Mukasey To Congress: You Say It First

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

"The waterboarding victim may be immersed in water, have water forced into the nose and mouth, or have water poured onto material placed over the face so that the liquid is inhaled or swallowed. The media usually describe the practice as "simulated drowning." That's incorrect. To be effective, waterboarding is usually real drowning that simulates death. That is, the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, taking water into the lungs and, eventually, the same feeling of not being able to breathe that one experiences after being punched in the gut.
  - Evan Wallach, former JAG official in Sunday's Washington Post

Instead of trying to coerce a high-ranking executive branch official into undercutting his own president's power, the legislators ought to instead look inward, toward Capitol Hill, and simply and expressly prohibit "waterboarding" by federal statute.

They've been talking about it for years. And for years the White House and Congressional Republicans have been able to maintain the status quo, which is mealy-mouthed statutory language that clearly leaves open (as a legal possibility anyway) the notion that waterboarding is lawful.

Now, it's true that Sen. John McCain, R-Ariz., believes that waterboarding is outlawed by the Military Commissions Act of 2006. But unfortunately for those in the anti-waterboarding camp, McCain does not have a vote on the United States Supreme Court.

And he has only one vote on the floor of the Senate. He should use that vote, and the pulpit of a presidential campaign (pay attention Hillary, Barack and Rudy!), to try to rouse a veto-proof majority in both houses into a clear and definitive federal ban on waterboarding of any sort as an interrogation technique. I mean, even the soon-to-be-Attorney General himself, Mukasey, called the practice "repugnant" last week and pointedly noted that it is already prohibited for use by the U.S. military.

So wouldn't it make sense, then, to simply extend the prohibition against a "repugnant" form of interrogation method to all U.S. law enforcement and intelligence officials?

It makes sense to Senate Judiciary Committee chairman Patrick J. Leahy, D-Vt., who, in deciding last week to vote against Mukasey, offered this simple rationale: "There may be interrogation techniques that require close examination and extensive briefings. Waterboarding is not among them. No American should need a classified briefing to determine whether waterboarding is torture. … We prosecuted Japanese war criminals for waterboarding after World War II. If an American was captured and waterboarded, would we consider it torture and want to raise bloody hell about it? Of course we would."

So aren't there, say, at least 10 Senate Republicans who could square such a prohibition with their constituents? Aren't there a few dozen House Republicans who could stand up to the President and say that the time for intentional ambiguity over the legal status of waterboarding must end? After all, a private White House promise not to waterboard may be a way to determine the legislative intent of a senator like McCain when it comes to the breadth of the Commissions Act. But it is no legal substitute for an explicit statutory provision in the Act which bans the practice.

Concerns about a retroactive application of the ban which might lead to the prosecution of interrogation officials? Forget about them. The ban would have to be — and should be — prospective. You can't go after intelligence officials now who believed that they were acting under valid orders — remember the Bybee and Gonzales memos that temporarily loosened the rules for torture? The retroactivity issue is a perfect carrot to toss at Congressional Republicans and the White House in order for the deal to get done.

And even if a veto-proof majority against waterboarding were not possible, would it not serve the nation to force the President to either confirm or deny in public, via his veto choice, whether it really is true that the feds are out of the waterboarding business for good? Yes or no, up or down. At least then we'd have the kind of legal and moral clarity it seems to me we need, and deserve, when the issue is a barbaric interrogation technique that is "real drowning" that "simulates death."

In his statement Friday pledging continued support for Mukasey's nomination, Sen. Charles Schumer, D-N.Y., offered this significant (and significantly under-reported) nugget. Mukasey, Schumer wrote, "made clear to me [in private] that, were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority. And he flatly told me that the President would have absolutely no legal authority to ignore such a law, not even under some theory of inherent authority under Article II of the Constitution. He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law."

Clearly, Schumer believes that Mukasey is disposed (even poised) to say the magic words - "waterboarding is illegal" - if Congress first offers better guidance in the form of specific statutory language. This is no small thing. It signals that Mukasey isn't interested in obstructing justice when it comes to waterboarding but rather is eager to defer to the legislative branch the dispositive call on the matter. Congress should rush to accept the nominee's invitation; after all, the lawmakers have been waiting for 6 years to be invited by the executive branch to help it lead the anti-terror effort.

Sen. Russell Feingold, D-Wisc., who also rode to Mukasey's rescue late last week, seems to understand the need for speed here. On Friday afternoon, Feingold offered this: "Both Senators [Edward] Kennedy [D-Mass.] and [Joseph] Biden [S-Md.] have introduced legislation to this effect. I believe we should put one of those bills in the FISA legislation now under consideration in the Judiciary Committee. Once this law is enacted, the Attorney General would be required to enforce it, and Judge Mukasey's answers give every reason to believe that he would."

That's why Mukasey's nomination ultimately could be the catalyst that finally ends waterboarding as a legal form of interrogation. Public attention now is drawn to the issue in an unprecedented way. The man and the moment have arrived. And the passage of a ban on waterboarding would ensure that Mukasey has contributed to our nation's enduring, fair and decent rule of law even before he spends his first day as Attorney General of the United States.