Mukasey confirmed

Despite not declaring waterboarding illegal.

Captain Ed has some (comments )

Mukasey doesn't get to classify waterboarding as torture. As I have repeatedly pointed out, the AG and the DoJ don't get to write their own laws. Congress writes the laws, and the AG makes sure that they are enforced. Congress has explicitly forbidden the Pentagon to use waterboarding as an interrogation technique, but has not yet passed that same restriction on other agencies -- and until they do, any instance of waterboarding cannot be said to be explicitly illegal.

That is what makes the Post's description of Democratic angst so irritatingly ironic. The debate partly centered, according to this report, on the boundaries of executive power. Yet the Senate wants the AG to enforce laws Congress has not passed, which would be a rather obvious and objectionable expansion of executive power at the expense of the judiciary.

Congress does not want to take responsibility for restricting the options for time-critical interrogations. Many of these same Senators have thought what a future commission looking into a massive terrorist attack on the US might say if we had a member of the conspiracy in custody and failed to save hundreds or thousands of American lives through coercive interrogation techniques. They want to make sure that they don't have to answer for their choices in those circumstances as those involved in building "the wall" between law enforcement and intelligence agents did after 9/11. They like being in the position of demanding to know why dots weren't connected when they kept putting barriers between the dots themselves.

One person who taught SERE courses describes waterboarding as torture.

In his column at the Daily News, Nance wrote that "pint after pint" of water enters the lungs, and that the subjects actually start to drown. That description got disputed in two separate interviews I conducted, one with a former SERE instructor and another with a SEAL. The latter, whom I have known personally for years, explained why Nance's previous description made no sense. Mike's secondary specialty in the SEAL force is as an advanced combat medic. Without getting into specifics on his experiences, Mike strongly disputes Nance's exaggerations of waterboarding. There is a word for people who have "pint after pint of water" filling their lungs: dead.

Remember, waterboarding is (or at least has been) part of SERE training for our own soldiers. If they were being subjected to such a lethal technique, I have to imagine someone would have spoken up and put a stop to it. We don't like killing off our soldiers during training.

However, Nance's testimony highlights exactly why Mukasey had to answer as he did. If waterboarding under all circumstances is torture, then we torture our own soldiers. Will Mukasey prosecute SERE instructors, too? Or does it demonstrate that context and circumstances make a difference when deciding whether an ambiguous standard has been violated?

In addition, if SERE is legal, it implies SERE uses a form of waterboarding that is not torture. That means there are at least two procedures, both called "waterboarding", at least one of which is not torture. Mukasey is being perfectly reasonable in refusing to say whether "waterboarding" is torture until he knows which form of "waterboarding" is being discussed.