Tor­tured Tes­ti­mony

Mr. Mukasey shows why Congress needs to in­ter­vene.

The Washington Post - - Letters To The Editor -

THERE WAS one over­ar­ch­ing take­away from At­tor­ney Gen­eral Michael B. Mukasey’s tes­ti­mony yes­ter­day be­fore the Se­nate Ju­di­ciary Com­mit­tee: When it comes to wa­ter­board­ing and other ex­treme in­ter­ro­ga­tion tech­niques, the ends jus­tify the means.

Mr. Mukasey tes­ti­fied that, when eval­u­at­ing the le­gal­ity of an in­ter­ro­ga­tion tech­nique, the gov­ern­ment had to weigh “the heinous­ness of do­ing it, the cru­elty of do­ing it bal­anced against the value . . . of what in­for­ma­tion you might get.” For ex­am­ple, he agreed that the use of wa­ter­board­ing would “shock the con­science” and be im­per­mis­si­ble if it were used to pry in­for­ma­tion “that wouldn’t save lives.” But it could pass le­gal muster if used to pre­vent im­mi­nent harm.

Mr. Mukasey’s anal­y­sis is as flawed as it is dis­turb­ing. Wa­ter­board­ing, which is not cur­rently au­tho­rized un­der the CIA’s spe­cial in­ter­ro­ga­tion pro­gram, has long and un­equiv­o­cally been con­sid­ered tor­ture, and there­fore il­le­gal, un­der in­ter­na­tional law and U.S. statutes. The United States pros­e­cuted its own sol­diers for us­ing the tech­nique as long ago as the Span­ish-Amer­i­can War. As re­cently as 2005, Congress passed the McCain amend­ment to pre­vent just such treat­ment. And in 2006 the Supreme Court ruled that the Geneva Con­ven­tions ap­ply to all de­tainees, in­clud­ing sus­pected al-Qaeda op­er­a­tives, and not just mem­bers of an or­ga­nized mil­i­tary force.

The Bush ad­min­is­tra­tion’s use of tor­ture and con­tin­ued use of ex­treme in­ter­ro­ga­tion tech­niques have done un­told dam­age to the moral stand­ing of the United States. Th­ese prac­tices have also un­nec­es­sar­ily in­creased the risk that U.S. sol­diers and per­son­nel could be sub­jected to such treat­ment at the hands of en­emy forces. Hav­ing the at­tor­ney gen­eral state flatly that the tech­nique is il­le­gal could help the coun­try be­gin to re­ha­bil­i­tate its im­age in the eyes of the world.

In­stead, Mr. Mukasey mim­icked his pre­de­ces­sor, for­mer at­tor­ney gen­eral Al­berto R. Gon­za­les. Asked dur­ing his 2005 con­fir­ma­tion hear­ing about the le­gal­ity of a litany of abu­sive in­ter­ro­ga­tion tech­niques, Mr. Gon­za­les con­cluded that “some might . . . be per­mis­si­ble in cer­tain cir­cum­stances.” Both men could have come to their sep­a­rate con­clu­sions hon­estly. But nei­ther man could have ig­nored the pos­si­bil­ity that if they’d reached the op­po­site con­clu­sion they would have found them­selves in the awk­ward po­si­tion of de­cid­ing whether mem­bers of the ad­min­is­tra­tion broke the law.

At one point dur­ing yes­ter­day’s ap­pear­ance, Mr. Mukasey sug­gested that cur­rent laws gov­ern­ing tor­ture were vague, al­low­ing for com­pet­ing in­ter­pre­ta­tions. Congress should seize on this state­ment as an in­vi­ta­tion to close any loop­holes once and for all. Law­mak­ers should ag­gres­sively press for­ward to out­law all forms of abu­sive in­ter­ro­ga­tion, in­clud­ing ex­tended sleep de­pri­va­tion, which the ad­min­is­tra­tion has not for­bid­den the CIA to use. A bill to force all U.S. in­ter­roga­tors to abide by the Army Field Man­ual, which for­bids all abu­sive treat­ment, lan­guished dur­ing the past ses­sion of Congress; law­mak­ers should re­dou­ble their ef­forts to pass this leg­is­la­tion.

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