Waterboarding the Senate

Opinion Journal:

Just when you thought someone might be confirmed in Washington without a partisan fight, Senate Democrats are suggesting they may not approve Michael Mukasey as Attorney General after all. The judge's offense is that he's declined to declare "illegal" an interrogation technique in the war on terror that Congress itself has never specifically banned.

Last week, Democrats postponed a vote on his nomination. And all 10 Democrats on the Judiciary Committee have sent Judge Mukasey a letter expressing alarm that he refused to repudiate "waterboarding" during his recent confirmation hearing. "I don't know what's involved in the technique. If waterboarding is torture, torture is not constitutional," the judge had said. This seems fair enough, because both the Justice Department's legal opinions on interrogation and the specific CIA practices are classified. It would be irresponsible for Judge Mukasey to make any declarations about the law or practice until he knows the details.

That's not good enough for Democrats, who are under pressure from their antiwar left to keep pinning a phony "torture" rap on the Bush Administration. The letter from the Judiciary Democrats demands that Judge Mukasey declare himself on the legality of "waterboarding," with the clear implication that if he gives the wrong answer his nomination won't make it out of committee. These are the same Democrats who had declared, before he was nominated, that Judge Mukasey was exactly the sort of "consensus" choice they welcomed.

The irony here is that Congress has twice had the chance to ban waterboarding, or simulated drowning, but has twice declined to do so. In both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, Congress only barred "cruel, inhuman or degrading" treatment. While some Members have said they believe waterboarding is banned by that language, when given the chance to say so specifically in a statute and be accountable for it, they refused.

As usual, Congress wants it both ways. The Members want to denounce what they call "torture," but the last thing they want is to be responsible if some future detainee knows about an imminent terrorist attack but the CIA can't get the information because Congress barred certain kinds of interrogation. So they toss their non-specific language into the lap of the executive, and say "You figure it out."

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I think if we waterboarded Sen. Leahy and others we would find that they want the President to take responsibility for waterboarding and if he is wrong, they will impeach him and if he is right they will ignore it. The problem with this is that the people who actually have to conduct the waterboarding do not want to take that chance, so the enemy detainee will not be persuaded to tell us what he knows of imminent attacks. What we see in the Senate is high cowardice masquerading as high moral principles. Do they want Jack Bauer in Jail or LA blown up? It is not a false choice with this enemy.

Malcolm Nance who is something of an expert on waterboarding says it is clearly torture. It is his third point on the subject that I take issue with. "If you support the use of waterboarding on enemy captives, you support the use of that torture on any future American captives." What history has shown is that our enemies will use ruthless means against us whatever we do. We don't chop off heads of prisoners, but the al Qaeda and Taliban do it all the time. Are we going to start chopping off heads because they do. Obviously not. The argument that we can control the enemy's use of coercion by limiting our own is just specious.