(Redacted)
UNCLASSIFIED WHEN SEPARATED FROM ATTACHMENT
Working Group Report
On
Detainee Interrogations in the Global War on
Terrorism;
Assessment of Legal, Historical, Policy, and
Operational Consideration
Classified by: Secretary Rumsfeld
Reason: 1.5 (C)
Declassify on: 10 years
Redacted
UNCLASSIFIED WHEN SEPARATED FROM ATTACHMENT
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II. International Law
(U) The following discussion addresses the requirements of international law,
as it pertains to the Armed Forces of the United States, as interpreted by the
United States. As will be apparent in other sections of this analysis, other nations
and international bodies may take a more restrictive view, which may affect our
policy analysis and thus is considered elsewhere.
A.
The Geneva Conventions
(U) The laws of war contain obligations relevant to the issue of interrogation
techniques and methods. It should be noted, however, that it is the position of
the U.S. Government that none of the provisions of the Geneva Convention Relative
to the Treatment of Prisoners of War of August 12, 1949 (Third Geneva Convention)
apply to al Qaida detainees because, inter alia, al Qaida is not a High Contracting
Party to the Convention. As to the Taliban, the U.S. Position is that the provisions
of Geneva apply to our present conflict with the Taliban, but that Taliban detainees
do not qualify as prisoners of war under Article 4 of the Geneva Convention. The
Department of Justice has opined that the Geneva Convention Relative to the Protection
of Civilian Personnel in time of War (Fourth Geneva Convention) does not apply
to unlawful combatants.
B.
The 1994 Convention Against Torture
(U) the United States’ primary obligation concerning torture and related
practices derives from the Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment (commonly referred to as "the Torture
Convention"). The United States Ratified the Convention in 1994, but did
so with a variety of Reservations and Understandings.
(U) Article 1 of the Convention defines the term "torture" for purpose
of the treaty. The United States conditioned its ratification of the treaty on
an understanding that:
…in order to constitute torture, an act must be specifically intended to
inflict severe physical or mental pain or suffering and that mental pain or
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(paragraph redacted).
(U) Article I provides: "For the purpose 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, punishing him to an act he or a third
person has committed or is suspected of having committed, or intimidating or coercing
him or a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or with the
consensus or acquiescence of a public official acting in an official capacity.
It does not include pain or suffering arising only from, inherent in or incidental
to lawful sanctions."
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Suffering refers to prolonged mental harm caused by or resulting from the intentional
infliction or threatened infliction of severe physical pain or suffering; 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; the threat of imminent death; or 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.
(U) Article 2 of the Convention requires the Parties to "take effective legislative,
administrative, judicial and other measures to prevent acts of torture in any
territory under its jurisdiction". The U.S. Government believed existing
state and federal criminal law was adequate to fulfill this obligation, and did
not enact implementing legislation. Article 2 also provides that acts of torture
cannot be justified on the grounds of exigent circumstances, such as state of
war or public emergency, or on orders from a superior officer or public authority.
The United States did not have an Understanding or Reservation relating to this
provision.
(U) Article 3 of the Convention contains an obligation not to expel, return, or
extradite a person to another state where there are "substantial grounds"
for believing that the person would be in danger of being subjected to torture.
The U.S. understanding relating to this article is that it only applies "if
it is more likely than not" that the person would be tortured.
(U) Under Article 5, the Parties are obligated to establish jurisdiction over
acts of torture when committed in any territory under its jurisdiction or on board
a ship or aircraft registered in that state, or by its nationals wherever committed.
The "special maritime and territorial jurisdiction of the United States"
under 18.U.S.C. § 7 satisfies the U.S. obligation to establish jurisdiction
over torture committed in territory under U.S. jurisdiction or on board a U.S.
registered ship or aircraft. However, the additional requirement of Article 5
concerning jurisdiction over acts or torture by U.S. nationals "wherever
committed" needed legislative implementation. Chapter 113C of Title 18 of
the U.S. Code provides federal criminal jurisdiction over an extraterritorial
act or attempted act of torture if the offender is a U.S. national. The statute
defines "torture" consistent with the U.S. Understanding on Article
1 of the Torture Convention.
(U) The United States is obligated under Article 10 of the Convention to ensure
that law enforcement and military personnel involved in interrogations are educated
and informed regarding the prohibition against torture. Under Article 11, systematic
reviews of interrogation rules, methods, and practices are also required.
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(U) 18 U.S.C. § 2340 tracks this language. For a further discussion of the
U.S. understandings and reservations, see the Initial Report of the U.S. to the
U.N. Committee Against Torture, dated October 15, 1999.
(U) But see discussion to the contrary at the Domestic Law section on the necessity
defense.
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(U) In addition to torture, the Convention prohibits cruel, inhuman and degrading
treatment or punishment within territories under a Party’s jurisdiction (Art
16). Primarily because the meaning of the term "degrading treatment"
was vague and ambiguous, the United States imposed a Reservation on this article
to the effect that it considers itself bound only to the extent that such treatment
or punishment means the cruel, unusual and inhuman treatment or punishment prohibited
by the 5th, 8th, and 14th Amendments to the U.S. Constitution (see discussion
infra, in the Domestic Law section),
(U) In sum, the obligations under the Torture Convention apply to the interrogation
of unlawful combatant detainees, but the Torture Convention prohibits torture
only as defined in the U.S. Understanding, and prohibits "cruel, inhuman,
and degrading treatment and punishment" only to the extent of the U.S. Reservation
relating to the U.S. Constitution.
(U) An additional treaty to which the United States is a party is the International
Covenant on Political and Civil Rights, ratified by the United States in 1992.
Article 7 of this treaty provides that "No one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment." The United States’
ratification of the Covenant was subject to a Reservation that "the United
States considers itself bound by Article 7 only to the extent that cruel, inhuman,
or degrading treatment or punishment means the cruel and unusual treatment or
punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments of the
Constitution of the United States." Under this treaty, a "human Rights
Committee" may. With the consent of the Party in question, consider allegations
that such Party is not fulfilling its obligations under the Covenant. The United
States has maintained consistently that the Covenant does not apply outside the
United States or its special maritime and territorial jurisdiction, and that it
does not apply to operations of the military during an international armed conflict.
C.
Customary International Law
(U) The Department of Justice has concluded that customary international law cannot
bind the Executive Branch under the Constitution, because it is not a federal
law. In particular, the Department of Justice has opined that "under clear
Supreme Court precedent, any presidential decision in the current conflict concerning
the detention and trial of al-Qaida or Taliban militia prisoners would constitute
a "controlling" Executive act that would immediately and completely
override any customary international law."
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(U) Memorandum dated January 22, 2002, Re: Application of Treaties to al-Qaida
and Taliban detainees at 32.
(U) Memorandum dated January 22, 2002, Re: Application of Treaties to al-Qaida
and Taliban detainees at 35.
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III. Domestic Law
A. Federal Criminal Law
1.
Torture Statute
(U) 18 U.S.C. § 2340 defines as torture any
"act committed by a person acting under the color of law specifically intended
to inflict severe physical or mental pain…" The intent required is the
intent to inflict severe physical or mental pain. 18 U.S.C. § 2340A requires
that the offense occur "outside the United States". Jurisdiction over
the offense extends to any national of the United States or any alleged offender
present in the United States, and could, therefore, reach military members, civilian
employees of the United States, or contractor employees. The "United States"
is defined to include all areas under the jurisdiction of the United States, including
the special maritime and territorial jurisdiction (SMTJ) of the United States.
SMTJ is a statutory creation that extends the criminal jurisdiction of the United
States for designated crimes to defined areas. The effect is to grant federal
court criminal jurisdiction for the specifically identified crimes.
(U) Guantanamo Bay Naval Station (GTMO) is included
within the definition of the special maritime and territorial jurisdiction of
the United States, and accordingly, is within the United States for the purposes
of §2340, Thus, the Torture Statue does not apply to the conduct of U.S.
personnel at GTMO. That GTMO is within the SMTJ of the United States is manifested
by the prosecution of civilian dependents and employees living in GTMO in Federal
District Courts based on SMTJ jurisdiction and Department of Justice opinion(11)
and the clear intention of Congress as reflected in the 2001 amendment to the
SMTJ. The USA Patriot Act (2001) amended § 7 to ad subsection 9, which provides:
"With respect to offenses committed by or against a national of the United
States as that term is used in section 101 of the Immigration and Nationality
Act--
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(U) Section 2340A provides, "Whoever outside the Unites States commits or
attempts to commit torture shall be fined or imprisoned…"(emphasis added).
(U) 18 USC § 7, "Special maritime and territorial jurisdiction of the
United States" includes and lands under the exclusive or concurrent jurisdiction
of the United States.
(U) Several paragraphs of 19 USC § 7 are relevant to the issue at hand. Paragraph
7(3) provides: [SMTJ includes:] "Any lands reserved or acquired for the use
of the United States, and under the exclusive or concurrent jurisdiction thereof,
or any place…" Paragraph 7(7) provides [SMTJ includes:] "Any place
outside the jurisdiction of any nation to an offense by or against a nation of
the United States." Similarly, paragraphs 7(1) and 7(5) extend SMTJ jurisdiction
to "the high seas, and other waters within the admiralty and maritime jurisdiction
of the United States and out of the jurisdiction of any particular state, and
any vessel belonging in whole or in part to the United States…" and
to "any aircraft belonging in whole or in part in the United States…
while such aircraft is in flight over the high seas, or over any other waters
within the admiralty and maritime jurisdiction of the United States and out of
the jurisdiction of any particular State."
(U) 6 Op.OLC236 (1982). The issue was the status of GTMO for purposes of a statute
banning slot-machines on "any land where the United States government exercises
exclusive or concurrent jurisdiction."
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(A) the premises of United States diplomatic, consular, military or other United
States Government missions or entities in foreign States, including the buildings,
parts of buildings, and land appurtenant or ancillary thereto or used for purposes
of maintaining those missions or entities, irrespective of ownership; and
(B) residences in foreign States and the land appurtenant or ancillary thereto,
irrespective of ownership, used for purposes of those missions or entities or
used by United States personnel assigned to those missions or entities.
Nothing in this paragraph shall be deemed to supercede any treaty or international
agreement with which this paragraph conflicts. This paragraph does not apply with
respect to an offense committed by a person described in section 3261(a) of this
title.
(U) Any person who commits an enumerated offense in a location that is considered
within the special maritime and territorial jurisdiction is subject tot the jurisdiction
of the United States.
(U) For the purposes of this discussion, it is assumed that an interrogation done
for official purposes is under "color of law" and that detainees are
in DOD’s custody or control.
(U) Although Section 2340 does not apply to interrogations at GTMO, it would apply
to U.S. operations outside U.S. jurisdiction, such as Afghanistan. The following
analysis is relevant to such activities.
