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.
