I have said again and again on air and off that whether or not you view waterboarding as immoral, its use by American interrogators was not criminal. Andrew McCarthy has a very important piece in National Review today on exactly this point, which may not impress the mob on the left that wants to continue the war against Bush even as we unilaterally disarm in the war against the Islamists, but it should matter to anyone interested in the rule of law.
Congressman Dan Lungren is the very able former Attorney General of California, and he used his skills as a former top prosecutor to lead U.S. Attorney General Eric Holder into a box canyon on the issue of what is and what is not the crime of torture. In this effort he was aided by Congressman Louie Gohmert, a former federal judge. Together this pair of serious, experienced representatives made short work of AG Holder’s politicized understanding of torture. McCarthy concludes:
The bottom line is, Rep. Lungren skillfully steered Attorney General Holder into the truth: As a matter of law, CIA waterboarding -like the same waterboarding actions featured in Navy SEALs training -cannot be torture because there is no intention to inflict severe mental or physical pain; the exercise is done for a different purpose. When Rep. Gohmert’s questioning made it crystal clear that Holder’s simplistic “waterboarding is torture” pronouncement was wrong, the attorney general -rather than admitting error -tried to change the legal definition of torture in a manner that contradicted a position the Justice Department had just urged on the federal courts. It seems that, for this attorney general, there is one torture standard for Bush administration officials, and another one for everybody else.
Good to see Holder has ended all that unseemly politicizing of the Justice Department.
Read all of McCarthy’s analysis and send it to all the hysterical lefties who pronounce on torture without a clue on the operation of criminal law.
Far more important that the specifics of AG Holder’s pratfall, though, is the fact that it is yet another episode in the now four-months long effort by the new Adminstration to unilaterally disarm our side in the war with the Islamists. The damage done by President Obama, Attorney General Holder, Speaker Pelosi and Senator Reid and their allies is deep and lasting and has occurred on many fronts but most significantly in the message of prosecutorial peril they have collectively sent every member of the military and the civilian counterterrorism force. The effort to rewrite the law to criminalize waterboarding chills the actions of everyone on the front lines of the war on terror. Today it is legal to order a drone strike on a target. Given the willingness of this Administration to revoke previous orders and to turn standard law interpretation practices on their head, who’s to say they or the next administration won’t retroactively decide such strikes are a war crime.
President Obama needs to reclaim the original position he stake out and begin to repair the damage he has done to the national security in his first four months in office, and he needs to do so immediately and regardless of the howls from his hard left supporters who would rather see their political enemies persecuted than the war effectively prosecuted.