(U) To convict a defendant of torture, the prosecution must establish that: (1)
the torture occurred outside the United States; (2) the defendant acted under
color of law; (3) the victim was within the defendant’s custody or physical
control; (4) the defendant specifically intended to cause severe physical or mental
pain or suffering; and (5) that the act inflicted severe physical or mental pain
or suffering. See also S. Exec. Rep. No. 101-30, at 6 (1990). ("For an act
to be "torture," it must… cause severe pain and suffering, and
be intended to cause severe pain and suffering.")
a. "Specifically Intended"
(U) To violate Section 2340A, the statute requires that severe pain and suffering
must be inflicted with specific intent. See U.S.C. § 2340(1). In order for
a defendant to have acted with specific intent, he must have expressly intended
to achieve the forbidden act. See United States v. Carter, 530 U.S. 255, 269 (2000);
Black’s Law Dictionary at 814 (7th ed. 1999) (defining specific intent as
"[t]he intent to accomplish the precise criminal act that one is later charged
with".) For example, in Ratzlaf v. United States, 510 U.S. 135, 141 (1994),
the statute at issue was construed to require that the defendant act with the
"specific intent to commit the crime". (Internal quotation marks and
citation omitted). As a result, the defendant had to act with the express "purpose
to disobey the law" in order for the mens rea element to be satisfied. Ibid.
(Internal quotation marks and citation omitted.)
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(U) Here, because Section 2340 requires that a
defendant act with the specific intent to inflict severe pain, the infliction
of such pain must be the defendant’s precise objective. If the statute had
required only general intent, it would be sufficient to establish guilt by showing
the defendant "possessed knowledge with respect to the actus reus of the
crime." Carter, 530 U.S. at 268. If the defendant acted knowing that severe
pain or suffering was reasonably likely to result from his actions, but no more,
he would have acted only with general intent. See id at 269 Black’s Law Dictionary:
813 (7th ed. 1999) (explaining that general intent "usu[ally] takes the form
of recklessness (involving actual awareness of a risk and the culpable taking
of that risk) or negligence ( involving blameworthy inadvertence)"). The
Supreme Court has used the following example to illustrate the difference between
these two mental states:
[A] person entered a bank and took money from a teller at gunpoint, but deliberately
failed to make a quick getaway from the bank in the hope of being arrested so
that he would be returned to prison and treated for alcoholism. Though this defendant
knowingly engaged in the acts of using force and taking money (satisfying "general
intent"), he did not intend permanently to deprive the bank of its possession
of the money (failing to satisfy "specific intent").
Carter, 530 U.S. at 268 (citing 1 W. Lafave & A. Scott, Substantive Criminal
Law § 3.5, at 315 (1986).
(U) As a theoretical matter, therefore, knowledge alone that a particular result
is certain to occur does not constitute specific intent. As the Supreme Court
explained in the context of murder, "the…common law of homicide distinguishes…between
a person who knows that another person will be killed as a result of his conduct
and a person who acts with the specific purpose of taking another’s life[.]"
United States v. Bailey, 444 U.S. 394, 405 (1980). "put differently, the
law distinguishes actions taken ‘because of’ a given end from actions
taken ‘in spite’ of their unintended but foreseen consequences."
Vacco v. Quill, 521 U.S. 793, 802-03 (1997). Thus, even if the defendant knows
that severe pain will result from his actions, if causing such harm is not his
objective, he lacks the requisite specific intent even though the defendant did
not act in good faith. Instead, a defendant is guilty of torture only if he acts
with the express purpose of inflicting severe pain or suffering on a person within
his custody or physical control. While as a theoretical matter such knowledge
does not constitute specific intent, juries are permitted to infer from the factual
circumstances that such intent is present. See, e.g., United States v. Godwin,
272 F.3d 659, 666 (4th Cir, 2001); United States v. Karro, 257 F.3d 112, 118 (2d
Cir. 2001); United States V. Wood, 207 F.3d 1222, 1232 (10th Cir. 2000); Henderson
v. United States, 202 F.2d 400, 403 (6th Cir. 1953). Therefore when a defendant
knows that his actions will produce the prohibited result, a jury will in all
likelihood conclude that the defendant acted with specific intent.
(U) Further, a showing that an individual acted with a good faith belief that
his conduct would not produce the result that the law prohibits negates specific
interest. See, e.g. South Atl. Lmtd. Ptrshp. Of Tenn v. Reise, 218 F.3d 518, 531
(4th Cir. 2002). Where
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c. Severe Mental Pain or
Suffering
(U) Section 2340 gives further guidance as to the meaning of "severe mental
pain or suffering" as distinguished from severe physical pain and suffering.
The statute defines "severe mental pain or suffering" as:
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.
18 U.S.C.§ 2340(2). In order to prove "severe mental pain or suffering",
the statute requires proof of "prolonged mental harm" that was caused
by or resulted from one of four enumerated acts. We consider each of these elements.
i. "Prolonged
Mental Harm"
(U) As an initial matter, Section 2340(2) requires that the severe mental pain
must be evidenced by "prolonged mental harm". To prolong is to "lengthen
in time" or to "extend the duration of, to draw out". Webster’s
Third New International Dictionary 1815 (1988); Webster’s New International
Dictionary 1980 (2d ed. 1935). Accordingly, "prolong" adds a temporal
dimension to the harm to the individual, namely, that the harm must be one that
is endured over some period of time. Put another way, the acts giving rise to
the harm must cause some lasting, though not necessarily permanent, damage. For
example, the mental strain experienced by an individual during a length and intense
interrogation such as one that state or local police might conduct upon a criminal
suspect, would not violate Section 2340(2). On the other hand, the development
of a mental disorder such as posttraumatic stress disorder, which can last months
or even years, or even chronic depression, which can also last for a considerable
period of time is untreated, might satisfy the prolonged hard requirement. See
American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 426, 439-45 (4th ed. 1994) ("DSM-IV"). See also Craig Haney
& Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of
Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 509
(1977) (noting that posttraumatic stress disorder is frequently found in torture
victims); cf Sana Loue, Immigration Law and Health § 10:46 (2001) (recommending
evaluating for post-traumatic stress disorder immigrant-client
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who has experienced torture). By contrast to "severe pain" the phrase
"prolonged mental harm" appears nowhere else in the U.S. Code nor does
it appear in relevant medical literature or international human rights reports.
(U) Not only must the mental harm be prolonged to amount to severe mental pain
and suffering, but also it must be caused by or result from one of the acts listed
in the statute. In the absence of a catchall provision, the most natural reading
of the predicate acts listed in Section 2340(2)(A)(D) is that Congress intended
the list to be exhaustive. In other words, other acts not included within Section
2340(2)’s enumeration are not within the statutory prohibition. See Leatherman
v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
168 (1993) ("Expressio unius est exclusion alterius"); Norman Singer,
2A Sutherland on Statutory Construction § 47, 23 (6th ed. 2000) ("[W]here
a form of conduct the manner of its performance and operation, and the persons
and things to which it refers are designated, there is an inference that all omissions
should be understood as exclusions.") (footnotes omitted). We conclude that
torture within the meaning of the statute requires the specific intent to cause
prolonged mental harm by one of those acts listed in Section 2340(2).
(U) A defendant must specifically intend to cause prolonged mental harm for the
defendant to have committed torture. It could be argued that a defendant needs
to have specific intent only to commit the predicate acts that give rise to prolonged
mental harm. Under that view, so long as the defendant specifically intended to,
for example, threaten a victim with imminent death, he would have sufficient mens
rea for a conviction. According to this view, it would be further necessary for
a conviction to show only that the victim factually suffered prolonged mental
harm, rather than that the defendant intended to cause it. We believe that this
approach is contrary to the text of the statute. The statute requires that the
defendant specifically intend to inflict severe mental pain or suffering. Because
that statute requires this mental state with respect to the infliction of severe
mental pain and because is expressly defines severe mental pain in terms of prolonged
mental harm, that mental state must be present with respect to prolonged mental
harm. To read the statute otherwise would read the phrase "prolonged mental
harm caused by or resulting from" out of the definition of "severe mental
pain or suffering".
(U) A defendant could negate a showing of specific intent to cause severe mental
pain or suffering by showing that he had acted in good faith that his conduct
would not
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the DSM-IV explains that posttraumatic stress disorder )"PTSD") is brought
on by exposure to traumatic events, such as serious physical injury or witnessing
the deaths of others and during those events the individual felt "intense
fear" or "horror." Id at 424. Those suffering from this disorder
re-experience the trauma through, inter alia, "recurrent and intrusive distressing
recollections of the event", "recurrent distressing dreams of the event",
or "intense psychological distress at exposure to internal or external cues
that symbolize or resemble an aspect of the traumatic event," Id at 428.
Additionally, a person with PTSD "[p]ersistently" avoids stimuli associated
with the trauma, including avoiding conversations about the trauma, places that
stimulate recollections about the trauma, and they experience a numbing of general
responsiveness, such as a "restricted range of affect (e.g., unable to have
living feelings)", and "the feeling of detachment or estrangement from
others." Ibid. Finally, an individual with PTSD has "[p]ersistent symptoms
of increased arousal," as evidenced by "irritability or outbursts of
anger", "hypervigilance", "exaggerate startle response",
and difficulty sleeping or concentrating. Ibid.
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amount to the acts prohibited by the statute. Thus, if as defendant has a good
faith belief that his actions will not result in prolonged mental harm, he lacks
the mental state necessary for his actions to constitute torture. A defendant
could show that he acted in good faith by taking such steps as surveying professional
literature, consulting with experts, or reviewing evidence gained from past experience.
See, e.g., Ratlzlaf, 510 U.S. at 142 n.10 (noting that where the statute required
that the defendant act with the specific intent to violate the law, the specific
intent element "might be negated by, e.g., proof that defendant relied in
good faith on advice of counsel.") (citations omitted). All of these steps
would allow that he had drawn on the relevant body of knowledge concerning the
result proscribed by the statute, namely prolonged mental harm. Because the presence
of good faith would negate the specific intent element of torture, good faith
may be a complete defense to such a charge. See, e.g., United States v. Wall,
130 F. 3d 739, 746 (6th Cir. 1997); United States v. Casperson, 773 f.2d 216,
222.23 (8th Cir. 1985).
ii. Harm Caused By Or Resulting
From Predicate Acts
(U) Section 2340(2) sets forth four basic categories of predicate acts. The first
category is the "intentional infliction or threatened infliction of severe
physical pain or suffering". The might at first appear superfluous because
the statute already provides that the infliction of severe physical pain or suffering
can amount to torture. This provision, however, actually captures the infliction
of physical pain or suffering when the defendant inflicts physical pain or suffering
with general intent rather than the specific intent that is required where severe
physical pain or suffering alone is the basis for the charge. Hence, this subsection
reaches the infliction of severe physical pain or suffering when it is only the
means of causing prolonged mental harm. Or put another way, a defendant has committed
torture when he intentionally inflicts severe physical pain or suffering with
the specific intent of causing prolonged mental harm. As for the acts themselves,
acts that cause "severe physical pain or suffering" can satisfy this
provision.
