Mukasey: CIA Interrogations Followed the Law
We explained last week how the Feinstein “Torture Report” constituted governmental malpractice for a variety of reasons, including its failure to interview any of the relevant former CIA directors, deputy directors or officials who had briefed them on the enhanced interrogation techniques, and in its preposterous and counterfactual denial of the interrogations’ fruitfulness. Largely overlooked in current debate, however, is how too many people carelessly assume that the approved interrogation techniques constituted “torture” or failed to meet the applicable legal standards.
Enter former U.S. Attorney General and District Judge Michael Mukasey.
In a searing must-read commentary this week in The Wall Street Journal, Mukasey explains that the interrogations followed the law:
It is stunning to hear those now criticizing the program issue the solemn reminder that ‘we are a nation of laws’ – while devoting little attention to what was actually in those laws. Odder still, among the critics those who wrote the laws seem to devote the least attention to them… Laws are a technical business in which both terminology and chronology play a part. So if the law that criminalizes torture defines it in a certain way, that definition – and no more – is what it is, punditry and cocktail-party figures of speech notwithstanding.”
Mukasey proceeds to state that the applicable law requires an intent to cause “severe physical mental pain or suffering,” how the techniques used did not violate that rule as determined by courts or the law’s text, how we apply those same techniques to our own troops during military training, how Senator Feinstein herself was briefed on the techniques and how she unsuccessfully attempted to change the law to make those techniques illegal. If they violated existing law, then she obviously wouldn’t have needed to propose that change.
He then illustrates how, if the interrogation techniques in question constituted “torture,” then it wouldn’t be the case that so many have voluntarily subjected themselves to them in the intervening years:
If she is looking for a ‘common meaning’ of torture, how about something like a procedure to which no rational person would submit voluntarily? More journalists have tried the experience of being waterboarded than terrorists were subjected to it. That wouldn’t be the case if, for example, we were talking about needles under fingernails.”
Finally, he wisely notes that while Senator John McCain (R – Arizona) is often lauded as a particular authority on what constitutes “torture” due to his own experience as a prisoner of war, “Others with credentials similar to Sen. McCain’s, including Medal of Honor recipients and fellow Vietnam prisoners of war Leo Thorsness and Bud Day, believe in the efficacy and morality of waterboarding.” It’s an excellent piece that re-centers the ongoing debate upon the actual legal standards, as opposed to sloppy and easy shorthand employed by people like Senator Feinstein and many in the mainstream media.