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Thursday, April 23, 2009

A Consequentialist Justification for Torture?

The New York Times wonders whether history might judge the Bush Administration's repeated use of torture (including 266 applications of waterboarding on two al-Qaeda detainees) favorably if it could be shown that torture yielded high-value information that kept the U.S. safe.  The NY Times reports: "In a twist this week, Mr. Cheney, a fierce defender of secrecy as vice president, called for the release of more classified memorandums that he asserted prove the effectiveness of the coercive techniques."  

The NY Times raises the idea that a truth commission might examine this question.  Admittedly, that kind of a truth commission would differ from the understanding that transitional justice scholars have of truth commissions, or the mandates of any of the truth commissions that have operated elsewhere these past two decades.

Military interrogators generally believe that torture does not produce valuable information. Those tortured in the Spanish inquisition, after all, claimed they were in concert with the Devil, and those tortured by the Khmer Rouge confessed to being in concert with the capitalists.  Independently of the question whether the causation Cheney claims ever could be established, should violations of international criminal law be permissible based on this consequentialist logic? If so, why not extend that logic into domestic police operations? Or as an assessment of the legality of other constitutional violations?

I have long thought that the ban on torture protected not only the tortured, but also the torturer.  The humanity of the tortured and the torturer become intertwined. That, too, is a consequentialist justification, I suppose: namely, refusing to torture protects our collective humanity and dissuades another rallying tool for terrorist recruitment.

Or, perhaps, we might be better served by a return to good-old-fashioned deontology and moral imperatives. Don't torture because ... torture is wrong, point final. What sort of country discusses the possible merits of repeated, systematic acts of torture?

Posted by Mark Drumbl on April 23, 2009 at 02:55 PM | Permalink


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I am being censored by Prof. Heller over at his latest post in Opinio Juris but my comment is related to some of the ideas raised in this post. So, here it goes.

Under 18 U.S.C. § 2340, the act must be “specifically intended to inflict severe physical or mental pain or suffering.” “It is generally recognized that evidence of motive may be probative of specific intent.” Lesko v. Owens, 881 F.2d 44, 53 (3d Cir. 1989). Thus the argument that the defendant has “a legitimate belief that the torturee is a threat to national security” is relevant to the issue of specific intent.

Even in the context of the Torture Convention, at least one federal court has recognized that motive is relevant to demonstrate the requisite mens rea.

“Given the ratification history of the CAT, we conclude that the CAT requires a showing of specific intent before the court can make a finding that a petitioner will be tortured. In this vein, we note that Pierre does not dispute that the CAT includes a specific intent requirement. Rather, Pierre argues that the specific intent requirement can be satisfied by a showing that the Haitian officials have knowledge that severe pain or suffering is the practically certain outcome of his imprisonment. We disagree that proof of knowledge on the part of government officials that severe pain or suffering will be the practically certain result of Pierre’s detention satisfies the specific intent requirement in the CAT. Rather, we are persuaded by the discussion in Auguste that the specific intent requirement, included in the ratification history of the CAT, requires a petitioner to show that his prospective torturer will have the motive or purpose to cause him pain or suffering. As in Auguste, we hold that “for an act to constitute torture, there must be a showing that the actor had the intent to commit the act as well as the intent to achieve the consequences of the act.” Auguste, 395 F.3d at 145-46. Specific intent requires not simply the general intent to accomplish an act with no particular end in mind, but the additional deliberate and conscious purpose of accomplishing a specific and prohibited result. Mere knowledge that a result is substantially certain to follow from one’s actions is not sufficient to form the specific intent to torture. Knowledge that pain and suffering will be the certain outcome of conduct may be sufficient for a finding of general intent but it is not enough for a finding of specific intent.”

Pierre v. Attorney General of U.S., 528 F.3d 180, 189 (3d Cir. 2008)

Posted by: anon | Apr 24, 2009 9:11:14 AM

So why is a temporary infliction of physical pain so much worse than, say, a life sentence in a maximum security prison?

Posted by: jd | Apr 23, 2009 11:30:00 PM

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