What’s at stake in the debate over Attorney General-nominee Michael Mukasey?
First you are strapped to a plank. Then the plank is tilted so that your feet are above your head. Next a cloth is pulled taut across your mouth, and finally water is poured directly onto the cloth. Breathing becomes nearly impossible. You start to feel like you’re drowning—because you are. The flow of water ceases just before you pass out, and if you don’t tell the interrogators what they want to know, the process begins again.
That technique, once routinely practiced by the Khmer Rouge, is called waterboarding. It is a serious form of torture, and as such it is prohibited by the Geneva Conventions and by U.S. law. Yet at his confirmation hearings in October, Attorney General-nominee Michael Mukasey testified that he did not know what the process entails. “Is waterboarding constitutional?” Senator Sheldon Whitehouse (D-R.I.) asked. “I don’t know what’s involved in the technique,” Mukasey answered. “If waterboarding is torture, torture is not constitutional.”
Perhaps it shouldn’t surprise anyone that President George W. Bush’s nominee could not manage a straight answer.* Still, it’s hard to believe that someone in Mukasey’s position doesn’t know what’s involved in waterboarding. As retired Rear Admiral John D. Huston explained at the Mukasey hearings: “Other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history. It has been repudiated for centuries.”
But not by the Bush administration, and not by Mukasey. His response was doubly perplexing because, the day before, he had offered testimony of a markedly different sort. Senator Patrick Leahy (D-Vt.) asked Mukasey for his thoughts on the Justice Department’s notorious 2002 “torture memo,” which legitimized the harshest interrogation methods and argued that the president can grant legal immunity to those who use them. Mukasey unequivocally repudiated the memo. He called torture “antithetical to what this country stands for.”
And yet, as the New York Times reported in October, after having publicly abrogated the “torture memo” in 2004, the Justice Department issued a secret 2005 opinion broadly endorsing the harshest interrogation methods ever used by the CIA. These included face-slapping, exposing prisoners to freezing temperatures, and waterboarding. Then–Attorney General Alberto Gonzales approved the memo over the objections of his deputy, James B. Comey, who promised his colleagues that they would be “ashamed” once the public learned of it.
Comey’s protests echoed those made during the so-called Justice Department mutiny of 2004, in which a small group of conservative lawyers resisted the arguments of the “torture memo.” They recognized what the vast majority of interrogation experts have been saying for years—torture is ineffective, illegal, immoral, and puts U.S. forces at risk. But those arguments did not carry the day.
So the secret memos remain in effect, bolstered by President Bush’s July 2007 executive order authorizing “enhanced interrogation”—despite his constant refrain that “America does not torture.” That statement is true only if one radically and unnaturally redefines the word “torture.” That is precisely what the president has done, largely through agents such as Vice President Dick Cheney, his counsel David S. Addington, and former Attorney General Alberto Gonzales.
The campaign to relax the traditional ban on torture began in the aftermath of 9/11. Desperate to guard Americans against further attacks, Cheney and others argued that the president needed more expedient means to extract information from terrorist suspects. This came to mean warrantless domestic wire taps, secret offshore prisons for terrorist suspects, sending suspects to other countries for harsh interrogation, and the authorization of torture, which has been practiced at Abu Ghraib, Guantánamo Bay, and elsewhere.
But six years on, the destructive legacy of this policy could not be clearer, or more shameful: more than one hundred reported detainee deaths, nearly thirty of which have been ruled homicides by the Pentagon. The United States, once widely hailed as a champion of human rights, is now seen as a nation that tortures. What is perhaps more disturbing is that the president appears unchastened. After all, his attorney-general nominee endorsed the very view of executive power that set the country down this calamitous path. In his testimony Mukasey suggested that the president’s duty to defend the country overrides his duty to obey the law. That is a perverse, almost monarchical interpretation of the executive branch’s role. And if Michael Mukasey is confirmed as attorney general, it is a view the Senate will have endorsed.
October 30, 2007
* This sentence has been corrected.