Magazine | May 25, 2009, Issue

Torture is a State of Mind

Mens rea and the jurisprudence of coercive interrogation

It’s not torture, the government lawyers insisted, because torture is a “specific intent” crime. This was in a controversial discussion of mens rea, the element of criminal intent in the absence of which an act, no matter how brutal, cannot be a crime. 

In each penal statute, the legislature prescribes the required state of mind that prosecutors must prove. Most of the time, it is “general intent” — the simple awareness that a result is virtually certain to follow from the charged act. If I swing my fist at your head, I know that I will at least put you in fear of being struck, and in pain if I succeed in striking you; I’ve thus committed the general-intent crime of assault. 

But torture is different. The federal law against it, which is modeled on the Convention Against Torture (CAT) ratified by the U.S. in 1994, is invoked only when a government agent commits an act “specifically intended to inflict severe physical or mental pain or suffering.” Exactingly construing this statute, the government lawyers maintained that “knowledge that pain and suffering will be the certain outcome of conduct may be sufficient for a finding of general intent but it is not enough for a finding of specific intent.” To prove torture, a prosecutor would have to show beyond a reasonable doubt not just a general intent to engage in abusive treatment, but specific intent: “the additional deliberate and conscious purpose of accomplishing” severe pain and suffering. Absent a motive specifically to torture the victim, there is no torture even if great pain and suffering result.

Sure, you’re thinking, there he goes, quoting the usual graduates of the Marquis de Sade Law School who rubber-stamped the Bush administration’s torture of top-tier al-Qaeda detainees. You know the ones: former government lawyers like Jay Bybee (now a federal appellate judge) and John Yoo (now a Cal-Berkeley law professor). In fact, the passages above come from the judges of the United States Court of Appeals for the Third Circuit, writing in an opinion of the full court in Pierre v. Attorney General of the United States, only a year ago.

Pierre involved a refugee under an order for deportation to his native Haiti for imprisonment. He fought removal under the CAT. Pierre had various maladies, including an esophagus injury that required a special liquid diet. He claimed he would be subjected to excruciating pain and die if sent to a Haitian jail. The Justice Department did not seriously dispute Pierre’s allegations. It countered that, even assuming their validity, there could be no torture, because a government official’s knowledge that an action, such as denying treatment, “might cause severe pain and suffering” is insufficient under governing law. 

Thus squarely presented was the question of what mens rea must be proved in order to establish the crime of torture. By a 10–3 margin, the judges sided with the government, holding that unless a motive to inflict severe pain and suffering is established there is no legal case of torture. The majority judges reasoned that their conclusion was compelled by federal-court precedents and the ratification history of the CAT, wherein the political branches went to great lengths to limit torture to purposeful and heinous abuse.

That is, one of the highest courts in the United States was asked to explain the legal contours of torture and the defenses that would be available to officials accused of torture. Those are the same questions the CIA — concerned about liability for employing harsh interrogation tactics — put to Bush-administration policymakers in 2002. In turn, those policymakers sought guidance from the Justice Department’s Office of Legal Counsel. At OLC, Bybee and Yoo studied much of the same law later scrutinized by the Third Circuit. Their conclusion — the one for which they and other Bush lawyers are now under criminal and ethics investigations by the Obama Justice Department — was exactly the same as the conclusion drawn by the Third Circuit in 2008: A government official can’t be guilty of torture unless his motivation is to cause severe pain.

The symmetry between this finding and that of the “torture memos” was not lost on the appellate court. Indeed, the three judges in the minority pointed out that, in late 2004, the OLC had issued a memo withdrawing the 2002 Bybee/Yoo guidance (just in time for the confirmation hearing of attorney-general nominee Alberto Gonzales, then the White House counsel and up to his neck in the torture controversy). The minority judges stressed that this 2004 OLC memo had expressly declined to endorse the OLC’s 2002 interpretation of “specific intent.” 

