The Complete Bybee Torture Memo


The full text of the Bybee “Torture Memo” is presented as a public service by

The Bybee Torture Memo


The full text of the Bybee “Torture Memo” is presented as a public service by

Be sure to visit these pages of interest:

Introduction to Bybee Memo, an analysis by Human Rights First

The full text of the Downing Street Memo

The Real Heroes: Those who Resist- U.S. military resisters to Wars of aggression.

Pelosi, a look at how the West Coast “liberal” is watching Bush’s back.  She supports an extremist position on the Israel-Palestine.  Refuses to ask for an investigation into the Downing Street Memo and the issues it raises.  Refuses to endorse even a proposal to “request” (it should be a demand) that the troops be evacuated from Iraq, at some future time.  See it all here. 

Daniel Pipes, an advisor to President Bush, called for military aid to Saddam Hussein in a April 1987 article.  See it right here. 

And now the memo, a “roadmap for torture”

Written by Jay C. Bybee
Memorandum for Alberto R. Gonzales
Counsel to the PresidentRe. Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A

You have asked for our Office’s views regarding the standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340-2340A of title 18 of the United States Code. As we understand it, this question has arisen in the contex of the conduct of interrogations outside of the United States. We conclude below that Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture. We conclude by examining possible defenses that would negate any claim that certain interrogation methods violate the statute.

In Part I, we examine the criminal statue’s text and history. We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party. The legislative history simply reveals that Congress intended for the statute’s definition to track the Convention’s definition of torture and the reservations, understandings, and declarations that the United States submitted with its ratification. We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.

In Part II, we examine the text, ratification history, and negotiating history of the Torture Convention. We conclude that the treaty’s text prohibits only the most extreme [Page 2] acts by reserving criminal penalties solely for torture and declining to require such penalties for “cruel, inhuman, or degrading treatment or punishment.” This confirms our view that the criminal statute penalizes only the most egregious conduct. Executive branch interpretations and representations to the Senate at the time of ratification further confirm that the treaty was intended to reach only the most extreme conduct.

In Part III, we analyze the jurisprudence of the Torture Victims Protection Act, 28 U.S.C. §§ 1350 note (2000), which provides civil remedies for torture victims, to predict the standards that courts might follow in determining what actions reach the threshold of torture in the criminal context. We conclude from these cases that courts are likely to take at totality-of-the-circumstances approach, and will look to an entire course of conduct, to determine whether certain acts will violate Section 2340A. Moreover, these cases demonstrate that most often torture involves cruel and extreme physical pain. In Part IV, we examine international decisions regarding the use of sensory deprivation techniques. These cases make clear that while many of these techniques may amount to cruel, inhuman and degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.

In Part V, we discuss whether Section 2340A may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President’s Commander-in-Chief powers. We find that in the circumstances of the current war against al Qaeda and its allies, prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war. In Part VI, we discuss defenses to an allegation that an interrogation method might violate the statute. We conclude that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.

I. 18 U.S.C. §§ 2340-2340A

Section 2340A makes it a criminal offense for any person “outside the United States [to] commit[] or attempt[] to commit torture.”(1) Section 2340 defines the act of torture as an: [Go to page 3.]

[Footnote:] (1) If convicted of torture, a defendant faces a fine or up to twenty years’ imprisonment or both. If, however, the act resulted in the victim’s death, a defendant may be sentenced to life imprisonment or to death. See 18 U.S.C.A. §§ 2340A(a). Whether death results from the act also affects that applicable statute of limitations. Where death does not result, the statute of limitations is eight years; if death results, there is no statute of limitations. See 18 U.S.C.A. §§ 3286(b) (West Supp. 2002); id. §§ 2332b(g)(5)(B) (West Supp. 2002). Section 2340A as originally enacted did not provide for the death penalty as a punishment. See Omnibus Crime Bill, Pub. L. No. 103-322, Title VI, Section 60020, 108 Stat. 1979 (1994) (amending section 2340A to provide for the death penalty); H.R. Conf. Rep. No. 103-711, at 388 (1994) (noting that the act added the death penalty as a penalty for torture).

Most recently, the USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272 (2001), amended section 2340A to expressly codify the offense of conspiracy to commit torture. Congress enacted this amendment as part of a broader effort to ensure that individuals engaged in the planning of terrorist activities could be prosecuted irrespective of where the activities took place. See H.R. Rep. No. 107-236, at 70 (2001) [continued on Page 3] (discussing the addition of “conspiracy” as a separate offense for a variety of “Federal terrorism offense[s]”).

[Page 3] 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 with his custody or physical control.

18 U.S.C.A. §§ 2340(1); see id. §§ 2340A. Thus, to convict a defendant of torture, the prosecution must establish that (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering, and (5) that the act inflicted severe physical or mental pain or suffering. See also S. Exec. Rep. No. 101-30, at 6 (1990) (“For an act to be ‘torture,’ it must … cause severe pain and suffering, and be intended to cause severe pain and suffering.”) You have asked us to address only the elements of specific intent and the infliction of severe pain or suffering. As such, we have not addressed the elements of “outside the United States,” “color of law,” and “custody or control.” (2)  At your request, we would he happy to address these elements in a separate memorandum.

