07 May No, Andrew, “Specific Intent” Does Not Equal “Evil Motive”
I was intrigued by Julian’s post on Andrew McCarthy’s latest screed for National Review Online, so I read what McCarthy had to say. His argument boils down to this: (1) the Obama administration argues in Demjanjuk that torture is a specific-intent crime; (2) Yoo and Bybee argued in the infamous OLC memos that torture is a specific-intent crime; (3) the Obama’s administration’s intimations that it might pursue some sort of disciplinary action against Yoo and Bybee are thus shamefully hypocritical.
McCarthy, however, fundamentally misunderstands both the Convention Against Torture (CAT) and the meaning of specific intent. The relevant paragraph is this one (emphasis in the original):
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.
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 declaration:
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. Here is a snippet of the OLC’s 2004 memo, written by Daniel Levin (emphasis added):
In United States v. Bailey, 444 U.S. 394 (1980), for example, the Court suggested that, at least “[i]n a general sense,” id. at 405, “specific intent” requires that one consciously desire the result. Id. at 403-05. The Court compared the common law’s mens rea concepts of specific intent and general intent to the Model Penal Code’s mens rea concepts of acting purposefully and acting knowingly. Id. at 404-05. “[A] person who causes a particular result is said to act purposefully,” wrote the Court, “if ‘he consciously desires that result, whatever the likelihood of that result happening from his conduct.'” Id. at 404 (internal quotation marks omitted). A person “is said to act knowingly,” in contrast, “if he is aware ‘that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.'” Id. (internal quotation marks omitted). The Court then stated: “In a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific intent, while ‘knowledge’ corresponds loosely with the concept of general intent.” Id. at 405.
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. (He does not have to consciously desire to “torture,” which is a legal judgment. In that respect, both McCarthy and the Obama administration’s brief are less accurate than the Third Circuit’s decision in Pierre, upon which both reply. Pierre gets the standard right, as McCarthy’s quote from the decision indicates.) 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.
And that is the fatal flaw of McCarthy’s argument. I don’t know anyone on the “antiwar Left,” to quote McCarthy, who believes that the CIA interrogators were nothing more than a bunch of sadists. On the contrary, serious critics of the CIA’s torture regime have always acknowledged that, misguided or not, the interrogations were motivated by a genuine desire to obtain actionable intelligence from the detainees. The problem is that they were willing to intentionally cause the detainees severe physical or mental pain and suffering in order to obtain that intelligence. The interrogators had to “consciously desire” to inflict severe pain and suffering on the detainees — that was what they believed was necessary to get the detainees to talk. And that means they acted with the specific intent that the torture statute requires, no matter how noble their motives.
Thank you for this. You have to assume Andy is purposely failing to analyze this issue honestly, much as those he is so strenuously defending.
Prof. Heller,
You say, “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….” and I think you’re correct. In other words, you agree with the Yoo-Bybee memo’s interpretation.
But then you go on to say, “he could — and should — be convicted of torture under international law.” This is incorrect as a legal matter. There is no int’l law “out there” that independently binds the U.S. Our obligations are contingent upon what we agree to by treaty. And as you point out, the Senate altered the substantive effect of the treaty by attaching the “specifically intended” condition. As a matter of int’l law, the U.S. is bound only to the extent that it agrees to be bound. This is so well-founded an int’l law principle, I’m surprised at your intimation otherwise.
Put it in front of a jury – I have confidence they will see exactly what was going on. Based on the judge’s instructions on the law that I hope would be as straightforward as in any other criminal case, will convict. In a US domestic court.
Best,
Ben
I. Speir:
You’re forgetting customary international law.
No, I’m not “forgetting” customary international law. But where a treaty is on point, CIL (whatever it may be) isn’t binding. (See ICJ Statute on sources of international law: treaties are listed first.) And CERTAINLY where a nation such as the United States has signaled its intent only to be bound in a certain way (whether by treaty or otherwise), there is no (to repeat) CIL “out there” that binds the nation anway.
Not to mention that even if there was you would have to convince that nation’s courts that there was. Good luck with that!
