Mukasey, Giuliani, and the banality of evil

Sandy Levinson

It has been noted that Attorney General-designate Mukasey has been quite close to Giuliani over the years (enough so that he has apparently agreed to recuse himself in any matters that might involve Giuliani, such as his involvement with Bernard Kerick). So it is interesting to look at Giuliani's response last week to a question about waterboarding and torture (a response for which Sen. John McCain has commendably berated the former mayor). Thus the NY Times reports that in an Iowa debate on Oct. 25,

Mr. Giuliani said . . . that he favored “aggressive questioning” of terrorism suspects and using “means that are a little tougher” with terrorists but that the United States should not torture people. On the question of whether waterboarding is torture, however, Mr. Giuliani said he was unsure.

“It depends on how it’s done,” he said, adding that he was unsure whether descriptions of the practice by the “liberal media” were accurate. “It depends on the circumstances. It depends on who does it.”

This answer would be an F in any self-respecting first-year course in law or logic. There are those who defend the propriety of torture in extreme circumstances, but the point is that they recognize that they are DEFENDING TORTURE, not saying that if it is justified (because of ticking bombs or whatever) it is not really torture at all. For all of the criticism that Alan Dershowitz has received with regard to his proposal for "torture warrants," he never denies for an instant that what he is potentially defending is the infliction of torture. That cannot be said, of course, of the Administration or those, like Giuliani, who would like to succeed Mr. Bush in the White House. In any event, whether waterboarding is torture does not in the least “depend on the circumstances” or on “who does it,” unless one wishes to discuss the very particular circumstance of Americans who are waterboarded as part of their own training in potential methods of interrogation by (presumably unscrupulous) adversaries. As to this, every American(beginning with Mr. Mukasey) has a duty to read a remarkable posting by Malcolm Nance that should truly be the last word on the ontological status of waterboarding. And, of course, whatever else may be the case, the victims of such training know full well that they are not in fact going to be put to death by their fellow Americans. It is simply frivolous to say that there is an equivalence between “waterboarding by one’s comrades” and “waterboarding by one’s adversaries.”

By wait, alas, there’s more. “In his remarks in Iowa, Mr. Giuliani also criticized Democrats who call sleep deprivation torture. ‘They talk about sleep deprivation,’ he said. ‘I mean, on that theory, I’m getting tortured running for president of the United States. That’s plain silly. That’s silly.’

Anyone capable of saying this is more than silly. Indeed, there is something terminally unserious--dare I say even "evil"--about such a response. It represents, at best, a kind of casual arrogance that has no trouble endorsing evil because one quite literally doesn’t wish to become informed about what is under discussion. Hannah Arendt's phrase "the banality of evil" has sometimes been run into the ground, but I believe it's merited with regard to the former Mayor's (and would-be future President's) stupid comment. As Menachem Begin himself wrote of his own sleep deprivation at the hands of Soviet agents in the 1930s, sleep deprivation is perhaps the most severe form of torture with regard to actually breaking down the defenses of the object of the interrogation. Perhaps next Mr. Giuliani would like to brush off the use of castor oil by agents of Mussolini on the grounds that children, after all, are sometimes given castor oil as legitimate medical treatment. And so on.

Of all of the Republican candidates for the presidency, I fear Rudolph Giuliani most insoar as I believe he is the most truly authoritarian. I have no reason to believe that Mr. Mukasey shares that personality structure, but I do fear that he is as obtuse as his friend an political ally Mr. Giuliani in being able to recognize what is at stake with regard to giving a truthful assessment of waterboarding. I now believe it is vitally important that Mr. Mukasey's nomination be defeated. To let him become Attorney General is just to collaborate with the Orwellian obfuscation that has corrupted our language as well as our politics. I have far more respect for Alan Dershowitz, whose position I ultimately reject, than for those who say "the US does not torture" without being willing to confront what the US (and, of course, its allies in "renditions") are known to have done (and, for all we know, may be prepared to do in the future).