Mary Jo White On Torture

The only reasonable inference from her argument is that al Qaeda has indeed rendered the Geneva Conventions moot, and that from now on, for any procedure to be regarded as torture, the Congress must specifically ban it. And if it does not specifically ban it, it is not illegal:

Although, as a civilized people, our immediate and commendable instinct is to declare waterboarding repugnant and unlawful, that answer is not necessarily correct in all circumstances. The operative legal language (both legislative and judicial) does not explicitly bar waterboarding or any other specific technique of interrogation. Instead, it bars methods that are considered to be "torture," "cruel, inhuman and degrading treatment" or that "shock the conscience."

Faced with this assortment of legal standards, Mukasey can hardly be faulted for his answers. The only remedy that can provide legal clarity is legislation.

But under this "assortment" of legal standards - which are simply different ways of making the same extremely clear and fundamental point - waterboarding is clearly illegal, as it has always been illegal. It seems to me that if you want to legalize it, then explicitly legalize it. And that would require withdrawal from the Geneva Conventions and the UN Treaty on Torture. So, yes: go ahead and legislate.

Of course, the pro-torture Republicans in the Congress will never do such a thing. And the notion that the Congress has to make illegal every specific torture technique will just provide a guide for this administration and a future Giuliani administration to devise specific torture techniques that can evade specific bans. And, of course, they may not even bother to do that. White doesn't note that this president has responded to previous Congressional attempts to ban torture by appending a signing statement to the law saying the Congress cannot impinge on his constitutional right to torture whom he wants and how he wants to. Legal clarity is beside the point when we have a president who claims he can ignore the law anyway.