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Tortured Reasoning: The Intent to Torture Under International and Domestic Law (with Aileen Nowlan and Julia Spiegel), 52 Virginia Journal of International Law 791 (2012)

Abstract

The infamous memos that concluded that torture only existed where there

was infliction of pain equivalent in intensity to the pain "associated with a

suffiiently serious physical condition or injury such as death, organ failure, or

serious impairment of body functions" also concluded that "a defendant [must]

act with the peciflc intent to inflict severe pain." Specjically, "the infliction of

such pain must be the defendant's predse objective." Although this

interpretation of the intent requirement has been definitively repudiated - and

rightly so - there has thus far been little attention paid to the level of intent

that is required to prove torture under domestic and international law. This

Article aims to bring clarity to this contested and misunderstood element of the

legal definition of torture. We demonstrate that torture is a specic intent crime

under U.S. law and international law. As we shall show, moreover, the veg

definition of torture in the Convention Against Torture supplies the additional

mens rea requirement that renders the crime one of specic intent: The accused

must not only inflict pain and suffering, but he must do so for a pupose

prohibited by the Convention (for example, to extract a confession). We show

that U.S. courts and international courts and tribunals have consistently

applied this understanding of the specific intent standard for torture. In doing

so, they have not required direct evidence of mental state, but have instead

inferred intent from facts and circumstances that demonstrate knowing infliction

ofpain or suffering for a prohibited pupose. We hope that this conclusion will

help guide U.S. practice in filling the dangerous analytical void left by the

repudiated memos.

Date of Authorship for this Version

2012

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