How To Do Illegal Torture and Get Away With It

That’s the way Spencer Ackerman sums up the gist of the August 2002 Torture Memo — one of three memos that the ACLU received today pursuant to an FOIA request:

Here is the money section:

Specific Intent: To violate the statute, an individual must have the specific intent to inflict severe pain or suffering. Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. As we previously opined, to have the required specific intent, an individual must expressly intend to cause such severe pain or suffering. … We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent. … A defendant acts in good faith when he has an honest belief that his actions will not result in severe pain and suffering. … Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it.

All you have to do, then, to violate the legal proscription against torture with impunity is to say, “I really, truly, honestly believed that drowning the prisoner would not cause severe suffering,” or “I honestly didn’t think that delivering electric shocks to the prisoner through electrodes attached to his genitals would be so terribly painful to him.” Deal done. Check signed, deposited, and cleared.

Hard as it is to imagine, it gets even worse. In the next paragraph, the torture lawyers continue:

Based on the information you have provided us, we believe that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering. The objective of these techniques is not to cause severe physical pain.

No, the objective is to get actionable intelligence by inflicting severe physical pain or suffering that causes such severe physical pain or suffering that the prisoner will tell us whatever he thinks we want him to say. when and where is the next terrorist attack.

Just believe in yourself and have faith in what you do, and all will be well:

As long as CIA agents could convince themselves they were not deliberately inflicting severe pain or suffering on detainees, they were free to do virtually anything in their questioning of suspected terrorists, including waterboarding. Furthermore, the agents’ belief they weren’t in fact torturing their captives didn’t even need to be “reasonable.”
The documents were heavily redacted. For example, the government blacked out 10 full pages of the 18-page August 2002 memo, written by then-Assistant Attorney General Jay Bybee, before releasing it in response to a Freedom of Information Act request. Most of the text on the remaining pages was similarly blacked out, but the released version of the Bybee memo does provide some insight.

Bybee outlined the definition of torture in Section 2340A of the United States code, focusing in part on its caveat that an act be “specifically intended to inflict severe physical or mental pain or suffering.” Elaborating on his definition of the “specific intent” provision, Bybee narrows the definition to the point where it become functionally meaningless.

All that is required to avoid prosecution is a CIA agent’s “good faith belief” that his actions will not cause torturous pain and suffering. Such a belief “need not be reasonable,” Bybee writes.

And specifically on waterboarding:

Although any references to waterboarding have been scrubbed from the released Bybee memo, the government handed over to the ACLU a 2004 memo from the CIA that refers to the “classified August 2002 DoJ opinion stating that [redacted] interrogation techniques including the waterboard, do not violate the Torture Statute.”



6 Responses to “How To Do Illegal Torture and Get Away With It”

  1. Mark says:

    I really hate to say this, but reading the text of the statute, the first quote is probably an accurate statement of the law, immoral as the results may be. The statute they were interpreting most definitely did use the language about “specific intent,” which has an extremely long and well-understood meaning in the law dating back to the earliest English common law traditions.

    Where they go completely off the deep end, though, is where they state that the techniques are legal because their “objective . . . is not to cause severe physical pain.” As much as the first quote is an accurate statement of the meaning of the phrase “specific intent,” this second statement defies the hundreds of years worth of accepted meaning of the phrase and turns the phrase “specific intent” into “objective” i.e., end goal. This is akin to saying that someone who breaks into a home for the purpose of obtaining jewelry isn’t guilty of burglary because their “objective” (i.e., “specific intent”) wasn’t to commit a felony, only to get the jewelry.
    (For non-lawyer readers, burglary is considered the classic “specific intent” crime because it is defined as, roughly speaking, “breaking and entering into a dwelling with the intent of committing a felony therein.”).

  2. Kathy says:

    Which statute?

  3. Mark says:

    The statute cited in the memo (18 U.S.C. 2340), which (according to the memo- I didn’t take the time to look up the then-extant statute through other means) 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…”

    By the way – holy sh!t that’s a lot of redaction! They did everything they could to limit the disclosure to just stuff that was largely already known.

  4. Kathy says:

    Okay, Mark. I don’t think that I would necessarily take a quote from the statute within the torture memo as proof that the quote is being accurately represented. And as you say, the way the authors of the memo interpret “specific intent” renders the term essentially meaningless anyway.

  5. Chief says:

    Specific Intent:

    1. One of the several reasons I had difficulty in law school. ;~)

    2. I’m willing to bet the International Tribunal at The Hague would not view Section 2340A of the United States Code as settled law.

  6. Mark says:

    That’s the other thing of course- this one statute is not the be all and end all definition of “torture.”

    Anyways, the full statute is here:—-000-.html
    Click on “Notes” and you can see the way it was amended in 2004 (not relevant to the quote, though). As I said, though, the second quote defies literally hundreds of years of common law definitions of “specific intent,” even though the first quote is more or less accurate (or at least relatively close).

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