Over at opiniojuris.org they were asking us to look at alternative rules of statutory construction for this key part of the March 13, 2001 Yoo memo (around pages 36-39 and 40):

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....

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." In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be "severe." The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Webster's New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572(1978) ("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.

Congress's use of the phrase "severe pain" elsewhere in the U. S. Code can shed more light on its meaning. See, e.g., West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) ("[W]e construe [a statutory term] to contain that permissible meaning which fits most logically and, comfortably into the body of both previously and subsequently enacted law.). Significantly, the phrase "severe pain" appears in statutes defining an emergency medical condition for the purpose of providing health benefits. See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000). These statutes define an emergency condition as one "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added). Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical 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 permanent, impairment of a significant body function. These statutes suggest that to constitute torture "severe pain" must rise to a similarly high level-the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.

I posted the comment below and would like it to be vetted by you. I have looked at the relevant statutory sections cited and none of them have the language of “permanent” or “death, organ failure, or the permanent, impairment of a significant body function.”

So please advise if I have missed something.

The analysis starts here.

The weakness of resorting to the rules of statutory construction approach is that everyone knows (as said Justice Kennedy once at a conference I was at) that one can find a rule that works for what you want to do. Everyone spends time trying to look for this or that rule and focuses on the alternative to the Yoo approach. The essence of this is that the discussion becomes kind of a more sterile exercise of "ah yes there are many ways to do this" and we proceed off to our next article.

Sorry to speak plainly, but I think this is what you would want from me.

For example, one could try to look at the same statutory language under a cumulative approach and look at the variety of answers and say isn't that fascinating. One is left with a kind of bewilderment at the possibilities.

Maybe because I am too lazy or something, I simplified my life a bit by taking Yoo at his own words. I assume that he means the words he writes so I look at them.

For example he says the medical emergency standard is:

"These statutes define an emergency condition as one "manifesting itself by ,'acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ...
(i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added)."

Note that language and then note the next sentence which is on page 40.

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 permanent, impairment of a significant body function.

Yoo's language in the sentence immediately above on its face appears to contemplate to me a definition that restricts "severe pain" to something more narrow than does the statute to which he has chosen to make reference - let alone any more capacious definition from another rule of construction.

The language he cites does not make reference to anything permanent - it focuses on seriousness. While it could certainly contemplate at the high end of its seriousness - quoting further -

physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.

it also can include lower level types of seriousness that he has decided to exclude. So while using the language of a rule of construction what he is doing is really to give this hypernarrow definition of "severe pain".

In his own words, and I believe that he believes what he wrote, he is giving advice that "severe pain" (Yoo version) is not "severe pain" (statute version) - a nice sleight of hand it seems to me. It is done with the specific intent of narrowing the limit of what is prohibited.

The difficulty that Yoo faces is that a prosecutor might say that even on the basis he has taken, the rule prohibits more types of actions than Yoo wrote. Putting it another way, Yoo got it wrong and the consequence of his getting it wrong was that those who relied on his wrong analysis did acts that were severe pain (meaning torture). His pen flowed to torture.

And the prosecutor could argue that Yoo was not mistaken out of "misfeasance" but rather "malfeasance" in that Yoo was working overtime to come up with narrowed rationalizations that would "protect" those below when they did acts that were in fact torture: he had the specific intent required for conspiracy to torture for example.

The prosecutor could bring in someone who for example tortured Murat Kurnaz and ask him to tell what he had done and whether he had been instructed to do that and by who etc and up the chain until you find where the Yoo memo was made operational (in an earlier post I talked about Kurnaz alleging having been hung from the ceiling in an aircraft hangar in Afghanistan for five days by his arms, being electrically shocked, having his head put underwater and punched in the stomach to make him inhale water. Also, cold and hot room stuff at Guantanamo.)

Working on Yoo's standard, the fact that they brought in a doctor every 6 hours to check if Murat Kurnaz was still in good enough shape to be hung up indicates to me that - even with the doctor saying the guy was OK -

a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ...

That lay person might not consider the damage "permanent" (Yoo's word sleight of hand) but enough to meet the standard of the statute cited by Yoo.

It is Yoo who then takes the step to push even the statute he is citing to an interpretation that permits torture. That was his choice and I presume that he had the specific intent to write the analysis that he did. That conduct is his actus reus and from conduct one can intimate mens rea - though I expect that from the collection of his work there may be further evidence that corroborates the mens rea.

What I expect is that Yoo will turn up at a DA's office someday with his lawyer and in exchange for immunity he will spill the beans. He is the one with the beans.

I am also worried that he will (as they use to say in Nigeria) have a car accident. Probably something dressed up like street crime with some Crip or Blood doing the dirty deed and being wasted in the ensuing gunfight by the police. Voila - no more Yoo problem for folks up the line. I would not wish that on anyone, but it is what I would not be surprised to find happens.

Time will tell.

Best,
Ben

4.2.2008 8:23pm

Yoo said this in the Esquire interview.

“The other thing I was quite conscious of was I didn’t want the opinion to be vague so that the people who actually have to carry these things out don’t have a clear line, because I think that would be very damaging and unfair to the people who are actually asked to do these things. The way I read what the department did two years later, was they just made the line blurry again. And -- you can have the dispute -- you can say I don’t think the line you’ve drawn is in the right place. That’s fine. But I think its not fair to say, which I think they did, which I feel -- people say its slapdash -- I think it’s not right when they say “I don’t want to be very clear.” Because that’s just people protecting their own backs. So …”

For me, he confirms his specific intent.
Best,
Ben

An example of one of the statutes he cites is below. The others were similar to this with none of the specific references to "permanent" "death" etc described above.

8 USC 1369 says this from what I can see

Sec. 1369. Treatment of expenses subject to emergency medical services exception

...

(d) "Emergency medical condition" defined For purposes of this section, the term "emergency medical condition" means a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in - (1) placing the patient's health in serious jeopardy,
(2) serious impairment to bodily functions, or
(3) serious dysfunction of any bodily organ or part.

(e) Effective date Subsection (a) of this section shall apply to medical assistance for care and treatment of an emergency medical condition furnished on or after January 1, 1997.

The relevant sections are

42 U.S.C § 1395w-22 (2000)(in particular 1395w-22(d)(3)(B)); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000).