As Wallach shows in his journal article, "U.S. courts have consistently held artificial drowning interrogation is torture." Military tribunals have punished Japanese soldiers for doing it to Americans, and U.S. courts have called it torture in criminal prosecutions of police officers and in a lawsuit against former Philippine President Ferdinand Marcos.
The technique, variations of which date back at least to the Spanish Inquisition, is also known as "water torture," a term that clarifies the current debate. In essence, the Bush administration's defenders are declaring, "Water torture is not torture."
What they really mean, I think, is that sometimes torture is justified. If a detainee may have information that could be used to prevent a terrorist attack, for instance, isn't waterboarding the lesser of two evils? As that Army captain put it in 1902, doesn't the end justify the means?
I'm inclined to think it doesn't, not least because a government that asserts the authority to eavesdrop on people at will and imprison them at will is apt to make some terrible mistakes if it also has the authority to torture them at will. But this is an argument about what the law should be, not an argument about what it is.
The Bush administration has a tendency to confuse those two issues. Mukasey's unanticipated trouble on the way to confirmation reflects the expectation that the nation's chief law enforcement official will resist that tendency.