Torture as Technicality

I confess that I did not follow last week's confirmation hearings of Michael Mukasey to be attorney general.  But I am disturbed at his evasiveness on the question whether waterboarding constitutes torture.  David Luban comments:

Aren’t we tired of evasion? The legal formula "severe physical or mental pain or suffering" is NOT an arcane lawyer’s term of art. It’s not an old Latin phrase or a medieval term like "replevin" or "assumpsit". All the black arts of the Bush torture lawyers have been bent to one end: pretending that there is something arcane and complicated about the words "severe physical or mental pain or suffering." Something that only a brilliant lawyer with fancy credentials can figure out.

The fact is, there is no rich technical jurisprudence on the meaning of those words, and only scoundrels pretend that there is. The legal definition of torture is just twenty years old, and - to say the least - torture cases raising the issue of where to draw the boundary between "severe" and "not severe" aren’t popping up on the dockets of courts the world over like slip-and-fall cases. This isn’t a question for lawyers. This is a question of common sense. Let’s stop being ridiculous.

So: does waterboarding inflict severe suffering? If you want to do a quick, common-sense reality check, try this. Blow all the air out of your lungs. Then stare at your watch and try not to inhale for ninety seconds by the clock. Then take one quick half-breath and immediately do it again. Now imagine that you’re tied down while you’re doing it and water is pouring over your head and rolling up your nose. Or, if you’re really ambitious, get in the shower and turn it on and try the same hold-your-breath-with-no-air-in-your-lungs experiment with your head tilted up and the water pouring up your nose. Then decide for yourself whether it’s severe suffering.

Which is worse: having a President who obfuscates the clear meaning of terms in order to avoid accountability for personal moral failings, or having a President who does so in order to avoid accountability for morally flawed policy permitting the state's abuse of the human person?  Whatever good the Bush Administration has done on certain issues of importance to human dignity, can anyone reasonably dispute that the lack of clarity and courage on the issue of torture is a black mark on its record?