The refusal of U.S. attorney general nominee Michael Mukasey to condemn as torture the interrogation method known as waterboarding is unsettling, to say the least.
That members of the Senate Judiciary Committee are pushing hard for answers from Mukasey is an encouraging sign of life from Democrats, and Republicans, who only sporadically seem to find the gumption to stand up to the president.
On Tuesday, the Senate panel will decide whether to move Mukasey’s nomination to the floor.
While we understand the difficulties involved in trying to assess the legality of a technique the administration refuses to describe in detail, surely there is a way for Mukasey to take on the matter.
He could address a general description of the technique and say whether that fit within what he believed to be legal behavior based on existing law.
While the Bush administration has refused to define the technique, purportedly for fear of giving information to the enemy, the technique has widely been described this way:
A prisoner is bound to an inclined board, with the head lower than the feet. Cellophane is wrapped over the prisoner’s face and water is poured on the person, initiating a gag reflex. People who’ve been waterboarded feel as though they’re drowning.
It’s something prisoners reportedly can stand for only seconds, perhaps minutes at a time, before confessing to something.
We’re not legal experts, but it sounds like torture to us. In fact, the United States once prosecuted a Japanese soldier for using the technique on a U.S. prisoner. Besides, a confession obtained in that manner certainly calls into question the value of the information.
In April 2006, more than 100 U.S. law professors signed a letter to then-Attorney General Alberto Gonzales condemning waterboarding as torture.
In avoiding the question, Mukasey has said he doesn’t want to suggest that Central Intelligence Agency officers who had used the technique on prisoners were in “legal jeopardy.”
Some analysts have said if Mukasey called the technique torture, the blame theoretically could go right up to the president. No wonder Mukasey is refusing to address the issue.
A couple of things can be done. Congress can leave no doubt about the legality of the technique by explicitly banning its use by the CIA. The Detainee Treatment Act of 2005 outlawed its use by the military but did not extend the prohibition to the intelligence agency.
Also, we hope to see federal lawmakers continue to press Mukasey on the matter. As Senate Judiciary chairman Patrick Leahy said Friday, “no American should need a classified briefing to determine whether waterboarding is torture.”
Lawmakers are on the right track in taking a stand on the waterboarding question. We hope they stay the course.
