Let’s say Congress passed a statute that said, “Whoever violates the due-process clause of the Fifth Amendment shall be sentenced to life imprisonment.” The resulting outcry would be well taken. Such a statute would be invalid under the selfsame due-process clause. Its vagueness would make it impossible to know what conduct was forbidden. We would be governed not by law, but by the whims of whoever happened to be enforcing the law at any given time.
This, essentially, is what Congress has done with coercive interrogation, and now Senate Democrats are trying to browbeat Michael Mukasey, the president’s nominee for attorney general, into saying that their whims on the tactic of waterboarding are law. The same lawmakers who pontificated throughout Mukasey’s two-day confirmation hearing about the need for an “independent” attorney general — one with enough backbone to tell the president “No” if the administration pursued a course that ran afoul of the law — now demand that Mukasey roll over for them. It’s coercive interrogation, Senate-style: Either pretend we have done something we have not done — namely, unambiguously prohibited waterboarding — or risk being denied confirmation.
Thus far, Mukasey has declined to play along. We hope he sticks to his guns.
Waterboarding is an extremely rough interrogation tactic in which a detainee is tied down and made to fear imminent drowning. It treads close to the legal line of torture. It does not, however, appear to cross that line — at least not clearly. “Torture” is a special legal designation, reserved for especially sadistic forms of abuse, practices so heinous they stand apart, even from other cruelties, as meriting extraordinary condemnation. Though highly unpleasant, it is doubtful that waterboarding involves the type of severe, prolonged anguish required before a tactic meets the legal threshold of torture.
Moreover, waterboarding has been used to train our own military and intelligence operatives in interrogation-resistance. That fact alone should call into question whether waterboarding constitutes torture, in either a moral sense or a legal one (Congress surely would not have meant to turn the training techniques of the military and the CIA into war crimes).
This is a matter of no small importance. Since 9/11, the CIA has operated a special interrogation program for high-value enemy detainees such as Khalid Sheik Mohammed, mastermind of the suicide-hijackings that killed nearly 3,000 Americans and took the nation to war. For these most hardened terrorists, interrogation techniques have reportedly included waterboarding. The yield, according to the Bush administration, has been singularly valuable intelligence, enabling the government to thwart other plots and save a great many lives.
The intelligence officers who employed these tactics were acting under Justice Department guidance. That guidance, which defined torture very narrowly, has since been withdrawn. This was hardly a concession that tactics such as waterboarding constituted torture. It was, however, a pulling of the rug out from under interrogators who had performed their duties while relying on the guidance — increasing their potential exposure to both prosecution and civil liability.
The antiwar Left has hankered for years to pin the “torture” label on President Bush. With Mukasey, a widely respected former federal judge, they perceive a golden political opportunity. If they can get him to say that waterboarding is torture, it would greatly advance the demagoguery by which they daily attack the legitimacy of the War on Terror.
Because both the interrogation program and the current legal guidance on it are classified, Mukasey has not been apprised of their details. It would be irresponsible if, as an attorney-general nominee, he did what he would never do as a judge: in ignorance of critical facts, render a cavalier opinion that effectively criminalizes conduct the American people have not chosen to ban through their elected representatives.
On that score, Congress has twice in the last three years enacted legislation on coercive interrogation. On both occasions it could have prohibited waterboarding — and on both it declined to do so. In the 1990s, the United States ratified treaties that ban not only torture but “cruel, inhuman, and degrading treatment” (CID). These terms are inherently vague, and Congress has refused to clarify them. Instead, CID is defined as the conduct already forbidden under the Constitution’s Eighth Amendment proscription against cruel and unusual punishment, as well as its Fifth and Fourteenth Amendment due-process guarantees, which the courts have subjectively construed to bar conduct that “shocks the conscience.” Even among constitutional scholars, there is no consensus about exactly what these terms prohibit, or when they apply.
Mukasey’s nomination has thus been caught up in a cynical game. To increase their human-rights credentials or satisfy their hard-Left base, members of Congress inveigh against torture and CID; but fearful of being blamed for the next attack or exposed as unfit to deal seriously with the terrorist threat, they don’t do anything to prevent coercive interrogation for which they might be held to account. They won’t declare waterboarding unlawful because, in an emergency, the tactic may very well save American lives; and now they lash out at Mukasey for inconveniently refusing to indulge the fiction that they have already made it illegal.
A confirmation hearing is an occasion for vetting a nominee’s qualifications — and Mukasey’s are sterling. It is not an occasion for making policy or law in stealth. If Democrats, and Republicans led by John McCain and Lindsey Graham, are determined to criminalize waterboarding, they should do it the way law is made in a democracy. That would mean proposing clear legislation and arguing that it is better to risk the death of thousands of Americans in a terrorist attack than it is for Khalid Sheik Mohammed to be subjected to non-lethal, simulated drowning that causes neither great pain nor lasting injury.
The Justice Department and the acquisition of life-saving intelligence are both too important to be subjected to agenda-driven gamesmanship. Judge Mukasey should be confirmed without further delay. Then Congress should either give us an honest debate about what interrogation tactics should be proscribed or, better still, drop the subject. Waterboarding should not be part of the regular interrogation menu, and there is no reason to believe it is. But unless we’re prepared to say it should never be on the menu, no matter how dire the threat, we should stop talking about it.