protect innocent persons and meet constitutional due process requirements.

Our proposed understanding encompasses conduct calculated to generate severe and prolonged mental suffering of the type which can properly be viewed as rising to the level of torture. As such, it properly condemns as torture intentional acts such as those designed to damage and destroy the human personality.

The package of reservations, understandings and declarations submitted to the committee earlier this month proposes five understandings concerning the definition of torture. Due to the questions which have arisen concerning the convention's effect on the use of the death penalty, a sixth understanding has in fact been added. The first understanding related to specific intent and severe mental harm I have already discussed. I would like to explain just briefly the reasons for the others.

The first of these provisions expresses the understanding that article 1 applies only to acts directed against persons in the offender's custody or physical control. This is intended to clarify the point that the convention does not apply to situations before custody is obtained.

The next understanding addresses the meaning of the term "sanctions" as used in article 1. It is designed to ensure that law enforcement actions undertaken consistent with statute or case law as opposed to just judicial orders are not interfered with by the convention unless such conduct clearly violates international law. This makes clear, for example, that the use of reasonable force to maintain order in a penal institution is not prohibited by the convention.

The next understanding addresses the term "acquiescence" and clarifies that to be culpable under the convention for activity constituting torture, the public official must have had prior awareness of such activity and must have breached his legal responsibility to intervene to prevent the activity. This understanding, we believe, is necessary to ensure that article 1 complies with the due process requirements of the Constitution. Of course, knowledge under our law includes not only actual knowledge such as when a superior actively directs or participates in the prohibited activity but also willful blindness; that is, the situation where the superior has a duty to prevent the misconduct and deliberately closes his eyes to what would otherwise have been obvious to him.

The next understanding relating to article 1 provides that noncompliance with applicable legal procedural standards does not per se constitute torture. It is intended to demonstrate that court orders suppressing evidence based on misaction by law enforcement agents in the United States do not in and of themselves establish the existence of torture.

In our judgment, the understandings are relevant and beneficial to all parties. Moreover, they can in no way be construed to benefit the public officials who are actually engaged in the practice of tor

ture.

With regard to article 3, extradition and deportation, this article will probably have the most day-to-day impact upon law enforcement activities in the United States. The United States does not

A

and, we trust, never would extradite or deport a person to a country where it is known that he would be subjected to torture.

Article 3 could, in conjunction with the broad definition of torture, cause major difficulties for the enforcement of our extradition and deportation laws unless the applicable standard is clearly enunciated and the definition is properly understood.

Article 3 places an obligation upon the competent authorities of the United States not to deliver an individual to a country where he would be tortured. Under our existing law, the competent authorities for ensuring the execution of this obligation are the Secretary of State for extradition and the Attorney General for deportation.

Because article 3 does not permit any discretion or provide for any exceptions, it is not completely analogous to current immigration law where withholding of deportation allows exceptions and the granting of asylum provides discretion for those who otherwise meet the threshold requirements.

Because of the lack of discretion and any exceptions, it is important that article 3 be properly understood. Our proposed understanding sets the appropriate standard in our judgment. The standard is comparable to that utilized under deportation, which is "more likely than not."

We have proposed a reservation applicable to article 16. That reservation would define our obligations under that article in terms of the cruel, unusual and inhumane treatment or punishment prohibited by the 5th, 8th and 14th amendments to the Constitution.

This concludes a summary of my prepared remarks, Mr. Chairman. I will be glad to answer any questions you may have at this time.

[The prepared statement of Mr. Richard follows:]

PREPARED STATEMENT OF MARK RICHARD

My name is Mark Richard. I am a Deputy Assistant Attorney General in the Criminal Division. It is a pleasure for me to appear before this committee today to testify in support of the Torture Convention and to explain the concerns the Department of Justice has with some of the provisions and how the proposed reservations, understandings and declarations address those concerns: My testimony will focus upon those articles of the Convention which raise law enforcement concerns, namely Articles 1, 3, and 16.

