Last year, the blogosphere was set ablaze by highly controversial memos from the Department of Justice's Office of Legal Counsel (OLC) that were criticized as countenancing torture. (The memos in question were subsequently withdrawn in the wake of the controversy, replaced by this memorandum.) Earlier this year, bloggers were exercised over the story of how Newsweek erroneously reported that interrogators at Guantanamo Bay, Cuba, had flushed a copy of the Koran down a toilet.
So why haven't bloggers had more to say about the recent revelation, disclosed by Time magazine (and briefly mentioned in Gawker and Wonkette), that the music of Christina Aguilera was an integral part of the interrogation protocol at Guantanamo? For those of you who are not familiar with this story, here's an excerpt from Time's coverage, based on a confidential 84-page interrogation log describing the questioning of "Detainee 063" at Guantanamo Bay:
After the new [interrogation] measures are approved [by Secretary of Defense Donald Rumsfeld], the mood in al-Qahtani’s interrogation booth changes dramatically. The interrogation sessions lengthen. The quizzing now starts at midnight, and when Detainee 063 dozes off, interrogators rouse him by dripping water on his head or playing Christina Aguilera music.
This got A3G thinking: Could the playing of music by Christina Aguilera constitute torture? If the legal geniuses over at the Justice Department's Office of Legal Counsel (OLC) -- a.k.a. the "Finishing School for the Elect" -- were to issue one of their brilliant, painstakingly researched opinions on this question, what would they conclude?
Article Three Groupie made inquiries of certain highly placed readers of UTR. Her persistent efforts caused a confidential source -- let's call him "Super-Deep Throat" -- to leak to her a classified OLC opinion on this very issue. That memorandum, Application of 18 U.S.C. §§ 2340-2340A to the Music of Christina Aguilera, is reprinted below.
This opinion is still in draft form and not for public consumption, which is why A3G must keep the identity of her source confidential. (The final version of the opinion will presumably be made available here, where OLC collects selected legal opinions that may be of public interest.)*
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Application of 18 U.S.C. §§ 2340-2340A to the Music of Christina Aguilera
You have requested our opinion whether the federal criminal prohibition against torture codified at 18 U.S.C. §§ 2340-2340A prohibits playing the music of Christina Aguilera ("Aguilera") to a detainee under interrogation. For the reasons stated below, we conclude that the statutory prohibition does bar the playing to a detainee of some Aguilera songs, but not others.
This memorandum follows and applies the analysis set forth by this Office in Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A (Dec. 30, 2004) ("December 2004 Memorandum"). The December 2004 Memorandum superseded in its entirety the analysis of this Office in Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002) ("August 2002 Memorandum"), which was withdrawn in June 2004.
The supersedure of the August 2002 Memorandum by the December 2004 Memorandum is relevant for present purposes because under the August 2002 Memorandum, the entire oeuvre of Aguilera may be played to a detainee without violating the prohibition against torture -- even at sound levels exceeding 150 decibels (the equivalent of a jet engine taking off). The August 2002 Memorandum would also permit, inter alia, the following actions:
(1) the playing for detainees of the film From Justin to Kelly, which received an abysmal 9 percent rating at Rotten Tomatoes, and which was condemned by one critic as "arguably the most insipid movie released so far this century";
(2) forcing detainees to listen to any song by Michael Bolton, including, but not limited to, "Said I Loved You... But I Lied" and "Can I Touch You... There?"; and
(3) exposing detainees to reruns of Family Matters, including episodes devoting as much as seven minutes of screen time to the character of Steve Urkel (Jaleel White).
The foregoing actions would, of course, be prohibited under the legal standards of the December 2004 Memorandum that control the instant inquiry.
I.
Section 2340A provides that "[w]hoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life." Section 2340(1) defines "torture" as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."
For purposes of this opinion, certain aspects of the December 2004 Memorandum's analysis of sections 2340-2340A should be highlighted. First, although the December 2004 Memorandum takes a broader view of torture than the August 2002 Memorandum, a line must still be drawn between torture and "lesser forms of cruel, inhuman, or degrading treatment of punishment." December 2004 Memorandum at 7, quoting S. Exec. Rep. No. 101-30, at 13 (1990).
Second, in the December 2004 Memorandum we concluded that "under some circumstances 'severe physicial suffering' may constitute torture even if it does not involve 'severe physical pain.'" December 2004 Memorandum at 10. In doing so, we rejected the suggestion of the August 2002 Memorandum "that 'severe physical suffering' under the statute could in no circumstances be distinct from 'severe physical pain.'" Id.
Third, defining a category of "severe physical suffering" that is independent of "severe physical pain" "calls for an interpretation under which 'severe physical suffering' is reserved for physical distress that is 'severe' considering its intensity and duration or persistence, rather than merely mild or transitory." Id. at 12 (emphasis added).
II.
With the foregoing legal standards in mind, we now proceed to consideration of Aguilera's music. Because different songs by the same artist may elicit widely divergent responses from the same listener, generalized analysis of Aguilera's entire body of work is of limited utility. This memorandum necessarily focuses on specific musical compositions by Aguilera and whether playing each individual song to an unwilling detainee might rise to the level of torture.
