Specific Intent and the Purposeful Narrowing of Victim Protection Under the Convention Against Torture

Abstract

Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (“CAT”) prevents removal of a person to a country where there is a substantial likelihood of torture. The U.S. ratified the CAT in 1994, yet modified the treaty’s definition of “torture” by inserting an understanding that “torture” includes only pain or suffering that is “specifically intended.” Specific intent, an antiquated criminal law term, has several different meanings in criminal law jurisprudence. In Matter of J-E-, the Board of Immigration Appeals in 2002 chose the most narrow definition of specific intent, “purposeful,” and in doing so shifted the focus in CAT protection cases from the victim to the alleged torturer. In this article, I argue that the BIA has adopted a misguided approach to CAT protection that disregards substantial criminal law jurisprudence and creates an insurmountable obstacle to obtain protection from torture. As a solution, I propose that Attorney General Eric Holder or courts adopt a revised definition of specific intent that includes “knowing that severe pain or suffering is foreseeable.” Such a definition is consistent with the legislative history and purpose of the CAT and finds ample support in criminal law jurisprudence. In addition, this definition of specific intent is employed by the Office of Legal Counsel of the Department of Justice in their 2004 memo regarding whether certain interrogation techniques would subject U.S. troops to prosecution under the CAT.