The attorney general of the United States, Michael B. Mukasey, testified this week that he would consider waterboarding to be torture if it were done to him, but that he cannot say it's always illegal. We believe these statements are legally and morally wrong, and set a dangerous and hypocritical standard of convenience for torturers. Such repugnant equivocation will be mimicked and distorted in dark corners around the world, and will make it more likely that waterboarding and other forms of torture will be used against U.S. soldiers and civilians.
Mukasey's arguments rely on a legal and moral relativism of the very type that conservatives typically revile. "There are some circumstances where current law would appear clearly to prohibit the use of waterboarding," Mukasey said in a letter before his testimony to the Senate Judiciary Committee. "Other circumstances would present a far closer question." In fact, the question isn't remotely close. Torture is defined as the deliberate infliction of extreme pain and suffering, physical or mental, and mock execution is universally held to be a form of torture. Waterboarding, which has been used for centuries, makes the victim feel as if he or she is drowning. Whether it is done carefully enough that the victim does not drown is irrelevant, as the point is to simulate execution. After World War II, the United States prosecuted for war crimes Japanese who waterboarded American prisoners.
Mukasey's murky testimony shows that the administration is still trying to reinvent the legal standards for torture -- at least retroactively. He announced that the CIA has already stopped waterboarding, but his refusal to declare the practice illegal suggests that the administration's top priority isn't setting clear rules for interrogations, it's making sure that U.S. officials who used the technique on "high-value targets" such as Khalid Sheikh Mohammed are not prosecuted. Mukasey said that what's illegal under the Constitution is what "shocks the conscience." He testified that "the Detainee Treatment Act engages the standard under the Constitution, which is a shocks-the-conscience standard, which is essentially a balancing test of the value of doing something as against the cost of doing it." Sen. Joseph R. Biden Jr. (D-Del.) asked whether he meant the cost "in what we think is appropriate and inappropriate behavior as a civilized society?" No, replied Mukasey, "I meant the heinousness of doing it, the cruelty of doing it balanced against ... the value of what information you might get." Translation: If waterboarding an Al Qaeda suspect who might have information about a nuclear bomb doesn't shock the conscience of the interrogators, it might be legal.
But this is a grotesque perversion. Torture is defined by what is done to the victim, not by the usefulness of the information obtained. While some argue that torture may be morally justifiable under an implausible "ticking time bomb" scenario -- and a jury might decline to convict interrogators who broke the law in such circumstances -- torture must never be legal.
Defenders of "extreme interrogation techniques" for suspected terrorists claim that Americans are naive to worry about our legal standards being used against us. After all, they say, Al Qaeda does far worse than waterboard any Americans it catches. But if we are to govern our own behavior by the logic of reciprocity, we might as well jettison the entire Geneva Convention and quit prosecuting war crimes, on the grounds that others will commit them anyway. This logic is also shortsighted in assuming that Al Qaeda is the last enemy the United States will ever fight. Alas, the possibility of U.S. military clashes with China, Iran or another adversary can never be ruled out. Fear of what future enemies might do to us, as well as the desire to have a homeland worth protecting, have prompted dozens of U.S. generals to call for an absolute ban on waterboarding and all other forms of torture.
If Mukasey genuinely believes that the law might allow waterboarding under some circumstances, then Congress must end his legal muddle. The Senate can do so by passing the Intelligence Authorization Act, which has already passed the House. It would require the intelligence agencies to abide by the no-torture interrogation rules in the Army Field Manual, and stop the degradation of American decency.