This week Michael Mukasey will seek to clear hurdles on his path to become the highest law enforcement official in the nation. Yet he still refuses to answer a fundamental question: whether or not waterboarding is torture and, therefore, prohibited under our laws. No matter what our president says, this is not political bickering. It is about whether the rule of law still means anything to the executive. And whether our senators have the backbone to stand up for a principle more profound than political expediency.
If senators such as Charles Schumer and Dianne Feinstein have doubts about whether waterboarding is torture, they should -- and should be allowed to -- interview the men who have likely experienced it in secret CIA detention facilities in American hands.
For example, they should interview Majid Khan, a Baltimore resident abducted and held for years in secret CIA prisons. He was a "ghost detainee" who this past year was among the "reappeared" at Guantánamo.
President Bush himself has clearly stated that Khan was held at a secret CIA facility before being transferred to Guantánamo. Bush also made clear that an "alternative set of procedures" were enforced -- procedures widely believed to include waterboarding.
So, was Majid Khan really waterboarded? I don't know. Khan has been prohibited from speaking to anyone except my colleagues, lawyers at the Center for Constitutional Rights who were finally allowed to visit him recently. One of those attorneys, Gitanjali Gutierrez, and her colleagues have also since been silenced: The government forced them to sign a protective order because Khan knew about "enhanced interrogation techniques." Likely translation: Khan was tortured and the government is trying to cover it up by silencing him -- and even his attorneys.
So the government has successfully kept the public in the dark. But senators on the Senate Judiciary Committee can turn on the light.
Those senators are perfectly within their rights and powers to pick up the phone right now and demand to interview Khan and others who were likely tortured at CIA secret sites. They can conduct classified interviews with the lawyers for the Center for Constitutional Rights about their milestone visit with Khan. They can learn exactly what happened to these men. And, if the men were waterboarded, they can learn exactly what the practice entails.
What they will likely hear are descriptions like one written by Henri Alleg, a French journalist who suffered waterboarding during the Algerian war: "I had the impression of drowning, and a terrible agony, that of death itself, took possession of me."
And so the question is extremely simple: Do the men and women who serve on the Senate Judiciary Committee want to know, or not? Do they care about whether our nation has tortured? And if they do care, are they still prepared to confirm a man to be our attorney general whose legal and moral compass is so deformed that he cannot speak plain truth? If the U.S. Senate cannot summon the courage and decency to draw this basic line, then a citizen must ask if it serves any useful purpose at all.
I believe that upon talking to victims of waterboarding any reasonable senator -- or citizen -- will define it as torture. There is no reasonable disagreement on this point. It was a technique invented in the Spanish Inquisition and used to terrible effect in the centuries since. The only question is whether there is any institution or group of politicians in this nation with the will to stand up for our Constitution, even at the risk of their own political prospects. If there are such men and women, then there is yet hope that our nation will rescue the Constitution from those who would shred it.
This is not a moment for political theater. This is not a moment for politics at all. This is the moment for good and decent leaders to remember that the truth still matters and to act accordingly. Michael Mukasey aspires to be the living face of America's laws. By talking to ghost detainees about their experiences, we can help him reveal if he understands or respects those laws at all.