A. “Specifically Intended”

To violate Section 2340A, the statute requires that severe pain and suffering must be inflicted with specific intent. See 18 U.S.C. § 2340(1). In order for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act. See United States v. Carter, 530 U.S. 255, 269 (2000); Black’s Law Dictionary at 814 (7th ed. 1999) (defining specific intent as “[t]he intent to accomplish the precise criminal act that one is later charged with”). For example, in Ratzlaf v. United States, 510 U.S. 135, 141 (1994), the statute at issue was construed to require that the defendant act with the “specific intent to commit the crime.” (Internal quotation marks and citation omitted). As a result, the defendant had to act with the express “purpose to disobey the law” in order for the mens rea element to be satisfied. Ibid. (internal quotation marks and citation omitted)

Here, because Section 2340 requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant’s precise objective. If the statute had required only general intent, it would be sufficient to establish guilt by showing that the defendant “possessed knowledge with respect to the actus reus of the crime.” Carter, 530 U.S. at 268. If the defendant acted knowing that severe pain or [go to page 4]

[Footnote] (2) We note, however, that 18 U.S.C. § 2340(3) supplies a definition of the term “United States.” It defines it as “all areas under the jurisdiction of the United States including any of the places described in” 18 U.S.C. §§ 5 and 7, and in 49 U.S.C. § 46501(2). Section 5 provides that United States “includes all places and waters, continental or insular, subject to the jurisdiction of the United States.” By including the definition set out in Section 7, the term “United States” as used in Section 2340(3) includes the “special maritime and territorial jurisdiction of the United States.” Moreover, the incorporation by reference to Section 46501(2) extends the definition of the “United States” to “special aircraft jurisdiction of the United States.”


[Page 4] suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent. See id. at 269; Black’s Law Dictionary 813 (7th ed. 1999) (explaining that general intent “usu[ally] takes the form of recklessness (involving actual awareness of a risk and the culpable taking of that risk) or negligence (involving blameworthy inadvertence)”). The Supreme Court has used the following example to illustrate the difference between these two mental states:

[A] person entered a bank and took money from a teller at gunpoint, but deliberately failed to make a quick getaway from the bank in the hope of being arrested so that he would be returned to prison and treated for alcoholism. Though this defendant knowingly engaged in the acts of using force and taking money (satisfying “general intent”), he did not intend permanently to deprive the bank of its possession of the money (failing to satisfy “specific intent”).

Carter, 530 U.S. at 268 (citing 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.5, at 315 (1986)).

As a theoretical matter, therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent. As the Supreme Court explained in the context of murder, “the … common law of homicide distinguishes … between a person who knows that another person will be killed as a result of his conduct and a person who acts with the specific purpose of taking another’s life[.]” United States v. Bailey, 444 U.S. 394, 405 (1980). “Put differently, the law distinguishes actions taken ‘because of’ a given end from actions taken in spite of their unintended but foreseen consequences.” Vacco v. Quill, 521 U.S. 793, 802-03 (1997). Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control. While as a theoretical matter such knowledge does not constitute specific intent, juries are permitted to infer from the factual circumstances that such intent is present. See, e.g., United States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001); United States v. Karro, 257 F.3d 112, 118 (2d Cir. 2001); United States v. Wood, 207 F.3d 1222, 1232 (10th Cir. 2000); Henderson v. United States, 202 F.2d 400, 403 (6th Cir. 1953). Therefore, when a defendant knows that his actions will produce the prohibited result, a jury will in all likelihood conclude that the defendant acted with specific intent.

Further, a showing that an individual acted with a good faith belief that his conduct would not produce the result that the law prohibits negates specific intent. See, e.g., South Atl. Lmtd. Ptrshp. of Tenn. v. Riese, 218 F.3d 518, 531 (4th Cir. 2002). Where a defendant acts in good faith, he acts with an honest belief that he has not engaged in the proscribed conduct. See Cheek v. United States, 498 U.S. 192, 202 (1991); United States v. Mancuso, 42 F.3d 836, 837 (4th Cir. 1994). For example, in the context of mail fraud, if an individual honestly believes that the material transmitted is truthful, he has not acted with the required intent to deceive or mislead. See, e.g., United States v. Sayakhom, 186 [Page 5] F.3d 928, 939-40 (9th Cir. 1999). A good faith belief need not be a reasonable one. See Cheek, 498 U.S. at 202.

Although a defendant theoretically could hold an unreasonable belief that his acts would not constitute the actions prohibited by the statute, even though they would as a certainty produce the prohibited effects, as a matter of practice in the federal criminal justice system it is highly unlikely that a jury would acquit in such a situation. Where a defendant holds an unreasonable belief, he will confront the problem of proving to the jury that he actually held that belief. As the Supreme Court noted in Cheek, “the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury … will find that the Government has carried its burden of proving” intent. Id. at 203-04. As we explained above, a jury will be permitted to infer that the defendant held the requisite specific intent. As a matter of proof, therefore, a good faith defense will prove more compelling when a reasonable basis exists for the defendant’s belief.

