The Senate's retreat from its initial demand that now-Attorney General Michael Mukasey denounce waterboarding is detrimental to the country's moral fabric. For the first time, torture bears an imprimatur of democratic approval.
Jonathan Hafetz | November 28, 2007
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 While the August 2002 memo has been withdrawn, the administration has never repudiated its sweeping assertion that the president’s power as commander in chief allows him to violate the nation’s laws and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 Continued>>>
http://www.prospect.org/cs/articles?article=torture_and_americas_crisis_of_faith
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