[Congressional Record Volume 153, Number 156 (Tuesday, October 16, 2007)]
[Senate]
[Pages S12890-S12891]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF STEVEN BRADBURY

  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

[[Page S12891]]

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.
  The ACTING PRESIDENT pro tempore. The Senator from North Dakota.
  Mr. DORGAN. How much time remains in morning business?
  The ACTING PRESIDENT pro tempore. Twenty minutes.

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