Bush Secret Torture Memo – Text – Part 2/5

[johnkarls]

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Footnote 14 = See also Alberico Gentili, 2 De lure Belli Libri Tres 22 (1612) (Johne. Rolfe translation 1933) ("malefactors do not enjoy the privileges of a law to which they are foes"); E. de Vattel, 3 The Law of Nations or the Principles of Natural Law 318 (1758) (Charles G. Fenwick translation 1916) ("The troops alone carry on the war and the rest of the people remain at peace.... f the peasantry commit of their own accord any acts of hostility, the enemy treats them without mercy, and hangs them as he would robbers or brigands."); Sir Robert Phillimore, 3 Commentaries Upon International Law 164 (2d ed. 1873) (listing "ands of marauders, acting without the authority of the Sovereign or the order of the military commander," "[d]eserters," and "[s]pies" as examples of unlawful belligerents who "have no claim to the treatment of prisoners of War"); Sir G. Sherston Baker, 1 Halleck's International Law 614-17 (4th ed. 1908) (noting distinction between lawful and unlawful belligerency and concluding unlawful combatants are "not entitled to the mitigated rules of modern warfare"); Pasquale Fiore, International Law Codified, § 1459, at 548 (1918) ("Any act of hostility, any armed violence against the person or property of the hostile. sovereign or state and of its citizens, even though legitimate under the laws of war, shall be deemed unlawful and punishable according to 'common' law, if committed by one who is not properly a belligerent."); id. § 1475, at 552 ("Armed bands committing hostile acts in time of war by engaging in operations on their own account and without authorization of the Government and, when necessary, concealing their identity as combatants, cannot invoke the application of the laws of war nor be recognized as belligerents."
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The United States Supreme Court has recognized the important distinction between lawful and unlawful combatants.· As the Supreme Court unanimously stated 60 years ago, "y universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful. and unlawful combatants." Ex parte Quirin, 317 U.S. 1,30-31 1942) (emphasis added).

Under traditional practice as expressed in the customary laws of war, the treatment of unlawful belligerents is left to the sovereign's discretion. As one commentator has stated, the treatment of "unprivileged belligerents ... [is] left to the discretion of the belligerent threatened by their activities." Julius Stone, Legal Controls of International Conflict 549 (1954). Under our Constitution, the sovereign right of the United States on the treatment of enemy combatants is reserved to the President as Commander-in-Chief. In light of the long history of discretion given to each nation to determine its treatment of unlawful combatants, to construe these statutes to regulate the conduct of the United States toward such combatants would interfere with a well established prerogative of the sovereign. While the Geneva Convention (TIl) Relative to the Treatment of Prisoners of War, Aug. 12,1949, 6 U.S.T. 3316, T.I.A.S. 3364 ("GPW"), imposes restrictions on the interrogations of prisoners of war, it does not provide prisoner of war status to those who are unlawful combatants. See Treaties and Laws Memorandum at 8-9. Those restrictions therefore would not apply to the interrogations of unlawful belligerents such as al Qaeda or Taliban members.

The second exception recognized by the Supreme Court arises where the application of general laws to a government official would create absurd results, such as effectively preventing the official from carrying out his duties. In Nardone, the Supreme Court pointed to "the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm" as examples of such absurd results. Nardone, 302 U.S. at 384. See also United States v. Kirby, 74 U.S. (7 Wall.) 482, 486-,-87 (1868) (holding that statute punishing obstruction of mail did not apply to an officer's temporary detention of mail caused by his arrest of the carrier for murder).. In those situations and others, such as undercover investigations of narcotics trafficking, the government officer's conduct would constitute a literal violation of the law. And while "[g]ovemment law enforcement efforts frequently require the literal violation of facially applicable statutes[,] ... courts have construed prohibitory laws as inapplicable when a public official is engaged in the performance of a necessary public duty." 'Memorandum for Maurice C. Inman, Jr., General Counsel, Immigration and Naturalization Service, from Larry L. Simms, Deputy Assistant Attorney General, Office of' Legal Counsel, Re:. Visa Fraud Investigation at 2 (Nov: 20, 1984). Indeed, to construe such statutes otherwise would undermine almost all undercover investigative efforts: See also id. For the reasons we explain above, the application of these general laws to the conduct of the military during the course of a war would create untenable results.

Like the canon of construction against the application of general criminal statutes to the conduct of the military during war, this canon of construction is not absolute. The rule excluding the sovereign is only one of construction. It may be overcome where the legislative history or obvious policies of the statue demonstrate that the sovereign and its officers should be included. With respect to assault, maiming; or interstate stalking, no such history or obvious legislative policy indicates an intention to regulate lawful military 'activities in an armed conflict. Although the torture statute, as. we explain below, applies to persons acting under color of law, the legislative history indicates no intent to apply this to the conduct of military personnel. Indeed, as we explained in discussing the prerogative of the sovereign, it is well established that the sovereign retains the discretion to treat unlawful combatants as it sees fit.

4. Specific Governs the General

The canon of construction that specific statutes govern general statutes also counsels that generally applicable criminal statutes should not apply to the military's conduct of interrogations in the prosecution of a war. Where a specific statute or statutory scheme has been enacted, it and not a more general enactment will govern. See, e.g., Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Here, the UCMJ provides a detailed regulatory regime for the conduct of military personnel apart from the federal criminal code. Congress enacted the UCMJ pursuant to its constitutional authority "[t]o make Rules for the government and Regulation of the land and naval Forces." U.S. Const. art. I, sec. 8, cl. 14. As the specific code of conduct, the DCMJ governs the conduct of the military during a war, not the general federal criminal laws.

The Military Extraterritorial Jurisdiction Act makes clear that it is the UCMJ - not the criminal code - that governs the conduct of the members of the Armed Forces. As explained above, 18 U.S.C. §326l(d) ensures that the military punishes and disciplines its members. To be sure; section 3261(a)(1) provides that members of the Armed Forces may be punished for conduct that would constitute a felony if committed in the special maritime and territorial jurisdiction. But section 3261(d) precludes the prosecution of such persons in an Article ill court; with only two exceptions: (l) where an individual is' ho longer a member of the Armed Forces, though he was a member at the time of the offense the individual; and (2) where the member committed the offense with someone who was not a member of the Armed Forces.

