The Mukasey snag

Powerline and Captain's Quarters each take a stab at unraveling the objections against Michael Mukasey's nomination for Attorney General.

Mukasey has refused to opine about waterboarding on the ground that he doesn't know what's involved in the technique. But this will not remain a tenable basis for not answering, since it's not difficult to find out what waterboarding entails.

Mukasey should testify that waterboarding is legal in exigent circumstances. Alternatively, he should find another basis for refusing to answer the question.
(Power Line)

Captain Ed's take reminds me of my commentary from a week ago (though certainly not in a plagiaristic kind of way!).

And here is the core of the silliness in this standoff. Here we have Congress, as represented by the Judiciary Committee, demanding that an AG candidate declare a specific act illegal. They have it completely backwards. Congress has the responsibility to pass laws and make the determination of legality and illegality -- and the AG has the responsibility to enforce those laws.
(Captain's Quarters)

Contrast these opinions with that of Robyn Blumner (from her editorial last week):

On the issue of torture, Mukasey's first dance was with the committee chairman, Sen. Patrick Leahy, D-Vermont. Mukasey condemned torture because that "is not what this country is about," but when asked about particular interrogation practices such as waterboarding, Mukasey refused to call those methods illegal. On hearing Day Two, Mukasey told Sen. Sheldon Whitehouse, D-R.I., "If waterboarding is torture, torture is not constitutional."

Notice the big "if."

This is essentially the same tactic used by the president in defending against torture allegations. Bush insists we don't torture, because the pain and suffering we inflict on our prisoners has been defined in the Unabridged Bush Presidency Dictionary as something other than torture. (A little dunk in water, as the vice president might say.) If Mukasey buys into this semantical legerdemain, as he seems to, then he's not worthy of the job.

(St. Petersburg Times)

Blumner takes for granted that Mukasey should regard water boarding as illegal even if there is no law against it.

It is absurd for Mukasey to rule water boarding illegal on his own authority, particularly because (as Ed Morrissey reminded us) the technique is used by the U.S. government on our own soldiers as part of their training.

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Is water boarding torture?

It seems to me that "water boarding" has turned into a demagogue's issue lately. The issue came up during Michael Mukasey's confirmation hearing before the U.S. Senate the other day. Democrats (and some Republicans) seem to use the water boarding issue as a political baseball bat.



In that exchange, Mukasey was asked to make a determination on the constitutionality of water boarding.

But how is he supposed to make that determination? If he uses an originalist understanding of the Constitution then on what grounds is he supposed to apply the law to war foes? Even if we ignore the fact that terrorists are not usually citizens of the United States, was water boarding "cruel and unusual" to the framers? It seems doubtful. And if we adopt the "evolving standards of decency" standard, which evolved standards should we adopt?

It seems to me that the entire "evolving standards" rationale is bankrupt. It ends up as rationalization for the judge's personal view. Think about it. Suppose that "Kill the Jihadists" becomes a ultra-popular video game. Everyone plays it, from teen boys to Grandma and even the babysitter. People, by and large, come to accept using a potato peeler to slowly extract information from radical Jihadist prisoners. In other words, the standard of decency has evolved. But you would never hear the "evolving standards" argument used to justify using the technique, would you?

The key to the "evolving standards" argument is its presumption that moral decency evolves in one direction, which (scientifically speaking) is a quaint understanding of evolution (evolution directed toward a goal). Ultimately, the argument boils down to the judge's implicit claim that he or she knows better in this case.

And therein lies the dilemma. Either Mukasey is just supposed to "know better" or else the constitution offers no clear condemnation of water boarding.

Casting the issue on the waters of international law (or treaties) doesn't do any more to resolve the situation. John Yoo quite accurately noted that use of the word "extreme" as a modifier in its descriptions of mistreatment clearly implies some degree of non-extreme mistreatment that will not qualify as torture.

We could use an honest debate about water boarding, one that doesn't rely on emotional appeals such as the fallacy of appeal to outrage. If that debate ever takes place, then let Congress produce legislation that addresses the issue specifically. Spare me the demagoguery.



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