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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).
'
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, . 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.

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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·