After sailing through the 1st day of Senate Judiciary Committee hearings, in part because he disavowed the so-called "torture memo" of August 1, 2002 (as the Justice Department did years ago; see my article Abu Ghraib), on Day 2 Mukasey foundered, refusing to give a straight answer to a straightforward question. At issue was "waterboarding" -- pretending to drown an interrogee, a tactic that, as we've posted, the United States is said to have deployed against Khalid Sheikh Mohammed and certain other post-9/11 detainees. (The image at left, which reflects concerns about the recent proliferation of depictions of violence, is the one we've used consistently to "illustrate" this topic.)
The question: Is waterboarding torture?
He "remained mum" on this point, and his answer has not changed in the 2 weeks since the hearing. Yesterday, according to the New York Times, Mukasey "said that waterboarding and other harsh interrogation techniques 'seem over the line or, on a personal basis, repugnant to me; and promised to review the legality of such methods if confirmed." But as to "whether waterboarding, which simulates drowning, was illegal torture," he "could not say."
That position prompted Senators Christopher Dodd (D-Conn.) and Barack Obama (D-Ill.) to oppose Mukasey's nomination. Other presidential candidates then followed suit, and with good reason.
There ought to be no doubt that this practice is illegal. It's an assault and battery that has been known at times to result in death. It's cruel, inhuman, and degrading treatment. The United States prosecuted enemies as war criminals for it in prior conflicts. (See Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45 Columbia Journal of Transnational Law 468 (2007)). And when it's done by state actors in a (misguided) effort to get information, waterboarding fits this definition:
That, according Article 1 of the international convention that the United States ratified more than a decade ago, is torture. Anyone who can't find the words to say so shouldn't be seeking the job of the United States' top law enforcement officer.
[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.