Sen. Richard Durbin, D-Ill., started something when he asked Attorney General nominee Michael Mukasey whether he considers waterboarding to be torture. When the nominee declined to give a definitive answer, the matter cascaded into a confirmation-threatening imbroglio.
Within a day, all of the Judiciary Committee Democrats as well as Republican Sen. Arlen Specter, R-Pa., had signed a letter demanding clarification. Sens. Lindsay Graham, R-S.C., and John McCain, R-Ariz., then further complicated Mukasey's position by denouncing waterboarding and calling upon the would-be attorney general to do the same.
The question of just what does and does not qualify as torture is a vexed one in American law. The U.S. is a signatory to the Geneva Convention, the International Covenant on Civil and Political Rights and the U.N. Convention Against Torture and Cruel, Inhuman and Degrading Treatment -- all of which forbid torture.
Under the U.S. Constitution, treaties are the supreme law of the land. But that hardly settles the matter. Defining torture requires teasing it out of court decisions and legal memoranda (like the so-called "torture memo" issued by the Justice Department in 2002 and later withdrawn), as well as statutory language. As Andrew McCarthy explained in National Review, torture has been variously described as "specifically intended to inflict severe physical or mental pain or suffering" or "intense, lasting and heinous agony."
Waterboarding apparently involves placing a person on his back on a seesaw board, tilting him backward, covering his face with a cloth, and then pouring water into his mouth and nose so that he feels as if he is going to drown. It sounds pretty bad -- but is it torture? The military has required our pilots to undergo it to prepare them for interrogation upon capture. That says something. On the other hand, a pilot knows what an enemy combatant presumably does not: that he will live to tell the tale.
What does the law say about waterboarding? As McCarthy points out, Congress had the opportunity in the Detainee Treatment Act of 2005 and again in the Military Commissions Act of 2006 to specifically forbid the practice but chose not to do so. McCarthy writes: "It is ironic . . . that the same elected officials now demanding a definitive answer from Judge Mukasey have failed to give us one themselves . . . "