President Bush's nominee for attorney general made an effort to patch things up with skeptical senators by explaining his view on the grey area between torture and safe boating practices.

"The key legal point here is that waterboarding is a technique that simulates drowning. If precautions are taken that give the subject reassurance he won't drown, then it's allowable. So we're talking personal flotation devices here. As far as I can tell, that'd make it okay."

On the other hand, he went on to explain, if the interrogators were playing a 'Soothing Ocean Sounds' CD so it seemed like they were at the beach, then it would - somewhat paradoxically - constitute torture.

"You see how tricky it can get. Any number of factors could mean its not torture. For example, usually the person who's waterboarding is in a reclining position. Normally that's a very relaxing posture, wouldn't you say? So we have to take that into account. It's not a very clear line between what is torture and what is not."

In a written statement, Mukasey called the practice "repugnant" and felt it "crossed the line" but went on to say that though he felt the same way about Britney Spears that does not make waterboarding - or Ms Spears - illegal.

He had angered Democrats in an earlier hearing by saying, "I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional."

(Alberto Gonzales experienced similar gaps in his knowledge when he appeared before Congress. See 'Gonzales Admits No Knowledge of Breakfast Pancakes')

He was pressed on the issue by Senator Whitehouse, whose asked, "Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping him down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning -- is that constitutional?"

In a flash of brilliance showcasing his juridical discernment to full effect, Mukasey concluded: "If it amounts to torture, it is not constitutional"

Which is, admittedly, an improvement over the thinking of Alberto Gonzales and John Yoo.