Update: It depends what you mean by torture

Stuart Taylor on the criticism Michael Mukasey, the White House nominee for attorney-general, has faced over his reluctance to say that waterboarding is torture, and hence illegal. (The whole column is here; it disappears behind National Journal's lofty pay barrier next week.)

The surge of Democratic opposition to President Bush's nomination of former Judge Michael Mukasey to be attorney general says a lot about certain Democrats, especially after the initial bipartisan applause for a superbly qualified man who has clearly repudiated Bush's previous claims of near-dictatorial powers.

It is especially telling that the main congressional objection to Mukasey has been his unwillingness to declare illegal an interrogation technique that Congress itself has assiduously and repeatedly declined to declare illegal.

The technique, called "waterboarding," involves simulated drowning. Congress could seek to explicitly ban it, along with other highly coercive techniques. It has not done so, because it does not want to take the blame for any future terrorist attacks that might have been prevented by highly coercive interrogation.

The attacks on Mukasey are an exquisite example of Congress's penchant for avoiding accountability by leaving the law unclear and then trashing the executive for whichever interpretation it adopts whenever something goes wrong.

The point about the Congressional hypocrisy is well-taken. Elsewhere in the column, however, Stuart goes further and agrees with Mukasey that waterboarding is not necessarily torture.

I look forward to hearing Sen. Hillary Rodham Clinton, D-N.Y., Sen. Barack Obama, D-Ill., and others who oppose Mukasey's nomination because of this issue explain why the undoubted moral and diplomatic benefits of a blanket criminal prohibition of waterboarding would outweigh the possible costs, which might be zero but just might be thousands of lives.

But, one might reasonably ask, isn't torture by CIA interrogators already a crime? And isn't waterboarding a form of torture? The answer to the first question is yes, under a 1994 criminal law implementing the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The answer to the second question is more debatable.

Of course, being strapped to a board with a cloth over one's face and enough water running over one's nose and mouth to create the sensation of drowning sounds horrible and has been deemed illegal in various contexts by past administrations. But not every interrogation practice that sounds horrible or has been deemed illegal in some contexts clearly meets, in all contexts, the vague but narrow definitions embedded in the 1994 ban on "torture," or in the December 2005 McCain amendment's ban on "cruel, inhuman, or degrading treatment or punishment."

The 1994 law defines torture as including only practices "specifically intended" to inflict "severe physical ... pain or suffering" and certain other practices that cause "prolonged mental harm" (emphasis added). Under this definition, deliberately inflicting pain that is not quite "severe," or mental harm that is not quite "prolonged," is no crime.

To be sure, the 1994 definition is not so narrow as to justify the claim that only the pain associated with "death, organ failure, or serious impairment of body functions" would qualify as "severe," as the Bush Justice Department asserted in an infamous, now-repudiated August 1, 2002, memo. But the definition is certainly narrow enough to leave room for doubt whether it would be torture to waterboard a high-level terrorist for, say, 15 seconds. Indeed, U.S. military and intelligence agencies have reportedly waterboarded their own people as part of their training on how to resist interrogation.

Whether the law leaves room for doubt about whether waterboarding is torture is one thing; whether the law ought to leave room for doubt on that point is quite another. In my view, the law should be clear: waterboarding is torture, and all torture is illegal.

Stuart is sympathetic to the view that ruling out a technique like waterboarding under any and all circumstances would be a mistake. Would it still be wrong, he asks, if the information elicited saved hundreds or thousands or millions of lives? It is a fair question, and one that most commentators on this issue are reluctant to confront. But one could ask the same question of any kind of torture, however vile. Would it be immoral to roast somebody over a slow fire,  if the information elicited saved hundreds or thousands or millions of lives? I dare say that nobody, not even Alberto Gonzales, will argue that roasting somebody over a slow fire is not torture. And therefore nobody is going to argue that such a practice is legal. Is Stuart arguing that it should be--albeit under exceptionally narrow circumstances? My point is, the notion that "it might sometimes be justified" would seem to apply, on Stuart's view, to torture in general, and not just to waterboarding.

I wrote a column on this last year:

I do not deny that instances will occur when convincing a detainee that he is about to drown, or when inducing in some other way unendurable stress, fear, humiliation, or despair, will extract information that would otherwise be withheld. If this were the only consideration, then it would be right in certain ticking-bomb circumstances to resort to torture. In other words, I am not arguing that torture, in every conceivable situation, is ethically impermissible. But the instrumental costs of permitting, as policy, even limited recourse to torture are enormous, and these must be set against any possible gains.

Some critics of the administration's "highly coercive" methods argue that Americans falling into jihadist hands will be treated worse if the United States treats its detainees cruelly. The White House is surely right to call that nonsense: The idea that this enemy will accord its captives reciprocal rights or consideration is laughable. A different argument -- that the United States must concern itself with its moral standing among allies -- is more plausible, but still less than compelling, in my view. Other countries' calculations of when and whether to support the United States in this war, or in any venture, will be based on assessing their own interests in the matter. It is good to be liked by one's allies, but not essential.

Two other points seem much more telling. Harsh treatment of captives -- anything that goes much beyond what we would regard as acceptable for criminal suspects, let alone torture -- will harden the resolve of the country's enemies. This may not be true of the suicide bombers and other madmen and death-cultists of the jihadist cause, but it is surely true of the great majority of the less-than-pathologically committed, and of the millions more who sympathize with their cause. America needs to demoralize and deradicalize its opponents. It needs spies and defectors. On the battlefield, it needs enemies who are unafraid to surrender. Cruel treatment of prisoners conspires against all of these military and intelligence-gathering objectives. Ask yourself this: When Americans read of Al Qaeda abusing its captives, or beheading a hostage for the video cameras, does that weaken their desire to fight back?

And I would give great weight, also, to America's moral standing in its own eyes. That, too, is a priceless asset in the long war on terrorism. For the moment, it is enough that the country has enemies plotting to kill Americans: That suffices to mobilize a massive national response. But there will be no quick victory in this war. The country may be engaged in this struggle for many years, possibly decades. The United States needs to uphold the highest standards of conduct not just as an end in itself (though it is that as well) but also as a hard-headed matter of fitness to fight. The enemy is certain it has right on its side. That makes it more formidable. To win, America must erode that certainty, and never for a moment question its own standards of justice and decency.

The whole column is here (behind the aforementioned subscription barrier).

One can conceive of rare circumstances in which waterboarding or any other kind of torture might be ethically justified. To say that torture is always and necessarily immoral seems to me to betray a lack of imagination. But a wise government would not allow for that contingency by making the practice legal. In those very rare cases, the interrogators would have to expose themselves to prosecution, and a jury would decide whether or not to convict, weighing what they did against their reasons for doing it. To make torture legal, even under rare circumstances, is to institutionalise it. That is both immoral, and for the reasons just cited, deeply unproductive in the war on terror.