'Rule of law' vulnerability

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The beginning of the end of the rule of law has emerged under President Bush, i.e., a systematic twisting of language or precedents to advance a political agenda.

The Bush administration has bettered the instruction of Humpty Dumpty in "Through the Looking-Glass, And What Alice Found There": "When I use a word it means just what I choose it to mean, neither more nor less," said Humpty Dumpty. "The question is," replied Alice, "whether you can make words mean so many different things." "The question is," retorted Humpty, "which is to be master — that's all."

Principal Deputy Assistant Attorney General Steven G. Bradbury's surreal Feb. 14 waterboarding testimony before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties is symptomatic. Mr. Bradbury is also President Bush's nominee to become assistant attorney general for the Office of Legal Counsel (OLC), the lawyers' lawyer within the executive branch. Its legal advice is relevant to establishing a mistake of law defense to the federal crime of torture under the Detainee Treatment Act of 2005. It provides: "[I]t shall be a defense that such [agent of the United States] did not know that the [interrogation] practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor... to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful."

According to the New York Times, Mr. Bradbury as acting head of OLC authored two secret opinions in 2005 demarcating ground rules for CIA interrogations. One authorized a combination of harsh techniques, including head slapping, simulated drowning, and exposure to frigid temperatures. Then Deputy Attorney General James Comey was provoked to complain to his colleagues that "they would be 'ashamed' when the world learned of it."

Mr. Bradbury rebuffed the committee's request for his legal opinions — critical to its evaluation of whether there was a need to revisit the mistake of law defense in the Detainee Treatment Act; and, whether OLC had degenerated into a political arm of the White House in lieu of a defender of the Constitution willing and able to say "No."

Sunshine is the best disinfectant for maladministration. When Attorney General Alberto Gonzales was compelled by Congress to disclose a legal rationale for Mr. Bush's warrantless surveillance program targeting U.S. citizens in contravention of the Foreign Intelligence Surveillance Act of 1978 (FISA), the ensuing embarrassment over his sophomoric reasoning pushed the Bush administration back into a FISA framework in January 2007.

Mr. Bradbury conceded the absence of legal precedent for concealing his opinions from congressional oversight. He indicated, however, that chronic executive branch sneering at Congress had evolved into a "tradition" as good as law. Disclosure of the opinions might alert potential detainees as to prohibited methods of interrogation. Their training and resolve to resist might be adjusted or strengthened.

But Mr. Bradbury had already passed that line in testifying that, "The set of interrogation methods authorized for current use... does not include waterboarding." He added that, "There has been no determination by the Department of Justice that the use of waterboarding, under any circumstances, would be lawful under current law."

Mr. Bradbury's assertion that waterboarding by the CIA fell short of torture as defined by the federal anti-torture statute was first cousin to semantic jugglery and sophistry. He defended the now-abandoned practice on the fog of intelligence ignorance in the aftermath of September 11, 2001; and, President Bush's and CIA Director Michael Hayden's unsubstantiated claims that the CIA's enhanced interrogation program has proven invaluable in helping to prevent international terrorism either at home or abroad.

The definition of torture, however, does not expand or contract like an accordion based on the objective of the interrogator or the intelligence need. The statute condemns torture period, with no commas, semicolons, or question marks. Moreover, it seems implausible that waterboarding would be taboo at the FBI, the Defense Department and in Israel if it made a serious contribution to thwarting international terrorism.

Like a modern-day Linnaeus on torture, Mr. Bradbury distinguished three classes of waterboarding. The Spanish Inquisition employed the technique to "agony or death," which was clearly torture. The Japanese forced ingestion of water "beyond the capacity of the victim's stomach," and occasionally jumped on the victim's stomach or caused a vomiting of blood, which was also torture. In contrast, the CIA placed "strict time limits" on drowning the victim and creating the fear of imminent death, which was not torture because any physical or mental suffering would be abbreviated, not prolonged" as required by the statutory definition.

But Mr. Bradbury had never interviewed a CIA waterboarding victim. He had never volunteered for waterboarding to obtain direct evidence of its physical and mental effects.

A reasonable presumption is that a confrontation with imminent death by drowning in a hostile lonely cell will leave indelible mental scars or recurring physical traumas. And no civilized law would presume otherwise.

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