It could be argued that Congress specifically enacted section 3261 to extend special maritime and territorial jurisdiction crimes to the members of the Armed Forces and those accompanying or employed by them. Such a contention would, however, be incorrect. Nothing in that provision, or its legislative history suggests an intention to impose general criminal liability on the military for properly-authorized acts undertaken in the prosecution of a war. Rather, the legislative history reveals a desire to ensure that when persons accompanying or employed by the Armed Forces, acting solely in their personal capacity, commits a felony, they can be punished for those crimes.

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Footnote 15 = Congress enacted the Military Extraterritorial Jurisdiction Act of 2000 to fill a jurisdictional gap. In a series of cases, the Supreme Court held that the Constitution barred the military from trying civilians accompanying the military in military courts during peacetime. See, e.g., Reid v. Covert, 354 U.S. 1 (1957). Because of these decisions, and the frequent failure of other nations to prosecute such individuals, persons employed by or accompanying the Armed Forces outside the United States often escaped prosecution for crimes committed on bases or against other U.S. nationals. See Military Extraterritorial Jurisdiction Act of2000, H. Rep. No. 106-778(I), at lO-11 (July 20,2000). See also H. R. Rep. No. 106-1048, at120 (2001); United States v. Gatlin, 216 F.3d 207, 209 (2d Cir. 2000). Though this gap was long recognized, see Gatlin, 216 F.3d at 208-09, it was not until 2000 that Congress closed it.
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We therefore be1ieve that this canon of construction, as with the others outlined above, supports our conclusion that the statutes outlined in this opinion, with the exception of the war crimes statute, do not govern the properly authorized interrogation of enemy combatants during an armed conflict.

5. Application of the Canons of Construction

The assault, maiming; interstate stalking, and torture statutes discussed below are generally applicable criminal prohibitions, applying on their faces to ''whoever'' engages in the Conduct they proscribe. 18 U.S.C. § 113; id. § 114; id. § 2261A; id. § 2340A. Each of the canons outlined above counsels against the application of these statutes to the conduct of the military during war. As we explained above, the application of these statutes to the President's conduct of the war would potentially infringe upon his power as Commander in Chief. Furthermore, the conduct at issue here--interrogations-is a core element of the military's ability to prosecute a war. As a general matter, we do not construe generally applicable criminal statutes to reach the conduct of the military during a war. Moreover, the application of these statutes to the conduct of the military during war would touch upon a prerogative of the sovereign, namely its discretion regarding the treatment of unlawful belligerents.

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Footnote 16 = We emphasize that this opinion concerns the application of these statutes solely to the President's conduct of a war. We express no opinion as to their applicability outside of this context.
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Congress has not provided a clear statement with respect to any of these statutes that would suggest that these canons of construction do not apply. Additionally, as we explained above, the UCMJ provides a specific statutory scheme that governs the conduct of the military and as the more specific enactment it governs here.

To be sure, section 2340 applies to individuals who are acting ''under color of law." 18 U.S.C. § 2340(1). As such, it applies to governmental actors and it could be argued that Congress enacted it with the intention of restricting the ability of the Armed Forces to interrogate enemy combatants during an armed conflict. We believe that these canons of construction. nevertheless counsel against the application of this statute to the conduct of the military during the prosecution of a war. As we explained above; applying this statute to the President's conduct of the war would raise grave separation of powers concerns. Such a construction is unnecessary to give effect to the criminal prohibition.. Though we believe that the statute would not apply to the conduct of the military during the prosecution of a war,. it would reach the conduct of other governmental actors in peace time. We further note that where Congress intends to apply statutes to the conduct of our military it has done so far more clearly than by requiring the individuals act "under color of law." For example, the War Crimes Statute, 18 U.S.C. § 2441 applies to the conduct "any member of the Armed Forces of the United States." 18 U.S.C. § 2441 (b). Moreover, here, it is the UCMJ, a specific statutory scheme, that governs the conduct of the Armed Forces rather than this general statute.

6. Commander-in-Chief Authority

Even if these statutes were misconstrued to apply to persons acting at the direction of the President during the conduct of war, the Department of Justice could not enforce this law or any of the other criminal statutes applicable to the special maritime and territorial jurisdiction against federal officials acting pursuant to the President's constitutional authority to direct a war. Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute w6uld be unconstitutional as applied in this context. This approach is consistent with previous decisions of our Office involving the application. of federal criminal. law. For example, we have previously construed the congressional contempt statute not to apply to executive branch officials who refuse to comply with Congressional subpoenas because of an assertion of executive privilege. In a published 1984 opinion, we concluded:

"[l1f executive officials were subject to prosecution for criminal contempt whenever they carried out the President's claim of executive privilege, it would significantly burden and immeasurably impair the President's ability to fulfill his constitutional duties. Therefore, the separation of powers principles that underlie the doctrine of executive privilege also would preclude an application of the contempt of Congress statute to punish officials for aiding the President in asserting his constitutional privilege."

Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted A Claim of Executive Privilege, 8 Op. O.L.C. 101, 134(1984). Cf Shoot Down Memorandum at 163-64. And should the statute not be construed in this manner, our Office concluded that the Department of Justice could not enforce the statute against federal officials who properly execute the President's constitutional authority. "The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for. asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual." 8 Op. O.L.C. at 141: We opined that "courts ... would surely conclude that a criminal prosecution for the' exercise of a presumptively valid, constitutionally based privilege is not consistent with the Constitution." Id.

We have even greater concerns with respect to prosecutions arising out of the exercise of the President's express authority as Commander in Chief than we do with prosecutions arising out of the assertion of executive privilege. Any effort of Congress to regulate the interrogation of enemy combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President. There can be little doubt that intelligence operations, such as the detention and interrogation of enemy combatants and leaders, are both necessary and proper for the effective conduct of a military campaign. Indeed, such operations may be' of more importance in a war with an international terrorist organization than one with the conventional armed forces of a nation-state, due to the former's emphasis on covert operations and surprise attacks against civilians. It may be the case that only successful interrogations can provide the information necessary to prevent future attacks upon the United States and its citizens. Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so' too are laws' that would prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.

