Musings on Mukasey, Waterboarding

According to our West Coast newspaper of record, the nomination of Judge Michael Mukasey (photo at right) for Attorney General is in trouble. Yesterday, two more Democratic Senators on the Judiciary Committee, Assistant Majority Leader Richard J. Durbin of Illinois and Rhode Island Sen. Sheldon Whitehouse, vowed to fight his nomination. In addition to Durbin and Whitehouse, Sen. Joseph R. Biden Jr. (D-Del.) has said he will not support the nomination. The other Democrats on the panel -- Sens. Dianne Feinstein of California, Charles E. Schumer of New York, Patrick J. Leahy of Vermont, Edward M. Kennedy of Massachusetts, Herb Kohl and Russell D. Feingold of Wisconsin and Benjamin L. Cardin of Maryland -- are officially undecided.

Shumer's position is particularly precarious, because he publicly recommended Judge Mukasey's nomination. Glen Reynolds at Instapundit quips, "I guess Schumer's too far-right for today's Democratic Party!"

And what is the scandal that has turned three Democratic Senators against a nominee whose qualifications they all concede? Judge Mukasey refused to state at his confirmation hearings that waterboarding is torture and therefore illegal. His reason for refusing to make such a categorical statement seems impecably sound to me. By declaring waterboarding to be illegal under all circumstances, the nation's future chief law enforcement official would be declaring, without any factual context as guidance, that numerous military intelligence and CIA personnel have committed criminal acts, exposing them to prosecution. That is not a judgment to be made in the abstract in the rarified air of a Senate committee hearing. Judge Mukasey is adhering to a principled stance even if it costs him the post of Attorney General; which by my lights amply qualifies him to be Attorney General.

About a year ago, Fox News reporter Steve Harrigan voluntarily underwent waterboarding to assess what it was. You can see his report here at HOT AIR. Harrigan readily admits the experience was devastingly unpleasant and that he does not know how any interogee could experience it for more than a few minutes without cracking and agreeing to talk. However, he also notes that withint a few minutes after a waterboarding session, he felt fully recovered, and that when done in the way it was done to him, the subject does not suffer any physical harm. Of course, it no doubt also can be done in a way that would cause serious physical harm. But that fact only points up the danger of generalizing regarding the interrogation practice. The fact that a technique is extremely unpleasant and effective does not automatically make it toture or unlawful under all circumstances, as Judge Mukasey recognizes, but the Democrats seem to miss.

A note of personal disclosure and a closing observation: Michael Mukasey, like Senator Joe Lieberman and like the Kosher Hedgehog, is a Torah-observant Jew, of the Modern Orthodox school of thought. Judge Mukasey is a graduate of Ramaz, one of our nation's foremost yeshiva day schools and high schools, located on the Upper East Side of Manhattan. First Senator Lieberman, and now Judge Mukasey seem to be having a hard time with the present-day Democratic party. I believe there is a philosophical reason for that, beyond mere Democratic politicking.

Torah observance is all about living according to Jewish law, halachah, which governs not only ritual matters, but all aspects of life. Deciding issues of Jewish law demands the application of hard-headed rational analysis to the specific facts of a specific case. Emotional responses and generalities are antithetical to halachic resaoning. The American legal training of both Senator Lieberman and Judge Mukasey further reinforced that outlook. While emotionally-based generalizations are not unknown among conservatives (see, e.g., Ann Coulter), Dennis Prager has aptly noted that the predominance of emotion over reason exemplifies modern liberalism. Therefore a clash of world views between Torah-observant Jews and the dominant left-wing of the Democratic Party is perhaps inevitable.