(U) Additionally, the threat of inflicting such pain is a predicate act under
the statute. A threat may be implicit or explicit. See, e.g., United States v.
Sachdev, 279 F.3d 25, 29 (1st Cir. 2002). In criminal law, courts generally determine
whether and individual’s word or actions constitute a threat by examining
whether a reasonable person in the same circumstances would conclude that a threat
had been made. See, e.g., Watts v. United States, 394 U.S. 705, 708 (1969) (holding
that whether a statement constituted a threat against the president’s life
had to be determined in light of all the surrounding circumstances); Sachdev,
279 F.3d at 29 ("a reasonable person in defendant’s position would perceive
there to be a threat, explicit or implied, of physical injury"); United States
v. Khorrami, 895 F2.d 1186, 1190 (7th Cir. 1990) (to establish that a threat was
made, the statement must be made "in a context or under such circumstances
wherein a reasonable person would foresee that the statement would be interpreted
by those to whom the maker communicates a statement as a serious expression of
an intention to inflict bodily harm upon [another individual]") (citation
and internal quotation marks omitted): United States v. Peterson, 483 F.2d 1222,
1230 (D.C. Cir. 1973) (perception of threat of imminent harm necessary to establish
self-defense had to be "objectively reasonable in light of the surrounding
circumstances"). Based on this common approach,
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we believe that the existence of a threat of severe pain or suffering should be
assessed from the standpoint of a reasonable person in the same circumstances.
(U) Second, Section 2340(2)(B) provides that prolonged mental harm, constituting
torture, can be caused by "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". The statute
provides no further definition of what constitutes a mind-altering substance.
The phrase "mind-altering substances" is found nowhere else in the U.S.
Code, nor is it found in dictionaries. It is, however, a commonly used synonym
for drugs. See, e.g. United States v. Kingsley, 241 F.3d 828, 834 (6th Cir.) (referring
to controlled substances as "mind-altering substance[s]"), cert, denied,
122 S. Ct. 137 (2001); Hogue V. Johnson, 131 f.3d 466, 501 (5th Cir. 1997) (referring
to drugs and alcohol as "mind-altering substance[s]"), cert denied,
523 U.S. 1014 (1998). In addition, the phrase appears in a number of state statutes,
and the context in which it appears confirms this understanding of the phrase.
See, e.g. Cal. Penal Code § 3500 (c) (West Supp. 2000)(Psychotropic drugs
also include mind-altering… drugs…"); Minn. Stat. Ann. § 260B.201(b)
(West Supp. 2002) ("chemical dependency treatment" define as programs
designed to "reduce[e] the risk of the use of alcohol, drugs, or other mind-altering
substances").
(U) This subparagraph, section 2340(2)(B), however, does not preclude any and
all use of drugs. Instead, it prohibits the use of drugs that "disrupt profoundly
the senses or the personality". To be sure, one could argue that this phrase
applies only to "other procedures", not the application of mind-altering
substances. We reject this interpretation because the terms of Section 2340(2)
expressly indicate that the qualifying phrase applies to both "other procedures"
and the "application of mind-altering substances." The word "other"
modifies "procedures calculated to disrupt profoundly the senses". As
an adjective, "other" indicates that the term or phrase it modifies
is the remainder of several things. See Webster’s Third New International
Dictionary 1598 (1986) (defining "other" as "being the one (as
of two or more) remaining or not included"). Or put another way, "other"
signals that the words to which it attaches are of the same kind, type, or class
as the more specific item previously listed. Moreover, where a statute couple
words or phrases together, it "denotes an intention that they should be understood
in the same general sense." Norman Singer, 2A Sutherland on Statutory Construction
§ 47:16 (6th ed. 2000); see also Beecham v. United States, 511 U.S. 368,
371 (1994) (that several items in a list share an attribute counsels in favor
of interpreting the other items as possessing that attribute as well.") Thus,
the pairing of mind-altering substances with procedures calculated to disrupt
profoundly the sense or personality and the use of "other" to modify
"procedures" shows that the use of such substances must also cause a
profound disruption of the senses or personality.
(U) For drugs or procedures to rise to the level of "disrupt[ing] profoundly
the sense or personality", they must produce an extreme effect. And by requiring
that they be "calculated" to produce such an effect, the statute requires
that the defendant has consciously designed the acts to produce such an effect.
28 U.S.C. § 2340(2)(B). The word "disrupt" is defined as "to
break asunder; to part forcibly; rend," imbuing the verb
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with a connotation of violence. Webster’s New International Dictionary 753
(2d ed 1935); see Webster’s Third new International Dictionary 656 (1986)
(defining disrupt as "to break apart: Rupture" or "destroy the
unity or wholeness of"); IV the Oxford English Dictionary 832 (1989) (defining
disrupt as"[t]o break or burst asunder, to break in pieces; to separate forcibly").
Moreover, disruption of the senses or personality alone is insufficient to fall
within the scope of this subsection; instead, that disruption must be profound.
The word "profound" has a number of meanings, all of which convey a
significant depth. Webster’s New International Dictionary 1977 (2 ed. 1935
defines profound as: "Of very great depth; extending far below the surface
or top; unfathomable [:]…[c]oming from, reaching to, or situated at a depth
of more than ordinary depth; not superficial; deep-seated; chiefly with reference
to the body; as a profound sigh, wounded, or pain[;]…[c]haracterized by intensity,
as of feeling or quality; deeply felt or realized; as, profound respect, fear,
or melancholy; hence, encompassing; thoroughgoing; complete; as, profound sleep,
silence, or ignorance." See Webster’s Third New International Dictionary
1812 (1986) ("having very great depth: extending far below the surface…not
superficial"). Random House Webster’s Unabridged Dictionary 1545 (2d
ed. 1999) also defines profound as "originating in or penetrating to the
depths of one’s being" or "pervasive or intensive; thorough; complete"
or "extending, situated, or originating far down, or far beneath the surface."
By requiring that the procedures and the drugs create a profound disruption, the
statute requires more than the acts "forcibly separate" or "rend"
the senses or personality. Those acts must penetrate to the core of an individual’s
ability to perceive the world around him, substantially interfering with his cognitive
abilities, or fundamentally alter his personality.
(U) The phrase "disrupt profoundly the senses or personality" is not
used in mental health literature nor is it derived from elsewhere in U.S. law.
Nonetheless, we think the following examples would constitute a profound disruption
of the senses or personality. Such an effect might be seen in a drug-induced dementia.
In such a state, the individual suffers from significant memory impairment, such
as the inability to retain any new information or recall information about things
previously of interest to the individual. See DSM-IV at 134. This impairment is
accompanied by one or more of the following: deterioration of language function,
e.g., repeating sounds or words over and over again; impaired ability to execute
simple motor activities, e.g., inability to dress or wave goodbye; "[in]ability
to recognize [and identify] objects such as chairs or pencils" despite normal
visual functioning, or "[d]isturbances in executive level functioning",
i.e., serious impairment of abstract thinking. Id. At 134-35. Similarly, we think
that the onset of "brief psychotic disorder" would satisfy this standard.
See id. At 302-03. I this disorder, the individual suffers psychotic symptoms,
including among other things, delusions, hallucinations, or even a catatonic state.
This can last for one day
----------
(U) Published by the American Psychiatric Association, and written as a collaboration
of over a thousand psychiatrists, the DSM-IV is commonly used in U.S. courts as
a source of information regarding mental health issues and is likely to be used
in trial should charges be brought that allege this predicate act. See, e.g.,
Atkins v. Virginia, 122 S. Ct. 2242, 2245 n. 3 (2002); Kansas V. Crane, 122 S.
Ct. 867, 871 (2002); Kansas v. Hendricks, 521 U.S. 346, 359-60 )1997); McClean
v. Merrifield, No. 00-CV-0120E (SC), 2002 WI 1477607 at #2n.7 (W.D.N.Y. June 28,
2002); Peeples v. Coastal Office Prods., 203 F. Supp 2d 432, 439 (D. Md 2002);
Lassiegne v. Taco Bell Corp., 202 F. Supp 2d 512, 519 (E.D. La. 2002).
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or even one month. See id. We likewise think that the onset of obsessive-compulsive
disorder behaviors would rise to this level. Obsessions are intrusive thoughts
unrelated to reality. They are not simple worries, but are repeated doubts or
even "aggressive or horrific impulses." See id. at 418. The DSM-IV further
explains that compulsions include "repetitive behaviors" (e.g., hand
washing, ordering, checking)" and that "[b]y definition, [they] are
either clearly excessive or are not connected in a realistic way with what they
are designed to neutralize or prevent", See id. Such compulsions or obsessions
must be "time-consuming", See is at 419. Moreover, we think that pushing
someone to the brink of suicide (which could be evidenced by acts of self-mutilation).
Would be a sufficient disruption of the personality to constitute a "profound
disruption". These examples, of course, are in no way intended to be an exhaustive
list. Instead they are merely intended to illustrate the sort of mental health
effects that we believe would accompany an action severe enough to amount to one
that "disrupt[s] profoundly the sense or the personality."
(U) The third predicate act listed in Section 2340 (2) is threatening an individual
with "imminent death", 18 U.S.C. § 2340(2)©. The plain text
makes clear that a threat of death alone is insufficient; the threat must indicate
that death is "imminent". The "threat of imminent death" is
found in the common law as an element of the defense of duress. See Bailey, 444
U.S. at 409. "[W]here Congress borrows terms of art in which are accumulated
the legal tradition and meaning of centuries of practice, it presumably knows
and adopts the cluster of ideas that were attached to each borrowed word in the
body of learning from which it was taken and the meaning its use will convey to
the judicial mind unless otherwise instructed. In such case, absence of contrary
direction may be taken as satisfaction with widely accepted definitions, not as
a departure from them." Morissette v. United States, 342 U.S. 246, 263 (1952).
Common law cases and legislation generally define "imminence" as requiring
that the threat be almost immediately forthcoming. 1 Wayne R. LaFave & Austin
W. Scott, Jr., Substantive Criminal Law § 5.7, at 655 (19860. By contrast,
threats referring vaguely to things that might happen in the future do not satisfy
this immediacy requirement. See United States v. Fiore, 178 F. 3rd 917, 923 (7th
Cir. 1999). Such a threat fails to satisfy this requirement not because is it
too remote in time but because there is a lack of certainty that it will occur.
