Murderboarding Waterboarding

Mukasey has updated his prior declaration, which fell beneath of the standards of logic, that "If waterboarding is torture, torture is not constitutional."

Attorney general nominee Michael B. Mukasey told Senate Democrats today that a kind of simulated drowning known as waterboarding is "repugnant," but he does not know whether the interrogation technique violates U.S. laws against torture. -- WaPo

Is this a lie? Is it a deliberate evasion? Is it wrong? These are three separate questions. I think it best to start with the third, because the inclination is to reason that if Mukasey's stance is wrong then it must be either a lie or a calculated act of obtuseness.

I think Mukasey's statement as reported is inadequate but not wrong. In furtherance of my prior comments on this topic, here's the new bottom line: in my judgment it is not obvious that 'one dunk' at the waterboard is torture. It is not obvious that U.S. laws against torture apply to one dunk, and it is not obvious that a reasonable person knows or should know that one dunk is torture. Yet in my judgment it is obvious that by 'the technique of waterboarding' -- specifically as part of 'aggressive' or 'enhanced interrogation techniques' -- we mean indefinite dunking, dunking repeated at sufficiently thin intervals to inflict maximum powerlessness in the victim. And it is further obvious in my judgment that that amounts obviously to torture.

This line of reasoning leaves a huge gray area between one dunk and full-blown waterboarding. Where is the 'magic line' at which we cross over into torture? Unlike Rudy Guiliani, I do not think that line is contingent on who's doing the waterboarding. And I would not want it to be there even if I found it there. I would endeavor to change the law so as to move the line. In my judgment a natural place for that line to fall is on the conservative side: at one dunk. But that's where it falls when judging waterboarding simply on its own merits. Judging it on the merits of interrogation, it's not clear to me that one dunk would get us anywhere at all. One dunk seems to me to make all the reasoning we have to go through to get waterboarding right very informational but not worth putting it into practice.

So Mukasey, at the end of my line of reasoning, is correct in a strict way that waterboarding is repugnant but that one dunk -- or two -- or somewhere before that gray area hits -- may not satisfy our laws against torture. But it's necessary then to go beyond that point of strict accuracy. Is this the job of the Attorney General? The better question is whether, when relevant questions are posed, we should expect that reaction from a candidate for Attorney General. I think that we should, and my proposition -- to throw out waterboarding even though it's not necessarily torture -- is consonant with the position Mukasey has so far staked out. I'd be interested to know if any other position can follow. The only other one I can come up with requires a lot of hairsplitting and heavy lifting and careful parsing that I think does more harm than good, both in terms of too much work for not enough payoff and moral endangerment. But that's me. What about Mukasey?