Instead, he says that he has not yet been briefed on classified interrogation practices, so he can't make a definitive determination. Even if it's not torture, it might be illegal as "cruel, inhuman or degrading treatment." The Supreme Court has ruled that the standard for defining such treatment is whether it "shocks the conscience," and determining that depends on the circumstances. And there's the rub.
Even Democrats like Bill Clinton and scourges of torture like Sen. John McCain say it is acceptable to torture someone in a "ticking bomb" scenario. Real life doesn't produce the kind of a-nuke-is-about-to-go-off scenarios featured on the television drama "24." The closest we are likely to get is the capture of high-level al-Qaida operatives like Khalid Sheikh Mohammed with knowledge of ongoing plots. Should we have tortured KSM? No. But we waterboarded him and that reportedly helped roll up al-Qaida terrorists around the world.
Circumstances matter. If we were waterboarding political dissidents, Sen. Whitehouse would be right to compare us to Saddam Hussein. If interrogators were waterboarding KSM every morning for their own amusement, that would shock the conscience. But not many consciences will be shocked at subjecting him to 90 seconds of uncontrollable panic to get information that might save lives.
If the Senate disagrees, it should put itself clearly on record forbidding waterboarding. Otherwise, it should confirm Mukasey as the careful legal mind he has shown himself to be throughout his career and during this controversy.