Mukasey and Torture

Jonathan Turley opines in today's L.A. Times:

This week, the Senate Judiciary Committee is expected to vote in favor of Michael Mukasey to be the new U.S. attorney general, sending his nomination to the full Senate for confirmation. What is most surprising is the wave of support from the committee's Democrats, who seem determined to ignore what they clearly view as a minor flaw in the nominee: his refusal to denounce the deplorable practice of "water-boarding" and his apparent willingness to lie to duck the issue.

Declaring "water-boarding" a "clear and unambiguous act of torture under international and U.S. law", Turley calls for the Senate to reject Mukasey's nomination.  What does he object to in Mukasey's responses?

At first, he repeatedly stated that he does not support torture, which violates the U.S. Constitution. This is precisely the answer given so often by President Bush like a mantra. The problem is that Bush defines torture to exclude things like water-boarding. It is like saying you do not rob banks, but then defining bank robbery in such a way that it does not include walking in with a gun and demanding money from the cashier.

Well, if you must use this analogy, walking in to a bank with a gun and demanding money from the "cashier" is only robbery if the "cashier" actually hands over money. Otherwise, it's assault. (And Turley's a law professor? Come on!)

The senators pushed Mukasey to go beyond the Bush administration mantra. He refused and then said something that made many of us who were listening gasp: "I don't know what is involved in the technique," he said.

Actually, that's still a valid answer, despite the publicity water-boarding has received.

Terry Karney, who has screamed and wailed that "the Administration condones torture" has equated water-boarding with "mock executions", which are explicitly banned under the Geneva Conventions. So the question becomes, is water-boarding administered in such a way that the subject believes he's not going to survive? Not too long ago, a news reporter was water-boarded on TV. I think we can assume he had every expectation that he would survive the process, nevertheless it was still no picnic. Are terrorists who are being water-boarded told they're going to die, or that they'll survive the process? That could make a critical difference to a judge reviewing the legality of the technique.

If the administration is unable to find a nominee who will denounce torture, then it should be left with an acting attorney general who will lead the department without the consent of the Senate. After all, there are worse things than being denied confirmation. You could be water-boarded, for example.

The thing is, there are worse things than being water-boarded. The Al Qaeda manual that was captured some months ago displayed a number of them. Although a reporter was willing to be water-boarded on TV, I've yet to see one volunteer to have his skin burned with a hot clothes iron, or have holes drilled in him with an electric drill.

There's a line between what constitutes torture, and what does not. Some things will lie very close to the line, and reasonable people may differ over what technique belongs on which side of the line. To declare that people who disagree with your placement of that line "refuse to denounce torture" is more of a hysterical fit than a reasoned argument.