Indeed, timing is an indicator of certainty that the harm will be fall the defendant.
Thus, a vague threat that someday the prisoner might be killed would not suffice.
Instead, subjecting a prisoner to mock executions or playing Russian roulette
with him would have sufficient immediacy to constitute a threat of imminent death.
Additionally, as discussed earlier, we believe that the existence of a threat
must be assessed from the perspective of a reasonable person in the same circumstances.
(U) Fourth, if the official threatens to do anything previously described to a
third party, or commits such an act against a third party, that threat or action
san serve as the necessary predicate for prolonged mental harm. See 18 U.S.C.
§ 2340 (2)(D). The statute does not require any relationship between the
prisoner and the third party.
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2. Other Federal Crimes that Could
Relate to Interrogation Techniques
(U) Through the SMTJ, the following federal crimes are generally applicable to
actions by military or civilian personnel; murder (18 U.S.C. § 1111), manslaughter
(18 U.S.C. § 1112, assault (18 U.S.C. § 113), maiming (18 U.S.C. §
114), kidnapping (18 U.S.C. § 1201). These, as well as war crimes (18 U.S.C.
§ 2441)14 and conspiracy (18 U.S.C. § 371), are discussed below.
a. Assaults within maritime and
territorial jurisdiction, 18 U.S.C. § 1139
(U) 18 U.S.C. § 113 proscribes assault within the special maritime and territorial
jurisdiction. Although section 113 does not define assault, courts have construed
the term "assault" in accordance with that term’s common law meaning.
See, e.g., United States v. Estrada-Fernandez, 150F.3d 491,494 n.1 (5th Cir. 1998);
United States v., 150 Juvenile-Male, 930 F.2d 727, 728 (9th Cir. 1991). At common
law an assault is an attempted battery or an act that puts another person in reasonable
apprehension of bodily harm. See e.g., United States v. Bayes, 210 F.3d 64, 68
(1st Cir. 2000). Section 113 reaches more than simple assault, sweeping within
its ambit acts that would at common law constitute battery.
(U) 18 U.S.C § 113 proscribes several specific forms of assault. Certain
variations require specific intent, to wit: assault with intent to commit murder
(imprisonment for not more than twenty years); assault with intent to commit any
felony (except murder and certain sexual offenses) (fine and/or imprisonment for
not more than ten years); assault with a dangerous weapon, with intent to do bodily
harm, and without just cause or excuse (fine and/or imprisonment for not more
than ten years, or both). Other defined crimes require only general intent, it
wit: assault by striking, beating, or wounding(fine and/or imprisonment for not
more than six months); simple assault (fine and/or imprisonment for not more than
six months), or if the victim of the assault is an individual who has not attained
the age of 16 years (fine and/or imprisonment for not more than 1 year); assault
resulting in serious bodily injury (fine and/or imprisonment for not more than
ten years); assault resulting in serious bodily injury to an individual who has
not attained the age of 16 years (fine and/or imprisonment for not more than 5
years). "Substantial bosily injury" means bodily injury which involves
(A) temporary but substantial disfigurement; (B) extreme physical pain; (C) protracted
and obvious disfigurement; or (D) protracted loss or impairment of the function
of a bodily member, organ, or mental faculty. "Bodily injury" means
(A) a cut, abrasion, bruise, burn, or disfigurement; (B) physical pain; (C) illness;
(D) impairment of
----------
14 (U) 18 U.S.C. § 2441 criminalizes the commission of war crimes by U.S.
national and members of the U.S. Armed Forces. Subsection (c) defines war
crimes as (1) grave breaches of any of the Geneva Conventions: (2) conduct prohibited
by the Hague Convention IV, Respecting the Law and Customs of War on Land, signed
18 October 1907; or (3) conduct that constitutes a violation of common Article
3 of the Geneva Conventions. The Department of Justice has opined that this statute
does not apply toward al-Qaida or Taliban operatives because the President has
determined that they are not entitled to the protections of Geneva and Hague Regulations.
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the function of a bodily member, organ, or mental faculty; or (E) any other injury
to the body, no matter how temporary.
b. Maiming, 18 U.S.C. § 114
(U) Whoever with intent to torture (as defined in section 2340), maims, or disfigures,
cuts, bites, or slits the nose, ear, or lip, or cuts out or disables the tongue,
or puts out or destroys and eye, or cuts off or disables a limb or any member
of another person’ or whoever, and with like intent, throws or pours upon
another person, any scalding water, corrosive acid, or caustic substance shall
be fines and/or imprisoned not more than twenty years. This is a specific intent
crime.
c. Murder, 18 U.S.C. § 1111
(U) Murder is the unlawful killing of another human being with malice aforethought.
Every murder perpetrated by poison, lying in wait, or nay other kind of willful,
deliberate, malicious, and premeditated killing; or committed in the perpetration
of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason,
espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery;
or perpetrated from a premeditated design unlawfully and maliciously to effect
the death of any human being other than him who is killed, is murder in the first
degree. Any other murder is murder in the second degree. If within the SMTJ, whoever
is guilty of murder in the first degree shall be punished by death or by imprisonment
for life; whoever is guilty of murder in the second degree, shall be imprisoned
for any term of years or for life. Murder is a specific intent crime.
d. Manslaughter, 18 U.S.C. §
1112
(U) Manslaughter is the unlawful killing of a human being without malice. It is
of two kinds: (A) voluntary, upon a sudden quarrel or heat of passion and (B)
involuntary, in the commission of an unlawful act amounting to a felony, or in
the commission in an unlawful manner, or without due caution and circumspection,
of a lawful act which might produce death.
(U) If within the SMTJ whoever is guilty of voluntary manslaughter, shall be fined
and/or imprisoned not more than ten years; whoever is guilty of involuntary manslaughter,
shall be fined and/or imprisoned not more than six years. Manslaughter is a general
intent crime. A death resulting from the exceptional interrogation techniques
may subject the interrogator to a charge of manslaughter, most likely of the involuntary
sort.
e. Interstate Stalking, 18 U.S.C.
§ 2261A
(U) 18 U.S.C. § 2261A provides that "[w]hoever…travels…within
the special maritime and territorial jurisdiction of the United States…with
the intent to kill, injure, harass, or intimidate another person, and in the course
of or as a result of, such travel
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places that person in reasonable fear of the death of, or serious bodily injury
of that person." Thus there are three elements to a violation of 2261A: (1)
defendant traveled in interstate commerce; (2) he did do with the intent to injure,
harass, intimidate another person; (3) the person he intended to harass or injure
was reasonably place in fear of death or serious bodily injury as a result of
that travel. See United States v. Al-Zubaidy, 283 F.3d 804, 808 (6th Cir, 2002).
(U) The travel itself must have been undertaken with the specific intent to harass
or intimidate another. Or put another way, at the time of the travel itself, the
defendant must have engaged in that travel for the precise purpose of harassing
another person. See Al-Zubaidy, 283 F.3d at 809 (the defendant "must have
intended to harass or injure [the victim] at the time he crossed the state line").
(U) The third element is not fulfilled by the mere act of travel itself. See United
States v. Crawford, No. 00-Cr-59-B-S, 2001 WL 185140 (D. Me. Jan. 26, 2991) ("A
plain reading of the statute makes clear that the stature requires the actor to
place the victim in reasonable fear, rather than, as Defendant would have it,
that his travel place the victim in reasonable fear.")
(U) It is unlikely that this statute’s purpose is aimed at interrogations.
f. Conspiracy, 18 U.S.C. §
2 and 18 U.S.C. § 371(15)
(U) Conspiracy to commit crime is a separate offense from crime that is the object
of conspiracy.(16) Therefore, where someone is charged with conspiracy, a conviction
cannot be sustained unless the Government establishes beyond a reasonable doubt
that the defendant had the specific intent to violate the substantive statute.(17)
(U) As the Supreme Court most recently stated, "the essence of a conspiracy
is ‘an agreement to commit an unlawful act.’" Untied States v.
Jimenez Recio, --S.Ct. - , 2003 WL 139612 at *-- (Jan. 12, 2003) (quoting Iannelli
V. United States, 420 U.S. 770, 777 (1975). Moreover, "[t]hat agreement is
a ‘distinct evil,’ which ‘may exist and be punished
----------
(U) 18 U.S.C. § 2. Principals
(a) Whoever commits an offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed
by him or another would be an offense against the United States, is punishable
as a principal.
18 U.S.C. § 371. Conspiracy to commit offense or to defraud the United States.
If two or more persons conspire either to commit any offense against the
United States, or to defraud the United States, or any agency thereof in any manner
for any purpose, and one or more of such persons do any act to effect the object
of the conspiracy, each shall be fined under this title or imprisoned not more
than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy,
is a misdemeanor only, the punishment for such conspiracy shall not exceed the
maximum punishment provided for such misdemeanor.
(U) United States v. Rabbinowich, 238 US 78, 59, 35 S.Ct 682, L. Ed 1211 (1915).
(U) United States v. Cangiano, 491 F.2d 906 (2nd Cir, 1974), next denied 419 U.S.
904 (1974).
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Whether or not the substantive crime ensues", Id at* (quoting Salinas v.
United States, 522 U.S. 52, 65 (1977).
3. Legal doctrines under the Federal
Criminal Law that could render specific conduct, otherwise
criminal, not unlawful
(U) Generally, the following discussion identifies legal doctrines and defenses
applicable to the interrogation of unlawful combatants, and the decision process
related to them. In practice, their efficacy as to any person or circumstances
will be fact-dependent.
a. Commander-in-Chief Authority
(U) As the Supreme Court has recognized, and as we will explain further below,
the President enjoys complete discretion in the exercise of his Commander-in-Chief
authority including in conducting operations against hostile forces. Because both
"[t]he executive power and the command of the military and naval forces is
vested in the President," the Supreme Court has unanimously stated that it
is "the President alone who is constitutionally invested with the entire
charge of hostile operations." Hamilton v. Dillin, 88 U.S. (21 Wall.) 73
(1874) (emphasis added).
(U) In light of the President’s complete authority over the conduct of war,
without a clear statement otherwise, criminal statutes are not read as infringing
on the President’s ultimate authority in these areas. The Supreme Court has
established a canon of statutory construction that statutes are to be constructed
in a manner that avoids constitutional difficulties so long as a reasonable alternative
construction is available, See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf
Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (citing NLRB
v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501 (1979) ) ("[W]here an
otherwise acceptable construction of a statute would raise serious constitutional
problems, [courts] will construe [a] statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress.") this canon
of construction applies especially where an act of Congress could be read to encroach
upon powers constitutionally committed to a coordinate branch of government. See,
e.g. Franklin v. Massachusetts, 505 U.S. 788, 800-1 (1992) (citation omitted)
("Out of respect for the separation of powers and the unique constitutional
position of the President, we find that textual silence is not enough to subject
the President to the provisions of the [Administrative Procedure Act]. We would
require an express statement by Congress before assuming it intended for the President’s
performance of this statutory duties to be reviewed for abuse of discretion.");
Public Citizen V. United States Dep’t of Justice, 491 U.S. 440, 465-67 (19890
(construing Federal Advisory Committee Act not to apply to advice given by American
Bar Association to the President on judicial nominations, to avoid potential constitutional
question regarding encroachment on Presidential power to appoint judges).
