Before asking "whether waterboarding is 'constitutional' or not, let’s ask whether it’s a CRIME. "

[ProSense]

Friday, October 19, 2007

A Severe Insult to the Brain...

David Luban

...is the title of a book chapter by Truman Capote. It’s also, supposedly, the cause of death listed on Dylan Thomas’s death certificate.

It’s not bad as a description of Judge Mukasey’s dialogue about torture with Senator Sheldon Whitehouse, either.

"Is waterboarding constitutional?" he was asked by Senator Sheldon Whitehouse, a Rhode Island Democrat, in one of today’s sharpest exchanges.

"I don’t know what is involved in the technique," Mr. Mukasey replied. "If waterboarding is torture, torture is not constitutional."

Mr. Whitehouse described Mr. Mukasey’s response as a "massive hedge" since Mr. Mukasey refused to be drawn into a conversation over whether waterboarding, which has been used by the Central Intelligence Agency to question terrorist suspects, amounted to torture.

"I mean, either it is or it isn’t," the senator continued. "Waterboarding is the practice of putting somebody in a reclining position, tying them down, putting cloth over their faces, and then pouring water over them to simulate drowning. Is that constitutional?"

Mr. Mukasey repeated his answer: "If it amounts to torture, it is not constitutional."

Mr. Whitehouse said he was "very disappointed in that answer — I think it is purely semantic."

"I’m sorry," Mr. Mukasey replied.

It’s hard to know where to start. To begin with, Senator Whitehouse’s question was a little bit off the target. Before ever getting to the question of whether waterboarding is "constitutional" or not, let’s ask whether it’s a CRIME. Yes, torture is a crime – a serious federal felony that can carry the death penalty. Maybe that’s what the senator meant to ask about. Is waterboarding illegal? Is it criminal? Maybe "unconstitutional" just meant "really, really illegal."

Equally off-target is Judge Mukasey’s answer, "torture is not constitutional." Either he too meant by "unconstitutional" something like "really, really illegal" or he was off on a complicated lawyer’s question. Within U.S. territory, torture "shocks the conscience" and therefore violates the Due Process Clause of the Constitution. Whether the Constitution applies outside the U.S., where the waterboarding takes place, is a fiercely disputed question. The Bush Administration, relying on the 1950s case Johnson v. Eisentrager, says no. For the Bushies, overseas torture IS constitutional, because the constitution doesn't follow the flag overseas.

So, wow! Was Mukasey saying that the Due Process Clause does apply outside of the United States? That would be one of the greatest legal defeats he could inflict on the Bush Administration. So the smart money says that he didn’t mean "unconstitutional" when he said "torture is not constitutional." He too probably just meant "torture is really, really illegal."

more

[Xipe Totec]

1. Murder is not torture. Does that mean murder is constitutional?

It floors me that the nominee for Attorney General does not have a grasp of basic logic.

He is attempting to imply that if waterboarding is not torture, then it is constitutional.

[Bluerthanblue]

2. i'm afraid that Mulkowsky would say that if the prez did it under

certian circumstances, it would not be against the constitution to murder-

It is what 'i' got out of his word salad.

:shrug:


He placed * above any law-

[Xipe Totec]

9. So, given that, any reason why our Democratic Senators should confirm him?

It seems to me that any Senator who confirms this nomination better be ready to step down.

[Bluerthanblue]

12. I agree- and

this is what should happen.

But I've stopped believing that what should happen- especially in regard to today's american government, will.

No one should have voted to attack Iraq either.

Or suspend our Constitutional Rights.

but still here we are :shrug:

What are we going to do about it?

[Xipe Totec]

14. Nominate better Democratic candidates at the Primaries

that's what we should do as supporters of the Democratic Party

:dem:

If you're not happy with the Democratic incumbent, support the challenger.

If you have a Republican representing you, Fuck 'em.

[Bluerthanblue]

18. been trying that for years-

I was happy to help work to elect Paul Hodes-

yet still here we are~


:shrug:

I'm going to work to remove Sununu this year ( if i'm still kicking) and work harder to get Gregg the hell out -

but i don't have any tangible hope that will happen soon enough, if at all.

peace~

[Rhythm and Blue]

6. He's making no such implication.

I mean, if you do not understand logic, you might think he was saying that, but he's a lawyer among lawyers.

Conversation was as follows:

"Is X Y?"
"Z is Y. So if X is Z, X is Y."

He was dodging the question, and nothing else.

[Xipe Totec]

8. Indeed he is making that implication

by ofering that answer.

"Z is Y. So if X is Z, X is Y."

is true when:

"Z = Y. So if X = Z, X = Y."

but not true when:

"Z -> Y. So if X -> Z, X -> Y."

He was using implication as equivalence, and they are not the same.

I don't care if he was doing it through ignorance or deceit. It was bad logic.

[mmonk]

3. It's illegal because it is unconstitutional..

A somewhat whimsical game they are playing.

[Richard D]

4. One thing that got me in that conversation . . .

. . . was the tone in his voice when he said "I'm Sorry". I'm going to reserve my opinion on it now, but I'd like to know what others heard there. To me, there was a world of communication in those two words.

[Rhythm and Blue]

5. I think Whitehouse was pretty clearly asking if it was constitutional, not criminal.

They're separate but entwined issues.

[Lint Head]

7. The torture debate is idiotic. Torture is torture. Duh.

Physically or mentally harming anyone to get information is torture. I guess Christian nations think torture is OK. It's in the Bible. Christ was tortured. Does that make it OK? The death of Christ on the cross is the best argument against capital punishment.
How can you be for torture or execution and consider yourself a Christian. :dem:

[Xipe Totec]

10. Absolutely true, but it may be illegal even if it is not torture

By switching the debate away from the legality of water boarding per-se, to the issue of whether water boarding is illegal BECAUSE it is torture, he dodged the real question which is this:

Has the Bush administration violated the law by water boarding enemy combatants?

[VP505]

11. We (the USA) put

Soldiers on trial after WW2 for water boarding so why is it NOW legal for us to be doing it???

[Xipe Totec]

13. 'xactly! water boarding = torture is a ruse

water boarding = felony

that is, has been, and always will be the real question.

Which the White House is desperately trying to avoid.

[Disturbed]

15. "I don’t know what is involved in the technique," Mr. Mukasey

"I don’t know what is involved in the technique," Mr. Mukasey replied. "If waterboarding is torture, torture is not constitutional."

At that moment he should have been asked if he would volunteer to be water boarded right then in the room. He would then know about the technique, first hand & thereafter decide, whether it is Torture or not.

[Xipe Totec]

16. If water boarding is effective, maybe we should use it in Confirmation hearings

so long as it is not illegal...

[Lint Head]

19. Great idea! It should have been used on Roberto. Maybe the

DOJ wouldn't ne in the decrepit shape it is in now. :dem:

[TahitiNut]

17. "If The President Does It, It's Not A Crime" (R. M. Nixon)

:eyes:

[Swamp Rat]

20. It's a crime against humanity.

Period.

[Rosemary2205]

21. I don't give a crap if it's a crime or not - it's IMMORAL and COUNTERPRODUCTIVE

it's useless as an information gathering tactic and incredibly counterproductive in the "turning enemies into friends" category. There's no good justification for it and it's an incredible assault on our so called "christian" foundation.