The article is titled "Putting The Hoods Over The Heads Of Congress." Very good read about the continuing apples falling from the tree of Abu Ghraib, specifically the recent Wall Street Journal expose.
I'm looking at my copy of the Working Group Report (6 March 2003) which is at the heart of these new revelations.
On page eight (my copy - the report number is 9), the WGR is opining on the requirements of proving "specific intent" to torture. "General intent" is not enough - the defendant in a torture trial must be proven to have specific intent to torture.
The difference is illustrated by an case from the Supreme Court itself:
The Supreme Court has used the following example to illustrate the difference between these two mental states:Carter v. US is an interesting quote here. The defendant had robbed a bank, but had exerted no force or intimidation inside the bank (he had shoved an exiting customer back into the bank, who screamed - he then entered the bank, hopped over the counter unhindered, took the cash, and ran). He was tried under 2113(a) and had requested a jury instruction pretrial on the requirements of 2113(b), a lesser charge. It was denied because (b) was eventually held to not be a subset of (a).
[A] person entered a bank and took money from a teller at gunpoint, but deliberately failed to make a quick getaway from the bank in the hope of being arrested so that he would be returned to prison and treated for alcoholism. Though this defendant knowingly engaged in the acts of using force and taking money (satisfying "general intent"), he did not intend permanently to deprive the bank of its possession of the money (failing to satisfy "specific intent").
Carter, 530 US at 268 (citing I W. Lafave & A. Scott, Substantive Criminal Law 3.5 at 315 (1986).
This was because of three different elements in (b) not found in (a). The one we're concerned with is intent. Carter's eventual decision relied on the case US v. Lewis, which was the actual "I robbed the bank to get back into prison" case. The Lewis decision held that general intent was enough to convict under 2113(a) - no "specific" intent was required, as in (b). Therefore, (a) and (b) were two separate classes of crime and Carter was not deprived of due process when his jury wasn't instructed about (b).
So, back to the WRG. Since the statute under discussion (18 USC 2340) defines the act of torture with a requirement of specific intent, the WRG claims the following:
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...(general intent "usually takes the form of recklessness (involving actual awareness of a risk and the culpable taking of that risk) or negligence (involving blameworthy inadvertance)").You see? That guy under the hood with his genitals hooked to electrodes? The electrodes aren't actually hooked to anything, so we specifically know that severe physical pain isn't going to occur. No torture.
The document goes on to argue that even if you know a particular result is "certain to occur", theoretically you haven't demonstrated specific intent. For an act to become torture under this act, the act must be undertaken with the specific purpose of causing severe pain and suffering. But the interrogation uses blunt this: the specific intent is to obtain the information, not to cause the pain.
So, yeah, the man under the hood is suffering severe mental pain, but our intent is to get the information, not to cause the pain. Oh, those bad men who don't tell us what we want to know...you see what they made us do? This is going to hurt me more than it hurts you, ya know...
However, the report regretfully concludes that paragraph by noting that juries can and usually do conclude specific intent when certain knowledge of the outcome of the act is present. Boohoo for the poor Bushistas.
The whole document, then, is meant to help blunt the specific knowledge necessary for a conviction of torture to occur. It's cover for Bush, who is using it as such. And this is only looking at one page! It's an exercise in political obstifucation. They cloud their own minds so that they can do as they please.
That's the interesting thing - this is a group of prosecutors making criminal proscecutions for torture as difficult as possible for themselves. Isn't that proof enough of how nutty this WGR is?
This gang should hang.