Friday, October 19, 2007
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."
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