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David Luban on Mukasey and Waterboarding
Oct-20-07 10:52 am
The previous post quoted Judge Mukasey's discussion (or lack thereof) about whether waterboarding constituted "torture." Our Georgetown colleague Dave Luban has an excellent post over at Balkinization reporting his amazement at Mukasey's unwillingness to indicate whether he believes waterboarding is torture. Luban elaborates: To this question – is waterboarding torture? – Mukasey would presumably have begged off the answer, on the grounds that he hasn’t studied the issue and doesn’t know enough about it. It’s a deep, profound, arcane, technical legal question and he wouldn’t want to answer it without deep, profound, arcane poring over the highly technical precedents.An thus, Luban concludes: So: does waterboarding inflict severe suffering? If you want to do a quick, common-sense reality check, try this. Blow all the air out of your lungs. Then stare at your watch and try not to inhale for ninety seconds by the clock. Then take one quick half-breath and immediately do it again. Now imagine that you’re tied down while you’re doing it and water is pouring over your head and rolling up your nose. Or, if you’re really ambitious, get in the shower and turn it on and try the same hold-your-breath-with-no-air-in-your-lungs experiment with your head tilted up and the water pouring up your nose. Then decide for yourself whether it’s severe suffering.I think Dave is right-on. How could any reasonable person conclude that waterboarding did not constitute torture? If waterboarding is not torture, then the term is meaningless. So let's recap where we are: The President says that the United States does not torture, but when asked to define torture says that the definition is "whatever the law says" and goes no further. The Attorney General nominee says torture is unconstitutional, but when asked whether waterboarding is torture, he cannot give an answer. This would be comical except, to quote Jackson Browne, there are lives in the balance. Tags9/11 Commission aggression Alien Tort Statute censorship CIA civil liberties civil rights civil war climate change compensation Congress contractors crimes against humanity customary international law cyber security democracy detainee detainees detainess development diplomatic immunity electronic surveillance enemy combatant enemy combatants enviromental law environmental law expropriation extradition foreign law game theory genocide global economy habeas corpus human right human rights humanitarian assistance intelligence International Court of Justice international courts International Criminal Court international criminal law international environmental law international finance international health international law international legal theory international trade just war doctrine law of the sea law of war laws of war military commission military commissions military law multilateral negotiations nationalization natural law North Korea nuclear nonproliferation nuclear proliferation nuclear weapons Outer Space peacekeeping piracy poverty preemption prisoner of war prisoners of war rendition rule of law self-executing separation of powers sovereign wealth fund sovereignty Supreme Court SWF terrorism torture treaties United Nations universal jurisdiction use of force war crimes |
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