B. Special Maritime and Territorial Jurisdiction of the United States

1. Jurisdiction

Before turning to the specific federal criminal statutes that may be relevant to the conduct of interrogations, we must. examine whether these statutes apply. Federal criminal statutes generally do not apply within the special maritime and territorial jurisdiction of the United states. See United States v. Bowman, 260 U.S. 94, 98 (1922). As noted above, this opinion addresses solely those alien enemy combatants held outside the United States. The application of federal criminal laws to the conduct of interrogations overseas is determined by the complex interaction of 18 U.S.C.A. § 7 (2000 & West Supp. 2002) and 18 U.S.C. § 3261 (2000), which is part of the Military Extraterritorial Jurisdiction Act of 2000, Pub. L. No.1 06-523, 114 Stat. 2488 (2001). Section 7 defines the term "special maritime and territorial jurisdiction," which we conclude includes permanent U.S. military bases outside the United States, like the U.S. Naval Station, Guantanamo Bay ("GTMO"). Section 3261 defines military extraterritorial jurisdiction. We conclude that all persons who are neither members of the Armed Forces nor persons accompanying or employed by the Armed Forces are subject to the special maritime and territorial jurisdiction of the United States when they are in locations that Section 7 defines as part of that jurisdiction. Members of the Armed Forces and persons accompanying or employed by them, however, are subject to a slightly different rule. Members of the Armed Forces are subject to military discipline under the UCMJ anyplace outside the United States for conduct that would constitute a felony if committed within the special maritime and territorial jurisdiction of the United States. Those accompanying or employed by the Armed Forces can be prosecuted in an Article ill court for their conduct outside the United States that would constitute a felony offense if committed within the special maritime and territorial jurisdiction of the United States. Finally, members of the Armed Forces and those accompanying or employed by the military are punishable for misdemeanor offenses in an Article ill court when they commit such offenses within the special maritime and territorial jurisdiction of the United States.

As a general matter, GTMO and other U.S. military bases outside the United States fall within the special maritime and territorial jurisdiction of the United States.

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Footnote 17 = The United States occupies GTMO under a lease entered into with the Cuban Government in 1903..Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations, Feb. 16-23, 1903, U.S. Cuba, art. III, T.S. No. 418, 6 Bevans 1113. In 1934, the United States and Cuba entered into a new treaty that explicitly reaffirmed the continuing validity of the 1903 Lease of Lands Agreement. See Relations With Cuba, May 29,1934, U.S.-Cuba, T.S. No. 866, 6 Bevans 1161.
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Section 7(9) of Title 18 of the U.S. Code provides, in relevant part, that the special maritime and territorial jurisdiction of the United States includes:

"offenses committed by or against a national of the United States .., on the premises of United States ... military ... missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of' those missions or entities, irrespective of ownership." 18 U.S.C.A. § 7(9)(A).

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Footnote 18 = The USA PATRIOT Act, Pub. L. No.107-56,g804, 115 Stat. 272, 377 (2001) amended the special maritime jurisdiction statute to include subsection 9. Congress added this section to resolve a circuit split on the reach of section 7(3), which provides that the special maritime and territorial jurisdiction of the United States includes "[a]ny lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same sh2.11 be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building." 18 U.S.C. § 7(3). There was some question as to whether section 7(3) reached lands outside of United States territory. Compare United States v. Gatlin, 216 F.3d 207(2d Cir. 2000) (section 7(3) applies only to land acquired within U.S. territorial borders) with United States v. Erdos, 474 F.2d 157 (4th Cir. 1973) (section 7(3} covers American Embassy in Equatorial Guinea). See Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT Act of 2001, H.R. Rep. No. 107-236, pt. 1; at 74 (2001) (noting the circuit split and that "[t]his [sub]section would make it clear that embassies and embassy housing of the United States in foreign states are included in the special maritime and territorial jurisdiction of the United States."
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By its terms, this section applies to GTMO and other U.S. military bases in foreign states, although no court has interpreted the scope of section 7(9)'s reach.

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Footnote 19 = We express no opinion as to the full scope of the meaning of subsection (9)'s phrase "military... missions or entities in foreign states." We simply note that it is clear that permanent U.S. military bases such as the one at GTMO fall within subsection (9).
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Section 7(9) further provides that it "does not apply with respect to an offense committed by a person described in" 18 U.S.C. § 3261(a). Persons described in section 3261(a) are those "employed by or accompanying the Armed Forces outside the United States" or "member[s] of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice)," who engage in "conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States[.r Id. The interaction of section 7(9) and section 3261(a) in effect differentiates between three classes of persons: (1) all persons who are neither members of the Armed Forces nor persons accompanying or employed by the Armed Forces; (2) members of the Armed Forces subject to the UCMJ; (3) those persons employed by or accompanying the Armed Forces.

First, those persons who are neither members of the Armed Forces nor are employed by or accompanying the Armed Forces are subject to prosecution for violations of federal criminal law when they are at a location that is included within the special maritime and territorial jurisdiction. Conversely, when the acts in question are committed outside of the special maritime and territorial jurisdiction, these individuals are not subject to those federal criminal laws. So, for example,· a federal, non-military officer who is conducting interrogations in a foreign location, one that is not on a permanent U.S. military base or diplomatic establishment, would not be subject to the federal criminal laws applicable in the special maritime and territorial jurisdiction.

The rules that apply to the second and third classes of persons are more complicated. Section 7(9), in conjunction with 18 U.S.C. § 3261, provides that members of the Armed Forces subject to the UCMJ are not within the special maritime and territorial jurisdiction when they, while outside the United States, engage in conduct that would constitute a felony if committed within the special maritime and territorial jurisdiction. Section 3261(a) exempts such persons, however, only if their conduct constitutes a felony. If they were to commit a misdemeanor offense while stationed at GTMO, they would fall outside section 3261(a)'s exception and would be subject to the special maritime and territorial jurisdiction. See 18 U.S.C. § 3261(a).

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Footnote 20 = Under 18 U.S.C. § 3559(a), any offense for which the maximum sentence is more than one year is defined as a felony. Offenses for which the maximum sentence is one year or less are classified as misdemeanors. See 18 U.S.C. § 3559(a) (2000).
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Section 7(9), in conjunction with 18 U.S.C. § 3261, likewise provides that those persons employed by or. accompanying members of the Armed Forces subject to the UCMJ are not within the special maritime and territorial jurisdiction of the United States when they, while outside the United States, engage in conduct that would constitute a felony if committed within the special maritime and territorial jurisdiction.

