SHADES OF GRAY: Mukasey is seen on a TV monitor as he testifies before the Senate Judiciary Committee

Torture tantrum

Politics | What constitutes ill treatment of prisoners is turning into a constitutional test of executive powers

Issue: "Saving Isaac," Nov. 10, 2007

High-ranking officials in the Bush administration from White House Press Secretary Dana Perino to Secretary of State Condoleezza Rice on up to President George W. Bush himself hold fast to the same unequivocal position on the country's interrogation practices: Namely, the United States does not torture, period. Trouble is, a precise definition of just what constitutes torture remains lacking.

Members of the Senate Judiciary Committee hoped to parse the fuzzy edges surrounding that definition during confirmation hearings for U.S. attorney general nominee Michael Mukasey. Instead, Mukasey has echoed the semantic obfuscation of his predecessor, Alberto Gonzales. Asked directly if he considers the practice of waterboarding to be torture, the longtime federal judge replied, "I don't know what's involved in the technique. If waterboarding is torture, torture is not constitutional."

That exchange continued an apparent role reversal between Democratic lawmakers and the Bush camp: On the issue of torture, Democrats seem willing to traffic in the language of black-and-white moral absolutes, while the Bush administration takes cover among the ambiguous shades of gray.

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Without question, the war on terror raises complex moral dilemmas. The so-called "Jack Bauer scenario" in which a captive prisoner might possess information to save thousands of lives pits pragmatism against principle. Should U.S. interrogators employ ethically questionable measures like waterboarding (see sidebar) to extract intelligence in urgent situations? If so, what qualifies as urgent? And which interrogation techniques cross the line?

Senate Democrats have zeroed in on the CIA practice of waterboarding as a litmus test for whether Mukasey truly opposes torture. Their tactic is political, at least in part. A clear repudiation of the technique from Mukasey would place him at odds with the very administration he seeks to join, and could effectively alter a Justice Department policy that government interrogators have counted on for the legal sanction of their tactics.

So it was that Mukasey carved out a gray middle ground in a letter to the Judiciary Committee Oct. 30. Seeking to clarify his position on waterboarding, the nominee called the practice "over the line" and "repugnant," but stopped short of pronouncing it illegal. Sen. Joseph Biden (D-Del.), a Judiciary Committee member, denounced that position and said he could not vote to confirm an "attorney general who will equivocate and dissemble on this matter."

Still, Mukasey's strictly moral denunciation of waterboarding represents a departure from a Bush administration that has refused to discuss specific interrogation techniques. The last time an administration official commented on the practice was last fall when Vice President Dick Cheney called the decision to dunk terrorists in water a "no-brainer."

Cheney has likewise been among the administration's strongest supporters of warrantless wiretapping, a practice now under review on the floors of both congressional chambers. The House and Senate are considering bills that would protect the president's right to allow telephone and internet bugs of suspected terrorists without a court order.

Many U.S. citizens and civil liberties groups are concerned that the Bush administration's expansion of executive power since the 9/11 attacks represents an affront to the Constitution, subjugating the other two branches of federal government. In the case of warrantless surveillance, Congress is now seeking to exercise oversight with legislation. It made a similar play on the question of torture in 2005 with the passage of the McCain Amendment, which banned "cruel, degrading, and inhuman" interrogations.

But such bills lack teeth if the president is free to interpret them independent of their drafters' intent. Waterboarding was among the practices that prompted the 2005 legislation from Sen. John McCain (R-Ariz.), who experienced torture firsthand as a prisoner of war in Vietnam. McCain believes that any information derived from cruel treatment of suspected terrorists is not worth the retaliation that captured American soldiers could endure.

Nevertheless, the Bush administration insists that its interrogation techniques meet federal standards and satisfy the country's international treaties. Indeed, the United States is not bound to the full weight of the United Nations Convention against Torture, which expressly forbids "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted." Although the United States ratified that treaty in 1994, it included four paragraphs of reservation that limit the restrictions to acts causing physical pain and exempt psychological practices like waterboarding.

Those same four paragraphs of reservation now occupy the federal code and the Military Commissions Act of 2006, a controversial bill suspending habeas corpus for alien enemy combatants. That such exemptions have passed congressional muster affords the Bush administration firm legal footing to defend its positions.


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