The Waterboarding Dodge

Tuesday, October 30, 2007

IT'S A SAD day in America when the nominee for attorney general cannot flatly declare that waterboarding is unconstitutional. The interrogation technique simulates drowning and can cause excruciating mental and physical pain; it has been prosecuted in U.S. courts since the late 1800s and was regarded by every U.S. administration before this one as torture. Yet, when asked during his confirmation hearing whether waterboarding is unconstitutional, the best that former judge Michael B. Mukasey could muster was "if waterboarding is torture, torture is not constitutional."

The fault for this evasion lies as much, if not more, with President Bush and Congress as it does with Mr. Mukasey. Mr. Bush authorized waterboarding in the past, most notably against al-Qaeda leader Khalid Sheikh Mohammed. If Mr. Mukasey now condemns the interrogation method as unconstitutional, he would probably be in conflict with Justice Department memoranda that implicitly endorse such techniques and that have been used by CIA interrogators and others to cloak their actions in legal legitimacy. The president could also be legally implicated for approving the method.

Democratic senators are demanding that Mr. Mukasey declare waterboarding illegal before they will vote to confirm him. But Congress has failed to pass laws that explicitly ban waterboarding and other acts that constitute either torture or cruel, inhuman and degrading treatment, a lesser category of abuse also banned by international treaty. Instead, legislators have repeatedly agreed to definitions of inhumane treatment that have allowed the abuse of foreign detainees to continue.

If Democratic senators are serious about eliminating the use of waterboarding and other abusive interrogation techniques, they should seek to mandate that all questioning of foreign detainees be governed by the Army's interrogation field manual, which was recently updated. Top military officials, who have repeatedly argued that torture yields unreliable information and could expose U.S. soldiers to mistreatment, say the techniques contained in the field manual provide all the tools needed to obtain intelligence even from difficult subjects.

Mr. Mukasey may have a way out of his predicament. He could respond to the Senate's questions by saying that waterboarding should be judged as unacceptable under statutes passed by Congress since 2005, despite the loopholes those laws contain. Though the administration has sought to preserve its prerogative to use waterboarding, the technique reportedly has not been employed since then. He also could renew his promise to review all Justice Department memos regarding detainee treatment and correct or eliminate those that don't comport with the law. Then the animus swirling around Capitol Hill and throughout the blogosphere toward the attorney general nominee could be redirected more properly: at an administration that condoned torture and a Congress that did too little to stop it.

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