I. Speir: First, you’re just wrong about this: “And CERTAINLY where a nation such as the United States has signaled its intent only to be bound in a certain way (whether by treaty or otherwise), there is no (to repeat) CIL “out there” that binds the nation anway.” First, peremptory norms allow no derogation and invalidate provisions of international agreements that conflict. Second, according to the Restatement (3d) of Foreign Relations Law, comment j: “A new rule of customary law will supersede inconsistent obligations created by earlier agreement if the parties so intend and the intention is clearly manifested. Thus, the United States and many other states party to the 1958 Law of the Sea Conventions accept that some of the provisions of those conventions have been superseded by supervening customary law.” Though, as the Restatement acknowledges, subsequent agreement trumps prior custom. Nevertheless, it’s wrong to say that treaties win all the time no matter what. Second, you say: “’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….’ and I think you’re correct. In other words, you agree with the… Read more »
I think you’re wrong about the meaning of “specific intent,” but that debate doesn’t interest me enough to rehash it here. It’s rehashed elsewhere, by people far more eloquent than I. With regard to CIL — principles than ripen into norms only bind states when they have NOT signaled a contrary intent NOT to be bound. Where they have signaled contrary intent, they are not bound. States don’t just wake up one day and, to their suprise, find themselves bound. How silly. You glossed over the very text you utilized: “A new rule of customary law will supersede inconsistent obligations created by earlier agreement IF THE PARTIES SO INTEND and THE INTENTION IS CLEARLY MANIFESTED.” The U.S. Senate signaled, in no uncertain terms, its intention NOT to be bound by the CAT’s definition of “torture.” Whether that definition was CIL or simply the CAT’s own formulation, the U.S. isn’t bound by it. Period. How is it that a state can be bound to a thing to which it has not assented (further, where it has expressly assented to something else)? It cannot. That is a bedrock principle of int’l law. Look, none of this matters anyway, right? Even if the U.S. were “bound”… Read more »
I’m with I. Speir in (at least) being unsure why a CIA interrogator “could – and should – be convicted of torture under international law.” Even if (as I. Speir plausibly denies) the CAT is CIL binding on the US, or (which I. Speir doesn’t address) codifies jus cogens norms, the norms it codifies are all directed at states, not persons. Maybe there’s other CIL out there – CIL that is directed at persons and that makes them criminally liable for torturing even if they are citizens of a state that allows torture and they torture in the territory of that state – that makes the CIA interrogators criminally liable for some of the things they did, but I would think the CAT doesn’t qualify.
I. Speir, I would respectfully suggest that the first step in your argument is flawed. You say: “There is no int’l law “out there” that independently binds the U.S. Our obligations are contingent upon what we agree to by treaty. And as you point out, the Senate altered the substantive effect of the treaty by attaching the “specifically intended” condition. As a matter of int’l law, the U.S. is bound only to the extent that it agrees to be bound. This is so well-founded an int’l law principle, I’m surprised at your intimation otherwise.” With respect, that is not well-founded at all. The Senate has not ‘altered the substantive effect of the treaty’; it couldn’t have. I might – just – be prepared to accept that the declaration by the Senate may govern the existence of the obligation as part of the law of the land, under the US Constitution (although I seem to recall the Supreme Court – through Justice Scalia – saying otherwise), but this is not nearly the same as saying that an understanding by the Senate governs the United States’ treaty obligations on the international plane. The ‘understanding’ is not a reservation; it is not expressed to… Read more »
I. Speir:
My first point wasn’t directed at the CAT argument. You were asserting something about international law that just isn’t true, generally speaking. Treaties don’t always win. That was my only point about that, not that the CAT reflects customary, or peremptory, norms. Whether it does or not is a wholly separate debate.
As for my second point, I wasn’t trying to rehash the specific intent debate; I was illustrating that KJH wasn’t agreeing with the Bybee/Yoo position, in response to your original comment: “In other words, you agree with the Yoo-Bybee memo’s interpretation.”
Incidentally, I was also wondering why KJH said the thing about being convicted under international law. I mean, I get that under international law, they appear to on the hook. I’m guessing he brought it up just to emphasize that the domestic U.S. implementation of the CAT doesn’t reach as much as the CAT itself does.
