Bush's BFF Going Down

Appearing on Fox News on Sunday, national intelligence director Mike McConnell as much as admitted that the administration's concern is not about the loss of authorities it gained six months ago. Rather, it's about assuring retroactive immunity for telecom companies that performed quite possibly illegal actions on the White House's say-so.

The lapse of the law "introduces a level of uncertainty that is going to be very difficult for us," McConnell said. But then he explained: "Let me make one other point just -- very important. The entire issue here is liability protection for the carriers. And so the old law and extended law are an expired law if we don't have retroactive liability protection for the carriers. They are less inclined to help us."

Yale Law Professor Jack Balkin blogs: "The Bush Administration repeatedly violated FISA and told telecom companies that it was ok to do so based on a crazy constitutional theory that the President couldn't be bound by the law.

" Of course telecom companies will be less likely to cooperate in the future with an Administration whose legal advice has proven to be so unreliable. But giving them immunity whenever they receive bad advice from the White House gives the White House no incentives to stay within the boundaries of the law."

The Wall Street Journal editorial board writes that "the reality is that, because of these lawsuits, the telephone companies now won't cooperate without the legal protection of a court order. That's how pernicious these lawsuits are.

"We asked one phone company executive what he'd do, after Friday's expiration, in response to a government request for cooperation. His answer was blunt: 'I'm not doing it. If I don't have compulsion, I can't get out of court [and those lawsuits]. . . . I'm not going to do something voluntarily.' Having talked to telecom executives, we can tell you this view is well-nigh universal."

The Journal concludes: "What we have here is a remarkable display of the anti-antiterror minority at work. Democrats could vote directly to restrict wiretapping by the executive branch, but they lack the votes. So instead they're trying to do it through the backdoor by unleashing the trial bar to punish the telephone companies. Then if there is another terror attack, they'll blame the phone companies for not cooperating."

Torture Watch

Writing in Sunday's Washington Post, Dan Eggen revisits last week's testimony about torture from Steven G. Bradbury, acting head of the Justice Department's Office of Legal Counsel: "The Bush administration allowed CIA interrogators to use tactics that were 'quite distressing, uncomfortable, even frightening,' as long as they did not cause enough severe and lasting pain to constitute illegal torture, a senior Justice Department official said last week. . . . "

"Bradbury's unusually frank testimony Thursday before the House Judiciary Committee subcommittee stunned many civil liberties advocates and outside legal scholars who have long criticized the Bush administration's secretive and aggressive interrogation policies. . . .

"Under questioning from lawmakers of both parties, Bradbury said pain suffered by a prisoner had to be both severe and long-lasting for an interrogation tactic to be considered torture.

"'Something can be quite distressing, uncomfortable, even frightening,' Bradbury said, but 'if it doesn't involve severe physical pain, and it doesn't last very long, it may not constitute severe physical suffering. That would be the analysis.'"

Bruce Fein writes in his Washington Times opinion column: "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.