Torture, Terrorism, and Torts

by Professor Alex Glashausser | November 13, 2019

As first-year law students learn in Torts, one “intends” a result if one either has the purpose of bringing it about or knows with substantial certainty that it will occur. Restatement (Third) of Torts § 1. That is the lesson of Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955). Finding that when 5-year-old Brian Dailey had moved a lawn chair, he had not had the purpose of causing a woman to fall to the ground, the trial court entered judgment for the boy on the woman’s battery claim. But the Supreme Court of Washington, perhaps sensing that the defendant had tricked not only the plaintiff but also the trial judge, remanded the case for a finding of whether the boy had “kn[own] with substantial certainty” that the woman would fall—for if he had, then he would be liable for battery notwithstanding his lack of malevolent purpose.

The lesson of Garratt was lost, however, on a group of lawyers in the Department of Justice’s Office of Legal Counsel during the George W. Bush administration. In a classified report written to assist the C.I.A., they opined on whether interrogation techniques known to cause severe pain would meet the federal statutory definition of “torture”:  “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody or physical control . . . .” 18 U.S.C. § 2340(1). To meet that intent standard, the report’s authors wrote, “knowledge alone that a particular result is certain to occur” is insufficient. They thus gave interrogators carte blanche to engage in behavior that many would call “torture”:

[E]ven if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent . . . . Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering . . . .

Jay S. Bybee, Assistant Attorney General, Memorandum for Alberto R. Gonzales, Counsel to the President, “Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A,” at 4 (Aug. 1, 2002) (emphasis added); accord Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations, at 9 (Apr. 4, 2003).

Important voices within the government dissented. After all, when interrogators knowingly inflict severe pain, that conduct is purposeful in that it (in theory) advances the goal of extracting information. Commenting on a draft of a related memorandum, Army J.A.G. Major General Thomas J. Romig registered his “serious concerns” about the apparent blessing of “interrogation techniques that may appear to violate international law, domestic law, or both.” But the cautionary words went unheeded. See Office of Professional Responsibility, U.S. Dep’t of Justice, “Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists,” at 79 (July 29, 2009).

In a different context, the American Law Institute has likewise relegated “knowledge” to a status lesser than “purpose.” The very first section of its Restatement (Third) of Torts provides that “[a] person acts with the intent to produce a consequence if . . . the person acts with the purpose of producing that consequence [or] knowing that the consequence is substantially certain to result.” But as to the tort of intentional infliction of emotional distress (IIED), the Restatement treats those two concepts differently. When an actor directs physical conduct at one person but knows that someone else is substantially certain to suffer emotional distress, the Restatement provides, the actor may be liable for the distress only if the third party is a close family member of the physical victim and “contemporaneously perceive[s]” the violence. If, however, the actor has the purpose of inflicting emotional distress on a third party (via the physical conduct), then those limitations do not apply. Restatement (Third) of Torts § 46, cmt. m.

Whatever the situation, in theory it might make sense to treat purpose more harshly than knowledge. Whether inflicting physical pain or emotional distress, behavior is more egregious when the actor not only knows of that result but desires it. Absent a confession, however, it is hard to be certain about what a person wanted. And so the Garratt doctrine reflects the notion that if you know something harmful is about to happen and choose to proceed with your course of action, you ought to be treated as wanting the harm to happen. Deviations from that common-sense rule are an invitation to mischief.

On the third day of his presidency, Barack Obama took a step to correct the troubling reasoning of his predecessor’s administration, issuing an Executive Order providing that within the federal government, “torture” would have the same meaning as in international law. Exec. Order No. 13491, 74 C.F.R. 4893 (2009). The generally accepted definition under international law is similar to the federal statutory one:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 39 U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/46 (1984) (entered into force June 26, 1987). As this international definition is widely understood, even if the overarching purpose of the government’s conduct is to obtain information rather than to inflict pain, the conduct may still constitute torture. This interpretation stands in stark contrast to that in the “torture memo.” See Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War 620-24 (2d ed. 2016) (summarizing reactions of various observers to the “infamous” memorandum).

Several months after the Executive Order, the Department of Justice issued a scathing report on the torture memo, characterizing its “key conclusion” about specific intent—the claim that merely “know[ing]” severe pain will result is not enough to qualify as “intent” for torture absent an “express purpose” of inflicting that pain—as “erroneou[s].” The memorandum, according to the D.O.J., had been written not as “candid legal advice” but rather simply as a justification for the program known euphemistically as “enhanced interrogation techniques.” Office of Professional Responsibility, U.S. Dep’t of Justice, “Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists,” at 67, 169, 226 (July 29, 2009).

