Specifically Unintended

Although I often agree with Andrew C. McCarthy on the issue of terrorist detainees, I believe he is mistaken in his accusation of hypocrisy against the Obama administration on the issue of torture and “specific intent” (“Torture Is a State of Mind,” May 25).

McCarthy first distinguishes between the legal concepts of “general intent” and “specific intent.” These correspond to what in moral philosophy would be called “foreseen-but-unintended consequences” and “what is directly intended.” A classic example of the distinction is the difference between removing a cancerous uterus knowing that the unborn fetus within will die, and a direct abortion. So far so good.

He then compares the 2008 case Pierre v. Attorney General of the United States to Jay Bybee and John Yoo’s “torture memo.” In Pierre, the court defined torture in terms of specific intent to cause severe pain. McCarthy then argues that because Eric Holder’s Justice Department used Pierre as a precedent in favoring the deportation of John Demjanjuk, the Obama administration is hypocritical for threatening to prosecute Bybee and Yoo, who defined torture in the same way.

But Bybee and Yoo use a different definition of “specific intent.” In the memo they say that “the infliction of such pain must be the defendant’s precise objective.” In other words, an interrogator can use any means whatsoever, and it is not torture, so long as his objective is to gain information rather than specifically to inflict pain. But this is an absurd definition; by its standard, if a man owed me money and I knew he had it on him, killed him, and took the money back, I had no specific intent to kill him. In the Pierre case, the deportee’s suffering is a foreseen but unintended consequence; in the scenario envisioned by Bybee and Yoo, a detainee’s suffering is the directly intended means to a further end.

Matthew Shadle Dubuque, Iowa

Andrew C. McCarthy replies: Mr. Shadle misses some important points. First, it was the judges in the Pierre case themselves who made clear that their court (the Third Circuit) was adopting the specific-intent standard of the Bybee/Yoo memo. The minority judges expressly complained—pointing out that the guidance had been withdrawn by DOJ—but they were outvoted by a whopping 10–3 margin. The Obama/Holder Justice Department obviously knew this when it relied on Pierre in arguing that the Germans would not be guilty of torture, even if they inflicted severe pain on Demjanjuk, because they did not have a motive to torture him.

Second, a jury would have to convict a torture defendant if it believed his claimed motivation was just a pretext.

And third, the Bybee/Yoo guidance speaks not only to intent but also to avoiding the infliction of severe pain—it is urging not a pretext but a good-faith avoidance of torture.

Correction

We apologize for an editing error in Tom Shippey’s essay “Of Beauty and Loss” (June 8). A passage in the printed version asserts that Tolkien “was mesmerized by Norse, which was well-preserved in Finland: The complete lack of literary tradition in that country meant that oral tradition survived powerfully into the modern era.” The passage should read as follows: “He was mesmerized by Norse, and even more by Finnish. The complete lack of literary tradition in Finland meant that oral tradition survived powerfully into the modern era.”