The nation's intelligence chief says that waterboarding "would be torture" if used against him, or if someone under interrogation was taking water into his lungs.

But Mike McConnell declined for legal reasons to say whether the technique categorically should be considered torture.

"If it ever is determined to be torture, there will be a huge penalty to be paid for anyone engaging in it," the director of national intelligence told the New Yorker in this week's issue, released today.

Hence the primary reason why that determination is not soon in coming. There's a secondary reason as well. The administration that determines waterboarding is torture, with the legal ramifications that would follow, severely damages its relationship with the CIA. Waterboarding was not something that officers in the Directorate of Operations were itching to do. It was something that George Bush, Dick Cheney, Alberto Gonzales, David Addington, John Ashcroft and John Yoo gave them the legal authority to do, with George Tenet's concurrence. A significant cohort with CIA understood that the Bush administration -- like administrations past and future -- would sell them out if public outrage over interrogation/detention/rendition boiled over. It should be said that the administration hasn't, but some in CIA reply: just you wait.

Once waterboarding is torture and the investigations open, CIA officers will be demoralized, fearful and unsure about what other stuff they've been told to do will be rewarded by indictments. They will watch their colleagues face jail time, as Jose Rodriguez might, while John Yoo leisurely strolls the Boalt Hall campus. And they will harbor a deep resentment toward both the administration that got them into this mess and the administration that pulled the trigger on prosecution. The consequences, at a minimum, are a traumatized and (sorry to use this cliche) risk-averse CIA.

If you're the attorney general, and you have the option of not deciding that waterboarding is torture while also not affirming that it isn't -- and thereby avoiding this whole nightmare -- that option looks mighty attractive. And if you're that attorney general's successor, and you have the option of not reversing his finding, that option looks mighty attractive, too. I write this not as an endorsement of any of the above reasoning, but merely to lay out where things stand.