Le·gal In·sur·rec·tion

§ 2340A. Torturea) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy. § 2340. Definitions(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;(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;

And the point of the highlighting is ....? I think I know where you are going, but tell us anyway.

GBTW, Brian.

"The decision of the Obama administration in not prosecuting either the authors of the memoranda or those who acted in reliance on the memoranda should not be viewed as being either an act of benevolence or deal making politics."

Here's what Obama said: "it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution."

Where does he say that they won't prosecute the authors? To the contrary, it appears he specifically left that option open.

I wrote on this topic in Nov 2005, when bemoaning the torture memos was all in vogue, reaching from my non-lawyerly position much the same conclusions. As for the lingering question of what constitutes "severe physical suffering," I looked to 18 USC 113. Assaults within maritime and territorial jurisdiction, "serious bodily injury" (by way of 18 USC 1365) as including a protracted disfigurement/impairment/loss of function, extreme physical pain or substantial risk of death. This seems, to me, a reasonable yardstick with which to define torture.

if the prosecuting authority believes no crime was committedOr, if the prosecuting authority believes a crime was committed but also believes that prosecution would be fruitless.

Sadly, most of those calling for criminal prosecution or impeachment on "war crimes" will not bother to read the actual law, when in reality that is the first thing one ought to do when considering legal action.

Worse, much of the media does not read the law on this issue either, and thereby unintentionally misleads the public by leaving up to opinion about what "should" be done, rather than what legally can be done or whether even an actual crime has been committed.

[It would be intentional misleading by the media if the media actually read and understood the law -- the irony being that that act is also not legally a crime.]

Is this circular? Yes, but that is the way the statute works.

Statutory interpretation canons generally forbid illogical constructions. Interpreting it as a circular definition which evades the purpose of the statute would be unusual. But why not let a prosecution go through, and see what actual judges have to say? There will be plenty opportunity for any defendants to make this argument (or any other, such as "necessity" or "self-defence" that they'd like to proffer). To have you (or Eric Holder) decide what the law means is to abrogate the traditional authority of the courts.

As for "specific intent", the intent required is to perform the actus reus. There is no requirement that the person committing the act believe they were breaking the law. As long as their actions resulted in physical pain or mental pain, and they intended to perform these actions knowing that such would result, they have committed a crime. The pain doesn't need to be their end goal (and in fact, the end goal in torture in most cases is information or a confession); it need only be the foreseeable consequence of their acts. This is true of many malum in se crimes, even those where specific intent is required.

There are offences that require a knowledge that the act or result is illegal (generally in tax lax and other abstruse malum prohibitum offences), but this is not such a case. To suggest that there was no crime here as long as the actors didn't think they were committing a crime is absurd. In fact, that they were informed about the law just makes the intent that more malevolent ... even if not any more criminally guilty.

You'd do better in dropping the trope of "intent", and instead try to argue (as Yoo did) that in fact there was never any "severe physical or mental pain". But that's a matter for the jury.

Cheers,

I would agree with Jacobson that this is horribly vague as to whether anything at all could be pinned down.

Problems: Proving the "intent to do harm" at some unspecified level but not some other level of greater harm is difficult, in that mind-reading of the participants (or of anyone on anything, for that matter) is not a refined science.

How do we go about proving malicious intent when a standing policy was to use a variety of methods to extract information? What level of discomfort is beyond mere annoyance and squirming at unpleasant questions and stern looks and arrives at the level of torment?

We tread on dangerous ground either way if these forms of interrogation are either upheld or gotten rid of. We now know, however, it is sheer myth (especially for skilled interrogators who know how to measure responses) that detainees will merely lie to get out of the jam.

As to Greenwald, he DOES have a nifty penchant for not reading things all the way through and spinning his questionable his straw into gold for his amen chorus over at Salon.

I look forward to Jacobson's follow-up.

