MioMyo
2009-05-23 09:52:21 UTC
Hugh Hewitt show details events of this hearing where Dan Lungren got Holder
to admit so much. Hear it below:
http://hughhewitt.townhall.com/MediaPlayer/AudioPlayer.aspx?ContentGuid=13b8b205-2b71-467c-b875-c62c132bf66c
Or read the transcript at:
http://corner.nationalreview.com/post/?q=NjAwY2M0ZjljYjAzYzFiYzljZjNkNDY1YTE1YmVhMDU=
Friday, May 15, 2009
Holder on Waterboarding - Proving It's Not Torture While Insisting It Is
[Andy McCarthy]
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.
to admit so much. Hear it below:
http://hughhewitt.townhall.com/MediaPlayer/AudioPlayer.aspx?ContentGuid=13b8b205-2b71-467c-b875-c62c132bf66c
Or read the transcript at:
http://corner.nationalreview.com/post/?q=NjAwY2M0ZjljYjAzYzFiYzljZjNkNDY1YTE1YmVhMDU=
Friday, May 15, 2009
Holder on Waterboarding - Proving It's Not Torture While Insisting It Is
[Andy McCarthy]
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.