Tortured Answers

By Massimo Calabresi

George W. Bush has always wielded moral clarity as a weapon. Now Democrats are struggling to turn that weapon against him. Bush's nominee to be Attorney General, Judge Michael Mukasey, was a shoo-in until veteran Illinois Senator Dick Durbin asked him a deceptively simple question: Is waterboarding torture? Waterboarding, you may remember, is the practice of holding someone down and pouring water over his face until he thinks he's drowning. U.S. interrogators allegedly used some version of the technique on high-level terrorism suspects after 9/11. Current and former U.S. military leaders, human-rights organizations and prominent Republicans have no problem declaring it torture and therefore illegal.

Even Mukasey said at his confirmation hearing that it's "not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else." But when Democrats asked for clarification in writing, the answer he gave on Oct. 30 dodged all the big moral and legal questions. He couldn't call waterboarding illegal, he wrote, because he doesn't know whether the U.S. has used it and doesn't want to give America's enemies insight into U.S. techniques.

A hedge on such a fundamental question would seem like a gift to Democrats eager to paint the Bush Administration as torture-happy. But the answer actually has Dems in a tight spot. To take a hard line against torture, they have to vote against an otherwise qualified candidate. A lot of centrists will rightly argue that no nominee is likely, with partial knowledge, to denounce a technique the boss may have approved. If Democrats approve Mukasey, though, they will have handed Bush a double victory: they would confirm his candidate and compromise their own moral clarity in the process.