# The Memo is online. Post your favorite parts here. **URL:** \ **Category:** The BBQ Pit\ **Created:** [June 14, 2004, 5:38pm UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319 "2004-06-14T17:38:06Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [June 16, 2004, 1:01pm UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/41 "2004-06-16T13:01:33Z")
> [@rjung](#): > > So, am I the only doper who’s flabbergasted by the amount of front-page barn-burnin’ news coverage this memo is getting? 😉 Yes, the liberal media is all over it like a cheap suit. **Larry Mudd** , it’s an initialism. Pronounced dee-oh-jay. ---
**Author:** ![Merijeek](https://avatars.discourse-cdn.com/v4/letter/m/f05b48/32.png) [@Merijeek](https://boards.straightdope.com/u/Merijeek)\ **Post date:** [June 16, 2004, 5:33pm UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/42 "2004-06-16T17:33:34Z")
> [@This Year's Model](#): > > Yes, the liberal media is all over it like a cheap suit. > > **Larry Mudd** , it’s an initialism. Pronounced dee-oh-jay. I don’t think that’s a word. You’re looking for “Acronym”. Unless I’m being whoosed. In that case, you’ve been counterwhoosed because, were DOJ pronounced like a word, and you put a -y at the end of it, it’s DOJy. Dodgy. -Joe, either gained two whooshes or just feel behind a bunch ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [June 16, 2004, 6:05pm UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/43 "2004-06-16T18:05:19Z")
> [@Merijeek](#): > > I don’t think that’s a word. You’re looking for “Acronym”. Unless I’m being whoosed. > > In that case, you’ve been counterwhoosed because, were DOJ pronounced like a word, and you put a -y at the end of it, it’s DOJy. Dodgy. > > -Joe, either gained two whooshes or just feel behind a bunch No, I’m one of those who, as referenced in [this article](http://en.wikipedia.org/wiki/Initialism), makes a sharp distinction between an initialism and an acronym. Doesn’t mean I didn’t get whooshed. I’ve been known before to take **Larry Mudd** ’s posts too seriously. ---
**Author:** ![Baldwin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/baldwin/32/7264_2.png) [@Baldwin](https://boards.straightdope.com/u/Baldwin)\ **Post date:** [June 16, 2004, 11:48pm UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/44 "2004-06-16T23:48:39Z")
_Posted by Guinestasia:_ > [@](#): > > I’m reminded of the CIA torture how-to manual for the contras that surfaced in the 1980s. Well, if you remember Iran-Contra, you’ll find some familiar faces high up in the current administration. Elliot Abrams (due for a boot in the nuts if I ever meet him); John Poindexter; and not to forget John Negroponte, who, incredibly, is going to be the U.S. Ambassador to Iraq after June 30. (I wonder if they’ve forgotten that he illegally helped arm their enemy?) As I recall, Negroponte never admitted that there were such things as death squads in Honduras when he was our Ambassador there. Let’s see, between the happy fun torture policy and the Bush Doctrine of pre-emptively attacking countries that _might_ be a threat… let’s just hope to God that other countries **don’t** start following our example. ---
**Author:** ![chula](https://avatars.discourse-cdn.com/v4/letter/c/a4c791/32.png) [@chula](https://boards.straightdope.com/u/chula)\ **Post date:** [June 17, 2004, 5:27am UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/45 "2004-06-17T05:27:17Z")
> [@Diogenes the Cynic](#): > > I understand the language just fine. There is no esoteric distinction which is being missed by us simple laypeople. The memo trys to argue in weasespeak that if a criminal act is committed with a different specific intent than merely the _result_ of the act, then the crime is somehow mitigated, even if the result of the act is fully known beforehand. > > It’s a bullshit distinction and it wouldn’t fucking fly in a courtroom. If this were a valid distinction it could be argued for virtually any crime. > > “I knew that if I shot her I would kill her, but my _intent_ was to kill the fly on her forehead.” > > It’s not like the difference betweem Murder one and involuntary manslaughter, because the act is still deliberate and the result of the act is still known before the act is committed. At best, it’s like the difference between first degree murder and felony murder and even that’s a stretch. If you understand so well, could you explain what the requisite mens rea for torture is? Every crime requires a mens rea (except for strict liability offenses, e.g., statutory rape). Under common law, pretty much all crimes are classified as either specific intent or general intent crimes. If you believe torture is a general intent crime, please explain your arguments for that classification. Or are you suggesting that we do away entirely with the idea of mens rea and hold everyone strictly liable for their actions, regardless of intent? The model penal code classification of mens rea probably makes more sense to most people. They are: purposefully, knowingly, recklessly, and negligently. The first two are roughly equivalent to specific intent, and the last two are similar to general intent. What the DOJ is arguing is that the standard for torture is “purposefully” or “intentionally” and that the other three are not sufficient. (My browser keeps crashing every time I try to access the memo so I can’t refer to it at the moment.) This interpretation seems to be supported by the language of the Torture Convention: > [@](#): > > For the purposes of this Convention, the term “torture” means 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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. > [bolding mine] The distinction _is_ argued for every crime. Or rather, the standard has already been established and if the prosecution does not provide proof that the defendant possessed the requisite state of mind, s/he is not guilty. Given the lack of jurisprudence under the Torture Convention, a court would have to establish the appropriate mens rea standard, and in this case the DOJ’s interpretation appears consistent with the Convention. If the standard were lower, then any action that an official knows will cause pain and suffering, even if necessary and legal, could be considered torture, which was clearly not the drafters’ intention. Perhaps it seems to you that there should be a stricter standard for _severe_ pain and suffering, rather than ordinary pain and suffering, which is sometimes unavoidable when employing force against a person, but that is not the standard set forth in the Convention. I used homicide as an example because everyone is familiar with the idea that the degree of the crime depends on the defendant’s intent. Your example of shooting at someone’s head is clear-cut second-degree murder, which requires malice aforethought. Felony murder is not a good example because it is essentially a strict liability offense, though the underlying felony might be a general intent crime. I was a bit rushed when I last posted so I wasn’t able to give such a long explanation. But you knew all this already, right? :rolleyes: ---
**Author:** ![PatriotX](https://avatars.discourse-cdn.com/v4/letter/p/c4cdca/32.png) [@PatriotX](https://boards.straightdope.com/u/PatriotX)\ **Post date:** [June 17, 2004, 6:08am UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/46 "2004-06-17T06:08:12Z")
So what does constitute torure? What was it that these people have to be intending to do before their actions qualify for the label ‘torture’? How would the argument that what occurred occurred ‘recklessly’ or ‘negligently’ go? It seems amazingly unlikely that what the various individuals involved did, and did repeatedly, would qualify as something done some fashion other than ‘knowingly’ or ‘purposely’. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [June 17, 2004, 6:18am UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/47 "2004-06-17T06:18:31Z")
> [@chula](#): > > …Given the lack of jurisprudence under the Torture Convention, a court would have to establish the appropriate mens rea standard, and in this case the DOJ’s interpretation appears consistent with the Convention. **If the standard were lower, then any action that an official knows will cause pain and suffering, even if necessary and legal, could be considered torture, which was clearly not the drafters’ intention**. Perhaps it seems to you that there should be a stricter standard for _severe_ pain and suffering, rather than ordinary pain and suffering, which is sometimes unavoidable when employing force against a person, but that is not the standard set forth in the Convention… > [@](#): > > For the purposes of this Convention, the term “torture” means 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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. **It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.** There’s that argument dealt with. The confusion **Chula** imagines is illusory. There is a clear demarcation between torture and lawful sanctions. ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [June 17, 2004, 6:20am UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/48 "2004-06-17T06:20:56Z")
> [@Baldwin](#): > > Let’s see, between the happy fun torture policy and the Bush Doctrine of pre-emptively attacking countries that _might_ be a threat… let’s just hope to God that other countries **don’t** start following our example. The depressing thing is that odds are they will, and when the fit hits the shan, it’ll be some other guy’s Administration that has to deal with the consequences. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 17, 2004, 6:29am UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/49 "2004-06-17T06:29:04Z")
