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Insects, Torture, and Abu Zubaydah

Abu Zubaydah

Abu Zubaydah

Yesterday, the Department of Justice released four more previously-classified memoranda produced by the Office of Legal Cousel during the Bush Administration. The first memo, dated August 1, 2002, was requested by the Office of General Counsel at the CIA. which was seeking legal advice on ten specific interrogation techniques that were being contemplated for use against al Qaeda leader Abu Zubaydah. In essence, this memo, authored under the name of Jay Bybee, takes the logic of the infamous– and more general– Bybee Memorandum (also dated August 1, 2002)  and applies its logic to specifics. The techniques presented in the memo include some that have already been widely discussed, such as waterboarding, stress positions, sleep deprivation, and facial slap. But here is a curious one– insects placed in a confinement box.  The memo argues:

In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah. As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. If you do so, to ensure that you are outside the predicate act requirement, you must inform him that the insects will not have a sting that would produce death or severe pain. If, however, you were to place the insect in the box without informing him that you are doing so, then, in order to not commit a predicate act, you should not affirmatively lead him to believe that any insect is present which has a sting that could produce severe pain or suffering or even cause his death. [Redacted] so long as you take either of the approaches we have described, the insect’s placement in the box would not constitute a threat of severe physical pain or suffering to a reasonable person in his position.

Amazing. As will be recalled, the applicable provision of U.S. law, 18 U.S.C., sec. 2340 provides:

(1) “torture” means 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;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

To summarize:

First, as long as you tell him that the insect does not have a sting that  produce severe pain or death, you have not violated the specific intent element of torture.

Second, OR if you don’t say anything about the sting, you’re fine as long as you don’t lead him to believe that the insect would have a sting that could produce severe pain or suffering or death.

A couple of comments.

First, he is in a box!

Second, is Abu Zubaydah really going to believe anything US interrogators tell him while he is in a box into which insects have been introduced? Even if they tell him that the insect will not inflict pain or suffering, would not the mere presence of the insect does not consitute a threat to inflict noted in 2(B)?

Third, let’s step back– what is the intent of putting insects into a box containing Abu Zubaydah? Could any resonable person conclude that it is not to make him experience mental suffering? I know that the US law requires that the suffering be “prolonged” and limits it to the elements above. But couldn’t the introduction of insects be thought of as “other procedures calculated to disrupt profoundly the senses or personality”?  And if he had a fear of insects, wouldn’t a reasonable person conclude that the insect-in-abox experience might in fact have prolonged effects on him?

Fourth, it is always important to remember that while the U.S. law implimenting the Convention Against Torture has a very specific interpretation of mental pain and suffering, the actual Convention is not so restrictive.  Article I, paragraph 1 provides:

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

There is no requirement that mental pain and suffering be “prolonged” nor that it meet the specific requirements as defined about in section 2340 of the USC. So even if it could somehow be concluded that this method did not violate US law, it would violate a common sense reading of the actual Convention and thus put the United States in violation of its international legal obligations.

(HT: Thanks to Seth Bidder for bringing this section of the memo to my attention.)

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.