B. “Severe Pain or Suffering”

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) (“This Court has noted on numerous occasions that in all cases involving statutory construction, our starting point must be the language employed by Congress, … and we assume that the legislative purpose is expressed by the ordinary meaning of the words used.”) (internal quotations and citations omitted). 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 text provides that 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 United States 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. § 1395w-22 (2000); id. § 1395x (2000); id. § [Page 6] 1395dd (2000); id. § 1396b (2000); id. § 1396u-2 (2000). These statutes define an emergency condition as one “manifesting itself by acute symptoms of sufficient security (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 “severe pain,” as used in Section 2340, must rise to a similarly high level — the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions — in order to constitute torture. (3)

C. “Severe Mental Pain or Suffering”

Section 2340 gives further guidance as to the meaning of “severe mental pain or suffering,” as distinguished from severe physical pain and suffering. The statute defines “severe mental pain or suffering” as:

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 [go to Page 7]

[Footnote] (3)  One might argue that because the statute uses “or” rather than “and” in the phrase “pain or suffering” that “severe physical suffering” is a concept distinct from “severe physical pain.” We believe the better view of the statutory text is, however, that they are not distinct concepts. The statute does not define “severe mental pain” and “severe mental suffering” separately. Instead, it gives the phrase “severe mental pain or suffering” a single definition. Because “pain or suffering” is single concept for the purposes of “severe mental pain or suffering,” it should likewise be read as a single concept for the purposes of severe physical pain or suffering. Moreover, dictionaries define the words “pain” and “suffering” in terms of each other. Compare, e.g., Webster’s Third New International Dictionary 2284 (1993) (defining suffering as “the endurance of … pain” or “a pain endured”); Webster’s Third New International Dictionary 2284 (1986) (same); XVII The Oxford English Dictionary 125 (2d ed. 1989) (defining suffering as “the bearing or undergoing of pain”); with, e.g., Random House Webster’s Unabridged Dictionary 1394 (2d ed. 1999) (defining “pain” as “physical suffering”); The American Heritage Dictionary of the English Language 942 (College ed. 1976) (defining pain as “suffering or distress”). Further, even if we were to read the infliction of severe physical suffering as distinct from severe physical pain, it is difficult to conceive of such suffering that would not involve severe physical pain. Accordingly, we conclude that “pain or suffering” is a single concept within the definition of Section 2340.


[Page 7] (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.

18 U.S.C. § 2340(2). In order to prove “severe mental pain or suffering,” the statute requires proof of “prolonged mental harm” that was caused by or resulted from one of four enumerated acts. We consider each of these elements.

1. “Prolonged Mental Harm”

As an initial matter, Section 2340(2) requires that severe mental pain must be evidenced by “prolonged mental harm.” To prolong is to “lengthen in time” or to “extend the duration of, to draw out.” Webster’s Third New International Dictionary 1815 (1988); Webster’s New International Dictionary 1980 (2d ed. 1935). Accordingly, “prolong” adds a temporal dimension to the harm to the individual, namely, that the harm must be one that is endured over some period of time. Put another way, the acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage. For example, the mental strain experienced by an individual during a lengthy and intense interrogation — such as one that state or local police might conduct upon a criminal suspect — would not violate Section 2340(2). On the other hand, the development of a mental disorder such as posttraumatic stress disorder, which can last months or even years, or even chronic depression, which also can last for a considerable period of time if untreated, might satisfy the prolonged harm requirement. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 426, 439-45 (4th ed. 1994) (“DSM-IV”). See also Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477, 509 (1997) (noting that posttraumatic stress disorder is frequently found in torture victims); cf. Sana Loue, Immigration Law and Health § 10:46 (2001) (recommending evaluating for post-traumatic stress disorder immigrant-client who has experienced torture). (4)  By contrast to “severe pain,” the phrase “prolonged mental harm” appears nowhere else in the U.S. Code nor does it appear in the relevant medical literature or international human rights reports.

[Footnote] (4)  The DSM-IV explains that posttraumatic disorder (“PTSD”) is brought on by exposure to traumatic events, such as serious physical injury or witnessing the deaths of others and during those events the individual felt “intense fear” or “horror.” Id. at 424. Those suffering from this disorder reexperience the trauma through, inter alia, “recurrent and intrusive distressing recollections of the event,” “recurrent distressing dreams of the event,” or “intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.” Id. at 428. Additionally, a person with PTSD “[p]ersistent[ly]” avoids stimuli associated with the trauma, including avoiding conversations about the trauma, places that stimulate recollections about the trauma; and they experience a numbing of general responsiveness, such as a “restricted range of affect (e.g., unable to have loving feelings),” and “the feeling of detachment or estrangement from others.” Ibid. Finally, an individual with PTSD has “[p]ersistent symptoms of increased arousal,” as evidenced by “irritability or outbursts of anger,” “hypervigilance,” “exaggerated startle response,” and difficulty sleeping or concentrating. Ibid.


