Waterboarding is not torture, but semantics says it's cruel

Mukasey Shocks Biden's Conscience
By Paul Kiel - January 30, 2008, 12:12PM

Michael Mukasey finally got into the nitty gritty of how he thinks
about torture, and he seemed to finally show his hand.

Sen. Joe Biden (D-DE) said that he'd been getting the impression that
Mukasey really thought about torture in relative terms, and wanted to
know if that was so. Is it OK to waterboard someone if a nuclear
weapon was hidden -- the Jack Bauer scenario -- but not OK to
waterboard someone for more pedestrian information?

Mukasey responded that it was "not simply a relative issue," but there
"is a statute where it is a relative issue," he added, citing the
Detainee Treatment Act. That law engages the "shocks the conscience"
standard, he explained, and you have to "balance the value of doing
something against the cost of doing it."

What does "cost" mean, Biden wanted to know.

Mukasey said that was the wrong word. "I mean the heinousness of doing
it, the cruelty of doing it, balanced against the value.... balanced
against the information you might get." Information "that couldn't be
used to save lives," he explained, would be of less value.

Marty Lederman blogs: "What this reveals is that DOJ and Mukasey have
concluded that waterboarding is categorically not torture, and is not
'cruel treatment' under Common Article 3 (even though it is, by
Mukasey's own lights, "cruel" -- go figure)."

Biden responded, "You're the first I've ever heard to say what you
just said.... It shocks my conscience a little bit."
.

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