On ‘Torture,’ Holder Undoes Holder

Thanks to Andrew McCarthy for this informative piece you do not see in the mainstream media.

It is time to admit that the current path of this discussion has more of a political intent than moral. Those feigning moral outrage are only doing so for political gain. The complete post is below because quoting from it would only do a dis-service to the point that is so eloquently made.

<i>There was a little noticed bombshell in Washington’s waterboarding melodrama last week. And it wasn’t Nancy Pelosi’s implosion in a Capitol Hill press room, where she yet again tried to explain her inexplicable failure to protest the CIA’s “torturing” of detainees. No, this one detonated in the hearing room of the House Judiciary Committee. There, Attorney General Eric Holder inadvertently destroyed the warped basis for his claim that waterboarding, as administered by the CIA, amounted to torture.
As originally reported by Connie Hair of Human Events, Holder’s undoing was the result of deft questioning by two committee Republicans: Dan Lungren, California’s former state attorney general, and Louie Gohmert, the former chief judge of a Texas appeals court. The two congressmen highlighted a fatal flaw in Holder’s theory. Moreover, they demonstrated that — despite having accused the CIA and the Bush administration of war crimes by cavalierly branding waterboarding as “torture” — the attorney general has still not acquainted himself with the legal elements of a torture offense, particularly the required mental state. This is remarkable, given that Holder’s own department explained these elements less than a month ago in a federal appeals court brief.
Rep. Lungren pointed out that if the attorney general truly believes “waterboarding is torture,” he must also think we torture our own Navy SEALs and other special-operations personnel when we waterboard them as part of their training. “No . . . not in the legal sense,” countered Holder. You see, said he, it’s “a fundamentally different thing,” because
we’re doing something for training purposes to try to equip them with the tools to, perhaps, resist torture techniques that might be used on them. There is not the intent to do that which is defined as torture — which is to inflict serious bodily or mental harm. It’s for training. It’s different.
But it’s not different because “it’s for training.” Look at the torture statute (Sections 2340 and 2340A of the federal penal code) and try to find a “training” exception. There isn’t one. What removes an act from the ambit of torture (besides lack of severe pain) is intent. Lungren pressed this point, and Holder admitted that the training was “not torture in the legal sense because we’re not doing it with the intention of harming these people physically or mentally.” Intent, he acknowledged, was the key question.
Then, Lungren pounced. The CIA interrogators who questioned top al-Qaeda captives like Khalid Sheikh Mohammed and Abu Zubaydah intended no more harm to them than Navy instructors intended to their SEAL trainees. In fact, we know that the CIA went to great lengths, under Justice Department guidance, precisely to avoid severe harm. Their purpose, Rep. Lungren observed, was to “solicit information,” not to inflict torture.
Holder was trapped. He responded with some blather about how “when the Communist Chinese did [waterboarding], when the Japanese did it, when they did it in the Spanish Inquisition, we knew then that that was not a training exercise they were engaging in. They were doing it in a way that is violative of . . . all the statutes that recognize what torture is.”
Let’s put aside that it’s unlikely the Spanish Inquisition had a torture statute — after all, the United States managed to get along without one until 1994. Let’s even ignore the fact that the regimes Holder cited are not known to have rigorously limited their practitioners to no more than six applications of water (none longer than 40 seconds long) during any interrogation session (none longer than two hours long) on any day (during which there could be no more than two sessions) in any month (during which there could be no more than five days on which waterboarding occurred). Let’s just stick with intent. Holder’s exemplars involve the sadistic, programmatic infliction of severe, lasting, and often lethal pain — “water treatment” nowhere near as benign as the CIA’s, frequently coupled with atrocities like beating, rape, burning, and other unspeakable abuses. The practices of those regimes were designed exactly to torture, whether out of vengeance, the desire to intimidate a population, or the coercion of false confessions for show-trials — not to collect true, life-saving intelligence for the protection of civilian populations.
hen Rep. Gohmert followed up on the issue of intent, it became starkly apparent that our attorney general is either badly ill-informed about the law, or simply willing to misstate it. Gohmert asked: “If our officers, when waterboarding, had no intent to do permanent harm and, in fact, knew absolutely they would do no permanent harm to the person being waterboarded, and their only intent was to get information to save people in this country, then they would not have tortured, under your definition. Isn’t that correct?”
Holder summarily rejected this assessment, lamely attempting to fend it off by saying it would depend “on the intention of the person.” But of course, Gohmert had already stated the intention, very exactingly, in his hypothetical. In a corner again, Holder blundered. Whether Gohmert’s example would constitute torture, he surmised, suddenly depended not so much on the intention of the officers but on whether their act (i.e., waterboarding) would have the “logical . . . result” of “physically or mentally harm[ing] the person.”
Gohmert demurred, asserting: If “someone has to believe that they are doing harm to someone in order to . . . torture, then if . . . you knew without any question there was no harm being done, then there’s no torture.”
Holder replied,
No, I wouldn’t say that. . . . You can delude yourself into thinking that “what I’m doing is not causing any physical harm, it’s not causing any mental harm,” and somebody, a neutral trier of fact . . . could look at that and make the determination that, in spite of what you said, that what you have indicated is not consistent with the facts, not consistent with your actions, and therefore you’re liable under the statute for the harm that you caused.
That is completely wrong. What Holder described is the legal concept of a “general intent” crime. Most crimes fall into this category. To find guilt, all the jury (the “neutral trier of fact”) has to determine is (a) that you knew what you were doing (i.e., you intended to shoot the gun or rob the bank — you didn’t do it by mistake), and (b) the result was the logical outcome that anyone who performed such an act should have expected.
Torture, however, is not a general-intent crime. It calls for proof of specific intent. As I recently recounted, the Third Circuit U.S. Court of Appeals explained the difference in its Pierre case last year: to establish torture, it must be proved that the accused torturer had “the motive or purpose” to commit torture. Sharpening the distinction, the judges used an example from a prior torture case — an example that thoroughly refutes Holder’s attempt to downgrade torture to a general-intent offense: “The mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. The difference goes to the heart of the distinction between general and specific intent.”
To state the matter plainly, the CIA interrogators did not inflict severe pain and had no intention of doing so. The law of the United States holds that, even where an actor does inflict severe pain, there is still no torture unless it was his objective to do so. It doesn’t matter what the average person might think the “logical” result of the action would be; it matters what specifically was in the mind of the alleged torturer — if his motive was not to torture, it is not torture.
One might have expected Holder to know that. The argument was used in a DOJ filing before the Sixth Circuit U.S. Court of Appeals only three weeks ago. Indeed, the Haitian example cited by the Third Circuit is quoted here, word-for-word, from the brief filed by Holder’s own department.
The bottom line is, Rep. Lungren skillfully steered Attorney General Holder into the truth: As a matter of law, CIA waterboarding — like the same waterboarding actions featured in Navy SEALs training — cannot be torture because there is no intention to inflict severe mental or physical pain; the exercise is done for a different purpose. When Rep. Gohmert’s questioning made it crystal clear that Holder’s simplistic “waterboarding is torture” pronouncement was wrong, the attorney general — rather than admitting error — tried to change the legal definition of torture in a manner that contradicted a position the Justice Department had just urged on the federal courts. It seems that, for this attorney general, there is one torture standard for Bush administration officials, and another one for everybody else.
Good to see Holder has ended all that unseemly politicizing of the Justice Department.</i>
There was a little noticed bombshell in Washington’s waterboarding melodrama last week. And it wasn’t Nancy Pelosi’s implosion in a Capitol Hill press room, where she yet again tried to explain her inexplicable failure to protest the CIA’s “torturing” of detainees. No, this one detonated in the hearing room of the House Judiciary Committee. There, Attorney General Eric Holder inadvertently destroyed the warped basis for his claim that waterboarding, as administered by the CIA, amounted to torture.

