Would someone be fit to be attorney general of the United States if he had once said, "I think there are probably very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are stake"?
By the standard Democrats are using to oppose the nomination of Judge Michael Mukasey as attorney general, the answer would be "no." In fact, whoever endorsed torture so explicitly would be relegated to the moral outer darkness. Lucky for him, Sen. Chuck Schumer, who made the above comment during a June 2004 Senate hearing on terrorism, is a member in good standing of the Senate Democratic leadership.
Mukasey is not so fortunately situated. He's only a respected federal judge whose hallmark is a painstaking commitment to the law. He would never, as Schumer did, endorse violations of U.S. law, the Constitution and Common Article 3 of the Geneva Conventions. Mukasey has been absolutely clear that torture is illegal and wrong.
But he won't say that the interrogation technique of waterboarding -- which simulates drowning and induces instant, resistance-breaking panic in detainees -- constitutes torture. On this basis, Sen. Sheldon Whitehouse, a Rhode Island Democrat, fulminated against Mukasey, "Will we join that gloomy historical line leading from the Inquisition, through the prisons of tyrant regimes, through gulags and dark cells, and through Saddam's torture chambers?"
Reasonable people can consider waterboarding torture, defined by federal law as an act "specifically intended to inflict severe physical or mental pain or suffering." Obviously if waterboarding weren't so horrifying, it wouldn't break detainees so quickly. But common sense suggests that the practice belongs in a murky space short of unambiguous torture.
Journalists have volunteered to be waterboarded, something they would never do in the case of such infamous torture methods as pulling out fingernails. Both the Army and Navy use waterboarding in their survival and resistance training. If waterboarding is torture, whoever has authorized and conducted this training should -- as a strict matter of the law -- be vulnerable to war-crimes prosecutions.
The Senate had a chance to settle the question in September 2006 when Sen. Ted Kennedy offered an amendment to declare waterboarding and other coercive interrogation techniques a violation of Common Article 3 of the Geneva Conventions. His amendment lost 46-53. So Senate Democrats are now demanding that Mukasey declare waterboarding a violation of Common Article 3 when the Senate declined to do the same just a year ago.
Instead, he says that he has not yet been briefed on classified interrogation practices, so he can't make a definitive determination. Even if it's not torture, it might be illegal as "cruel, inhuman or degrading treatment." The Supreme Court has ruled that the standard for defining such treatment is whether it "shocks the conscience," and determining that depends on the circumstances. And there's the rub.
Even Democrats like Bill Clinton and scourges of torture like Sen. John McCain say it is acceptable to torture someone in a "ticking bomb" scenario. Real life doesn't produce the kind of a-nuke-is-about-to-go-off scenarios featured on the television drama "24." The closest we are likely to get is the capture of high-level al-Qaida operatives like Khalid Sheikh Mohammed with knowledge of ongoing plots. Should we have tortured KSM? No. But we waterboarded him and that reportedly helped roll up al-Qaida terrorists around the world.
Circumstances matter. If we were waterboarding political dissidents, Sen. Whitehouse would be right to compare us to Saddam Hussein. If interrogators were waterboarding KSM every morning for their own amusement, that would shock the conscience. But not many consciences will be shocked at subjecting him to 90 seconds of uncontrollable panic to get information that might save lives.
If the Senate disagrees, it should put itself clearly on record forbidding waterboarding. Otherwise, it should confirm Mukasey as the careful legal mind he has shown himself to be throughout his career and during this controversy.