In his Senate confirmation hearings earlier this month, attorney general nominee Michael Mukasey was asked repeatedly whether American officials should be permitted to waterboard detainees in the war on terror. “I don’t know what’s involved in the technique,” Mukasey replied, implausibly. So, Democratic committee members wrote a follow-up letter (see below, and the following two pages) explaining what every casual reader of the daily newspaper already knows: Waterboarding is the act of pouring water over a prisoner’s face, usually with a cloth or cellophane over the mouth and nose, or of immersing the prisoner’s face in water. In every instance, the purpose is to make the prisoner feel as though he is drowning. Occasionally the prisoner really does drown or dies of a heart attack, but the preferred outcome is that the prisoner divulge secret information about terrorist activities.
After explaining what waterboarding means, the senators restated their question to Mukasey: “Is the use of waterboarding, or inducing the misperception of drowning, as an interrogation technique, illegal under U.S. law, including treaty obligations?” The senators wanted a one-word answer, preferably one that began with the letter y.
Mukasey wouldn’t supply it. Instead, he sent a four-page response (Pages 4-8) whose reasoning was a little, well, tortured. He explained that, despite the availability of such authorities as the Geneva Conventions and the Army field manual on intelligence interrogation, he could not form a legal opinion. Mukasey did allow that the method, as described in the senators’ letter, seemed “over the line” and “repugnant” (Page 4). As to its legality, however, he wrote that he would have to know “the actual facts and circumstances” of its application. As attorney general, Mukasey reminded the senators, he and they would have a “shared obligation to ensure that our nation has the tools it needs, within the law, to protect the American people” (Page 5).
The committee chairman, Senator Patrick Leahy, D-Vt., has scheduled a committee vote on Mukasey’s nomination Nov. 6, but he remains “very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal.” Democratic presidential candidates, meanwhile, are lining up to oppose the nomination.
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