No, I’m not talking about Obama’s McCarthyist tactics in tendentiously defaming the Bush administration tactics he himself is now adopting.
I’m talking about Andy McCarthy, the former federal prosecutor who is National Review’s go-to guy for discussion of our prosecution of the War on Man-Caused Disasters.
Here’s some of his recent hits:
The need to castigate his predecessor, even as he substantially adopts the Bush administration’s counterterrorism policy, is especially unbecoming in a president who purports to transcend our ideological divisions.
This was perhaps best exemplified by the president’s attack on the very military commission system he has just revived. The dig that the system only succeeded in convicting three terrorists in seven years conveniently omits the fact that the delay was largely attributed to legal challenges advanced by lawyers who now work in his own administration.
On Eric Holder’s muddy torture designations:
Torture, however, is not a general-intent crime. It calls for proof of specific intent. As I recently recounted, the Third Circuit U.S. Court of Appeals explained the difference in its Pierre case last year: to establish torture, it must be proved that the accused torturer had “the motive or purpose” to commit torture. Sharpening the distinction, the judges used an example from a prior torture case — an example that thoroughly refutes Holder’s attempt to downgrade torture to a general-intent offense: “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.”
To state the matter plainly, the CIA interrogators did not inflict severe pain 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. It doesn’t matter what the average person might think the “logical” result of the action would be; it matters what specifically was in the mind of the alleged torturer — if his motive was not to torture, it is not torture.
One might have expected Holder to know that. The argument was used in a DOJ filing before the Sixth Circuit U.S. Court of Appeals only three weeks ago. Indeed, the Haitian example cited by the Third Circuit is quoted here, word-for-word, from the brief filed by Holder’s own department.
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