Americans Torture

Senate confirmation of U.S. Attorney General-designate Michael Mukasey has been imperiled - although certainly by no means killed - as the respected former U.S. District Court judge refuses to say unequivocally whether or not the practice of waterboarding is torture. Waterboarding, despite being squeamishly labeled everything from "simulated drowning" to a "CIA-sponsored swim lesson," is neither; as former Master Instructor and Chief of Training at the U.S. Navy Survival, Evasion, Resistance and Escape (SERE) School writes, it is torture - period. Far from merely inflicting mental distress, waterboarding is controlled drowning in which fluid enters the lungs, and it carries with it the risk of brain damage, internal trauma and death. The United States has both court martialed American personnel who have engaged in it and prosecuted foreign perpetrators of the technique as war criminals.

In spite of these facts, President Bush made two extraordinary claims on Thursday. First:

I believe the questions he's been asked are unfair. He's been asked to give opinions of a program - or techniques of a program - on which he has not been briefed... The American people have got to understand the program is important and the techniques used are within the law... He doesn't know whether we use that technique or not.

and later:

If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general... That would guarantee that America would have no attorney general during this time of war.

Even a quick reading of these statements by all but the most partisan backers of the president reveals the utter lack of rationality, conscience and respect for the rule of law that is embodied therein. Unfortunately, however, the media continues to support this narrative, focusing on whether or not Judge Mukasey is being asked to retroactively label as a toturer anyone who has interrogated prisoners in the days since 9/11, and/or whether the United States tortures under current interrogation programs. Despite the president's hysteria, he's not being required to do either.

In point of fact, Mr. Mukasey has not been queried on his opinion of a technique used by the United States government at all, unless the Central Intelligence Agency (CIA) or military are currently violating the orders of CIA Director Michael Hayden and the Army field manual, both of which explicitly prohibit waterboarding. On the contrary, the judge is being asked to define whether a technique that is roundly considered cruel, inhumane and degrading - and therefore in violation of the Geneva Conventions to which the U.S. is signatory - is "torture." (It should be noted that treaties ratified by Congress - as in the case of the Geneva Conventions - carry the force of domestic law.) This being the case, it flatly doesn't matter whether Judge Mukasey knows whether or not waterboarding is being used by American interrogators, only whether or not waterboarding is torture.

By contrast, the president's statements essentially amount to an admission that the U.S. - despite claims to the contrary - is (or has been until recently) waterboarding prisoners in violation of its own orders and the law. This assertion is supported by the accounts of CIA officials who told ABC News in 2005 that waterboarding was authorized by agency leadership, and while the president has repeatedly declared that "we do not torture," there can be little question that we have done so in the very recent past, or that we may continue to do so today. Mr. Bush is desperately working to prevent his nominee for Attorney General from defining waterboarding as torture in order to avoid removing any last doubt - purely semantic or not - that, on this topic, he is an unmitigated liar.

Finally, the idea that requesting Mr. Mukasey's legal opinion on whether or not waterboarding is torture is somehow beyond the pale is patently ludicrous. Judge Mukasey is a former federal prosecutor, private practice attorney, district court judge and professor at Columbia University Law School; it is hard to imagine someone more qualified to have an opinion on matters of jurisprudence. If Mr. Bush is honestly interested in ensuring that the nation has an attorney general "during this time of war" and Mr. Mukasey needs to be briefed by the president in order to answer a question, that briefing should take place. Given that it has not, the only possible explanation for Bush Administration stonewalling an eminently reasonable inquiry is fear that the president and his team will be revealed to have been working beyond the legal limits with respect to interrogation, and again, repeatedly lying about it.

Pausing for a moment to briefly ignore these impeachable violations of United States law, it is important to understand why all of this posturing and rhetoric continues to be costumed as "debate." The first reason, I believe, is our great national discomfort over what we know - whether we admit it or not - is being done in our names. The second - which is related to the first - is that there remain apologists who claim that even if waterboarding is torture (and it is) it is somehow justified because of the threat we face from al-Qaeda and radical Islam. Such claims, however, grossly and obvioulsy inflate that threat. As Bill Maher notes:

At the Republican debate this week, Mike Huckabee said, "Islamofascism is the greatest threat we ever faced." Really? More than the Nazis, and the Russians and the Redcoats? In his latest ad, Mitt Romney warns eerily that Muslim jihadists want to establish an Islamic caliphate covering the whole world, including America. Yes, and I want to be adopted by Angelina Jolie.

Even if one accepts the false premise that we live in circumstances of extreme danger that demand an extreme response, there is no evidence that torture works at all. Stuart Herrington, a 30-year veteran of military intelligence and an interrogator, states that success comes from building rapport with prisoners, not through inflicting pain until they will declare and say anything in order to obtain relief. Khalid Sheik Mohammed, for instance, is acknowledged to have been waterboarded, but as recounted in The One Percent Doctrine, confessed to pretty much every crime or plot he could think of, real, imaginary, past, present or future.

Of course, the most pernicious defense of torture is usually encapsulated in the "ticking time bomb" scenario, but even here, in the most dramatic of possible set pieces, the reasoning and justification are unsound. The underlying problem is this: in real life, all of the facts that precede the last, crucial piece of knowledge - what is planned, where it is to take place, when, and by whom - are precisely the facts an interrogator works to uncover. It is total fantasy to think that an interrogator will have all the answers except for one, and will be capable of distilling the single piece of good data from the verbal deluge that results when a prisoner breaks. Jack Bauer might be a favorite of G.O.P. pols, but that doesn't make his fictional successes any more realistic.

Few things have horrified me more since George W. Bush took office than the fact that we are now debating what kinds of torture are acceptable and what might or not be torture; these lines should be clear. Today, our national self-degradation continues with the Mukasey nomination, as, instead of calling the president on the carpet for the rank and ugly stain he continues to work into the fabric of our cultural identity, we treat his declarations and his obstructionism as if they were honorable speech. Just a few years ago, the debate - if there was any debate at all - would have been whether to imprison torturers with the possibility of parole or without. It is a measure of the effectiveness of the fear mongering, the intellectual laziness and the moral bankruptcy of the Bush White House that we have fallen as far as we have.

As a people, we are judged by how well we live up to the principles we expound and to which we aspire, not just when it is easy to do so, but when it is most difficult. By allowing our government to unjustly imprison and torture on our behalf we fail both our nation and ourselves, and it is high time that we stopped letting cheap thugs elevated to positions of power - for which they have repeatedly demonstrated neither capacity nor ability - ruin our names, our reputations and everything for which the United States once stood.

The first step toward recovery is the painful one of admitting we have a problem, and it's time to call a spade a spade: Americans torture.