The Corner

Holder on Waterboarding — Proving It’s Not Torture While Insisting It Is

At Human Events, Connie Hair excerpts some on Eric Holder’s, er, interesting testimony on waterboarding (among other things) yesterday before the House Judiciary Committee, thanks to some terrific questioning by Committee Republicans:

[Rep. Dan] Lungren [(R., CA) and the state’s former attorney general] then switched gears to a line of questioning aimed at clarifying the Obama Justice Department’s definition of torture. In one of the rare times he gave a straight answer, Holder stated at the hearing that in his view waterboarding is torture.  Lundgren asked if it was the Justice Department’s position that Navy SEALS subjected to waterboarding as part of their training were 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.

[ACM note: I’m not sure whether the Spanish Inquisition had a torture statute — the United States did not have one until 1994, and to this day federal torture law does not mention waterboarding.  Nor does the federal war crimes statute.  As I’ve recently noted, Sen. Kennedy posed an amendment in 2006 that would have specified waterboarding as a war crime — something he wouldn’t have needed to do if it were already a war crime.  The amendment was defeated.]

… Rep. Louie Gohmert (R-Texas), a former judge, continued the “intent” line of questioning in an attempt to make some sense of the attorney general’s tortured logic.

Rep. Louie 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?

Attorney General Eric 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.  

The Attorney General may perhaps want to take a look at the brief his Justice Department filed about three weeks ago in the Sixth Circuit U.S. Court of Appeals. Torture is a specific intent crime — both the Justice Department and the Third Circuit U.S. Court of Appeals have explained that a person cannot commit it unless he has the intent, motive and purpose to torture (i.e., inflict severe pain on) the victim. The question is not, as Holder claimed, whether it was “logical that the result of doing the act would have been to physically or mentally harm the person”? 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. As Holder’s Justice Department put it (bold italics are mine):

T]orture is defined as “an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. . . . ” 8 C.F.R. § 1208.18(a)(2). Moreover, as has been explained by the Third Circuit, CAT requires “a showing of specific intent before the Court can make a finding that a petitioner will be tortured.”  Pierre v. Attorney General, 528 F.3d 180, 189 (3d Cir. 2008) (en banc); see 8 C.F.R. § 1208.18(a)(5) (requiring that the act “be specifically intended to inflict severe physical or mental pain or suffering”); Auguste v. Ridge, 395 F.3d 123, 139 (3d Cir. 2005) (“This is a ‘specific intent’ requirement and not a ‘general intent’ requirement” [citations omitted.] An applicant for CAT protection therefore must establish that “his prospective torturer will have the motive or purpose” to torture him. Pierre, 528 F.3d at 189; Auguste, 395 F.3d at 153-54 (“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.”) [my bold italics and brackets]. . . . 

In any event, the actions you take to waterboard are essentially the same whether the one inflicting the treatment is a miltary interrogation-resistance trainer or a CIA interrogator. (I am not saying all waterboarding is the same, nor am I denying that some waterboarding — such as sadistically practiced by the Japanese in WWII — rises to the level or torture. I am talking here only about these two situations: U.S. military trainer and CIA interrogator.) If Holder is correct that the military trainer does not commit torture because it is not his intent to inflict severe pain but to “equip” our military to deal with what he calls “illegal acts,” then the CIA interrogator cannot be guilty of torture either since his intent is not to inflict severe pain but to collect life-saving information.

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