If being hoist on your own petard is an illustration of your bad acts coming back to haunt you, is being hoist on somebody else's petard a form of torture? You can mull on that if you wish, but don't ask Michael Mukasey - he hasn't been briefed.
Robert Farley (somewhat crudely) explores the question of whether it is necessary to be briefed before you can identify something as torture, but I saw something else in Bush's remarks:
I believe that the questions he's been asked are unfair; he's not been read into a program - he has been asked to give opinions of a program or techniques of a program on which he has not been briefed.This comment to me says one of two things: Bush is stupid, or Bush thinks that a majority of the American people are stupid. Do you need to be briefed to know that being given a hot meal and a pillow to sit on is not torture? Do you need to be briefed to know that having your joints smashed with a sledgehammer is torture?
If Bush is trying to make the case that waterboarding falls into a nebulous middle ground, such that there are legitimate questions as to whether or not it is torture, he should make that case. Apparently even Bush's best speechwriters can't find a way to make a purse of that pig's ear. As he can't make an honest case, (like usual) he treats the American people like a herd of mindless sheep, willing to (continue to) lap up his deceptions and evasions. And many seem happy to do so.
The Washington Post, which has been squarely in the Mukasey camp since day one, argues,
It is extraordinary that a man who rightly would have been confirmed with overwhelming support had he been President Bush's first nominee for attorney general may now be denied that post in the waning months of the administrationWell, here's something to consider - does anybody think that Mukasey would have evaded the question of whether waterboarding was torture back in early 2001? If he was asked a question as to whether under his leadership the Justice Department would investigate credible allegations that a federal law enforcement agency had waterboarded suspects, would he truly have said "no", or "I have to check to see if that's an acceptable form of interrogation"? And if he had, would his nomination not have gone down in flames?
The difference, of course, is that the Bush Administration has waterboarded suspects, and thus the necessity of evasion - if Mukasey answers in a manner consistent with past American policies, legal and military precedent, and common sense, he could be categorizing those past actions as crimes. If he answers "no", even John "Let him answer that question after he's confirmed" McCain might have to break down and vote against him.
Bush's implied threat that he won't send another potential nominee to Congress if Mukasey isn't approved? That to me sounds like reason to reject Mukasey. If Bush is that confident that Mukasey, fully briefed and informed on waterboarding, will either come down on the "no, it's not torture" side of the debate, or will otherwise sweep the issue under the carpet, suggests that Mukasey is being dishonest with Congress. It also reveals a Bush litmus test for candidates - "You can't say that waterboarding is torture", as otherwise he wouldn't have much difficulty coming up with an alternate nominee. Sending a succession of people as evasive on the subject as Mukasey would simply serve to highlight the Bush Administration's mendacity on this subject. (Which, as Glenn Greenwald points out, is not to say that Congress is much better.)
If Bush were an honest man, a courageous man, or a man of integrity, he would stand behind his actions and either declare that waterboarding is not torture, or that during its period of use he believed it was necessary to use torture as part of his "War on Terror". Don't hold your breath.