Posted by
Eric Jay on Sunday, May 17, 2009 5:00:00 PM
AG Eric Holder's testimony before the House Judiciary Committee has turned into fodder for the internet. While I cannot verify the transricpt, as no one on the net gives a link to the Judiciary. The text of that transcript I took from a post by
Connie Hill at Human Events (lengthy but I suggest reading it all, it's fascinating):
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Testimony from AG Eric Holder before the House Judiciary Committee:
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.
We’re training our troops to deal with illegal acts? Can you imagine this guy in combat?
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.
I spoke with Rep. Gohmert in the hallway outside of the hearing about his assessment of Holder’s answers to his questions. (Ed. note: that question is from Connie Hill at Human Events)
“Oh, did I get answers?” Gohmert asked. “I didn’t think I got answers. I must have missed them. I heard statements being made after I asked questions but as far as the answers I requested, I didn’t feel I ever got those. If I were an officer in the field and trying to figure out what to do and if I might someday be prosecuted, his answers would scare me to death, because there’s no way to know. He did not give an answer that anyone out in the field could rely on.”
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There you have it. AG Holder makes the case that is the intent of the individual or a judge that determines. So, under that testimony waterboarding is torture when the intent of the individual making that administrating has a legitimate reason to do it. Clear as mud again. Except when you are using it on high value detainees I don't think he defined the intent.
So, here we go: it is okay to train our military in the use of waterboarding (the one that is waterboarded). Even AG Holder has a hard time declaring waterboarding torture. It has no long term effects, does not leave permanent, no physical impairments, and so on. I believe if the CIA and/or the military believes that a high value terrorist (be it Al Qaeda or any other terrorist for that matter) has actionable intelligence which the Presidedent, along with his National Intelligence Officer, deem it appropriatte. In addition, I believe if that actionable intelligence is an immediate threat there should be some protection for the interrogator's when they make a decision to go forward without Presidential order. That should be big 'IF,' and it should be the commending officer to make that determination.
There is a reason that waterboarding cannot get declared 'torture,' it is not putting needles under the nails, tearing off nails, breaking of limbs, attaching electrodes to genitals. We are talking about a method that is used on our military for training procedures and leaves no long term physical impairment (John McCain had his shoulders permentally injured as a POW), I can't imagine that it leaves even long term psychological impairment. My goodness, Abu Zubayda (sp?) was waterbored a reported 83 times, and KSM a reported 180 times. If there were some long term impairment we have 2 test subjects.
If the president and/or Pelosi/Reid want waterboarding to be illegal they can easily rectify the situation: legislation outlawing it. Now the big question is would be retroactively administered. I say absolutely not. There was discussion and legislation in 2006 or 2007 that Congress considered and they couldn't get it passed. It's a different world, at least a very different Washington D.C. House Speaker Pelosi, Sen. Reid sure don't want to go on record outlawing that, tally the votes, come Democrats cast your vote. Can't do it, won't do it.
God forbid, another attack occurs on their watch now, they would certainlyand without a doubt be blamed. Oh Boy come election 2010 bye bye!
What say You: Comments open