There are several problems here that seem to have been a bit conflated. First, on Kevin’s point that a CIA interrogator could have been convicted under international law, even if he could not have been convicted under US domestic law. There is a major problem with that – torture as defined in the CAT is not a true international crime. (Yes, I just said that, jus cogens and all.) By that I mean that it is not an offense for which individual criminal responsibility is incurred directly at the international level. It is, like numerous other offenses (e.g. terrorist bombings), a ‘mere’ treaty crime, that requires states to criminalize such offenses in their own domestic law. If a state fails to do so properly, and does not fulfil its treaty obligations, it will incur state responsibility towards its treaty partners. But, if the domestic criminalization is defective, the individuals concerned might escape responsibility, because they do NOT incur criminal responsibility at the international level. Torture can be a true international crime, if it is committed as a war crime (most relevantly for our purposes as a violation of Common Article 3) or as a crime against humanity (which requires the… Read more »
Great input on reservations to human rights treaties by Tobias. A few good articles on the topic: W. Schabas, “Reservations to Human Rights Treaties: Time for Innovation and Reform”, 32 Can. Y.B. Int’l L. 39 1994; R. Moloney, “Incompatible Reservations to Human Rights Treaties: Severability and the Problem of State Consent”, 5 Melb. J. Int’l L. 155 2004
Marko,
I never claimed, of course, that torture was an independent international crime. It would obviously have to be prosecuted by an international tribunal as a war crime or a crime against humanity. I was indeed thinking of a national prosecution applying either the CAT definition of torture or the Rome Statute’s, neither of which require specific intent concerning the infliction of pain and suffering.
I. Speir,
Tobias has responded to you far more gently than I would have. I would have simply pointed out that there was once another group of people who argued that they could not be prosecuted at the international level for war crimes because their acts were not criminal under domestic law. They were called Nazis. That didn’t turn out so well for them.
(And before someone screams “Godwin’s Law,” I am not comparing the CIA and the OLC to the Nazis. I am simply pointing out that, as you characterize it, the argument is the same.)
As for your argument that I am wrong about specific intent — it is, of course, hard to take your argument seriously in the absence of, you know, an actual argument.
DMV,
With regard to your question, you are absolutely right: I brought up international law to make clear that whether the CIA’s torturers and the authors of the OLC memos can be prosecuted in the US does not affect whether they can be prosecuted by an international tribunal or by a national court applying international law and exercising universal jurisdiction. The difference is critical on a range of issues — the definition of torture, the availability of defenses like necessity and entrapment by estoppel, etc.
I don’t buy the argument that the authors of the OLC memos issued the opinions in good faith, ie, sincerely believing that their opinions were consistent with US law. Even if they did, however, I think they would have a very difficult time convincing an international tribunal or a domestic court that they did not know their opinions violated international law — after all, as noted in the post, US law itself is inconsistent with international law, to say nothing of the ridiculous interpretation Bybee and Yoo gave to US law.
Many issues have been conflated. First, we should be clear about what we’re talking about. The CAT does not have domestic effect in the U.S. as against individuals, so no CIA officer is going to be prosecuted “under the CAT.” What governs as a matter of domestic law, as applied to individuals, is the U.S. statute specifically implementing the CAT (2340A). And that legal standard is clear (and clearly different than that in the CAT). Now, that is of course distinct (as many have pointed out) from the int’l obligation — i.e., the obligation of the U.S. as a whole vis-a-vis other nations. That argument, then, brings in Mr. Thielen’s points about the distinction between an “understanding” and a “reservation.” I BELIEVE it to be the case (correct me if I’m wrong) that the int’l law on this point (e.g., Vienna Conv’n on Law of Treaties) makes it clear that what something is CALLED is not dispositive. The effect of a condition governs. So whether the U.S. labeled it “reservation” or “understanding” matters less than the substantive effect of the condition. And because the condition is at variance with the treaty (have you all not conceded that point? perhaps not), then… Read more »
I. Spier,
This is utterly uncomplicated:
The interrogatoers — and their superiors had the specific intennt to inflict pain sufficient to obtain information. Their criminal guilt is completely beyond doubt.
Further, their actions were also criminal offenses pursuant to:
18 USC § 113 (Assault)
18 USC § 371 (Conspiracy to commit offense)
18 USC § 1201 (Kidnapping)
18 USC § 1512 (Tampering with a witness, victim, or informant)
18 USC § 2441 (War crimes)
Everything they did was illegalk froim top to bottom: Bush had no authority to authorize sucha program in the first place — it was a criminal enterprise from the start, and the apolicies adopted were identical to thoseemployed by the Nazis.
FACTS ARE FACTS, and YOU are ignoring them. If there was this much evidence against someone who raped your wife or daughter you’d be screaming bloody murder.