> [@chula](#): > > If you understand so well, could you explain what the requisite mens rea for torture is? Purpose. > [@](#): > > Every crime requires a mens rea (except for strict liability offenses, e.g., statutory rape). Under common law, pretty much all crimes are classified as either specific intent or general intent crimes. If you believe torture is a general intent crime, please explain your arguments for that classification. Or are you suggesting that we do away entirely with the idea of mens rea and hold everyone strictly liable for their actions, regardless of intent? I’m saying that the _mens rea_ is present solely with the intention to cause pain for any of the reasons outlined in the convention. If they are inflicting pain for any of the _purposes_ named in the convention then they have specific intent. > [@](#): > > The model penal code classification of mens rea probably makes more sense to most people. They are: purposefully, knowingly, recklessly, and negligently. The first two are roughly equivalent to specific intent, and the last two are similar to general intent. What the DOJ is arguing is that the standard for torture is “purposefully” or “intentionally” and that the other three are not sufficient. (My browser keeps crashing every time I try to access the memo so I can’t refer to it at the moment.) This interpretation seems to be supported by the language of the Torture Convention: Yes, and purpose is sufficient. > [@](#): > > The distinction _is_ argued for every crime. Or rather, the standard has already been established and if the prosecution does not provide proof that the defendant possessed the requisite state of mind, s/he is not guilty. Given the lack of jurisprudence under the Torture Convention, a court would have to establish the appropriate mens rea standard, and in this case the DOJ’s interpretation appears consistent with the Convention. If the standard were lower, then any action that an official knows will cause pain and suffering, even if necessary and legal, could be considered torture, which was clearly not the drafters’ intention. Perhaps it seems to you that there should be a stricter standard for _severe_ pain and suffering, rather than ordinary pain and suffering, which is sometimes unavoidable when employing force against a person, but that is not the standard set forth in the Convention. The defendant would have to prove that his actions contained some other purpose than what is proscribed by the convention. Could you give a theoretical example of how severe pain could be intentionally inflicted on a prisoner _without_ one of the purposes proscribed by the convention? > [@](#): > > I used homicide as an example because everyone is familiar with the idea that the degree of the crime depends on the defendant’s intent. Your example of shooting at someone’s head is clear-cut second-degree murder, which requires malice aforethought. Felony murder is not a good example because it is essentially a strict liability offense, though the underlying felony might be a general intent crime. I was being facetious about my example to make a point. If you deliberately shoot somebody in the head, knowing that it will kill them, then a sufficient specific intent (whether malicious or reckless) is present to have committed the crime of murder. Let’s look at the memo again: > [@](#): > > Here, because Section 2340 requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant’s precise objective…If the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent [and thereby would escape being prosecuted under the torture statute]… Now what, theoretically, would be the _general_ intent for deliberately inflicting severe pain? I can’t conceive of one unless it’s some sort of emergency surgery or something. Perhaps the government weasels would like to think that mere recklessness resulting in severe pain would not constitute the requisite _mens rea_ for torture, but in that case I think the defendant would have the rather high hurdle of _proving_ that say, ramming a glow stick up a detainees act was merely carelessness and did not actually constitute a specific intention to cause physical and mental anguish for the purpose of punishment, obtaining information, intimidation, etc. Actually, maybe if the defendant could argue that he had no purpose at all in inflicting the pain. That is, he _knew_ he was inflicting pain, but that he was doing it for basically no reason, you might have some sort of specious loophole. Good luck selling it to a jury, though. > [@](#): > > I was a bit rushed when I last posted so I wasn’t able to give such a long explanation. But you knew all this already, right? :rolleyes: Well sure, but it’s not brain surgery. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [June 17, 2004, 6:29am UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/50 "2004-06-17T06:29:56Z")
> [@SimonX](#): > > So what does constitute torure? > > What was it that these people have to be intending to do before their actions qualify for the label ‘torture’? > > How would the argument that what occurred occurred ‘recklessly’ or ‘negligently’ go? > It seems amazingly unlikely that what the various individuals involved did, and did repeatedly, would qualify as something done some fashion other than ‘knowingly’ or ‘purposely’. SimonX has put his finger on it exactly. Given the elements needed to sustain a charge of ‘torture’: it is outside reasonable possibility to imagine that those elements could arise through recklessness or negligence. By ‘elements’ I means those facts that must be shown in order to establish that the offence has occurred. Torture is simply not the sort of offence that gives rise to _mens rea_ defenses. Lastly, as I don’t wish to get into too much detail, the memo makes a basic error, in construing the protections offerred by the Convention narrowly and giving a wide discretion to the detaining power to diminish its obligations under the convention. This error offends both common law and the Vienna Convention on the Interpretation of Treaties. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 17, 2004, 6:34am UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/51 "2004-06-17T06:34:49Z")
