It looks like President George W. Bush is probably going to have to recess appoint Judge Michael Mukasey to be attorney general.

Democrats, and some Republicans, are demanding that Mukasey state for the record that the interrogation technique known as waterboarding is illegal.

“I am urging him that he needs to come forward. If he does not believe that waterboarding is illegal, then that would really put doubts in my own mind because I don't think you have to have a lot of knowledge about the law to understand this technique violates” the Geneva Conventions and other statutes, [Sen. Lindsey] Graham [R-Gang of 14] said.

Oh, the majesty of the law. What the law says and what it doesn't say and the wishy-washy language used by legislators in an effort to avoid being held accountable for the laws they pass. Make the meaning ambiguous and then leave it to some judge to interpret. If there is no public outcry, then that's what you meant to pass. if there's a storm of controversy, then the judge got your "plain" meaning wrong.

Let's have this debate -- in Congress. It seems like this would be a debate the Democrats would love to have -- they'd have many in the GOP defending "torture." The Republicans would counter, correctly, that waterboarding does no permanent physical or psychological damage and that it has gotten us valuable intelligence on terrorists and their plots.

Pass the law -- or don't pass it. Don't point to language in some laws that there is a genuine disagreement over what it does and does not prohibit. As today's Wall Street Journal noted:

The irony here is that Congress has twice had the chance to ban waterboarding, or simulated drowning, but has twice declined to do so. In both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, Congress only barred "cruel, inhuman or degrading" treatment. While some Members have said they believe waterboarding is banned by that language, when given the chance to say so specifically in a statute and be accountable for it, they refused.

As usual, Congress wants it both ways. The Members want to denounce what they call "torture," but the last thing they want is to be responsible if some future detainee knows about an imminent terrorist attack but the CIA can't get the information because Congress barred certain kinds of interrogation. So they toss their non-specific language into the lap of the executive, and say "You figure it out."

Yet they still object because the Justice Department has since tried to interpret that language by providing some practical, specific guidelines to the CIA. According to several news reports, the CIA rarely uses waterboarding but believes it can be useful against the very hardest cases.

Quit whining about a lack of leadership in the Justice Department when you're more concerned about the litmus test o' the day than confirming a new attorney general.