On Waterboarding and Congress’s cowardice
Senate Democrats seem to have realized that by allowing the confirmation of the nominee for Attorney General to go through, they would take away a talking point for Democratic candidates. Where they thought him kosher during his hearings, they now think him the next most-evil thing to Satan’s right-hand. Now they want him to declare waterboarding a form of torture and therefore illegal. The man is not holding office and they want his statement on paper so they can wave it around and use it in the upcoming campaign season. Mukasey’s denouncement of torture would provide ample ammunition for MoveOn ads for the next year. Won’t those be just peachy?
How did Senate Democrats get to this holier-than-thou position on Mukasey where they are horrified and disgusted with waterboarding? By not being so repelled with waterboarding in the past, that’s how. In 2004, Chuck Schumer had this to say about waterboarding:
I think there are probably very few people in this room or in America who would say that torture should never ever be used, particularly if thousands of lives are at stake. . . . It is easy to sit back in the armchair and say that torture can never be used, but when you are in the foxhole it is a very different deal. And I respect, I think we all respect the fact that the President is in the foxhole every day.
Senator and Presidential candidate Obama, in the September 26th debate, appeared to want to have his cake and eat it, too: (the mp3 of this statement is here.)
Barack Obama responded by declaring that we cannot “have the president of the United States state as a matter of policy that there is a loophole or an exception where we would sanction torture.” He then shifted, in the very same breath, to state that “there are going to be all sorts of hypotheticals, an emergency situation, and I will make that judgment at that time.” In other words, he wants to preserve the very same loophole for which he lambastes President Bush.
According to the linked Wall Street Journal story above, Congress had two chances in the past to outlaw waterboarding and failed to do so each time:
Congress has twice had the chance to ban or criminalize waterboarding, but it declined to do so in both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. And not for lack of trying: In debating the Military Commissions Act, Ted Kennedy offered a detailed amendment that specifically prohibited waterboarding, as well as other coercive interrogation methods; it lost on the Senate floor, 46-53.
Why the outcry to make Mukasey issue a de facto ruling when it is unable to do so through the proper legislative method? If Congress is unable to pass legislation in the open, public method allowed by the Constitution, then it should not try to bypass itself through a condition of one man’s confirmation.
Ed Morrissey has an informative post on this topic that raises the possibiliy that waterboarding could be torture, if not performed under the carefully monitored conditions where it is used in SERE (Search, Evade, Resistance, Escape) training. Which raises the obvious question, what couldn’t be considered torture if not performed properly?