By leaving the definition of torture up to the Bush administration, Congress shirked an important responsibility to ensure the treatment of detainees in the war on terror meets U.S. and international standards. The results of that misstep have now come to light in reports that the Department of Justice secretly condoned the use of harsh methods, including simulated drowning, despite a congressional ban on such practices. Congress can fix its error by defining torture and finally prohibiting it.

The New York Times reported last week that the department had issued two memos, both secret, that said techniques such as painful physical and psychological tactics, extreme cold and water boarding, in which a detainee is made to feel he is drowning, were legal. The memos were written before Congress banned “cruel, inhuman and degrading treatment” in December 2005, apparently without informing lawmakers that the administration had made a determination counter to the law they were about to pass. The memos remain in effect.

Democratic leaders of the Senate Intelligence and Judiciary committees said they have asked for the department’s opinions on interrogation for more than two years. The memos were not turned over. They must be now.

One key element of the memos was clarification of whether the questionable techniques could be used simultaneously. The Justice Department in 2005 said they could, despite the objections of an assistant attorney general who warned the department would be ashamed when word of its approval was discovered.

Given the response from the department and White House – the boilerplate talk of doing everything legally necessary to prevent a terrorist attack – that shame has yet to take hold.

Worse, many experts say that torture is not effective. Torture results in less useful information than a humane and civilized approach.

The first opportunity to begin to resolve the matter is likely to be next week’s Senate confirmation hearings on President Bush’s nomination of Michael Mukasey as attorney general. As Sen. Susan Collins said last week, Mr. Mukasey should expect “tough questions concerning his commitment to the principles outlined in the Geneva Conventions, the Convention Against Torture, the Detainee Treatment Act, and the Military Commissions Act.”

As a judge, Mr. Mukasey rejected some of the administration’s grabs for power. Senators must know whether Mr. Mukasey would do so with regards to torture.

The memos are another part of the troubling legacy of Alberto Gonzales’ time as attorney general. In an effort to please the White House, he authorized torture and domestic spying and oversaw the firing of U.S. attorneys who were not loyal to the Bush administration. Senators must be assured that Mr. Mukasey will not continue this legacy. Clarifying the department’s stance on torture is a good place to start.

Then lawmakers should strengthen the Detainee Treatment Act and Military Commissions Act to bring the treatment of detainees in line with American laws and expectations.