Page 8] Not only must the mental harm be prolonged to amount to severe mental pain and suffering, but also it must be caused by or result from one of the acts listed in the statute. In the absence of a catchall provision, the most natural reading of the predicate acts listed in Section 2340(2)(A)-(D) is that Congress intended it to be exhaustive. In other words, other acts not included within Section 2340(2)’s enumeration are not within the statutory prohibition. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (“Expressio unius est excluio alterius.”); Norman Singer, 2A Sutherland on Statutory Construction § 47.23 (6th ed. 2000) (“[W]here a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.”) (footnotes omitted). We conclude that torture within the meaning of the statute requires the specific intent to cause prolonged mental harm by one of the acts listed in Section 2340(2).

A defendant must specifically intend to cause prolonged mental harm for the defendant to have committed torture. It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered prolonged mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute. The statute requires that the defendant specifically intend to inflict severe mental pain or suffering. Because the statute requires this mental state with respect to the infliction of severe mental pain, and because it expressly defines severe mental pain in terms of prolonged mental harm, that mental state must be present with respect to prolonged mental harm. To read the statute otherwise would read the phrase “the prolonged mental harm caused by or resulting from” out of the definition of “severe mental pain or suffering.”

A defendant could negate a showing of specific intent to cause severe mental pain or suffering by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute. Thus, if a defendant has a good faith belief that his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture. A defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience. See, e.g., Ratzlaf, 510 U.S. at 142 n.10 (noting that where the statute required that the defendant act with the specific intent to violate the law, the specific intent element “might be negated by, e.g., proof that defendant relied in good faith on advice of counsel.”) (citations omitted). All of these steps would show that he has drawn on the relevant body of knowledge concerning the result proscribed that [by] the statute, namely prolonged mental harm. Because the presence of good faith would negate the specific intent element of torture, it is a complete defense to such a charge. See, e.g., United States v. Wall, 130 F.3d 739, 746 (6th Cir. 1997); United States v. Casperson, 773 F.2d 216, 222-23 (8th Cir. 1985).

[Page 9] 2. Harm Caused by or Resulting from Predicate Acts

Section 2340(2) sets forth four basic categories of predicate acts. First in the list is the “intentional infliction or threatened infliction of severe physical pain or suffering.” This might at first appear superfluous because the statute already provides that the infliction of severe physical pain or suffering can amount to torture. This provision, however, actually captures the infliction of physical pain or suffering when the defendant inflicts physical pain or suffering with general intent rather than the specific intent that is required where severe physical pain or suffering alone is the basis for the charge. Hence, this subsection reaches the infliction of severe physical pain or suffering when it is but the means of causing prolonged mental harm. Or put another way, a defendant has committed torture when he intentionally inflicts severe physical pain or suffering with the specific intent of causing prolonged mental harm. As for the acts themselves, acts that cause “severe physical pain or suffering” can satisfy this provision.

Additionally, the threat of inflicting such pain is a predicate act under the statute. A threat may be implicit or explicit. See, e.g., United States v. Sachdev, 279 F.3d 25, 29 (1st Cir. 2002). In criminal law, courts generally determine whether an individual’s words or actions constitute a threat by examining whether a reasonable person in the same circumstances would conclude that a threat had been made. See, e.g., Watts v. United States, 394 U.S. 705, 708 (1969) (holding that whether a statement constituted a threat against the president’s life had to be determined in light of all the surrounding circumstances); Sachdev, 279 F.3d at 29 (“a reasonable person in defendant’s position would perceive there to be a threat, explicit, or implicit, of physical injury”); United States v. Khorrami, 895 F.2d 1186, 1190 (7th Cir. 1990) (to establish that a threat was made, the statement must be made “in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm upon [another individual]”) (citation and internal quotation marks omitted); United States v. Peterson, 483 F.2d 1222, 1230 (D.C. Cir. 1973) (perception of threat of imminent harm necessary to establish self-defense had to be “objectively reasonable in light of the surrounding circumstances”). Based on this common approach, we believe that the existence of a threat of severe pain or suffering should be assessed from the standpoint of a reasonable person in the same circumstances.

Second, Section 2340(2)(B) provides that prolonged mental harm, constituting torture, can be caused by “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.” The statute provides no further definition of what constitutes a mind-altering substance. The phrase “mind-altering substances” is found nowhere else in the U.S. Code nor is it found in dictionaries. It is, however, a commonly used synonym for drugs. See, e.g., United States v. Kingsley, 241 F.3d 828, 834 (6th Cir.) (referring to controlled substances as “mind-altering substance[s]”) cert. denied, 122 S.Ct. 137 (2001); Hogue v. Johnson, 131 F.3d 466, 501 (5th Cir. 1997) (referring to drugs and alcohol as “mind-altering substance[s]”), cert. denied, 523 U.S. 1014 (1998). In addition, the phrase appears in a number of state statutes, and the context [Page 10] in which it appears confirms this understanding of the phrase. See, e.g., Cal. Penal Code § 3500(c) (West Supp. 2000) (“Psychotropic drugs also include mind-altering … drugs. …”); Minn. Stat Ann. § 260B201(b) (West Supp. 2002) (“‘chemical dependency treatment’” define as programs designed to “reduc[e] the risk of the use of alcohol, drugs, or other mind-altering substances”).

