Sunday, May 17, 2009

More on Torture...

One of the concepts that I've had in mind regarding "torture", but which I've been so far unable to fully crystallize and enunciate is the idea of "intent".

Like all Air Force pilots, I am a graduate of their Survival School. I have undergone many of the Enhanced Interrogation Techniques which were exposed here, but not "waterboarded"--which I presume was part of an "advanced" Survival School that I did not go to.

I'll be the first to say that these EITs are unpleasant, and that given the choice, I would avoid them.

But more on "intent"....

If I take my gun out, and align the sights on the heart of a man, pull the trigger and kill him, have I committed murder?

I say: It depends.
  • If I am a madman in a bell tower, then: Yes. This is murder.
  • If I am a political assassin, then: Yes, this too is murder, with a political motivation.
  • If I am a soldier in the field, then: No. This is part of combat that is expected of every soldier.
  • If I am an executioner in a prison, then: No. I am carrying out the sentence of the state (perhaps of my first two examples).
So the reason behind why you are pulling the trigger has everything to do with how we view the act of pulling the trigger. Intent.

So. Regarding "torture", what if we had the following set of questions and answers...
Questioner #1: Are Navy SEALS subjected to waterboarding as part of their training being tortured?

Respondent: 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 --

Questioner #1: So it's the question of intent?

Respondent: Intent is a huge part.

Questioner #1: So if the intent was to solicit information but not do permanent harm, how is that torture?

Respondent: 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.


Questioner #2: 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?

Respondent: No, not at all. Intent is a fact question, it's a fact specific question.

Questioner #2: So what kind of intent were you talking about?

Respondent: 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?

Questioner #2: 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.

Respondent: 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.

Of course, in this example, Questioner #1 is Rep. Dan Lungren (R-CA) and Questioner #2 is Rep. Louis Gohmert (R-TX) and the Respondent is Eric Holder in the recent hearings regarding the "torture" question. And equally obvious, I did not come across this by myself, but must credit Scott at Powerline who expands on the point brought out by Andrew McCarthy. They lay out that Holder is aware of the differences between the intent behind waterboarding. They argue that if the intent of the waterboarding is to train, or to gain information, then waterboarding is clearly not torture. If the intent is to cause pain or discomfort, then it is.

Holder is acting politically here, which comes as no surprise.

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