Friday, May 16, 2008

What was the "specific intent"?

The infamous Yoo/Bybee defence of torture contains, amongst other things, the claim that torture (under 18 USC § 2340) is a crime of "specific intent", and thus it is not torture if the "intent" was not to cause the severe pain or suffering prohibited by § 2340(A), but rather, let's say, just to have a friendly chat and extract a few confessions. Here's some commentary on that:
I. THE TORTURE MEMO: FAULTY AND RECKLESS

Numerous legal scholars have systematically deconstructed the shoddy reasoning of the Torture Memo. I will not restate their analyses. I will instead focus on the sections of the Torture Memo where Yoo and Bybee's advice appears to be reckless given the end to which it was to be used. Before doing so, however, I will explain the nature of the task in which Yoo and Bybee were engaged.

The Torture Memo begins by analyzing the definition of torture as implemented in 18 U.S.C. § 2340(A). To violate section 2340(A), the statute requires that (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant's custody or control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) the act inflicted severe physical or mental pain or suffering. Yoo and Bybee were asked by the White House to focus on the fourth and fifth elements.

Yoo and Bybee first define "specific intent" very narrowly. They write, "In order for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act . . . . [Knowledge alone that a particular result is certain to occur does not constitute specific intent]." Their definition presents a gross simplification of a complex issue. As the Levin memo -- which ultimately superseded the work of Yoo and Bybee -- notes, "[i]t is well recognized that the term specific intent is ambiguous and that the courts do not use it consistently." The prevailing view among criminal law practitioners is that a person acts with specific intent when he either desires the result of his conduct or the result is practically certain to follow from his conduct. In the Torture Memo, however, Yoo and Bybee equate specific intent with "purpose," without even acknowledging that their position could be perceived as legally controversial.

To be sure, lawyers can reasonably disagree about the meaning of "specific intent." More important is that in response to a request for guidance on interrogation procedures from the White House, Yoo and Bybee advised that "[e]ven if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite mens rea." In fact, Yoo and Bybee seemed to favor the infliction of pain on detainees when they note that information gained from suspected Al Qaeda personnel could prevent attacks equal or greater in magnitude to September 11th. Their implication is clear: because the Bush administration's goal is the security of the United States and not cruelty for cruelty's sake, good faith actions by interrogators to stop future terrorist attacks cannot be prosecuted as torture. Yoo and Bybee knew that their work would be used to shape interrogation policy, and yet they were indifferent as to how their legal advice would be applied in the real world by the Bush administration. The Pentagon ultimately relied on this advice to sanction extreme interrogation tactics including the use of deprivation of light, hooding, and even exposure to cold weather and water-boarding at Guantanamo Bay.
Then I saw this in today's S.F Chronicle:
A week after being paroled for bank robbery, Horace Bordelon returned to the same downtown Oakland bank and held it up again in 2004. His defense at trial? He robbed the bank only so he could return to the routine of prison life, so he didn't actually intend to steal any money.

The jury didn't buy it, and Bordelon was sentenced to 11 years in prison on a second-degree robbery conviction. A state appeals court rejected his appeal Thursday, saying his unique "institutionalization defense" was weak.

It also called Bordelon's first bank robbery "inartful" and said his second heist was done "ineptly."

"While defendant may have been hoping to get caught, he also might have been content to keep the money - a win/win situation from his point of view," Justice James Marchiano of the First District Court of Appeal wrote.

Marchiano said there was no evidence that Bordelon had planned to give the money back.
Further down:
Bordelon's attorney, Deputy Public Defender Tony Cheng, told jurors that the defendant "wanted to get caught holding the money so that he can go back to jail. He was not interested in keeping the money; he was not interested in getting away. He was interested in getting caught and getting arrested holding the money."

The attorney said Bordelon committed no crime and that his actions were "only a cry for help."
Looks like they can nail you for intent, even if you have different, more -- ummm, "benign" -- purposes as well. If you intended the forbidden result, other purposes don't matter.

But what was the point of the torture, as long as we're asking? DDay at Digby's Hullabaloo has some thoughts in this "MUST READ" article:
[R]ather than coming from a few bad apples at the various detention sites, there was a parallel process of improvisation and brainstorming happening at the highest levels. Before the activities were codified, the interrogators got to play Jack Bauer and draw up a wish list.
(Staff Judge Advocate at Guantanamo Diane) Beaver told me she arrived in Guantánamo in June 2002. In September that year there was a series of brainstorming meetings, some of which were led by Beaver, to gather possible new interrogation techniques. Ideas came from all over the place, she said. Discussion was wide-ranging [...]

Jack Bauer had many friends at Guantánamo Bay, Beaver said, "he gave people lots of ideas." She believed the series contributed to an environment in which those at Guantánamo were encouraged to see themselves as being on the frontline - and to go further than they otherwise might [...]

The younger men would get particularly agitated, excited even: "You could almost see their dicks getting hard as they got new ideas." A wan smile crossed Beaver's face. "And I said to myself, you know what, I don't have a dick to get hard. I can stay detached."
However, an authoritarian Administration was not going to let the sexually aroused grunts drive this policy. In fact, proxies to the highest-ranking officials in the executive branch went on a field trip to carry out their boss' desires.
Dunlavey told me that at the end of September a group of the most senior Washington lawyers visited Guantánamo, including David Addington, the vice president's lawyer, Gonzales and Haynes. "They brought ideas with them which had been given from sources in DC." When the new techniques were more or less finalised, Dunlavey needed them to be approved by Lieutenant Colonel Diane Beaver, his staff judge advocate in Guantánamo. "We had talked and talked, brainstormed, then we drew up a list," he said. The list was passed on to Diane Beaver." [...]

Beaver confirmed what Dunlavey had told me, that a delegation of senior lawyers came down to Guantánamo well before the list of techniques was sent up to Washington. They talked to the intelligence people, they even watched some interrogations. The message from the visitors was that they should do "whatever needed to be done", meaning a green light from the very top - from the lawyers for Bush, Cheney, Rumsfeld and the CIA.
The interrogators were allowed some jollies in the idea formation phase, but once the rules were put in place, it was Cheney, Rumsfeld, and Bush - their top deputies, sitting around and WATCHING live interrogations, and demanding that the most strenuous techniques be employed, going around Chairman of the Joint Chiefs Richard Myers, whose bitterness suggests he was a key source for the ABC story.
So was this a "win/win situation" for Addington, Yoo, Haynes, Cheney, and Dubya?

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