Mukasey Shocks Biden’s Conscience

January 30, 2008 11:12 a.m.

Michael Mukasey finally got into the nitty gritty of how he thinks about torture, and he seemed to finally show his hand.

Sen. Joe Biden (D-DE) said that he’d been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden — the Jack Bauer scenario — but not OK to waterboard someone for more pedestrian information?

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.”

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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.”

Update: Here’s the transcript:

BIDEN: General, I’m a little confused. And I don’t want to go into whether waterboarding is torture or not. I want to understand, sort of, the methodology you use in trying to — because some of what you say — maybe it’s just that I’m a little slow — doesn’t seem to make a lot of sense to me about this issue of waterboarding.

When you boil it all down, in the answers I’ve heard today and what I’ve read of what you’ve submitted, it appears as though whether or not waterboarding is torture is a relative question. Where it’s not a relative question whether or not you hung someone by their thumbs from a — you know, or you stuck someone, you know, hung them upside down by their feet in an inordinate — I mean. But you talk about waterboarding in relative terms.

For example, am I getting it right? If waterboarding — if a person in the government, CIA or any government agency, engaged in waterboarding of a captured prisoner and the purpose of it was because they believed that prisoner knew where there was a nuclear weapon hidden about to be detonated in the city of Washington, then that might be OK, but if they just waterboarded them just to find out whether or not they — where they purchased their airline ticket, that might not be OK. That’s what it seems like you’re saying.

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.

BIDEN: Well, I do understand it then.

So, the shocking of the conscience is, again, where the relevance comes in. If the purpose of the waterboarding was to, you know, save humanity from 20 nuclear weapons going off, that’s one thing. If the purpose of the waterboarding was to find out who the commanding officer of that individual was, that’s another thing.

I’ve never heard the statute — I’ve never heard torture referenced in those ways. I never heard…

MUKASEY: That’s not in the torture statute.

BIDEN: Well, I’ve never heard any discussion of shocking the conscience in those ways.

I didn’t think shocking the conscience had any relationship to the end being sought. I thought shocking the conscience had to do with what we consider to be basic societal values, things that we held dear, what we consider to be civilized behavior.

You’re the first person I’ve ever heard say what you just said.

Now, I’d be delighted — and I don’t want to pursue this unless you do — I’d be delighted to have your staff at the Justice Department give me anyone else who in the past has referenced the discussion of shocking the conscience in the context you just referenced it.

I find it to be fairly unique. Matter of fact, it shocks my conscience a little bit. But I find it — I’ve never heard that discussion.

You know, you and I went to law school. I went to a Catholic school where I had to take two semesters in high school — two periods a day of Latin, and I remember Cicero, too, although I — even as an altar boy, I forget my Latin.

BIDEN: But the truth of the matter is, I just never heard the issue of torture discussed in — or what constitutes torture, which is defined by shocking the conscience, in terms of the relative benefit that might be gained from engaging in the technique. I find that pretty — none of the Aristotelian logic I was trained by ever got me there. I don’t understand that premise.

But at any rate, let me move on.

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