In this case the depraved indifference would be to the possibility of torture, not to death itself, but that is exactly what I am arguing, based on really, really, really extensively examining the public information about this….I think I actually sent you a draft of my paper at one point, though that was when it was 50-odd pages instead of over 80.

Yes, I think you do misunderstand. I’m just trying to understand Henry’s claim by placing it into the traditional framework of criminal law. No need to pull out the John Yoo card.

I don’t quite understand your argument that this is akin to depraved heart homicide, though. That standard is generally used when the defendant technically may not have known the victim would die, but the defendant was so evil he just didn’t care. To the defendant, the victim’s life had no value, no meaning, and was not a relevant factor in his decisionmaking. I haven’t followed this issue closely, but I’m not aware of any evidence that U.S. policy views death as simply irrelevant. The accusations are that the U.S. is knowingly taking steps that create an unjustificable risk of death, which would seem to be (at least in modern criminal law terms) a reckless mens rea.

How is this is different from sending them to be tortured? Sebastian is exactly right. Why send them to Syria or wherever unless methods of obtaining information are available there that are unavailable in the US? That suggests that torture is more of a certainty than a “substantial risk.”

And by the way, what is this legalistic nonsense about assurances? As a matter of common sense, not to say logic, aren’t such assurances necessarily meaningless, unless you think torturers would never lie about their intentions

Klan: Foreign governments that engage in torture
Mississippi police that abandoned civil rights workers to the Klan: US government that ships suspects to the governments that engage in torture.

Now, I don’t think the first comparison should be controversial at all. Those governments are very bad actors. And Rea, in 10, has taken care of any idea that the difference between the civil rights workers and the torture victims is relevant. So Henry’s comparison is eminently fair. And Dan was trolling.

The piece is both interesting and disturbing. If what is says about the Gitmo prisoners are true, most are much more like that Afghan poet who was detained on an informer’s report then the terrorists we have been told were being held there.

I’m skeptical that all, or even any, of the persons rendered to Uzbekistan were really Uzbeks. The Times article posted by Henry earlier quotes the former British ambassador to Uzbekistan saying CIA flights to Tashkent in 2003 and early 2004 were frequent, about twice a week. It’s unlikely that those flights were related to the Afghan operation, which had winded down considerably by then.

Moreover, as the article mentions, the flight logs for one of the flights into Tashkent undertaken by the Gulfstream jet indicate that it originated from Baghdad. I suppose it’s safe to assume that there aren’t many Uzbeks involved in the Iraqi insurgency.

But you should explore this line a bit further. What information gathering technique is furthered by sending people to Syria? What is available in Syria that cannot be done here?

Prof. Kerr sounds like he might be endorsing the John Yoo theory of specific intent: I didn’t WANT to break his kneecap, I just wanted to make him talk, and I knew that breaking his kneecap would make it more likely…perhaps I misunderstand.

I’ll bow to your superior knowledge of criminal law, but I do think that there is a higher level of intentionality there than you are suggesting. In the Ibn al-Sheikh al-Libi story, as Cloonan tells it, it would seem that Cloonan and the FBI believed that they could get information out of al-Libi by less confrontational means of interrogation within the US. The CIA disagreed, arguing that “tougher interrogation” was needed, and rendered him to the Egyptian security services. That seems to me to be quite strong evidence that the CIA believed that it would be possible for the Egyptian police to do things which US authorities could not themselves do in order to make al-Libi talk. Given the notorious reputation of the Egyptian security services, I think that any explanation of the CIA’s motives which didn’t include some intent that al-Libi be tortured in order to get that information, would be hard to swallow.

Also, as I think Katherine is suggesting, would the analogy of the police/Ku Klux Klan qualify under your stronger definition? That is, as noted, we don’t have any evidence that the police actually knew what would happen to the civil rights workers – they certainly knew that horrible things were likely to happen to them, but they may not have known the workers were going to be murdered.

Now, for a means only moralist, this is irrelevant. But if ends matter, this is at least something in favor of rendition.

You write: “I am indeed claiming that the administration has, at least some of the time, an intentional mens rea in sending these individuals to regimes where they are likely to be tortured; it wants to get information from them.”

Not to be a stickler about mens rea—hey, wait, I teach criminal law, so I guess I can be a stickler about it—you seem to be describing something more like recklessness than intent. That is, you don’t think that the Bush Administration’s goal is for the people to be tortured, right? As I read your response, you think that the Bush Administration’s goal is to get information from the indivduals, and you think that the Bush Administration is aware of a substantial and unjustifiable risk that the individuals will be tortured by the foreign governments in an effort to get that information from them.

Andersen, you’ve got it right, of course. But an even darker reason (no pun intended), I think, is just that a heck of a lot of Americans think torturing people and punishing or killing them without trial really is a good idea. It’s all part of that judeo-christian, compassionate conservative, limited government, err on the side of life mentality.

Has anyone read the Constitution lately?