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
No, I’m one of those who, as referenced in this article, 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.
Posted by Guinestasia:
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.
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:
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:
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’.
There’s that argument dealt with.
The confusion Chula imagines is illusory. There is a clear demarcation between torture and lawful sanctions.
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.
Purpose.
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.
Yes, and purpose is sufficient.
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 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:
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.
Well sure, but it’s not brain surgery.
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.
Er…that should have said “ass.” the glowstick was up the detainee’s ass.
I just had a thought.
Reading this again:
(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.
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.
DtC: you were right the first time.
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.
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.
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?
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.
No, the prosecutor would have to prove that the defendant purposely caused the pain. The defendant does not have to prove anything.
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?
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.
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?
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.
Oh please do go into detail. I have experience interpreting international treaties and I can’t imagine what you’re referring to.
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.