"The reason I don’t want to go back any more than we have already done is because I know what happened. Out of fear, we overreacted. … They took a view of the law that I think was aggressive, and I would not have approached it that way. Right after 9/11, we all thought we were going to be hit again. So as we go back and try to hold people criminally liable. I think we’re doing a lot of damage to the country, because their mistakes were not criminal mistakes. They were mistakes made out of fear," - Lindsey Graham.
I think he means that the act of torture is not torture when the torturer is afraid. But fear is always present in wartime; and torture's criminality does not rest on the mental state of the torturer. It rests on the infliction of "severe mental or physical pain or suffering" for the purposes of getting information you require. It is also hard to argue that the former vice-president acted out of fear when he described one of the Khmer Rouge's torture techniques as a "no-brainer."
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