This subparagraph, however, does not preclude any and all use of drugs. Instead, it prohibits the use of drugs that “disrupt profoundly the senses or the personality.” To be sure, one could argue that this phrase applies only to “other procedures,” not the application of mind-altering substances. We reject this interpretation because the terms of Section 2340(2) expressly indicate that the qualifying phrase applies to both “other procedures” and the “application of mind-altering substances.” The word “other” modifies “procedures calculated to disrupt profoundly the senses.” As an adjective, “other” indicates that the term or phrase it modifies is the remainder of several things. See Webster’s Third New International Dictionary 1598 (1986) (defining “other” as “the one that remains of two or more”) Webster’s Ninth New Collegiate Dictionary 835 (1985) (defining “other” as “being the one (as of two or more) remaining or not included”). Or put another way, “other” signals that the words to which it attaches are of the same kind, type, or class as the more specific item previously listed. Moreover, where statutes couple words or phrases together, it “denotes an intention that they should be understood in the same general sense.” Norman Singer, 2A Sutherland on Statutory Construction § 47:16 (6th ed. 2000); see also Beecham v. United States, 511 U.S. 368, 371 (1994) (“That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well.”). Thus, the pairing of mind-altering substances with procedures calculated to disrupt profoundly the senses or personality and the use of “other” to modify “procedures” shows that the use of such substances must also cause a profound disruption of the senses or personality.

For drugs or procedures to rise to the level of “disrupt[ing] profoundly the senses or personality,” they must produce an extreme effect. And by requiring that they be “calculated” to produce such an effect, the statute requires for liability the defendant has consciously designed the acts to produce such an effect. 28 U.S.C. § 2340(2)(B). The word “disrupt” is defined as “to break asunder; to part forcibly; rend,” imbuing the verb with a connotation of violence. Webster’s New International Dictionary 753 (2d ed. 1935); see Webster’s Third New International Dictionary 656 (1986) (defining disrupt as “to break apart: Rupture” or “destroy the unity or wholeness of”); IV The Oxford English Dictionary 832 (1989) (defining disrupt as “[t]o break or burst asunder, to break in pieces; to separate forcibly”). Moreover, disruption of the senses or personality alone is insufficient to fall within the scope of this subsection; instead, that disruption must be profound. The word “profound” has a number of meanings, all of which convey a significant depth. Webster’s New International Dictionary 1977 (2d ed. 1935) defines profound as: “Of very great depth; extending far below the surface or top; unfathomable[;] … [c]oming from, reaching to, or situated at a depth or more than ordinary depth; not superficial; deep-seated; chiefly with reference to the body; as a profound sigh, wound, or pain[;] … [c]haracterized by intensity, as of feeling or quality; deeply felt or realized; as, profound respect, fear, or melancholy; hence, encompassing; [Page 11] thoroughgoing; complete; as, profound sleep, silence, or ignorance.” See Webster’s Third New International Dictionary 1812 (1986) (“having very great depth: extending far below the surface … not superficial”). Random House Webster’s Unabridged Dictionary 1545 (2d ed. 1999) also defines profound as “originating in or penetrating to the depths of one’s being” or “pervasive or intense; thorough; complete” or “extending, situated, or originating far down, or far beneath the surface.” By requiring that the procedures and the drugs create a profound disruption, the statute requires more than that the acts “forcibly separate” or “rend” the senses or personality. Those acts must penetrate to the core of an individual’s ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality.

The phrase “disrupt profoundly the senses or personality” is not used in mental health literature nor is it derived from elsewhere in U.S. law. Nonetheless, we think the following examples would constitute a profound disruption of the senses or personality. Such an effect might be seen in a drug-induced dementia. In such a state, the individual suffers from significant memory impairment, such as the inability to retain any new information or recall information about things previously of interest to the individual. See DSM-IV at 134. 5  This impairment is accompanied by one or more of the following: deterioration of language function, e.g., repeating sounds or words over and over again; impaired ability to execute simple motor activities, e.g., inability to dress or wave goodbye; “[in]ability to recognize [and identify] objects such as chairs or pencils” despite normal visual functioning; or “[d]isturbances in executive level functioning,” i.e., serious impairment of abstract thinking. Id. at 134-35. Similarly, we think that the onset of “brief psychotic disorder” would satisfy this standard. See id. at 302-03. In this disorder, the individual suffers psychotic symptoms, including among other things, delusions, hallucinations, or even a catatonic state. This can last for one day or even one month. See id. We likewise think that the onset of obsessive-compulsive disorder behaviors would rise to this level. Obsessions are intrusive thoughts unrelated to reality. They are not simple worries, but are repeated doubts or even “aggressive or horrific impulses.” See id. at 418. The DSM-IV further explains that compulsions include “repetitive behaviors (e.g., hand washing, ordering, checking)” and that “[b]y definition, [they] are either clearly excessive or are not connected in a realistic way with what they are designed to neutralize or prevent.” See id. Such compulsions or obsessions must be “time-consuming.” See id. at 419. Moreover, we think that pushing someone to the brink of suicide, particularly where the person comes from a culture with strong taboos against suicide, and it is evidenced by acts of self-mutilation, would be a sufficient disruption of the personality to constitute a “profound disruption.” These examples, of course, are in no way intended to be exhaustive list. Instead, they are merely intended to [Go to Page 12]

