Rich Erlich sent me an article by Andrew Sullivan about the Bush administration's torture policies.

Sullivan argues that the Mukasey nomination goes beyond merely defining "waterboarding" as torture. The Republicans, he says, are at the end of an elaborate chess game with Democrats about what torture is and is not. On the one hand, if Democrats don't pass legislation specifically prohibiting waterboarding as torture, pro-torture Republicans like President Bush and National Review shill Rich Lowry will take that as an implicit endorsement of torture (even though, as Sullivan points out, waterboarding was used by the Nazis in World War II, and the United States prosecuted Nazis for using waterboarding). On the other hand, if Democrats do pass legislation that specifically prohibits waterboarding, then the use of torture will be normalized in U.S. law. "And so a new precedent will be set; and the torture program, already well-established, will further entrench itself into US law and practices. The current law is not in any way mysterious," says Sullivan. Current U.S. law already outlaws "severe mental or physical pain or suffering," a description that, says Sullivan, has always included waterboarding -- until the Bush administration came along. Outlawing it by name will only normalize the use of torture.

And what happens at that point? Democracy falls apart, says Sullivan. For one thing, Bush would veto any law that specifically prohibits a particular act of "enhanced interrogation." (In a Wall Street Journal op-ed of a few weeks ago, a former Reagan Justice Department official said, in the same piece, that over-broad definitions of torture that don't outlaw specific acts open our soldiers up to prosecution and we shouldn't outlaw specific acts because that hampers our ability to effectively conduct interrogations. Does this make any sense?) Or, he would attach a signing statement that gives him the right to ignore such legislation if, based on his own made-up interpretations of his powers, he decides he wants to.

Once torture becomes normalized, it can be used anytime, anywhere:

What this complacent view doesn't grapple with is that these torture techniques can be used against any terror suspect; that such suspects are not subject to due process under president Bush's understanding of his powers; that such suspects can be captured within the United States; that they can be citizens; and that the war that justifies this extraordinary power is defined as permanent. That is why combining the power to detain without charge with the power to torture is an effective suspension of the rule of law and the Constitution. And such a suspension is astonishingly broad and open-ended.

Witness the Jose Padilla fiasco. Padilla, a U.S. citizen, was held incommunicado and denied his right of habeas corpus for two years for allegedly plotting to detonate a "dirty bomb" (a non-nuclear explosive that would, if detonated, release radioactive material). There was no complex legal issue to grapple with in that case, no issues of jurisdiction or standing as with Guántanamo Bay. Padilla was a U.S. citizen, captured on U.S. territory. End of story. By any measure of legality, he should have been held in a civilian prison and given his day in court like any other civilian. The Bush administration, however, wanted to prosecute him as an "enemy combatant" and strip him of his Constitutional rights. Because, you know, in this War on Terr', we can't afford to give even U.S. citizens access to courts, as that could compromise national security. (The Bush administration has also argued that the War on Terr' is so drastically different from other wars that U.S. judges shouldn't even be able to adjudicate legal issues relating to this war, because they just don't have the experience and understanding to deal with the unfathomable threats to national security that might occur.)

Thankfully, the U.S. Supreme Court put the kaibosh on the Bush administration and ordered Padilla to be charged with a crime or released. The Bush administration did charge him with a crime, but it wasn't even the "dirty bomb" plot for which he was originally arrested.

For Sen. Chuck Schumer to compromise on the issue of waterboarding is potentially very troubling. What are the Democrats afraid of? That Bush is going to continue to make stupid statements about their do-nothingness to the media? Why should the Democrats care what Bush thinks? The part of the country that dislikes them already dislikes them, and Bush doesn't need to convince that part of the country. The part of the country that likes them won't be swayed by Bush, since that part of the country knows that Bush is a moron. Are they afraid that Bush will shove them into a locker and take their collective lunch money? What's going on, here? It sounds as though Democrats are internalizing the statements Bush makes about them. If that's the case, we need to elect a less neurotic Congress in 2008.

Thanks, Rich!

UPDATE

Just in case you weren't sure whether or not waterboarding counted as torture, four retired JAGs (Judge Advocates General; JAGs are military lawyers) sent a letter to Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, asserting that waterboarding is, according to active duty JAGs, "unanimously and unambiguously [...] inhumane and illegal and would constitute a violation of international law, to include Common Article 3 of the 1949 Geneva Conventions."

Furthermore, perhaps in an effort to dispel the myth of the 24 torture scenario (a scenario in which we need to torture a suspect so as to get information about an imminent threat; Rudy Giuliani has often used this falsehood as a justification for torture; professional military interrogators say that such a situation never occurs), the JAGs state that "[c]ruelty and torture -- no less than wanton killing -- is neither justified nor legal in any circumstance."

They conclude by reaffirming, unambiguously, that "[w]aterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise -- or even to give credence to such a suggestion -- represents both an affront to the law and the cores values of our nation."

Hmm, perhaps this War on Terr' isn't so different, after all? But that answer is too simplistic. The better answer, and no doubt the one that Rush Limbaugh would use, is that these former JAGs hate America and want to see the terrorists win.