What does it take to be disqualified from a senior post in the federal government? It may seem the bar has sunk pretty low these days, but there ought to be a line that even this administration can’t cross. Appointing the lawyer who gave the CIA sign-off for its so-called “enhanced interrogation techniques” that have since been officially denounced as torture clearly crosses that line.
Yet that’s exactly what President Trump has proposed to do in nominating Steven Bradbury to be General Counsel for the Department of Transportation. His confirmation hearing is set to take place Wednesday.
At a time when half the 93 U.S. Attorney positions around the country remain vacant, after Trump abruptly fired the nation’s top prosecutors months ago, it seems odd the president would rush to fill this relatively obscure legal post with a man who disgraced himself by approving the CIA torture program implemented during the presidency of George W. Bush. But Bradbury is known for his loyalty to his boss and his conservative credentials. A former law clerk to Supreme Court Justice Clarence Thomas, Bradbury in 2007 testified to Congress when he worked for the Justice Department about President Bush’s legal interpretations of the Supreme Court’s Hamdan case, saying: “The president is always right.”
Bradbury is best known for his work as Acting Assistant Attorney General from 2005 to 2007 and head of the Office of Legal Counsel at the Justice Department from 2005 to 2009. In 2005, he wrote three legal memos that ultimately authorized the use of 13 different “enhanced interrogation techniques” – (1) dietary manipulation; (2) nudity; (3) attention grasp; (4) walling; (5) facial hold; (6) facial slap or insult slap; (7) abdominal slap; (8) cramped confinement; (9) wall standing; (10) stress positions; (11) water dousing; (12) sleep deprivation (more than 48 hours); and (13) waterboarding. He concluded that none of them, either individually, or in combination, as the CIA had proposed to use them, would violate the criminal prohibition on torture. Bradbury also concluded that they wouldn’t violate the United States’ obligations under Article 16 of the international Convention Against Torture, which prohibits “cruel, inhuman or degrading treatment or punishment.”
Bradbury first said Article 16 didn’t apply to U.S. conduct abroad. He added that in any event, due to a reservation to the treaty signed by the United States, Article 16 only prohibits U.S. actions that would “shock the conscience.” And because these techniques, which he concluded were effective based purely on the CIA’s often inaccurate representations, had “a reasonable justification” of preventing terrorism, they were not arbitrary or malicious and therefore could not “shock the conscience.”
Bradbury acknowledged that the United States routinely criticizes other countries for engaging in similar abusive conduct, but decided that because the CIA’s actions were “subject to its careful screening, limits, and medical monitoring,” which he presumed other countries did not use, he concluded this was not a problem.
John Bellinger, then Legal Advisor to the State Department, told the Justice Department’s Office of Professional Responsibility that “the Article 16 Memo was a turning point for him. The memo’s conclusion that the use of the thirteen EITs - including forced nudity, sleep deprivation and waterboarding - did not violate CAT Article 16 was so contrary to the commonly held understanding of the treaty that he concluded that the memorandum had been ‘written backwards’ to accommodate a desired result.”
In fact, then-Deputy Attorney General James Comey specifically warned that he thought Bradbury was susceptible to outside pressure. According to the Office of Professional Responsibility’s 2009 report, Comey specifically said Bradbury was under “constant ... pressure” from then-White House Counsel Harriet Miers and Vice President Dick Cheney’s Chief of Staff David Addington to produce the legal opinions. Because Bradbury was only serving as “Acting” Assistant Attorney General at the time and wanted the job, Comey feared it “would make him susceptible to just this kind of pressure.”
In her book The Dark Side, award-winning journalist Jane Mayer writes that then-Acting Assistant Attorney General Daniel Levin also warned Attorney General Alberto Gonzales not to choose Bradbury for his post. “Don’t pick him,” Levin told Gonzales, according to Mayer. “He wants the job too much. He won’t give you any independent advice.”
Bradbury has since left the government and is now a commercial litigator in the Washington office of the law firm Dechert LLC. He may well be extremely loyal to his clients there, such as American Airlines, which he represents “in Department of Transportation rulemaking proceedings on competition and consumer protection issues and in international route authorization proceedings.”
If confirmed, Bradbury would be the senior lawyer for that same Department of Transportation. His boss presumably wouldn’t be asking him to authorize torture again – which President Trump has said he supports but his advisors and hundreds of military leaders and interrogators oppose. Still, Bradbury’s past approval of clearly illegal conduct, suggesting a real lack of independent judgment, should disqualify him from such a high-level legal post.
As Alberto Mora, former General Counsel of the Navy, put it: “If we are to truly reconcile with our past and commit ourselves to ensuring that torture is never again the law of the land, then we cannot allow those who authorized the program to serve in current or future administrations.”