More on the Legal Status of Waterboarding

by Andrew C. McCarthy

Thanks, Kathryn, for the plug for my piece earlier today on the remarkable, er, elasticity of Democratic thought on torture and presidential power — which somehow seems to vary directly with the party affiliation of the president. 

Not that there could be anything remotely partisan about all this — which reminds me:  The White House just put out some telling information.  Janet Reno, with no prior federal law enforcement experience (she was a state prosecutor in Florida) waited only 13 days for the Senate to take action on her nomination and was asked to respond to exactly zero post-hearing questions.  By contrast, Michael Mukasey, having had over two decades’ experience as a federal prosecutor and a distinguished federal judge, has now had his nomination pending for 39 days (the longest stretch in 20 years) and has responded in writing to 495 questions after his two-day hearing.

But I digress.  As today’s NRO editorial notes, Congress had two recent opportunities to specify that waterboarding was illegal and declined to do so both times.  But I just learned something I hadn’t known:  this was not just a mere omission.  It was a positive, conscious decision not to do what Senate Democrats are demanding that Mukasey do:  declare waterboarding a war crime.

Fox News reports that in connection with passage of the 2006 Military Commissions Act, Sen. Ted Kennedy proposed an amendment that would have expressly defined “waterboarding” (among other indignities) as a grave breach of Common Article 3 of the Geneva Conventions.  The Amendment lost, 46-53.  That is, the same senate that wants Mukasey to say waterboarding is unambiguously illegal in all circumstances declined to make it unambiguously illegal in all circumstances.  I realize that the senate was in Republican hands then and it is in Democratic hands now; I realize if the vote were retaken today, the Amendment would have a better chance of passing.  But the stubborn fact remains:  it didn’t pass — it lost.

Imagine the Democrats were insisting that Judge Mukasey concede that the Rockies won a game during the World Series.  After all, a sweep seems so unfair to all those good fans in Colorado, and the Rocks were ahead for about four innings in Game Two — that’s almost like winning, right?  Wouldn’t we all feel better about ourselves if everybody came away thinking they’d won something?  Wouldn’t that be more in line with our ideals?  Wouldn’t it just be, well, admirable?

Maybe, but that’s not the way it happened.  They had four chances to win, and they lost.  Better luck next time.  And there is always a next time.  The Rockies get to try again next season.  Senator Kennedy and the other Democrats get to try again, whenever they’re ready. 

In recent media accounts, it is suggested, as one would hope, that waterboarding has scarcely been used (on perhaps three detainees since 9/11) and hasn’t been used in a long time (perhaps not in four years).  I hope that’s true — the tactic should be considered illegal and shocking to the conscience (a violation of the McCain amendment) in almost all circumstances.  But the Democrats want to go further.  They want the law to be that we must never, ever resort to waterboarding, no matter how imminent and grave the threat of mass-slaughter.  That is a worthy debate to have.  And if they win it, we will all honor the result whether we like it or not.  But they have to win it first — by convincing the country and passing legislation.  They shouldn’t get to pretend they already won by trying to coerce a nominee into helping them rewrite history … and law.

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