Arne, you mat have a point vis "specific intent," but like so many others make reference to "physical pain or mental pain" while conviently forgetting the adjective "severe." A society that believes being grabbed by the collar or being forced to listen to loud music is "severe" will truly not long survive.

A prosecutor has to have a good faith belief that a crime has been committed and that the evidence supports a finding of guilt beyond a reasonable doubt. Filing criminal charges is not supposed to be the same as tossing a ball in the air and seeing where it lands. If Holder believes either that no crime was committed, or that there is insufficient evidence to prove each and every element of the crime beyond a reasonable doubt, then he cannot bring the charges. We do not have the European system where the judge acts as an investigator. Here, you only get to a court if the prosecutor in good faith believes he can meet the threshold at the time he files the charges.

General intent to do an act may satisfy many statutes requiring intent, but this statute uses the term "specifically intend" followed by the words "to inflict severe ....." The word "specifically" must be given meaning and not read out of existence. So clearly doing an act which causes severe pain or suffering is not enough unless specific intent to accomplish that end is shown.

As to the issue of what is circular, my point was that the legal advice may negate the necessary intent. This is not unusual in the law, as a good faith reliance on the advice of counsel is a recognized defense to many criminal statutes requiring intent. This doesn't negate the purpose of the statute, but does provide a defense. Given Holder's present position, it would be hard for him to argue that reliance on the DOJ's interpretation of a statute it enforces is unreasonable.

Another commenter questioned whether the lawyers could be prosecuted. I don't see such a crime under this statute. The authors did not commit an act or conspire to commit the act. They gave a legal opinion based on a stipulated set of assumptions, and clearly limited their conclusions to the assumed facts. You can say, as many have, that they assumed what they wanted to assume, but that is quite common when rendering legal opinions because the author is not opining on the facts but on the law. So I don't see how this statute would cover them.

What was Yukio Asano charged with in 1947? He served 15 years hard labor for waterboarding a U.S. civilian during the war.

What about the Jan. 21, 1968 picture in The Washington Post of a US soldier waterboarding a captured VC near Da Nang, which led to his court martial and discharge?

Texas Sheriff James Parker was charged, along with three of his deputies in 1983 (and sentenced to four years in prison) for waterboarding prisoners. Did no crime occur there?

"[A] good faith reliance on the advice of counsel is a recognized defense to many criminal statutes requiring intent."

No. See here:

http://leastdangerousbranch.blogspot.com/2008/02/nixon-re-redux-when-preznits.html

Money quote: "There is no such thing as an "advice of counsel" defense."

[ from "http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=7th&navby=docket&no=013680" ]

As for specific versus general intent:

"What Is an Example of a Specific Intent Crime?
The best example of a specific intent crime is theft. Most every theft statute requires that when you take something that you take it with the intent to deprive the owner permanently. For example, auto theft requires that you intent to deprive the owner of the car permanently. If you don't have this intent, then you cannot be convicted of theft.

Then What Is a General Intent Crime?
A general intent crime only requires that you intend to perform the act. That is, you don't need any additional intention or purpose. For example, assault is usually a general intent crime. You only need to intend your actions, not any particular result. General intent crimes are easier to prove because it is not necessary to show that you had some particular purpose."

In this case, the general intent would be to hit the person. The specific intent would be to cause the "severe pain". But that doesn't require that the person doing the "walling" know about 18 USC 2340A, and know that it's illegal. It just requires that the pain be purposefully inflicted (the person doing the hitting knew or should have known that the pain would result) and that it be severe. In this case, NP on that; the whole point of tortu... -- umm, sorry, "enhanced interrogation techniques -- is to cause enough pain that the person you're hitting will do anything you want in order for it to stop.

To restate: The "specific intent" required is to cause pain that is severe. NOT to cause pain that the person inflicting the pain THINKS is severe (and therefore illegal). The dodge of saying "Well, I didn't THINK that bullet was going to kill him" is not a very good defence to the specific intent crime of murder one. Most sane people would laugh it out of court, just as they would the Yoo/Bybee parsing here.

