So Mukasey Doesn't Know If Waterboarding Is Torture? Please.

The United States Senate at last has an opportunity to take a principled stand on the government's use of torture. The Senators should seize it. Pressed in hearings last week to say if "waterboarding" were constitutional, Michael Mukasey, President Bush's nominee for attorney general, evaded the question. Refusing to approve Mukasey's nomination would signal to Americans and the world that the continued equivocation on whether or not America tortures its prisoners must end.

The Bush administration has consistently denied that American interrogators have used torture to extract information from its detainees. Yet just as consistently secret memos and eye witness accounts have indicated that the C.I.A. has used various "enhanced interrogation techniques." Among those most often mentioned are sleep deprivation and water-boarding. Torturing the truth as well, White House spokespersons routinely reply to questions about these techniques with the blanket assertion, "we don't torture."

Unhappily Mukasey, a distinguished New York judge, joined the chorus of evasion before the Senate Judiciary Committee last Friday. Asked by Rhode Island Senator Shelton Whitehouse about the constitutionality of waterboarding, Mukasey said that he didn't know what was involved in that technique. After Senator Whitehouse detailed how victims of waterboarding were made to think they were drowning, Judge Mukasey non-commitally repeated that if it was torture it was unconstitutional.

Senator John McCain, who was tortured when a prisoner during the Vietnam War, has no trouble calling waterboarding "very exquisite torture." Senator McCain is the most vocal opponent of the government's shifting stance on interrogation techniques. Evoking his five years of captivity, he has repeatedly told audiences how he comforted himself with the knowledge that his government did not do the awful things his captors did.

Waterboarding has the kind of history you would expect. Used during the Inquisition to extract confessions, it reappeared in the 2nd World War when Japanese and Germans tortured their prisoners. More recently it has been associated with the Khmer Rouge.

Anti-terrorists hawks like Vice President Richard Cheney sanction waterboarding as a "no-brainer" if information gained could save American lives. This ends-justifies-the- means rationale neatly ignores the fact that among our detainees are dozens of innocent people swept up in raids on suspected terrorists.

Many experts have stressed the ineffectiveness of torture in gaining critical information. Victims of torture will say almost anything to stop their pain. Others have pointed to the threat our use of torture poses for future American prisoners of war.

Most important, torture is wrong. Most people feel this. If their government does it, they'd rather not know. But this convenient ignorance won't help us now. We are choosing someone to head our Justice Department at a time when justifications for torture figure prominently in the ethical lapses that must be righted in that department.

Accepting torture as another casualty in the war against terrorists is to give up on the ideals we cherish as Americans. The torture issue is promoting fatalism, cynicism, and despair, all toxic corrosives of our national spirit.

It's hard to tell from his testimony whether Judge Mukasey suffers from a lack of courage or of candor. But he can longer plead ignorance, for the ten Democrats on the Senate Judiciary Committee have just sent him a detailed description of waterboarding along with the question: Is the use of waterboarding, or inducing the misperception of drowning, as an interrogation technique illegal under U.S. law, including treaty obligations?

Despite this encouraging display of support for American principles, they and their senate colleagues still seem predisposed to approve of the Mukasey's nomination when they should be sending a clear signal that the government's use of torture is unacceptable and that no candidate for the highest law enforcement post in the country can be approved without categorically disavowing the legitimacy of known torture techniques. But they probably won't until they hear from us.