Bush allies are fighting hard to stymie Leahy's idea [for a Truth Commission.]

Just now, the committee heard from David Rivkin, a lawyer who served in the Justice Department and the White House under Presidents Reagan and George H. W. Bush.

Explaining why he opposed Leahy's proposal, Rivkin declared:

Yes, mistakes were made. Yes, some bad things happened. But compared with the historical baseline of past wars, the conduct of the United States in the past eight years ... has been exemplary.

It's just like Hell Week

... or maybe they just wanted to blow off some steam. And anyway, "bad guys always lie" so you have to torture them.

FOREMAN: On Friday, Michael Mukasey became attorney general of the United States despite his refusal to define an interrogation practice known as waterboarding, essentially convincing a person that he is drowning as torture. In a world where terrorists really are out there trying to kill us, where is the bright line between what must be done and what should be done? Retired Navy Lieutenant Commander Charlie Swift teaches, now teaches at Emery Law School in Atlanta and still represents one of the Guantanamo detainees. And with me in Washington, David Rivkin, an official at the Justice Department in the Reagan and George H.W. Bush administration. Professor, let me start with you. Where do we stand in this debate now. It seems now that we've gone through months of trying to decide what we think torture and what is not.

LT. COMDR. CHARLIE SWIFT, U.S. NAVY (RET.): Well, as far as waterboarding goes, it's an unusual debate to begin with, because as far as the military was concerned with, that was decided back in 1890 during the Spanish-American war when General Crowder ruled that water boarding was always illegal and never justified and we tried Japanese soldiers who did it to our troops during World War II where again we said it was illegal. So, it would seem that the bright line is on the other side of waterboarding, at least historically.

FOREMAN: Listen to what John Edwards said at a town hall meeting on Tuesday about the debate.

(BEGIN VIDEO CLIP)

JOHN EDWARDS (D), PRESIDENTIAL CANDIATE: Can you believe that we are having a debate in America about what kind of torture is tolerable? I will tell you what kind of torture is tolerable - no torture is tolerable. The United States of American should not be engaged in torture.

(END VIDEO CLIP)

FOREMAN: Mr. Rivkin, a lot of Americans in the polls seem to have a similar-type view, why is it so hard, why can't we agree on a definition and stick to it?

DAVID RIVKIN, MILITARY LAW EXPERT: Incidentally, it is not a debate about whether torture is permissible, at least in my mind, it's what things amount to torture. And with all due respect to my friend Charlie, there are several forms of waterboarding. Waterboarding is a very capricious term, it connotes a bunch of things. There are clearly some forms of waterboarding [that are] torture and off the table. They may well be some waterboarding regimens that while tough and useful in extracting information are not torture. My problem with the critics is that they don't want to have, contrary to what Senator Edwards said, we are ought to have a debate as a serious society about what stress techniques of interrogation and what to do with it. Let me point out one thing, we actually waterboard our own people. Are we torturing our own people?

FOREMAN: But we're waterboarding our own people to give them an idea of what they would encounter if they were captured by somebody else.

RIVKIN: Well, forgive me, as a matter of law and ethics, if the given practice like slavery and prostitution is officially odious, you cannot use it no matter what our goals is, you cannot even use it to volunteers. So, if all forms of waterboarding are torture then we are torturing our own people, and the very same instructor who spoke before Congress the other day about how it's torture, is guilty of practicing torture for decades. We as a society have to come up with the same baseline using (inaudible) in all spheres of public life instead of somehow singularizing this one thing, which is interrogation of combatants and we need to look at it in a broader way.

FOREMAN: Then, why don't we Professor Swift, just in deference with what the American people believe in, I think, why don't we just back away from anything that gets close to this line?

SWIFT: I think we should. To me, it is unfathomable that we are up against the line. You know, again, looking back at World War II, what history has taught us and what we found is that the reliable means of getting intelligence, at least in the context of a war, are using those things that build rapport with the person that they find out that you are not the ogre that they have been told. They begin to question the people who are leading them, and eventually, that leads to actionable intelligence and it is reliable, and you see, that is the real problem with anything that is coercive. When you force somebody to talk, you cannot count on what they tell you. It is going to - in that case, I think it is really an unreliable form of interrogation, and again, that is why we don't use it in court, because it is not reliable data.

FOREMAN: I seem like I have heard this in a lot of places, the same comment, what's your response to that?

RIVKIN: It is historically and practically not true for a very simple reason. First of all, the reason stress techniques were used if you look at it is because there are four building techniques of the FBI. This has been reported in the newspapers like "Washington Post" and the "New York Times." In late 2001, early 2002, I'm not working. You are not able going to be able with Khalid Shaik Mohammed, because while they're evil, they're enormously committed to their ideology. They're prepared to die for it. Point number one. Second, bad guys always lie. Why will you try to build a rapport with them, will interrogate them stressfully. If you have enough time, your biggest problem is they say nothing. If they start talking, you're able to go back and, for example and you ask, where is your safe house? You go and you see if he told you the truth.

