Coercion's common threads: addressing vagueness in the federal criminal prohibitions on torture by looking to state domestic violence laws.

• Author: St. Vincent, Sarah H.

Under international law, the United States is obligated to criminalize acts of torture and cruel, inhuman, or degrading treatment. However, the federal criminal torture laws employ several terms whose meanings are so indeterminate that they inhibit the statutes' effectiveness and fail to provide adequate guidance regarding precisely which forms of mistreatment may result in prosecution. These ambiguous terms have given rise to serious and prolonged controversies within the executive branch regarding what torture is--controversies that confirm, and may further compound, the uncertainty of liability under the laws in question.

In order to solve this problem of vagueness and provide definitive guidance to persons in control of detainees, the torture statutes should be revised to prohibit specific forms of mistreatment. This task may be accomplished in a straightforward and logically consistent manner by observing the commonalities between torture and domestic violence, a form of abuse American states have sought to eliminate by outlawing specific types of conduct. Torture and domestic violence constitute two manifestations of the same underlying behavioral phenomenon: the use of isolation, pain, and humiliation to create a sense of fear and helplessness in the victim, thereby increasing his or her willingness to comply with the abusive party's demands. After establishing this fundamental similarity, this Note proposes a prototype for a revised federal torture statute based upon state domestic violence laws.

TABLE OF CONTENTS INTRODUCTION I. VAGUE AND AMBIGUOUS LANGUAGE IN THE FEDERAL TORTURE STATUTES HAS CREATED INTRACTABLE LEGAL CONTROVERSIES A. The Terms Used to Define the Elements of the Crime of Torture Are Vague or Ambiguous 1. The War Crimes Act and the Torture Act. 2. The Detainee Treatment Act B. Prolonged Legal Controversies Confirm and Compound the Vagueness of the Statutes II. COERCIVE INTERROGATIONS AND DOMESTIC VIOLENCE: COMMON GROUND . A. Breaking the Will: Patterns of Coercion Used to Obtain Compliance During Interrogations . B. Coercion in Domestic Violence and Interrogations: A Shared Pattern III. OUTLAWING ABUSE: STATE DOMESTIC VIOLENCE LAWS AND THEIR IMPLICATIONS FOR A PROPOSED FEDERAL BAN ON SPECIFIC COERCIVE INTERROGATION TECHNIQUES A. Forms of Physical and Psychological Coercion Prohibited Under State Domestic Violence Laws B. A Revised Federal Statutory Prohibition of Torture and Cruel or Inhuman Treatment CONCLUSION INTRODUCTION

What is torture?

In 2004, in the midst of a heated internal debate regarding the legality of the use of particular techniques during the interrogations of counterterrorism detainees, the Justice Department's Office of Legal Counsel unequivocally declared that "[t]orture is abhorrent both to American law and values and to international norms." (1) Congress has long adhered to the same principle, consenting to the ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT")--a treaty that obligates state parties to criminalize all acts of torture under their domestic laws (2)--and adopting several statutes banning torture and providing for lengthy terms of imprisonment for persons convicted of this offense. (3) Yet, the question of which specific forms of detainee treatment should be regarded as criminally punishable acts of torture or cruel or inhuman treatment remains the subject of both legal and popular controversy in the United States. (4) This lack of clarity is only compounded by the federal criminal laws that purport to ban the practice of torture, none of which includes an explicit list of prohibited forms of detainee treatment. (5)

The legislative choice not to enumerate specific banned interrogation techniques or detention conditions is understandable: would-be torturers are creative, and the concern that they would inevitably be able to locate and exploit loopholes in any list of prohibited forms of treatment is a legitimate one. (6) Notably, CAT and the International Covenant on Civil and Political Rights ("ICCPR") adopt a similar approach, imposing blanket prohibitions on torture and cruel, inhuman, or degrading treatment without listing specific prohibited acts. (7) In its official commentary to the ICCPR, the Human Rights Committee has gone so far as expressly to reject the proposal that it provide a list of acts that constitute torture per se, stating tersely that it does not believe such an action is necessary. (8) A majority of scholars who have addressed the issue of torture under American domestic law appear to concur, restricting themselves to analyses of whether particular techniques qualify as torture under the laws as currently drafted, rather than suggesting that the laws themselves should be revised to clarify which specific forms of detainee treatment are illegal and which are not. (9)

