October 19, 2007
Mukasey, Torture And The Responsibility Question
Cultural critics blame the proliferation of sadistic and gruesome imagery on television and in movies on Americans' psychic discomfort with their role as players in the war on terror. The phenomenon has even birthed a new category of mainstream entertainment: torture porn.
Audiences mostly comprising males in the 18-to-34 demographic are eagerly forking over $10 a pop to view the fantastical and revolting "Saw" and "Hostel" franchises. More discomfiting are the realistic depictions of torture lately seen in the film "Syriana" and on the show "24." A Foreign Affairs magazine survey (subscription) released in April found a 54-percent majority of Americans were OK with the use of torture on terrorism suspects "sometimes." Jack Bauer doesn't electrocute or nearly drown every hog-tied potential terrorist that comes his way, but when he does, the writers of the show are sympathetic to it. Bauer doesn't "always" torture, he "sometimes" tortures, and the end result is he saves the world. The "24" audience, including a former Democratic president, is apparently OK with that.
Americans may think they know what the legal definition of torture is from these images, but they probably have no idea. As we've learned in recent weeks, the business of defining torture is a difficult one, whether for national security reasons or failure of imagination. Certainly, the Bush administration is in no hurry to turn the issue into a national debate. That's problematic for this country, and not for the reasons you might think.
Michael Mukasey's nomination for U.S. attorney general hasn't hit the skids, no matter what the headlines say. The dominant theme of his confirmation hearings is that he's an independent thinker who can be counted on to stand up to both the White House and Congress. The temperature went up a bit in the Senate Judiciary Committee hearing room yesterday when Mukasey refused to tell Sen. Sheldon Whitehouse whether he believed waterboarding, a technique that simulates drowning, qualified as torture.
Mukasey: "I don't know what's involved in the technique. If waterboarding is torture, torture is not constitutional."
Whitehouse: "If it's torture? That's a massive hedge. I mean, it either is or it isn't. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces, and pouring water over the cloth to simulate the feeling of drowning, is that constitutional?"Mukasey: "If it amounts to torture, it is not constitutional."
Whitehouse: "I'm very disappointed in that answer. I think it is purely semantic."
On first blush, Mukasey might appear to be parroting the standard White House line: We don't torture, end of discussion. Without a definition of torture, that assurance is fairly meaningless. Mukasey was simply being a prudent lawyer by refusing to comment on a classified program that he knows little about.
The senators on the panel know that and will probably send him to the full floor unanimously. Democrats want Mukasey to undo everything that's been done since Alberto Gonzales was sworn in as AG, which is hardly realistic. What Mukasey has said he will do is carefully review everything that's been done from the perspective of the top U.S. attorney, not Bush's BFF.
Mukasey's energy is better put toward settling the tug-of-war between the U.S. military and the Office of Legal Counsel. In 2005, JAGs from each branch of the armed forces testified that OLC opinions governing treatment of detainees "alarmed" them, and that several of the sanctioned techniques violated the Uniform Code of Military Justice. The military's interest in this fight isn't one of sympathy toward detainees; rather, it's in protecting the men and women of the military from prosecution here and abroad. The overarching reciprocity principle, meant to arm the U.S. government with the power to go after other nations that practice torture on Americans, is also in play.
The administration has a point when it says it can't advertise the techniques it uses to the world, but thanks to a couple scandals and pop culture, the world already has a good idea of what we're doing. (The dean of West Point personally asked the producers of "24" to lay off on depictions of torture for this reason.) Withstanding torture is a part of military training. Waterboarding frequently comes up as a classic example of torture because it causes no visible damage and quickly breaks the most senior fighters. The U.S., in fact, has prosecuted foreign soldiers for waterboarding Americans.
Walter Pincus reported in the Washington Post last year that after the Vietnam War, the military stopped using it to train Navy SEALS and Army special forces "because it hurt morale." Former Attorney General John Ashcroft has written on (subscription) the panicked urgency felt throughout DOJ to prevent another strike after the 9/11 attacks. The public may forgive the administration for putting torture back on the table then. Should it still be there now?
Most lawyers across the political spectrum say no. Mukasey says no. Congress forced the Bush administration to say no, but then the president later stuck in a provision allowing him to say yes, sometimes. Mukasey can push back all he wants on signing statements, but if neither side gives that battle ends up in the courts. There's good reason not to hold your breath on this one.
The real responsibility to end this struggle will probably rest on the next president, whoever he or she may be. No executive jumps at the chance to cut down his own options, but most of Bush's potential successors would look pretty hypocritical if they didn't. It's easier to talk about gaffes and other funny ha-ha matters on the campaign trail. But if Americans are so disturbed by their government's actions, and polls indicate they are, someone might inform them that they actually have the ability to do something about it next year.
Posted at 2:33 PM
Posted to:
Alberto Gonzales, Bush Administration, Campaigns, John Ashcroft, Michael Mukasey, Military, President Bush, Terrorism, WH 2008
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