Wednesday, June 03, 2009

Holder on torture

From NRO:
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.


Holder ... 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.
Gohmert [asserted]: 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."



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