Cheers,

Eric,
I was posting from home. I live three miles from my job. Jealous?

William,
Since this site doesn't have easy to use tools for bolding I used another site to create that text. I then pasted it here, typed some text to go with it and hit preview. Saw an error and saw no edit button. When I hit the back button it lost my text.

I pointed out that Spanish Water Torture (used since the Inquisition) does inflict severe suffering, and threat of immanent death. That's why they keep doctors on hand.

I also pointed out that I have a relative in Mexico who had a plastic bag placed over their head till they confessed to a crime. This works on the same principle as water boarding aka. Spanish Water Torture. Invert bound victim, place rag over mouth and nose, pour large quantities of water over rag, which prevents breathing.

I'm sure if the child of anyone posting here had been spirited away by police, and then were tortured via Spanish water torture that they would not believe the confession to be valid in a court of law due to the torture. Torturing your kid till they confessed via water boarding (which would be shortly because it does make you severely suffer and does make you fear you will die) would make it clear to you that it was torture.

I'm sure my relative will remember those days of being suffocated for the rest of his life.

There is nothing in the language of the law that requires that there be permanent physical damage.

This section is speaking directly to what happens under custody:
"Definitions(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;"This section makes it clear that no physical damage is required.

"(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; or (C) the threat of imminent death;"The section is triggered by the mere "threatened infliction of" suffering. It also is triggered by the threat of imminent death.

Thus something like pretending to have a gun loaded with a single bullet and putting it to someone’s head and pulling the trigger is torture.

Certainly, an actual drowning via inversion and suffocation with water counts as the threat of immanent death, and is also the infliction of suffering. Unless someone here thinks it's pleasurable.

That’s the law. It’s not a war crime, but a plain old domestic crime. I actually don’t believe that the Geneva Conventions were violated by the Bush administration. I do believe that this statute was.

Anyone here going to volunteer to let your enemy use Spanish water torture just a little too long, to the point of actual suffocation?

Here were the charges against Yukio Asana: " Specifications: beating using hands, fists, club; kicking; water torture; burning using cigarettes; strapping on a stretcher head downward." (http://socrates.berkeley.edu/~warcrime/Japan/Yokohama/Reviews/Yokohama_Review_Asano.htm) And the "water torture" was not what we currently refer to as waterboarding as used in the memos, it was pouring water into the nostrils and mouth until the person passed out. So you have both overstated your point and compared apples to oranges. This seems to be a consistent problems with comparison to WWII and other cases. (http://exchange.ydr.com/lofiversion/index.php/t3991.html)

There are many things that are horrible, like dropping a missile on a house in Pakistan which kills not only al-Qaeda operatives but innocent civilians. I would not want to be waterboarded any more than I want a missle dropped on my house, but that is not the standard, although the way you pose the issue is a nice rhetorical ploy. The question is whether it was legal. Based on my analysis of the wording of the criminal statute in question, I do not believe any laws were broken for the reasons set forth in my post, and the DOJ (surprisingly to my mind) seems to agree.

You are simply wrong to state that there is no such thing as an advice of counsel defense, and linking to your own website and a handful of cases you selected does not change reality. The first case you cite, U.S. v. Benson, actually recognizes the defense exists, but held on the facts that the defense was not proven: "Reliance on counsel's advice excuses a criminal act only to the extent it negates willfulness and to negate willfulness counsel's advice must create (or perpetuate) an honest misunderstanding of one's legal duties."

The next case you cite, Markowski v. SEC, does not even concern an advice of counsel defense, but rather, whether a corporate officer can delegate his regulatory supervision responsibility: "the proposition that a senior officer of a brokerage firm is responsible for compliance by the firm, but may rely upon the reasonable delegation of particular functions to others, absent knowledge or reason to know of non-compliance by the person to whom the function is delegated."

I didn't bother to check the three other cases you cite (all from the early 1980s) because you obviously can't read cases properly and I have better things to do.

