Over at Balkinization, Marty Lederman and David Luban have published trenchant criticisms of the new war crimes bill currently before Congress. Marty and David analyze numerous problems with the main provisions relating to Common Article 3, including: (1) Section 6’s court-stripping provisions, (2) Section 7’s prohibition on invoking the Geneva Conventions or its protocols as a source of rights in any federal habeas or civil proceeding in which the U.S. government or its agents is a party, (3) Section 8's "full satisfaction" provision for grave breaches of Common Article 3, and (4) Section 8’s definition of “cruel or inhuman treatment.” In this post, I wish to call attention to a further issue: Section 8’s “specific intent” requirement on what constitutes torture for purposes of the War Crimes Act.
Section 8 defines torture as:
The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering...upon another person within his custody or physical control for the purpose of obtaining information or a confession... (emphasis added).
This definition is a departure from Common Article 3, which simply lists torture without qualification among those acts which “are and shall remain prohibited at any time and in any place whatsoever…” That is, while Common Article 3 does not restrict torture to harms associated with a particular mental state, Section 8 does do so; furthermore, it defines that mental state narrowly, as one of “specific intent.”
Why is this noteworthy? Recall the Bybee memo's analysis of the same mens rea element in the federal torture statute:
[B]ecause Section 2340 [i.e., 18 USC § 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 statute had required only general intent, it would be sufficient to establish guilt by showing that the defendant “possessed knowledge with respect to the actus reus of the crime.” 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…. As a theoretical matter, therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent. As the Supreme Court explained in the context of murder, “the . . . common law of homicide distinguishes . . . between a person who knows that another person will be killed as a result of his conduct and a person who acts with a specific purpose of taking another’s life.” Put differently, the law distinguishes actions taken ‘because of’ a given end from actions taken ‘in spite of their unintended but foreseen consequences.’” Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control (p. 3-4, emphasis added).
[A] showing that an individual acted with a good faith belief that his conduct would not produce the result that the law prohibits negates specific intent. Where a defendant acts in good faith, he acts with an honest belief that he has not engaged in the proscribed conduct….A good faith belief need not be a reasonable one….(p. 4-5, emphasis added).
In December 2004, the Justice Department published a second memorandum (the “Levin memo”) meant to supersede the Bybee memo in its entirety. However, the Levin memo’s treatment of the specific intent issue is evasive and unconvincing. Here is the key passage which reveals the question-begging character of the exercise: “We do not believe it is useful to try to define the precise meaning of ‘specific intent’ in section 2340. In light of the President’s directive that the United States does not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture.”
What does all this imply for the torture provision now before Congress? First, it is simply not true that the proposed legislation prohibits U.S. agents from “inflicting severe physical or mental pain or suffering for the purpose of obtaining information or a confession,” as the flow chart published in the September 22 New York Times implies. Plainly, the proposed law does not prohibit this. Indeed, by its very terms it does not even prohibit U.S. agents from knowingly inflicting severe physical or mental pain or suffering for the purpose of obtaining information or a confession. Rather, the bill merely prohibits U.S. agents from specifically intending to inflict these harms.
And what exactly does "specifically intending" mean? The Levin memo’s reply is that it is not “useful” for the government to answer that question. By contrast, the more candid and informative Bybee memo—surely probative evidence of how the Bush administration is likely to interpret and apply the provision under the “virtually unreviewable” authority given to it by the proposed legislation—does provide some fairly clear answers. According to the Bybee memo, specific intent means what it has typically meant in Anglo-American law: purpose or conscious objective, as distinct from knowledge, substantial certainty, foreseeability, and related concepts. Hence—to recall a familiar example—a U.S. agent who knows or foresees with substantial certainty that his coercive interrogation technique will result in “death, organ failure, or permanent impairment of a significant bodily function” is not necessarily guilty of torture under the proposed legislation, even without recourse to defenses like necessity--at least not according to the Bybee memo.
Second, in light of the foregoing it seems patently false to assert that the proposed legislation merely clarifies Common Article 3’s prohibition on torture. Common Article 3 does not explicitly limit torture to cases of specifically intended harms, nor should it be read to do so implicitly. This is a debatable proposition, but it appears to be supported by ample evidence, including common usage and the Official Commentary on the Geneva Conventions, as well as the general intent language found in the 1984 U.N. Convention Against Torture (CAT):
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...(CAT, Article 1(1), emphasis added).
As the Bybee memo recounts, when the Reagan Administration
submitted the CAT to the Senate, it sought to narrow the general intent language of the CAT to ensure it would be understood as requiring
The United States understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering (p. 16, emphasis added).
Likewise, in order to “ensure that the Convention’s reach remain limited,” the first Bush Administration submitted the following understanding to the Senate in 1990:
The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering…(p. 18, emphasis added).
This is the understanding with which the US ratified the CAT in
1994 and which underlies 18 USC §§ 2340-2340A, the federal torture statute.
But Common Article 3's ban on torture--ratified decades earlier--is not so limited. It does not require proof of "specific intent" in the sense implied by the language of the proposed bill. And since 1997, the War Crimes Act has criminalized all of CA3's prohibition on torture. Under the proposed bill, that would no longer be the case.
Is the specific intent rule nonetheless justifiable? Arguably not, for at least the following reasons. First, the rule is simply too lenient, in just those ways the Bybee memo exposed--and there is no good reason why the U.S. should not criminalize all instances of torture made unlawful by Common Article 3. Second, the rule is artificial in just the manner the Bush Administration has publicly disavowed: “the President has been very clear on the issue of torture, which is we are against it—and torture by anyone's common-sense definition of it, not some fancy definition.” Third, there is the question of consistency: the Torture Victims Protection Act, 28 USC § 1350 note (3)(b), which supplies a tort remedy for victims of torture, proceeds under a general intent rule, as do many war crimes tribunals to which the United States has lent political and diplomatic support.
Finally, there is the issue of whether “the world is beginning to doubt the moral basis of our fight against terrorism.” What is the world to make of the fact that the United States relies on artifice and technicality to avoid the plain meaning and import of the Geneva Conventions, and therefore appears willing to countenance situations like this one?
Defendant: Yes sir.
Prosecutor: Did you know it would permanently disfigure him?
Prosecutor: Did you know it would prevent him from being able to walk?
Prosecutor: And were you doing it for the purpose of obtaining information or a confession?
Prosecutor: Isn’t that torture?
Defendant: No sir. Read the statute. I knew those harms would occur, but I did not specifically intend any of them. Causing those harms was not my conscious objective.
Perhaps I am wrong to assume that Common Article 3 would condemn this behavior but that the proposed amendment to the War Crimes Act defining torture would not. The Levin memo carefully avoids clarifying the issue, and Senators McCain and Graham have refused to comment. Yet the issue goes to the heart of our commitment to ban torture, and to do so in a manner that comports with common sense. Congress should replace the specific intent rule in both the WCA and section 2340 with language which tracks the general intent standard of the Convention Against Torture. At a minimum, it should hold hearings on the issue to determine whether the proposed legislation represents a significant failure to live up to our obligations under the Geneva Conventions.