Michael Mukasey's confirmation as attorney general next week appears to hinge on his refusal to state that water-boarding -- mock execution by drowning -- is torture. But the focus on water-boarding has obscured a critical issue. If the aim is to stop abusive interrogation, a more important question that senators should ask before the vote is whether Mukasey will insist that the Bush administration abide by the parallel prohibition of "cruel, inhuman or degrading treatment."
The Convention Against Torture, which the United States and 135 other nations have ratified, defines torture as the intentional infliction of severe pain or suffering, whether physical or mental. Water-boarding-mock execution by drowning-clearly falls within that definition, and Mukasey should say so. But water-boarding is only one of the administration's abusive interrogation techniques. The administration has also subjected suspects to such painful or degrading treatment as prolonged sleep deprivation, exposure to extremes of heat and cold, forced placement in painful "stress" positions, forced nudity, and sexual humiliation.
Some of these techniques can also amount to torture, depending on the length and severity of their application. But even if they fall short, many still violate the Torture Convention's prohibition of "cruel, inhuman or degrading treatment."
The Convention does not define cruel, inhuman or degrading. To avoid misunderstanding, when the US government ratified the treaty, it entered a reservation stating that it would interpret it to mean the same thing as the cruel, unusual or inhumane treatment prohibited by the US Constitution.
Most people thought that a reasonable interpretation. It meant, according to the prevailing view, that if an abusive technique is unconstitutional when used at the local police precinct, then it is prohibited anywhere else as well, even if used by interrogators working for the Pentagon or the CIA.
However, to provide legal cover for abusive interrogation practices, a clever Bush administration lawyer came up with an artful dodge. Because the Constitution applies to anyone in the United States or to Americans overseas but not to non-Americans outside the United States, the administration secretly decided that it was free to use cruel, inhuman or degrading treatment against non-American suspects detained abroad.
That was never the intent behind the reservation. It runs contrary to the treaty's purpose in prohibiting certain forms of abuse wherever they occur. But it became the rationale for the administration's establishment of detention facilities in Guantánamo and at secret CIA locations overseas.
The logic was so far-fetched that, once exposed, Congress repudiated it. Senator John McCain sponsored legislation, adopted in December 2005 by an overwhelming margin, that prohibits cruel, inhuman or degrading treatment wherever it is practiced.
In line with this view, the Pentagon adopted new rules in September 2006 that essentially take the military out of the coercive interrogation business. But in July of this year, the administration refused to apply those rules to the CIA. Instead, it has adopted a number of new legal theories to justify abusive interrogation.
Not all of these theories are known, but one important one reduces the constitutional prohibition of abusive interrogation to a subjective "shock the conscience" test. Mukasey endorsed this standard in his written response to Senate questions. Rather than categorically banning certain techniques, such as prolonged sleep deprivation, stress positioning, or even water-boarding, the administration takes the view that few techniques shock the conscience if used in the name of fighting terrorism. By this standard, the prohibition is no more than a balancing test between the pain or cruelty applied and the purpose served.
This is not an abstract issue. CIA Director Michael Hayden has said that he has a duty to use interrogation techniques up to the limits allowed by law. "We're going to live on the edge. My spikes will have chalk on them," he told me when he was still Deputy Director of National Intelligence. So if the Justice Department rules that the CIA has legal authority to use abusive techniques, we must assume they will be used.
The attorney general is all that stands in the way of this un-American approach to interrogation. An acknowledgment that water-boarding is torture is not enough. Before voting on Mukasey's confirmation, senators should insist that he reject the administration's subjective "shock the conscience" test and any other clever subterfuge. Instead, he should affirm that "cruel, inhuman or degrading treatment" does not vary according to the circumstances-that if an interrogation technique is prohibited in the local precinct, it is prohibited in the CIA's detention center as well.
That is the rule that the military and the FBI have adopted, based on years of experience, as the most appropriate and effective way to interrogate dangerous suspects. And nothing short of that clear, unequivocal rejection of abusive interrogation will redeem the moral high ground that is so essential for success in curbing terrorism.
