JUDGE MUKASEY WILL BE TOP LEGAL U.S. OFFICER AND HE DOESN'T KNOW IF WATER-BOARDING IS TORTURE?

The negative reaction to Judge Mukasey's testimony on torture this past week before the Senate Judiciary Committee has not only not died down. It has increased. There were five letters in today's The New York Times, all decrying Mukasey's hedging, and both David Luban and Brian Tamanaha comment critically about his testimony on water-boarding in the legal blog Balkinization.

Writes Tamanaha:

"I had lunch today with a prominent German Constitutional scholar who was flabbergasted about something that I could not adequately explain. He asked me how the candidate to become the top legal official of the U.S. government could say that he does not know whether water-boarding constitutes "torture" (as Judge Mukasey stated yesterday in his confirmation hearings). My colleague insisted that in Germany any person who uttered such a statement would be finished. He found it shocking that a person could say this in America and still become our Attorney General.

"At first I was surprised at his genuine disbelief; and then I felt a bit ashamed that I did not also react with disbelief. I have become so cynical about the Bush Administration on the torture issue that this strikes me as ordinary stuff. Seeing the astonishment through the eyes of an outsider made me realize how far we have deteriorated in our moral sense about the impropriety of torture.

"For Mukasey to say that he first must study whether water boarding is "torture" is a disgrace."

And Luban presents an easy test for Mukasey and anyone else who equivocates on whether water-boarding is torture:

"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."

And here is a letter to the editor printed in today's NY Times by George I. Gordon:

"To the Editor:

"How can the United States hope to regain its position as a respected world leader on the great issues of human rights if its chief law enforcement officer cannot even bring himself to acknowledge the undeniable verity that waterboarding constitutes torture, applying any conceivable definition of that term?"

George I. Gordon, Bronx, Oct. 19, 2007

"The writer served as an assistant United States attorney in the Southern District of New York from 1958 to 1961 and was chief appellate attorney in the United States Attorney’s Office for that district, 1960-61."

MORE THOUGHTS ON JUDGE MUKASEY AND DEFINITION OF TORTURE

It strikes me as more than ingenuous for Judge Mukasey to claim that he is not familiar enough with "water-boarding" to opine whether it is torture or not. It does not take much legal thinking to see that it is cruel and inhuman. It makes the prisoner think he is going to drown and die. It causes the most excruciating psychological torment. And Judge Mukasey cannot give his opinion on whether he thinks it is torture.

One of the primary canons from the code of legal ethics is for the lawyer always to tell the truth in court. Lawyers can argue zealously on behalf of their clients, but they cannot deceive the court or dissemble to it. In other words, a lawyer cannot withhold evidence or create fictitious evidence or argument.

If this applies to lawyers in court, then a fortiori it must apply to appellate judges testifying to congress. Judge Mukasey has a duty both as a sworn witness and as a lawyer/judge to present his opinions honestly before the senate judiciary committee. He may not dissemble, nor may he deceive the congress.

However, when Judge Mukasey says he does not know for sure whether "water-boarding" constitutes torture, he leaves himself open to those who do not and would not believe him.

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.