Waterboarding: A Legislative Calculation
Quiz time! What, exactly, does waterboarding entail? Looking at the preponderance of media reports I think it's fair to say that an intelligent member of the public is left with the impression that waterboarding creates a simulation of drowning. That's it. But that would be wrong. As helpfully explained by Malcolm Nance, waterboarding is carefully controlled drowning in which the victim's lungs slowly fill with water such that excruciating pain and, eventually, unconsciousness results, but where death — through attentive interventions of the operator — can be averted. The process may be repeated as necessary.
Here, administration lawyers have noticed that experts on torture have a very difficult time saying exactly what torture is, and is not. According to the experts most of the definition, most of the time, depends upon subjective conditions. But not always. Taking advantage of what ambiguity they can, nevertheless, the administration thinks it can push the definition where it wants. This may not turn out to be strictly true.
In an unusually useful mainstream news report, Scott Shane, in today's NYT, explains that Michael B. Mukasey, the Tyrant's nominee for Attorney General, must walk a very careful line in answering Senate questions about waterboarding. If he were to acknowledge that waterboarding is, in fact, torture, that could (read between the lines here: high probability of danger) lead to criminal prosecutions up to and including the decider himself. So what started for the Senate as perhaps a secondary question regarding the definition of torture has shown itself to be a monumental pivot — Senators are only beginning to catch on. Even supposing Mukasey were not confirmed, the question comes up all over again with the next nominee.
What Shane does not mention is the question of what responsibility Senators themselves may bear for their confirmation vote. Suppose at some future point the international community recognizes explicitly and unconditionally that waterboarding is torture. Further suppose that international law has caught up with the practice and gotten into the business of tracking down those responsible. The operators, clearly. Those in the chain of command. Those who developed the legal rationale. What of those who wittingly approved the primary legal facilitator? It's a bit of a stretch, but I wouldn't assume that Senators who vote to confirm Mukasey are off the hook. It may, indeed, be an unprecedented situation.
Republicans will vote en bloc to protect the administration. Some Democrats have taken a stand. What will the rest of the Democrats do? TPM has a helpful chart on this — probably it's worth the time to make a few calls to Senate offices to remind them of what's right.
Posted by George Kenney on November 1, 2007 8:43 AM 
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Comments
Shane also fails to note that since the Democratic Congress is unwilling to hold the administration accountable for torture, the courts offer the only potential redress for the victims of this practice.
It seems to me this is as good a time as any for Democrats to realize that confirming Presidential nominees who do not believe in the laws and regulations they are expected to enforce in office is nothing short of stupid.
Posted by: Democracy Lover
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November 1, 2007 9:49 AM
Partial birth: NO.
Partial drowning: OK.
Posted by: 8isis8
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November 17, 2007 5:33 AM