Before the Senate Judiciary Committee gives a green light to Michael Mukasey, President Bush's nominee for attorney general, its members are rightly questioning him on crucial issues. But on the inhumane practice of waterboarding, an interrogation technique that simulates drowning, Mukasey refuses to answer whether he believes it is a form of illegal torture.

The question puts Mukasey in a complicated position. If he declines to answer, Senate Democrats will point to this as a weakness and likely vote against his nomination. But if Mukasey acknowledges that waterboarding is illegal, he opens up a can of worms for the Bush administration, paving the way for criminal prosecution or lawsuits against CIA officers who used the brutal practice, and those who authorized it, according to legal analysts.

The president spoke out in defense of Mukasey, saying the question was unfair and that some people may have "lost sight of the fact that we're at war."

The fact that senators are questioning a potential attorney general on torture does not diminish the nation's somber awareness that we are at war.

Numerous reports have revealed torture-like treatment of detainees held in Guantanamo Bay. The site was opened in 2002 to hold terrorism suspects, who have been denied their right to habeas corpus. And let's not forget Abu Ghraib prison.

Yes, we are at war. But we are still a nation that preaches human rights and the principles of the Constitution to the global community.

For the U.S. to prove it practices what it preaches, it must give the detainees in Guantanamo Bay their right to due process. And on questions of torture, no elected leader — or potential leader — should get a free pass.