THERE WAS one overarching takeaway from Attorney General Michael B. Mukasey's testimony yesterday before the Senate Judiciary Committee: When it comes to waterboarding and other extreme interrogation techniques, the ends justify the means.
Mr. Mukasey testified that, when evaluating the legality of an interrogation technique, the government had to weigh "the heinousness of doing it, the cruelty of doing it balanced against the value . . . of what information you might get." For example, he agreed that the use of waterboarding would "shock the conscience" and be impermissible if it were used to pry information "that wouldn't save lives." But it could pass legal muster if used to prevent imminent harm.
Mr. Mukasey's analysis is as flawed as it is disturbing. Waterboarding, which is not currently authorized under the CIA's special interrogation program, has long and unequivocally been considered torture, and therefore illegal, under international law and U.S. statutes. The United States prosecuted its own soldiers for using the technique as long ago as the Spanish-American War. As recently as 2005, Congress passed the McCain amendment to prevent just such treatment. And in 2006 the Supreme Court ruled that the Geneva Conventions apply to all detainees, including suspected al-Qaeda operatives, and not just members of an organized military force.
The Bush administration's use of torture and continued use of extreme interrogation techniques have done untold damage to the moral standing of the United States. These practices have also unnecessarily increased the risk that U.S. soldiers and personnel could be subjected to such treatment at the hands of enemy forces. Having the attorney general state flatly that the technique is illegal could help the country begin to rehabilitate its image in the eyes of the world.
Instead, Mr. Mukasey mimicked his predecessor, former attorney general Alberto R. Gonzales. Asked during his 2005 confirmation hearing about the legality of a litany of abusive interrogation techniques, Mr. Gonzales concluded that "some might . . . be permissible in certain circumstances." Both men could have come to their separate conclusions honestly. But neither man could have ignored the possibility that if they'd reached the opposite conclusion they would have found themselves in the awkward position of deciding whether members of the administration broke the law.
At one point during yesterday's appearance, Mr. Mukasey suggested that current laws governing torture were vague, allowing for competing interpretations. Congress should seize on this statement as an invitation to close any loopholes once and for all. Lawmakers should aggressively press forward to outlaw all forms of abusive interrogation, including extended sleep deprivation, which the administration has not forbidden the CIA to use. A bill to force all U.S. interrogators to abide by the Army Field Manual, which forbids all abusive treatment, languished during the past session of Congress; lawmakers should redouble their efforts to pass this legislation.