Keeps on ticking

Talk about ingratitude. The day after Sens. Dianne Feinstein (D-Calif.) and Charles E. Schumer (D-N.Y.) endorsed Michael B. Mukasey, rescuing his confirmation as U.S. attorney general, President Bush delivered a radio address highlighting the reason other Democrats on the Judiciary Committee opposed Mukasey: his refusal to say flatly that waterboarding amounted to torture.

Noting that Mukasey hadn’t been briefed about secret interrogation techniques, Bush said the nominee didn’t want “an uninformed legal opinion to give terrorists a window into which techniques we may use, and which we may not. That could help them train their operatives to resist questioning, and withhold vital information we need to stop attacks and save lives.”

Thus Bush kept not only terrorists but the American people guessing about whether waterboarding, a barbarous technique prohibited in the field manual for military interrogators, is still an option. In doing so, the president is playing a dangerous game. His coyness about “which techniques we may use” inevitably undercuts his repeated assertion that “we do not torture.”

It’s time that Bush was challenged not only on the mixed message he is sending about the propriety of torture but on its underlying rationale: the so-called Ticking Time Bomb Scenario.

“Scenario” is an apt word for the idea that the government must have to choose between inflicting torture and countenancing mass destruction on the scale of 9/11 or worse. It originates not in real-world tragic choices but in entertainments like the television thriller “24.”

But suppose fiction became fact: The CIA knew a nuclear weapon was about to be detonated in an American city and had captured a suspect who without doubt knew the location of the device and the code for disarming it. In that extraordinarily unlikely event, even the noblest president might violate the taboo against torture and trust his fate to the judgment of history (or an impeachment trial) about whether he had to act as he did.

Contrast that possibility with Bush’s position, which implicitly invokes the Ticking Time Bomb Scenario but shrinks from its logical consequence: that preventing a holocaust would justify not just some “enhanced interrogation methods” but “torture,” whatever Bush might mean by that word. As lawyers say, Bush’s Time Bomb argument proves too much.

Braver than Bush, some commentators have suggested that U.S. law should be explicitly rewritten to acknowledge that torture might be necessary in exceptional situations. Former President Clinton -- a fan of “24,” by the way -- ably refuted that argument when he observed that if there were a formal exception to laws against torture, “people [will] just drive a truck through it, and they’ll say, ‘Well, I thought it was covered by the exception.’ ”

The legal ban on torture should be absolute and uniform, binding both the armed services and the CIA. If Bush’s equivocations leave doubt on that score -- and they do -- Congress should end the ambiguity by enacting legislation that Atty. Gen. Mukasey has promised he would uphold. And everyone except TV writers should stop talking about ticking time bombs.