As originally reported by Connie Hair of Human Events, Holder’s undoing was the result of deft questioning by two committee Republicans: Dan Lungren, California’s former state attorney general, and Louie Gohmert, the former chief judge of a Texas appeals court. The two congressmen highlighted a fatal flaw in Holder’s theory. Moreover, they demonstrated that — despite having accused the CIA and the Bush administration of war crimes by cavalierly branding waterboarding as “torture” — the attorney general has still not acquainted himself with the legal elements of a torture offense, particularly the required mental state. This is remarkable, given that Holder’s own department explained these elements less than a month ago in a federal appeals court brief.

Rep. Lungren pointed out that if the attorney general truly believes “waterboarding is torture,” he must also think we torture our own Navy SEALs and other special-operations personnel when we waterboard them as part of their training. “No . . . not in the legal sense,” countered Holder. You see, said he, it’s “a fundamentally different thing,” because we’re doing something for training purposes to try to equip them with the tools to, perhaps, resist torture techniques that might be used on them. There is not the intent to do that which is defined as torture — which is to inflict serious bodily or mental harm. It’s for training. It’s different.

But it’s not different because “it’s for training.” Look at the torture statute (Sections 2340 and 2340A of the federal penal code) and try to find a “training” exception. There isn’t one. What removes an act from the ambit of torture (besides lack of severe pain) is intent. Lungren pressed this point, and Holder admitted that the training was “not torture in the legal sense because we’re not doing it with the intention of harming these people physically or mentally.” Intent, he acknowledged, was the key question.

Then, Lungren pounced. The CIA interrogators who questioned top al-Qaeda captives like Khalid Sheikh Mohammed and Abu Zubaydah intended no more harm to them than Navy instructors intended to their SEAL trainees. In fact, we know that the CIA went to great lengths, under Justice Department guidance, precisely to avoid severe harm. Their purpose, Rep. Lungren observed, was to “solicit information,” not to inflict torture.

