Bring back John Ashcroft

I never thought I'd say this, but: Bring back John Ashcroft.

Yes, in retrospect, Ashcroft's looking better and better. He may have stuck us with the unnecessary and probably unconstitutional Patriot Act, but he was still more loyal to the Constitution than Alberto Gonzales. Even under sedation, Ashcroft refused to endorse George Bush's illegal wiretapping, which Gonzales helped engineer.

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Not only that, it's now clear Ashcroft also had a better appreciation of the law than Attorney General-designee Michael Mukasey.

At first glance, Bush's nominee to replace Gonzales seemed like a nice enough guy. He's a prominent New Yorker and a retired, experienced federal judge. His name was first suggested to Bush by top Democrat Chuck Schumer. For weeks, he looked like a sure bet for confirmation.

But that was before Mukasey went through the Bush brainwash machine. He may have walked into the Bush White House believing in the rule of law, but he walked out believing in the rule of Cheney. In both oral and written testimony before the Senate Judiciary Committee, Mukasey insists it's sometimes OK for the president to act outside the law. He also refuses to declare waterboarding an illegal form of torture, even though he says he finds it personally "repugnant." Strange beliefs, indeed, for someone who aspires to become the top law enforcement officer of the land.

The White House contends that their would-be AG can't be expected to comment on the legality of waterboarding because he has yet to receive a classified briefing on the subject.

Get serious! As a form of torture, waterboarding, or simulated drowning, is nothing new. It dates back to the Spanish Inquisition. It's been illegal in this country since the late 1800s. In 1947, the United States prosecuted a Japanese military officer for carrying out waterboarding on a U.S. civilian during World War II. The practice is specifically prohibited by the U.N. Convention Against Torture, which the United States ratified in 1994. It was outlawed for use by the military in the Detainee Treatment Act of 2005. And former prisoner of war John McCain, who knows something about torture, says it's "no different than holding a pistol to (a prisoner's) head and firing a blank." What more does Mukasey need to know?

Isn't it obvious what's going on? Mukasey knows waterboarding is a form of torture, and therefore illegal under both U.S. and international law. But as a condition of his nomination, he's been ordered to hold his fire by the Bush White House because, if waterboarding is declared illegal, several Bush officials could be charged for waterboarding at least three terrorism suspects in 2002 and 2003. Indeed, Bush himself could be charged with war crimes for authorizing the procedure.

Dick Cheney told Fox News that waterboarding is "a no-brainer to me," and George Bush calls it "an enhanced interrogation technique." But no matter what they call it, it's still torture – and it's still wrong.

On executive authority, Mukasey is equally wrong. Read the Constitution. There's no exception provided to the rule of law, not even during wartime. Our entire system of justice is based on the premise that "no man is above the law, not even the president." Didn't we learn that lesson under Nixon? And for eight years, wasn't that the Republicans' mantra under Bill Clinton?

Mukasey has embraced, instead, the imperial brand of presidential power articulated by Richard Nixon and practiced by Bush and Cheney: "When the president does it, that means it's not illegal." Under that rubric, Bush has ordered warrantless wiretaps, set up a network of secret CIA prisons, established outlaw military tribunals at Guantanamo Bay and authorized the torture of prisoners of war. Better to burn the Constitution than continue down that path, giving a president unbridled authority.

By refusing to condemn torture or extralegal actions of the president, Michael Mukasey has automatically disqualified himself from serving as attorney general. Surely, at a minimum, the nation's top cop must agree that the law applies equally and at all times. A self-declared "war on terror" is no excuse for suspending the Constitution.

Is waterboarding illegal or not? If Mukasey won't clearly answer that question, the Senate should vote NO on his nomination. We don't need another Alberto Gonzales. Bring back John Ashcroft.

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