JUDGE MUKASEY - UNDERGO WATER-BOARDING TO SEE IF IT IS TORTURE

Marty Lederman has a post at Balkinization in which he marvels that a jurist of Judge Mukasey's stature cannot say for sure whether he thinks "water-boarding" is a form of torture and therefore unconstitutional. Mukasey has been an appellate judge on the Second Circuit Court of Appeals in New York. So this is someone who has had lifetime tenure as a federal judge under Article III of the Constitution. Yet he is not prepared to say that water-boarding is cruel and unusual and therefore illegal.

I have a suggestion for Judge Mukasey. Try it out on yourself. Ask some CIA agents to come over to your office and perform it on you. Let them tie you to a board, put a cloth over your head and face, and then pour water on it and you. Then you will be better prepared to say whether it is torture.