(U) In the area of foreign affairs, and war powers in particular, the avoidance
canon has special force. See, e.g., Dept of Navy v. Egan 484 U.S. 518, 530 (1988)
("unless Congress specifically has provided otherwise, courts traditionally
have been
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Reluctant to intrude upon the authority of the Executive in military and national
security affairs."); in Japan Whaling Ass’n v. American Cemcean Socy,
478 U.S. 221, 232-33 (1986) (construing federal statutes to avoid curtailment
of traditional presidential prerogatives in foreign affairs). It should not be
lightly assumed that Congress has acted to interfere with the President’s
constitutionally superior position as Chief Executive and Commander-in-Chief in
the area of military operations. See Egan, 484 U.S. at 529 (quoting haig V. Agee,
1453 U.S. 280, 293-94 (1981). See also Agee, 453 U.S. at 291 (deference to Executive
Branch is "especially" appropriate "in the area of national security").
(U) In order to respect the President’s inherent constitutional authority
to manage a military campaign, 18 U.S.C. § 2340A (the prohibition against
torture) must be construed as inapplicable to interrogations undertaken pursuant
to his Commander-in-Chief authority. Congress lacks authority under Article I
to set the terms and conditions under which the President may exercise his authority
as Commander-in-Chief to control the conduct of operations during a war. The President’s
power to detain and interrogate enemy combatants arises out of his constitutional
authority as Commander-in-Chief. A construction of Section 2340A that applied
the provision to regulate the President’s authority as Commander-in-Chief
to determine the interrogation and treatment of enemy combatants would raise serious
constitutional questions. Congress may no more regulate the President’s ability
to detain and interrogate enemy combatants than it may regulate his ability to
direct troop movements on the battlefield. Accordingly, we would construe Section
2340A to avoid this constitutional difficulty, and conclude it does not apply
to the President’s detention and interrogation of enemy combatants pursuant
to his Commander-in-Chief authority.
(U) This approach is consistent with previous decisions of the DOJ involving the
application of federal criminal law. For example, DOJ has previously construes
the congressional contempt statute as inapplicable to executive branch officials
who refuse to comply with congressional subpoenas because of an assertion of executive
privilege. In a 1984 opinion, DOJ concluded that
if executive officials were subject to prosecution for criminal contempt whenever
they carried out the President’s claim of executive privilege, it would significantly
burden and immeasurably impair the President’s ability to fulfill his constitutional
duties. Therefore, the separation of powers principles that underlie the doctrine
of executive privilege also would preclude an application of the contempt of Congress
to punish officials for aiding the President in asserting his constitutional privilege.
Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted
A Claim of Executive Privilege, 8:Op O.L.C. 101, 143 (May 30, 1984). Likewise,
if executive officials were subject to prosecution for conducting interrogations
when they were carrying out the President’s Commander-in-Chief powers, "it
would significantly burden and immeasurably impair the President’s ability
to fulfill his constitutional duties." These constitutional principles preclude
an application of Section 2340A to
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punish officials for aiding the President in exercising his exclusive constitutional
authorities. Id.
(U) It could be argued that Congress enacted 18 U.S.C. § 2340A with full
knowledge and consideration of the President’s Commander-in-Chief power,
and that Congress intended to restrict his discretion; however, the Department
of Justice could not enforce Section 2340A against federal officials acting pursuant
to the president’s constitutional authority to wage a military campaign.
Indeed, in a different context, DOJ has concluded that both courts and prosecutors
should reject prosecutions that apply federal criminal laws to activity that is
authorized pursuant to one of the President’s constitutional powers. DOJ,
for example, has previously concluded that Congress could not constitutionally
extend the congressional contempt statute to executive branch officials who refuse
to comply with congressional subpoenas because of an assertion of executive privilege.
They opined that "courts…would surely conclude that a criminal prosecution
for the exercise of a presumptively valid, constitutionally based privilege is
not consistent with the Constitution." 8 Op O.L.C. at 141. Further, DOJ concluded
that it could not bring a criminal prosecution against a defendant who had acted
pursuant to an exercise of the President’s constitutional power. "The
President, through a United States Attorney, need not, indeed may not, prosecute
criminally a subordinate for asserting on his behalf a claim of executive privilege.
Nor could the Legislative Branch or the courts require or implement the prosecution
of such an individual." Id. Although Congress may define federal crimes that
the President, through the Take Care Clause, should prosecute, Congress cannot
compel the President to prosecute outcomes taken pursuant to the President’s
own constitutional authority. If Congress could do so, it could control the President’s
authority through the manipulation of federal criminal law.
(U) There are even greater concerns with respect to prosecutions arising out of
the exercise of the President’s express authority as Commander-in-Chief than
with prosecutions arising out of the assertion of executive privilege. In a series
of opinions examining various legal questions arising after September 11, 2001,
DOJ explained the scope of the President’s Commander-in-Chief power. We briefly
summarize the findings of those opinions here. The President’s constitutional
power to protect the security of the United States and the lives and safety of
it’s people must be understood in light of the Founder’s intention to
create a federal government "cloathed with all the powers requisite to the
complete execution of It’s trust." The Federalist No. 23, at 147 (Alexander
Hamilton) (Jacob E. Cooke ed. 1961). Foremost among the objectives committed to
that trust by the Constitution is the security of the nation. As Hamilton explained
in arguing for the Constitution’s adoption, because "the circumstances
which may affect the public safety" are not reducible within certain determinate
limits,
it must be admitted, as necessary consequences, that there can be no limitations
of that authority, which is to provide for the defense and protection of the community,
in any matter essential to its efficacy.
Id. at 147-48. Within the limits that the Constitution itself imposes, the scope
and distribution of the powers to protect national security must be construed
to authorize the
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most efficacious defense of the nation and its interests in accordance "with
the realistic purposes of the entire instrument." Lichter v. United States,
334 U.S. 742, 782 (1948).
(U) The text, structure, and history of the Constitution establish that the Founders
entrusted the President with the primary responsibility, and therefore the power,
to ensure the security of United States in situations of grave and unforeseen
emergencies. The decision to deploy military force in the defense of the United
States interests is expressly placed under Presidential Authority by the Vesting
Clause, U.S. Const. Art I § 1, cl. 1, and by the Commander-in-Chief Clause,
id., § 2, cl. 1. (18) DOJ has long understood the Commander-in-Chief Clause
in particular as an affirmative grant of authority to the President. The Framers
understood the Clause as investing the President with the fullest range of power
understood at the time of the ratification of the Constitution as belonging to
the military commander. In addition, the Structure of the Constitution demonstrates
that any power traditionally understood as pertaining to the executive which includes
the conduct of warfare and the defense of the nation unless expressly assigned
in the Constitution to Congress, is vested in the President. Article II, Section
1 makes this clear by stating that the "executive Power shall be vested in
a President of the United States of America." That sweeping grant vests in
the President an unenumerated "executive power" and contrasts with the
specific enumeration of the powers-those "herein" granted to Congress
in Article I. The implications of constitutional text and structure are confirmed
by the practical consideration that national security decisions require the unity
in purpose and energy in action that characterize the Presidency rather than Congress.
(19)
----------
(U) See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority
to deploy United States armed forces "abroad or to any particular region");
Fleming v. Page, 50 U.S. (9 Flow) 603, 614-15 (1950) ("As commander-in-chief,
[the President] is authorized to direct the movements of the naval and military
forces placed by law at his command, and to employ them in a manner he may deem
most effective") Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia,
J., concurring in part and concurring in judgment)(The inherent powers of the
Commander-in-Chief "are clearly extensive."): Maul v. United States,
274 U.S. 501, 515-16 (1927) (Brandeis & Holmes J.T., concurring)(President
"may direct any revenue cutter to cruise in any water in order to perform
any duty of the service"); Commonwealth Massachusetts v. Laird, 451 F.2d
26, 32 (1st Cir. 1971) (the President has "power as Commander-in-Chief to
station forces abroad"); Ex parte Vallandigham, 28 F. Cas. 874, 922 (C.C.B.D.
Ohio (1863)(No. 16,816) (in acting "under his power where there is no express
legislative declaration, the president is guided solely by his own judgement and
discretion"); Authority to Use United States Military Forces in Somalia,
16 Op. O.L.C. 6,G (Dec. 4, 1992) (Barr, attorney General).
(U) Judicial decisions since the beginning of the Republic confirm the President’s
constitutional power and duty to repel military action against the United States
and to take measures to prevent the reoccurrence of an attack. As Justice Joseph
Story said long ago, "[I]t may be fit and proper for the government, in the
exercise of the high discretion confided to the executive, for great public purposes,
to act on a sudden emergency, or to prevent an irreparable mischief, by summoning
measures, which are not found in the text of the laws." The Apallon, 22 U.S.
(9 Wheat) 362, 366-67 (1824). If the President is confronted with an unforeseen
attack on the territory and people of the United States, or other immediate dangerous
threat to American interests and security, it is his constitutional responsibility
to respond to that threat with whatever means are necessary. See e.g., The Prize
Cases, 67 U.S. (2 Black) 635, 668 (1862)("If a war be made by invasion or
a foreign nation, the President is not only authorized but bound to resist force
by force…without waiting for any special legislative authority."); United
States v. Smith, 27 F. Cas; 1192, 1229-30 (C.C.D.N.Y., 1.-06)(No. 16,342)(Paterson,
Circuit Justice)(regardless of statutory authorization, it is "the duty…of
the executive magistrate - to repel an invading foe") see also 3 Story, Commentaries
6, 1485 ("[t]he command and application of the public force…to maintain
peace, and to resist foreign invasion" are executive powers).
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(U) As the Supreme Court has recognized, the Commander-in-Chief power and the
President’s obligation to protect the nation imply the ancillary powers necessary
to their successful exercise. "The first of the enumerated powers of the
President is that he shall be Commander-in-Chief of the Army and Navy of the United
States. And of course, the grant of war power includes all that is necessary and
proper for carrying those powers into execution." Johnson v. Eisentrager,
339 U.S. 763, 788 (1950). In wartime it is for the President alone to decide what
methods to use to best prevail against the enemy. The President’s complete
discretion in exercising the Commander-in-Chief power has been recognized by the
courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the
Court explained that whether the President, "in fulfilling his duties as
Commander in Chief", had appropriately responded to the rebellion of the
southern states was a question" to be decided by him" and which the
Court could not question, but must leave to "the political department of
the Government to which this power was entrusted".
