It's torture; it's illegal

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.