[Footnote] (5) Published by the American Psychiatric Association, and written as a collaboration of over a thousand psychiatrists, the DSM-IV is commonly used in U.S. courts as a source of information regarding mental heath issues and is likely to be used in trial should charges be brought that allege this predicate act. See, e.g., Atkins v. Virginia, 122 S.Ct. 2242, 2245 n.3 (2002); Kansas v. Crane, 122 S.Ct. 867, 871 (2002); Kansas v. Hendricks, 521 U.S. 346, 359-60 (1997); McClean v. Merrifield, No. 00-CV-0120E(SC), 2002 WL 1477607 at *2 n.7 (W.D.N.Y. June 28, 2002); Peeples v. Coastal Office Prods., 203 F. Supp.2d. 432, 439 (D. Md. 2002); Lassiegne v. Taco Bell Corp., 202 F. Supp.2d 512, 519 (E.D. La. 2002).


[Page 12] illustrate the sort of mental health effects that we believe would accompany an action severe enough to amount to one that “disrupt[s] profoundly the senses or the personality.”

The third predicate act, listed in Section 2340(2) is threatening a prisoner with “imminent death.” 18 U.S.C. § 2340(2)(C). The plain text makes clear that a threat of death alone is insufficient; the threat must indicate that death is “imminent.” The “threat of imminent death” is found in the common law as an element of the defense of duress. See Bailey, 444 U.S. at 409. “[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States, 342 U.S. 246, 263 (1952). Common law cases and legislation generally define imminence as requiring that the threat be almost immediately forthcoming. 1 Wayne R. LaFave & Austin W. Scott, Jr, Substantive Criminal Law § 5.7, at 655 (1986). By contrast, threats referring vaguely to things that might happen in the future do not satisfy this immediacy requirement. See United States v. Fiore, 178 F.3d 917, 923 (7th Cir. 1999). Such a threat fails to satisfy this requirement not because it is too remote in time but because there is a lack of certainty that it will occur. Indeed, timing is an indicator of certainty that the harm will befall the defendant. Thus, a vague threat that someday the prisoner might be killed would not suffice. Instead, subjecting a prisoner to mock executions or playing Russian roulette with him would have sufficient immediacy to constitute a threat of imminent death. Additionally, as discussed earlier, we believe that the existence of a threat must be assessed from the perspective of a reasonable person is the same circumstances.

Fourth, if the official threatens to do anything previously described to a third party, or commits such an act against a third party, that threat or action can serve as the necessary predicate for prolonged mental harm. See 18 U.S.C. § 2340(2)(D). The statute does not require any relationship between the prisoner and the third party,

3. Legislative History

The legislative history of Sections 2340-2340A is scant. Neither the definition of torture nor these sections as a whole sparked any debate. Congress criminalized this conduct to fulfill U.S. obligations under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 (entered into force June 26, 1987), which requires signatories to “ensure that all acts of torture are offenses under its criminal law.” CAT art. 4. These sections appeared only in the Senate version of the Foreign Affairs Authorization Act, and the conference bill adopted them without amendment. See H. R. Conf. Rep. No. 103-482, at 229 (1994). The only light that the legislative history sheds reinforces what is already obvious from the texts of Section 2340 and CAT: Congress intended Section 2340’s definition of torture to track the definition set forth in CAT, as elucidated by the United States’ reservations, understandings, and declarations [Page 13] submitted as part of its ratification. See S. Rep. No. 103-107, at 58 (1993) (“The definition of torture emanates directly from article 1 of the Convention.”); id. at 58-59 (“The definition for ‘severe mental pain and suffering’ incorporates the understanding made by the Senate concerning this term.”).

4. Summary

Section 2340’s definition of torture must be read as a sum of these component parts. See Argentine Rep. v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-35 (1989) (reading two provisions together to determine statute’s meaning); Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399, 405 (1988) (looking to “the language and design of the statute as a whole” to ascertain a statute’s meaning). Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another, but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result. If that pain or suffering is psychological, that suffering must result from one of the acts set forth in the statute. In addition, these acts must cause long-term mental harm. Indeed, this view of the criminal act of torture is consistent with the term’s common meaning. Torture is generally understood to involve “intense pain” or “excruciating pain,” or put another way, “extreme anguish of body or mind.” Black’s Law Dictionary at 1498 (7th Ed. 1999); Random House Webster’s Unabridged Dictionary 1999 (1999); Webster’s New International Dictionary 2674 (2d ed. 1935). In short, reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts.(6) [Go to Page 14]