The case you link to on your blog, U.S. v. Urfer, which cites to some of the cases above, contains the "money quote" you refer to, but you take it out of context. The court, in citing those prior cases, held that there was no generalize advice of counsel defense that applied to things such as property destruction, which was the issue before it. You can't destroy someone's property and then say as a defense, that my lawyer said it was okay. The court did not issue a sweeping declaration that advice of counsel is not a defense to anything. The court recognized that the advice of counsel defense does exist in other criminal contexts, including but not limited to, where knowledge that one was violating the statute was an element of the crime. Plucking a quote out of context is in vogue these days (do you work for Media Matters?) but it does not constitute a valid legal argument.

So when you cite your own blog as authority, and the cases you cite on your blog don't say what you claim or you take things out of context, you have not quite proven your point. Do you think people will not check? That works most of the time on the internet, but not now.

Here is a recent federal appellate court case (2008) describing the elements of the defense: "The prima facie elements of an advice-of-counsel defense are (1) full disclosure of all pertinent facts and (2) good faith reliance on the advice of counsel." (U.S. v. Geiger, 303 Fed.Appx. 327 C.A.6 (Tenn.),2008)(issue was wire fraud, graft, money-laundering conspiracy, and money laundering).

Eric Holder seemed to recognize this issue properly when he referred to the good faith reliance of CIA operatives on the advice of the DOJ as to the legality of the actions.

Oh, and by the way, I'm posting a link to this comment as a comment on your post at your blog so your readers can get another view, just as my readers are getting your view.

Hmm... looks like I've been trolled. Must mean I'm doing something right. Here's what Captain's Quarters had to say about commenter Arne Lansetmo:

"A number of you feel that Arne Langsetmo and Truck have crossed these lines, although by far I receive more complaints about Arne than Truck, probably because Arne posts so much more. I think some of you have a point -- in reading through Arne's output of late, he makes a lot of reference to RW (right-wing) foamers, assumed to be the other commenters on my blog. Hell, maybe me, too, although I seem to be excepted."

"Arne Langsetmo is banned. His continued provocations on other threads while disdaining this one made my mind up. Out of respect for Arne and me, please do not further respond to his posts."
http://www.captainsquartersblog.com/mt/archives/002276.php

I just learned that speaker Nancy Pelosi was aware of the intention to water board before it was done. She is therefore a conspirator.

Also I suggest the readers go out and see Christopher Hitchens waterboarding video [it seems mild from the outside] and then here how he describes his nightmares and also newly involuntary panic when he gets excited.

"As a result of this very brief experience. If I do anything that gets my heart rate up and I'm breathing hard, panting. I have a slight panic sensation that I'm not going to be able to catch my breath again." - Hitchens

You also could post a video of someone being shot, but that wouldn't tell you if a crime was committed. Were the Navy SEALS who shot the three teenage Somalis guilty of murder? Posting the video of the Somalis bleeding to death in pain wouldn't answer the legal question, although it would be emotional to watch.

There is a very specific statute with very specific wording. You may not like that, but it is the law. As I clearly stated in the opening paragraph of the post, not everything which is immoral is illegal (and vice versa). Whether it is more moral to allow attacks on civilians because information was not obtained to prevent terrorist attacks is not an easy question to answer, and the debate is not advanced by oversimplification on either side. For every video you could post showing what Khalid Mohammed likely went through in interrogation, someone else could post a video of his victims, and we can imagine the lives that were saved from the informatoin he gave up. It is not as simple as you make it.

And there will be unintended consequences, see my prior post http://legalinsurrection.blogspot.com/2008/11/giving-terrorists-rights-may-lead-to.html.

Although Arne has been effectively discredited already, I wanted to add two additional comments.

It is clear that Arne does not understand the American Legal process at all.

Arne said:

"why not let a prosecution go through, and see what actual judges have to say.... To have you (or Eric Holder) decide what the law means is to abrogate the traditional authority of the courts."

