After he was nominated to succeed Alberto Gonzales as George W. Bush's attorney general in 2007, Michael Mukasey told Democrats on the Senate Judiciary Committee that waterboarding and other "enhanced interrogation techniques" were "repugnant" and "seem over the line." But exactly which line he had in mind was unclear, because he refused to say whether waterboarding was illegal. "Hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical," Mukasey wrote in a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and the nine other Democrats on the committee. "Legal questions must be answered based solely on the actual facts, circumstances and legal standards presented."
Today, having considered those facts, circumstances, and standards, Mukasey unequivocally declares that waterboarding does not amount to torture because it does not inflict "severe physical or mental pain or suffering." Nor is it "cruel, inhuman or degrading treatment," the former attorney general explains in a recent Wall Street Journal op-ed piece, because that description is limited to actions that "shock the conscience," the definition of which depends on "what is at stake—like, say, national security." When national security is invoked, it seems, a technique can be repugnant and over the line without shocking the conscience.
Mukasey adds that we know waterboarding is not really torture because Navy SEALs and journalists have undergone it voluntarily, and torture is "a procedure to which no rational person would submit voluntarily." Leaving aside that debatable definition of torture, Mukasey ignores the huge psychological difference between submitting to waterboarding once for the sake of military training or journalistic research—situations in which the subject can be confident he is in no real danger—and being waterboarded repeatedly against your will by captors with uncertain intentions. The fear triggered in the latter context is bound to be much greater, which is the whole point.
Mukasey suggests that waterboarding is not all that scary once you get used to it. "9/11 mastermind Khalid Sheikh Mohammed, perhaps the worst of the three waterboarded terrorists, eventually came to know the precise limits of the procedure and was seen to count the seconds by tapping his fingers until it was over," he writes. "Some torture." While many people would see counting the seconds as a coping mechanism for withstanding torture, Mukasey sees it as evidence that torture is not occurring. But in minimizing the unpleasantness of waterboarding, he casts doubt on the rationale for performing it. "Arguably," Mukasey writes, "what broke [Mohammed] was sleep deprivation." And we know that forcibly keeping someone awake for days on end is not torture because people voluntarily pull all-nighters to complete important projects.
If the legality of waterboarding is as clear as Mukasey claims, what are we to make of the letter that CIA lawyers wrote in July 2002, asking the Justice Department for "a formal declination of prosecution, in advance, for any employees of the United States, as well as any other personnel acting on behalf of the United States, who may employ methods in the interrogation of Abu Zubaydah that otherwise might subject those individuals to prosecution." The letter, discussed on page 33 of the Senate Intelligence Committee's torture report, added that the "aggressive methods" contemplated by the CIA would be prohibited by the ban on torture, "apart from potential reliance upon the doctrines of necessity or of self-defense."
As John Sifton, advocacy director at Human Rights Watch, points out, this acknowledgment "dramatically undermines the credibility of previous claims by the Bush White House and the CIA that they did not know whether the interrogation tactics were legal until they received guidance from [the Justice Department's Office of Legal Counsel]." The 2002 letter shows "the CIA knew their tactics were illegal before receiving such counsel, but were seeking a legal cover—at first, via an immunity-giving advance declination, but when that failed, apparently the OLC memo." If the notion that brutal interrogation methods such as waterboarding were illegal is "demonstrably false," as Mukasey now insists, why were the CIA's lawyers so worried?