[Footnote] (6) Torture is a term also found in state law. Some states expressly proscribe “murder by torture.” See, e.g., Idaho Code § 18-400I (Michie 1997); N.C. Gen. Stat. Ann. § 14-17 (1999); see also Me. Rev. Stat. Ann. tit. 17-A, § 152-A (West Supp. 2001) (aggravated attempted murder is “[t]he attempted murder … accompanied by torture, sexual assault or other extreme cruelty inflicted upon the victim”). Other states have made torture an aggravating factor supporting imposition of the death penalty. See, e.g., Ark. Code Ann. § 5-4-604(8)(B); Del. Code Ann. tit. 11, § 4209(c)(1)(l) (1995); Ga. Code Ann. § 17-10-30(b)(7) (1997);; 720 Ill. Comp. Stat. Ann. 5/9-1(b)(14) (West Supp. 2002); Mass. Ann. Laws ch. 279, § 69(a) (Law. Co-op. 1992); Mo. Ann. Stat. § 565.032(2)(7) (West 1999); Nev. Rev. Stat. Ann. 200-033(8) (Michie 2001); N.J. Stat. Ann. § 2C:11-3 (West Supp. 2002) (same); Tenn. Code Ann. § 39-13-204(i)(5) (Supp. 2001); see also Alaska Stat. § 12.55.125(a)(3) (2000) (term of 99 years’ imprisonment mandatory where defendant subjected victim to “substantial physical torture”). All of these laws support the conclusion that torture is generally an extreme act far beyond the infliction of pain or suffering alone.

California law is illustrative on this point. The California Penal Code not only makes torture itself an offense, see Cal. Penal Code § 206 (West Supp. 2002), it also prohibits murder by torture, see Cal. Penal Code § 189 (West Supp. 2002), and provides that torture is an aggravating circumstance supporting the imposition of the death penalty, see Cal. Penal Code § 190.2 (West Supp. 2002). California’s definitions of torture demonstrate that the term is reserved for especially cruel acts inflicting serious injury. Designed to “fill a gap in existing law dealing with extremely violent and callous criminal conduct[,]” People v. Hale, 88 Cal. Rptr. 2d 904, 913 (1999) (internal quotation marks and citation omitted). Section 206 defines the offense of torture as:

[e]very person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily [continued on Page 14] injury … upon the person of another, is guilty of torture, The crime of torture does not require any proof that that victim suffered pain.

(Emphasis added). With respect to sections 190.2 and 189, neither of which are statutorily defined, California courts have recognized that torture generally means an “[a]ct or process of inflicting severe pain esp[ecially] as a punishment to extort confession, or in revenge … Implicit in that definition is the requirement of an intent to cause pain and suffering in addition to death.” People v. Barrera, 18 Cal. Rptr. 2d 395, 399 (Ct. App. 1993) (quotation marks and citation omitted). Further, “murder by torture was and is considered among the most reprehensible types of murder because of the calculated nature of the acts causing death.” Id. at 403 (quoting People v. Wiley, 133 Cal. Rptr. 135, 138 (1976) (in bank)). The definition of murder by torture special circumstance, proscribed under Cal. Penal Code § 190.2, likewise shows an attempt to reach the most heinous acts imposing pain beyond that which a victim suffers through death alone. To establish murder by torture special circumstance, the “intent to kill, intent to torture, and infliction of an extremely painful act upon a living victim” must be present. People v. Benmore, 94 Cal. Rptr. 2d 840, 861 (2000). The intent to torture is characterized by a “‘sadistic intent to cause the victim to suffer pain in addition to the pain of death.’” Id. at 862 (quoting People v. Davenport, 221 Cal. Rptr. 794, 875(1985)). Like the Torture Victim Protection Act and the Convention Against Torture, discussed infra at Parts II and III, each of these California prohibitions against torture require an evil intent — such as cruelty, revenge or even sadism. Section 2340 does not require this additional intent, but as discussed supra pp. 2-3, requires that the individual specifically intended to cause severe pain or suffering. Furthermore, unlike Section 2340, neither section 189 nor section 206 appear to require proof of actual pain to establish torture.


[Page 14]


II. U.N. Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.

Because Congress enacted the criminal prohibition against torture to implement CAT, we also examine the treaty’s text and history to develop a fuller understanding of the context of Sections 2340-2340A. As with the statute, we begin our analysis with the treaty’s text. See Eastern Airlines Inc. v. Floyd, 499 U.S. 530, 534-35 (1991) (“When interpreting a treaty, we begin with the text of the treaty and the context in which the written words are used.) (quotation marks and citations omitted). CAT defines torture as:

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.