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Footnote 21 = The term "accompanying the Armed Forces outside the United States" is further defined by statute. Section 3267 defines accompanying the Armed Forces outside the United States" as:
(A) A dependent of(i) a member of the Armed Forces; (ii) a civilian employee of the Department Of Defense (including a nonappropriated fund
instrumentality of the Department); or (iii) a Department of Defense contractor (including a subcontractor at any tier) or an employee ofa Department of Defense contractor (including a subcontractor at any tier);
(B) residing with such member, civilian employee, contractor, or contractor employee outside the United States; and
(C) not a national of, or ordinarily resident in, the host nation.
18 U.S.C. § 3267 (2000). "Likewise, the statute also defines "employed by the Armed forces." Section 3267(1) provides that this term includes those persons:
(A) employed as a civilian employee of the Department of Defense (including a nonappropriated fund instrumentality of the Department), as a Department of Defense contractor (including a subcontractor at any tier), or as an employee of a Department of Defense contractor (including a
subcontractor at any tier);
(B) present or residing outside the United States in connection with such employment; and
(C) not a national of, or ordinarily resident in, the host nation.
Id.
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And, like members of the Armed Forces, if such persons commit a misdemeanor offense while in an area that falls within the special maritime and territorial jurisdiction, they are within the special maritime and territorial jurisdiction.

Although these two classes of persons are not within the special maritime and territorial jurisdiction when they engage in conduct that would constitute a felony if engaged in within the special maritime and territorial jurisdiction, they are in fact punishable for such conduct when they are outside the United States -- whether they are in an area that is otherwise part of the special maritime and territorial jurisdiction or elsewhere outside the United States, such as in a foreign state. Section 3261 (a) provides that when such persons are outside the United States and they engage in conduct that would be a felony if committed in the special maritime and territorial jurisdiction, those persons "shall be punished as provided for that offense." 18 U.S.C. § 3261(a). Section 3261(a) therefore gives extraterritorial effect to the criminal prohibitions applicable to the special maritime and territorial jurisdiction of the United States. Thus, with respect to interrogations, members of the Armed Forces and those employed by or accompanying the Armed Forces will be subject to the felony criminal prohibitions that apply in the special maritime and territorial jurisdiction irrespective of whether the interrogations occur at, for example, a U.S. military base or at the military facilities of a foreign state.

Although members of the Armed Forces are to be punished for conduct that would constitute a felony if committed in the special maritime and territorial jurisdiction, they can only be prosecuted under the UCMJ for that conduct. Section 3261 prohibits the prosecution of members of the Armed Forces under the laws applicable to the special maritime and territorial. For persons who are members of the Armed Forces subject to the UCMJ, section 3261(d) provides that "no prosecution may be commenced against" them ''under section 3261(a)." 18 U.S.C. § 3261(d).

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Footnote 22 = Section 3261 ensures that the military can prosecute its members under the UCMJ. Section 3261 (c) makes clear that neither section 3261 (d)'s bar nor any other portion of the statute precludes proceeding against persons covered by section 3261(a) in a military commission. It provides that "[n]othing in this chapter may be construed to deprive a court-martial, military commission, provost court, or other military tribunal of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by a court-martial, military commission, provost court, or other military tribunal." 18 U.S.C. § 3261(d).
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Section 3261(d) is subject to two exceptions. First, the bar (on prosecutions applies only so long as the member continues to be subject to the UCMJ. See 18 U.S.C. § 3261 (d)(1). Second, if "an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject" to the UCMJ, the bar does not apply. 18 U.S.C. § 3261(d)(2). In limited circumstances, namely in time of war, persons employed by or accompanying the Armed Forces are subject to the UCMJ. See 10 U.S.C. § 802 (a)(II) (2000) (providing that "persons serving with, employed by, or accompanying the armed forces outside the United States" are subject to the UCMJ); Reid v. Covert, 354 U.S. 1 (1957).

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Footnote 23 = Although in construing 10 U.S.C. § 802(a)(I0), which provides that persons subject to the UCMJ includes "n time of war, persons serving with or accompanying an armed force in the field," we opined that "in time of war" meant both declared and undeclared wars, we found that due to ambiguity in the case law we could not predict whether the Court. of Military Appeals or the Supreme Court would agree with our reading of the phrase. See Memorandum for William J. Haynes, TI, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, Re: Possible Criminal Charges Against American Citizen Who Was a Member of the Al Qaeda Terrorist Organization or the Taliban Militia at 18 (Dec. 21, 2001). Additionally, we note that with respect to meaning of the term "employed by. or accompanying the Armed Forces," we have construed those terms to have essentially the same meaning as that which 18U.S.C. § 3267 provides. Specifically, we have opined that . "the phrase 'employed by or accompanying' is a well understood reference to civilian employees ·of the military establishment and to the dependents of military personnel" Memorandum for Fred M. Vinson, Jr., Assistant Attorney General, Criminal Division from Frank M. Wozencraft, Assistant Attorney General, Office of Legal Counsel, Re: H.R. //244, A Bill To Amend Title /8 of the United States Code to Give United States District Courts Jurisdiction of Certain Offenses Committed by Americans Outside The United States. And for Other Purposes (Aug. 23,1967). It is, however, unclear whether the meaning of "employed by the armed forces" for purposes of the UCMJ extends to Department of Defense contractors as does section 3267.
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If the indictment charged that such persons committed the offense in wartime with members of the Armed Forces subject to the UCMJ, this bar on prosecution would not be removed for the member. The indictment would, for example, have to charge that the member of the Armed Forces committed the offense with, for example, a government official not subject to the UCMJ (and not physically accompanying the Armed Forces in the field) to survive.

2. Criminal Statutes Applicable in the Special Maritime and Territorial Jurisdiction of the United States

Because the interaction of 18 U.S.C. § 7 and 18 U.S.C. § 3261(a) renders the criminal statutes that apply in special maritime and territorial jurisdiction applicable to the conduct of members of the Armed Forces, and those accompanying or employed by the Armed Forces, we have examined below the criminal statutes that could conceivably cover interrogation conduct. Specifically, we have addressed: assault, 18 U.S.C.§ 113; maiming, 18 U.S.C. § 114; and interstate stalking, 18 U.S.C. § 2261A. Of course, as we explained above, various canons of construction preclude the application of these laws to authorized military interrogations of alien enemy combatants during wartime.

a. Assault

Section 113 of Title 18 proscribes assault within the special maritime and territorial jurisdiction of the United States.

