Washington—Senator Dianne Feinstein (D-Calif.) today spoke on the Senate floor in opposition to the nomination of Steven Bradbury as general counsel of the Department of Transportation. Her remarks follow:
"I too rise in strong opposition to the confirmation of Steven Bradbury to serve as general counsel in the Department of Transportation.
Steven Bradbury has a troubling history of disregard for United States and international law and seems unable to offer objective legal analysis.
Both of these troubling characteristics were on display when he helped justify the CIA’s torture program.
I was on the Intelligence Committee during this period of time—still am—and one of the things that we wanted to see were the Office of Legal Counsel memoranda. The OLC memos were never given to us, although individuals from the department came and spoke to us about them.
Steven Bradbury was head of the Justice Department’s Office of Legal Counsel from 2005 to 2009. During that time, he wrote four legal memos—finally declassified, finally here, and this is what they look like. Those memos provided the legal foundation for waterboarding and other interrogation techniques that were tantamount to torture.
The first memo, written on May 10, 2005, concludes that the use of so-called enhanced interrogation techniques was lawful. This memo, which addressed torture techniques including waterboarding, was written to replace the previous classified Office of Legal Counsel opinion.
The second memo, also written on May 10, found that the use of multiple interrogation techniques would not violate U.S. law because there would be no severe mental pain or suffering, just physical distress.
The third memo, written on May 30, 2005, reaffirmed a previous OLC opinion that the CIA’s use of torture such as waterboarding was not prohibited by the Convention Against Torture so long as it was done overseas.
That memo also concluded that constitutional prohibitions against cruel, unusual and inhumane treatment or punishment did not apply.
The fourth memo, written on July 20, 2007, concluded that the continued use of six enhanced interrogation techniques by the CIA, including forced nudity and extended sleep deprivation, did not violate the Detainee Treatment Act, the War Crimes Act or the Geneva Convention.
By writing these four memos, Bradbury not only provided the feeble foundation upon which the CIA violated well-established law and military doctrine, he also endangered United States troops—as the senator from Illinois has pointed out—betrayed our country’s values and compromised our standing as a world leader.
The tactics used by the CIA were not only more brutal than was known, they also didn’t produce actionable intelligence. We have a 7,000-page document with 32,000 footnotes, which took six years of reviewing cables and information—all factual—not declassified, a summary was declassified, and to date nothing in it has been contradicted.
Capturing terrorist suspects and torturing them in secret facilities failed. Period.
Among Bradbury’s many troubling conclusions in these memos were that neither the Constitution’s prohibitions against inhumane treatment nor the U.N. Convention Against Torture applied to the CIA’s activities outside U.S. territory. That’s interesting.
Even more troubling, Bradbury’s 2007 memo was written with the purpose of evading congressional intent. It’s stunning that the head of the Office of Legal Counsel would knowingly work to find loopholes in the law to justify the use of torture.
On October 5, 2005, the Senate voted 90 to 9 to approve the Detainee Treatment Act of 2005. This law stated, “No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment.”
However, less than two years later, Bradbury’s fourth torture memo explicitly allowed the CIA to continue many of the abusive interrogation techniques that Congress clearly intended to prohibit in the Detainee Treatment Act of 2005. These included forced nudity and extended sleep deprivation.
This should be a disqualifier for continued service in the United States government, regardless of the position, I believe.
It’s true that Congress settled this matter in June 2015 when, thanks to Senator McCain, we voted overwhelmingly to prohibit torture in that year’s National Defense Authorization Act.
But that doesn’t change the fact that Bradbury did his best to bypass Congress a decade earlier by writing those torture memos.
It’s also true that as general counsel of the Transportation Department, Bradbury wouldn’t be tasked with duties connected to detainees.
But by ignoring the intent of Congress in order to justify the CIA’s continued use of torture, Bradbury ignored the law to achieve a desired result. And that is unacceptable.
Even the Justice Department found fault with Bradbury’s actions. After the OLC torture memos came to light, the Department of Justice conducted an investigation of the facts and circumstances surrounding those memos and DOJ’s role in the implementation of the CIA interrogation program.
On June 29, 2009, the Justice Department found “serious concerns” about the objectivity and reasonableness of Bradbury’s work.
This included evidence that he gave into pressure in order to produce opinions that would allow the CIA torture program to continue.
The Department of Justice report cited several Bush administration officials who believed Bradbury was producing opinions with the goal of allowing the program to continue.
Jim Comey, who served as Deputy Attorney General at the time of Bradbury’s memos, said there was significant pressure from the White House (specifically Vice President Cheney and his staff) to allow the program to continue.
Comey said one would have to be “an idiot not to know what was wanted.” Comey also said that, in his opinion, Bradbury knew “if he rendered an opinion that shut down or hobbled the [interrogation] program the Vice President … would be furious.”
John Bellinger, who in 2007 served as legal advisor to Secretary of State Condoleezza Rice, wrote to Bradbury and stated that he was “concerned that the [2007 Bradbury] opinion’s careful parsing of statutory and treaty terms” would be considered “a work of advocacy to achieve a desired outcome.”
The DOJ was also concerned that Bradbury relied too heavily on the CIA’s reviews of its own interrogation program, which of course were positive.
During a time when we needed independent voices in government to check the CIA’s actions, Bradbury failed to rise to the occasion. He failed to fulfill the responsibilities of his position.
The Senate twice refused to confirm Bradbury as assistant attorney general for the Office of Legal Counsel during the Bush administration because of this very issue.
Nothing has changed since that time, Mr. President, and I encourage my colleagues to oppose his nomination."