Attorney General Holder was questioned last week by members of the House Judiciary Committee on what is and isn’t torture. Andrew McCarthy, a former prosecutor, gives his account of the hearings here. McCarthy’s account makes important points that bear repeating.
First, what exactly is the crime known as torture? There is a difference between “general intent” crimes and “specific intent” crimes. A general intent crime is, in essence, one where the mere fact that you did it (and not by accident) makes you guilty. Take battery: If you hit someone, and knew-or-should-have-known that it could harm them, a jury can (and probably should) find you guilty. By contrast, in a specific intent crime, you aren’t guilty unless you intended the specific harm that the law has criminalized. Burglary is sometimes cited as an example of a specific intent crime: the government has to prove that you broke into your neighbor’s house with the intent to steal something. The mere action of breaking in is not enough to convict you of burglary, because you might have only intended to watch your neighbor’s cable television and take a nap, making you guilty only of breaking and entering.
In other words: With some crimes, intent matters – a lot. As McCarthy brings out, torture is such a crime under U.S. law. McCarthy cites an appeals court decision from last year:
[T]o establish torture, it must be proved that the accused torturer had “the motive or purpose” to commit torture… [the Court wrote,] “The mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in [bad] 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.”……CIA interrogators did not inflict severe pain [on terrorists] 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…
In other words, it isn’t torture until and unless you do it as torture, i.e., with the specific goal of causing suffering and/or permanent harm. A few real-life examples will show the difference:
- When they waterboard Navy SEALs in training, is that torture? No, of course not, because the goal or *intent* is to train Navy SEALs.
- When a doctor inflicts a painful medical procedure, with or without the patient’s informed consent, is that torture? Not if the doctor’s honest intent was to save the patient’s life.
One way you can measure honesty of intent is to see if distress and/or harm were inflicted in ways that were uncontrolled or unnecessary. For example, the doctor who inflicts pain to save a patient’s life must carefully inflict the absolute minimum of pain needed to save that patient’s life. It is a matter of record that the U.S. waterboarded terrorist suspects (all three of them) in a controlled and medically sensitive manner, only to the absolute minimum degree needed to save countless civilian lives. That, by definition, is not torture.
An example of real torture would be, say, Saddam Hussein’s interrogators raping a man’s wife and daughters in front of him before bathing the man in a vat of acid. In days of old, Democrats possessed the minimum of common sense and decency needed to recognize that as fundamentally different from carefully controlled waterboarding needed (at the time) to thwart very real terrorist plots. Perhaps that day will come again. Or, as McCarthy puts it:
…the Haitian example cited by the Third Circuit is quoted [above], word-for-word, from [a] brief filed by Holder’s own department.