That such analysis must proceed on an individualized, song-by-song basis does not restrict applicability of the principles set forth in this memorandum to the enumerated songs. Rather, the apporach applied herein to specific songs from Aguilera's latest album is broadly applicable to the entirety of her artistic output, including her embarrassment of a Christmas album, My Kind of Christmas (RCA Oct. 2000), and her unfortunate Spanish-language album, Mi Reflejo (RCA Sept. 2000) (featuring "Genio Atrapado," the Spanish version of her hit single "Genie In a Bottle").
This memorandum shall focus on the first three singles released from Stripped (RCA Oct. 2002). As her most recent album, as well as her first major studio release since her self-titled debut (Christina Aguilera, Christina Aguilera (RCA Aug. 1999)), Stripped is the best representative of Aguilera's current musical style.
Although it has sold millions of copies, winning quadruple-platinum certification (over 4 million units sold) from the Recording Industry Association of America (RIAA), Stripped was justifiably condemned by many critics. Entertainment Weekly gave it a C-plus, and the Village Voice issued a scathing review. (Rolling Stone was somewhat more charitable, but even its review damned with faint praise: "Stripped is almost an album for grown-ups.")
The singles analyzed below, all of which achieved some measure of success on popular music charts, are as follows: "Beautiful," which peaked at No. 2 on the Billboard Hot 100 chart ("Hot 100"); "Dirrty," which peaked at No. 48 on the Hot 100; and "Fighter," which peaked at No. 20 on the Hot 100.
A. Christina Aguilera, Beautiful, on Stripped (RCA Oct. 2002)
This dreadfully soupy ballad, for which Aguilera won a Grammy Award, was described by Aguilera as "about being or feeling unaccepted for merely being yourself, yet knowing through any hardships, we are all beautiful despite the differences or insecurities." As Aguilera's cliché-ridden description suggests, the song is painfully trite. It does, however, showcase her undeniably impressive voice.
Being forced to listen to "Beautiful," as millions of Americans were when Top 40 stations around the country played the single into the ground back in 2002, is extremely annoying. It does not, however, rise to the level of torture. As this Office has noted, "torture" is a term that "'is usually reserved for extreme, deliberate and unusually cruel practices.'" December 2004 Memorandum at 6, quoting S. Exec. Rep. No. 101-30, at 13-14 (1990). "Beautiful" is certainly a bad song, but being subjected to it is not comparable to "'sustained systematic beating, application of electrical currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain.'" Id.
(In fact, playing "Beautiful" for a detainee could be viewed as providing the detainee with support and affirmation. As one commentator has noted, "[a]t least the detainee is being told that he 'is beautiful in every single way, words can't bring him down. Oh no, words can't bring you down today.'")
B. Christina Aguilera, Dirrty, on Stripped (RCA Oct. 2002)
In contrast to "Beautiful," Aguilera's "Dirrty" is so horrendous that it clearly runs afoul of the torture prohibition. This song -- Aguilera's badly botched attempt to infuse her music with a more urban sensibility -- is nothing short of a musical disaster. It obscures her powerful voice behind a stunningly irritating and ineffective hip-hop beat, and as Rolling Stone opined, "[i]t's hard to hear the song without conjuring up that Girls Gone Wild: Beyond Thunderdome video."
"Dirrty," which never made it past No. 48 on the Hot 100 chart, was the least successful of the singles released off of Stripped -- and deservedly so. Listening to "Dirrty" causes pain that is "severe," a term that this Office has construed "in accordance with its ordinary or natural meaning," FDIC v. Meyer, 510 U.S. 471, 476 (1994), as referring to pain that is "'extremely violent or intense.'" December 2004 Memorandum at 5, quoting American Heritage Dictionary of English Language 1653 (3d ed. 1992).
We conclude that forcibly subjecting a detainee to "Dirrty" violates the federal criminal prohibition against torture codified at 18 U.S.C. §§ 2340-2340A.
C. Christina Aguilera, Fighter, on Stripped (RCA Oct. 2002)
"Fighter" is a very bad song -- worse than "Beautiful," but not as affirmatively awful as "Dirrty." Rolling Stone described it as "a sterile foray into rock"; the Village Voice characterized it as "aggressively boring."
Unlike "Dirrty," "Fighter" is not terrible enough to inflict "severe physical pain" upon listeners. Under the analysis of the December 2004 memorandum, however, this does not end the inquiry. Playing "Fighter" may still constitute "severe physical pain" under the statute, if it gives rise to "severe physical suffering," i.e., "physical distress that is 'severe' considering its intensity and duration or persistence, rather than merely mild or transitory." Id. at 12 (emphasis added).
"Fighter" meets this test because (1) listening to it gives rise to intense "physical distress," even if that distress falls short of outright pain; and (2) that physical distress is of long duration and highly persistent, rather than "mild or transitory," due to the medically-recognized phenomenon known as earworm. Earworm has been explained as follows:
Earworms are those songs, jingles, and tunes that get stuck inside your head. You're almost certain to know the feeling, according to marketing professor James J. Kellaris, Ph.D., of the University of Cincinnati.
