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SEN. SHELDON WHITEHOUSE (D-R.I.): So is waterboarding constitutional?

MR. MUKASEY: I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.

SEN. SHELDON WHITEHOUSE (D-R.I.): If water-boarding is constitutional is a massive hedge.

MR. MUKASEY: No, I said, if it’s torture. I’m sorry. I said, if it’s torture.

SEN. SHELDON WHITEHOUSE (D-R.I.): If it’s torture? That’s a massive hedge. I mean, it either is or it isn’t. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning — is that constitutional?

MR. MUKASEY: If it amounts to torture, it is not constitutional.

SEN. SHELDON WHITEHOUSE (D-R.I.): I’m very disappointed in that answer. I think it is purely semantic.

MR. MUKASEY: I am sorry….

The United States Government, as a participant in the following proceedings, long ago determined that waterboarding constitutes torture. On Monday, December 16, 1946 the prosecution in the International Military Military Tribunal for the Far East [Tokyo War Crimes Trial] introduced an affidavit describing the treatment of internees at Changi Prison (numbers in brackets indicate the transcript page number):

[12,936]…57 internees were removed from Changi prison by the Military Police on or after 10 October 1943…..The Japanese were trying to establish that there was a spy organization in Changi prison which received and transmitted by radio telephony, which had established contacts in the to[w]n for the purpose of sabotage and [12,937] stirring up of anti-Japanese feeling, and which collected money from outside for this purpose. In fact, there was no spy organization, no radio transmission, and no attempt to promote anti-Japanese activities outside the Camp…

[12,939]…Usually interrogation started quietly and would so continue as long as the inquisitors got the expected answers. If, for any reason, such answers were not forthcoming, physical violence was immediately [12,940] employed. The methods used were:
(1) Water Torture [emphasis supplied]. There were two forms of water torture. In the first, the victim was tied or held down on his back and a cloth placed over his nose and mouth. Water was then poured on the cloth. Interrogation proceeded and the victim was beaten if he did not  reply. As he opened his mouth to breathe or to answer questions, water went down his throat until he could hold no more…

The judgment of the tribunal includes the following:

[49,664]…To indicate the prevalence of torture and the uniformity of the methods employed we give a brief summary of these methods.

The so-called “water treatment” was commonly applied. The victim was bound or otherwise secured in a prone position….

….There was evidence that this torture was used in the following places….

The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the far East in Twenty-two Volumes, New York: Garland Publishing, 1981.

I’m sorry, too, Judge Mukasey. For different reasons. If you don’t know what constitutes torture you can try reading sixty year old transcripts.