Opinio Juris

Here is a key excerpt from pages 36-39 of the March 2003 "Torture" Memorandum:

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.

If there was one principal complaint about the torture memos, it would be about statutory construction. When critics ridicule the memos for equating torture with organ failure, they are doing so because they disagree with how the statute was interpreted.

So let's look at the use of statutory construction in defining torture, and especially the phrase "severe pain." It is worth noting that the memo relied on only two rules of statutory construction to define "severe pain." First it focused on plain meaning and cited dictionary definitions. Second, it used the rule of in pari materia, which says that when a statute is ambiguous its meaning may be determined in light of other statutes on the same subject. Much of the criticism has been on the misuse of the second rule, arguing that a statute about health benefits is not on the same subject as a statute about torture.

But little has been said of other rules of statutory construction that were ignored. I think it would be worthwhile to open up discussion and identify other rules of statutory construction that could (and arguably should) have been used in the torture analysis. Legislative intent is one obvious rule of construction. Avoidance of an unconstitutional interpretation is another. The Charming Betsy doctrine that would require the statute to be read consistent with international law is yet another. A fourth might be judicial interpretations (at home and abroad) of the Convention Against Torture. Previous interpretations of the statute would be a fifth. The rule of ejusdem generis is a sixth, which would have led to an interpretation of "severe" that could apply to both physical and mental pain. Are there others that come readily to mind? For example, is there any room to argue for Chevron deference or other rules of statutory construction?