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.
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.
But, with one attorney general disregarded and another not yet confirmed, making the case that waterboarding is not torture could prove far more difficult in the court of public opinion.
Waterboarding, an interrogation technique dating back to the 15th century and the Spanish Inquisition, simulates drowning in an effort to cull information from an uncooperative prisoner. The practice involves strapping the captive to a board with eyes blindfolded and feet slightly elevated. Interrogators then shove a rag in the prisoner's mouth and pour water over it until liquid streams down the windpipe and throat, gagging and choking the subject.
An alternate technique uses cellophane to smother the detainee's face, leaving only one breathing hole at the mouth into which water gushes through a hose.
When administered correctly, neither technique produces lasting physical damage. But critics say the psychological harm can reverberate for the remainder of a victim's life.
"The scars of torture are in the mind," said Alfred McCoy, a history professor at the University of Wisconsin-Madison and author of the book, A Question of Torture: CIA Interrogation from the Cold War to the War on Terror (Metropolitan Books, 2006). "It's the destruction of the human spirit that makes torture so pernicious."
McCoy explained that waterboarding is especially traumatic, given the innate human terror associated with drowning: "We have hard-wired right into our biological systems a fear of drowning. And when you waterboard somebody you tap into that fundamental, psychological fear. It's one of the deepest and most profound psychological fears possible."
Of course, proponents of scare tactics for interrogation purposes consider the depth of fear associated with drowning to be waterboarding's greatest strength. The technique almost invariably yields information-and does so in a matter of seconds. Whether that information proves trustworthy is a different matter. No public empirical data exists to make a definitive case one way or the other.
But the science is in on the long-term impacts of fear-based interrogation practices like waterboarding versus actual physical torture techniques. Metin Basoglu, head of the trauma studies unit at King's College, London, released findings last year that indicate comparable detrimental effects to the human psyche for either approach.
Indeed, victims of waterboarding can endure substantial lifelong anguish. In the case of Eric Lomax, a British army signalman taken prisoner during World War II, the memory left him emotionally crippled for decades. He recounts the trauma in an award-winning memoir, The Railway Man (Vintage, 1996): "Water poured down my windpipe and throat and filled my lungs and stomach. The torrent was unimaginably choking. This is the sensation of drowning, on dry land, on a hot dry afternoon. Your humanity bursts from within you as you gag and choke. I tried very hard to will unconsciousness but no relief came."
Years after that experience, Lomax met with one of his Japanese interrogators, Nagase Takashi, who recounted his recollection of the incident: "With the prisoner screaming and crying 'Mother! Mother!' I muttered to myself, 'Mother, do you know what is happening to your son now?' I still cannot stop shuddering every time I recall that horrible scene."
In a remarkable display of reconciliation, Lomax forgave Takashi. Waterboarding critics like John McCain doubt whether America's enemies will be so gracious.