18 USC 2340-2340A

I've been plagued by thoughts surrounding the debate about the conduct of my nation's representatives, spokespeople and agents. I read quite a few reader comments in response to the continuing revelations about the treatment of detainees in what has been called "The War on Terror." I watched a documentary called 'Standard Operating Procedure' which showed the photos from Abu Ghraib that caused such a stir when they first came to light. I think it was hard for anybody to have missed the images of naked men on dog leashes. Some missed the images of the man who was beaten to death and died during interrogation. To hear the people who took the photos tell the story in their own words is helpful to make sense of the incidents.

Title 18 U.S.C. Section 2340A

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

Section 2340 defines the act of torture as an "act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."

Now that the Memo Regarding the Torture and Military Interrogation of Alien Unlawful Combatants Held Outside the United States authored by John Yoo, Deputy Assistant Attorney General, Department of Justice, Office of Legal Counsel has been declassified we have the opportunity as American citizens to contemplate the reasoning that would allow some things to take place that did take place and that have caused controversy.

Conservative pundits have offered that some of these actions were akin to "fraternity pranks" and necessary due to an extreme and unforeseen situation of unimaginable magnitude. Liberal pundits have called them "war crimes" and contrary to any moral and ethical reasoning.

Yoo wrote, on page 38 of the Torture Memo, "The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause 'severe physical or mental pain or suffering.'" He then parses the word "severe" after admitting, "The statute does not, however, define the term 'severe.'" Yoo concludes the paragraph, "Thus, the adjective 'severe' conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure."

Section 2340 gives more express guidance as to the meaning of "severe mental pain or suffering." The statute defines "severe mental pain or suffering" as:
"the prolonged mental harm caused by or resulting from ...
(C) the threat of imminent death ...".

As Yoo writes, on page 44, "The third predicate act listed in section 2340(2) is threatening a prisoner with 'imminent death.' 18 U.S.c. § 2340(2)(C). The plain text makes clear that a threat of death alone is insufficient; the threat must indicate that death is 'imminent.'"

"The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result," concludes Yoo.

Much has been made of this pain so severe that death or organ failure will likely result. All the while overlooking quite an obvious conclusion, which I have not yet seen commented upon.

First of all, I have no idea what the pain of organ failure feels like. What would it feel like for my skin to fail? Is there really a sensation if my brain fails, and is it painful? Blindness is the failure of an eye. Do people blind in one eye experience pain akin to torture?

Second, the pain of death. If death is painful, where did the phrase, "He died quietly in his sleep" come from? Shouldn't it be, "He died in severe pain in his sleep."?

In other words, the imaginary concept put forth by Yoo contemplates that torture is only torture if the pain is so severe that it meets some threshold which apparently is known by Yoo but never defined in the memo, in case law, the dictionary, or by the medical profession. After Yoo published mumbo jumbo with legal citations interspersed, somebody was beaten to death at Abu Ghraib. I bet it hurt. A lot.

On page 47 Yoo opines "Certain acts do, however, consistently reappear in these cases or are of such a barbaric nature, that it is likely a court would find that allegations of such treatment would constitute torture: ... (2) threats of imminent death ...".

My mind keeps coming back to this idea of a threat of imminent death as torture. If somebody says, "We will kill you right now if you don't tell us what we want to know." ... is that torture? There are lots of different ways death can be visited upon a hapless prisoner. If it were me, I'd rather be shot than drowned. We don't put convicted criminals to death in the United States of America by drowning. I wonder why?

The word "waterboard" does not appear at all in the Yoo memo. I think it was this waterboarding thing that has me disturbed. Sounds kind of like "wake boarding" doesn't it? A fun Fourth of July pass time. Dating back to the Spanish Inquisition, the technique has been favored because it produces no marks on the body. Early US media accounts called it something like "pouring water over a person's face." Just like being in the shower, one might conclude.

Dick Cheney during one interveiw made reference to a dunk in a bucket. Waterboarding does not "dunk" nor is a bucket required. Too bad the videotapes were all destroyed. We could have watched them with Cheney and gotten his reaction. Strange how these suspected terrorists were supposed to have all this crucial information, but the tapes were destroyed. All we have is Dick Cheney's word on the matter now.

Then, just this week, I saw it characterized in the media as "simulated drowning." How, exactly, does one "simulate" drowning? The person who can't swim, in the lake over their head, does not cry out, "Help me, I'm simulating drowning!" No -- water entering the nose, sinuses, airways and lungs is what we call "drowning." Having no pulse or brain activity afterward is what we call "drowned."

Drowning is the experience of imminent death. I imagine it is "severe" by any definition of the word.

Yoo seems to have foreseen that the activity contemplated by those who requested the memo from him may cross over into the realm of torture and goes on to explain why torture is OK, just in case they decide to go for it.

Page 76, "Further, [the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Apr. 18, 1988, 1465 D.N.T.S. 113 ("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 invoked as a justification of torture.' CAT art. 2.2. Given that Congress enacted 18 U.S.C. §§ 234D-2340A in light of CAT, Congress presumably was aware of this provision of the treaty, and of the definition of the necessity defense that allows the legislature to provide for an exception to the defense, see Model Penal Code § 3.02(b), yet Congress did not incorporate CAT article 2.2 into section 2340. Nor did Congress amend any of the generally applicable criminal statutes to eliminate this defense in cases of torture. Given that Congress omitted CAT's effort to bar a necessity or wartime defense, we read section 2340 and the federal criminal statutes applicable to the special maritime and territorial jurisdiction as permitting the defense."

Yoo believes that like the self-defense argument which can be used by American citizens who are charged with murder, self-defense could also be used to justify and permit torture. Imagine reading in the newspaper, "A homeowner was forced to torture his neighbor until the neighbor promised to never trespass and cause harm to the homeowner's children again. The Judge ruled the homeowner did this in self-defense."

Continuing on page 79, Yoo writes, "To be sure, this situation is different from the usual self-defense justification, and, indeed, it overlaps with elements of the necessity defense. Self-defense as usually discussed involves using force against an individual who is about to conduct the attack. In the current circumstances, however, an enemy combatant in detention does not himself present a threat of harm. He is not actually carrying out the attack; rather, he has participated in the planning and preparation for the attack, or merely has knowledge of the attack through his membership in the terrorist organization. Nonetheless, some leading scholarly commentators believe that interrogation of such individuals using methods that might violate section 2340A would be justified under the doctrine of self-defense, because the combatant by aiding and promoting the terrorist plot has culpably caused the situation where someone might get hurt. If hurting him is the only means to prevent the death or injury of others put at risk by his actions, such torture should be permissible, and on the same basis that self-defense is permissible.'"

I guess I still disagree with some leading scholarly commentators. I believe that torture would shock the conscience of a rational person. It bothers me.

It has been said that Saddam Hussein was at a meeting with his cabinet. One of the cabinet members disagreed with a point Saddam had just made. Saddam said, "Let's go in the other room and discuss it." Saddam and the chap went to the next room. The people remaining at the table heard a gunshot from the next room, and Saddam returned alone to the table.

I believe Saddam would have smiled at the "necessity" and "self-defense" arguments and incorporated them into his rhetoric.

I do see a way to extricate ourselves from this dilemma. Congress should strengthen US law to expressly deny the "necessity" and "self-defense" legal arguments which attempt to justify torture. President Obama should pardon Bush and Cheney and anyone else involved in the conspiracy. That would render moot any legal arguments and make a point that justice is more than just retribution. Forgiveness is a component of justice as well.