Politics & Policy

The End of the Waterboarding Controversy?

Mukasey's letter to the Judiciary Committee should be the last word.

The waterboarding controversy should end with a whimper. It probably won’t, but it should.

Attorney General Michael Mukasey has studied U.S. interrogation methods, as he committed to do in his confirmation hearings. On Tuesday, he submitted a letter to the Senate Judiciary Committee that should comfort critics and satisfy the rest of us.

Bottom line: The United States does not currently use waterboarding as a tactic to derive intelligence. There is, moreover, no expectation that waterboarding will be added to the menu of interrogation methods, a process that would involve several unlikely steps.

Of course, war critics and anti-torture activists will never be satisfied. Too many of them are more invested in further inflating yesterday’s legal quarrels than preparing for tomorrow’s national security needs. But for people of good will — those who concede that there have always been strong arguments on both sides of this debate — it’s time to let go.

Let’s take a step back. Credible reporting — which is not addressed in the attorney general’s letter — indicates that waterboarding has been used on no more than three of the thousands of detainees the United States has held, long and short term, since military operations against radical Islam began over six years ago. Assuming (as I do), that it was used on those three (all top-tier al-Qaeda operatives), the same credible reporting also tells us the tactic has not been used in over four years.

So we did it an infinitesimal number of times, we haven’t done it in years, we don’t currently do it, the regulations in place don’t permit it, and it seems inconceivable that future regulations will alter that.

Is this issue really worth scandalizing ourselves over?

Is it really worth intimidating our intelligence officers with the fear of prosecution and consuming days upon days of the legislative calendar (including confirmation hearings) over waterboarding?

How can it be that people who claim to worry so much about America’s reputation in the world think they somehow advance that reputation by obsessing over something that virtually never happens, and in the process libeling our government as a programmatic torturer?

I’m not a fan of the Bush administration’s democracy project, but isn’t there something ironic in the fact that the United States since 2001 has freed 50 million people from tyrannical regimes, yet all the “America’s reputation” crowd seems to want to talk about is waterboarding — three instances, or, if you like, one waterboarding of a complicit terrorist for every thousand innocent people killed on 9/11?

In his letter, the AG declines to opine on the legality of waterboarding absent being presented with the concrete details of an actual case of its use. This frustrates those who want to keep stirring this pot, but it is wise. It is consistent with our prudent tradition of not addressing difficult questions in the abstract — a tradition that should go double when we are talking about issues attendant to a highly classified intelligence program used against an enemy that trains to resist any known interrogation method.

Yet, the AG was willing to go further. “There are some circumstances where current law would appear clearly to prohibit waterboarding,” he writes. “Other circumstances would present a far closer question.”

Thus, here’s what we can say about this virtually never used tactic that hasn’t been employed in years, is currently not used, and is not permitted under current regulations: Close study indicates that there are times when waterboarding is patently illegal; the rest of the time it might very well be illegal but — given that we are dealing with the Supreme Court’s elusive “shocks the conscience” standard — it’s not possible to say with absolute certainty absent knowing the facts.

In good faith, how much further must an official dedicated to the law — which has quite intentionally been kept ambiguous and uncertain — be expected to nod in the direction of those under the control of their passions?

Feelings run deep on coercive tactics. Senator John McCain was put through a hell on earth that can be grasped by none of us who have never donned the uniform, much less had the courage to subject ourselves to the peril of capture by sadistic enemies. Transnational progressive organizations like Human Rights Watch and Amnesty International have made the dignity of the individual their ne plus ultra, to the exclusion of all sovereign concerns, particularly national defense.

But isn’t enough enough at a certain point?

Those of us who have been on the other side of the interrogation debate have not appreciated being belittled as torture mongers. We not only share the desire to minimize the incidence of torture; we frankly believe our varying approaches have a better potential to do that than the categorical bans favored by, for example, Sen. McCain — who, it should be noted, has conceded he would expect such a ban to be ignored in a dire emergency.

All that aside, though, we’re a good country. We do more selfless good for the world than any nation in history. It should by now be obvious that we don’t lightly regard matters touching on torture and cruel, inhuman or degrading treatment. For us, the decision to use highly coercive questioning methods is only a close call (no doubt, an excruciating call) in only the most extreme of national emergencies. The rest of the time, more than 99.9 percent of the time, there is no decision to make because the use of waterboarding or worse is unthinkable.

Isn’t that enough? How much more do we need to bleed this stone?

Andrew C. McCarthy, an NRO contributing editor, directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.

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