Under prevailing [constitutional law] precedents--some of which I disagree with--the court must examine the nature of the governmental interest at stake, and the degree to which the government actions at issue shock the conscience, and then decide on a case-by-case basis. In several cases involving actions at least as severe as waterboarding, courts have found no violations of due process.Dershowitz's point is that the Democrats will lose the next election if they're perceived as soft on national security.
The members of the judiciary committee who voted against Judge Mukasey, because of his unwillingness to support an absolute prohibition on waterboarding and all other forms of torture, should be asked the direct question: Would you authorize the use of waterboarding, or other non-lethal forms of torture, if you believed that it was the only possible way of saving the lives of hundreds of Americans in a situation of the kind faced by Israeli authorities on the eve of Yom Kippur? Would you want your president to authorize extraordinary means of interrogation in such a situation? If so, what means? If not, would you be prepared to accept responsibility for the preventable deaths of hundreds of Americans?
November 7, 2007
"Michael Mukasey... is absolutely correct... that the issue of 'waterboarding' cannot be decided in the abstract."
Writes Alan Dershowitz.