OLC Memo for John Rizzo re: Elements of the Crime of Torture

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An OLC memo from John Yoo to John Rizzo regarding "what is necessary to establish the crime of torture." The memo states that an individual must act with the "specific intent" to inflict severe mental pain or suffering to have committed torture, and that "specific intent" can be negated by a showing of "good faith," including evidence of efforts to determine the long-term impact of conduct. [The redacted name at the end of the memo is "Jennifer Koester," which we know from a separately released version of the memo - ACLU-RDI 4575.][OLC Vaughn Index #1]

Doc_type: 
Legal Memo
Doc_date: 
Saturday, July 13, 2002
Doc_rel_date: 
Tuesday, August 30, 2016
Doc_text: 

Office of the Deputy Assistant Attorney General . Washington D.C. 20530
July 13, 2002
John Rizzo
Acting General Counsel Central Intelligence Agency Washington, D.C. 20505
Dear Mr. Rizzo:
This letter is in response to" your inquiry at our meeting today about what is necessary to establish the crime of torture, as set forth in 18 U.S.C. § 2340 et seq. The elements of the crime of torture are: (!) 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 mental or physical pain or suffering; and (5) the act inflicted severe mental or physical pain or suffering. See 18 U.S.C. §2340(1); id, § 2340. With respect to severe mental pain or suffering specifically, prolonged mental harm must be established. That • prolonged mental harm must result from one of the following acts: intentional infliction or threatened • infliction of severe physical pain or suffering; administration or application of or threatened administration or application of mind altering drugs or other procedures designed to profoundly disrupt the senses or personality; threat of imminent death; or threatening to subject another person to imminent death, severe physical pain or suffering or the administration or application of rind-altering See 18" U.S.C. §2340(2).
. Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i. e., with the express purpose, of causing prolonged mental harm in order for the use of any of the predicate acts to constitute torture. Specific intent can be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture. If for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions undertaken relying on that advice would have be undertaken in good faith. Due diligence to meet this standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience.
Salim v. Mitchell - United States Bates #000475
08/31/2016
As you know, our office is in the course of finalizing a more detailed memorandum opinion analyzing section 2340. We look forward to working, with you as we finish that project Please contact me or if you have any further questions.
Sincerely,
John Yoo
Deputy Assistant Attorney General-
Salim v. Mitchell - United States Bates #000476
08/31/2016

Doc_nid: 
11905
Doc_type_num: 
62