More recently, in an IIED case, the District of Columbia Court of Appeals took a similar step toward treating knowledge as a proxy for purpose, contrary to the dictum of the Restatement. The case arose from the 1998 bombing by al Qaeda of the U.S. embassies in Kenya and Tanzania. Family members of some of the victims (dead and injured) sued the Republic of Sudan, alleging that it had provided material support to al Qaeda. The trouble with the plaintiffs’ IIED theory was that they had not contemporaneously witnessed the physical attacks on their loved ones. Thus under the usual doctrine, the claims could well fail: though the defendants presumably knew the bombings would distress family members of the victims, it would be hard to prove that causing such distress was the bombings’ purpose, and so the contemporaneous perception requirement would seem to apply. Republic of Sudan v. Owens, 194 A.3d 38 (D.C. 2018).

Answering a question certified by a federal court of appeals, the D.C. court adopted as a general matter the Restatement rule about IIED but created an exception for terrorism cases. The merits of the case against Sudan could be heard only because a federal statute eliminates sovereign immunity in cases alleging terrorism (including material support of terrorist acts) by foreign states that the U.S. Secretary of State has determined to be “state sponsor[s] of terrorism.” 28 U.S.C. §1605A(a). Those states are Iran, North Korea, Syria, and Sudan. Consciously tracking the terrorism exception to sovereign immunity, the D.C. court decided that terrorism warranted a departure from IIED doctrine as well and dispensed with the usual requirement of contemporaneous perception. This special terrorism rule effectively abrogated the Restatement’s differentiation of knowledge and purpose, instead treating knowledge about family members’ distress the same as purposeful causing of it.

To be sure, terrorism is an especially virulent strain of misconduct, and so it is understandable when courts stretch rules to punish it—or when government attorneys, like those responsible for the torture memo, engage in tortuous explanations to facilitate efforts to stamp it out. But is this any way to make law? The cure by the Bush administration may have been as bad as the disease—justifying torture to fight terrorism. And the D.C. court would not have needed to contort itself to conjure up a terrorism exception if only the regular IIED doctrine abided by the standard equal treatment of knowledge and purpose.

The court recognized that the IIED claims against Sudan were not “typical,” and it chalked up the elimination of the contemporaneous perception requirement to the case’s “special context.” Acts of terrorism, it reasoned, have the inherent purpose of causing widespread emotional distress, and so removal of that hurdle (which normally applies when a defendant had knowledge about a plaintiff’s distress but did not purposely bring it about) was perfectly just. Moreover, the court noted that the risk of fraudulent claims of distress was negligible—for what close family members of victims of murder or maiming by terrorists would not suffer genuine distress? Republic of Sudan, 194 A.3d at 43.

To hold terrorists liable for causing such distress, however, courts need not treat them as special. Concern about feigned distress would likewise be low as to family members of victims of murder or maiming at the hands of common criminals. State sponsors of terrorism do warrant an exception to sovereign immunity; by flouting near-universal norms, those states lose any right to deferential treatment in other nations’ courts. But terrorism should not trigger an exception to IIED doctrine. If mere knowledge about the distress caused by one’s conduct is grounds for holding terrorists to account absent contemporaneous perception, let it suffice for run-of-the-mill tortfeasors as well. Cf. Alexander K.A. Greenawalt, Note, Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation, 99 Colum. L. Rev. 2259, 2259, 2294 (1999) (arguing that provision in Convention on the Prevention and Punishment of Genocide about “intent to destroy a national, ethnical, racial or religious group” should be read as including “knowledge” or “understanding” that conduct will lead to genocide); Lydia Hornbaker, The Silent Genocide (Nov. 2019) (unpublished manuscript on file with author) (embracing dolus eventualis as basis for understanding “intent” element of genocide, rather than dolus specialis).

The lesson of Garratt—other than to watch your back(side) when socializing with 5-year-olds—is that defendants should not be allowed to wriggle free by claiming to lack the purpose to do harm if they know the consequences of their conduct. At trial, the boy persuaded the judge that he had moved the chair innocuously at first, only to discover that the plaintiff was about to sit down, and so he had then attempted to return it in a valiant effort to save her from falling. Yet on remand, after the Washington Supreme Court’s ruling, the judge reconsidered the chain of events and somehow found that the purportedly gallant boy had known all along that his action would cause the plaintiff to hit the ground, and that the boy therefore had the requisite intent for battery. Garratt v. Dailey, 304 P.2d 681, 682 (Wash. 1956). Whatever the judge’s reason may have been for embracing a new narrative, young Brian Dailey surely learned that if you know what your behavior will lead to, you are responsible for that outcome, regardless of what you manage to convince someone about your motive. Whether the conduct is trickery, torture, or terrorism, that traditional lesson of torts should still apply.