Why can't we just all admit it -- Congress lacks the courage to outlaw waterboarding.
Republicans won't do it because they then will have to admit they were wrong.
Democrats won't do it because they expect the next president to be a Democrat and they do not want to look soft on National Security.
John McCain, however, thinks the 2005 Detainee Treatment Act and the 2006 Military Commissions Act already make it illegal. He even suggests anyone waterboarding after 2006 is guilty of war crimes. (Why is this man not president?)
The red herring in all this is the claim that outlawing torture will put the US at risk. I look at it this way. If something happens in the heat of battle I may look at it differently than if something happens at Gitmo. If a 20 year old sergeant under fire somewhere in Afghanistan threatens a prisoner to reveal a sniper's nest, I view that differently than waterboarding someone captured 6 months ago in a prison. The whole ticking time bomb thing is the creation of t.v. writers (all of whom are now on strike anyway).