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All WetWhy can't we renounce waterboarding once and for all?

By Phillip Carter and Dahlia Lithwick
Posted Monday, Oct. 22, 2007, at 6:43 PM ET

(Continued from page 1)

Which brings us to the second part of Mukasey's "new kind of terrorist" argument, the one that suggests waterboarding works wonders. There is scant evidence that this is the case. For example, when used against alleged al-Qaida mastermind Abu Zubaydah, waterboarding apparently produced a stream of statements from Zubaydah of such dubious quality—according to journalist Ron Suskind—that intelligence officers now widely believe any evidence gleaned from Zubaydah to be utter garbage.

Finally, Mukasey's new kind of terrorist justification implies that waterboarding can't be taken off the table, because this new enemy has some kind of heightened intelligence value; that an al-Qaida detainee like Khalid Sheikh Mohammed might know more than your average Nazi spy or North Vietnamese colonel would have known in previous wars. This might be the strongest argument for coercive interrogation, but it still assumes too much. We rarely (if ever) know enough about a particular detainee to determine whether he knows something worth torturing him for. Even if he talks, we have little ability to verify the confession's truth and often must caveat it as the product of torture, as has been done with KSM's post-waterboarding statements. Worse yet, over the six years since 9/11, we have never stopped to systematically weigh the enormous, almost incalculable strategic costs of torture against the speculative benefits (if any) to be gleaned from its use.

If there really were tactical or operational reasons for us to continue waterboarding, you might expect the military to favor it. And yet the JAGs and the military oppose the technique in the strongest terms. They oppose it because they recognize it's not particularly effective, and because they have to worry about our soldiers being subject to such treatment if captured. Most of all, they oppose it because they recognize the value of clarity for maintaining the discipline of America's military. As one of us has written, "[T]here are few slopes more slippery than that from small war crimes to large ones. Any wartime action, no matter how heinous, can always be justified by some battlefield exigency."

Our troops need—have always needed—bright-line rules detailing precisely where the legal lines are and when they have been crossed, in order to maintain the high standards of discipline for America's vaunted all-volunteer military. Officers also oppose waterboarding and coercive techniques as a matter of honor. Such practices debase the troops who must implement them, and cheapen the valor of those who sacrifice life and limb for our country. Sen. John McCain echoed this sentiment when he said, "It's not about them; it's about us."

Which explodes Mukasey's worst sleight-of-hand regarding waterboarding—his assertion Thursday that to comment about specific techniques would be irresponsible "when there are people who are using coercive techniques and who are being authorized to use coercive techniques. … And for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial—I don't think it would be responsible of me to do that." Please. This administration has put careers at risk by muddying legal rules. If Mukasey really wanted to save careers, he would reinstate the bright-line rules that define and prohibit torture, as opposed to confusing and confounding them. By muddying these rules, we have now put generations of our own soldiers at risk should they ever be captured. It is they, and not Mukasey, who may face enemies using these very practices, shored up with our own tortured logic.

It is the oldest trick in the Bush administration's psychological playbook to claim that we must be one serious badass nation if we are willing to do sick, unspeakable things to our enemies—even in the face of international condemnation and in violation of our own laws and ethical rules. But when those sick, unspeakable practices endanger our own soldiers, horrify our allies, and embolden our enemies, we don't look like badasses anymore. We just look like sadists. And when those practices don't even work, we look like stupid sadists to boot. There's an easy fix here. Renounce torture. It was once an unremarkable proposition that the Unites States doesn't stand for senseless sadism. What a tragedy that defending it has suddenly become a point of principle.

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Dahlia Lithwick is a Slate senior editor. Phillip Carter, an Iraq veteran and attorney, is a Slate contributor.
Illustration by Stein Hansen.
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