By showboating their opposition to this technique, the senators are placing Mukasey in an impossible position. If he declares that the practice is torture then he may be putting the interrogators who used it (on advice from the Justice Department) in legal jeopardy. And in light of the confused and vague nature of the law, Mukasey would need access to classified information about exactly what was done in order to reach a judgment on its legality. It would be irresponsible of him to opine on the matter based only on rumors in the newspapers of what may have been done to specific detainees.
This is a deadly serious issue that demands thoughtful consideration from every American and particularly from elected officials. In a war not against massed armies or nations but against small cells of terrorists, interrogation is a key weapon. It's so easy to, in John McCain's words, "take the moral high ground" and denounce any sort of torture under all circumstances. But is it really the moral high ground?
We can all agree that under normal circumstances, harsh techniques are neither desirable nor necessary. But what about the ticking time bomb scenario? If we were to capture a key al Qaeda operative who we had strong reason to believe had knowledge of a dirty bomb buried under an American city, and we had only hours to get information out of him, would it be morally correct to waterboard and possibly save hundreds or thousands of lives, or to refrain? Anyone who claims that the answer is obvious hasn't really thought it through. And for those who object that a person under duress will say anything, the question is, won't that "anything" include the truth?
Nor is the argument that permitting waterboarding will "free up" our enemies to do the same to our people convincing. They tend to string up or behead the Americans they capture. Waterboarding would be an unqualified improvement.
Congress could have debated these matters but declined. Now senatorial moral preening may derail an excellent nominee. The country will be ill served if that happens.