'Rule of Law' Vulnerability

The Washington Times (Washington, DC), February 19, 2008 | Go to article overview

'Rule of Law' Vulnerability


Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

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. …

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