October 16, 2007

When Michael B. Mukasey, the man President George W. Bush has tapped to be the next US Attorney General, appears before the Senate Judiciary Committee on Wednesday, senators need to ask him a very simple question: Will he or will he not prohibit torture? Before the Senate confirms him for that position, it must secure a commitment from Mukasey that he will enforce the laws prohibiting torture.

Before the Senate confirms him for that position, it must secure a commitment from Mukasey that he will enforce the laws prohibiting torture.

Not so long ago, asking this question would have seemed ridiculous. It was a given that the United States did not torture. Sadly, that is no longer the case.

In 2002, the Department of Justice issued an internal memo advising the President that as commander-in-chief, he was not bound by the laws of the land prohibiting torture and that he could approve any technique deemed necessary to protect the nation's security. The same memo defined torture so narrowly --"Physical pain equivalent in intensity to the pain accompanying serious physical injures such as organ failure, impairment of bodily function or even death" -- that techniques that the US had long considered torture and that had been prosecuted as such no longer fit the definition.

Understandably, when the memo became public, the nation was scandalized. In 2005, under the leadership of Senator John McCain, who endured torture as a POW in North Vietnam, Congress passed legislation banning the use of "cruel, inhuman or degrading" treatment by US authorities anywhere in the world. The Bush administration publicly opposed the legislation, arguing that although the United States does not torture, the president could not have a law limiting his options when interrogating terrorist suspects.

Eventually the White House grudgingly agreed not to veto the legislation, popularly known as the McCain amendment, but unbeknownst to the public and even Congress, there was a reason for its retreat. Just before passage of the McCain amendment, according to the New York Times, the Justice Department issued a memo stating that none of the interrogation methods used by the CIA to interrogate terrorist suspects -- including mock drowning (waterboarding), head-slapping and repeated exposure to frigid temperatures - were considered to be cruel, inhuman or degrading, let alone torture.

That the Department of Justice -- the institution that is supposed to enforce the laws of the land -- used legal sophistry to justify the use of torture and protect its practitioners from accountability is a national shame. The next Attorney General will have to go to great lengths to restore credibility and dignity to the office -- amd the nation.

The Justice Department's painstaking efforts to legalize torture has also undermined American security. General David Petraeus, commander of US forces in Iraq, has stated outright that the use of torture is counterproductive. "Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong," Petraeus wrote to all the troops serving in Iraq last May. The US Army's new Field Manuel on Counterinsurgency Operations, which General Petraeus oversaw, states that the only way to win a counterinsurgency is to diminish the enemy's legitimacy and increase one's own. Engaging in torture is a surefire way to lose legitimacy.

This attempt to legalize torture has also put American military personnel and civilians serving overseas in grave danger. By stating that methods that have long been deemed torture are legal, the Department of Justice has essentially stated that it would be okay for a foreign force to utilize the same tactics on a captured American. Would it be acceptable for the government of Iran or North Korea to subject US soldiers to waterboarding or headslapping? I think we all know the answer.

So here's what the Senate needs to ask before it confirms Mr. Mukasey: As Attorney General, will you inform the president that he remains bound by the law? And will you deny legal authorization for interrogation techniques that the United States would not want inflicted on Americans?

Unless Mukasey answers both with an unqualified yes, he should not be confirmed. Torture is wrong, it's illegal, it endangers Americans serving overseas and it undermines the fight against terrorism. We cannot allow it to happen and the next Attorney General needs to make sure that it doesn't.