(U) One of the core functions of the Commander-in-Chief is that of capturing,
detaining, and interrogating members of the enemy. It is well settled that the
President may seize and detain enemy combatants, at least for the duration of
the conflict, and the laws of war make clear that prisoners-may be interrogated
for information concerning the enemy, its strength, and its plans. Numerous Presidents
have ordered the capture, detention, and questioning of enemy combatants during
virtually every major conflict in the Nation’s history, including recent
conflicts in Korea, Vietnam, and the Persian Gulf. Recognizing this authority,
Congress has never attempted to restrict or interfere with the President’s
authority on this score.
(U) Any effort by Congress to regulate the interrogation of unlawful combatants
would violate the Constitution’s sole vesting of the Commander-in-Chief authority
in the President. There can be little doubt that intelligence operations, such
as the detention and interrogation of enemy combatants and leaders, are both necessary
and proper for the effective conduct of a military campaign. Indeed, such operations
may be of more importance in a war with an international terrorist organization
than one with conventional armed forces of a nation-state, due to the former’s
emphasis on secret operations and surprise attacks against civilians. It may be
the case that only successful interrogations can provide the information necessary
to prevent the success of covert terrorist attacks upon the United States and
its citizens. Congress can no more interfere with the President’s conduct
of the interrogation of enemy combatants than it can dictate strategy or tactical
decisions on the battlefield. Just as statutes that order the president to conduct
warfare in a certain manner or for specific goals would be unconstitutional, so
too are laws that seek to prevent the President from gaining the intelligence
he believes necessary to prevent attacks upon the United States.
(U) As this authority is inherent in the President, exercise of it by subordinates
would be best if it can be shown to have been derived from the President’s
authority through Presidential directive or other writing.
----------
(U) We note that this view is consistent with that of the Department of Justice.
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b. Necessity
(U) The defense of necessity could be raised, under the current circumstances,
to an allegation of a violation of a criminal statute. Often referred to as the
"choice of evils" defense, necessity has been defined as follows:
conduct that the actor believes to be necessary to avoid a harm or evil to himself
or to another is justifiable, provided that:
(a) the harm or evil sought to be avoided by such conduct is greater than that
sought to be prevented by the law defining the offense charged; and
(b) neither the Code nor other law defining the offense provides exceptions or
defenses dealing with the specific situation involved; and
(c) a legislative purpose to exclude the justification claimed does not otherwise
plainly appear.
Model Penal Code 3.02. See also Wayne R. LaFave & Austin W. Scott. I Substantive
Criminal Law 5.4 at 627 (1986 &2002 app:)("LaFave & Scott").
Although there is no federal statute that generally establishes necessity or other
justifications as defenses to federal criminal laws, the Supreme Court has recognized
the defense. See United States v. Bailey, 444 U.S. 394, 410 (1980) (relying on
LaFave & Scott and Model Penal Code definitions of necessity defense).
(U) The necessity defense may prove especially relevant in the current circumstances.
As it has been described in the case law and literature, the purpose4 behind necessity
is one of public policy. According to LaFave & Scott, "the law ought
to promote the achievement of higher values at the expense of lesser values, and
sometimes the greater good for society will be accomplished by violating the literal
language of the criminal law." LaFave & Scott, at 629. In particular,
the necessity defense can justify the intentional killing of one person to save
two others because "it is better that two lives be saved and one lost than
that two be lost and one saved" Id. or, put in the language of choice of
evils, "the evil involved in violating the terms of the criminal law (…even
taking another’s life) may be less than that which would result from literal
compliance with the law (…two lives lost)". Id.
(U) Additional elements of necessity defense are worth noting here. First, the
defense is not limited to certain types of harms. Therefore, the harm inflicted
by necessity may include intentional homicide, so long as the harm avoided is
greater (i.e., preventing more deaths) Id. at 634. Second, it must actually be
the defendant’s intention to avoid the greater harm: intending to commit
murder and then learning only later that the death had the fortuitous result of
saving other lives will not support a necessity defense. Id. at 635. third, if
the defendant reasonably believes that the lesser harm as necessary, even if,
unknown to him, it was not, he may still avail himself of the defense,. As LaFave
and Scott explain, "if A kills B reasonably believing it to be necessary
to save C and D, he is not guilty of murder eve though, unknown to A. C and D
could have been
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Rescued without the necessity of killing B," Id. Fourth, it is for the court,
and not the defendant to judge whether the harm avoided outweighed the harm done.
Id. at 636. fifth, the defendant cannot rely upon the necessity defense if a third
alternative that will cause less harm is open and known to him.
[Area Removed from Document]
(U) Legal authorities identify an important exception to the necessity defense.
The defense is available "only in situations wherein the legislature has
not itself, in its criminal statute, made determination of values." Id. at
629. Thus, if Congress explicitly has made clear that violation of a statute cannot
be outweighted by the harm avoided, courts cannot recognize the necessity defense.
LaFave and Israel provide as an example an abortion statute that made clear that
abortions even to save the life of the mother would still be a crime; in such
cases the necessity defense would be unavailable. Id. at 630. Here, however, Congress
has not explicitly made a determination of values vis-à-vis torture. In
fact, Congress explicitly removed efforts to remove torture from the weighing
of values permitted by the necessity defense.
----------
In the CAT, torture is defined as the intentional infliction of severe pain or
suffering "for such purposes of obtaining from him or a third person information
or a confession." CAT art 1.1 One could argue that such a definition represented
an attempt to indicate that the good of obtaining information - no matter what
the circumstances - could not justify an act of torture. In other words, necessity
would not be a defense. In enacting Section 2340, however, Congress removed the
purpose element in the definition of torture, evidencing an intention to remove
any fixing of values by statute. By leaving, Section 2340 silent6 as to the
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c. Self-Defense
(U) Even if a court were to find that necessity did not justify the violation
of a criminal statue, the defendant could still appropriately raise a claim of
self-defense. The right to self-defense, even when it involves deadly force, is
deeply embedded in our law, both as to individuals and as to the nation as a whole.
As the Court of Appeals for the D.C. Circuit has explained:
More than two centuries ago, Blackstone, best known of the expositors of the English
common law taught that "all homicide is malicious, and of course amounts
to murder, unless…excused on the account of accident or self preservation".
Self-defense, as a doctrine legally exonerating the taking of human life, is as
viable now as it was in Blackstone’s time.
United States v. Peterson, 483 F.2d 1222, 1228-29 (D.C. Cir. 1973). Self-defense
is a common-law defense to federal criminal law offenses, and nothing in the text,
structure or history of Section 2340A precludes its application to a charge of
torture. In the absence of any textual provision to the countrary, we assume self-defense
can be an appropriate defense to an allegation of torture.
(U) The doctrine of self-defense permits the use of force to prevent harm to another
person. As LaFave and Scott explain, one is justified in using reasonable force
in defense of another person, even a stranger, when he reasonably believes that
the other is in immediate danger of unlawful bodily harm from his adversary and
that the use of such force is necessary to avoid this danger." Id. at 663-64.
Ultimately, even deadly force is permissible, but "only when the attack of
the adversary upon the other, person reasonably appears to the defender to be
a deadly attack" Id at 664. As with our discussion of necessity, we will
review the significant elements of this defense. According to LaFave and Scott,
the elements of the defense of others are the same as those that apply to individual
self-defense.
----------
harm done by torture in comparison to other harms, Congress allowed the necessity
defense to apply when appropriate.
Further, the CAT contains an additional provision that "no exceptional circumstances
whatsoever, whether a state of war or a threat of war, internal political instability
or any other public emergency, may be invoke4d as a justification of torture,"
CAT art. 2.2 Aware of this provision of the treaty and of the definition of the
necessity defense that allows the legislature to provide for an expection to the
defense. See Model Penal Code 3,02(b), Congress did not incorporate CAT article
2.2 into Section 2-4. Given that Congress omitted CAT’s effort to bar a necessity
or wartime defense, Section 2340 could be read as permitting defense.
(U) Early cases had suggested that in order to be eligible for defense of another,
one should have some personal relationship with the one in need of protection.
That view has been discarded. LaFave & Scott at 664.
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(U) First, self-defense requires that the use of force be necessary to avoid the
danger of unlawful bodily harm. Id. at 649. a defender may justifiably use deadly
force if he reasonably believes that the other person is about to inflict unlawful
death or serious bodily harm upon another, and that it is necessary to use such
force to prevent it. Id. at 652. Looked at from the opposite perspective, the
defender may not use force when the force would bge as equally effective at a
later time and the defender suffers no harm or risk by waiting. See Paul H.Robinson,
2 Criminal Law defenses 131(c) at 77 (1984). If, however, other options permit
the defender to retreat safely from confrontation without having to resort to
deadly force, the use of force may not be necessary in the first place. LaFave
and Scott at 659-60.
(U) Second, self-defense requires that the defendant’s belief in the necessity
of using force be reasonable. If a defendant honestly but unreasonably believed
force was necessary, he will not be able to make out a successful claim of self-defense.
Id. at 654. Conversely, if a defendant reasonably believed an attack was to occur,
but the facts subsequently showed no attack was threatened, he may still raise
self-defense. As LaFave and Scott explain, "one may be justified in shooting
to death and adversary who, having threatened to kill him, reaches for his pocket
as if for a gun, thou it later appears that he had no gun and that he was only
reaching for his handkerchief." Id. Some authorities such as the Model Penal
Code, even eliminate the reasonability element, and require only that the defender
honestly believed regardless of its reasonableness - that the use of force was
necessary.
(U) Third, many legal authorities include the requirement that a defender must
reasonably believe that the unlawful violence is "imminent" before he
can use force in his defense. It would be a mistake, however, to equate imminence
necessarily with timing that an attack is immediately about to occur. Rather,
as the Model Penal Code explains, what is essential in that the defensive response
must be "immediately necessary." Model Penal Code 3.04(1). Indeed, imminence
must be merely another way of expressing the use of force may be justified. To
use a well-known hypothetical, if A were to kidnap and confine B, and then tell
B he would kill B one week later, B would be justified in using force in self-defense,
even if the opportunity arose before the week had passed. Id. at 656; see also
Robinson at 131(c)(1) at 78. In this hypothetical, while the attack itself is
not imminent, B’s use of force becomes immediately necessary whenever he
has an opportunity to save himself from A.
(U) Fourth, the amount of force should be proportional to the threat. As LaFave
and Scott explain, "the amount of force which [the defender] may justifiably
use must be reasonably related to the threatened harm which he seeks to avoid."
