Friday, February 01, 2008


Schrodinger's Drowned Cat

So, when the Congressional Democrats went ahead and approved Mukasey for AG, they swore they'd get an answer out of him as to whether or not waterboarding could be considered torture. As to why they didn't do this before hand... well, it's not like they run the place, right?

Oh. Right.

Anyway. Mukasey was called before Congress to give his answer. And it ain't pretty:

MUKASEY: With respect, I don't think that's what I'm saying. I don't think I'm saying it is simply a relative issue.

There is a statute under which it is a relative issue. 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 as against the cost of doing it.

BIDEN: When you say "against the cost of doing it," do you mean the cost that might occur in human life if you fail to do it?


BIDEN: Do you mean the cost in terms of our sensibilities and what we think is appropriate and inappropriate behavior as a civilized society?

MUKASEY: I chose the wrong word.

I meant the heinousness of doing it, the cruelty of doing it, balanced against the value.

BIDEN: Balanced against what value?

MUKASEY: The value of what information you might get.

BIDEN; That's what I thought you'd say.

MUKASEY: And in one of your hypotheticals, there was getting some historical information or some other information that couldn't be used to save lives.

And one wouldn't have to go to the question of whether that was torture or not to level to find it would shock the conscience to do it in those circumstances.

So, basically, we don't know if waterboarding is torture unless we use it on someone and they spill like a pinata. Which apparently means that it's okay to use torture, because there's a good chance it might save a life, making this the 1,245th recitation of the "ticking time bomb" fallacy by someone who should know better.

Way to go, Congressional Democrats. You sure picked a winner.

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