While true enough, this observation actually bolsters Bybee and Yoo. On the question of the required mens rea for torture, the 2004 OLC’s replacement guidance is a numbing disquisition that, in the end, throws up its hands and says, “We do not believe it is useful to try to define the precise meaning of ‘specific intent’” for torture. But, much like the litigants in the Pierre case, the CIA in 2002 didn’t need inconclusive hand wringing. Nearly 3,000 Americans had just been killed, al-Qaeda was promising new mass-murder attacks, and the agency was being pressed by the Bush administration, Congress, and the public to make certain it extracted every jot of information captured terrorists had to give. The CIA needed an answer to the question: What is the full extent of our legal authority? 

#page#The judges of the Third Circuit were in a similar quandary. In a case in which the infliction of pain seemed unavoidable, they needed to define the parameters of legally actionable “torture.” They looked at two choices: the 2002 OLC analysis, which, after wrestling with the tough questions in this grisly area, gave an answer that, however unpopular, appeared to jibe with precedent; and the 2004 OLC memo, which refused to affirm the 2002 guidance but couldn’t bring itself to condemn it either — and which ultimately took a pass. Overwhelmingly, the judges came down on the side of Bybee and Yoo. What’s more, even the three minority judges — though they disagreed that proof of a purpose to torture was required — concurred that an act could not be deemed torture absent proof of the accused’s “knowledge or desire” that severe pain or suffering would result, a distinction they conceded was “subtle.” As did the other ten judges, they agreed to send Pierre back to Haiti because — however certain it was that he would suffer there — there was no case under U.S. torture law.

Since deciding the tough case, the judges of the Third Circuit have gone on with their lives and their busy docket. By contrast, Bybee, Yoo, and other Bush-administration lawyers who came down exactly the same way are being investigated by Attorney General Eric Holder for possible criminal and ethics violations. The Obama administration’s hypocrisy and political abuse of the Justice Department are shameful. 

The investigation was announced by President Obama on April 21. Two days earlier, Obama’s chief of staff, Rahm Emanuel, had assured Americans in a national television appearance that the president, who had already immunized CIA interrogators from prosecution, did not believe Bush-administration officials should be pursued, either — Obama was committed to looking forward, not back. This prompted revolt from the anti-war Left, Obama’s base, so the cowed president reversed himself within 48 hours. Asked for comment, Holder — who had sworn at his confirmation that he had learned from his involvement in the Marc Rich pardon debacle and become strong enough to stand up to a president bent on abusing the Justice Department — went meekly along, fatuously promising to “follow the evidence wherever it takes us,” because “no one is above the law.”

Of course, the law that no one is supposed to be above is supposed to be applied equally to everyone, even political adversaries. Perhaps that’s why Holder chose not to mention the Demjanjuk case in Ohio, involving an aging Nazi collaborator who is fighting extradition to Germany by claiming he will be tortured. The day after the attorney general assured the Left that he would investigate Bush officials, his department filed a brief in the Sixth Circuit U.S. Court of Appeals opposing John Demjanjuk’s bid to remain in America. The authority on which the Holder Justice Department relies for its position is the Pierre decision — the ruling that adopts the Bybee/Yoo interpretation of torture. Justice argued:


As has been explained by the Third Circuit, CAT requires “a showing of specific intent before the Court can make a finding that a petitioner will be tortured.” Pierre v. Attorney General, 528 F.3d 180, 189 (3d Cir. 2008). . . . An applicant for CAT protection therefore must establish that “his prospective torturer will have the motive or purpose” to torture him. Pierre, 528 F.3d at 189.


Justice’s brief went on to quote from Auguste v. Ridge, the principal Third Circuit case relied on by the Pierre court: “The mere fact that Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. The difference goes to the heart of the distinction between general and specific intent.”

In sum, Barack Obama and Eric Holder are conducting a witch hunt against Bush-administration officials — threatening them with indictment and ruinous ethics findings, obliging them to retain counsel to defend wartime actions taken in service to the nation — because they offered a legal opinion, and in spite of the fact that this opinion has not only been adopted by a top federal court but is currently being used by Obama’s Justice Department to fight off torture allegations.

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