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Footnote 24 = 18 U.S.C. § 113 provides in full:
(a) Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows:
(1) Assault with intent to commit murder, by imprisonment for not more than twenty years.
(2) Assault with intent to commit any felony, except murder or a felony under chapter 109A, by a fine under this title or imprisonment for not more than ten years, or both.
(3) Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by a fine under this title or imprisonment for not more than ten years, or both.
(4) Assault by striking, beating, or wounding, by a fine under this title or imprisonment for not more than six months, or both.
(5) Simple assault, by a fine under this title or imprisonment for not more than six months, or both, or if the victim of the assault is an individual who has not attained the age of 16 years, by fine under this title or imprisonment for not more than I year, or both.
(6) Assault resulting in serious bodily injury, by a fine under this title or imprisonment for not more than ten years, or both.
(7) Assault resulting in substantial bodily injury to an individual who has not attained the age of 16 years, by fine under this title or imprisonment for not more than 5 years, or both.
(b) As used in this subsection
(1) the term "substantial bodily injury" means bodily injury which involves.
(A) a temporary but substantial disfigurement; or
(B) a temporary but substantial loss. or impairment of tbe function of any bodily member, organ, or mental faculty; and .
(2) the term "serious bodily injury" has the meaning given that term in section 13(i5 of this title.
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Although section 113 does not define assault, courts have construed the term "assault" in accordance with its common law meaning. See, e.g., United States v. Estrada-Fernandez, 150 F.3d 491, 494 n.1 (5th Cir. 1998); United States v. Juvenile-Male, 930 F.2d 727, 728 (9thCif; 1991). At common law, an assault is an attempted battery or an act that puts another person in reasonable apprehension of bodily harm. See, e.g., United States v. Bayes, 210 F.3d 64, 68 (lst Cir. 2000). Section 113, as we explain below, sweeps more broadly than the. common law definition of simple assault and sweeps within its ambit acts that would at common law constitute battery. We analyze below each form of assault section 113 proscribes.

First, we begin with the least serious form of assault: simple assault, which section 1l3(a)(5) proscribes.

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Footnote 25 = Simple assault carries a penalty of not more than six months' imprisonment, a fine, or both. If, however, the victim under age 16, the defendant faces a penalty of up to one year's imprisonment, a fine, or both. See 18 U.S.C. § 113(a)(5).
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This form of assault includes attempted battery. See, e.g., United States v. Dupree, 544 F.2d 1050 (9th Cir. 1976).

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Footnote 26 = As the Seventh Circuit has exJ5lained, this latter type of assault is drawn from tort law. See United States v. Bell, 505 F.2d 539,540-41 (7th Cir. 1974). See also LaFave at 746 (same).
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Courts have employed various formulations of what constitutes an attempted battery. By the far most common formulation is that attempted battery is "a willful attempt to inflict injury upon the person of another." United States v. Fallen, 256 F.3d 1082, 1088 (11 th Cir. 2001), cert. denied, 534 U.S. 1170 (2002). See United States v. McCulligan, 256 F.3d 97, 102-03 (3d Cir. 2001) (same); Juvenile Male, 930 at 728 (same). An assault at common law does not require actual physical contact. If the defendant does make such contact, it does not preclude a charge of simple assault. See Dupree, 544 F.2d at 1052 ("[A]n assault is an attempted battery and proof of a battery will support conviction of assault"); Cf Bayes, 210 F.3d at 69 ("in a prosecution for simple assault ... , it is sufficient to show that the defendant deliberately touched another in a patently offensive manner without justification or excuse"). The attempted battery form of assault is, like all other forms of attempt, a specific intent crime. See Wayne R. Lafave and Austin W. Scott, Jr., Substantive Criminal Law § 7.16, at 312 (1986) ("Lafave & Scott"). Thus, the defendant must have specifically intended to commit a battery - i.e., he must have specifically intended to "to cause physical injury to the victim." See id: Some courts construe that physical injury to extend to offensive touchings. An offensive touching can be anything from attempting to spit on someone to trying to touch someone's buttocks. See Bayes, 210 F.3d at 69; United States v. Frizzi,491 F.2d 1231, 1232 (1st Cir. 1974). See also United States v. Whitefeather, 275 F.3d 741, 743 (8th Cir. 2002) (urinating on victim was an offensive touching). And as one of the leading commentators explains, "[a]n attempt to commit any crime requires that the attempting party come pretty dose to committing it." Wayne R. Lafave, Criminal Law, § 7.16, at 745 (3d ed. 2000) ("Lafave"). In the context of interrogations, if, for example, an interrogator attempted to slap the detainee, such an act would constitute simple assault. On the other hand, changing the detainee's environment such as by altering the lighting or temperature would not constitute simple assault.

Simple assault also includes the placement of another in reasonable apprehension of immediate bodily harm. To convict a defendant of this type of assault, the prosecution must establish that: (1) the defendant intended to cause apprehension of immediate bodily harm; (2) the victim actually experienced such apprehension; and (3) the defendant engaged in some conduct that reasonably arouses such apprehension. See, e.g.,· United States v. Skeet, 665 F.2d 983, 986-87 (9th Cir. 1982) (defendant's actions must actually cause victim apprehension); United States v. Sampson, No. 00-50689, 2002 WL 1478552, at *2 (9th Cir. July 10, 2002) (where defendant's firing of a gun failed to frighten police officer because he had not heard the gun fire or seen the defendant fire the gun the defendant had not committed simple assault); Lafave, § 7.16, at 747.

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Footnote 27 = Some courts have labeled this requirement of reasonable apprehension as the requirement that the defendant had the "present apparent ability" to inflict harm. See Fallen, 256 F.3d at 1088 (defendant's "repeated assertion that he had a gun and was willing to use it" sufficed to establish that the defendant bad the "present apparent ability" to harm victim). Under either formulation, the inquiry is still one that looks to whether the circumstances would have caused a reasonable person to think that the defendant would harm her.
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In interrogating a detainee, if interrogators were to, for example, show a detainee a device for electrically shocking him and to threaten to use it should he refuse to divulge information, such an action would constitute this type of assault. In so doing, the interrogator would have intended to cause apprehension of immediate bodily harm, it would have been reasonable for the detainee to experience such apprehension, and more than likely he would have experienced such apprehension.

