Okay, this one is complicated, so you're going to have to bear with me, but I've seen something in one of the torture memos that parallels a well-known tax evasion scam, sometimes called a "reliance defense package."  The idea is that, in order for the government to convict you of tax evasion, they need to prove that you knew that what you were doing was illegal, but if you have an opinion from a lawyer that the federal income tax does not apply to wages, then you had a good faith, reasonable basis, to believe that you were not required to pay taxes, and you can't be convicted.

Here's the weird part:  The Supreme Court decision that established that a good faith belief is a defense to charges of income tax evasion was cited in one of the torture memos.


In the 8/1/2002 memo to then Counsel to the President Alberto Gonzales signed by Jay Bybee, there is discussion of "specific intent" in the context of the federal statute outlawing torture, and that discussion conflates "specific intent" with "willfulness" as defined by Cheek v. United States, 498 U.S. 192 (1991).

This is a little complicated, but I'll take it step by step.

According to the memo, 18 USC 2340A makes it a federal crime to commit torture outside of the United States, and the memo concludes that the definition of "torture" in 18 USC 2340 requires "specific intent."

The meaning of "specific intent" is discussed on pages 3 and 4 of the memo, and the memo states (correctly, I think), that "specific intent" means that the defendant acts with the intent to cause the prohibited result.  So, for example, there is a difference between "a person who knows that another person will be killed as a result of his conduct and a person who acts with the specific purpose of taking another's life."

So far, so good.

Except that the meaning of "specific intent" does not seem to do the CIA any good.  The people who (for example) water-boarded prisoners, acted with the specific intent of inflicting suffering.  The suffering was not a foreseeable but unintended consequence, but exactly what was intended.  They wanted the prisoners to suffer so that the prisoners would provide information.  If water-boarding is a level of suffering that is torture, then the CIA operatives who inflicted water-boarding acted with the specific intent to torture.

But here is where the memo takes a twist that is either incompetent or disingenuous.  In the last paragraph on page 4, the memo states:

Further, a showing that an individual acted with a good faith belief that his conduct would not produce the result that the law prohibits negates specific intent. See, e.g., South Atl. Lmtd. Ptrshp. of Tenn. v. Reise, 218 F.3d 518, 531 (4th Cir. 2002). Where a defendant acts in good faith, he acts with an honest belief that he has not engaged in the proscribed conduct. See Cheek v. United States, 498 U.S. 192,202 (1991); United States v. Mancuso, 42 F.3d 836, 837 (4th Cir. 1994).  For example, in the context of mail fraud, if an individual honestly believes that the material transmitted is truthful, he has not acted with the required intent to deceive or mislead. See, e.g., United States v. Sayakhom, 186 F.3d 928,93940 (9th Cir. 1999). A good faith belief need not be a reasonable one. See Cheek, 498 U.S. at 202.

Although a defendant theoretically could hold an unreasonable belief that his acts would not constitute the actions prohibited by the statute, even though they would as a certainty produce the prohibited effects, as a matter of practice in the federal criminal justice system it is highly unlikely that a jury would acquit in such a situation. Where a defendant holds an unreasonable belief, he will confront the problem of proving to the jury that he actually held that belief. As the Supreme Court noted in Cheek, "the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury . . . will find that the Government has carried its burden of proving" intent. Id. at 20344. As we explained above, a jury will be permitted to infer that the defendant held the requisite specific intent. As a matter of proof, therefore, a good faith defense will prove more compelling when a reasonable basis exists for the defendant's belief.

The citation to Cheek shows that the memo was conflating the concept of "specific intent" with the concept of "willfullness," which is completely different.  The issue in Cheek was not whether the defendant intended the specific consequences of his actions, but whether he understood that his actions were illegal.  The Supreme Court has held that, in the context of the tax laws, the requirement that an act be "willful" means that the defendant must be shown to have intentionally violated a known legal duty.  But 18 USC 2340(1) doesn't require that the defendant know that his actions are illegal, but only that he is acting "specifically intending to inflict severe physical or mental pain or suffering." 

Citing the Cheek decision in the context of a discussion of "specific intent" could not have been a mistake, because both the words and the concept of "specific intent" are very different from the words and concept of "willfully."  Rather, the memo was intended to advance the idea that the CIA couldn't have "specific intent" if they believed that their actions were lawful, and the memo itself could provide a "reasonable basis" for the belief that their actions were lawful.

In other words, the Department of Justice was selling a "reliance defense package" to the CIA.  The memo was intended to give the CIA a "get out of jail free" card even if the legal conclusions presented in the memo were later shown to be wrong.  It wasn't necessary for the memo to be right, only that the CIA believe (in good faith) that the conclusions were right.

They were papering the case from the beginning.