Our new Attorney General, Michael "Thumbscrews" Mukasey, testified before Congress today about torture. Specifically, waterboarding. In most cases, he avoiding saying anything of substance about it.
There has been a lot of legal sophistry in reference to torture in the past few years. First, there was John Yoo's torture memo that defined torture as only that which "death, organ failure or the permanent impairment of a significant body function." What I didn't realize until today was that that memo also said any law that prohibited the President from ordering the torture of an al Qaeda fighter would be unconstitutional. Seriously. That's what the memo says. Page 31.
Thumbscrews is now claiming that "reasonable people" can disagree about whether waterboarding is torture. No, I'm sorry. They can't. When a torture technique is used by the Spanish Inquisition, the Nazis, and the Khmer Rouge, it's torture. When Japanese soldiers are prosecuted for war crimes because they performed it, it's torture. When the fact that managing to withstand it for all of two-and-a-half minutes actually impresses the CIA interrogators, it's torture. Reasonable people can not disagree on this subject.
We all know why there is so much hand-wringing on this subject: because it is torture and because we now know for sure that the United State has used it. We've passed a legal point of no return. That's why the new torture memo had to say that all the interrogations performed under John Yoo's definition of torture we all legal. Because admitting that CIA interrogations had broken the law would require investigations and prosecutions. That's why Thumbscrews is now saying that waterboarding doesn't "shock the conscience", or doesn't shock the conscience unless it's used to "discover information that could not be used to save lives and was simply of historical value." In other words, Thumbscrews is actually arguing that waterboarding isn't torture. And even if it were torture, it wouldn't be torture if we really, really wanted to find out some information.
I've had a hard time writing this and I hope I was at least semi-coherent. This is just one of those things that makes me almost blind with righteous anger and that makes it hard to focus my thoughts into good writing. Other people do not have such problems. Balkinization has some good posts, with legal analysis from someone actually qualified to pass it. Specifically: How Can the Legality of Waterboarding Depend on the Circumstances? and Yes, It's a No-Brainer: Waterboarding Is Torture. TPM Muckraker has video of Thumscrews's testimony as well as transcripts. There are quite a few posts, so I won't link to them all. Illinois Senator Dick Durbin's question and non-answer period is especially interesting.
One last note: Marty Lederman, a former lawyer in the Justice Department's Office of Legal Counsel, makes a very interesting speculation:
Mukasey would probably have no problem telling the Senators that waterboarding is unlawful, except that in order to reach such a legal conclusion, he would almost certainly have to repudiate the legal rationale underlying OLC's contrary opinion -- and such a repudiation would undermine the legal basis for other of the "enhanced" CIA interrogation techniques...
In other words, they know that the "extreme interrogation techniques" are built on a legal foundation of sand. And if you wash one away, you wind up washing away all the others.
UPDATE: Dr Fig links to a guy that waterboarded himself to understand what it was like. I suggest everyone read it. Remember, he's doing this to himself, he's not in any danger, and he is in full control. Here is some of what he described:
It seems that there is a point that is hardwired in us. When we draw water into our respiratory tract to this point we are no longer in control. All hell breaks loose. Instinct tells us we are dying.
I have never been more panicked in my whole life. Once your lungs are empty and collapsed and they start to draw fluid it is simply all over. You [b]know[b] you are dead and it's too late. Involuntary and total panic.
There is absolutely nothing you can do about it. It would be like telling you not to blink while I stuck a hot needle in your eye.
So, is it torture?
I'll put it this way. If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question.
It's horrible, terrible, inhuman torture. I can hardly imagine worse. I'd prefer permanent damage and disability to experiencing it again. I'd give up anything, say anything, do anything.