Second, section 113(a)(4) proscribes assault by "striking, beating, or wounding.

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Footnote 28 = This form of assault carries a penalty of up to six months' imprisonment, a fine, or both. 18 U.S.C. § 113(a)(4).
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This crime requires only general intent. . See, e.g., United States V. Felix, 996 F.2d 203, 207 (8th Cir. 1993) (general intent crime). Courts have construed this section to preclude essentially what at common law would have been simple battery. See, e.g., United States v. Chavez, 204 F.3d 1305, 1317 (l1th Cir. 2000); United States v. Duran, 127 F.3d 911, 915 (lOth Cir. 1997). By contrast to the simple assault section 113(a)(5) proscribes, this subsection requires that a defendant make physical contact with the victim. See Estrada-Fernandez, 150 F.3d at 494; United States v. Johnson, 637 F.2d 1224; 1242 n.26 (9th Cir. 1980). Notably, however, assault by striking, beating, or wounding "requires no particular degree of severity in the injury" to the victim. Felix 996 F.2d at 207. See Chavez, 204 F.3d at 1317 (same). Because this section requires physical contact, interrogation methods that do not involve physical contact will not run afoul of this section.

Before turning to the remaining types of assault that section 113 proscribes, it bears noting that both simple assault and assault by striking, beating or wounding are punishable by a maximum sentence of six months' imprisonment, a fine, or both. See 18 U.S.C. § 113(a)(5); id. § 113(a)(4).

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Footnote 29 = If, however, an individual were charged with the simple assault of a person "who has not attained the age of 16 years," that individual would face a maximum sentence of up to one year in prison. This charge still would riot bring a member of the Armed Forces or those accompanying or employed by the Armed Forces within section 3261(a)'s coverage because the conduct must constitute an offense punishable by more than a year in prison.
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Because the maximum sentence for each of these crimes is less than a year, charges brought against a member of the Armed Forces subject to the UCMJ or those employed by or accompanying the Armed Forces for either of these crimes would not bring that member within the scope of 18 U.S.C. § 3261(a). As a result, a member of the Armed Forces engaging in such conduct at a military base, such as GTMO, would be within the special maritime and territorial jurisdiction of the United States and could be prosecuted for this offense in an Article in court, subject, of course, to any defenses or any protections stemming from the exercise of the President's constitutional authority. If, however, members of the Armed Forces were engaging in such conduct on a foreign state's military base, they would not be covered by 3261(a) nor would they be within the special maritime and territorial jurisdiction. The remaining types of assault prohibited under section 113(a) addressed below would, however, bring a member of the Armed Forces or someone employed by or accompanying the Armed Forces squarely within section 3261(a)

Section 113 proscribes assault resulting in "serious bodily injury" and assault resulting in "substantial bodily injury to an individual who has not attained the age of 16 years." 18 U.S.C. § 113(a)(6);id. § I 13(a)(7). These crimes are general intent crimes. See, e.g., United States v. Belgard, 894 F.2d 1092, 1095 n.l (9th Cir. 1990); Felix, 996 F.2d at 207. To establish assault resulting in serious bodily injury, the prosecution must prove that the defendant "assault[ed] the victim and that the assault happen[ed] to result" in the necessary level of injury. United States v. Davis, 237 F.3d 942, 944 (8th Cir. 2001). "Serious bodily injury" is defined as ''bodily injury which involves ... a substantial risk of death; ... extreme physical pain; ... protracted and obvious disfigurement; or : .. protracted loss or impairment of the function of a bodily member, organ, or mental faculty." 18 U.S.C. § 1365(g)(3) (2000); see id. § 113(b)(2) ("[T]he term serious bodily injury' has the meaning given that term in section 1365 of this title."

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Footnote 30 = 18 U.S.C. § 1365(g)(4) further defines ''bodily injury" to mean: (1) "a cut, abrasion, bruise, burn, or disfigurement"; (2) "physical pain"; (3) "illness"; (4) "impairment of the function of a bodily member, organ, or mental faculty"; (5) "or any other injury to the body no matter how temporary.")
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By contrast, section 113(b)(l) defines "substantial bodily injury" as ''bodily injury which involves a temporary or substantial disfigurement; or ... a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty." Id. § 113(b)(1). Thus, an assault resulting in serious bodily injury requires a more severe injury, that in some instances may have a more lasting impact on the victim than that which might be considered "substantial bodily injury."

No court has definitively addressed the minimum thresholds of injury necessary to rise to the level of "substantial bodily injury" or "serious bodily injury," respectively. Nonetheless, reported opinions regarding these crimes offer some idea as to the severity and type of injuries that would be sufficient to establish violations of these subsections. With respect to substantial bodily injury, for example, a defendant was convicted of assault resulting in substantial bodily injury for injuries to the victim that included: fracturing the victim's skull, burning his face, and biting him, which left a human bite mark on the victim's leg. See United States v. Brown, 287 F.3d 684, 687 (8th Cir. 2002). And in In re Murphy, No. 98-M-168, 1998 WL 1179109 (W.D.N.Y. June 30, 1998), the magistrate concluded that "a loss of consciousness and a two-day stay in the sick room could qualify as allegations of substantial bodily injury." Id. at *6. With respect "to serious bodily injury, evidence establishing that the victim's cheekbone and eye socket were fractured, and a large laceration created, requiring. the victim to undergo· reconstructive surgery and leaving her suffering from a permanent disfigurement, established that she had suffered serious bodily injury. See United States v. Waloke, 962 F.2d 824, 827 (8th Cir. 1992). With respect to "serious bodily injury," in United States v. Dennison, 937 F.2d 559 (lOth Cir. 1991), the Tenth Circuit concluded that the infliction of seven lacerations over the victim's neck and chest that required extensive suturing' and had produced scarring "involve[ing) a 'substantial risk of ... protracted and obvious disfigurement. '" Id. at 562. And in United States v. Brown, 276 F.3d 930 (7th Cir.), cert. denied, 123 S. Ct. 126 (2002), the Seventh Circuit concluded that the tearing of a muscle in the victim's calf and leg that required hospitalization and crutches did not constitute protracted loss or impairment of the function of the leg nor did it cause disfigurement within the meaning of section 1365(g). See id. at 931-32. Nonetheless, the) court concluded that because the victim had suffered from extreme pain for eight days due to the injuries sustained to his leg, he had suffered serious bodily injury. See id.

