Dispatches from the Creation Wars

The National Review’s Andrew McCarthy is making a profoundly confused argument about torture and intent. He first started to make this argument a few weeks ago and he continues it in a second column a few days ago. The argument essentially says that under U.S. law, any action taken against a detainee cannot be considered torture unless it was taken with the specific intention of being sadistic. If it was done for some other purpose, like obtaining information, then it isn’t torture at all.

Torture, however, is not a general-intent crime. It calls for proof of specific intent. As I recently recounted, the Third Circuit U.S. Court of Appeals explained the difference in its Pierre case last year: to establish torture, it must be proved that the accused torturer had “the motive or purpose” to commit torture. Sharpening the distinction, the judges used an example from a prior torture case — an example that thoroughly refutes Holder’s attempt to downgrade torture to a general-intent offense: “The mere fact that the 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.”

To state the matter plainly, the CIA interrogators did not inflict severe pain and had no intention of doing so. The law of the United States holds that, even where an actor does inflict severe pain, there is still no torture unless it was his objective to do so. It doesn’t matter what the average person might think the “logical” result of the action would be; it matters what specifically was in the mind of the alleged torturer — if his motive was not to torture, it is not torture.

And he accuses the Obama DOJ of hypocrisy because they, supposedly, used this very same argument about intent in a brief they filed in a case involving former Nazi guard John Demjanjuk, who is trying to claim that he can’t be extradited to Germany to face trial because he might be tortured there and the Convention Against Torture (CAT) forbids such a transfer.

One might have expected Holder to know that. The argument was used in a DOJ filing before the Sixth Circuit U.S. Court of Appeals only three weeks ago. Indeed, the Haitian example cited by the Third Circuit is quoted here, word-for-word, from the brief filed by Holder’s own department.

The bottom line is, Rep. Lungren skillfully steered Attorney General Holder into the truth: As a matter of law, CIA waterboarding — like the same waterboarding actions featured in Navy SEALs training — cannot be torture because there is no intention to inflict severe mental or physical pain; the exercise is done for a different purpose. When Rep. Gohmert’s questioning made it crystal clear that Holder’s simplistic “waterboarding is torture” pronouncement was wrong, the attorney general — rather than admitting error — tried to change the legal definition of torture in a manner that contradicted a position the Justice Department had just urged on the federal courts. It seems that, for this attorney general, there is one torture standard for Bush administration officials, and another one for everybody else.

But McCarthy is wrong on both of these claims. He is absolutely wrong that the intent of the interrogator determines whether a given action is torture or not. The CAT makes it very clear that any action that inflicts severe pain and suffering that is taken to extract information is torture:

[A]ny 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, 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, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.

There are two things that are important in that definition of torture. The first is that the thing that our agents did – inflicting severe pain and suffering for the purpose of obtaining information or a confession IS torture. The second is that the definition of torture does not include routine pain or suffering that is incidental to lawful sanctions. In other words, the mere fact that being imprisoned may cause one to suffer does not mean that being sent to prison as a punishment for a crime constitutes torture.

Why is that last part important? Because that is the exact argument being made by Demjanjuk in his attempt to avoid extradition. He has no evidence at all that Germany has any intention of torturing him or even mistreating him in any way. He is arguing that because of his age and poor health, merely being put on trial and possibly imprisoned will cause him great suffering and therefore it is torture to subject him to trial and possible imprisonment.

It is that argument that the brief filed by the DOJ addresses (see the brief here in PDF form). Here is the full quote that McCarthy offers from that brief:

[T]orture is defined as “an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. . . . ” 8 C.F.R. § 1208.18(a)(2). Moreover, 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) (en banc); see 8 C.F.R. § 1208.18(a)(5) (requiring that the act “be specifically intended to inflict severe physical or mental pain or suffering”); Auguste v. Ridge, 395 F.3d 123, 139 (3d Cir. 2005) (“This is a ‘specific intent’ requirement and not a ‘general intent’ requirement” [citations omitted.] 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; Auguste, 395 F.3d at 153-54 (“The mere fact that the 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.”)

But he is confusing two different issues. At issue here is the question of whether the German government has any intent TO torture him at all. There is a difference between showing that someone will be tortured and showing that someone has been tortured. For the purposes of the extradition hearing, Demjanjuk has to show that it is likely that he will be tortured; that is quite different from someone having to show that he was tortured.

Holder’s brief argues that there is no evidence that Germany has any intent to torture him at all. But if, in fact, he was waterboarded or forced to undergo some other harsh interrogation technique once he’s transferred to German custody, he would not have to show that the guards who did so intended to torture him; all he would have to show is that their actions inflicted severe pain and suffering for the purpose of extracting information.

Intent does matter, but not in the way McCarthy thinks it does. The intent that is relevant here is whether Germany has any intent to torture, that there is any serious likelihood that they will subject him to treatment that constitutes torture. And there is no evidence at all that they do. He is being charged in a regular German court with all the normal due process protections afforded anyone in that country. The fact that going to prison will be uncomfortable to him does not make it torture and the CAT explicitly exempts the routine suffering of imprisonment from the definition of torture.

Here’s where intent does matter: It’s torture when we subject a detainee to waterboarding but not torture, under the CAT, when we subject Navy SEALS to waterboarding during SERE school. Why? Because there is no intent on the part of SERE instructors to extract information or confessions, or to punish the soldiers while doing so. The intent is to help them survive those techniques should they be captured. So yes, intent does matter – but not at all the way that McCarthy is arguing.