LaFave and Scott at 651. thus, one may not use deadly force in response to a threat
that does not rise to death or serious bodily harm. If such harm may result however,
deadly force is appropriate.
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is almost indispensable to every military system. But this implies obedience to
lawful orders only. If the act done pursuant to a superior’s orders be murder,
the production of the order will not make it any less so. It may mitigate but
it cannot justify the crime. We are of this view, however, that if the illegality
of the order was not known to the inferior, and he could not reasonably have been
expected to know of its illegality, no wrongful intent necessary to the commission
of the crime exists and the inferior [sic] will be protected. But the general
rule is the members of the armed forces are bound to obey only the lawful orders
of their commanding officers and they cannot escape criminal liability obeying
a command which violates international law and outrages fundamental concepts of
justice.
The Hostage Case (United States v. Wilhelm List et. al.)
(U) The international Military Tribunal at Nuremberg declared in its judgment
that the test of responsibility for superior orders "is not the existence
of the order, but whether moral choice was in fact possible."
(U) domestically, the UCMJ discusses the defenses of superior order in The Manual
Courts-Martial, which provides in R.C.M. 916(d), MCM 2002:
It is a defense to any offense that the accused was acting pursuant to orders
unless the accused know the orders to be unlawful or a person of ordinary sense
and understanding would have known the orders to be unlawful. An act performed
pursuant to a lawful order is justified. An act performed pursuant to an unlawful
order is excused unless the accused knew it to be unlawful or a person of ordinary
sense and understanding would have know the orders to be unlawful.
Inference of lawfulness. An order requiring the performance of a military duty
or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate.
(U) In sum, the defense of superior orders will generally be available for U.S.
Armed Forces personnel engaged in exceptional interrogations except where the
conduct goes so far as to be patently unlawful.
----------
(U) Trial of Major War Criminals before the International Military Tribunal, Nuremberg
14 November 1945-1 October 1946 at 224 (1947), excerpted in U.S. Naval War College,
International Law Documents, 1946-1947, at 260 (1948).
(U) This inference does not apply to a patently illegal order, such as one that
directs the confession of a crime. (Article 90, UCMJ).
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A. Lack of DOJ Representation for DOD Personnel Charged with
a Criminal Offense
(U) DOJ representation of a defendant is generally not available in federal criminal
proceedings, even when the defendant’s actions occur within the scope of
federal employment.
B. Federal Civil Statutes
1. 28 U.S.C. 1350
(U) 28 U.S.C.
1350 extends the jurisdiction of the U.S. District Courts to "any civil action
by an alien for a tort only, committed in violation of the law of nations or a
treaty of the United States". Section 1350 is a vehicle by which victims
of torture and other human rights violations by their native government and its
agents have sought judicial remedy for the wrongs they’ve suffered. However,
all the decided cases we have found involve foreign nationals suing in U.S. District
Courts for conduct by foreign actors/governments. The District Court for the District
of Columbia has determined that section 1350 actions, by the GTMO detainees, against
the United States or its agents acting within the scope of employment fail. This
is because (1) the United States has not waived sovereign immunity to such suits
like those brought by the detainees, and (2) the Eisentrager doctrine barring
habeas access also precludes other potential avenues of jurisdiction. This of
course leaves interrogators vulnerable in their individual capacity for conduct
a court might find tortuous. Assuming a court would take jurisdiction over the
matter and grant standing to the detainee, it is possible that this statute would
provide an avenue of relief for actions of the United States or its agents found
to violate customary international law. The application of international law,
specifically that which might be considered custom, is discussed supra in Section
IV at "International Considerations that May Affect Policy Determinations";
2. Torture Victims Protection
Act (TVPA
(U) In 1992, President Bush signed into law the Torture Victims Protection Act
of 1991. Appended to the U.S. Code as a note to section 1350, the TVPA specifically
creates a cause of action for individuals (or their successors) who have been
subjected to torture or extra-judicial killing by "an individual who, under
actual or apparent authority,
----------
(U) 28 CFR 50.15 (a)(4)
(U) 28 U.S.C 1350, the Alien Tort Claim Act (ATCA).
(U) See, for example, Ababe-Jva v. Negano, No 93-9133. United States Court of
Appeals, Eleventh Circuit, Jan 10, 1996 In this case the 11th Circuit concluded,
"the Alien Tort Claims Act establishes a federal forum where courts may fashion
domestic common law remedies to give effect to violations of customary international
law."
(U) Al Odah v. United States, (D.D.C., 2002)
(U) Filartiga v Pena-Irale, 630 F.2d 76 (2nd Cir. 1980) 885, note I, "conduct
of the type alleged here [torture] would be actionable under 42 U.S.C. 1983, or
undoubtedly the Constitution, if performed by a government official."
(U)Pub. I. No. 102-256, 106 Stal. 73, 28 U.S.C 1350 (note).
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or color of law, of any foreign nation (1) subjects an individual to torture shall
in a civil action, be liable for damages to that individual; or (2) subjects an
individual to extra judicial in a civil action, be liable for damages…."
(emphasis added) It thus appears that the TVPS does not apply to the conduct of
U.S. agents acting under the color of law.
C. Applicability of the United States
Constitution
1. Applicability o the Constitution
to aliens Outside the United States
(U) Nonresident enemy aliens do not enjoy constitutional rights outside the sovereign
territory of the United States. The courts have held that unlawful combatants
do not gain constitutional rights upon transfer to GTMA as unlawful combatants
merely because the U.S. exercises extensive dominion and control over GTMA. Moreover,
rights apply to aliens only on sovereign U.S. territory. (See discussion under
"Jurisdiction of Federal Courts", infra)
(U) Although U.S. cvonstitutional rights do not apply to aliens at GTMO, the Ul.S.
criminal laws do apply to acts committed there by virtue of GTMO’s status
as within the special maritime and territorial jurisdiction.
2. The Constitution Defining U.S.
Obligations Under International Law
(U) In the course of taking reservations to the Convention Against Torture and
Other Cruel, and Inhuman or Degrading Treatment or Punishment, the United States
determined that the Conventionw’s prohibitions against cruel, inhuman or
degrading treatment or punishment applied only to the extent that such conduct
was prohibited by the Fifth, Eighth and Fourteenth Amendments to our Constitition.
Consequently, analysis of these amendments is significant in determining the extent
to which the United States is bound by the Convention. It should be clear, however,
that aliens held at GTMO do not have constitutional rights under the 5th Amendment’s
Due Process clause
----------
(U) The definition of torture used in PL 102-256(a) "any act, directed against
an individual in the offender’s custody or physical control, by which severe
pain or suffering (other than pain or suffering arising only from or inherent
in, or incidental to lawful sanctions) whether physical or mental, is intentionally
inflicted on that individual for such purposes as obtaining from that individual
or a third person information or a confession, punishing that individual for an
act that individual or a third person has committed or is suspected of having
committed,, intimidating or coercing that individual or a third personk, or for
any reason based on discrimination of any king." This is similar but broader,
than the definition in the Torture Statute. The definition of mental pain and
suffering is the same as in the Torture Statute.
(U) Eisenstrager 764.
(U) Al Odah v. United States, (D.D.C., 2002).
(U) Articles of ratification, 21 Oct 1994: "Il. The Senate’s advice
and consent is subject to the following reservations: (1) That the United States
considers itself bound by the obligation under article 16 to prevent "cruel,
inhuman, or degrading treatment or punishment", means the cruel, unusual
and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth
Amendments to the Constitution of the United States" available at the UN
documents site: http://193.194.138.190/html/menu3/treaty12_asp.htm
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or the 8th Amendment. See, Johnson v. Eisenberger, 339 U.S. 763 (1950) and Verdugo-Urquidez,
494 U.S. 259 (1990).
a. Eighth Amendment
(U) "An examination of the history of the Amendment and the decisions of
this [Supreme] Court construing the proscription against cruel and unusual punishment
confirms that it was designed to protect those convicted of crimes" The import
of this holding is that, assuming a detainee could establish standing to challenge
his treatment the claim would not lie under the 8th Amendment. Accordingly, it
does not appear detainees could successfully pursue a claim regarding their pre-conviction
treatment under the Eighth Amendment.
(U) The standards of the Eighth Amendment are relevant, however, due to the U.S.
Reservation to the Torture Convention’s definition of cruel, inhuman, and
degrading treatment. Under "cruel and unusual punishment" jurisprudence,
there are two lines of analysis: (1) conditions of confinement, and (2) excessive
force. As a general matter, the excessive fore analysis applies to the official
use of physical force, often in situations in which an inmate has attacked another
inmate or a guard whereas the conditions of confinement analysis applies to such
things as administrative segregation. Under the excessive force analysis, "a
prisoner alleging excessive for4ce must demonstrate that the defendant acted "maliciously
and sadistically to cause harm." Porter v. Nussle, 534 U.S. 516, 528 (2002)(quoting
Hudson v. McMillan; 503 U.S.. 1, at 7). Excessive force requires the unnecessary
and wanton infliction of pain. Whitney v. Albers, 475, U.S. 312, 319 (1986).
(U) A condition of confinement is not "cruel and unusual" unless it
(1) is "sufficiently serious" to implicate constitutional protection,
id. at 347, and (2) reflects "deliberate indifference" to the prisoner’s
health or safety, Farmer v Brennan 511 U.S. 825, 834 (1994). The first element
is objective, and inquires whether the challenged condition is cruel and unusual.
The second, so-called "subjective’ element requires examination of the
actor’s intent and inquires whether the challenged condition is imposed as
punishment. Wilson v. Selter, 501 U.S. 294, 300 (1991) ("The source of the
intent requirement is not the predilections of this Court, but the Eighth Amendment
itself, which bans only cruel and unusual punishment. If the pain inflicted is
not formally meted out as punishment by the statute or sentencing judge, some
mental element must be attributed to the inflicting officer before it can qualify.")
(U) The Supreme Court has noted that "[n]o static ‘test’ can exist
by which courts determine whether conditions of confinement are cruel and unusual,
for the Eighth Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society." Rhodes, 452 U.S. at
146 (citation omitted). See also Estelle v. Gamble, 429 U.S. 97, 102 (1976)(stating
that the Eighth Amendment embodies
----------
(U) Ingraham v. Wright, 430 U.S. 651, 664 (1977). In Ingrahm, a case about corporal
punishment in a public junior high school, the Court analyzed the claim under
the 14th amendment’s Due Process clause, concluding that the conduct did
not violate the 14th amendment, even though it involved up to 10 whacks with a
wooden paddle.
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"broad and idealistic concepts of dignity, civilized standards, humanity,
and decency") Nevertheless, certain guidelines emerge from the Supreme Court’s
jurisprudence.
