It was something of a breakthrough for me to watch Jon Stewart last night pick up a dictionary and look up the definition of torture - both etymological, but more importantly legal. Pace the pro-torture Andy McCarthy, there is no "excruciating complexity" here. There is a broad and easily understandable legal ban on the infliction of
severe mental or physical pain or suffering
on any prisoner in wartime as a means to extract "information." Yes, to thrash a horse in advanced stages of rigor mortis, as a philosophical matter, this might, in a million-to-one scenario, still allow a president to authorize illegal torture if the entire republic was at stake or if a major city was about to go down in nuclear flames, and we knew we had an individual who knew how to stop it. But the president would still subsequently have to subject himself and all those who did such a thing to legal punishment. That is what the rule of law means, guys. It means there is no exception. We either live in a republic of laws or the imperium of one man. We cannot live simultaneously under both. The oath of the president is to enforce such laws, not to avoid them. And that is why it is insane to say we have no right to demand that the attorney-general nominee assure us in advance that he will uphold the rule of law in office. We do not merely have the right. We have a duty to ensure that an attorney general of the United States will uphold the law.
There is no question whatsoever that "simulated drowning," "water-boarding" or whatever name we give to a technique routinely deployed by the Khmer Rouge is illegal however it is done, whoever does it, and whomever is subjected to it. If the attorney general cannot say this in public without equivocation before he is nominated, then the Congress is indicating that it condones the Bush administration's contempt for the rule of law and routine use of illegal torture. I cannot see how Republicans who impeached a president for perjury in a civil suit cannot see what the issue is here. It is the most bedrock principle of a free society. Do the laws apply to the highest executive authority? Do we live in a tyranny or a republic?
Alas, the president almost certainly will never be prosecuted for the war crimes he has committed. He has already seen to that and so, shamefully, has the Congress by passing a law that retroactively granted him immunity. Surely that is bad enough. To compound that by allowing an attorney general to take office by refusing to say whether he will uphold the law in the face of the Cheney-style Protector-Presidency is inexcusable. This is history in the making. Who will defend the rule of law?