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Andy McCarthy's Unwavering Defense Of Torture.
National Review's Andy McCarthy, fresh off of considering whether not wearing a tie with your button-down is proof of Islamist sympathies and cheering the birthers, attempts to argue that what the CIA IG report describes isn't torture:
Here, it is necessary to clear up some Holder-induced confusion. The attorney general, like his president, claims that all waterboarding is torture (which is not true) and implies that interrogation practices under Bush’s CIA program were forms of torture even if the DOJ guidance permitted them (which is further still from the truth). That lays the groundwork for Holder to posit that any CIA practices that went beyond what the DOJ permitted were certainly torture.
Well look, not even the CIA claimed that its use of waterboarding wasn't torture, as McCarthy has over and over, on the basis that it's been used to train American soldiers to resist torture. McCarthy makes the argument again here, noting Holder's testimony that "U.S. government trainers who waterboard military and
intelligence personnel cannot be guilty of torture. " The IG report quotes an interrogator who acknowledges that the difference between SERE waterboarding and CIA waterboarding is that the latter is "for real." McCarthy somehow missed that part of the report.
McCarthy then goes on to argue, presumably with a straight face, that the mock executions staged by the CIA were not really mock executions:
This is absurd. McCarthy puts "mock execution" in scare quotes, but the section in the IG report he's discussing is titled..."mock executions." That's the term the Inspector General uses.This is where the “mock execution” comes in. In assessing whether the interrogator intended to inflict prolonged psychological damage, threats to third parties are relevant. If one were to tell a detainee that if he didn’t cooperate he’d be killed just like X non-cooperator, and then a mock execution of X were staged before the detainee’s eyes, that would be egregious. If a mock execution of X were staged before the detainee’s eyes but without threatening the detainee that he was next, we get into the same “lack of certainty” we saw with the element of imminence. And the threat would be vaguer still if the detainee were told nothing but heard shots fired, was shown an apparently dead body, and was left to speculate about what had happened and what it might portend for him.
The IG report says that the "debriefer entered the cell where [suspected Cole bomber Abd al-Rahim] Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri's head". A gun is not a comb. A gun is for killing people. Given that, just the day before, Al-Nashiri was led to believe he was listening to what he thought were people being executed nearby (complete with an interrogator posing as a detainee corpse) there is no "lack of certainty"-- the entire point was to make Al-Nashiri think he was going to be killed if he didn't cooperate. The line between threatening and implying here is being so deliberately walked that it reveals intent: to threaten someone with death in a manner that one can plausibly argue that they weren't threatening someone with death.
Moreover, American laws define torture partially as "the threat that another person will imminently be subjected to death, severe physical pain or suffering". Al-Nashiri, after being lead to believe that he was in a country known to torture detainees by raping their female relatives in front of them, was told by an interrogator that "we could get your mother in here" and "we can bring your family in here". Again, the intent to convince Al-Nashiri that his relatives might be harmed is the entire point of the deception--it's not the slightest bit nebulous unless you want to argue what the definition of "is" is, which may be why McCarthy doesn't address it.
Not only does the implied threat of raping Al-Nashiri's relatives not make it into McCarthy's weak defense of torture, neither does the CIA's explicit threat to alleged 9/11 architect Khalid Sheik Mohammed that "We're going to kill your children." Although one can imagine McCarthy's response--"Not knowing the tone of voice the statement was made in, it's impossible to ascertain specific intent..."
At any rate, not only is McCarthy arguing that torture techniques authorized by the Bush DoJ aren't torture, he's arguing that techniques that weren't specifically authorized aren't torture either, because they also weren't specifically prohibited--as Daphne Eviatar has written, that may have been done deliberately to encourage abuse, in which case it may be a crime. There's also the issue that McCarthy's standard for torture can't be met by an agent of the United States government--it requires a kind of "intent" that, since interrogators were looking for intelligence information, they don't have.
Obviously, that is why the Obama-Holder Justice Department has argued in federal court that government officials do not commit torture, even if they actually do inflict severe pain on a detainee, unless it is clear that torturing the victim was their purpose. If they had a different purpose, there is no torture.
McCarthy not entirely wrong on torture being an "intent specific" crime. It's just that for McCarthy (I'm unaware of the case he's referring to with regards to the administration, but I'm looking into it), one can't "specifically intend to inflict severe mental pain or suffering" if that's not the sole motivation. The statute doesn't say that, and I'm hard pressed to understand how shackling a diapered person in a stress position so they can defecate on themselves without being moved out of it isn't intended to "inflict severe mental pain or suffering." The point is to inflict such suffering in order to get the person to talk.
