As regards waterboarding, whether it's torture or not isn't clear. Waterboarding doesn't endanger a life and it does no physical damage to the human body. On the other hand, plucking out eyes, pulling off fingernails and burning testicles does. With waterboarding, the tortured merely get wet. Whether waterboarding does psychological damage isn't yet known, or proven. We have only the testimony of irrational Bush haters, such as the LAT, on that question.
Anyhow, Mukasey wasn't testifying on those questions. He was merely saying he thought it was inappropriate to issue a legal opinion based on hypothetical facts. A careful lawyer should take that approach.
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