Comments on: How To Do Illegal Torture and Get Away With It

By: Mark

Mark — Fri, 25 Jul 2008 11:50:27 +0000

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:
http://www4.law.cornell.edu/uscode/18/usc_sec_18_00002340—-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).

By: Chief

Chief — Fri, 25 Jul 2008 10:40:59 +0000

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.

By: Kathy

Kathy — Fri, 25 Jul 2008 03:11:02 +0000

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.

By: Mark

Mark — Fri, 25 Jul 2008 02:34:30 +0000

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.

By: Kathy

Kathy — Fri, 25 Jul 2008 02:12:18 +0000

Which statute?

By: Mark

Mark — Fri, 25 Jul 2008 01:58:42 +0000

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.”).