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Nadler: Justice Official Lied on Waterboarding

A prominent member of the House Judiciary Committee called a senior Justice Department official a liar in an exclusive interview with The Washington Independent. The congressman urged the official to resign over an apparent falsehood about waterboarding and proceeded to urge the prosecution of President George W. Bush and former Atty. Gen. Alberto Gonzales for "violat[ing] the law with impunity."

"I suspect he’s lying," Rep. Jerrold Nadler (D-NY), the chairman of the Constitution, Civil Rights and Civil Liberties subcommittee of the House Judiciary Committee, said about Steven G. Bradbury, head of the Justice Department’s Office of Legal Counsel. Nadler believes Bradbury misled the panel about the definition of waterboarding during a colloquy over the procedure’s legality.

Bradbury testified before Nadler’s panel on Feb.14 in a rare Capitol Hill appearance. Not only has Bradbury, who was never confirmed by the Senate, remained in office beyond the time required by law for a recess appointment, but The New York Times reported in October that he authored secret legal memoranda in 2005 and 2006 effectively legalizing torture methods, including waterboarding — despite an apparent Justice Department repudiation of torture in December 2004.

In response to questions from Rep. Trent Franks (R-Ariz.), Bradbury said that waterboarding, as used by the CIA in 2002 and 2003, falls short of its more lurid descriptions. "If it doesn’t involve severe physical pain and it doesn’t last very long," then it may not qualify as illegal under the Federal Torture Statute, he testified. However, Bradbury said that there has been "no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."

Nadler asked Bradbury how "not being able to breathe as your lungs fill with water" could be legal. Bradbury replied in an unanticipated fashion. "Well, with respect, Mr. Chairman," he said, "your description is not an accurate description of the procedure that’s used by the CIA."

A back-and-forth ensued that did not establish precisely what the CIA did to al-Qaeda detainees. Bradbury’s defense of what waterboarding is distinguished it from "those cases of water torture [that] have involved the forced consumption of mass amounts of water and often large amounts of water in the lungs."

In November, a former Naval Special Forces instructor, Malcolm Nance, told Nadler’s panel of his personal experience being waterboarded. "In my case, the technique was so fast and professional that I didn’t know what was happening until the water entered my nose and throat," Nance testified. "It then pushes down into the trachea and starts to process a respiratory degradation. It is an overwhelming experience that induces horror, triggers a frantic survival instinct. As the event unfolded, I was fully conscious of what was happening: I was being tortured."

A former Office of Legal Counsel attorney, Martin Lederman of Georgetown Law School, found Bradbury’s defense bizarre. "He appears to be totally unaware of how horrifying what he’s saying is," Lederman said. "The strategy is that ‘It’s not like the Spanish Inquisition!’ What kind of a person doesn’t understand this is torture?"

In any event, Nadler doesn’t believe Bradbury is telling the truth about the difference between his understanding of waterboarding and what the CIA performed.

"If it is true, why haven’t they said that before?" Nadler said. "I doubt it’s true. I suspect he’s lying, because why would we have to wait until now to hear this? We’ve had something like six or eight months worth of controversy over waterboarding. Why didn’t they say that [earlier]?"

The Justice Department refused to make Bradbury available for an interview. Nor would a spokesman, Peter Carr, elaborate on Bradbury’s testimony that the duration of the torture technique or the amount of water employed determines whether or not waterboarding is legal.

Asked if Bradbury should resign, Nadler replied, "I think he should."

For Bradbury to remain in his position beyond the legal time-limit for unconfirmed nominees embodies the administration’s "lawlessness," Nadler said. He urged the next administration — particularly a Democratic one — prosecute prominent Bush administration officials for lawbreaking, as a matter of righting a Constitutional wrong. "[Attorney General] Michael Mukasey is not going to do it," he said. "I hope the next president will. Otherwise there will be no protection — none — against a president disobeying laws."

Nadler portrayed the only other option short of acquiescence — impeachment — as unacceptable. "The only other [alternative] is impeachment," he said. "That’s impractical. We’ve succeeded with impeachment once in our history. The framers did not anticipate political parties." He continued, "The only thing I can think of is to prosecute them after the administration is over. If the Republicans win, they won’t, and a Democrat will be tempted to look ahead and not back. I think that’s very destructive to our form of government to say the executive can violate the law with impunity. Then we’ll have no liberty left."

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