The Lichfield Group

This article appeared in the November 6, 2007 issue of the Washington Times.

Effeteness, thy name is Congress. The impending Senate confirmation of executive supremacist Michael B. Mukasey as attorney general is persuasive proof.

The Founding Fathers understood that Republican government presupposes the existence of those qualities in human nature that justify a portion of esteem and confidence in a higher degree than any other form. Congress has dishonored that presupposition by its endorsement of government by executive edict and degeneration into wallpaper.

Take waterboarding, an interrogation technique keenly relished by Spanish Grand Inquisitor Tomas de Torquemada in all its moods and tenses: immersing the victim in water; forcing water into the nose and mouth; or, pouring water onto material placed over the face to force inhalation or swallowing. The common objective is to make the victim experience the sensation of drowning, including breathlessness, vomiting, taking water into the lungs, panic and struggle.

Like the rack and screw, waterboarding might be described as the very definition of torture — a clear violation of either the due process clause of the Fifth Amendment or the cruel and unusual punishment prohibition of the Eighth Amendment. In holding unconstitutional the "stomach pumping" of a criminal suspect seized in his bedroom, the United States Supreme Court elaborated in Rochin v. California (1952): "This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of the stomach's contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and screw to permit of constitutional differentiation."

In the aftermath of World War II, the United States convicted Japanese soldiers of waterboarding American and Allied prisoners of war. The International Military Tribunal for the Far East, established by U.S. Army Gen. Douglas MacArthur, convicted Japan's civilian and military elite of torture through waterboarding. Regarding a prisoner in the Dutch East Indies, the tribunal's records relate: "A towel was fixed under the chin and down over the face. Then many buckets of water were poured into the towel so that the water gradually reached the mouth and rising further eventually also the nostrils, which resulted in his becoming unconscious and collapsing like a person drowned."

During his confirmation hearings, Mr. Mukasey played the senators for dupes over whether waterboarding was unconstitutional. He assailed the technique as "morally repugnant," i.e., shocking to the conscience under Rochin v. California. Yet he refused to condemn waterboarding as invariably illegal, an agnosticism contradicted by his assertion that the practice is "morally repugnant." Mr. Mukasey defended his reticence by implying that some conjugations of waterboarding might be undisturbing and that he was ignorant of all the possibilities.

That dissembling should have been disqualifying, simpliciter. Every sapient member of Congress knows Mr. Mukasey equivocated to avoid contradicting Bush administration legal opinions and place in legal jeopardy at least three Central Intelligence Agency operatives who employed waterboarding against allegedly "high value" detainees. Regarding presidential powers and the denigration of Congress as an ink blot, former Attorney General Alberto Gonzales and Mr. Mukasey are interchangeable. In both testimony and written answers to questions, the latter embraced the constitutional theories and views of the former, including the "unitary executive" which makes the president virtually absolute under the banner of fighting international terrorism.

Intellectual dwarfs who lead the Republican Party are chortling over their latest salute to presidential omnipotence and manipulation of fear to secure Mr. Mukasey's confirmation. They would be awakened to the constitutional monster they have created by gazing over the political horizon. Suppose Sen. Hillary Clinton, New York Democrat, captures the presidency in 2008. She would enter the White House with a formidable arsenal inherited from President George W. Bush to impose her will.

To thicken relations with China, suppose President Clinton ignores the Taiwan Relations Act, including the obligation to provide Taiwan self-defense weapons. She refuses to enforce the Helms-Burton law, which seeks an international trade and investment boycott of Cuba to promote U.S. trade and to lessen U.S.-Cuban conflicts. She flouts the Burmese Freedom and Democracy Act of 2003 to offer an olive branch to Burma's military thugs.

President Clinton prosecutes the Wall Street Journal under the Espionage Act for publishing classified information revealing secret overtures to North Korean President Kim Jong-il to remove U.S. troops from South Korea if North Korea renounces nuclear weapons. She refuses to permit any executive branch official to testify about the matter.

She signs a tax bill, but issues a signing statement declaring her intent to refuse to implement provisions slashing taxes for the rich because she believes they unconstitutionally discriminate against the poor.

In sum, Republicans, with Democrats in close pursuit, have succumbed to a variation of the lethal creed of the Roman Empire: Eat, drink and be merry for tomorrow we die. Congressional irresponsibility is destroying the Republic brilliantly fashioned by the Founding Fathers.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.