We have a balance of powers in this country. One of the powers of the Executive branch is the decision whether or not to prosecute. It is exactly Eric Holder's job to decide what he believes the law is and prosecute accordingly.

Also, Arne says:

"You'd do better in dropping the trope of "intent", and instead try to argue (as Yoo did) that in fact there was never any "severe physical or mental pain". But that's a matter for the jury."

What Arne fails to realize is that the legal definition of "severe physical or mental pain" is a legal question that should not go to a jury. And if anything is certain in this discussion it is that the phrase is ambiguous at best. Hence the apt application of the advice-of-counsel-defense.

"You also could post a video of someone being shot, but that wouldn't tell you if a crime was committed."Only if the shooting was involuntary or not self inflicted or an accident.

Just like involuntary torture in the form of waterboarding is illegal.

Besides, you completely missed the point of the video. The video is rather mild but the mental suffering was much greater, and it was lasting. Hitchens test resulted in long lasting mental issues for him. Imagine if he had this done to him for days on end. Especially imagine if he didn't have any information to turn over to get it to stop.

"There is a very specific statute with very specific wording. You may not like that, but it is the law. "Actually, that was what I was going to say to you.

Until I saw this statute I thought the Bush Administration was working within the law. Believe me, I would not be the least disturbed about seeing Osama get tortured to death. Some people are like that. It's not because I'm squeamish, or empathic with criminals.

I am empathetic to innocents who get caught up in all this, and I think the spirit of the law here is mostly about the innocent.

What I am concerned about here is the law, and the law as written.

http://www.huffingtonpost.com/2009/04/21/obama-administration-bush_n_189521.html

Like I said, Obama never promised not to prosecute the authors: http://www.huffingtonpost.com/2009/04/21/obama-administration-bush_n_189521.html

Well, if you need "prolonged mental harm" (refer this report from Physicians for Human Rights_

[i]"With one exception, the former detainees have experienced and continue to experience severe psychological effects of torture and ill-treatment as a result of their detention in US custody. All but one feel utterly hopeless and isolated, and lack the ability to sleep well, work, or engage in normal social relationships with their families. Seven individuals disclosed having contemplated suicide either while in detention or after being released.


Most of the released detainees, to this day, live with severe anxiety, depression, and post-traumatic stress disorder, including intrusive recollections of trauma suffered in detention, hyperarousal (persistent symptoms of increased arousal, e.g., difficulty falling or staying asleep, anger, and hypervigilance), avoidance and emotional numbing behavior. PHR's clinicians determined that these symptoms were directly related to the torture and ill-treatment reported having taken place while in US custody, even after taking into account the fact that the released Iraqi former detainees are living in a war-torn environment. Amir explained, "These are the memories that I can never forget. I want to forget, but it is impossible."

For the four detainees who had experienced symptoms of depression or other mental disorders prior to detention, torture and ill-treatment by the US Personell severely exacerbated these conditions, and in one case it ignited such deep despair and dysfunction as to lead the detainee to repeated suicide attempts while at Guantanamo."[/i]

The problem we have here is that the definition of "totture" is subjective. You might as well try to specifically define "beauty" or "good music."

One man considers gasping for breath while remaining on your feet for several hours torture, another man calls it "running a marathon." One man calls listening to loud rap music for hours at insanely loud levels "torture" while another man calls it "cruising on a Saturday night with my homeys."

It appears that "long term" is the key phrase that is being debated. Could we argue that the past eight years have caused long-term suffering of liberals that hate Bush? (sleepless nights, screaming at people, organizing protests, stress and anxiety) Could we argue that merely hearing President Obama or Robert Gibbs speak is torture.

It is subjective. It can't be legally defined, so stop trying. Obama has said many times we need to "look forward" but also "nobody is above the law." He's having his cake and eating it to, and has deferred to Eric Holder to do his dirty work.

So much for being a uniter, huh?