TorTure WArrANTS, SeLF-DeFeNSe, AND NeceSSiTy

SSRN Electronic Journal, 2000

nb.vse.cz

2012

Val. UL Rev., 2008

International Journal of Applied Philosophy, 2015

2012

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 repudiatedand rightly sothere 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.

In this paper I argue that necessity-based defenses of torture fail, and that the institutional practice of torture threatens not only the moral integrity of the public in whose name it is committed, but, ultimately, the liberty of that public as well.

2014

This volume brings together the most important writing on torture and the "war on terrorism" by one of the leading US voices in the torture debate. Philosopher and legal ethicist David Luban reflects on this contentious topic in a powerful sequence of essays including two new and previously unpublished pieces. He analyzes the trade-offs between security and human rights, as well as the connection between torture, humiliation, and human dignity; the fallacy of using ticking-bomb scenarios in debates about torture; and the ethics of government lawyers. The book develops an illuminating and novel conception of torture as the use of pain and suffering to communicate absolute dominance over the victim. Factually stimulating and legally informed, this volume provides the clearest analysis to date of the torture debate. It brings the story up to date by discussing the Obama administration's failure to hold torturers accountable.

Criminal Law and Philosophy, 2015

Uwe Steinhoff (2013) defends the moral and legal permissibility of torture in a limited range of circumstances. This article criticizes Steinhoff's arguments. The analogy between ordinary defensive violence and defensive torture which Steinhoff argues for is partly spoiled by the presence, within defensive torture, of opportunistic harm, in addition to eliminative harm. Steinhoff's arguments that the mere legalization of defensive torture would not metastasize into a more full-fledged institutionalization of torture are also found wanting. As a minimal form of institutionalization, the mere legalization of torture would already be at risk of further entrenchment and growth.