Check out John Mikhail’s Common Article 3, Torture, and Specific Intent on the Georgetown Law Faculty Blog. Here is a taste:
[I]t is simply not true that the proposed legislation prohibits U.S. agents from “inflicting severe physical or mental pain or suffering for the purpose of obtaining information or a confession,” as the flow chart published in the September 22 New York Times implies. Plainly, the proposed law does not prohibit this. Indeed, by its very terms it does not even prohibit U.S. agents from knowingly inflicting severe physical or mental pain or suffering for the purpose of obtaining information or a confession. Rather, the bill merely prohibits U.S. agents from specifically intending to inflict these harms.
And what exactly does "specifically intending" mean? The Levin memo’s reply is that it is not “useful” for the government to answer that question. By contrast, the more candid and informative Bybee memo—surely probative evidence of how the Bush administration is likely to interpret and apply the provision under the “virtually unreviewable” authority given to it by the proposed legislation—does provide some fairly clear answers. According to the Bybee memo, specific intent means what it has typically meant in Anglo-American law: purpose or conscious objective, as distinct from knowledge, substantial certainty, foreseeability, and related concepts. Hence—to recall a familiar example—a U.S. agent who knows or foresees with substantial certainty that his coercive interrogation technique will result in “death, organ failure, or permanent impairment of a significant bodily function” is not necessarily guilty of torture under the proposed legislation, even without recourse to defenses like necessity–at least not according to the Bybee memo.
Very sharp.