Attorney General-nominee Eric Holder Jr. forcefully broke from the Bush administration's counterterrorism policies Thursday, declaring that waterboarding is torture and pledging to prosecute some Guantanamo Bay detainees in U.S. courts.It is easy to make such proclamations from the outside looking in. To be honest, I would guess that privately Alberto Gonzales and Michael Mukasy might privately admit that waterboarding is torture, but they are tasked with the job of combating terrorism and having good intelligence is part of that task.
It was the latest signal that President-elect Barack Obama will chart a new course in combating terrorism. As recently as last week, Vice President Dick Cheney defended waterboarding, a harsh interrogation tactic that simulates drowning, saying it provided valuable intelligence.
The CIA has used the tactic on at least three terrorism suspects, included alleged Sept. 11 mastermind Khalid Sheikh Mohammed. In past Senate hearings, Attorney General Michael Mukasey and his predecessor, Alberto Gonzales, frustrated senators by repeatedly sidestepping questions about waterboarding.
Yes, it is nice to consider the academic question of whether waterboarding is torture or not. It is something you can do when your decisions or indecisions lead to a terrorist attack or stopping a terrorist attack. If terrorists attack us again, is it enough to say, "I did everything I could to prevent it, but I won't torture anyone to stop it?"
To be fair and honest, I don't know what I would do. I don't believe in torture, but my oath and Holder's oath is to preserve and protect the United States as well as preserve and protecting the Constitution. Clearly, one cannot exist without the other, but which takes precedence? What is the point of a Constitution if there is not nation? Conversely, can there be a United States without a Constitution?
Deep questions, and ones that don't lend themselves to ready answers. That is what makes declarations of black and white like Holder's all the more difficult. It is a declarative statment for a man about to assume a role in which there are few bright lines and for an administration and a party that has a long history of blurring and moving those lines.