Two prominent senators and presidential candidates, Christopher Dodd of Connecticut and Joseph Biden of Delaware, have announced that they will vote against the confirmation of Michael Mukasey as the next attorney general. Their opposition is principally based upon Mukasey's testimony involving the use of waterboarding during interrogations. Both senators believe that waterboarding, a process often described as "simulated drowning," constitutes torture.
While hundreds of pages have been devoted to defining "torture," a simple approach would be to base that definition on conduct. Whatever nonpunitive treatment or training a military applies to its own members would provide the baseline for its conduct of interrogations. This approach benefits from the built-in fire wall of self-interest. No military will do things to intentionally damage its own members either mentally or physically.
While critics will rightly point out that the mental aspects of indefinite captivity are not present during training exercises, it is not necessary for the experiences of trainees and detainees to be identical for this proposed standard to provide a meaningful check on interrogation practices.
In contrast to the "I know it when I see it" standard made famous by Justice Potter Stewart in reference to pornography, torture is too important a definition to leave to the eye of the beholder. Likewise, relying on the language of the Convention Against Torture, which prohibits the intentional infliction of severe pain or suffering, has proven unsatisfactory because of the malleability of the term "severe." The adoption of a conduct-based approach would prevent administrations in this country or elsewhere from defining away torture by narrowly defining "severe pain."
Adopting this standard might end the use of some interrogation techniques, but waterboarding would not be one of them. Most aviators and special forces personnel go through SERE (Survival, Escape, Resistance and Evasion) training, which includes days of captivity, interrogations, stress positions, sleep deprivation and, in many cases, waterboarding. Although I was not personally exposed to that technique, I witnessed others going through it and have spoken with many who have experienced it. While universally viewed as unpleasant, it was not the stuff of nightmares.
Even if the broader concept of defining torture with reference to conduct is not accepted, the long-standing practices of our own military cast doubt on the unequivocal certainty of Dodd and Biden. Unless we believe that our military tortures its own people (and has consistently done so for decades) then Mukasey's guarded response on whether waterboarding constitutes torture does not disqualify him from serving as the attorney general.
Michael Lewis flew F-14s for the Navy from 1987 to 1995. He completed SERE training in 1990. He teaches International Law and the Law of War at Ohio Northern University.