Judge Michael Mukasey admits waterboarding is repugnant, but refuses to say whether it amounts to torture. Yet Democratic Sens. Charles Schumer and Dianne Feinstein voted for his confirmation as U.S. attorney general anyway. Mukasey, Schumer and Feinstein should talk to French journalist Henri Alleg. An editor of a paper in Algeria, he was waterboarded by the French military in 1957, when the French were trying to crush the Algerian independence movement. The 86-year-old journalist spoke to me from his home in Paris:
"I was put on a plank, on a board, fastened to it and taken to a tap [water faucet]. And my face was covered with a rag. Very quickly, the rag was completely full of water. You have the impression of being drowned. And the water ran all over my face. I couldn't breathe. It's a terrible, terrible impression of torture and of death, being near death."
Journalist Stephen Grey, whose documentary "Extraordinary Rendition" airs on PBS stations this week, told me: "I, like many journalists, should issue a correction, an apology really, because we all reported waterboarding as a simulated drowning. It is clear from those who did it, this is actual drowning ... this is something that shocks the conscience and therefore is torture."
In a remarkable demonstration of commitment to his job, former acting Assistant Attorney General Daniel Levin, according to ABC News, underwent waterboarding when tasked by the White House to rework its official position on torture in 2004. Concluding that waterboarding is torture, he was forced out of his job.
On Monday, Nov. 5, anti-torture activists engaged in an actual demonstration of waterboarding outside the Department of Justice. Twenty-six-year-old actor Maboud Ebrahimzadeh volunteered to be the victim. After the session, he was near tears: "It is the most terrifying experience I have ever had. And although this is a controlled environment, when water goes into your lungs and you want to scream and you cannot, as soon as you do you will choke."
Four retired military judge advocates general wrote a letter to Senate Judiciary Committee Chairman Patrick Leahy stating, "Waterboarding is inhumane, it is torture, and it is illegal." Twenty-four former intelligence agents and analysts agreed with the JAGs, adding, "Whether or not the practice is currently in use by U.S. intelligence, it should in fact be easy for him to respond."
Yet Mukasey told the Senate Judiciary Committee, "I don't know what's involved in the technique, if waterboarding is torture."
In the Judiciary hearing when the votes were cast, Leahy said: "No senator should abet this administration's legalistic obfuscations by those such as Alberto Gonzales, John Yoo and David Addington by agreeing that the laws on the books do not already make waterboarding illegal. We have been prosecuting water torture for more than 100 years."
U.S. soldiers have been prosecuted for participating in waterboarding in the Philippines in 1901 and Vietnam in 1968. The U.S. imprisoned a Japanese officer in 1947 for using waterboarding against U.S. troops in World War II.
Sen. Edward Kennedy added: "Make no mistake about it: Waterboarding is already illegal under United States law. It is illegal under the Geneva Conventions, which prohibit 'outrages upon personal dignity,' including cruel, humiliating and degrading treatment. It is illegal under the Torture Act, which prohibits acts 'specifically intended to inflict severe physical or mental pain or suffering.' It is illegal under the Detainee Treatment Act, which prohibits 'cruel, inhuman or degrading treatment.' And it violates the Constitution." He went on: "Waterboarding is slow-motion suffocation with enough time to contemplate the inevitability of blackout and expiration-usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch, and if it goes wrong, it can lead straight to terminal hypoxia. When done right, it is controlled death."
Republican Sen. Arlen Specter, who voted for Mukasey's confirmation, said Congress should pass a law forbidding waterboarding, having received assurances from Mukasey that he would uphold such a law. What if President Bush vetoed the law, or if he issued one of his signing statements used to sidestep bills he signs into law?
Despite all this, Schumer's and Feinstein's votes for Mukasey mean the Judiciary Committee has voted 11 to 8 to recommend his appointment as attorney general to the full Senate. From war funding to torture, you have to ask, If the Republicans were in the majority, would there be any difference?
Now only the full Senate can block Mukasey's appointment. Maybe at least one senator will step up and filibuster the confirmation, just long enough for Mukasey to research and announce his opinion on whether waterboarding amounts to torture. If a U.S. citizen, soldier or official were waterboarded somewhere overseas, would Americans hesitate for a moment to call it torture? A filibuster might give the Mukasey supporters like Schumer and Feinstein pause to reconsider. For starters, they should talk to Henri Alleg.