The statement “lowering the mens rea to knowingly” is not coherent.
“Lawful sanctions” are excluded from the defintion of torture:
- not as a function of the mens rea; rather
- by explicit exclusion from the definition.
I can’t escape the idea that the portion you bolded is way too short. Let’s see how it scans out:
How is that clause, standing by itself, supposed to mean anything? Does the memo under discussion suggest that a claim that the mistreatment was not for the purposes (which you didn’t bother to bold) of “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 etc,” is supposed to shield the defendant from culpability as a torturer?
Or something?
Chula, if you are at all serious about this, you have secured a special place in Hell for yourself. Right along side the lawyers who wrote that memo.
Will someone clarify something for me? Is the topic we are discussing torture, the very real act of bringing mental and/or physical torment on a human being, or are we talking about some kind of fucking parlor game with rules, loopholes and get-out-of-jail-free cards? Jamming a ghod damn stick up someone’s ass is torture, and no amount of legal(s)lease wordplay involving definitions and/or intentions negates this fact.
Some seem to be arguing that it’s not torture unless someone says “I intend to go torture that fella.”
Chula, your argument is pointless. The soldiers in question were ordered to cause physical pain and psychological humiliation and thereby extract information.
They intentionally, knowingly, and with malice aforethought shoved a chemical light up a guy’s ass, with the PURPOSE of causing him pain and humiliation, and therefore breaking his will and extracting information.
Your legal arguments are pathetic, circular and are based on willful blindness towards the facts. Apparently you interpret treaties as part of your job - applying for a job at the US DoJ by any chance?
Carcasm you’re right too.
There’s a myth that laws are made and administered by superrational olympians. The idea that you can evade the plain meaning and purpose of laws depends on this.
Chula and the administration are testing the limits of the myth.
But it’s wrong. Laws are made and administered by and for men with a grasp of the reasonable and the realistic. They reflect the sorts of concern expressed in this thread.
Consider an isolated person in military detention. Given the basic evidence now available: Not a tribunal or court on this earth is going to find that injuries inflicted on a that person in the course of questioning escape censure as torture.
“Oh, an accident!” “We didn’t intend to agonise, it wasn’t our dominant and specific purpose.” “The mental elements of the offense of torture are not shown.”
As if.
With logic like that, I could shoot someone and defend myself by saying, “But I didn’t mean to kill him-that wasn’t my purpose!”
Damn, you couldn’t even get a defense like that on Law & Order!
But that’s only because the President of the United States isn’t on Law and Order – if the Prez does it, that’s legal, because he is the law! 
(Great, now I’ve got this mental image of George W. Bush as Sly Stallone in Judge Dredd…)
Just add some jowls to your mental picture:
“If the President does it, that means it is not illegal.” -Richard Nixon
Anyone want to predict the chances that this memo will surface as a defense exhibit in Saddam’s trial?
Anyone want to predict the chances of Saddam recieving anything resembling a real trial?
Of course, grammatically it doesn’t make any sense when you take that phrase out of the sentence. The fact that the word “intentionally” is used is enough to conclude that torture is a specific intent crime. I can’t see how there could be any question about that. The CAT furthers narrows the definition by saying that it is not enough that the action be taken with the intent of inflicting pain but also must be inflicted with one of the enumerated objectives in mind. This is problematic because it means that pain inflicted for sadistic fun is not torture. This is a valid criticism of the CAT, but I don’t see any point in blaming the DOJ for the content of an international treaty they didn’t draft. But this is not the aspect the OP is criticizing. Apparently some of you would like to see pain that is inflicted unintentionally to be incorporated into the definition of torture. By doing so you would end up including a lot of acts that are clearly not torture, like medical treatment.
To be clear about this, if the defendant was not motivated by one of those purposes, he did not commit torture according to the CAT. That is a flaw in the convention. What is not problematic is the idea that unintentional actions are excluded from the definition.
Some people like to have glowsticks jammed up their asses. I’m serious about this - if you take away the mens rea requirement you are going to end up with all kinds of acts that are clearly not torture being included in the definition.
You seem to have a problem with the whole idea that “rules” are applicable to this context. I don’t see how we can avoid having a legal system based on rules. And lawyers are going to try to define those rules as precisely as possible. If you find this disturbing I don’t know what to say about that. The alternative is to throw people in jail just because we don’t like their behavior without having committed any specific crime.
It’s “pointless” to try to find a definition of torture? If there’s no definition, there is no crime. Would that be better
There are no “soldiers in question.” We are discussing the DOJ’s intepretation of the law. No real-life examples have been brought up.
Whoever “they” are, they committed torture according to the DOJ’s definition (though perhaps they would question whether the pain and suffering was severe enough).
Pay attention now, because you haven’t been able to follow the topic of this threas: The DOJ memo and this thread are about the law. There are no facts to debate.
What’s so ironic about people attacking me is that I’m a fucking human rights attorney. There are plenty of reasons to criticize the DOJ, but it’s classification of torture of a specific intent crime is not one of them.
IMHO, the DOJ memo, and this thread by extension, is about the manipulation, reinterpretation and circumvention of the law. What I see is a combination of two schools of thought: Might Makes Right, and The Ends Justify The Means.
As far as the light stick up the ass is concerned, until we are shown a video showing the guard accidentally tripping and falling towards the prisoner, who just happens to be naked for some innocuous reason(such as preparing to take a shower), accidentally jamming said lightstick(which he just happened to be carrying because the power had gone out) up the prisoner’s ass, apologizing immediately afterwards, and said prisoner accepting said apology, I think its safe to assume that it was anal rape, and thus torture. :rolleyes:
Oh come on now Czarcasm, you’re leaving out the obvious possibility that they were all playing consensual BDSM games. I mean, how do you know that the prisoners didn’t all have safewords they could have said at any time, if they had wanted the “torture” to stop.
One hopes that it’s unnecessary to explicitly say that this is sarcasm.
Of course there are real-life examples! Of course there are facts involved! Have you been living under a rock for the last few months? Perhaps you missed the torturing of many Iraqi prisoners?
I have gone through law school myself, though I’m not yet licensed to practise as a lawyer. Your waffle about mens rea and so on is pointless, merely designed to obfuscate and cloud the issue for non-lawyers, as the soldiers in question (the ones in Abu Ghraib, amongst others) were hurting their prisoners with the intent of causing pain and getting information. They HAD the requisite mens rea in spades.
It’s not ironic that they’re attacking you. It’s ironic that, as a human rights lawyer, you cannot construct a legal argument above the level of semantics and that you do not care for human rights. It’s slime like you that have dragged down the reputations of lawyers everywhere.
You don’t see that there might, perhaps, be a purpose behind the word games, do you? Perhaps that of providing a “get out of jail free” card for the torturers at Abu Ghraib, by attempting to strip any useful meaning from the legal definition of torture? You are a sorry excuse for a human being.