With the subject of torture at the forefront of the confirmation hearings for Michael Mukasey, whether waterboarding qualifies has become the stumbling point. Senator John McCain has insisted that it does constitute torture and therefore should explicitly be illegal, while others argue that it should be kept as a non-lethal and safe form of interrogation for terrorists, especially in so-called ticking bomb scenarios. Proponents often argue -- as I have in the past -- that the commando forces of our military waterboard volunteers for their units as part of their training at Survival, Evasion, Resistance and Escape School (SERE).
Today, however, one of the instructors who deliver that training speaks out in the New York Daily News to affirm McCain's interpretation -- and to denounce its use as an interrogation technique. Malcolm Nance of the blog Small Wars Journal insists that the technique is lethal in all but the most controlled circumstances:
Having been subjected to this technique, I can say: It is risky but not entirely dangerous when applied in training for a very short period. However, when performed on an unsuspecting prisoner, waterboarding is a torture technique - without a doubt. There is no way to sugarcoat it.
In the media, waterboarding is called "simulated drowning," but that's a misnomer. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning.
Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word.
How much of this the victim is to endure depends on the desired result (in the form of answers to questions shouted into the victim's face) and the obstinacy of the subject. A team doctor watches the quantity of water that is ingested and for the physiological signs that show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral.
Waterboarding is slow-motion suffocation with enough time to contemplate the inevitability of blackout and expiration. Usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch. If it goes wrong, it can lead straight to terminal hypoxia - meaning, the loss of all oxygen to the cells.
I'm inclined to agree with Nance, especially given his clear expertise on the matter. He argues that the technique should continue to form part of SERE training, but in its present form, which is different and milder than that which detainees experience. It gives volunteers a clear indication of the potential psychological issues they face with torture if captured, but without putting them at unnecessary physical risk.
Given that, however, Congress should quit debating whether current law covers waterboarding and clear the issue up once and for all. As Nance says, detainees already released have spoken publicly about interrogation techniques, so publicly taking waterboarding off the list of options doesn't really impact interrogations. As I wrote a few days ago, forcing an Attorney General to declare it illegal as the price of confirmation functionally does the same thing as an explicit law outlawing waterboarding -- only it shifts responsibility for legislation from Congress to the AG and basically forces him to make up laws as he goes along.
That's a strange strategy for Congress to pursue, especially since they regularly pronounce themselves aghast at Bush's ideas of executive power.
Clearly this is a matter which Congress needs to resolve. Ambiguity serves no real purpose now. Instead of shifting responsibility to the Department of Justice to interpret poorly-written laws, the same leadership in the Senate and House demanding an end to waterboarding need to take the actions necessary to ensure its cessation. (via Memeorandum)
UPDATE: Andy McCarthy is on the same wavelength --- and notes that Congress declined to specify waterboarding as torture in 2006. If they want to make it explicitly illegal -- and they should, from what Nance writes -- Congress has the power to do so.
UPDATE II: Two questions have arisen in the comments. First, there is a question whether Nance has accurately described the waterboarding performed by interrogators, as some believe that version also keeps water out of the lungs. Second is a question regarding the veracity of Nance and his resume. I'm not in a position to verify either, although if anyone has more than conjecture and collegial sniping, I'd be glad to see it.
I'd also point out that the first set of questions could have been answered by Congress, had they had the courage of their rhetoric last year and now.