Article published Feb 19, 2008

'Rule of law' vulnerability

February 19, 2008

By Bruce Fein - 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

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

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

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