Today’s Must Read

February 8, 2008 8:49 a.m.

If the Bush Administration has taught us anything, it’s that “torture” is in the eye of the beholder. It’s the singular truth behind the repeated proclamations that “we do not torture.”

The recent PR offensive has employed the same legerdemain. Administration officials have been making public statements about the use of waterboarding based on the same set of facts for the past week. But a simple shift in emphasis leads to a different headline.

Take, for instance, CIA Director Michael Hayden’s testimony before the House intelligence committee yesterday. The New York Times proclaims “C.I.A. Chief Doubts Tactic to Interrogate Is Still Legal.” The AP goes with “CIA Boss: Waterboarding May Be Illegal.”

Here’s what Hayden said, in response to a question of whether waterboarding was a “prohibited technique”:

HAYDEN: It’s not a technique that I’ve asked for. It is not included in the current program. And in my own view, the view of my lawyers and the Department of Justice, it is not certain that that technique would be considered to be lawful under current statute.

Now, Hayden could have simply said “yes.” But “yes” would not have been the right answer, exactly. Because what Hayden is saying is really no different from what Attorney General Michael Mukasey has testified: that waterboarding could possibly be used in certain pressing circumstances (the Jack Bauer scenario), but that in order for it to be used, the CIA would first have to ask for it, then the Justice Department would have to determine whether it’s legal, and then the President would have to sign off on it.

So, in Hayden’s words, “it is not certain” that waterboarding would be considered to be lawful. But Mukasey, the guy who runs the department that makes these determinations, made it crystal clear last week that it is far from certain that it is unlawful. “It is unresolved,” in his words.

There was a similarly telling moment in Mukasey’s testimony yesterday. Rep. Adam Schiff (D-CA) was pressing him on waterboarding and torture. Don’t you think that it hurts America’s standing in the world not to have a “bright line” on torture? he wanted to know. To which Mukasey responded:

We have a bright line. We bar the torture. The evaluation of whether a particular practice constitutes torture could be presented to me only in a particular situation, namely, whether it was defined, part of a proposed program, in which case I would pronounced on it one way or the other, as I think I…

Schiff countered:

And you think that’s a bright line that we can hold up to the rest of the world, that it depends on whether it’s part of a program authorized by an attorney in the Office of Legal Counsel?
Is that the standard we would ask the rest of the world to hold up?

And don’t forget that the guy responsible for making these determinations at the Justice Department, Steven Bradbury, the current acting head of the Office of Legal Counsel, has consistently given the White House what it wants, including two secret memos in 2005 that authorized a battery of enhanced interrogation techniques, including waterboarding. So much so that the White House has kept him in the spot for three years without Senate confirmation and is ready to go to battle for him again now.

Hayden, for his part, has certainly been striving to communicate that it is extremely unlikely, if not impossible, that the CIA would use waterboarding again. One could just take his word for it. On the other hand, that’s a message more than a little muddled by Vice President Dick Cheney’s speech yesterday:

Just as we monitored the communications of enemies at large, we’ve also gotten information out of the ones that we have captured. The military has interrogated terrorists held at Guantanamo Bay, and, in addition, a small number of terrorists, high-value targets, held overseas have gone through an interrogation program run by the CIA.

It’s a tougher program for tougher customers.

These include Khalid Sheikh Mohammed, the mastermind of 9/11. He an others were questioned at a time when another attack on this country was believed to be imminent. It’s a good thing we had them in custody, and it’s a good thing we found out what they knew….

From the very morning our nation was attacked on 9/11, the president of the United States has had to make some immense and enormous decisions. Every day he faces responsibilities that others would pale before. I’ve been there with him. I’ve seen him make the tough calls and then weather the criticism and take the hits.

President Bush has been tough and courageous.

He’s made the right decisions for the right reasons, and he always reflects the best values of the American people.

I’ve been proud to stand by him, by the decisions he’s made. And I would support those same — and would I support those same decisions again today? You’re damn right I would.

The important thing to remember six and half years after 9/11 is that the war on terror is still real, that it won’t be won on the defensive, and that we have to proceed on many fronts at the same time.

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