FOREMAN: These are borderline techniques you're talking about. If they were done to you, would you consider them torture?

RIVKIN. No. I am not, by the way, I am not even propounding waterboarding. My problem is that there is a range of stress techniques including temperature manipulation, sensor manipulations and maybe sometimes waterboarding that are actually used. Look, when people go for basic training for hell week, they sleep little bits of time at a time, their diets. There's lots of abuse, instructors yelling at (inaudible).

FOREMAN: I have to cut you for a moment for a last word, very quickly, from Professor Swift, are we any closer, briefly to coming to a conclusion as to where we're going with this debate and it seems like it is going on forever, and it sill is lively as ever?

SWIFT: Well, the reason we can't have the debates, to get down to particular techniques is that the administration won't tell us exactly what they are doing and won't tell Congress exactly what they are doing, so when one lies on the edge of these things, it is impossible to have a debate until Congress completely looks at the question and stops using general terms. Congress has tried general terms, general terms haven't work but we're going to have need a specific debate.

FOREMAN: I'm afraid, we have to go. Professor Swift, thanks so much. Mr. Rivkin as well.

I was on the Seder show earlier today and mentioned that broadcast(mangling the date Commander Swift mentioned, unfortunately.) It was in response to Sam's question as to whether the US has truly gone over the cliff. I said it was a near thing, mostly because of people like our friend Professor Rivkin there.

This man claims that if an American trainee can endure something, it can't legally be called torture. He shamefully goes even further to state that if we call it torture, it means that all of those who have trained our troops to withstand it are guilty of being torturers.

He neglects, of course, to admit that the recruits and trainees who are put though such exercises can quit at any time and they know very well that their instructors won't actually kill them. The total lack of control in the hands of someone who believes you are an enemy is what what makes waterboarding torture, and people who do it voluntarily have control. That's the difference, and it's clear to anyone who isn't an intellectual fraud as Rivkin is.

He and others (like Pat Buchanan) are now saying that we need to make waterboarding explicitly illegal if we have a problem with it --- even though one would think that any torture that was used by the Spanish inquisition and Pol Pot would automatically come under the heading of "torture" which is illegal under at least five different statutes and treaties. They are trying to pretend that waterboarding isn't already illegal, pretending that waterboarding is merely "controversial" so they are pushing for a "debate."(Swift even admits that they've left us no choice between the weasel words, parsing and secrecy.)

There is good reason to surmise that one of the main reasons why they are pushing for this legislation is so that Bush, Cheney and Rumsfeld can't be indicted for war crimes retroactively. (Kind of like their friends the Telcoms.) After all, that's the real reason Mukasey was instructed to say that he didn't know if waterboarding was illegal. If he had, he might have been required to arrest some very important people who we know approved it.

But Rivkin's bobbing and weaving serves another purpose. He's literally defining deviancy down. He submits that these "stress positions" and the "hot and cold" and the waterboarding and other things they've done (plus God only knows what we aren't yet aware of) are necessary when you are dealing with "bad guys" who always lie. And anyway, if Army rangers can endure it in training then so can suspected terrorists (who've been blindfolded, stripped, sodomized repeatedly with "suppositories", held in painful restraints for days, subjected to extreme cold while being splashed with water and denied sleep.) This is what the right wing has left of their principles: if our special forces guys can live through something during their training that means it's ok for us to do it to others under much more terrifying circumstances.

There has been tragic a shift in our culture's taboos, thanks to schmucks like Alan Dershowitz and others who put this on the menu in the days after 9/11 and normalized the idea that torture might be ok --- as long as we're the torturers. There are plenty of people who agree with that reflexively. After all, our president told them right after 9/11 that we are good:

[H]ow do I respond when I see that in some Islamic countries there is vitriolic hatred for America? I'll tell you how I respond: I'm amazed. I'm amazed that there is such misunderstanding of what our country is about, that people would hate us. I am, I am -- like most Americans, I just can't believe it. Because I know how good we are, and we've go to do a better job of making our case.

So, if we are good (exceptionally good!) that means that whatever we do is good. But torture is bad. So, that means that no matter what we do it can't, by definition, be torture. See how that works? (I wonder if he also thinks this is a useful way to "make our case" to the rest of the world that we are good.)

This is more right wing rabbit-hole logic, and it's become a sick parody of itself now that they are openly using it to defend torture techniques from the Spanish Inquisition. You ask this man Rivkin if he would consider waterboarding torture if it were done to him and he said unequivocally, no. (He learned his lesson well. The last Republican lawyer who went out and had himself waterboarded was fired when he called it torture.) It's actually just another tool that good people use to defeat "bad guys." No biggie. It's not even illegal.