Nearly 98% of people have had songs stuck in their head, Kellaris reported at the recent meeting of the Society for Consumer Psychology. The 559 students -- at an average age of 23 -- had lots of trouble with the Chili's "Baby Back Ribs" Jingle and with the Baha Men song "Who Let the Dogs Out."
Like many Aguilera tunes, "Fighter" causes earworm easily and frequently. Its potency as an earworm-causing song may be due to the fact that even though it is no longer on the Hot 100, it continues to be played relentlessly at health clubs and gyms across the country. (A listener who cannot recognize the song from its title will instantly recognize it from its lyrics: "Cause it makes me that much stronger / Makes me work a little bit harder / It makes me that much wiser / So thanks for making me a fighter.")
The foregoing discussion of "Fighter" also applies to Aguilera's most successful single to date, "Genie in a Bottle" (No. 1 on the Billboard Hot 100 chart for five weeks). Although it is not as dreadful as "Dirrty," playing "Genie" constitutes torture for the same reasons that playing "Fighter" does: the exceedingly catchy "Genie" gives rise to extreme cases of earworm. See Christina Aguilera, Genie in a Bottle, on Christina Aguilera (RCA Aug. 1999) ("If you wanna be with me, baby / There's a price you pay / I'm a genie in a bottle / You gotta rub me the right way.").
It is possible to argue that the long, highly persistent suffering caused by earworm is mental rather than physical in nature, i.e., that it should be analyzed not as "severe physical suffering" but instead as "severe mental pain or suffering." Such a reclassification would then require earworm to arise out of one of the four statutory categories of predicate acts in section 2340(2)(A)-(D). December 2004 Memorandum at 12-13.
In light of the nature of earworm, however, we do not believe this is the proper analysis. The feeling of having a song stuck in one's head is effectively a physical sensation; earworm sufferers report that the songs they hear in their heads sound even more "real" to them than songs playing on the radio. Cf. John Keats, Ode on a Grecian Urn ("Heard melodies are sweet, but those unheard / Are sweeter..."). Furthermore, in extreme cases of earworm, the victim starts to hum or sing the earworm-causing song out loud, thereby rendering the suffering physical in nature.
III.
For the foregoing reasons, we conclude that (1) the playing of "Beautiful" does not violate the federal criminal prohibition against torture codified at 18 U.S.C. §§ 2340-2340A; (2) the playing of "Dirrty" does violate that prohibition; and (3) the playing of "Fighter" violates that prohibition, even if it does not involve "severe physical pain," because it involves "severe physical suffering" in the form of earworm, a long-lasting and persistent malady.
We acknowledge that millions of American consumers, far from viewing Aguilera's music as "torture," enjoy listening to her work and have purchased millions of her albums. We also do not gainsay that Aguilera, unlike many of her contemporaries (e.g., Britney Spears), possesses estimable and genuine vocal gifts. Indeed, in terms of sheer singing range and power, Aguilera compares not unfavorably with the Holy Trinity of pop diva belters: Whitney, Mariah, and Celine. (Aguilera's undeniable raw talent arguably makes her miserable music deserving of even greater condemnation.)
Aguilera has her fans, as well as a remarkable voice. In reaching our conclusion that playing some of her music may constitute torture, however, we are mindful of our prior admonition that "great care must be taken to avoid approving as lawful any conduct that might constitute torture." December 2004 Memorandum at 2 n.6 (emphases added). Accordingly, we have resolved any doubts concerning whether Aguilera's music might constitute torture in favor of a broad construction of the concept.
Please let us know if we can be of further assistance (but please do not force members of this Office to listen to more bad music).
STEVEN G. BRADBURY
Principal Deputy Assistant Attorney General
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* For the record, the foregoing memorandum is a parody, a joke, and not an actual OLC document. Furthermore, it should in no way be construed as making light of torture, which is "abhorrent both to American law and values and to international norms." December 2004 Memorandum at 1.
This joke memo does make fun of some of the worst aspects of American pop culture, such as the music of Christina Aguilera -- which richly deserves ridicule and scorn. Please note, however, that A3G has nothing against popular culture or popular music generally (as one can probably guess from her frequent pop culture references in this blog). She simply harbors an intense dislike for Aguilera's work, which is far inferior to the music of Kelly Clarkson and Jessica Simpson, among others.
First, much to A3G's disappointment -- and the disappointment of her fellow Article Three groupies who camped out overnight to get seats in the courtroom -- the final day of the Supreme Court Term came and went, without any exciting retirement news. Of course, the lack of an announcement today doesn't necessarily mean that all nine justices will be back for October Term 2005. Supreme Court justices frequently announce their retirements at times other than the last day of the Term (see here). So perhaps Chief Justice Rehnquist or Justice O'Connor, the two most likely justices to retire, will make a retirement announcement later in the summer (or perhaps not).
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