At the outset, I note with some pride that torture, as understood by most persons, committed by public officials does not often occur within this country and when, if it does, the Department of Justice is committed to seeing that appropriate prosecutions are instituted. As a people we have established constitutional safeguards to protect our inhabitants against wanton and willful violence by public officials. These constitutional protections are revered by our people and are guarded closely not only by our courts, through, for example, prohibiting the use of coerced confessions, but also by law enforcement agencies which conscientiously enforce criminal laws prohibiting assaults upon our person and our civil rights. Federal civil rights laws are especially vigorously enforced. Moreover, tort law in this country provides civil remedies to any person who may be physically abused by a public official. We fully support the worldwide effort to outlaw torture and to make its perpetrators international criminals subject to prosecution wherever they may be found.

Having said such, one might wonder why we found it necessary to propose a number of reservations, understandings, or declarations in regard to a well intended convention against torture. The basic problem with the Torture Convention-one which permeates all our concerns-is its imprecise definition of torture, especially as that term is applied to actions which result solely in mental anguish. This definitional vagueness makes it very doubtful that the United States can, consistent with Constitutional due process constraints, fulfill its obligation under the Convention to

adequately engraft the definition of torture into the domestic criminal law of the United States. Further, unless this definitional problem is addressed, the Torture Convention we fear will have the effect of fostering unwarranted litigation in numerous areas of law enforcement.

The potentially adverse impact of the definitional imprecision of the term torture is compounded when considered in the context of the international jurisdiction created by the Convention. The Convention places U.S. law enforcement officials, when traveling overseas, at risk of arrest and prosecution in foreign jurisdictions, or even extradition to a third country, for purported violations committed within the United States. Even when such a prosecution is well-intended, albeit perhaps misguided, the fact remains that the would be defendant law enforcement official will be subjected to trial under a definition which, viewed in light of U.S. Constitutional principles, is so imprecise as to raise the specter of fundamental unfairness. We believe that, in becoming a party to the Convention, the United States has an obligation to raise and if possible rectify this problem.

A related concern, flowing from the definitional problem, is that the Convention may be used by some unscrupulous foreign governments as a pretext for hostile actions against U.S. officials. Acts which have previously been viewed as hostagetaking may now be cloaked with an appearance of legitimacy under the Convention, thereby muting international condemnation and foreclosing avenues of potential solution. As a nation, our public officials routinely travel throughout the world. Moreover, this country's aggressive law enforcement response to the worldwide problems of terrorism and drug trafficking serves to place more of our public officials at risk. While we realize that no reservation, understanding, or declaration will by itself stop an outlaw nation intending to harm the United States, we should not be insensitive to the potential problems we may encounter.

Hopefully, the reservations, understandings, and declarations we have proposed will find acceptance in the international community and will favorably affect the evolution of the concept of torture under international law. We believe that they are reasonable and absolutely necessary to protect the legitimate efforts and interests of law enforcement in this country. They have been drafted to take into consideration and honor the valid concerns of those private individuals and groups who on a daily basis fight torture around the world. They have been crafted to protect the innocent, not to shield the guilty.

ARTICLE 1-THE DEFINITION

The Torture Convention defines torture as any act, other than one undertaken as part of a lawful sanction, “. . . by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as *** intimidating or coercing him or a third party, 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" (emphasis added).

While torture has been outlawed for many decades under the international law of war, the Torture Convention is one of the first international legal instruments to define the term. Until the last two decades, human rights practice lumped the concept of torture together with inhuman treatment and degrading treatment, all three of which were equally prohibited. None was defined and no distinction in sanction existed for a violation. For there to be a violation, only one of the three concepts (i.e., torture, inhuman treatment or degrading treatment) must have been infringed. The drafters of the Torture Convention, recognizing that torture is the most serious of the three concepts, decided to separate it from the two lesser forms of human rights misconduct. However, due to the historical treatment of torture as an indivisible part of a larger whole, the drafters of the Convention were forced to embark on a relatively uncharted course. In crafting a definition of the term torture, they had no significant body of international legal precedent on which to draw. As a result, it is perhaps not surprising that they settled on a relatively general definition. Torture is understood to be that barbaric cruelty which lies at the top of the pyramid of human rights misconduct.