It bears emphasizing that for the purposes of sections 113(a)(6) and 113(a)(7)the concepts of serious bodily injury and substantial bodily injury include injury to an individual's mental faculties. See, e.g., United States v. Lowe, 145 F;3d 45, 53 (1st Cir. 1998); 18 U.S.C. § 113(b)(l)(B); id. § 1365(g)(3).We have not, however, found any reported cases in which a mental harm absent physical contact constituted assault. For example, in Lowe, the only reported case in which mental harm fulfilled the serious bodily injury requirement for the purposes of assault under this section, the defendant kidnapped and raped the victim and this physical brutality caused her mental harm. See id. at 48.· W~ note that with the exception of the undefined reference to "mental faculties," all of the injuries described in the statute connote some (and more likely extensive) physical contact with the victim. In defining substantial bodily injury, for example, the statute speaks in terms of disfigurement, or loss of the function of some bodily member or organ. In the case of serious bodily injury, the statute reaches more serious injuries to include those injuries that bear a substantial risk of death, result in extreme physical pain, as well as protracted disfigurement or the impairment of a bodily member or organ. The "impairment" of one's "mental faculty" might be construed in light of the obvious physical contact required for all other injuries listed in the statute. Moreover, these crimes must be construed consistently with the common law definitions of assault and battery. Simple assault, as we explained above, is a specific intent crime and requires no physical contact. By contrast, battery is a general intent crime and requires physical contact. Courts have construed assault resulting in serious bodily harm to require only general intent, rendering it akin to battery in that regard and thereby suggesting that it too requires actual physical contact. Indeed, the only other general intent crime under section 113 is assault by striking, beating, or wounding. Courts have construed that form of assault to be the equivalent of simple battery, requiring actual physical contact as an element. Thus, given the requisite intent and remainder of the other injuries that constitute serious bodily injury or substantial bodily injury, we believe the better view of these forms of assault is that they require actual physical contact. Indeed, no court has found mental harm in the absence of physical contact sufficient to satisfy the requisite injury. Nonetheless, we cannot conclude with certainty that no court would make such a finding.

In the context of interrogations, we believe that interrogation methods that do not involve physical contact will not support a charge of assault resulting in substantial injury or assault resulting in serious bodily injury or substantial bodily injury. Moreover, even minimal physical contact, such as poking, slapping, or shoving the detainee, is unlikely. to produce the injury necessary to establish either one of these types of assault.

Section 113(a)(3) prohibits "assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse." To establish this type of assault, the prosecution must prove that the defendant "(1) assaulted the victim (2) with a dangerous weapon (3) with the intent to do bodily harm." Estrada-Femandez, 150 F.3d at 494. -See also United States v. Gibson, 896 F.2d 206, 209 (6th Cir. 1990) (to establish assault with a dangerous weapon, the prosecution must establish that the defendant acted with the specific intent to commit bodily harm). It does not, however, require the defendant to make physical contact with the victim. See Estrada-Fernandez, 150 F.3d at 494; United States v. Duran, 127 F.3d 911 (10th Cir. 1997). It is also therefore not necessary for the victim to have suffered actual bodily injury. See United States v: Phelps, 168 F.3d 1048, 1056 (8th Cir.1999) ("The government is required to present sufficient evidence only that the appellant· assaulted the victim with an object capable of inflicting bodily injury, and not that the victim actually suffered bodily injury as a result of the assault.") (emphasis added).

Although the statutory text provides that this type of assault must be committed ''without just cause or excuse," courts have held that the prosecution is not required to establish the absence of just cause or excuse. Instead; these are affirmative defenses for which the defendant bears the burden. See United States v. Guilbert, 692 F.2d 1340, 1343 (11 th Cir. 1982); United States v. Phillippi, 655 F.2d ·792, 793 (7th Cir. 1981); Hockenberry v. United States, 422 F.2d 171, 173 (9th Cir. 1970); United States v. Peters, 476 F. Supp. 259, 262 (B.D. Wis. 1979). See also United States v. Jackson, No. 99-4388, 2000WL 194284, at *2 (4th Cir. Feb. 18, 2000) (unpublished opinion) (following Guilbert).

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Footnote 31 = Although it could be argued that this subsection's express mention of "just cause or excuse" indicate that such defenses are not available with respect to the other types of assault under section 113, we believe that the better view is that these affirmative defenses remain available. As we explain infra Part IV, absent a clear statement eliminating such defenses, they remain available).
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An item need not fall within the classic examples of dangerous weapons - e.g., a knife or a gun-to constitute a "dangerous weapon" for the purposes of section 113(a)(3). Instead, the touchstone for whether an object is· a "dangerous weapon" is whether it has been used in a manner likely to cause serious injury. See Guilbert, 692 F.2d at 1343; United States v. LeCompte, 108 F.3d 948 (8th Cir. 1997); United States v. Bey, 667 F.2d 7, 11 (5th Cir. 1982) ("[W]hat constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use to endanger life or inflict great bodily harm.") (internal quotation marks and citation omitted). See also United States v. Riggins, 40 F.3d 1055, 1057 (9th Cit. 1994) (quoting Guilbert with approval). For example, courts have found that a telephone receiver and· a broom handle can be, under certain circumstances, "dangerous weapons." See LeCompte, 108 F.3d at952 (telephone receiver); Estrada-Fernandez, 150 F.3d 491 (broom or mop handle). For that matter, a speeding car could constitute a dangerous weapon. See United States v. Gibson, 896 F.2d 206, 209 nJ (6th Cir. 1990). At a minimum, however, it requires that a defendant employ some object as a dangerous weapon. Ultimately, whether or not an item constitutes a dangerous weapon is a question of fact for a jury. See Riggins, 40 F.3d at 1057; Phelps, 168 F.3d at 1055; As the Fourth Circuit has explained, "[t]he test of whether a particular object was used as a dangerous weapon is not so mechanical that it can be readily reduced to a question of law. Rather, it must be left to the jury to determine whether, under the circumstances of each case, the defendant used some instrumentality, [or] object, ... to cause death or serious injury." United States v. Sturgis, 48F.3d 784, 788 (4th Cir. 1995).

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Footnote 32 = We note that one court has construed "dangerous weapon" to include the use of one's body parts. In Sturgis, the Fourth Circuit concluded that the defendant's teeth and mouth constituted a dangerous weapon where an HIV positive inmate bit the officer in an effort to infect the officer with HIV and the bites inflicted wounds that bled "profusely." 48 F.3d at 788).
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Here, so long as the interrogation method does not involve a dangerous weapon, this type of assault has not been committed. Physical contact would be insufficient to demonstrate this type of assault. Methods of interrogation that involve alterations to the detainee's cell environment would not be problematic under this section, not only because no dangerous weapon would have been used, but also because such alterations are unlikely to involve the necessary intent to inflict bodily injury.

Finally, section 113 prohibits assault with intent to commit murder and assault with the intent to commit any other felony except murder or sexual abuse crimes.

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Footnote 33 = Assault with intent to commit murder carries a maximum penalty of 20 years' imprisonment. See 18 U.S.C. § 113(a)(1). Assault with the intent to commit any other felony may be punished by up to 10 years' imprisonment, a fine, or both. See id. § 113(a)(2)).
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18 U.S.C. § 113(a)(1)-(2). Both of these crimes are specific intent crimes-the former requiring that the individual specifically intend to commit murder and the latter requiring the intent to commit a felony, such as maimingor torture. See, e.g., United States v. Perez, 43 F.3d 1131, 1137-38 (7th Cir. 1994). See also 18· U.S.C. §. 114 (prohibiting maiming within the special maritime jurisdiction); id. § 2340A (prohibiting torture outside the United States). Although neither of these crimes requires actual physical contact with the victim, demonstrating the requisite intent may be more difficult to establish absent such contact. Here, as long as the interrogators do not intend to murder the detainee, they will not have run afoul of section 113(a)(l). Moreover, as to section 113(a)(2), the intent to torture appears to be the most relevant. As we will explain infra Part II.C.2, to satisfy this intent element, the interrogator would have to intend to cause other severe physical pain or suffering or to cause prolonged mental harm. Absent such intent, the interrogator would not have committed assault with intent to torture. We caution, however, that specific intent, as will be discussed in more detail in Part II.C.2., can be inferred from the actual circumstances. See also United States v. Hinton, 31 F.3d 817, 822 (9th Cir. 1994).

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Footnote 34 = Although section 113 appears to encompass a wide range of conduct, particularly simple assault and assault by striking, beating or wounding, we note that there are no reported cases in which section 113 charges have been brought against a federal officer - FBI, DEA, correctional officer or any other federal officer. Certainly, in the course of completing their duties, federal officers will invariably at some point touch or attempt to touch individuals in a way that they would view as offensive, such as during the course of an arrest or in restraining an unruly inmate. Nonetheless, charges are not brought against officers for such conduct. For reasons explained in Part II.A., such actions by officers are not acts that we view as criminal).
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b. Maiming

Another criminal statute applicable in the special maritime and territorial jurisdiction is 18 U.S.C. § 114. Section 114 makes it a crime for an individual (1) ''with the intent to torture (as defined in section 2340), maim, or disfigure" to (2) "cut[], bite[], or slit[] the nose, ear, or lip, or cut[] out or disable[] the tongue, or put[] out or destroy[] an eye, -or cut[] off or disable[] a limb or any member of another person." 18 U.S.C. § 114. It further prohibits individuals from "throw[ing]or pour[ing] upon another person-any scalding water, corrosive acid, or caustic substance" with like intent. Id.

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Footnote 35 = Section 114 provides in full:

“Whoever, within the special maritime and territorial jurisdiction of the United States, and with intent to torture (as defined in section 2340), maim, or disfigure, cuts, bites, or slits the nose, ear, or lip, or cuts out or disables the tongue, or puts out or destroys an eye, or cuts off or disables a limb or any member of another person; or

“Whoever, within the special maritime and territorial jurisdiction of the United States, and with like intent, throws or pours upon another person, any scalding water, corrosive acid, or caustic substance –

“Shall be fined under this title or imprisoned not more than twenty years, or both.”
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The offense requires the specific intent to torture, maim or disfigure. See United States v. Chee, No. 98-2038, -1999 WL 261017 at *3 (lOth Cir. May 3, 1999) (maiming is a specific intent crime) (unpublished opinion); see also United States v. Salamanca, 990 F.2d 629, 635 (D.c. Cir. 1993) (where defendant inflicted "enough forceful blows to split open [the victim's] skull, shatter his eye socket, knock out three of his teeth, and break his jaw" requisite specific intent had been established;). Moreover, the defendant's method of maiming must be one of the types the statute specifies-i.e., cutting, biting, slitting, cutting out, disabling, or putting out-and the injury must be to a body part the statute specifies-i.e., the nose, ear, lip, tongue, eye, or limb. See United States v. Stone, 472 F.2d 909, 915 (5th Cir. 1973). Similarly, the second set of acts applies to a very narrow band of conduct. It applies only to the throwing or pouring of some sort of scalding, corrosive, or caustic substance. See id.

Here, so long as the interrogation methods under contemplation do not involve the acts enumerated in section 114, the conduct of those interrogations will not fall within the purview of this statute. Because the statute requires specific intent, i.e., the intent to maim, disfigure or torture, the absence of such intent is a complete defense to a charge of maiming.

c. Interstate Stalking

Section 2261A of Title 18 prohibits "[w]hoever ... travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States ... with the intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to that person.

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Footnote 36 = Section 2261A provides in full: “Whoever -
(1) travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such
travel places that person in reasonable fear of the death of, or serious bodily injury to, that person, a member of the immediate family (as defined in section 115) of that person, or the spouse or intimate partner of that person; or
(2) with the intent
(A) to kill or injure a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or
(B) to place a person in another State or tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to (i) that person; (ii) a member of the immediate family (as defined in section 115) of that person; or (iii) a spouse or intimate partner of that person, uses the mail or any facility of interstate or foreign commerce to engage in a course of conduct that places that person in reasonable fear .of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii),
shall be punished as provided in section 226l(b).
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