Eric the infallible? part 2

Andrew McCarthy quotes the examination of Attorney General Eric Holder before the House Judiciary Committee by Republican Reps. Dan Lungren and Louis Gohmert on the definition of torture. “In one of the rare times he gave a straight answer,” Connie Hair repots, “Holder stated at the hearing that in his view waterboarding is torture.” Lungren wondered: Are Navy SEALS subjected to waterboarding as part of their training being tortured?

Holder: No, it’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally, all we’re trying to do is train them —

Lungren: So it’s the question of intent?

Holder: Intent is a huge part.

Lungren: So if the intent was to solicit information but not do permanent harm, how is that torture?

Holder: Well, it… uh… it… one has to look at… ah… it comes out to question of fact as one is determining the intention of the person who is administering the waterboarding. When the Communist Chinese did it, when the Japanese did it, when they did it in the Spanish Inquisition we knew then that was not a training exercise they were engaging in. They were doing it in a way that was violative of all of the statutes recognizing what torture is. What we are doing to our own troops to equip them to deal with any illegal act — that is not torture.

McCarthy pauses here to note that the Spanish Inquisition lacked a torture statute, as did the United States until 1994, and that to this day federal torture law leaves waterboarding unmentioned. As Hair notes, Gohmert then continued the “intent” line of questioning in an attempt to make sense of the attorney general’s “tortured logic.”

Gohmert: Whether waterboarding is torture you say is an issue of intent. If our officers when waterboarding have no intent and in fact knew absolutely they would do no permanent harm to the person being waterboarded, and the 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: No, not at all. Intent is a fact question, it’s a fact specific question.

Gohmert: So what kind of intent were you talking about?

Holder: Well, what is the intention of the person doing the act? Was it logical that the result of doing the act would have been to physically or mentally harm the person?

Gohmert: I said that in my question. The intent was not to physically harm them because they knew there would be no permanent harm — there would be discomfort but there would be no permanent harm — knew that for sure. So, is the intent, are you saying it’s in the mind of the one being water-boarded, whether they felt they had been tortured. Or is the intent in the mind of the actor who knows beyond any question that he is doing no permanent harm, that he is only making them think he’s doing harm.

Holder: The intent is in the person who would be charged with the offense, the actor, as determined by a trier of fact looking at all of the circumstances. That is ultimately how one decides whether or not that person has the requisite intent.

Holder appears to have considerable difficulty applying the logic of his answer regarding trainers waterboarding SEALs to interrogators waterboarding detainees. My guess is that the source of the difficulty is political rather than intellectual. Whatever the source, Holder’s difficulty provides further evidence in support of Paul Mirengoff’s assertion that Holder is probably not infallible.

PAUL adds: McCarthy goes on to say that Holder’s Justice Department argued in a brief it recently filed in the Sixth Circuit U.S. Court of Appeals that torture is a specific intent crime — one that cannot be committed unless a person has the intent, motive and purpose to torture (i.e., inflict severe pain on) the victim. Thus, according to McCarthy, Holder contradicted his own Department (as well the Third Circuit case it cited) when he claimed yesterday that the torture issue depends on whether the logical result of doing the act would have been to physically or mentally harm the person. As McCarthy puts it::

With a general intent crime, the adage is that people are deemed to intend the natural, logical consequences of their actions. But that’s not enough for specific intent crimes like torture.

Putting aside questions of purpose (which I think is how Holder was really trying to differentiate the trainer and the interrogator), the intent of the military trainer is the same as that of the interrogator who inflicts the identical procedure on a terrorist. The idea behind the training is to inflict exactly the same level of pain and distress on trainees as they would experience if they were captured and subjected to the same treatment. Thus, the trainer’s purpose is to train (a lawful purpose), not to obtain information (also a lawful purpose). But the trainer’s intent is to inflict the same pain and distress as an interrogator using the same procedure would inflict in order to obtain information.

Holder might counter that the “logical result” in terms of pain and distress is different when waterboarding occurs in a non-voluntary context. (Rep. Gohmert’s question effectively assumed that this was not the case, but this assumption can be challenged). But such an argument would be unpersuasive. First, as noted, the “logical result” standard does not apply to the crime of torture.

Second, it is not logical to believe that identical procedures will have significantly different short term or long term effects on the victim, at least not in any respect that should matter to determining whether the procedures constitute torture. Terrorists will be more upset, after the fact, about their waterboarding experience than trainees. However, that’s only because trainees have gained a benefit (training) whereas terrorists have gained none and, if the waterboarding worked, have ratted out fellow terrorists.

Surely, the Attorney General of the United States does not believe that the anguish associated with giving up information about terrorism converts an interrogation technique into torture.

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