Throughout his nomination hearings, Attorney General nominee Mike Mukasey has consistently denounced the use of torture. Torture is “antithetical to what this country stands for,” he said yesterday. “I would be uncomfortable with any evidence used in trial that is coerced,” he added.
But under questioning from Sen. Sheldon Whitehouse (D-RI) today, Mukasey refused to classify the practice of waterboarding — in which a suspect has water poured over his face to simulate drowning — as unconstitutional, repeatedly claiming it depends on how one defines “torture”:
MUKASEY: If waterboarding is torture, torture is not constitutional. […]
WHITEHOUSE: If it’s torture. That’s a massive hedge. I mean, it either is or it isn’t. Do you have an opinion on whether waterboarding…is constitutional?
MUKASEY: If it amounts to torture, it is not constitutional.
WHITEHOUSE: I’m very disappointed in that answer. I think it is purely semantic.
MUKASEY: I’m sorry.
Mukasey claimed that he doesn’t “know what’s involved in the technique” of waterboarding. But as Sen. John McCain (R-AZ) has pointed out, there’s no question that waterboarding is torture: “[T]o make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture.”
Mukasey’s position also puts him at odds with CIA director Michael Hayden, who has reportedly banned waterboarding from CIA terror interrogations.
UPDATE: Marty Lederman at Balkinization comments, “It’s really remarkable how far we have fallen when a jurist of Judge Mukasey’s caliber cannot answer such questions without hesitation.”
UPDATE II: Human Rights First observes that Mukasey’s statements imply “that forms of coercive interrogation which violate Common Article 3 may be practiced by government agencies, including the C.I.A. ”