Holder was trapped. He responded with some blather about how “when the Communist Chinese did [waterboarding], when the Japanese did it, when they did it in the Spanish Inquisition, we knew then that that was not a training exercise they were engaging in. They were doing it in a way that is violative of . . . all the statutes that recognize what torture is.”

Let’s put aside that it’s unlikely the Spanish Inquisition had a torture statute — after all, the United States managed to get along without one until 1994. Let’s even ignore the fact that the regimes Holder cited are not known to have rigorously limited their practitioners to no more than six applications of water (none longer than 40 seconds long) during any interrogation session (none longer than two hours long) on any day (during which there could be no more than two sessions) in any month (during which there could be no more than five days on which waterboarding occurred). Let’s just stick with intent. Holder’s exemplars involve the sadistic, programmatic infliction of severe, lasting, and often lethal pain — “water treatment” nowhere near as benign as the CIA’s, frequently coupled with atrocities like beating, rape, burning, and other unspeakable abuses. The practices of those regimes were designed exactly to torture, whether out of vengeance, the desire to intimidate a population, or the coercion of false confessions for show-trials — not to collect true, life-saving intelligence for the protection of civilian populations.

When Rep. Gohmert followed up on the issue of intent, it became starkly apparent that our attorney general is either badly ill-informed about the law, or simply willing to misstate it. Gohmert asked: “If our officers, when waterboarding, had no intent to do permanent harm and, in fact, knew absolutely they would do no permanent harm to the person being waterboarded, and their only intent was to get information to save people in this country, then they would not have tortured, under your definition. Isn’t that correct?”

Holder summarily rejected this assessment, lamely attempting to fend it off by saying it would depend “on the intention of the person.” But of course, Gohmert had already stated the intention, very exactingly, in his hypothetical. In a corner again, Holder blundered. Whether Gohmert’s example would constitute torture, he surmised, suddenly depended not so much on the intention of the officers but on whether their act (i.e., waterboarding) would have the “logical . . . result” of “physically or mentally harm[ing] the person.”

Gohmert demurred, asserting: If “someone has to believe that they are doing harm to someone in order to . . . torture, then if . . . you knew without any question there was no harm being done, then there’s no torture.”

Holder replied, No, I wouldn’t say that. . . . You can delude yourself into thinking that “what I’m doing is not causing any physical harm, it’s not causing any mental harm,” and somebody, a neutral trier of fact . . . could look at that and make the determination that, in spite of what you said, that what you have indicated is not consistent with the facts, not consistent with your actions, and therefore you’re liable under the statute for the harm that you caused.

That is completely wrong. What Holder described is the legal concept of a “general intent” crime. Most crimes fall into this category. To find guilt, all the jury (the “neutral trier of fact”) has to determine is (a) that you knew what you were doing (i.e., you intended to shoot the gun or rob the bank — you didn’t do it by mistake), and (b) the result was the logical outcome that anyone who performed such an act should have expected.

Torture, however, is not a general-intent crime. It calls for proof of specific intent. As I recently recounted, the Third Circuit U.S. Court of Appeals explained the difference in its Pierre case last year: to establish torture, it must be proved that the accused torturer had “the motive or purpose” to commit torture. Sharpening the distinction, the judges used an example from a prior torture case — an example that thoroughly refutes Holder’s attempt to downgrade torture to a general-intent offense: “The mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. The difference goes to the heart of the distinction between general and specific intent.”

To state the matter plainly, the CIA interrogators did not inflict severe pain and had no intention of doing so. The law of the United States holds that, even where an actor does inflict severe pain, there is still no torture unless it was his objective to do so. It doesn’t matter what the average person might think the “logical” result of the action would be; it matters what specifically was in the mind of the alleged torturer — if his motive was not to torture, it is not torture.

One might have expected Holder to know that. The argument was used in a DOJ filing before the Sixth Circuit U.S. Court of Appeals only three weeks ago. Indeed, the Haitian example cited by the Third Circuit is quoted here, word-for-word, from the brief filed by Holder’s own department.

The bottom line is, Rep. Lungren skillfully steered Attorney General Holder into the truth: As a matter of law, CIA waterboarding — like the same waterboarding actions featured in Navy SEALs training — cannot be torture because there is no intention to inflict severe mental or physical pain; the exercise is done for a different purpose. When Rep. Gohmert’s questioning made it crystal clear that Holder’s simplistic “waterboarding is torture” pronouncement was wrong, the attorney general — rather than admitting error — tried to change the legal definition of torture in a manner that contradicted a position the Justice Department had just urged on the federal courts. It seems that, for this attorney general, there is one torture standard for Bush administration officials, and another one for everybody else.

Good to see Holder has ended all that unseemly politicizing of the Justice Department.
Maybe Nancy Peolsi”s memory would get better if we all admitted that torture never occurred.
Advertisements

~ by thedark2 on May 22, 2009.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
%d bloggers like this: