The recent battle over Michael Mukasey's nomination for attorney general tested America's faith in its Constitution and values. America fared poorly.
On Nov. 8, the Senate voted 53-40 to confirm Mukasey's nomination. The pivotal moment, however, came the week before when two key Democrats on the Senate Judiciary Committee, California's Dianne Feinstein and New York's Charles Schumer, announced their support for Mukasey.
Mukasey earned a well-deserved reputation for intelligence and integrity during his 19 years of service on the federal bench. But before approving him for the nation's top law enforcement position, senators specifically asked Mukasey to declare torture illegal. Mukasey was unable to do so.
The controversy centered on a technique known as waterboarding, in which the victim is strapped to a board while water is poured down his nose and throat. Commentators often describe waterboarding as simulated drowning. Former Navy intelligence expert Malcolm Wrightson Nance says "simulated death" is a more appropriate description.
Waterboarding has long been treated as torture under domestic and international law. Indeed, the United States previously prosecuted waterboarding as a war crime, including against Japanese soldiers after World War II.
However, Mukasey's refusal to denounce waterboarding did not reflect any ambiguity in the law but rather signaled his willingness to appease an administration bent on legalizing torture.
After September 11, a coterie of officials in the Bush administration sought to sanction highly aggressive measures under the euphemistic label "enhanced interrogation techniques." Some, like waterboarding, constituted torture, violating not only the Geneva Conventions but also a federal criminal statute. A now infamous August 2002 Justice Department memo sought to provide a defense: An interrogation technique is not torture, the memo said, unless used for the specific purpose of inflicting pain (as opposed, for example, to obtaining information to protect national security, as a defendant might plausibly claim). The memo also provided the ultimate trump card: Torture was legal as long as the president authorized it. While the August 2002 memo has been withdrawn, the administration has never repudiated its sweeping assertion that the president's power as commander in chief allows him to violate the nation's laws and treaties.
Initially, the administration sought to keep torture a secret. But by 2004 the world had learned about the abuses at Abu Ghraib and about the secret CIA prisons where individuals were subjected to waterboarding and other mistreatment. Plus, the August 2002 "torture memo" had been leaked to the press, suggesting the administration not only knew about the use of torture but sought to justify it.
Openness, however, can be a double-edged sword. The more the public knows about practices like waterboarding, the harder it is to pin all the blame on a runaway executive. That is what makes the Senate's retreat from its initial demand that Mukasey denounce waterboarding so detrimental to the country's moral fabric. For the first time, torture bears an imprimatur of democratic approval.
Torture is only one of many abuses of the post-September 11 era. The creation of lawless enclaves like Guantánamo, extraordinary rendition, and the warrantless surveillance of American citizens have also expanded executive power at the expense of constitutional liberties.
But the prohibition against torture has an absolute quality that stands apart, transforming the battle over Mukasey's nomination into something much greater than a fight about a single interrogation technique. Torture has tremendous symbolic importance. It forces a country to look into its soul and ask whether there are any norms it will not transgress in the name of security. If a county will commit torture, nothing is sacred. That the United States would confirm an attorney general who refuses to say unequivocally that waterboarding is illegal suggests there are no limits to the exercise of executive power. For this reason, Mukasey's confirmation marks a profound crisis of faith.
Faith is central to the American ideal of a government of laws, not of men. It requires believing that democratic government can survive, and must survive, by operating under the rigors of a constitution and the rule of law. The refusal to denounce acts like waterboarding signals an abandonment of that faith, an implicit confession that our system is not strong enough to endure without compromising its own values. That the administration continues to assert the power to torture in a never-ending "war on terrorism" makes this abandonment all the more disturbing.
To be sure, there are also many pragmatic arguments against torture. Most experts agree, for example, that torture does not work. While torture may force people to talk, it does not necessarily yield the truth. By contrast, efforts to build trust have proven far more effective in gathering accurate information from terrorist suspects.
Torture also harms America. There is no surer way to undercut efforts to win broad support across the world for counterterrorism efforts than by engaging in torture. Indeed, many terrorists, including some individuals responsible for the September 11 attacks, were themselves victims of torture. Like Guantánamo, torture provides a recruiting tool to the very terrorist organizations the United States must isolate and drain of support.
Further, torture endangers Americans, which is one reason why many top military officials have opposed the administration's treatment of detainees. America's failure to take a clear stand against detainee abuse now will haunt America later when it seeks to protect its own citizens captured in future conflicts around the globe.
But these pragmatic arguments must remain secondary because they treat torture as a debate with two sides. What if torture does work sometimes? What if it did not increase support for terrorism? Would that alter the calculus?
Ultimately, waterboarding and other acts of torture are simply wrong and must be condemned. America's leaders must signal to the American people and to the world that there are acts the United States will not commit, depths it will not sink to, in fighting terrorism. That is what it means to describe torture as a non-derogable right: It admits of no exceptions, no qualifications, and no debate.
By subjecting prisoners to waterboarding and other abuses, the United States has not simply failed to follow the law. It has shown that even the most fundamental ethical and constitutional principles can, and sometimes will, be sacrificed. These actions have cost us greatly, though the full price will be known only to the generations that follow. There are many reasons why torture is bad policy. But whether wise or not, it is not something that America does. Unless we change course, our country will be altered forever.
