Posted on 05/16/2009 10:20:04 AM PDT by shoptalk
Sen. Patrick Leahy wants an independent commission to investigate them. Rep. John Conyers wants the Obama Justice Department to prosecute them. Liberal lawyers want to disbar them, and the media maligns them.
What did the Justice Department attorneys at George W. Bush's Office of Legal Counsel (OLC) -- John Yoo and Jay Bybee -- do to garner such scorn? They analyzed a 1994 criminal statute prohibiting torture when the CIA asked for legal guidance on interrogation techniques for a high-level al Qaeda detainee (Abu Zubaydah).
In the mid-1980s, when I supervised the legality of apprehending terrorists to stand trial, I relied on a decades-old Supreme Court standard: Our capture and treatment could not "shock the conscience" of the court. The OLC lawyers, however, were not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans.
The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law's definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.
(Excerpt) Read more at online.wsj.com ...
The info she just wrote about was posted in FreeRepublic some time ago.
.... and?
And they are not going to read the “Torture Memos.” They have already determined their own definition of torture and nothing will ever change that, just ask Pelosi and a few other whacko Democrats. These are the same folks that describe the death penalty as “torture” and terrorists as “freedom fighters,” etc.
Uncontrolled Liberalism will ultimately be the downfall of the US and Western civilization.
From the article:
Washington Post columnist Eugene Robinson declared that “waterboarding will almost certainly be deemed illegal if put under judicial scrutiny”, depending on which “of several possibly applicable legal standards” apply.
Does he know the Senate rejected a bill in 2006 to make waterboarding illegal?
That fact alone negates criminalization of the act.
Victoria is not only brilliant she is still standing on the ground. Not thet we need more lawyers but we need more lawyers like her
Indeed.
From your keyboard to God’s flatscreen.
I’ve heard Conyers speak. I don’t think he can read.
Give us a link to the thread.
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.
(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:
Torture 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. . . . ” 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, (requiring that the act “be specifically intended to inflict severe physical or mental pain or suffering”); Auguste v. Ridge, (“This is a ‘specific intent’ requirement and not a ‘general intent’ requirement” An applicant for CAT protection therefore must establish that “his prospective torturer will have the motive or purpose” to torture him. (“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.”)
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.
You can't torture another human being. If you do, or even just approve of it in others, anything that happens to you is less than you deserve. You exit the human race and join the legions of hell.
I’m not sure what your point is.
Are you suggesting that because the Senate refused to make waterboarding illegal in 2006 that TORTURE is LEGAL?
Did you even read the article?
Go to this thread http://www.freerepublic.com/focus/f-news/2237665/posts The law was passed by a Democratic Party controlled House and Senate and signed by William Jefferson Clinton and the accession to the UN Treaty were approved by a Democratic Party controlled Senate and agreed to by William Jefferson Clinton. These are the laws she’s talking about. They are the definitions that the legal documents in part were built on. Under these legal definitions passed by a Democratic controlled House and Senate and signed by a Democratic President waterboarding, and the other stuff isn’t torture. In common language it may be but legally it’s not.
The voting record in the responsible committees and on the floor would be most interesting. I’ll bet you’ll find a lot of the vocal critic voted for this definition of torture.
Thanks!
And probably originated with Toensing. She has written on this subject numerous times.
You assume they can read.
I think that they haven't...it's still in fuzzy-wuzzy land.
Do YOU think waterboarding is torture?
BTTT
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