Torture exonerated?

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The rule of law was wounded by the Bush administration last Thursday.

Testifying before the House Judiciary Committee, Attorney General Michael B. Mukasey wrongly insisted that the Justice Department was legally barred from investigating whether CIA officials had committed torture in 2002-2003 by employing waterboarding against three al Qaeda detainees at a secret detention site: Khalid Shaikh Mohammed; Abu Zubaydah; and, Abd al-Rahim al-Nashiri. Waterboarding, the attorney general asserted to the House Committee, "cannot possibly be the subject of ... a Justice Department investigation" because its use had been approved by the department's Office of Legal Counsel (OLC) during the years in question.

Mr. Mukasey added that to open an investigation "would mean that the same department that authorized the program would now consider prosecuting someone who followed that advice."

Terrified of appearing weak on national security, Congress tacitly endorsed the attorney general's ill-conceived pronouncement. The law raises no obstacle to investigating or prosecuting the CIA's waterboarding as torture, even if its legality had been vetted by OLC. Ignorance of the law is no defense, especially when invoked by government officials obligated to know and to uphold the law. CIA interrogators either knew or should have known that waterboarding was criminal irrespective of contrary advice.

The federal criminal code unambiguously stipulates: "Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both," Jurisdiction over the offense attaches if "the alleged offender is a national of the United States." Torture is defined as an act committed by a person acting under color of law "specifically intended to inflict severe physical or mental pain... upon another person within his custody or physical control."

In turn, severe mental pain and suffering is defined as "prolonged mental harm" occasioned by "the threat of imminent death." Waterboarding does precisely that.

It entails strapping a detainee to an inclined board with his head lower than his feet. Water is then poured over the detainee's mouth and nose, which are covered with cellophane or cloth, to create a sensation of drowning, i.e., death by suffocation in water.

Waterboarding was an odious feature of the Spanish Inquisition. It has been uniformly prosecuted as torture by the United States military for more than a century. It has been condemned by the State Department when utilized by despots. Former Secretary of Homeland Security Tom Ridge has categorically denounced waterboarding as torture.

In a Memorandum Opinion prepared in August 2002 and otherwise, nevertheless, OLC advised the CIA that waterboarding would not violate the criminal prohibition against torture. That opinion was later repudiated by OLC in a Memorandum Opinion for the Deputy Attorney General dated Dec. 30, 2004. Moreover, OLC Opinions do not carry the authority of the attorney general, who speaks through opinions over his own name.

Mr. Mukasey erroneously asserted the "mistake of law" defense to justify shielding the CIA's waterboarding from prosecution. As elaborated by the United States Court of Appeals for the District of Columbia Circuit in United States v. Barker (1976), the defense requires proof that the accused acted in reasonable reliance on the advice of government officials entrusted with enforcing the law that was violated. Ignorance of the law or following orders ordinarily does not excuse illegal conduct. In Barker, a divided court of appeals sustained a "mistake of law" defense asserted by "foot soldiers" in the Watergate debacle. Both had been recruited as private citizens by E. Howard Hunt, a White House official, to burglarize the office of Daniel Ellsberg's psychiatrist purportedly to obtain national security information on an alleged traitor on behalf of the government.

The CIA officials implicated in waterboarding cannot claim the "mistake of law" protection of Barker. They were never ordered to employ waterboarding to extract information. They would not have been disciplined for desisting. Waterboarding is unnecessary for the collection of intelligence. The FBI and the military forswear the method. The CIA's interrogators were versed in the law of torture, which hovers over their treatment of detainees. They were government officials sworn to uphold the law — not private citizens as in Barker — and the illegality of waterboarding was clear. They could have insisted on an official opinion of the attorney general, as opposed to a less authoritative OLC memorandum.

If equities militate in favor of leniency, President Bush may pardon the CIA's offenders, even before indictment, and accept full political responsibility. But the standards of government behavior should not be softened if the rule of law is to be honored.

During Watergate, the following exchange occurred between Sen. Herman Talmadge, Georgia Democrat, and White House adviser John Ehrlichman over the claim that the president could break and enter homes to protect the national security:

Sen. Talmadge: Do you remember when we were in law school, we studied a famous principle of law that came from England and also is well known in this country, that no matter how humble a man's cottage is, that even the King of England cannot enter without his consent?

Mr. Ehrlichman: I am afraid that has been considerably eroded over the years, has it not?

Sen. Talmadge: Down in my country we still think it is a pretty legitimate principle of law.

Wouldn't it be heartening to hear Members of Congress initiate corresponding exchanges over waterboarding?

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.