> [@](#): > > ramming a glow stick up a detainees act Er…that should have said “ass.” the glowstick was up the detainee’s ass. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 17, 2004, 6:53am UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/52 "2004-06-17T06:53:06Z")
I just had a thought. Reading this again: > [@](#): > > Here, because Section 2340 requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant’s precise objective…\*\*If the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent [and thereby would escape being prosecuted under the torture statute]… \*\* (bolding mine) I was a little puzzled by the phrase “knowing that severe pain or suffering was reasonably likely to result from his actions, but no more,” because I thought that knowing the pain would result was all that _had_ to be known (lawful reasons having already been excepted as **sevastopol** pointed out. Now I’m wondering if the lawyers were making a speculative case for the protection of the torturers by theorizing that as long as the torturers themselves did not know the purpose of the torture, that they would lack specific intent (e.g. The defendant was told to bust a chem light off in some dude’s ass, but he didn’t know _why_ he was doing it, therefore he lacked specific intent. I ask the lawyers now, could this be an accurate interpretation on my part? If so, it seems like the government has quickly shifted gears away from this strategy in favor of simply throwing the torturers in front of the bus and denying all knowledge or culpability at the top. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 17, 2004, 7:08am UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/53 "2004-06-17T07:08:01Z")
Dunno. My best guess is that it means that if you only intend to create pain, but have no intent to _permanent_ injury, and if there is no reasonable possibility of death resulting from your actions, its kosher. It only becomes torture when the action results in _more_ than just pain, but actual injury. The water treatment, that classic oldy, would be kosher, so long as you don’t really intend to drown the …subject of interogation. If, by chance he does, in fact, die, lack of intent is a valid defense. Similarly, repeated doses with a tazer would be acceptable. But thats just a country boy guess, it might still be about the procedures for surrendering your first born to our insect overlords. Damned if it makes sense to me. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [June 17, 2004, 7:52am UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/54 "2004-06-17T07:52:01Z")
**DtC** : you were right the first time. > [@](#): > > There is no esoteric distinction which is being missed by us simple laypeople IMHO none of the propositions in the memo would fly in Court. Borrowing from the WashPost, it reads as if it was drafted to give comfort and support to the persons engaged in or contemplating the prohibited activities. Put it under some legal tension though and it fractures instantly. ---
**Author:** ![DoctorJ](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/doctorj/32/2904_2.png) [@DoctorJ](https://boards.straightdope.com/u/DoctorJ)\ **Post date:** [June 17, 2004, 8:28am UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/55 "2004-06-17T08:28:25Z")
I think what they’re trying to invoke is a variation of what we in medical ethics call the Double Effect Principle. In short, if A is a good outcome and B is a bad outcome, it is ethically permissible in some cases to make an intervention that causes A even if you know it’s going to cause B. The best example is end-stage palliative care; if a patient is suffering, it is OK to give him doses of morphine sufficient to ease his suffering, even if you are fairly sure it will hasten his death. There is an ethical distinction between this and giving him the morphine for the specific purpose of hastening his death. Of course, there are prerequisites that make their invocation of this less than valid. A needs to be an undeniably good outcome that outweighs the badness of B, and there needs to be no way to accomplish A without causing B. So they appear to be mangling this principle, but they didn’t pull it out of their asses. ---
