Earlier this may, Attorney General Eric Holder testified before the House Judiciary Committee. He was questioned by former California Attorney General and Congressman Dan Lungren (R-CA) and former Texas trial judge, and Congressman Louis Gohmert (R-TX) about waterboarding and torture. Lungren and Gohmert both trapped Holder into admitting that successfully prosecuting our CIA personnel would be next to impossible. Watch:


National Review Institute senior fellow Andy McCarthy wrote at the time:

The Attorney General may perhaps want to take a look at the brief his Justice Department filed about three weeks ago in the Sixth Circuit U.S. Court of Appeals. Torture is a specific intent crime — both the Justice Department and the Third Circuit U.S. Court of Appeals have explained that a person cannot commit it unless he has the intent, motive and purpose to torture (i.e., inflict severe pain on) the victim. The question is not, as Holder claimed, whether it was “logical that the result of doing the act would have been to physically or mentally harm the person”? With a general intent crime, the adage is that people are deemed to intend the natural, logical consequences of their actions. But that’s not enough for specific intent crimes like torture. As Holder’s Justice Department put it (bold italics are mine):

In any event, the actions you take to waterboard are essentially the same whether the one inflicting the treatment is a military interrogation-resistance trainer or a CIA interrogator. (I am not saying all waterboarding is the same, nor am I denying that some waterboarding — such as sadistically practiced by the Japanese in WWII — rises to the level or torture. I am talking here only about these two situations: U.S. military trainer and CIA interrogator.) If Holder is correct that the military trainer does not commit torture because it is not his intent to inflict severe pain but to “equip” our military to deal with what he calls “illegal acts,” then the CIA interrogator cannot be guilty of torture either since his intent is not to inflict severe pain but to collect life-saving information.

McCarthy adds today:

Investigations are about satisfying daunting legal standards, not mollifying an administration’s political base. Here, there is not just reasonable doubt that the interrogators engaged in imminent threats, intended to commit psychological torture, and caused prolonged, severe mental damage to the terrorist detainees. There is virtual certainty that they did not. Clearly, that is why the professional prosecutors who probed these cases over the last several years opted not to bring charges.

When Al Gore clearly violated the law, Eric Holder found no controlling legal authority and shut down the case. Now, when the controlling legal authority clearly shows no violation of law, Holder has unleashed the prosecutors to go after the nation’s most crucial line of defense against terror. That is shameful.