Holder in the torture trap

Andrew McCarthy:

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....

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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.”

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There is more.

This is a demonstration of good cross examination skills by Lundgren and Gohmert. It is also a demonstration of the weak thinking of most Democrats including the Attorney General on the subject. I think what people like Holder do is think about waterboarding as something that would be unpleasant for them to experience and it is therefore torture.

But there are many experiences that are unpleasant that we force people in training for the military or for football to go through that are not considered torture. A sixteen mile hike over hills can be grueling and unpleasant. You might even say it can feel like torture, but you will never prosecute those who are preparing people to endure much worse.