This is the case for acts of psychological torture that cause severe mental suffering (as captured by the CAT) but do not also involve “prolonged mental harm” (as required under US law). The Convention forbids a wider category of acts “irrespective of their prolongation or its duration”.342 Similarly, while the level of physical pain or suffering is not defined in US law itself, it has been subject to interpretations in contradiction to the international prohibition of torture, as will be explained further below. 202. While international experts consider that the intent element is satisfied insofar as the infliction of severe pain or suffering aims to achieve a certain purpose,343 the US concept of torture requires “specific intent”, which entails both the intent to commit the act and the intention that the act inflict severe pain and suffering. This further limits the scope of acts that would fall under the domestic prohibition. This element of specific intent was used by the Bush administration to stress that authorized techniques would not qualify as torture since their infliction was not intended to cause severe pain or suffering.344 203. The concept of “acquiescence” is another component of the US definition that narrows the scope of the domestic prohibition of torture. The United States understands “acquiescence” as requiring an official both to have prior knowledge of the acts of torture and to fail to intervene to prevent them. The CAT, on the contrary, covers acts executed with the authorities’ “passive agreement” or lack of intervention,345 and the Committee against Torture made clear that where “State authorities (…) have reasonable grounds to believe that acts of torture or ill-treatment are being committed (…) and they fail to exercise due diligence to prevent [them] (…) its officials should be considered as authors, complicit or otherwise responsible (…) for consenting to or acquiescing in such impermissible acts”.346 This explanation does not require full prior knowledge, as does the US approach to acquiescence. 204. In a similar vein, the prohibition of cruel, inhuman or degrading treatment or punishment as defined under international law appears to cover a wider range of treatment than that outlawed in the United States. The War Crimes Act, as amended, contains a list of violations of Common Article 3 that includes “cruel or inhuman treatment” but no longer refers to “outrages upon personal dignity, in particular humiliating and degrading treatment”.347 This absence suggests that degrading treatment or punishment is not prohibited under the War Crimes Act. The State Department’s analysis of the CAT prior to ratification of the Convention by the United States would confirm this understanding, as it implied that the US Constitution, which is the US benchmark when it comes to the prohibition of cruel and unusual punishment under US law, may not cover degrading 342 UN CAT, Conclusions and recommendations of the Committee against Torture, United States of America, CAT/C/USA/CO/2, op. cit., note 107, para. 13. See, also, UN CAT, Concluding observations on the combined third to fifth periodic reports of the United States of America, op. cit., note 107, para. 9. 343 UN Special Rapporteur on torture, “Study on the phenomena of torture”, op. cit., note 283, para. 34. 344 United States Assistant Attorney General Jay S. Bybee, “Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency, ‘Interrogation of Al Qaeda Operative”, 1 August 2002, p. 18, <https://www.fas.org/irp/agency/doj/olc/zubaydah.pdf>. See, also, Senate Study on the CIA RDI Programme, Executive Summary, op. cit., note 171, p. 34. 345 UN Special Rapporteur on torture, “Study on the phenomena of torture”, op. cit., note 283, para. 39. 346 UN CAT, General Comment No. 2, op. cit., note 76, para. 18. 347 As specifically captured by Common Article 3(1)(c). 84