Instead, you making excuses fror the most disgraceful criminals in the history of the United States, mostly becasue you think committing such depraved and pointless crimes was just a good idea.
And you’re just as wrong as it gets.
IGNORING THEM.
18 USC 2441 (War crimes),
PS…
Excellent post Kevin.
Prof. Heller now says that he is “not comparing the CIA and the OLC to the Nazis.” But in the Ministries Case post he said that “[t]he parallels between the Foreign Office’s role in the SS deportations and the OLC’s role in the CIA’s torture regime are uncanny. Nothing is lost if we simply substitute ‘Yoo, Bybee, and Bradbury’ for ‘Woermann and von Weizsaecker,’ ‘OLC’ for ‘Foreign Office,’ and ‘torture’ for ‘deportations.’ ” So are the CIA and OLC like the Nazis or not?
“The CAT does not have domestic effect in the U.S. as against individuals, so no CIA officer is going to be prosecuted “under the CAT. ” I don’t think that’s right, given what’s been said. As several posters detail above, there are avenues besides US Courts where the Senate’s understanding of CAT is in no way controlling, such as international tribunals or foreign national courts exercising universal jurisdiction, who may apply the CAT in lieu of a failure of the US to investigate and prosecute under the CAT. Surely that qualifies as prosecution under the CAT, no? But CAT may also represents CIL so that would be relevant on the broader issue – as it would represent a prohibition jus cogens regardless of a domestic reservation. CIL binds all non-persistent objectors, not just those who consent in a formalistic sense which is why new states are deemed to be bound by all existing CIL and the threshold for persistent objection is very high indeed. Only a norm of similar crystalised premptory character could modify such an obligation. It’s also important here to recall that the normal paradigm of positivist law for treaties – ie. bilateralism based on reciprocity –… Read more »
Anon,
It is, of course, always dangerous invoking the Nazis. My point above, and my point in the Ministries post, is that the legal argument/analysis is the same, not that the underlying acts are equivalently grave. There is, of course, no comparison between the systematic murder of millions and the systematic torture of dozens. But I think I’ve been clear on that point.
KJH is right regarding the specific intent argument.
Brrrrr. I think hell just froze over.
It also of course begs the question of just what exactly anyone thinks that the Nazis were like.
They weren’t demons or fictional characters, they were people —- just like Stalin and his thugs, and just like every other gang of tyrants down through the ages, including the demented neo-fascist / neo-confederate / right-wing Republican junta of Bush and Cheney.
The thinking of such people is always the same once you subtract out the veneer of ideological bullshit they use to rationalize their power and greed, and force and deceit are invariably their methods of choice. It’s not complicated folks, it’s just the criminal mentality on steroids. Lying is the only thing such people are really good at — their predilection for violence is what always brings them to ruin.
A tyrant is a tyrant, and tyranny is nothing more or less than the use of force to impose the will of one person or group on another person or group — as distinct from the use of force to maintain public order according to law and reason.
I. Speir, I think I may have been the one who said ‘that what the Senate says doesn’t matter’, as you put it. But you misstate my point. What the Senate says matters in US law, and to the interpretation of CAT in US courts (although it may not always control on the latter point). Also, if ‘what the Senate says’ is a reservation, it clearly matters in IL, as well. With respect, you paint with far too broad a brush in saying that ‘RUDs get deposited with treaty instruments; they define the content and scope of int’l obligations. This is why countries may object to another country’s reservation, making that particular treaty provision not in force between those two parties.’ You are right about reservations, but not about RUDs in general. There is no legal regime of objections to understandings, largely because they don’t ‘define the content and scope of int’l obligations’. If ‘what the Senate says’ is nothing more than an interpretive declaration (an ‘understanding’ stricto sensu), then it is nothing more than an exercise in interpretation, which like yours or mine may well be wrong (although it is also subsequent State practice). Now, on the question whether… Read more »
JURIST —
May 8, 2009
RICE, WATERBOARDING AND ACCOUNTABILITY
by Jordan Paust
[…] narrow reading of specific intent in the U.S. torture statute as Bush’s OLC did. Opinio Juris’s Kevin Jon Heller and Deborah Pearlstein think that McCarthy fails to grasp important differences in the two […]
[…] attached to that treaty appears to adopt a different definition. A debate rages over which definition is binding on the United […]