Bracton understood the intricate mechanics of the law of his day, but more importantly, he discerned its universal importance. He understood human nature. He knew that power unchecked invites abuse, and that the awesome power of a king who ruled according to whim would likely devolve into tyranny, injustice, and violence. The antidote, Bracton believed, was to make the law, and not the king, supreme. He described law as "the bridle of power," and provided the following maxim: "The king must not be under man, but under God and under the law...." This belief, that no one is above the law, and that adherence to it is the prerequisite of justice and the social expression of morality, has endured--despite the concerted efforts of the powerful to overturn it, and despite the fact that it has been often honored only in the breach. It remains a core principle on which the entire Anglo-American political system rests.
So I was thinking about old Henry last week as I watched our attorney general, John Ashcroft, followed by our president, try to escape responsibility for their concerted efforts since 9/11 to evade the laws, domestic and international, that were created to bar the torture of prisoners. For those who have lost the thread of revelations that continue to come in the wake of the Abu Ghraib prison scandal, the administration is rapidly being buried under a blizzard of leaked memos that prove that the highest reaches of our government--the Justice Department, the Pentagon, apparently the White House--spent considerable time, effort, and brain power to come up with tendentious arguments, bordering on the ludicrous, that freed them from legal constraints against torturing those they believed could provide them with useful intelligence.
Ashcroft went before lawmakers last week and refused, seemingly in violation of constitutional obligation, to turn over a crucial memo produced by his own Office of Legal Counsel. It leaked anyway, and now we know why he was so recalcitrant. Let's not mince words-- we'll leave that to the administration's apologists--it is an ugly document. Inflicting pain, it stated, is not torture unless it rises to the level of "serious physical injury, such as organ failure, impairment of bodily function, or even death." Apparently, according to this definition, attaching electrodes to detainees' penises, beating them with rubber hoses, perhaps breaking their limbs or pulling out their fingernails, would be acceptable. Besides, it stated, in a time of war any laws that limit the president's ability to order the conduct of interrogations are "unconstitutional."
And there's worse. In March 2003 the Defense Department asserted that the president is not bound by laws banning torture because he has unlimited power to protect the nation's security in whatever manner he sees fit. Essentially, the ends justify the means, even when the means are immoral and illegal.
The president too went before the press last week. Repeatedly they asked him if he had sanctioned torture. Each time, he fell back on what the press misleadingly characterizes as a "legalistic" defense: "What I've authorized is that we stay within U.S. law." Of course, we know from the leaked memos that his administration does not believe torture is torture, or that it is illegal. The president's formulation was not legalistic as much as it was a casuistic attempt to mislead.
Bracton would have known a fundamental violation of the law when he saw it. He would have known how dangerous such thinking was. Remember his maxim the next time this administration rationalizes away illegality: "The king must not be under man, but under God and under the law." Bush clearly believes he is "under God." It is the "under the law" part he can't seem to grasp.
