One of the most amazing manifestations of Michael Mukasey's odd shape-shifting between the two days of his confirmation hearings for the post of attorney general was the change in his position on torture. On Wednesday of last week, he repudiated the so-called torture memo signed by Jay Bybee in the strongest terms, comparing the "barbarism" of torture to what happened at Nazi concentration camps. By Thursday, he'd changed his tune, if not his entire submolecular structure, refusing to state unequivocally that waterboarding constitutes torture. You could almost hear him channeling Alberto Gonzales as he fudged, "If waterboarding is torture, torture is not constitutional." (Watch it here.) He was channeling John Yoo when he clarified that even if Congress prohibits waterboarding, the president might be able to act outside those constraints, based on his own authority as president, commander-in-chief, and grand pooh-bah of all things national security.
What is it about waterboarding that makes the White House so reluctant to renounce it? It's an old torture technique from the Spanish Inquisition that consists of immobilizing your target on an inclined board, head down, with cloth covering their face. Pouring water over the face simulates drowning. The practice leaves no physical marks. It's illegal under the Geneva Conventions and has long been treated as a war crime by the United States. We even use this technique to train our own troops to withstand illegal torture by our enemies. As retired Rear Adm. John D. Hutson, a former top Navy lawyer and now dean of Franklin Pierce Law Center in Concord, N.H., testified at Mukasey's hearing last week, "Other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history. It has been repudiated for centuries. It's a little bit disconcerting to hear now that we're not quite sure where waterboarding fits in the scheme of things."
More than any other interrogation technique employed by the United States, waterboarding has come to represent lawlessness and senseless brutality. In the eyes of the rest of the world, waterboarding has become to interrogation what Guantanamo is to incarceration. So, why won't the president (and his nominee for attorney general) go on record and disavow it once and for all?
For starters, Bush won't renounce waterboarding because it violates the two choice cocktails of anyone drunk on executive authority: Absolut secrecy and Absolut power.
First, secrecy. It has long been the view of the Bush administration that nothing can be deemed illegal so long as it remains a secret. Never mind that it's a secret only to people living in igloos without wireless service. That's why, even while there's a major movie out about rendition, we call it a secret. Since they have yet to make a movie called Waterboard, Mukasey could take the absurd position that he isn't sure precisely what it involves. Cute trick. Call it a secret, and there can be no legal debate. As the White House insisted Friday, "Judge Mukasey is not in a position to discuss interrogation techniques which are necessarily classified." If the soon-to-be-AG cannot hazard an opinion on the legality of waterboarding, even when he can read step-by-step accounts of it on the Internet, who are the rest of us to condemn it?
The problem with this argument is that the administration's use of waterboarding on detainees has been known publicly since at least May 2004. Everybody knows what it involves, and even if you live in an igloo without wireless, you can tell it's illegal. The argument that you can't call it torture until you've been "read into" the torture program is just a lawyer's trick that justifies keeping bad conduct secret to end-run the laws.
Next, there is the absolute authority argument. The real reason the Bush administration clings to its power to order waterboarding has little to do with any strategic argument and everything to do with the old standby assertion that to renounce his authority to waterboard would be to give away the president's power. That is the only issue that has come to matter in laying out the legal contours of the war on terror. As Jack Goldsmith has argued in his book The Terror Presidency, that is the question that guides David Addington's legal reckoning, and—more so than any practical analysis—that is why the Bush administration balks at legal constraint, even when that constraint is sensible, rational, and necessary.
What is it about waterboarding that Mukasey found so compelling? On Thursday, he offered the tired argument that we are facing a new type of super-enemy, one resistant to regular coercive interrogation but not to waterboarding. As he put it, "What the experience is of people in the Judge Advocate General's Corps has been with captured soldiers, captured military people from enemies we've fought in the past, may very well be far different from the experience that we're having with unlawful combatants who we face now. It's a very different kind of person."
Sounds plausible. Maybe this is some super-resistant strain of terrorist. But stop and think about it: If we really are dealing with some new, different type of terrorist—someone uniquely resistant to any other forms of questioning—what makes waterboarding so wildly effective? If it's true that al-Qaida trains to our interrogation manual, doesn't that suggest doing something other than what they expect, especially when the tactic in question depends upon the illusion that the interrogator plans to let him drown? Perhaps this is why veteran military, intelligence, and law enforcement interrogators insist they prefer to study their captives, know them intimately, and seduce with psychology, not with brute force.
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