Andrew McCarthy has a long piece at National Review Online accusing the Department of Justice of “engaging in the worst type of hypocrisy.”
[The DOJ’s] Office of Professional Responsibility (OPR) is nearing completion of a 220-page report which will recommend that Attorney General Eric Holder refer former Bush administration lawyers to their state bar disciplinary committees over purported ethical lapses in the legal analysis those lawyers drafted to justify harsh interrogation techniques that critics — including President Obama himself — have labeled “torture.” […]
Yet, even as the OPR report is being finalized, even after Obama declared himself open to the possibility of criminal prosecution against the Bush officials, and even after Holder promised to conduct an investigation that would “follow the evidence wherever it takes us, follow the law wherever that takes us” (emphasis added), the Obama Justice Department is relying on the very same legal analysis in order to urge a federal appeals court to reject torture claims. …
McCarthy is referring to a brief filed by the DOJ in the case Demjanjuk v. Holder that relies on the legal distinction between “specific intent” and “general intent” to argue that a stay on deportation of a former Nazi prison guard should be lifted. Former OLC attorneys Jay Bybee and John Yoo used the concept of specific intent to conclude, in their infamous memos, that CIA interrogation techniques were not torture because there was no specific intent to cause severe pain and suffering:
… Construing federal anti-torture law — which is derived from the United Nations Convention Against Torture (CAT) — Bybee and Yoo’s memoranda stressed that torture is a “specific intent” crime. As the lawyers concluded after studying the relevant history, this means it was narrowly drawn by Congress and the ratifiers of CAT to make certain that only those who had an evil motive to inflict severe pain and suffering could be prosecuted. That is, even if the victim of government abuse would surely feel severe pain and suffering, there could be no finding of torture unless the responsible government official was acting with a deliberate and conscious purpose to torture him. …
Yet, this very theory is now being advanced by the Justice Department under Attorney General Holder. On April 23 of this year, only a day after Holder — taking his lead from the president — promised to investigate Bybee, Yoo, and other government lawyers, the Justice Department filed a brief in a case called Demjanjuk v. Holder in the U.S. Court of Appeals for the Sixth Circuit in Ohio. The brief urges the federal courts to consider the same torture analysis over which Holder is targeting the Bush lawyers with such fanfare. …
The case involves John Demjanjuk, a Nazi collaborator who has been fighting his removal from the United States for years. In a last gasp, Demjanjuk now claims, under the CAT, that his extradition would violate U.S. and international torture law. Given his advanced age, failing health, and expectations of abuse, he contends that extradition to Germany for trial and incarceration will cause him severe pain and suffering.
This claim may seem frivolous, but the government nevertheless undertook to respond to it. In so doing, prosecutors argued to the court that even if Demjanjuk were put in severe pain, there could be no torture unless he could establish that government officials had an evil motive to inflict severe pain and suffering on him. …
Shorter McCarthy: If U.S. government officials had the specific intent to inflict severe pain and suffering in the instance of CIA interrogations, then German government officials must also have the specific intent to inflict severe pain and suffering in wanting to put John Demjanjuk on trial.
There’s a lot more to disassembling McCarthy’s uninformed arguments than can be conveyed by the “shorter” Internet tradition, of course. Here is a smart and stylish analysis from someone who actually knows what he’s talking about (all emphasis is in original):
McCarthy … fundamentally misunderstands both the Convention Against Torture (CAT) and the meaning of specific intent. …
[…[
Like Bybee and Yoo before him, McCarthy has no idea what he is talking about. Torture is indeed a specific-intent crime under both the Convention Against Torture and the US torture statute — but the specific intent that they require is fundamentally different. The specific intent required by the torture statute concerns the infliction pain or suffering. Here is 18 USC 2340(1):“[T]orture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering.
CAT, by contrast, does not require the pain or suffering itself to be specifically intended; so-called “basic” intent is all that is required. Instead, the specific-intent requirement concerns the purpose of the pain or suffering — to extract information or a confession from the victim. Here is Article 1(1):
For the purposes of this Convention, the term “torture” mean any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.
This difference between CAT and the torture statute is not accidental. As Bybee’s 2002 torture memo acknowledges, the US deliberately narrowed CAT’s definition of torture when it signed the Convention in 1988. Here is the relevant reservation:
The Senate’s advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention: … (1)(a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering.
And here is the understanding that the (first) Bush administration submitted to the Senate in 1990, prior to ratification, which was intended to “ensure that the Convention’s reach remain[ed] limited”:
The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering.
The fact that CAT only requires severe pain or suffering to be “intentionally” inflicted is critical, because nearly all criminal-law systems — common law and civilian — agree that a perpetrator acts intentionally with regard to a consequence element of a crime not only if it is his conscious desire to bring about that consequence, but also if he knows that the consequence is virtually certain to result from his conduct. Indeed, that is the U.S. position, as illustrated by the Supreme Court’s discussion of the difference between basic and specific intent in United States v. Bailey — the case, not incidentally, that the OLC relied on when it retracted the infamous 2002 Bybee torture memo.
[…]
Under CAT, in short, whereas torture’s “information or confession” element requires the perpetrator to consciously desire to extract information or a confession from the victim, its “pain or suffering” element is satisfied if he either consciously desires to inflict the requisite pain and suffering or, despite not consciously desiring it, knows that it is virtually certain to result from his conduct. Under the torture statute, by contrast, there is no “information or confession” element and the “pain or suffering” element requires the perpetrator to consciously desire to inflict the requisite pain or suffering.The upshot of this is clear: although a CIA interrogator who knowingly but not purposely inflicted severe physical or mental pain or suffering on a detainee could not be convicted of torture under US law, he could — and should — be convicted of torture under international law. And that is because, contra McCarthy, CAT and the torture statute are not one and the same.
Even under US law, however, McCarthy’s argument is fatally flawed. Recall what he wrote:
As the lawyers concluded after studying the relevant history, this means it was narrowly drawn by Congress and the ratifiers of CAT to make certain that only those who had an evil motive to inflict severe pain and suffering could be prosecuted. That is, even if the victim of government abuse would surely feel severe pain and suffering, there could be no finding of torture unless the responsible government official was acting with a deliberate and conscious purpose to torture him.
The second sentence, however, in no way follows from the first. It is true that the torture statute’s specific-intent requirement means that the interrogator must have consciously desired to inflict severe physical or mental pain or suffering on the detainee. … But that does not mean the interrogator must have had an “evil motive” for inflicting the pain or suffering. Motive and specific intent are not the same thing: “motive” refers to the reason why a perpetrator commits a particular act; “specific intent” refers to the goal of the act — the state of affairs that the perpetrator hopes to bring about. It is thus perfectly consistent for an interrogator to specifically intend to cause a detainee severe pain or suffering for a “noble” motive: as long as the interrogator’s goal is to cause the detainee pain and suffering, the reason why he wants to cause it is irrelevant.
In other words, it doesn’t matter whether the CIA interrogators’ motives for inflicting severe pain and suffering were noble or ignoble. It’s the intent that matters, not the motive.
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