As applied to physical torture, there appears to be some degree of consensus that the concept involves conduct the mere mention of which sends chills down one's spine: the needle under the fingernail, the application of electrical shock to the genital area, the piercing of eyeballs, etc. Techniques which inflict such excruciating and agonizing physical pain are recognized as the essence of torture. Hence, the Convention chose the word "severe" to indicate the high level of the pain required to support a finding of torture. Moreover, to constitute torture the action must be

done in a deliberate and calculated manner, or, to put it in customary United States legal terminology, it must be done with specific intent to inflict such a high level of pain. Therefore, insofar as physical pain is concerned, the boundaries of torture as defined by the Convention appear to have satisfactory clarity.

It is, however, in regard to the area of mental pain that the definition poses the greatest problem. Mental pain is by its nature subjective. Action that causes one person severe mental suffering may seem inconsequential to another person. Moreover, mental suffering is often transitory, causing no lasting harm.

One respected human rights treatise suggests that mental suffering sufficient to constitute torture can occur from a person's having been subjected to solitary confinement or insulting language or from having been forced to strip naked. Paul Sieghart, The International Law of Human Rights, Clarendon Press, Oxford, at 164. While other treaties and international law scholars argue persuasively that this characterization of torture is an overstatement, it does serve to demonstrate that there is presently no consensus or well defined body of international law concerning what degree of mental suffering is required to constitute torture. Accordingly, the Torture Convention's vague definition concerning the mental suffering aspect of torture cannot be resolved by reference to established principles of international law. In an effort to overcome this unacceptable element of vagueness in Article 1 of the Convention, we have proposed an understanding which defines severe mental pain constituting torture with sufficient specificity to protect innocent persons and meet Constitutional due process requirements. In formulating this understanding, we have drawn on international case law and treaties as well as on international law scholars. Our proposed understanding encompasses conduct calculated to generate severe and prolonged mental suffering of the type which can properly be viewed as rising to the level of torture. As such, it properly condemns as torture intentional acts such as those designed to damage and destroy the human personality. In contrast, it does not encompass the normal legal compulsions which are properly a part of the criminal justice system interrogation, incarceration, prosecution, compelled testimony against a friend, etc.-notwithstanding the fact that they may have the incidental effect of producing mental strain.

We have proposed five understandings concerning the definition of torture. The first-relating to specific intent and severe mental harm-I have already discussed. I would like to explain briefly the reasons for the other four.

The first of those provisions expresses the understanding that Article 1 applies only to acts directed against persons in the offender's custody or physical control. This is intended to clarify the point that the Convention does not apply to situations before custody is obtained, but rather comes into play when an individual has been subjected to the custody or control of a government official or agent acting on the official's behalf. Hence the rules relating to proportionality in the use of force in effecting an arrest and in self defense are essentially unaffected by the Convention, as those rules normally relate to actions occurring prior to a public official's having effected custody of the subject.

The next understanding addresses the meaning of the term "sanctions" as used in Article 1. It is designed to ensure that law enforcement actions undertaken consistent with statute or case law, as opposed to judicial order, are not interfered with by the Convention unless such conduct clearly violates international law. This makes clear that, for example, the use of reasonable force to maintain order in a penal institution is not prohibited by the Convention.

The next understanding addresses the term “acquiescence" and clarifies that, to be culpable under the Convention for activity constituting torture, the public official must have had prior awareness of such activity and must have breached his legal responsibility to intervene to prevent the activity. This understanding is necessary to ensure that Article 1 complies with the due process requirements of the Constitution. Further, the understanding reflects an intention that the criminal sanctions contained in the Convention for action constituting torture be focused on knowing misconduct as opposed to negligent inaction. Under our system of criminal law, serious misconduct of the type covered by the Convention requires that a defendant have had sufficient "knowledge" to be found guilty. Of course, knowledge under our law includes not only actual knowledge, such as when a superior actively directs or participates in the prohibited activity, but also willful blindness, that is the situation where the superior has a duty to prevent the misconduct and deliberately closes his eyes to what would otherwise have been obvious to him.

