Scenario: The United States has captured a high-level al-Qaida operative. U.S. intelligence believes al-Qaida will attack an American city with a nuclear device in 24 hours. The man in custody is the mastermind of what Osama bin Laden has promised will be "9/11 with radiation."
Question: Should U.S. intelligence officers be able to waterboard the operative in order to stop the imminent attack and save thousands of lives?
It's the ticking time bomb test, and Senate Democrats are now giving it to Michael Mukasey and taking it themselves in the process. They're threatening to reject President Bush's attorney general pick because he's refused to say waterboarding is torture and thus illegal. Mukasey, the poor former federal judge, wants to know what's actually involved in waterboarding, if it's used at all, before forming an opinion.
That's a responsible approach when you consider that waterboarding (simulated drowning) is not a single technique and the exact technique, if one is even used, is classified and therefore unknown to Mukasey. But that doesn't cut it with Senate Democrats.
But is any and all waterboarding torture and therefore illegal? I don't think so. First, if all waterboarding is torture, why does the U.S. government waterboard its own folks in survival training programs? It doesn't gouge out trainees' eyes or rip out fingernails to get them ready to withstand the horrors of capture. Is it because waterboarding is safe and painless?
Second, if it's torture, why didn't Congress say so when the issue came up in 2005. It could have done so when it passed Sen. John McCain's anti-torture amendment. It didn't single out waterboarding; it simply banned "cruel, inhumane and degrading treatment."
Does it qualify as torture under some other U.S. law? As former prosecutor Andrew McCarthy points out in a crack National Review Online article, our criminal code defines torture as a government act "specifically intended to inflict severe physical or mental pain or suffering," with "severe" meaning "prolonged mental harm." Waterboarding could qualify if done repeatedly. "But," he asks, "what about doing it once, twice, or some number of instances that were not prolonged or extensive?"
Yes, what about this limited use when the time bomb is ticking and thousands of American lives are at stake?
If your answer is "Yes, whatever it takes," you're in line with the public. In a Pew Research Center poll, 12 percent said torture (not waterboarding, general torture) was sometimes justified to gain critical information; 31 percent said it was often justified. If your answer is that waterboarding is, or should be, illegal and used only in limited situations with a wink and a nod, you really haven't answered in a principled way. You fudge rather than face the issue. It may make you feel warm and virtuous, but it's meaningless. You still favor waterboarding when push comes to shove. You're just willing to let others (presidents and interrogators who could be prosecuted under the wink-and-a-nod construction) do the dirty work.
If you oppose all waterboarding, because you deem it torture and we should never torture, you're at least bringing some moral clarity to the issue. But the "never justified" stand flunks the ticking bomb test. It fails to balance the temporary distress of the al-Qaida operative against the lives of his likely victims.
The victims reportedly spared because Khalid Sheikh Mohammed, the 9/11 mastermind, told the CIA details of an impending attack after he was waterboarded. The victims reportedly spared because Abu Zubaydah, one-time director of al-Qaida training camps, coughed up details of an impending attack after his waterboarding. Or the victims that ex-CIA Director George Tenet says were spared in the United States, Middle East, Europe and Asia because of "enhanced measures" like waterboarding.
Perhaps you don't especially care about ticking time bombs and still think all waterboarding is torture and should be illegal. There's a sure way to achieve this, and it has nothing to do with rejecting Mukasey for not sharing your interpretation of the law. Get Congress to pass a law banning waterboarding.
