Wednesday, May 20, 2009

Holder's Tortured Logic

Andrew McCarthy at NRO offers up a devastating critique of Attorney General Eric holder's testimony before the House Judiciary Committee last week. Apparently, Holder was either ignorant of the law on torture or he is willing, as McCarthy says, to misstate it.

Here's what happened. Holder was being questioned by two congressmen, Dan Lungren and Louie Gohmert, on the question of whether the CIA committed torture of detainees under the Bush administration.

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.

Read the rest of this at the link if this is an issue that you're concerned about.

Meanwhile, here's the position Obama and the Democrats find themselves in as they obsessively strive - like Javert pursuing Jean Val Jean in Victor Hugo's Les Miserables - to land Bush administration officials in prison for having ordered that terrorists be waterboarded to elicit information from them:

They have to contend with the fact that their own President Clinton used extraordinary rendition which resulted in real torture to those who were sent to countries like Egypt and Yemen for interrogation. They have to finesse the fact that Democratic congressional leadership, including the Speaker of the House, Nancy Pelosi, knew about the methods being used and condoned them. They have to explain the fact that President Obama refuses to release CIA memos which would settle the question of how effective these methods were, and now they have to somehow circumvent the fact that their own Attorney General has tacitly admitted that according to U.S. law waterboarding, as practiced by the CIA, is not really torture.

I suspect that most Democrats are regretting that they tried to crucify the Bushies on this issue and are right now wishing that the whole matter would just go away. I'll be surprised if they continue to pursue it. If they do I'll have to change the literary analogy from Javert to Melville's Captain Ahab.