Motive Versus Specific Intent?

Andrew McCarthy over at the National Review Online has torture apologists in a state of rapturious delight. He's argued that the Obama administration and proponents of prosecution of Bush administration officials are hypocrites because they share the OLC's lawyers' view that for an act to be torture under the Convention on Torture ("COT"), there has to be a "specific intent to torture."

McCarthy pointed out that the Obama administration has asserted this very same argument in court, and that the Third Circuit Court of Appeals upheld this view as the law. The Court held that a man resiting deportation to Haiti could not invoke the COT unless he could demonstrate that the government of the country he was being deported to had the specific intent to torture him. Mere knowledge that the government would treat him in a way that would result in his experiencing severe pain and suffering (in this case, by imprisoning him despite his serious illness, pursuant to its policy of imprisoning all repatriated ex-convicts) was not sufficient grounds to invoke the provisions of the COT.

Fair enough, but McCarthy continues to argue that this legal standard exhonerates Bush Administration officials because it requires them to have "evil motives" and they had no such motives (or cannot be shown to have had such motives). According to McCarthy, they needed to have specific intent to torture, but they had no such intent.

How much of this nonsense can we take? Lets go through it again.

McCarthy confuses motives with intent. Motives constitute the reasons for doing a particular thing. Intent has nothing to do with motive. You can do an act intentionally with a variety of motives.

Moreover, the law does not care about a person's motive. It only cares about a person's action and the degree of intentionality with which a person performs the action.

In the law, "specific intent" means that a person acted knowingly and volitionally in doing the act, as oppossed to recklessly or negligently. In order for a person to be guilty of torture pursuant to the COT, that person has to knowingly and volitionally torture someone.

So far so good.

The COT defines "torture" as "inflicting severe physical or mental pain or suffering." The case that McCarthy cites and excerpts in his post explains all of this. Go read it for yourself if you don't believe me.

So, the definition of "torture" pursuant to the COT and U.S. case law is "acting with the specific intent of inflicting severe physical or mental pain or suffering."

The question, therefore, is . . . did Bush administration officials act with the specific intention of inflicting severe phyisical or mental pain or sufferring?

Amazingly, McCarthy and other Bush Administration defenders think that they didn't.

Pardon me, but my understanding is that the "enhanced" techniques were designed and used to "break" the detainees - Vice President Cheney's term, not mine. And (I hope) its beyond dispute that these techniques were designed to create pain and suffering. That's how they work, after all.

Don't believe me? Hire a team of people to keep you awake for eleven straight days and see how you feel on day eleven. Have them strip you naked and high chain you in a 54 degree room for a good part of that time. You'll get the idea.

And, of course, you "break" a detainee by inflicting unbearable pain or suffering on him. That is, you torment him until he can't take it anymore and he provides you with the information that you want.

And wouldn't unbearable pain or suffering have to be "severe?"

For the love of God, already. Inflicting severe pain and suffering was the plan! Bush administration officials have admitted as much - "we're taking the gloves off" is the way they themselves described and boasted about their actions. The OLC lawyers were part of the plan to cover their asses - legally speaking. That makes them co-conspirators.

Am I missing something, or is this is really just a load of bullshit.

Come one guys, stop it already.

Joe H.