The White House, through Tony Fratto, states that Mukasey is being placed in an untenable position because he has to state whether or not waterboarding is torture. What? He is being asked, as the nominee for the Attorney General position, to make a legal determination. Does this determination have ramifications? Of course, but he has to make the determination anyway if confirmed. His options, if confirmed, will be to either continue the practice, discontinue the practice, or discontinue it and go after those who performed it. Regardless of which he chooses, it will represent his determination as to whether or not waterboarding is torture. Alternatively, if he continues the practice and believes it to be torture, it will represent his knowingly and willfully breaking the law.
In short, the untenable position the Democrats are placing Mukasey in is the position of having to do the job he has been nominated for. How horribly unreasonable of them. If anyone has made his job untenable it is the President who has claimed that waterboarding isn't torture and allowed the practice to continue.
Madison
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I agree with most of what you said. However, I quibble with your statement that the President has "allowed the practice to continue." To the best of my knowledge, the use of this form of torture is unconfirmed. The best we can say is that the President will not TELL Congress (or by extension, the American people) whether torture is occurring or what forms. However, I do agree with you that it seems reasonable for the Attorney general appointee to comment on whether a certain practice is legal or not.
If they haven't admitted it (I know they don't refute it) they basically did so here. The reason Fratto called it untenable is that admitting its torture would potentially put the careers (and liberty) of those who engaged in it in jeopardy. As AG he is required to uphold the law and thus would have to fire and prosecute those who engaged in it. Alternatively, he doesn't admit its torture and thus doesn't get the job. Hence the untenability.
Also, as Time puts it, "Some version of it is widely reported to have been used by U.S. interrogators in an attempt to extract information from high-level terrorism suspects in the wake of 9/11." Its not really disputable that Bush either actively or passively permitted the practice to continue.
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