Much of the unhappiness with Judge Mukasey's answer to Senator Whitehouse's question whether waterboarding is unconstitutional concerns credibility. Judge Mukasey said that if waterboarding is torture then it's unconstitutional for U.S. govt agents to subject someone to waterboarding, but he said he didn't know enough about the technique to say whether it's torture. Under the present circumstances, for a prospective AG to say he doesn't know what waterboarding is, sounds a bit like a Supreme Court nominee saying he never discussed Roe v. Wade. (In response to a question whether he had ever discussed Roe, then-Judge Clarence Thomas said at his confirmation hearings that he had never "debated the contents of" the ruling, leading some Thomas defenders later to claim that he spoke the truth because he had never been in a formal debate on the subject.)
If the worry now is that Judge Mukasey has dodged the question by pleading ignorance, it would be a reasonable solution to send him a brief description of waterboarding, like this one provided by Mark Danner: "a prisoner is stripped, shackled and submerged in water until he begins to lose consciousness." Then ask Judge Mukasey whether he thinks this practice is legal.
The Military Commissions Act of 2006 expressly forbids "cruel, inhuman or degrading treatment" of prisoners, and defines this prohibition as coextensive with the constitutional limits on treatment of prisoners. Given that the vast majority of people subject to Mukasey's jurisdiction if he becomes Attorney General will be those charged with or convicted of violations of domestic law, perhaps he should be asked whether he thinks that waterboarding of ordinary crime suspects in the custody of the FBI is permissible. And if so, doesn't he find it just a tiny bit odd that the Fifth Amendment forbids asking a suspect in custody questions without first warning him that he has a right to remain silent and a right to an attorney, but doesn't forbid making him feel like he is suffocating?
If not, perhaps Judge Mukasey could suggest a new Miranda warning for suspects to be waterboarded: "You have the right to remain silent, although your attempt to exercise that right will result in the sensation of suffocation and loss of consciousness."
Posted by Mike Dorf