On the face of it, it's a bit surprising that Michael Mukasey's nomination as attorney general could fail over the issue of whether waterboarding is torture. The Senate Judiciary Committee did show considerable interest in the subject during his confirmation hearings, but you'd think members of Congress would be more offended by Mukasey's assertion that the Constitution authorizes the president to ignore the law when doing so is necessary "to defend the country." And if the concern is that the president will not so much ignore the law as reinterpret it to allow whatever he wants to do, Mukasey's suggestion that the NSA's warrantless wiretaps did not violate the Foreign Intelligence Surveillance Act (FISA) is more clearly wrong than his hedging about waterboarding.
In both cases, of course, Mukasey does not want to go on record as suggesting that the president or his underlings broke the law. The need to equivocate may be especially strong on the waterboarding issue, however, since Mukasey has said that if it is torture it is not only illegal but unconstitutional, "barred by the Fifth, the 14th, and the Eighth Amendments." If waterboarding somehow does not qualify as torture, it surely amounts to "cruel, inhuman, or degrading treatment," banned by the Detainee Treatment Act of 2005. During the hearings Mukasey acknowledged that the president is bound to obey that law, while he was decidedly less clear regarding FISA. Presumably he is worried about potential liability for interrogations that occurred before the Detainee Treatment Act was passed.
Then again, a month ago The New York Times reported that the Justice Department had secretly interpreted the Detainee Treatment Act to allow all of the CIA's post-9/11 interrogation techniques. Senators may be looking for assurances that Mukasey does not agree with that interpretation. But why are they more upset about Mukasey's refusal to say waterboarding is torture than they are about his apparent belief that the president is entitled to violate laws such as FISA? I assume it's because Congress already has acceded to the president's demands for warrantless surveillance authority but has not endorsed "coercive" interrogation techniques. That selective surrender, in turn, seems to be based on a judgment that torture is more un-American than allowing the government to monitor private conversations at will. But since the latter can lead to the former, especially when the government is determined to evade or ignore the law in the name of national security, there's no need to choose. We can have it all.