Waterboarding: The Key Question for Mukasey

JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law says that US Attorney General nominee Michael Mukasey should acknowledge that waterboarding employed by US interrogators is torture, and not attempt to dodge the critical question...



Former judge Michael B. Mukasey, nominated by President Bush to serve the United States as Attorney General, has been giving conclusory answers to questions about the legality of torturing persons held in detention by the military. He says that if the torture is unconstitutional, then he is opposed to it. But he has been unwilling to answer operative questions, such as whether particular methods of torture are illegal.

One might ascribe Mr. Mukasey's unwillingness to address specific methods of torture to the normal reluctance of senior judges to decide cases before hearing all the facts. But the essays Mr. Mukasey has written belie this assumption of legal distancing. He showed himself to be quite the pragmatist when he argued that outlawing too many methods of torture would only lead to the killing of torture victims so as to permanently silence the evidence. This is indeed an ultra-realist view of law, on a par with arguing that if a homeowner unexpectedly comes home and spots a burglar in the midst of gathering loot, the burglar should get a free pass from the law. Otherwise it would be in the burglar's interest to shoot the homeowner and get rid of the only eyewitness to the crime.

Senator Sheldon Whitehouse of Rhode Island cut through the fog with pointed questions:

WHITEHOUSE: Is waterboarding constitutional?

MUKASEY: If waterboarding is torture, torture is not constitutional.

WHITEHOUSE: It either is or it isn't. Waterboarding is the practice of putting somebody in a reclining position, tying them down, putting cloth over their faces, and then pouring water over them to simulate drowning.

MUKASEY: If it amounts to torture, it is not constitutional.

The fear of drowning — of having one's air supply cut off by water — is the most atavistic and greatest fear known to homo sapiens. Psychologists are uniform in saying that no threat or pain we can possibly experience comes close to the shock of drowning.

The Torture Convention, which is part of the supreme law of the United States, defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." Only the most brilliant law professor in the United States, Professor John Yoo of the Berkeley Law School, could possibly read that language as excluding waterboarding. Of course, Yoo's interpretation would at best merit a "But see" footnote in someone's article were it nor for the fact that Yoo included it in his infamous Torture Memo which was readily accepted by the Department of Defense as the Attorney General's definitive word on the subject.

Since it was former Attorney General Alberto Gonzales's signing on to the Yoo Torture Memo (we don't know if Gonzales read it) that, among other things, got him kicked out of his job, maybe Mr. Mukasey is just trying to distance his confirmation hearings as far as possible from anything having to do with torture. After all, the job of Torturer-in-Chief should not be allocated to the Department of Justice. It rightfully belongs to Homeland Security.


Anthony D.Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.


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