Article 1(1) (emphasis added). Unlike Section 2340, this definition includes a list of purposes for which such pain and suffering is inflicted. The prefatory phrase “such purposes as” makes clear that this list is, however, illustrative rather than exhaustive. Accordingly, severe pain or suffering need not be inflicted for those specific purposes to constitute torture; instead, the perpetrator must simply have a purpose of the same kind. [Page 15] More importantly, like Section 2340, the pain and suffering must be severe to reach the threshold of torture. Thus, the text of CAT reinforces our reading of Section 2340 that torture must be an extreme act.(7)

CAT also distinguishes between torture and other acts of cruel, inhuman, or degrading treatment or punishment.(8)  Article 16 of CAT requires state parties to “undertake to prevent … other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1.” (Emphasis added). CAT thus establishes a category of acts that are not to be committed and that states must endeavor to prevent, but that states need not criminalize, leaving those acts without the stigma of criminal penalties. CAT reserves criminal penalties and the stigma attached to those penalties for torture alone. In so doing, CAT makes clear that torture is at the farthest end of impermissible actions, and that it is distinct and separate from the lower level of “cruel, inhuman, or degrading treatment or punishment.” This approach is in keeping with CAT’s predecessor, the U.N. Declaration on the Protection from Torture. That declaration defines torture as “an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.” Declaration on Protection from Torture, UN Res. 3452, Art. 1(2) (Dec. 9, 1975). [Continued on Page 16]

[Footnote] (7) To be sure, the text of the treaty requires that an individual act “intentionally.” This language might be read to require only general intent for violations of the Torture Convention. We believe, however, that the better interpretation is that the use of the phrase “intentionally” also created a specific intent-type standard. In that event, the Bush administration’s understanding represents only an explanation of how the United States intended to implement the vague language of the Torture Convention. If, however, the Convention established a general intent standard, then the Bush understanding represents a modification of the obligation undertaken by the United States.

[Footnote] (8)  Common article 3 of Geneva Convention on prisoners of war, Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3517 (“Geneva Convention III”) contains somewhat similar language. Article 3(1)(a) prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” (Emphasis added). Article 3(1)(c) additionally prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment.” Subsection (c) must forbid more conduct than that already covered in subsection (a) otherwise subsection (c) would be superfluous. Common article 3 does not, however, define either of the phrases “outrages upon personal dignity” or “humiliating and degrading treatment.” International criminal tribunals, such as those respecting Rwanda and former Yugoslavia have used common article 3 to try individuals for committing inhuman acts lacking any military necessity whatsoever. Based on our review of the case, law, however, these tribunals have not yet articulated the full scope of conduct prohibited by common article 3. Memorandum for John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, from James C. Ho, Attorney-Advisor, Office of Legal Counsel, Re: Possible Interpretations of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (Feb. 1, 2002).

We note that Section 2340A and CAT protect any individual from torture. By contrast, the standards of conduct established by common Article 3 of Convention III do not apply to “an armed conflict between a nation-state and a transnational terrorist organization.” Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees at 8 (Jan. 22, 2002).


[Page 16]

A. Ratification History

Executive branch interpretation of CAT further supports our conclusion that the treaty, and thus Section 2340A, prohibits only the most extreme forms of physical or mental harm. As we have previously noted, the “division of treaty-making responsibility between the Senate and the President is essentially the reverse of the division of law-making authority, with the President being the draftsman of the treaty and the Senate holding the authority to grant or deny approval.” Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. O.L.C. 28, 31 (Apr. 9, 1987) (“Sofaer Memorandum”). Treaties are negotiated by the President in his capacity as the “sole organ of the federal government in the field of international relations.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). Moreover, the President is responsible for the day-to-day interpretation of a treaty and retains the power to unilaterally terminate a treaty. See Goldwater v. Carter, 617 F.2d 697, 707-08 (D.C Cir.) (en banc) vacated and remanded with instructions to dismiss on other grounds, 444 U.S. 996 (1979).  The Executive’s interpretation is to be accorded the greatest weight in ascertaining a treaty’s intent and meaning. See, e.g., United States v. Stuart, 489 U.S. 353, 369 (1989) (“‘the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight’”) (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982)); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (“While courts interpret treaties for themselves, the meaning given them by the department of government particularly charged with their negotiation and enforcement is given great weight.”); Charlton v. Kelly, 229 U.S. 447, 468 (1913) (“A construction of a treaty by the political departments of the government, while not conclusive upon a court …, is nevertheless of much weight.”).

A review of the Executive branch’s interpretation and understanding of CAT reveals that Congress codified the view that torture included only the most extreme forms of physical or mental harm. When it submitted the Convention to the Senate, the Reagan administration took the position that CAT reached only the most heinous acts. The Reagan administration included the following understanding:

The United States understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering.

S. Treaty Doc. No. 100-20, at 4-5. Focusing on the treaty’s requirement of “severity,” the Reagan administration, concluded, “The extreme nature of torture is further emphasized in [this] requirement.” S. Treaty Doc. No. 100-20, at 3 (1988); S. Exec. Rep. 101-30, at 13 (1990). The Reagan administration also determined that CAT’s definition of torture fell in line with “United States and international usage, [where it] is usually reserved for extreme deliberate and unusually cruel practices, for example, sustained systematic beatings, application, of electric currents to sensitive parts of the body and tying up or hanging in positions that cause extreme pain.” S. Exec. Rep. No. 101-30, at [<strong


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