OLC Memo re: Elements of the crime of torture

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

Legal Memo

v... F AimJ LI .,.Z.v¦ ‘4:1 Li Department of Justice Office of Legal Counsel OCSca ado washing, i, DC 2033a DeFfuliAXdstiar .A.071133G7 CYCIIM21 July 13, 2002 John Rizzo • • Acting General Counsel •Central Intelligence Agency Washington, D.C. 20505 Dear Mr. Rizzo: . . letter is in response to your inquiry at our meeting today about what is necessary to establish the crime of torture, asset forth in 18 U.S.C. § 2340 et seq. The elements of the crime of torture are: (I) the torture occurred.outside the United States; (2)•the defendant acted Under the color °flaw; (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 sufftling, and (5) the act inflicted severe menial 01 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 mustresult from one ofthefollowing acts: intentional infliction or in•atened 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 orpersonality; threat ofimminent death; or threatening to subject another person to imminent 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. 'See 18. ti ,S.C. § 2340(2). • •-lyIereaver, to establish that an individual has acted with die• 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 hannin order for the use of any ofthepredicate acts to constitute torture. • Specific intent can be negated by a showing of good faith. Thits, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the gond faith beliefthat those acts would not cause the pris oner pro on ged mental harm, be would not have acted with the specific intent necessary to establish torture. It 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 meetthis standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience. DOJ OLC 001031 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. cerely, Yoo puty Assistant Attorney General. DOJ OLC 001032