Oregon Law Review : Vol. 88 No. 3, p.746-776 : Specific Intent and the Purposeful Narrowing of Victim Protection Under the Convention Against Torture
In this Article, I argue that the Board of Immigration Appeals (BIA) has adopted a misguided approach to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) protection that creates an insurmountable obstacle to actually obtaining such protection. As a solution, I propose that Attorney General Eric Holder, under the new Obama administration, 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 used by the Office of Legal Counsel of the U.S. Department of Justice in its analysis of whether certain interrogation techniques would subject Central Intelligence Agency operatives to prosecution under the CAT. An alternative solution is for U.S. courts to employ a “knowledge of foreseeable consequences” definition of specific intent in CAT protection cases. Courts can adopt this definition notwithstanding the principles of agency deference embodied in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron).