Tuesday, May 26, 2009

So what was the point?

In the seemingly interminable back and forth between Left and Right over enhanced interrogation techniques, the self-righteous fulmination of liberals over waterboarding was nearly matched by the efforts of more than a few conservative partisans to infinitesimalize the physical and psychological distress caused by the practice. The textbook example of this minimization is that of Sean Hannity offering to be waterboarded for charity. To be charitable, Hannity's point - well taken, if not well said - was twofold: 1) while waterboarding is in and of itself admittedly (WARNING: understatement alert!!!) unpleasant, it is this unpleasantness that makes it effective and 2) as it is conducted as a routine part of training for the military's Special Operations units, it is hard to argue that waterboarding conducted by our government is categorically torture.

But to the point of Hannity's detractors, nor is waterboarding some sort of exotic carnival event akin to a dunk tank. Yet it was a carnival atmosphere that prevailed for a while in the radio studios of Mancow and Cassidy last Friday. Having lost a listener vote, it was co-host Erich "Mancow" Muller who was chosen to be waterboarded on the air. As the video above shows, Mr. Muller found his experience with waterboarding to be - not to be redundant - a tad unpleasant. And as his comments after the fact indicate (according to The Raw Story), Muller came to a different opinion after his time on the waterboard than he had before.

"I wanted to prove it wasn't torture," Mancow said. "They cut off our heads, we put water on their face... I got voted to do this but I really thought 'I'm going to laugh this off.' "

The upshot? "It is way worse than I thought it would be, and that's no joke," Mancow told listeners. "It is such an odd feeling to have water poured down your nose with your head back... It was instantaneous... and I don't want to say this: absolutely torture."
Not to minimize things myself, but after all of five seconds, Muller learned firsthand what Khalid Sheikh Mohammed or Abu Zubaydah could have told him; waterboarding is both unpleasant and effective.

But is it torture?

The Left's presumption that it is adds a sense of urgency to Nancy Pelosi's credulity-straining attempts to slime the CIA. (How interesting is it that the MSM was so exercised about a perceived Republican attack on a lone CIA operative, but is relatively nonplussed by a Democrat's smearing of the entire agency.) As a means to malign Bush, Cheney, et. al, waterboarding fits right into the elastic definition of torture espoused by progressives. But as a legal matter, torture has a statutory definition (see Section 2340 and 2340A of the Federal Penal Code), and it is not at all clear that waterboarding would meet the clear that definitional hurdle.
"[T]orture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control. (Emphasis added.)
It was certainly unclear to Barack Obama's Attorney General. In recent testimony before the House Judiciary Committee, Eric Holder was questioned by two Republican House members about his thoughts on what exactly is required under statute for an activity constitute torture. According to Human Events, Rep. Dan Lungren (R-CA), a former California Attorney General asked Holder about the 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 water-boarding 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.
But as National Review Online's Andrew McCarthy points out, the statutory issue is not whether waterboarding is done as part of training, but whether there is specific intent to inflict severe physical or mental pain.
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.
Rep. Lungren was followed by Rep. Louie Gohmert (R-TX), a former judge who followed Lungren's line of questioning on intent.
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?

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.
McCarthy comes to the rescue again by clarifying that Holder was conflating a "general intent" offense - which could be adjudicated with the help of a neutral "trier of fact" (i.e.: a jury) - with torture, which again requires specific intent.
To state the matter plainly, the CIA interrogators did not inflict severe pain and had no intention of doing so. The law of the United States holds that, even where an actor does inflict severe pain, there is still no torture unless it was his objective to do so. It doesn't matter what the average person might think the "logical" result of the action would be; it matters what specifically was in the mind of the alleged torturer - if his motive was not to torture, it is not torture.
Of course if the head of the Department of Justice could be confused by finer points of the torture statutes, Mr. Muller could be forgiven for his verbal promiscuity in defining his adventure with waterboarding as "absolutely torture." What he and his co-host can't be excused for is turning a controversial interrogation method into an on-air stunt. Rather than garnering attention and interest from unlikely quarters, this feeble attempt at shock-jock shtick should be considered as far beyond the pale as holding one's wee for a Wii.

On the general theme of intent, was it Muller's intent to establish that waterboarding is - again - unpleasant? If so, then point made. If on the other hand, as his previous statements would indicate, Muller was trying to establish that waterboarding is not torture because it is as relatively benign as tickling a terrorist with a feather, then his effort was patently misguided. And if he now wishes to conclude based upon his experience that waterboarding is torture as a matter of law (and therefore illegal), he would be well served to leave those interpretations to others better versed in the appropriate statutes.

I would not suggest that he seek advice from Eric Holder.

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