(U) The court has established that "only those deprivations denying "the
minimal civilized measures of life’s necessities’ sufficiently grave
to form the basis of an Eighth Amendment violation." Wilson, 501 U.S. at
298, quoting Rhodes, 452 U.S. at 347. It is not enough for a prisoner to show
that he has been subjected to conditions that are merely "restrictive and
even harsh," as such conditions are simply "part of the penalty that
criminal offenders pay for their offenses against society." Rhodes, 452 U.S.
at 347. See also Wilson at 349 (the Constitution does not mandate comfortable
prisons.").. Rather, a prisoner must show that he has suffered a "serious
deprivation of basic human needs," Id at 347, such as "essential food,
medical care, or sanitation," Id. At 348, See also Wilson, 501 U.S. at 304
(requiring "the deprivation of a single, identifiable human need such as
food, warmth, or exercise") "The Amendment also imposes [the duty on
officials to] provide humane conditions of confinement; prison officials must
ensure that inmates receive adequate food, clothing, shelter, and medical care,
and must take reasonable measures to guarantee the safety of the inmates."
Farmer, 511 U.S. at 832 (citations omitted). The Court has also articulated an
alternative test inquiring whether an inmate was exposed to "a substantial
risk or serious harm." Id. At 837. See also DeSpain v. Uphoff, 264 F.3d 965,
971 (10th Cir. 2001)("In order to sati8sfy the [objective] requirement, the
inmate must show that he is incarcerated under conditions posing a substantial
risk of serious harm.")
(U) The various conditions of confinement are not to be assessed under a totality
of the circumstances approach. In Wilson v. Seiter, 501 U.S. 294 (1991), the Supreme
Court expressly rejected the contention that "each condition must be considered
as part of the overall conditions challenged." Id. At 304 (internal quotation
marks and citation omitted), Instead the Court concluded that "Some conditions
of confinement may establish an Eighth Amendment violation ‘in combination’
when each would not do so alone, but only when they have a mutually enforcing
effect that produces the deprivation of a single identifiable human need such
as food, warmth, or exercise - for example, a low cell temperature at night combined
with a failure to issue blankets." Id. At 304. As the Court further explained,
"Nothing so amorphous as ‘overall conditions’ can rise to the level
of cruel and unusual punishment when no specific deprivations of a single human
need exists." Id. at 305.
(U) To demonstrate deliberate indifference, a prisoner must demonstrate "that
the official was subjectively aware of that risk". Farmer v. Brennan 511
U.S. 125 (1994). As the supreme Court further explained:
We hold… that a prison official cannot be found liable under the Eighth Amendment
for denying any inmate humane conditions of confinement unless the official knows
of and regards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference can be drawn that a substantial
risk of serious harm exists and he must also draw the inference.
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that "[t]his primitive treatment amount [ed] to [the] gratuitous infliction
of ‘wanton and unnecessary’ pain that our precedent clearly prohibits."
Id. at 2515. Thus, the necessity of the government action bears upon both the
conditions of confinement analysis as well as the excessive force analysis.
(U) The government interest here is of the highest magnitude. The typical prison
case, the protection of other inmates or officers, the protection of the inmate
alleged to have suffered the cruel and unusual punishment, or even the maintenance
of order in the prison provide valid government interests for various deprivations.
See e.g. Anderson v. Nosser, 438 F.2d 183, 193 (5th Cir. 1971) ("protect[ing]
inmates from self-inflicted injury, protect[ing] the general prison population
and personnel from violate acts on his part, prevent[ing] escape" are all
legitimate penological interests that would permit the imposition of solitary
confinement); McMahon v. Beard, 583 F.2d 172, 175 (5th Cir. 1978) (prevention
if inmate suicide is a legitimate interest). If the protection of one person or
even prison administration can be deemed to be valid governmental interests in
such cases frequently permitted deprivations, it follows a fortiori that the interest
of the United States here - obtaining intelligence vital to the protection of
untold thousands of American citizens - can be no less valid. To be sure, no court
has encountered the precise circumstances hereunder Eighth Amendment jurisprudence.
Nonetheless, it can be forcefully argued that there can be no more compelling
government interest than that which is presented here. See Hope v. Pelzer, 122
s. Ct. 2508 (2002) ("The unnecessary and wanton infliction of pain …constitutes
cruel and unusual punishment forbidden by the Eighth Amendment. We have said that
among unnecessary and wanton inflictions of pain are those that are totally without
penological justification.")
(U) Fifth Amendment and Fourteenth Amendment"
(U) "It is now the settled doctrine… that the Due Process Clause embodies
a system of rights based on moral principles so deeply imbedded in the traditions
and feelings of our people as to be deemed fundamental to a civilized society
as conceived by our whole history. Due Process is that which comports with the
deepest notions of what is fair and right and just"49 Due process is violated
if a practice or rule "offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental".50
(U) Standing by itself, the phrase "due process" would seem to refer
solely and simply to procedure, to process in court, and therefore to be so limited
that "due process of law" would be what the legislative branch enacted
it to be. But that is not the interpretat8ion which has been placed on the term.
"It is manifest that it was not left to the legislative power to enact any
process which might be devised. The article is a restraint on the legislative
as well as on the executive and judicial powers of the government, and cannot
be so construed as to leave congress free to make any process ‘due process
of law’
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(U) Because the Due Process considerations under the 5th and 14th amendments are
the same for our purposes, this analysis considers them together.
(U) Solesbee v. Batkcom, 339 U.S. 9, 16 (1950) (Justice Frankfurter dissenting).
(U) Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
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Reserve component and retired regular officers can, under certain circumstances,
also be subject to the UOMJ, as can civilians accompanying the Armed Forces in
time of war under certain circumstances.
1. (U) Offenses
(U) a number of UCMJ provisions potentially apply to service members involved
in the interrogation and supervision of the interrogation of detainees. Most significant
are the following:
a. Cruelty, Oppression or Maltreatment,
Art 93
(U) The elements of the offense are that the alleged victim was subject to the
orders of the accused and that the accused was cruel toward, oppressed, or maltreated
the victim. The cruelty, etc. need not be physical. Subject to the orders of,
includes persons, subject to the UCMJ or not, who are by some reason of some duty
are required to obey the lawful orders of the accused, even if not in the direct
chain of command of the accused. "Cruel", "oppressed", and
"maltreated" refer to unwarranted, harmful, abusive, rough or other
unjustifiable treatment that, under all the circumstances, results in physical
or mental pain or suffering and is unwarranted, unjustified and unnecessary for
any lawful purpose. It is measured by an objective standard. MCM IV-25; MJB, Section
3-17-1.
b. Reckless Endangerment, Art
134
(U) The elements of the offense are that the accused engaged in wrongful conduct
that was reckless or wanton and that the conduct was likely to produce death or
grievous bodily harm. "[L]ikely to produce" means the natural or probable
consequences of particular conduct. "[G}rievous bodily harm" includes
injuries comparable to fractured or dislocated bones, serious damage to internal
organs. MCM IV-119; MJB, Section 3-100A-1.
c. Assault, Art 128
(U) This article encompasses the following offenses:
(U) Simple assault – The elements are that the accused attempted or offered
to do bodily harm to an individual and that such attempt or offer was done with
unlawful force and violence. An act of force or violence is unlawful if done without
legal justification or excuse and without the consent of the victim. The use of
threatening words accompanied by a menacing act or gesture may constitute an assault.
MCM IV-81; MJB, Section 3-54-1.
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(U) Article 2 UCMJ; Rules for Courts-Martial, Rule 202, and Discussion.
(U) The following are extracted from the Department of the army Pamphlet 27-9,
Military Judges’ Benchbook (MJB), which summarizes the requirements of the
Manual for Courts-Martial (MCM) and case law applicable to trials by courts martial.
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(U) Assault consummated by battery – An assault resulting in actual infliction
of bodily harm is a batter. Bodily harm means any physical injury to or offensive
touching, however slight. MCM IV-83; MJB, Section 3-54-1A.
(U) Aggravated assault (use of a dangerous weapon, means or force) – In addition
to the elements of an assault, this offense requires that the means or force attempted
or offered was used in a manner likely to produce death or grievous bodily harm.
Any object, regardless of its normal use, could become a means likely to inflict
grievous bodily harm depending on the manner in which it is actually used. MCM
IV-84; MJB, Section 3-54-8.
(U) There are multiple instances in which authority and context permit touching
- by police officers, prison guards, training NCOs, etc. - that would not be lawful
under other circumstances. A central issue would be how clearly the limits of
authority were defined and whether under the circumstances the individual exceeded
the scope of that authority.
d. Involuntary Manslaughter, Art
119
(U) The elements of this offense are that acts or omissions constitution culpable
negligence resulted in an unlawful killing. Culpable negligence contemplates a
level of heedlessness in circumstances in which, when viewed in the light of human
experience, might foreseeably result in death. MCM IV-64. Failure to assiduously
follow protocols providing for the health and safety of detainees during interrogations
of detainees, could amount to such culpable negligence, MJB, Section 3-44-2.
e. Unpremeditated Murder, Art
118
(U) The relevant elements of the offense are that the person is dead, his death
resulted from the act or failure to act of the accused, that the killing was unlawful,
without legal justification, and at that time the accused had the intent to inflict
great bodily harm upon the person. MCM IV-118, MTB, Section 3-43-2.
f. Disobedience of Orders, Art
92
(U) This offense is committed when the accused, having a duty to do so, fails
to obey lawful orders or regulations, MCM IV-23; MJB, Section 3-16. the duty to
obey may extend to treaties and statuettes as well as regulations. The Convention
against Torture and the general case law regarding cruel and unusual punishment
may be relevant here as it is for Article 93, See generally, Wilson v. Setter,
501 U.S. 294 (1991).
g. Dereliction of Duty, Art 92
(U) A dereliction occurs when an individual knew or should have known of certain
prescribed duties and either wilfully or through neglect was derelict in the perfro4rmance
of those duties. MCM IV-24; MJB, Section 3-16-4. Customs of the service
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As well as statues and treaties that have become the law of the land may create
duties for purposes of this article.
h. Maiming, Art 124
(U) The elements of this offense are that the accused intentionally inflicted
an injury on a person, and whether intended or not, that the injury seriously
disfigured the person’s body, destroyed or disabled an organ or member, or
seriously diminished the person’s physical vigor. MCM IV-77; MJB, Section
3-50-1.
2. Affirmative Defenses under
the UCMJ (R.C.M. 916)
(U) In order for any use of force to be lawful, it must either be justified under
the circumstances or an accepted affirmative defense is present to excuse the
otherwise unlawful conduct. No case law was found that defines at what point force
or violence becomes either lawful or unlawful during war. Each case is by its
nature, dependent upon the factual circumstances surrounding the incident.
(U) Applying accepted rules for law of armed conflict, the use o