The question of whether waterboarding constitutes torture is a no-brainer. Our nation and many others have recognized for decades that it does. One doesn't have to have been "read into" the details of a classified program, as President Bush has suggested, to reach a judgment about this interrogation technique. Common sense is the only tool needed to understand that inducing the sensation of drowning -- i.e., of dying -- is torture.
Remarkably, in his recent confirmation hearing to be attorney general, Judge Michael Mukasey declined to say whether waterboarding is torture. There are two explanations for this. Mukasey himself stated that he was without enough information to make the call. But some believe his unwillingness to do so may also be based on a concern that it could increase the potential liability for those who have engaged in this practice or authorized it.
Both explanations demonstrate the corrosive effects of the decision to adopt cruelty and -- as with waterboarding -- even torture as weapons of war. The first shows the tendency, pioneered by the Justice Department that Mukasey hopes to lead, to redefine torture to make "legal" what was, and is, illegal. The second shows how concern about accountability for the abuse of detainees is now acting as a stimulus for ratification of cruel interrogation policies and practices. In this confluence, we risk permanent damage to our legal system and to the principle of accountability.
But there are also greater risks. There is no more fundamental right, whether under U.S. law or under human rights principles, than a person's right to be free not only from torture but also from cruel treatment, the lower level of abuse under law. If we were to legitimize cruelty -- as those who espouse waterboarding would wish us to do -- we would do violence to the concept of inalienable and inviolable personal rights. The protection afforded by law to core human dignity would be shattered, with incalculable damage to our nation's deepest values, founding principles and constitutional order.
And we risk much more yet.
Cruelty diminishes the international standing of the United States and impedes our ability to achieve crucial foreign policy objectives. Opinion polling in Europe and South Asia last year, including surveys by World Opinion.org and Public Diplomacy.org, found that majorities believe the United States engages in torture and disregards international treaties on the treatment of detainees. Overwhelming majorities in Germany and Britain, our closest European allies, condemn America as doing a "bad job" on human rights.
The promotion of democracy and human rights is a key element of U.S. foreign policy and fosters a rules-based international system anchored in the protection of human dignity. But our ability to achieve this goal -- indeed, even our adherence to this strategic objective -- is severely compromised when our own conduct is widely perceived to violate human rights.
As bad as the damage to our foreign policy has been, the damage to our national security may be even worse. Because the application of cruelty is a crime under the laws of many of our allies, our ability to build and maintain the broad alliance needed to efficiently fight the war on terrorism has been crippled. After Abu Ghraib, when the dimensions of our policy of cruelty became more visible, international assistance across the range of military, intelligence and law enforcement arenas dropped as foreign officials grew concerned that their cooperation might constitute aiding and abetting criminal activity.
The damage is significant even at the tactical level. Some military officials today believe that the proximate causes of Abu Ghraib were the legal opinions issued by the Justice Department that sanctioned abusive interrogations. There are other serving military officials who maintain that the leading causes of U.S. combat deaths in Iraq are, respectively, Abu Ghraib and Guantanamo, as gauged by their effectiveness in stimulating the recruitment and fielding of jihadists on the battlefield.
Judge Mukasey is able and accomplished. But if he is confirmed as the next attorney general, his legacy will depend on his ability to do what he has been unable or unwilling to do in his confirmation process: recognize torture and cruelty for what they are and protect our nation by stripping certain interrogation methods of their disgraceful camouflage of false "legality."
Alberto Mora was general counsel to the Navy from 2001 to 2006. John Shattuck was assistant secretary of state for democracy, human rights and labor from 1993 to 1998 and was ambassador to the Czech Republic from 1998 to 2000.