Deconstruction of Torture Memo’s Analysis of Criminal Intent

One of the weirder parts of the Torture Memo, which I didn’t write about earlier, was the attempt to suggest that a torturer might be able to benefit from what we lawyers call a ‘pure heart, empty head’ defense: ‘Honest, judge, I didn’t think it was torture.’ The memo tries this on in two implausible ways: (1) The guy doing the damage honestly believes it’s legal; (2) the guy doing the damage isn’t sure it’s really going to be that damaging. Both arguments seem completely inapplicable to the circumstances, neither is convincing, and the legal analysis is muddled. But don’t take my word for it, it’s not my field. Instead, have a look at these three posts by experts.

Update (6/11/04): Also don't miss Eric Muller's excellent comment, Manipulating Doctrine.

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8 Responses to Deconstruction of Torture Memo’s Analysis of Criminal Intent

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  3. Romdinstler Jones says:

    If, following the strict wording of the memo, the soldiers at Abu Ghraib cannot be held responsible for their actions, then why is the Bush administration, via the military, trying to convict them for those actions? Either the memo was never made official policy and those soldiers are being prosecuted under other statutes or the memo was made official policy and they are being prosecuted anyway.

    If the memo was never made official policy, then that means Iraqi detainees were treated in violation of Geneva Conventions and US law prohibiting torture under some other authority or under no authority at all. Is it likely that, say, General Sanchez, who approved some of the tactics involved in the interrogation of detainees, acted of his own accord and not on the basis of some official directive? That does not seem likely. It seems more likely that the memo in question was indeed official policy and that his actions and the actions of everyone below him – including the soldiers currently being prosecuted – occured as result of that policy. So, we’ve got the downside covered. The important question, as we all know, is how far *up* the chain of command we have to go before finding out who ultimately put that policy in place.


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