**Author:** ![chula](https://avatars.discourse-cdn.com/v4/letter/c/a4c791/32.png) [@chula](https://boards.straightdope.com/u/chula)\ **Post date:** [June 17, 2004, 1:41pm UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/56 "2004-06-17T13:41:08Z")
> [@Diogenes the Cynic](#): > > Purpose. Uh yeah… In that case, you are in complete agreement with the DOJ’s position that torture is a specific intent crime. And you think you’re not confused? > [@](#): > > I’m saying that the _mens rea_ is present solely with the intention to cause pain for any of the reasons outlined in the convention. If they are inflicting pain for any of the _purposes_ named in the convention then they have specific intent. The DOJ is saying that the defendant’s purpose must be to cause pain, as opposed to being an unavoidable outcome of his (possibly otherwise lawful and necessary) actions. He might, for example, be trying to subdue a violent prisoner. He _knows_ he is causing pain, but that is not his intention. It’s like the difference between deliberately targeting civilians and collateral damage. > [@](#): > > The defendant would have to prove that his actions contained some other purpose than what is proscribed by the convention. Could you give a theoretical example of how severe pain could be intentionally inflicted on a prisoner _without_ one of the purposes proscribed by the convention? No, the prosecutor would have to prove that the defendant purposely caused the pain. The defendant does not have to prove anything. > [@](#): > > Perhaps the government weasels would like to think that mere recklessness resulting in severe pain would not constitute the requisite _mens rea_ for torture, but in that case I think the defendant would have the rather high hurdle of _proving_ that say, ramming a glow stick up a detainees act was merely carelessness and did not actually constitute a specific intention to cause physical and mental anguish for the purpose of punishment, obtaining information, intimidation, etc. Of course mere recklessness would not constitute torture. An example of recklessness would be putting the glow stick somewhere the victim was very likely to sit. Surely you don’t believe that would be torture? ---
**Author:** ![chula](https://avatars.discourse-cdn.com/v4/letter/c/a4c791/32.png) [@chula](https://boards.straightdope.com/u/chula)\ **Post date:** [June 17, 2004, 1:44pm UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/57 "2004-06-17T13:44:15Z")
> [@sevastopol](#): > > The confusion **Chula** imagines is illusory. There is a clear demarcation between torture and lawful sanctions. What confusion are you referring to? I do see a clear distinction between lawful sanctions and torture. If you lower the mens rea to knowingly, you would end up including lawful sanctions that result in pain and suffering in the definition of suffering. That is why the DOJ’s interpretation of torture as a specific intent crime is correct. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 17, 2004, 2:02pm UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/58 "2004-06-17T14:02:27Z")
**Chula** , can you give a theoretical example of how a defendant could have deliberately rammed a glowstick up a prisoner’s ass without specific intent to cause pain and suffering? ---
**Author:** ![chula](https://avatars.discourse-cdn.com/v4/letter/c/a4c791/32.png) [@chula](https://boards.straightdope.com/u/chula)\ **Post date:** [June 17, 2004, 2:04pm UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/59 "2004-06-17T14:04:57Z")
> [@sevastopol](#): > > SimonX has put his finger on it exactly. > > Given the elements needed to sustain a charge of ‘torture’: it is outside reasonable possibility to imagine that those elements could arise through recklessness or negligence. > > By ‘elements’ I means those facts that must be shown in order to establish that the offence has occurred. > > Torture is simply not the sort of offence that gives rise to _mens rea_ defenses. The elements of the crime are (1) causing severe pain and suffering (2) purposefully. Of course an official could cause severe pain and suffering to another person without it constituting torture. If the pain resulted from negligence, for example. > [@](#): > > Lastly, as I don’t wish to get into too much detail, the memo makes a basic error, in construing the protections offerred by the Convention narrowly and giving a wide discretion to the detaining power to diminish its obligations under the convention. This error offends both common law and the Vienna Convention on the Interpretation of Treaties. Oh please do go into detail. I have experience interpreting international treaties and I can’t imagine what you’re referring to. ---
**Author:** ![chula](https://avatars.discourse-cdn.com/v4/letter/c/a4c791/32.png) [@chula](https://boards.straightdope.com/u/chula)\ **Post date:** [June 17, 2004, 2:11pm UTC](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319/60 "2004-06-17T14:11:11Z")
> [@Diogenes the Cynic](#): > > **Chula** , can you give a theoretical example of how a defendant could have deliberately rammed a glowstick up a prisoner’s ass without specific intent to cause pain and suffering? I already did. Here’s another: it could be done during a medical exam or body cavity search as a joke, which the prisoner wasn’t even aware of. It’s hard to come up with hypos about borderline acts of torture, since such acts shock the conscience, so I’m not going to play this game much more. I don’t recall the DOJ making any arguments about glowsticks, so there’s no reason to assume how they would come out on the glowstick. By the way, I might be able to return to this debate for a few days, so please don’t challenge me to respond specifically. [Previous page](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319.md?page=2) [Next page](https://boards.straightdope.com/t/the-memo-is-online-post-your-favorite-parts-here/250319.md?page=4)