McCarthy also writes that "We trivialize the concept, and the barbarities committed by history’s monstrous regimes, when we apply the label “torture” to conduct that, though disturbing, does not approach this level of horror."
Even if you agree with McCarthy that our torture techniques gleaned from such models of respect for human rights as China aren't torture, what McCarthy is saying is that as long as an intent to cause harm wasn't the primary motivation for torturing someone, the CIA could do just about anything to the detainees in their custody and it wouldn't be torture, barbarities or otherwise. The CIA officers themselves were more tethered to reality than McCarthy is--they were concerned they might face prosecution as a result of what they were doing.
-- A. Serwer
COMMENTS (17)
comparing what was done in these interrogations to what was done in SERE training unwittingly admits that these techniques do not work to produce intelligence. the regimes that used these practices (stalinist soviet union, n.korea, china, north vietnam) did not do these things to produce intelligence. they did them to produce false confessions and were quite successful in producing them. if people being tortured will produce false confessions, the would be willing to produce false intelligence
Posted by: sr | August 27, 2009 1:44 PM
McCarthy is mistaking "intent" with "motive" here, which is typical for nonlawyers. The law doesn't care whether or not you were motivated by a desire to inflict severe mental pain or suffering. Instead, you are presumed to intend the natural and probable consequences of your actions. If severe mental pain or suffering is a probable consequence of diapering, waterboarding, etc., then you are presumed to have the necessary intent, regardless of your motive.
All of which is to say that Andy McCarthy is a moron and a hack.
Posted by: T. Paine | August 27, 2009 2:22 PM
T. Paine--
Indeed. And, it should be noted, a lawyer. An obfusciating, soulless stain on a profession that already has more than enough of them.
Posted by: mpbruss | August 27, 2009 3:50 PM
McCarthy is a GOP fluffer. nothing he ever says should be taken as a serious argument, but rather must be seen for what it is: pro-GOP propaganda.
Posted by: cleek | August 27, 2009 3:52 PM
Slightly OT - Note a common formulation used here by McC: "Obama - Holder" DOJ. I hear this sort of thing quite a bit from the right and it drives me bananas. E.G. "Obama" deficit, "Obama" DOJ, etc. It is in fact not "Obama's" or "Holder's" DOJ but rather the UNITED STATES DOJ, the US budget deficit, and so on. There is a huge distiction here that I think we on the left should highlight. By using these labels they are obscuring the fact that Obama, having been duly elected, is now the President of ALL the USA and hence the very use of their perverse formulation serves to undermine his legitimacy. This kind of labeling is harmful to progressive interests and should be opposed at every opportunity.
Posted by: John G | August 27, 2009 4:50 PM
Thank you Adam for a wonderful take-down of the "McCarthys" of this world who go to great lengths to excuse any vile technique used on detainees as somehow not really torture cause it's "torture light"
The American public's blase attitude and casual acceptance of torture makes me wonder what kind of country I really live in...
We need those people of conscience like yourself, Hamsher, digby, Kos, Greenwald and all the others to point out the contradictions between the ideal image we have of ourselves as Americans, and what we have actually become...
Fearful, angry, ignorant, selfish and uncaring.
Posted by: wagonjak | August 27, 2009 5:28 PM
I wonder how much McCarthy gets paid to do Cheney's CYA. Because if he's not getting paid, he should be...
No one should give up all their credibility for free.
Posted by: Herb | August 27, 2009 5:45 PM
The way I see it, the thirty-nine people I murdered last year really wasn't murder, as I didn't murder as many people as the Nazis did. I mean, to call what I did "murder" would be to belittle the victims of the Holocaust, and that's just wrong.
Same goes for those people in my "dungeon" screaming right now. I tried explaining to them how they're dissing the Jews, but they just wouldn't listen. Filthy anti-semites! I thinks it's time for another education seminar. And no, it's not torture, because my primary motive is to teach them something. I'm a true humanitarian.
Posted by: Doctor Biobrain | August 27, 2009 5:49 PM
No one should give up all their credibility for free.
Herb - You can only sell your soul once. After that, you're the Devil's bitch forever.
Posted by: Doctor Biobrain | August 27, 2009 5:54 PM
Anyone else catch the phrase "his president"? I guess only Republicans are presidents of the whole country.
Posted by: Kevin | August 27, 2009 6:07 PM
Obviously, that is why the Obama-Holder Justice Department has argued in federal court that government officials do not commit torture, even if they actually do inflict severe pain on a detainee, unless it is clear that torturing the victim was their purpose. If they had a different purpose, there is no torture.
Well, I guess this means the inquisition never used torture.