However, as the Justice Department has explicitly acknowledged, (10) the federal provisions criminalizing torture currently employ several ambiguous terms to define the elements of the crime. At minimum, this vagueness inhibits the laws' ability to do what they were intended to do: effectively prevent torture, ensure that interrogations and detentions comply with the Constitution and treaty law, and--most importantly for the purposes of this analysis--provide adequate guidance to persons in control of detainees regarding which forms of mistreatment may lead to prosecution. (11) It is also possible that the statutes' facial ambiguity violates defendants' rights under the Due Process Clause of the Fifth Amendment, which requires the invalidation of a criminal statute if it "fails to provide a person of ordinary intelligence fair notice of what is prohibited." (12)

Evidence that the indeterminacy of key terms has undermined the efficacy of the criminal torture statutes may be seen in the prolonged and ongoing disputes within the government entities most responsible for complying with and enforcing them. (13) These legal controversies have involved such fundamental questions as, what constitutes torture? How should the ambiguous or unsettled terms used to describe the mens rea, actus reus, and result requirements in the criminal torture statutes be construed? Which forms of detainee treatment are permissible under the laws, and which are banned? Disputes regarding the answers to these questions have been continuing within the executive branch for three decades, and seem likely to prove intractable unless the texts of the laws are revised. (14)

Recently, a few legal commentators have begun to suggest that the laws should be amended to include more explicit parameters regarding permissible and prohibited types of detainee treatment. (15) This Note accepts their argument, and further suggests that the best approach to revising the torture statutes and addressing the problem of textual vagueness is to make changes based on state domestic violence laws. As demonstrated below, both coercive interrogations and domestic violence rely upon the same basic behavioral strategy: the use of isolation, physical pain, and psychological degradation to create a sense of helplessness and dependence in the victim, thereby obtaining his or her compliance with the interrogator's or abusive partner's demands. (16) The two forms of abuse are virtually identical in this key respect, and while clear differences remain where the particular nature of the relationship between the perpetrator and victim is concerned, these differences do not affect the analysis. (17)

It is therefore possible to look to state domestic violence laws in order to derive a list of specific acts that produce a degree of pain or suffering the American population finds to be morally intolerable when inflicted for the purpose of obtaining compliance. With some modifications, this list can then be incorporated into the statutes that govern detainee treatment. This framework offers a logically consistent solution to the problem of defining and outlawing torture in a manner that is unambiguous and comprehensive, and that provides adequate notice to persons in control of detainees regarding which forms of treatment may not be inflicted. It is also consistent with a gradual move within the legislative and executive branches toward specifying which interrogation methods are permitted and which are off-limits. (18)

The analysis in this Note focuses exclusively on persons in control of detainees and their ability to forecast with certainty which types of treatment may lead to criminal punishment for torture or cruel or inhuman treatment. It does not address any substantive rights to freedom from torture that a detainee may be able to assert under international or domestic law in a civil case, largely because the extent to which detainees held by the United States in various locations and under various statutory schemes enjoy constitutional or other protections remains unsettled. (19) It is also solely concerned with prospective liability, rather than the question of whether interrogation methods the United States has authorized and employed in the past should have been regarded as criminal acts of torture under the laws as they existed at the time.

Part I demonstrates that the federal laws criminalizing torture are so facially indeterminate that they have given rise to serious and intractable legal controversies regarding which particular forms of detainee treatment they prohibit. Part II describes the commonalities between coercive interrogations and domestic violence, establishing that the two types of abuse are simply context-specific manifestations of the same behavioral phenomenon. On the basis of these observations, Part HI draws upon state domestic violence laws in creating a revised federal torture statute that prohibits specific forms of mistreatment. While this prototype statute would require additional refinement prior to adoption, it...