It depends what you mean by "torture"


How depressing--but then, not so surprising--to hear Rudy Giuliani say that waterboarding may not be torture, that it all depends on how it's done. He insists that the United States is opposed to torture, as though seeking high moral ground on the issue, and then makes a mockery of that position by saying that waterboarding, done right, might fall outside the prohibition. In the case of electrocution, presumably, it all depends on where you put the electrodes.

This is not to say there are no grey areas when it comes to "aggressive questioning" . The line between interrogation and torture is not clear-cut.  But I cannot understand how anybody could doubt which side of that line simulated drowning is on. If anything is torture, simulated drowning is torture. If you need to remind yourself what waterboarding entails, read how the Khmer Rouge did it (thanks to Jim Fallows for the link).

Giuliani and other defenders of such techniques need to probe their residual instinct to oppose "torture". Why do they even feel obliged to say that? What, in their view, is wrong with torture? Why not just say that torture is a useful weapon in the war against terror? If they are repelled by that idea--as they damn well should be--then the revulsion ought surely to extend to practices like waterboarding.  Which principled defence of "aggressive questioning" permits simulated drowning but prohibits thumb-screws or the rack?

The White House's nominee for attorney-general, Michael Mukasey, told his confirmation hearing recently that  he was unsure whether waterboarding was unconstitutional. If waterboarding is torture, he said firmly, then yes it is unconstitutional--but it may not be torture. "I don't know what is involved in the technique," he said.  Please. How could he not know? Perhaps he used to know but no longer recalls. If it had slipped his mind, he should have refreshed his memory. That question hardly came as a surprise. 

This mode of thinking--"It may be legal, let me think about it"--reminded me of "The Terror Presidency", an excellent new book by Jack Goldsmith, a former head of the  office of legal counsel in the Department of Justice. Goldsmith shows that this administration has not been lawless in its war on terror, as many critics charge, but almost the opposite. It has been too much preoccupied with deciding what was strictly legal to spend any time wondering what was wise. (My review is here.) Giuliani and Mukasey should read that book, if they haven't already. An instinct to value legal authority over justice, morality and expediency is a bad enough flaw in an ordinary lawyer, for heaven's sake. In an attorney general--let alone in a president--it is a calamity.

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