This may be the most revealing bit of Michael Mukasey's testimony today: Whether waterboarding is torture, the attorney general says, requires a balancing test of the costs v. the benefits.
So there you have it. In the view of the Justice Department, there is no categorical prohibition against the torture of detainees, even under the Detainee Treatment Act.
From a more detailed report by Paul Kiel:
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."
I believe we have reached some kind of nadir here. The only bright side is, we can only get better when we remove the heinous human beings from any position where they wield power and influence.
I believe these people have stared far too long in to Nietzsche's abyss, and that abyss has not only stared back, but captured them in toto. How sad for us. How horrible that such people call themselves American officials.
UPDATE: I should have read on a bit, because just after publishing this, I came across this from digby, who uses the same source, adding a thought I have had myself.
I honestly don't know why everybody's so hung up on waterboarding specifically at this point. If this is their legal understanding, then they can use the rack, they can break arms and legs and they can pull teeth out with a pair of pliers. There is no logical difference between any of that and waterboarding if the only moral and legal guideline is that "it might be used to save lives."
