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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Saturday, June 26, 2004 ::
    Torture memos -- first comment

    I'm going to be away for a few days, with limited computer access, so if the Court upends the nation again and I don't comment immediately, that's why.

    When I get back I hope to post something about the "torture memos". The one I've looked at so far -- the one from OLC in August of 2002 -- makes a rather strange move, it seems to me, in construing the "intent" term in the federal torture statute. It's first-year black-letter law that something done "knowingly" is done intentionally. You aim to blow up Mr. A; you do it by blowing up a commercial on which Mr. A and 200 other people are flying --> you're guilty of 201 counts of murder, not one. You may only have "intended" to kill Mr. A, but you knew other passengers would die too.

    So why would OLC lawyers think that the torture statute is not violated if the defendant "merely" knew his acts would cause torturous pain? The answer may have to do with the fact that the statute, rather unusually, uses "specifically intends" as its mens rea term -- but that still may not give OLC a solid argument.

    More when I get back.

    :: David M. Wagner 10:32 PM [+] ::

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