Posted by: angulimala | August 27, 2009 7:40 PM
Yawn. You call that torture? Hell, I've been through REAL torture. I spent 4 years in a public high school! You lefty fellas have yourself a good old time spilling ink about the mean chaps from the CIA who were so cruel to those poor defenseless terrorists. But the rest of us, you know the ones who don't particularly care about a bunch of thugs and murderers having their fingernails yanked out and being forced to listen to Barak Obama speeches, have more important things to do. For instance, right now I think I'll make myself a grilled cheese sandwich.
Posted by: T. Lopez | August 27, 2009 9:10 PM
Yawn. You call that torture? Hell, I've been through REAL torture. I spent 4 years in a public high school! You lefty fellas have yourself a good old time spilling ink about the mean chaps from the CIA who were so cruel to those poor defenseless terrorists. But the rest of us, you know the ones who don't particularly care about a bunch of thugs and murderers having their fingernails yanked out and being forced to listen to Barak Obama speeches, have more important things to do. For instance, right now I think I'll make myself a grilled cheese sandwich.
Posted by: T. Lopez | August 27, 2009 9:10 PM
You can rebut McCarthy point by point as you have, but in the end his pathetic defenses are only a symptom of the problem.
He's a gutless loser.
Posted by: LosGatosCA | August 27, 2009 11:15 PM
Is it wrong to suggest that Holder promise not to prosecute those on the bottom, if they are willing to give up the people they got the information necessary.
And if that nice negotiation doesn't work, then EVERYTHING possible will be done to garner the confessions that are desired. Not torture, per se, merely coaxing to ensure a "truth" is told. (No passports needed for travel, as you'll be diplomatic cargo while in transit)
Cheney, you might want to go back to your bunker for another 4 years.
Posted by: GMoney2009 | August 28, 2009 1:04 PM
Dear Mr. McCarthy:
I can see that we need to explain this to you, since you obviously don't understand how morality actually works, or perhaps have so little of it you can't understand. Anyway, I'm going to take a swing at it at about a third grade level, which seems to be your level of self-awareness..
Back in WW II, there were good guys and bad guys. The Germans and Japanese were the bad guys, because they did horrible things to people. Auschwitz and The Rape of Nanking are just two of the very many horrible things they did, there were many others and it went on for years.
We were the good guys, because we did not do very many horrible things, and we didn't do as horrible things. When we rounded up the people of Japanese descent into concentration camps, there weren't gas chambers and crematory ovens, like the Germans used. We just rounded them up, and kept them in camps on crummy diets until the war was over. Bad, but not AS bad.
Now though, George Bush and Dick Chaney have single-handedly (I know, there are 4 hands there, it's a figure of speech) transformed us from the Good Guys into the Bad Guys, by ordering Americans to do really Horrible things all over the world (Torture! No, really, you can look it up!) to randomly selected people from all over the world.
That's how you get to be a bad guy, you see, bY committing ATROCITIES IN AN ORGANIZED AND INTENTIONAL WAY!!! (Not by being Islamic, by the way.)
The new president, President Obama, promised to try to move the country back to the Good Guy side by stopping ORGANIZED and institutional Torture. He implied, or allowed us to infer, that he was going to punish the torturers and atrocity committers, but now, not so much. :-(
Anyway, that's how people (or a country) get to be bad guys, by committing crimes against humanity like torture and prison camps where people get tortured to death.
You, sir, are lining up with the BAD GUYS by continuing to justify their crimes against humanity. By defending the indefensible, you are (about to become?) evil, and eligible for your very own cell at the International Court of Justice, we all hope.
You see, if we help put the evil bad guys who torture and justify torture, we aren't bad guys too. So I hope to see you do the perp walk, if you ever are stupid enough leave the USA, and get arrested in Spain or The Netherlands, where the Good Guys take care of this justice thing.
Maybe I can explain criminal court and the justice system for you tomorrow.
Best of luck with that evil stain on your soul, you heartless monster!
Jr
Posted by: Jr. | August 28, 2009 4:50 PM
Andy McCarthy is the bread and butter of the grand old party poopers. Conservatives(whats mine is mine and whats yours should be mine too)desperately need support from average Americans, the public, due to the inherently small group who have managed to hoard so much wealth. The only way to gain the support of people who you will later screw is to trick or fool them. Unfortunately this is easy to do evidenced by idiots who would rather do a grill cheese. "Few people are capable of expressing with equanimity, opinions which differ from the prejudices of their social environment. Most people are even incapable of forming such opinions" said Albert Einstein. It is far easier to listen to the dribble of a nit-wit like Andy or Rush and repeat their bold bullshit than to actually have to think. And lets face it Americans are,if nothing else, lazy.
Posted by: freefall | August 29, 2009 12:00 AM