It's funny that the rule of law has never been so blatantly disregarded in the past (even Lincon's suspension of habeus corpus during the civil war) as it has been with this "war" on ragtags in caves in Afghanistan.

The rule of law wasn't so blatantly disregarded in WWII, even with things like mass deportations of Japanese-Americans. We were actually in an existential struggle then, unlike anytime since.

No, the war is a pretext for something far more sinister and insidious.

It seems that Glenn beat me to it, ondelette. If the conditions Glenn posits actually existed, altering the definition of war to suit would seem logical. That, of course, is what GWB, Cheney, Addison, Yoo, shooter et al. have been trying to persuade us is the case all along.

Clearly, however, what they've been attempting to sell us is self-serving bullshit, and is likely to remain so for the foreseeable future, unless their own acts of international lawlessness succeed in conjuring Glen's hypothetical scenario out of what has been, up to now, a fairly diffuse and disorganized, if passionate resistance.

When this regime appoints someone to a key position, we are reduced to the level of 'is he/she going to be as bad as Goering or as bad as Himmler'. The choice is always between awful and terrible.

From Glenn's post it seems that Michael Mukasey has at least one attribute that seems to have been lacking in the Bush administration to date - a bedrock belief in the rule of law. This alone is such an extraordinary quality in these troubled times that it makes Mr. Mukasey worthy of the most serious consideration for the post.

Bruce Fein would be the ideal candidate, but his stated opinion that George W. Bush should be impeached to prevent the illegitimate extensions of executive power he has championed from becoming settled precedent would surely rule him out of consideration.

The core difficulty with the concept of enemy combattant status is that there is no way of independently testing the factual basis of the charge. The use of " National Security" to trump the judicial process inevitably sets up an authoritarian system undermining the rights and freedoms of ALL Americans and the very concept of constitutional government and the rule of law. The two concepts are incompatible. To assert a National Security privilege is to move from the rule of law to an essentially unaccountable executive process where an accused has no right but to accept an administative fiat in the disposition of his fate. It is worse than Star Chamber Redux.

That's a great line.

The next time a girlfriend tries to break up with me or the IRS says it's time for an audit, I'm giving it a shot.

WT said:

While admitting that legitimate distinctions can always be made between the bad and less bad, I still find myself wishing a plague on all their houses. Glenn has more tolerance for reality than I do this morning, or most mornings, for that matter...

GG responded to Che (taken horribly out of context):

...then the very loyal Paul Clement would remain as Acting AG for the remainder of the Bush presidency. I suspect the White House would be very happy with that outcome...

There will never be a single senate consideration in which it could not be said: "we can't make a simple, principled decision here, because of "X". Where X is some special condition, or problem, or perception Congress may have about reality. Or conversely because of some information Congress may have received from the president, vice-president, secretary of state, national security advisor or director of the CIA, a 4-star general, or some foreign agent, let's use Chalabi as an example.

There will always be that argument, that excuse, that somehow convinces them that the simple, principled decision should be abandoned "in the present case".

I believe that a good argument could be constructed that our leadership has usually made poorer decisions when they abandoned the simpler, principled action(/vote), and ignored the evidence of their own lying eyes, in favor of something that they thought they knew.

The vote for the authorization of force was one such example.

This vote for the AG is another chance. A chance to ask a simple question: "is this an acceptable nominee or not". To me, it's a simple decision, based on Glen's piece today. He's not, IF he claims that executive power trumps habeas. It is that simple.

Yes, that leaves Paul Clement as acting AG. But personally, I will willingly accept the punishment of a dead-ender acting-AG of a dead-ender president--IF--I gain a senate that has begun making principled, solid decisions. For the most solid of reasons I add--for not wanting to destroy 800 years of habeas tradition.

I would (long-windedly) add this: As soon as congress begins to act in this very simple, principled way, they will begin winning the understanding of the american people, and the american people will begin viewing them in a more positive way.

Sorry, I just thin-aired my response by opening another piece of software, writing it again:

So is it your view that "wars" can only be with nation-states? If Al Qaeda acquired fighter jets and tanks and army divisions and began sorties runs over American cities and targeted invasions of the U.S. with tanks, you still wouldn't consider that at a "war"? That would just be run-of-the-mill criminal acts, and it could never become a "war" no matter how militarized and organized their attacks became because they are not a nation-state?

[skipping my own...]

That was just one attack. How about if there were 10,000 Timothy McVeigh's and hundreds of Oaklahoma City bombings? Wouldn't that begin to resemble the Civil War more than an isolated criminal act?

I'm not at all convinced that just because it's a "war," it means you can hold people forever with no process - and I obviously don't think you can torture them no matter what you call it. So I place less importance on this semantic question than you seem to. Still, I'm curious about this bright line you're drawaing - it would seem to prevent the use of the term "war" for situations that resemble "war" in every meaningful way.

Okay, I already answered the question about process, prisoners of war (legal and illegal combatants) are already entitled to process, which I wholeheartedly agree with. They are not generally charged with crimes unless they are to be accused of war crimes, so they are generally held without charge.

The bright line already says holding people forever is wrong, too. I don't think it's an illogical or trivial thing to say that what is attempted -- to construct an entity called permanent war -- violates fundamentally what the human race conceives of as war. That is what the war on al Qaeda or on terrorism does, it creates an entity under international law called permanent war. I'm saying that is so wrong it shouldn't have been allowed to get far enough to have to be argued in court.

As for 10,000 Timothy McVeighs, do 10,000 drug pushers become a fundamentally different entity or is it just 10,000 crimes?

As to the construct of al Qaeda with (apparently) a regularly constituted military, replete with tanks, aircraft, sorties, invasion forces, (maybe navies?) but not one acre of territory (a situation that isn't current, they have training camps), and with no responsible entity that can issue orders, engage in the diplomatic act of ending a war, and order it's forces to stand down. I'm sorry, I hate it when people do this to me, but could you please flesh out how that, with all its requisite funding, chain of command, and everything else, could occur in real life?

Nobody wants to accept this, but the war against the Taliban, a country that supported and enabled an attack on us, was just a regular war, and the Taliban we captured should have just been ordinary prisoners of war with all the rights and privileges (including contesting their detention in a regularly constituted court -- the kind you practice in, Glenn). The other thing? No.

I really hate to point this out (it seems extremely cold and unfeeling), but the only resemblences between September 11 and Pearl Harbor were the surprise, the aircraft/bombs, and the number of people killed. Japan really had an army and a navy and was a well organized state committing an act war on us. We were wrongly led into this belief that we are at war with terrorists or terrorism, it was not the correct belief, it led to the wrong response, and it is killing this country.

And one of the casualties seems to be watching our rule of law fall apart because we don't call those who promote this belief on their bluff.