Given the current controversy about Michael Mukasey’s nomination to be attorney general and his responses to questions about water-boarding, I would urge you to go to marklevinshow.com and listen to the two audio bites he has of Senator Schumer from a 2004 hearing on that subject (Mark Levin devoted the opening of his program Thursday to this topic).
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Among other things, Senator Schumer — who eagerly recommended Judge Mukasey as a consensus candidate but now appears to be wavering in his support — says “there are times when we all get into high dudgeon” on this matter but that we “ought to be reasonable about this.” He then says this: I think there are probably very few people in this [Congressional hearing] room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake. Take the hypothetical: if we knew that there was a nuclear bomb hidden in an American city and we believe that some kind of torture, fairly severe maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most Senators, maybe all, would say do what you have to do. So it’s easy to sit back in the armchair and say that torture can never be used. But when you’re in the fox hole, it’s a very different deal. And I respect, I think we all respect the fact that the President’s in the fox-hole every day. So he can hardly be blamed for asking you, or his White House counsel or the Department of Defense, to figure out when it comes to torture, what the law allows and when the law allows it, and what there is permission to do.
Senator Schumer adds this:
We certainly don’t want torture to be used willy-nilly… But we also don’t want the situation like I mentioned in Chicago to preclude it. But it’s got to be done carefully, and if it’s public and if there’s debate, you can be sure it’ll be careful. That’s what the founding fathers in their wisdom said.
Senator Schumer, then, goes beyond what Judge Mukasey has said about water-boarding and torture in arguing that under some circumstances, he believes every member of the Senate would endorse the use of torture.
I don’t pretend that the morality of using torture is easy. It’s one I struggle with, involving as it does the age-old issue of ends and means.
Most of us instinctively pull back from using harsh interrogation techniques and certainly torture, even against known terrorists. The policy of the United States, and our obligation under international law, is not to torture. But does that mean that in every instance torture is wrong? It is surely wrong in almost every instance, and, given the double-obligation of morality and law, one should begin with the presumption that it is wrong and then set a very high bar for anyone who would argue that torture might be acceptable in very limited instances.
I would add this: to declare that torture never works is inaccurate and a dodge. Media reports indicate that it was water-boarding that broke Khalid Sheikh Mohammed and helped us gain valuable information. ABC News investigative reporter Brian Ross told Fox News’ Bill O’Reilly this in a 2006 interview:
In the case of Khalid Sheikh Mohammed, the information [gained from coercive interrogation techniques] was very valuable, particularly names and addresses of people who were involved with al Qaeda in this country and in Europe. And in one particular plot, which would involve an airline attack on the tallest building in Los Angeles, known as the Library Tower.
George Tenet, the former director of the CIA, told 60 Minutes that intelligence gained from suspected terrorists in the CIA’s covert detention program and its “enhanced interrogation techniques” was more valuable than all the other terrorism-related intelligence gathered by the FBI, the National Security Agency and his own agency.
To oppose the nomination of Michael Mukasey, a widely respected judge of sterling credentials, unless he declares water-boarding qualifies as torture — which after all is the subject of a serious debate — and therefore ought to be banned in all circumstances is unmerited.
The questions to ask are fairly straightforward: Where along the continuum of coercive techniques do members of the Senate Judiciary Committee, and other Members of Congress, draw the “torture line” — and on which side of that line is water-boarding? For all the derision heaped on the Department of Justice memos, at least they are wrestling with establishing those standards, something I have not heard from many administration critics. And if member of the Senate Judiciary Committee knew that using water-boarding against a known terrorist may well elicit information that would stop a massive attack on an America city, would they still insist it never be used? Do they oppose the use of water-boarding if it would save a thousand innocent lives? Ten thousand? A hundred thousand? What exactly is the point, if any, at which they believe water-boarding, or even torture, might be justified?
To ban water-boarding regardless of the consequences seems to be the position leading Democrats have staked out — and if it is, then the administration should highlight that position in neon lights. And if it’s not their position, then let’s hear them say that as well. I suspect that if this issue is framed more sharply by the Administration — and invoking Senator Schumer’s words is an awfully good starting point — his critics may well soften their opposition.
If Democrats persist in their efforts, it would probably be added to the catalogue of issues that cause people to wonder whether the modern Democratic party, seemingly opposed to the Bush administration on every front, is prepared to wage and win the war against jihadists.
— Peter Wehner, former deputy assistant to the president, is a senior fellow at the Ethics and Public Policy Center.
