Olc Ltr to Rizzo Cia Re Inquiry Torture Crime 7-13-02
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· _.. , - ...... - - - -~ ~ -. -_.... ~ ........ .S. Department of Jti.stice Office cfLegaJ Counsel July 13, 2002 John Rizzo Acting General Counsel Central InteUigence Agency Washington, D.C. 20505 Dear 1'.1r. Rizzo: This' is "letter in response to' your inquiry at our meeting today about what is necessary to esil3blish the crime of torture, as setfom in 18 U.S.C. § 2340 ef seq. The elements ofthe crime of , torture ~e: (1) the torture occurred outside the United States; (2) the defendant acted under the color ofJaw; (3) theYict:irn was within the defendant's custody or physical control; (4) the defendant specifically intended to cause severe mental or physical pain or suffering; and (5) the act ~icted severe menta(orphysicaI pait'"} or suffering. See 18 U.S,C. § 2340(1); id} § 234D. With respect to severe mentai pain Or suffering $pecL.~callY7 prolonged mental harm must be esta~lishcd. T'hBt pro1on.ged mental hami mustresul! from one ofthe foU owing acts: intentional iniliction or threatened infliction of severe physical pain or suffering; administration or application of or threatened administration or application of rnind.aJtering drugs or other procedures designed to profoundly disru:pt the senses orpersonality; threat ofimminent death; or threatening to subject another person to imminent death, seve!'e physical pain or suffering, or the administration or, application of mind,altering substances or other procedures ·calculated to disrupt profoundly the senses or personality. 'See 18' D.s.c. § 2340(1). ' , , , . MoreOver, to establish that an individucl has acted with the'specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose, of causing prolonged mental harm in order for the use of any ofthe predicate ects to constitute torture. ' , Specific intent can be negated by a snovri..ng of good faith. ThUs, if an individual undertook any of the predicateacts for severe me.ntal pain or suffering, butclidso inthe goodfaith beliefthat those aCts would not cause theprisoner prolong~dmental harm, he wouldnothave acted with the specific intent necessary to establish torture. If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions undertaken relying on that advice would have be undertake~in good faith. Due diligence to meetthis st4Ddard might include such actions ~ surveying professional literature, consulting with experts, or evidence gained from past experience. ~ ."-'_ ~:~'" " co . ... ~. -oor- ~ ' As you know, our office is in the CO\lr".)C of.finaliz:ing a illorc dcia:led memorandum.opinion 2...'1alyzing section 2340. We look ~ r;v?rl [0 worki.ng.with you as we finish met project Please contact me or if you have.my further questions. SL cerely, . I Yooer J. pui)' A.ssistant Attorney General·