Some think all problems are solved once something is made "illegal". They shout, "There ought to be a law!" And they run out and pass yet another law that duplicates, confuses or otherwise obfuscates what was already "on the books" as accepted practice.

In the case of the Mukasey nomination, there are some Senators that dearly want to be able to pin a badge of honor on their chests by being able to declare, "waterboarding is unconstitutional!"

Unfortunately, if you have a "law" you still don't have anything unless someone can/will enforce it. Many of our politicians know the easy part is declaring something illegal, the hard part is dealing with enforcement and living with the consequences.

As a result, all too often they ignore the consequences and consider enforcement only when it advances their political goals.

There isn't a anti-waterboarding politician who would delay one minute in waterboarding a terrorist if that politician's career (and "legacy") was on the line. You know I'm right.

It would be done in secret and hushed up just like has been described MANY times in the script of TV's "24".

I guess Bush should just lie and agree and then waterboard at will. "Hell, it is a lot more humane than just shooting the bastards on the battlefield."

But someone, someday has to start taking laws seriously... or we will have no laws. The problem cuts BOTH ways. If the politicians secretly ignore laws, respect for law declines. If the politician selectively enforces contradictory laws, respect for law declines. It is NOT just a president vrs congress or a Republican vrs Democrat issue. Both parties decline... and our society declines... when we lie to ourselves.

Before 9-11 sprung terrorism-as-a-movement upon us, the answer was easy: we did what we had to do in war to protect our nation because no laws were possible without our nation.

Since 9-11, with no "nation" to counter-attack and yet with OUR nation clearly BEING attacked, we face a constitutional crisis of sorts: are we in a war or a police action? The laws are quite different depending upon the answer.

Before the suicide terrorist appeared at the nation-threatening scale (e.g. 9-11), one could always negotiate rules of engagement with your enemy: they had something to lose. They had territory, resources, citizens, etc. who could be put at risk if they threatened our territory, resources or citizens.

The terrorist, however, fights under rules of an "illegal" war, taking no prisoners, obeying no conventions, using suicide as a weapon against our more "gentile" societies.

Conventional doctrine would be to "respond in kind".

(How long would Hamas continue to shoot random missiles into Israel if Israel would respond by shooting random missiles into Gaza? Hamas' tactic only works as long as Israel chooses to attack the shooter rather than shooting back just as randomly. Hamas can kill women and children and say it was a random shot by a terrorist element out of their control. What if Israel practiced the same ethics?)

But by attempting to persue legal "punishment" for the war crimes of the terrorist, we cross the threshold between unlimited warfare and a civil police action.

Possibly the better answer would be to NOT attempt to capture and punish the terrorist leaders. DON'T attempt to limit and prevent the violence. When they surrender, hand them their guns and give them a 3 minute head start. They will eventually die on the battlefield doing what they wanted.

Sick as that sounds, isn't this what our senators are asking Makasey to do? Tell us you will declare waterboarding illegal and simply shoot the bastards outright. They won't admit it, just like they won't admit that giving a murderer 20 life sentences to be served consecutively isn't a death penalty.

You know they will waterboard, and worse, if they have to.

You know you WANT them to protect your children and siblings by whatever means necessary.

Quit with the self-deception and political double speak.

The most important part of jurisprudence is the part that says no decision should be made if no decision is necessary... i.e. the parties "must have standing". Issues of law are not settled by courts in the abstract, but only in the context of a specific dispute. This is not just to save the court money and time, but to recognize that no set of laws CAN BE complete and perfect. We are human. The best we can do is to work out our differences among ourselves and approach a court only when negotiations fail.

Yet these politicians want to have Makasey rule on the hypothentical... even when they know the issue can only be decided when the consequences of the decision are known.

Honesty please... all around.

SlaterBait's point is well taken: this is not conventional warfare.

Sad to say, we have yet to know how to deal with the on-going

assault by "terrorists" that is impacting our nation and society.

Think of 9-11 and you know something has to be done, or prepared

for, but what??? "Torture" our values as a nation or submit to an

ineffective response (pun intended).

and then pass a law to confirm that ad infinitum

that might please the bush administration, it would keep the democrats busy without them causing trouble.

bush could say, "yes I promised to uphold the constitution but i didn't promise to keep my promise" and then promise to keep his promise but not promise to keep that promise, so he
could do anything he wants.

can i get a job as attorney general now?

If Mukasey is trying to protect American agents who torture with his "I don't know if waterboarding is torture" dance, he should not be approved as the AG.

An AG is supposed to prosecute people who break the law, not protect them.

Amazingly, the AG is NOT just suppose to prosecute people who break the law.... even if it were clear that water boarding was illegal.

The weakest part of our Judicial system is knows as "Prosecutorial Discretion"... we ELECT DAs (and appoint AGs) in counties, states and nationally to prosecute crime AT THEIR DISCRETION....

The intent is to assure prosecutions are attempted only when there is "sufficient" evidence to make conviction likely. It is also intended that honest citizens are no "harassed" by unjustified accusations.

This leaves a HUGE hole in our judicial shield.... and many a crooked DA and AG has taken advantage of this "discretion". Most recent example is the prosecution of the Duke rape case by Nifong, obviously pursued to win a close election by appealing to the prejudices of his community. But there was nearly a century of racial discrimination after the Civil War made possible by this "discretion"... justice for whites was very different from justice for blacks!

My opinion? Only a jury of your peers should decide if your actions rise to the level of deserving punishment. Unfortunately, this is not practical as we'd have to have a jury trial everytime someone spits on the sidewalk or "disrespects" someone or simply makes an innocent mistake.

What some of the senators were demanding of the judge was that he promise to prosecute government employees for a "crime" that these same senators were not able to get a majority of their peers to vote was illegal in various bills defeated over the past few years.

It is like saying, "I think there should have been a law against X. I was not able to pass such a law, but I declare, X must be unconstitutional. So I will only approve of DAs who promise to prosecute X anyway and take it to the Supreme Court to justify their prosecution."

Such a scheme is requiring the DA (or AG) to be biased! ...to be in the pocket of one faction against another and declare such before taking office. Further, isn't the prosecutor sticking his neck out and risking the charge of "false prosecution" if the Supreme Court looks at the constition and the laws the Congress HAS passed and concludes that in these circumstances, the action of water boarding is NOT automatically unconstitutional.

Remember, JFK appoint his own BROTHER to be AG! I still find it amazing that there was a time when it was EXPECTED that the AG was to be biased and personally incapable of being a legal check on the President! My how things have changed!

Again... if the senators want to outlaw waterboarding under ALL circumstances, simply convince 60% of the Senate to pass such a law (and then get the House to concur.)

Twisting the arm of an appointee to commit to a decision on classified actions even before winning a clearance to study the facts IS NOT the way government should be run.