Over in GD in this thread on torture we could use a ruling on what “Specific Intent” means. Note this question is in GQ and seeking a factual answer on what the law in question actually says as a legal matter. This is not a debate on the rightness or wrongness of how it is written.
At issue is the following Federal statute on torture:
In the other thread there is a disconnect on what “specifically intended” means here. One person holds that in order to violate that statute you have to “specifically intend” to violate that statute. Stated another way, if a lawyer tells you (in their professional capacity) that doing “X” to someone is not torture then you cannot be held liable for violating that statute…regardless if “X” is unequivocally torture. Since you were told it was ok as a legal matter you are incapable of “specifically intending” to violate 2340.
The flip-side is a reading of 2340 that says in order to violate it you need to have “specifically intended to inflict severe physical or mental pain or suffering”. As such it does not matter whether someone told you it was legal or not. If you intended to cause severe suffering you violate the statute (presume, for the sake of argument, you know you are inflicting severe suffering).
In a legal term specific intent means that the person intended their act or ommssion to have the consequence that it did, for example in murder you need to intend to kill the person or cause grivieous bodily harm. The opposite of this is “basic intent” where the act or ommission is one that a reasonable person should have contemplated would have the consequence that it did, even if the person did not infact specifically intend that.
How is it applied to the above cited statute? Does “specifically intended” to cause suffering mean the same thing as specifically intending to violate 2340?
Generally, it would mean the perpetrator had intended to inflict severe mental or physical pain or suffering, as that is defined in the statute, apart from that incidental to lawful sanctions. It would also include undertaking actions whose consequences the perpetrator knows with practical certainty would include the infliction of severe mental or physical pain or suffering, etc. etc.
It does not mean that the perpetrator must intend to violate the law. His awareness or ignorance of the legality of his conduct does not, except perhaps in extraordinary cases that I cannot even imagine, affect his criminal liability.
But his “awareness or ignorance of the legality of his conduct” certainly does come into play when considering an estoppel by reliance defense, for instance.
I think that suggests that the official misstatement defense is more available than it in fact is. This post addresses the question head on. Official misstatement is not (in general, see below) a statutory creature and in the federal context, according to this article, it is usually imported in through the Due Process Clause. Our common law heritage, and the thumb on the scale, is against the efficacy of an official misstatement defense.
Notice the comments of MKS, citing the Detainee Treatment Act, and Richard McAdams, who analyzes the scope of the defense contained in that statute.
I think under DTA, yes, it is available. However, I think the article shows that you cannot assert an official misstatement defense simpliciter. You have to convince the court to apply it through the conduit of the Due Process clause, which the article suggests may be rare (the author observes that the MPC is still not federal law, and that the official misstatement doctrine has not been codified into law; as to the Due Process argument, he writes that it has been done “on occasion,” which to me does not intimate that it is SOP).
Recall, the question posed is on specific intent and whether the specific intent is (i) to commit the actus reus, or (ii) to break the law. It is assuredly the former. This harmonizes with the common law principle that one’s knowledge of the law does not affect criminal liability. The defense of official misstatement is a recent addition to our jurisprudence (and as noted above, I do not think it exists everywhere). I think it would be disingenuous to assert that a defense of official misstatement, generally,* reposes on well-settled law that would occasion no judicial hesitation.
Here, the critical difference is the sweeping language of the DTA. But this obviously is not a general principle of criminal law.
From the way the statute is drafted I would say that it requires that a person commit an act or omission specifically intending or knowing that it is torture.
I disagree. The statute says you must specifically intend to “inflict severe physical or mental pain or suffering”. If you do something that constitutes “severe physical or mental pain or suffering” but that IYO is not torture, you are still culpable under the statute.
The more interesting question IMO is whether “severe” is part of the mens rea or an objective component. IOW, must you intend the pain and suffering to be “severe”, or is it enough that others (like a jury) would consider it severe even if you did not?
Estoppel by reliance is not as new as all that, and I don’t believe I’d be as quick as you are to dismiss the due process concerns raised by a failure to recognize the defense. To tell someone that a given act is legal, and then prosecute him for relying on your misstatement goes to the heart of the due process guarantee: basic fairness and equity.
And as you observe, in this particular instance the line of inquiry is moot because the defense is statutorily authorized.
Near as I can tell the Nuremberg trials have no standing as legal precedent in the US but not sure on that.
IIRC though those trials established that some crimes (crimes against humanity things I think) cannot be defended against by claiming your boss made you do it. Some crimes your own conscience should trump all else and you should, rightly, refuse to do the deed.
I have seen the SCOTUS resort to legal principles outside of what was written in US law. Just not sure how far such things go.
In short I guess I am asking how much can I rely on bad advice from a lawyer and then use it as a defense? Take an extreme example (admittedly off the charts):
Lawyer tells me as a matter of law I can shoot and kill my neighbor who borrowed my lawnmower and will not return it. Based on that I go ahead and kill my neighbor. I now have a defense against prosecution? Example is out there but seems that is kind of what has been said so far.
I must be missing something (I hope I am missing something).