The fact that Michael Mukasey has now been confirmed by the Senate as the Attorney General of the United States doesn’t let the rest of us off the hook with regard to the issue of waterboarding, which came to the fore during his congressional testimony. It’s a serious issue, an issue that needs to be seriously debated. That doesn’t mean, of course, that the strutting and fretting of Democratic senators during Mukasey’s confirmation process was serious. Typical of the depth of their analysis was the reaction of Edward Kennedy (D. MA), who, after Mukasey refused to say whether he considered waterboarding a form of torture, declared: “Waterboarding is torture. Period.”
Kennedy is banal, as usual, but in this case he’s three-quarters correct. Waterboarding is an interrogation technique in which a prisoner is subjected to simulated drowning in order to extract information from him. By most common definitions, and by several treaties to which the United States is a signatory — including the Geneva Conventions and the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — the technique is indeed torture. Where Kennedy goes wrong is with the fourth word of his statement, “Period.” By which he means, “End of discussion.”
Because that’s not the end of the discussion, not by a long shot.
The fact that waterboarding constitutes torture, as Kennedy’s observes, merely tells us that the practice falls within a category of acts that can be described by the word. It doesn’t tell us how broad the category is, or if it has become so broad as to encompass unlike things. Both an atomic bomb and a firecracker are “explosive devices.” That does not mean that the same moral weight attaches itself to their use. Likewise, the recognition that waterboarding loosely belongs to a classification that includes crucifixion, drawing and quartering, racking, and burning at the stake does not determine, in absolute terms, the morality of the act of waterboarding.
“Torture,” in other words, comes in shades and varieties. You know this instinctively if you ask yourself whether you would rather be tortured by American interrogators at Abu Ghraib or by Saddam’s interrogators at Abu Ghraib… which is another way of asking whether you would rather be terrified and humiliated or mutilated and murdered.
Furthermore, as squirmy as it is to think about, there are times when “torture,” if the word describes acts such as waterboarding, seems utterly justifiable — notwithstanding the treaties that currently outlaw it. The ticking bomb scenario reminds us of this. If we know a terrorist in our custody has planted a bomb on a plane in flight, not only is it moral to treat him roughly in order to discover the bomb’s whereabouts, it is immoral not to do so.
Torture, in short, is not a ethical slam dunk, at least not the way the word is now defined. We cannot declare every manifestation of it wrong under any and all circumstances — the way we can declare, for example, every manifestation of rape wrong under any and all circumstances. Specific tortures might meet that wrong-under-any-and-all-circumstances criterion. Crucifixion comes to mind, as do burning at the stake and drawing and quartering. But sleep deprivation? No way. Yet sleep deprivation is also a form of torture.
Once we concede that, however, once we concede that the mere identification of an act as torture is not sufficient to reject it out of hand, we’re compelled to judge the morality of each instance of torture on a case by case basis, asking questions like: Who is being tortured, and by whom? What method of torture is being used? To what end is the torture directed?
These are ugly questions. In a better world, they wouldn’t be necessary. In our world, sadly, they are.