Let’s say Congress passed a statute that said, “Whoever violates the due-process clause of the Fifth Amendment shall be sentenced to life imprisonment.” The resulting outcry would be well taken. Such a statute would be invalid under the selfsame due-process clause. Its vagueness would make it impossible to know what conduct was forbidden. We would be governed not by law, but by the whims of whoever happened to be enforcing the law at any given time.
This, essentially, is what Congress has done with coercive interrogation, and now Senate Democrats are trying to browbeat Michael Mukasey, the president’s nominee for attorney general, into saying that their whims on the tactic of waterboarding are law. The same lawmakers who pontificated throughout Mukasey’s two-day confirmation hearing about the need for an “independent” attorney general — one with enough backbone to tell the president “No” if the administration pursued a course that ran afoul of the law — now demand that Mukasey roll over for them. It’s coercive interrogation, Senate-style: Either pretend we have done something we have not done — namely, unambiguously prohibited waterboarding — or risk being denied confirmation.
Thus far, Mukasey has declined to play along. We hope he sticks to his guns.
Waterboarding is an extremely rough interrogation tactic in which a detainee is tied down and made to fear imminent drowning. It treads close to the legal line of torture. It does not, however, appear to cross that line — at least not clearly. “Torture” is a special legal designation, reserved for especially sadistic forms of abuse, practices so heinous they stand apart, even from other cruelties, as meriting extraordinary condemnation. Though highly unpleasant, it is doubtful that waterboarding involves the type of severe, prolonged anguish required before a tactic meets the legal threshold of torture.
Moreover, waterboarding has been used to train our own military and intelligence operatives in interrogation-resistance. That fact alone should call into question whether waterboarding constitutes torture, in either a moral sense or a legal one (Congress surely would not have meant to turn the training techniques of the military and the CIA into war crimes).
This is a matter of no small importance. Since 9/11, the CIA has operated a special interrogation program for high-value enemy detainees such as Khalid Sheik Mohammed, mastermind of the suicide-hijackings that killed nearly 3,000 Americans and took the nation to war. For these most hardened terrorists, interrogation techniques have reportedly included waterboarding. The yield, according to the Bush administration, has been singularly valuable intelligence, enabling the government to thwart other plots and save a great many lives.
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