Defining torture: Russian roulette, yes. Mind-altering drugs, maybe

The memo starts by explaining that some acts may be ‘‘cruel, inhuman or degrading’’ but not constitute torture under Section 2340, the federal law criminalising torture. To rise to torture, it argues, the acts must be of an extreme nature, intended to inflict severe pain or suffering, mental or physical. But the statute is vague on the meaning of ‘‘severe’’, so the authors try to construct one.

The dictionary defines severe as ‘‘unsparing in exaction, punishment or censure’’ or ‘‘inflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture’’ ‘‘extremely violent or grievous, severe pain’’ ‘‘of pain, suffering, loss, or the like: grievous, extreme’’ and ‘‘of circumstances hard to sustain or endure’’. 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.

A good model, the memo suggests, can be found in statutes regulating what kind of emergency medical conditions qualify for payments of health benefits.

Although these statutes address a substantially different subject from Section 2340, they are nonetheless helpful for understanding what constitutes severe pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure or the impairment of a significant body function. These statutes suggest that ‘‘severe pain’’, as used in Section 2340, must rise to a similarly high level.

Turning to severe mental pain, the memo notes that the statute prohibits torture caused by mind-altering substances, which the authors take to mean drugs. But, the memo argues, this doesn’t rule out all drugs.

Instead, it prohibits the use of drugs that ‘‘disrupt profoundly the sense or the personality’’. The statue requires more than that 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.

The authors say they cannot find a definition of profound mental disruption in mental health literature or US law, so they offer some examples of their own.

Such an effect might be seen in 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 a thing previously of interest to the individual. This impairment is accompanied by one or more of the following: deterioration of language function, e.g. repeating sounds and words over and over again; impaired ability to execute simple motor activities, e.g. inability to dress or wave goodbye; inability to recognise and identify objects such as chairs or pencils despite normal vision functioning. Moreover, we think that pushing someone to the brink of suicide, particularly where the person comes from a culture with strong taboos against suicide, would be a disruption of the personality.

The torture statute also says that severe mental pain can result from the threat of imminent death. Imminent, however, is the operative word.

Threats referring vaguely to things that might happen in the future do not satisfy this immediacy requirement. Such a threat fails to satisfy this requirement not because it is too remote in time but because there is a lack of certainty it will occur. 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.

The authors then look to the federal Torture Victims’ Protection Act. At least seven acts consistently reappear in decisions about violations of the law, suggesting to the authors at least seven firm examples of torture.

• Severe beatings using instruments such as iron barks, truncheons and clubs.

• Threats of imminent death, such as mock executions.

• Threats of removing extremities.

• Burning, especially burning with cigarettes.

• Electric shocks to genitalia or threats to do so.

• Rape or sexual assault, or injury to an individual’s sexual organs, or threatening to do any of these sorts of acts.

• Forcing the prisoner to watch the torture of others.

While we cannot say with certainty that acts falling short of these seven would not constitute torture under Section 2340, we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate the law.

In an appendix, the memo lists several cases in which American courts have ruled that the victim was tortured. One case describes what happened to three Americans who were held as hostages in Lebanon.

Plaintiff was kidnapped at gunpoint. He was subjected to daily torture and threats of death. He was kept in solitary confinement for two years. During that time, he was blindfolded and chained to the wall in a 6-foot-by-6-foot room. He was shackled in a stooped position for a long time, and he developed eye infections as a result of the blindfolds. Additionally, his captors forced him to kneel on spikes; administered shocks; battered his feet with iron bars and struck him in the kidneys; placed boiling tea kettles on his shoulders; and laced his food with arsenic.

The memo ends by noting two cases in which courts ruled there was no torture.

The plaintiff was held for eight days in a filthy cell with drug dealers and an AIDS patient. He received no food, no blanket and no protection from other inmates. Prisoners murdered one another in front of the plaintiff. The court flatly rejected the plaintiff’s claim that this constituted torture.

— The New York Times