Nomination of Steven Bradbury

Floor Speech

NOMINATION OF STEVEN BRADBURY -- (Senate - October 16, 2007)

Mr. DURBIN. Mr. President, tomorrow the Senate Judiciary Committee will hold hearings on the nomination of Judge Michael Mukasey to be Attorney General. I look forward to those hearings and hope to ask some questions about his plans--if he, in fact, is confirmed as our next Attorney General--to repair some of the damage that has been done at the Justice Department. I am concerned that progress really isn't going to be possible without some significant changes there. In particular, I think we need new leadership at the Justice Department's Office of Legal Counsel.

Today, I am joined by Senators Ted Kennedy and Russ Feingold in sending a letter to President Bush calling on him to withdraw the nomination of
Steven Bradbury to be head of the Office of Legal Counsel and to submit another nominee.

The OLC--the Office of Legal Counsel--is a small office. Most people don't even know it exists. But it really has a lot of power, especially in this administration. Their legal opinions are binding on the executive branch of Government.

In August of 2002, OLC issued the infamous torture memo. This memo narrowly defined torture as limited only to abuse that causes pain equivalent to organ failure or death. It also concluded the President has the right as Commander in Chief to ignore the torture statute--the law of the land--which makes torture a crime. This memo was the official Bush administration policy for over 2 years. This was a memo produced by the Office of Legal Counsel.

Jay Bybee, who was then head of that office, signed the torture memo. Unfortunately, Mr. Bybee was confirmed to a lifetime appointment as judge on the Ninth Circuit Court of Appeals before Congress and the American people learned about this infamous torture memo.

Jack Goldsmith succeeded Jay Bybee as head of the Office of Legal Counsel. We only recently learned about the critical role Mr. Goldsmith played. As head of the office, he revoked the misguided Office of Legal Counsel opinions regarding warrantless surveillance.

Deputy Attorney General Jim Comey has emerged as an almost heroic figure time and again as we have learned of his role in the Justice Department under Attorneys General Ashcroft and Gonzales. Mr. Comey supported Mr. Goldsmith's actions. This led to the infamous showdown at the bedside of Attorney General John Ashcroft where White House Chief of Staff Andrew Card and former Attorney General Alberto Gonzales, then White House Counsel, tried to strong-arm Mr. Ashcroft into overruling Mr. Goldsmith.

In June 2004, Mr. Goldsmith revoked the Bybee torture memo. Shortly afterward, he left the Justice Department.

In 2005, President Bush nominated Steven Bradbury to succeed him. He has been the de facto head of the Office of Legal Counsel for over 2 years.

During the confirmation process, Mr. Bradbury has refused to answer questions from Judiciary Committee members regarding torture.

In November 2005, I initially objected to Mr. Bradbury's nomination, and I said:

Mr. Bradbury is currently the acting head of the Office of Legal Counsel. In this capacity, he approves Justice Department legal opinions. Since the Justice Department refuses to provide us with OLC opinions on interrogation techniques, we do not know enough where Mr. Bradbury stands on the issue of torture. What we do know is troubling. Mr. Bradbury refuses to repudiate un-American and inhumane tactics, such as waterboarding, mock execution, and physically beating detainees.

There are also seriously unresolved questions about Mr. Bradbury's role in the NSA warrantless surveillance programs. Last year, the Justice Department's Office of Professional Responsibility opened an investigation into the conduct of the Justice Department attorneys who authorized the NSA program. In an unprecedented move, President Bush personally denied security clearances to the Justice Department investigators, effectively blocking the investigation. Documents provided to the Senate Judiciary Committee suggest that this internal investigation was looking into whether OLC engaged in misconduct while Mr. Bradbury was acting head of OLC.

In August 2006, Senator Kennedy, Senator Feingold, and I sent a letter to President Bush calling for him to allow an internal investigation relative to this issue. We have not received a response.

Recent reports regarding Mr. Bradbury's involvement in approving the legality of abusive interrogation techniques provide further evidence of his unsuitability. According to an October 4 article in The New York Times, Mr. Bradbury signed two OLC legal opinions approving the legality of abusive interrogation techniques.

Mr. Bradbury reportedly authored an opinion on so-called ``combined effects,'' which authorized the CIA to use multiple abusive interrogation techniques in combination. According to The Times, then-Attorney General Alberto Gonzales approved this opinion over the objections of then-Deputy Attorney General Comey, who said the Justice Department would be ``ashamed'' if the memo became public.

The Times also reports that Mr. Bradbury authored and Alberto Gonzales approved an OLC opinion concluding that abusive interrogation techniques such as waterboarding do not constitute cruel, inhuman or degrading treatment. This opinion was apparently designed to circumvent the McCain Torture Amendment, then being considered by Congress, which clarified that such treatment is absolutely prohibited.

Mr. President, in the interest of turning the floor over to my colleague from North Dakota, I will not read this entire statement, but I do wish to tell you that I believe the cumulative evidence against Mr. Bradbury raises serious questions as to whether he should even continue in this interim capacity as head of the Justice Department's Office of Legal Counsel.

We are not asking the President to nominate some Democrat for the position. We don't expect that. But we ask him to nominate someone with professional integrity who can restore the morale of this Department and the luster which should be part of this important office. Jack Goldsmith describes himself as a conservative Republican, but he stood up to a White House when it came to issues of torture and warrantless surveillance.

I urge the President to withdraw Steven Bradbury's nomination and submit another nominee for Assistant Attorney General for the Office of Legal Counsel.

Mr. President, I yield the floor.

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