The final understanding relating to Article 1 provides that noncompliance with applicable legal procedural standards does not per se constitute torture. It is intended to demonstrate that court orders suppressing evidence based on misaction by law enforcement agents do not, in and of themselves, establish the existence of torture.

Most legal systems in the world do not have an exclusionary rule and, therefore, U.S. suppression rulings may be misconstrued by people in other countries. The potential for misunderstanding is particularly great because Article 1 of the Convention establishes an international exclusionary rule for any statement produced by torture. As a result, there may be a natural tendency for foreign judicial officials to equate U.S. suppression orders with a finding of torture. The understanding attempts to convey the idea that to determine whether torture occurred one must examine the facts that resulted in the suppression rather than merely relying on the fact of the suppression itself.

In our judgment the understandings are fair, relevant, and beneficial to all parties. Moreover, they can in no way be construed to benefit the public officials who actually engage in the practice of torture.

ARTICLE 3-EXTRADITION AND DEPORTATION

Article 3 is the article that will perhaps have the most day to day impact upon law enforcement activity in the United States. The United States does not, and we trust would never, extradite or deport a person to a country where it was known that he would be tortured. However, Article 3 could, in conjunction with a broad definition of torture, cause major difficulties for the enforcement of our extradition and deportation laws unless the applicable standard is clearly enunciated and the definition is properly understood.

There is no doubt that Article 3 places an obligation upon the competent authorities of the United States not to deliver an individual to a country where he would be tortured. Under our existing law, the "competent authorities" for ensuring the execution of this obligation are the Secretary of State for extradition and the Attorney General for deportation. Article 3 does not require that such determinations be made subject to judicial review. The determiners and the degree of review, if any, are left by the Convention to internal domestic law.

Because Article 3 does not permit any discretion or provide for any exceptions, it is not completely analogous to current immigration law where withholding of deportation allows exceptions (8 U.S.C. Sec. 1253(h)) and the granting of asylum provides discretion to those who meet the threshold requirements (8 U.S.C. Sec. 1158). In application, Article 3 would prevent a torturer from being sent back to a country which would repay him in kind for his misdeeds. Because of the lack of discretion and any exceptions, it is important that Article 3 be properly understood. Our proposed understanding sets the appropriate standard. The standard is comparable to that utilized under deportation (i.e., "more likely than not," 8 U.S.C. Sec. 1253(h)). See I.N.S. v. Stevic, 467 U.S. 407 (1984). Because there is no discretion under Article 3, the lower standard that exists for asylum (i.e., "well founded fear of prosecution," 8 U.S.C. Sec. 1158) is simply inappropriate. See I.N.S. v. Cardoza-Fonseca, U.S. (1987), 107 S.Ct. 1207.

ARTICLE 16-MEANING OF CRUEL, INHUMAN, OR DEGRADING

We have proposed a reservation applicable to Article 16. The reservation would define our obligations under that Article in terms of the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States. We have proposed this reservation because the terms "cruel, inhuman or degrading treatment or punishment" used in the Convention are vague and are not evolved concepts under international law. This is especially the case concerning the scope of what constitutes degrading treatment. Moreover, the little international case law that exists is based almost solely upon the conditions in certain Western European countries which may not always be analogous to or appropriate for the United States. On the other hand, the concept of cruel and unusual punishment under the United States Constitution is well developed, having evolved through court decisions over a period of 200 years. These standards are gleaned from various objective indicia of community values, including legislative and congressional judgments, sentences imposed by juries, prior case law, public opinion, and international practices. Hence, in our judgment, even with this 'modest reservation the United States will clearly remain a leader in the human rights field.

Judge Sofaer has discussed with you another understanding that the Administration wishes to propose to be included to the Torture Convention. Department of Justice supports this addition.

The CHAIRMAN. Thank you very much, indeed.