Second, as the US used somewhat different wording from CAT maybe it reflects a desire by the US to address the issue of torture in its own way?  After all, the US could have used the language in CAT, but it didn’t.  Or, the US could have stated that the US torture statute merely incorporated CAT into US law, but the US didn’t do that either.  I don’t really have an answer to these questions.  But, they make the issue far more difficult than many would lead one to believe.

  25. HLS – Fair enough. Such acts would fall under 2(d). But to admit, as I understand you have, that such acts are torture requires you to accept that legally speaking, it is possible to torture the mind without any physical harm to the person being tortured. Second, the rationale for why 2(d) is torture then is because of the psychological trauma it causes the to the victim.

    Now suppose you change the hypothetical to having an interrogator take a firearm with one round into an interrogation room and discharge the firearm into the wall and then threaten to use the firearm on the suspect. To take the example to the extreme, let’s say the interrogator fires the now-empty firearm at the suspect without ever touching him/her. John McCain has publicly stated that such actions are torture and I don’t you’ll find an expert that states pointing an empty gun at someone and pulling the trigger isn’t torture.

    If we accept that firing an empty firearm at someone in an interrogation is torture, it would follow that waterboarding is torture so long as the waterboarding causes the same fear of death or pyschological trauma that firing an empty firearm would. KJH summed up all the possible hypotheticals that would qualify as ‘mental torture’ (though perhaps not exclusively) if such acts cause a detainee for that they will die from such the treatment.

  26. On the SERE training, just a random thought: could it be torture but non-punishable because the trainees agreed to be subjected? In other words, can somebody agree to be tortured, and thereby provide a defence to the torturer? Can you consent to a violation of jus cogent?

  27. HLS,

    thanks for your reply. Yes, that’s precisely the point, because this brings us back to the international law plane (as opposed to statute construction in US law, which as an Italian-trained ‘humble law student’ living in the UK, I do not purport to be able to comment on).

    Would you agree that the CAT unquestionably includes mental torture among the practices that Member states are required to criminalize? If so, wouldn’t a different ‘US understanding of its obligations under CAT’ be untenable in this respect under international law?

    You say that, however, breaching the obligation is what Senators intended to do. Some read the history of what happened before the Senate as a proof of precisely this.* As you say, ‘after all, … the US could have stated that the US torture statute merely incorporated CAT into US law, but the US didn’t do that’. This puts your interpretation in good company under domestic law, but the result is a violation by the US of its obligation to prescribe torture under CAT. Isn’t there some sort of presumption under domestic US constitutional law which says that when you can interpret a statute so that it does not breach US obligations under international law, you should do so? This is a genuine question, not a rhetorical one: such a presumption exists both under UK and Italian law, but maybe not in the US?

    In other words, would you not agree that by ratifying the CAT the US entered into an obligation to do precisely what it (according to you) hasn’t, and that any construction of the relevant section which makes such a breach of an international obligation less worse, such as KJH’s, should be preferred?

    —–

    Guy,

    interesting point – but I’m not sure that consent can be extended this far. What sort of consent is it when you say ‘oh, your whole career depends on agreeing to this procedure, but of course you are welcome not to consent and go back home trying to find another job’.

    Also, there is a problem here: the obligation not to torture is also owed (erga omnes) to the international community as a whole, i.e. (also) to all states – so the consent of the individual victim may not be relevant/sufficient to take the responsibility of the US away under international law.

    F.

    * This is a very old debate. See e.g. Stewart, D.P., ‘The Torture Convention and The Reception of International Criminal Law within the United States’, 15 Nova L. Rev. (1991) 449-474, at 456 (who thinks the Senate did the right thing); Van der Vyver, J.D., ‘Torture as a crime under international law’, 67 Alb. L. Rev. (2003) 427-463, at 434.

  28. Professor Heller:

    What do you think of my Mad Lib to your argument:

    “By the way, I find it ironic that liberals, who would often think to apply the rule of lenity in the context of “ordinary” crimes, suddenly forget about the rule when it might hurt the prosecution of a political enemy.”

    Thoughts?

  29. Liberals have many flaws, but that sort of hypocrisy is the province of conservatives.  Liberals would apply the rule (if it actually applied, which it doesn’t), free the bad guys, and then flagellate themselves endlessly for doing the right thing.

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