OLC Memo: Interrogation of Al Qaeda Operative

<p>This is a heavily redacted version of an OLC memo later released in less-redacted form (at ACLU-RDI 4548). &nbsp;This unredacted portions of this version of the memo from the OLC to the CIA discuss the anti-torture statute 18 U.S.C. 2340, considering the specific intent requirement. &nbsp;The document itself is heavily redacted but shows that the Justice Department authorized alternative interrogation methods after concluding that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering. &nbsp;The memo defines prolonged mental harm as substantial mental harm of sustained duration, e.g. harm lasting months or even years after the acts were inflicted upon the prisoner. &nbsp;The memo is signed by Jay Bybee, although John Yoo, an OLC lawyer, is widely known to have drafted the memo.</p>

Legal Memo
Thursday, August 1, 2002
Wednesday, July 23, 2008

1U I U.S. Department of Justice Office of Legal Counsel Mks of Ole Assistant Attorocy Geocrii Waskagrark. 11C 211530 August I , 2002 -Memorandum for_1111 .1111M1111111111111111111 1. Interrogation of1111 You have asked for this Office's views on whether certain proposed conduct wopid violate the prohibition against torture found at Section 2340A of title 18 of the United States Code. You have asked for this advice 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 necessaril a _ TO_RET CRET t. T9B.SECIgT WP-SE -ET Section 2340A makes it a criminal offense for any person "outside of the United States [to] commitO or attempt] 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 2340A requir' es 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 1.13.ffiCt-SeVere_or suffering; and 5 that the acted inflicted severe_or cuff 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 _ 129P—SECIEi 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. TO 10 Tit 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 . "DRS-En:5r 11 TOP-SECgT acts. l& U.S.C. § 2340(2). Those 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(2XA)—(D). As we have explained, this list of predicate acts is exclusive. See Section 2340A Memorandum at 8, No other acts can support a charge under Section 2340A based on the infliction of severe mental 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 •redicate act ement, the a ohibition has not been violated. See id. 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. T),B.4MET TOP 13 DOJ OLC 613 . 14 TSEeT;IT 15 TO_ET 1 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 US. 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 All_ Dna. Firshp. ofTenn. 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 Cheeky. 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 things, 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 these1 procedures would not have the specific intent to inflict severe physical .ain or sufferin The ob'ective of -these techni • es is not to cause severe 'bysical TOPJRET. 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 procedures he will apply, separately or together, would not result in prolonged mental 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. he 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. TOP CRET_ 17 Your review of the literature uncovered no empirical data on the use of these ocedures, with the exception S.,. By ant Attorney General TO 18.