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Encouraged by the green light President Obama recently gave to his Attorney General, Eric Holder, left-wing liberal/progressive extremists are seeking disbarment of a dozen Bush administration lawyers linked to legal opinions concerning the CIA’s enhanced interrogation techniques.
The extremists are seeking retribution by persecution because these lawyers concluded, after a legal review, the enhanced interrogation techniques, including waterboarding, did not violate the legal prohibition of torture.
Any discussion of the enhanced interrogation techniques must specify how Congress defined torture. According to Victoria Toensing, once chief counsel for the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration, Congress defined torture in a 1994 criminal statute:
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.
Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering
as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting “specific intent” in other criminal statutes.
Toensin also notes “the Senate rejected a bill in 2006 to make waterboarding illegal,” a fact which “negates criminalization” of the interrogation method. Congress did not prohibit use of waterboarding until 2008.
Attorney General Holder has already made his mind up about the left’s assertions that the legal authority justifying the CIA interrogation methods was more than wrong. Holder’s prejudgment of this issue creates an appearance of a conflict of interest, which ought to cause Holder to recuse himself, as Attorney General John Ashcroft did in the Plame investigation.