As expected, at today's Senate Judiciary Committee hearing Attorney General Michael Mukasey declined to say whether he thought waterboarding was illegal, on the grounds that it's not currently being used by the administration. The most interesting part of the hearing, though, was a line of questioning from Joe Biden. Biden's back to serving his proper function as jovial Senate windbag, but in between bouts of rambling he nicely managed to pry some useful information out of Mukasey (unofficial transcript from my notes):
BIDEN: When you boil it down, the answer I heard today, it appears that whether or not waterboarding is torture is a relative question. ... For example, if the CIA or any government agency engaged in waterboarding of a captured prisoner and the purpose of it was there was a nuclear weapon about to be detonated in the city of Washington, that might be OK, but if you waterboarded to find out where they purchased their airline ticket, that wouldn't be OK.
MUKASEY: I think the Detainee Treatment Act engages the standard under the Constitution, which is a "shocks the conscience" standard, which is essentially a balancing test of the value of doing something against the cost of doing it. ... [You balance] the heinousness of doing it, the cruelty of doing it, balanced against the value. Hypothetically, getting some historical information that wouldn't save lives, you wouldn't have to reach the question of whether it's torture or not. It shocks the conscience.
See Marty Lederman for legal analysis. Marty says this implies that the administration has concluded that waterboarding is not torture--which may well be right, although it sounded to me like Mukasey was only talking about the Detainee Treatment Act and was trying to avoid answering the question of whether it's torture under the federal torture statute or the Geneva Conventions.
Mukasey's answer raises a whole host of interesting questions (How many lives have to be at stake before waterboarding becomes legal? How sure do you have to be that the information is needed to save lives in the first place?), but when Dick Durbin pressed Mukasey on these points, the attorney general clammed up. The takeaway here is that the administration is still reserving the right to waterboard detainees in a deliberately vague set of circumstances, even though it says it isn't currently doing so.
Update: TPM has a copy of the letter Mukasey sent yesterday to Senator Leahy elaborating his views on the matter here.
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