~-U.s. Department of Justice
Office of Legal Counsel

August],2oo2

Interrogationo~

You have asked for this Office's views on whether certain proposed conductwopld
violate the prohibition againsttorture found at Section2340A oftitle 18 ofthe United States
Code. You have asked for this advice

I.

Our advice is based upon the following-facts. which you have provided to us. We also
understand that you do not have anyfacts in yourpossessioncontraryto the facts outlinedhere,
and this opinion is limitedto these facts: lfthese facts were to change, this advicewouldnot
necessaril a I.

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III.

Section2340Amakesit a criminal offensefor anyperson"outsideof the UnitedStates
(to] commitO or attempt{] to commit torture," Section2340(1) definestorture as:
an act committed by a personacting underthe coloroflaw specifically intended to
inilict severe physical OY mentalpain OYsufferiDg (otherthan pain or suffering
incidental to lawfulsanctions) upon another personwithin his custodyof physical
.control.
.
1 &U.S.c. § 2340(1). As we outlined in our opinion on standards of conduct underSection'
2340A, a violationof2340Arequires a showing that: (I) the torture Occurred outside the United
States; (2) the defendant acted Wider the colorof law;(3) the victim was within the defendant's
custody or control;(4) the defendant specifically intended to inflict'severe . or suffering; 'and
5 that the actedinflicted severe . • or suffc •

Section 2340 defmes tortureas the infliction ofsevere physical or mentalpain or
suffering. We will consider physical pain and mental pain separately. See 18 U.S.C. § 2340(1).
With respect 10 physical pain,we previously concluded that "severe pain" withipthe meaning
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Section2340 is pain that is difficultfor the individual to endure and is of an intensi
pain accompanyin serious ]Sica! injury- See Section 2340A Memorandum at 6.

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We next consider whether the use of these techniques would inflict severe mental pain or
suffering within the meaning of Section 2340. Section 2340 defines severe mental pain or
suffering as "the prolonged mental hann caused by or resulting from" one of several predicate

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acts. 18 U.S.C. § 2340(2). Those predicate acts are: (1) the intentional infliction or threatened
infliction of severe physical pain or suffering; (2) the administration or application, or threatened
administration or application ofmind-altering substances or other procedures calculated to
disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat
that any ofthe preceding acts win be done to another person. See 18 U,S.C. § 2340(2XA}-{D),
As we have explained, this Jist of predicate acts is exclusive, See Section 2340A Memor.mdUm
at 8. No other acts can support a charge under Section 2340A based on the infliction of severe
_ mental pain or suffering. See id. Thus, if the methods that you have described do not either in
and of themselves constitute one ofthese acts or as a course of conduct fulfill the redicate act
r
. ement, the ohibition has not been violated. See id.

As we previously explained, whether an action constitutes a threat

must be assessed from the standpoint of a reasonable person in the subject's position. See id: at
9.

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Sgecific Intent. To violate the statute, an individual must have the specific intent to
inflict severe pain or suffering. Because specific intent is an element ofthe offense, the absence .
of specific intent negates the charge oftorture.: As we previously opined, to have the required
specific intent, an individual must expressly intend to cause such severe pain or suffering. See
Section 2340A Memorandum at 3 citing Carter v. UnitedStales, 530 U.S. 255, 267 (2000). We
have further found thatif a defendani acts with the good faith beliefthat his actions will not
cause such suffering, he has Dot acted with specific intent. See. id. at 4 citing South A/I. Lmtd:
Ptrshp-ofTenn. v. Reise, 218 F.3d 518, 531 (4th Cir. 2002). A defendant acts in good faith
when he has an honest beliefthat his actions will not result in severe pain or suffering. See id.
citing Cheekv. United States, 498 U.S. 192,202 (1991). Although an honest beliefneed not be
reasonable, such a belief is easier to establish where there is a reasonable basis for it. See id. at 5.
Good faith may beestablished by, among other things, the reliance on the advice of experts. See
at 8.

sa.

Furthermore, no specificmtent to cause severe menial pain or sufferingappears to be
present. As we explained in our recent opinion, an individual must havethe specific intent to
cause prolonged mental hann in order to have the specific intent to inflict severe mental pain or
suffering. See Section 2340A Memorandum at 3. Prolonged mental harm is substantial mental
harm of a sustained duration, e.g~ harm lasting months or even years after the acts were inflicted
upon the prisoner. As we indicated above,a good faith beliefcan negate this element.
Accordingly, if an individu3I conducting the Interrogationhas goodfaith belief that the
procedures he will apply,separatelyor together, would not result in prolongedmental harm, that
individual lacks the requisite specific intent. This conclusion concerning specific intent is further
.bolstered by the due diligencethat hasbeen conductedconcerningthe effects of these
interrogation procedures.

a

e psychological
impact of a course ofconduct must be assessed with reference to the subject's psychological
history and current mental health status: The healthier the individual,the less likely that the use
of anyone rocedure or set of rocedures as a course of conduct will result in rolon ed mental

harm.

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