[Congressional Record Volume 163, Number 186 (Tuesday, November 14, 2017)]
[Senate]
[Pages S7194-S7195]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                     EXECUTIVE CALENDAR--Continued

  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Madam President, I am here to respond to the 
nomination of Steven Bradbury for a senior legal position in the U.S. 
Department of Transportation. I have had some experience with Mr. 
Bradbury, and in my experience, he is disqualified from serving in a 
legal government position of trust, such as he has been nominated for.
  The Bush administration pursued a policy of detainee mistreatment 
that since has been acknowledged to include torture of detainees. The 
process that got the United States of America into a place where it was 
torturing detainees was a legal process that was full of mistakes and 
failures by the Office of Legal Counsel at the Department of Justice--
by Mr. Bybee, by Mr. Yoo, and, following them, by Mr. Bradbury.
  Let's start with just a word on the Office of Legal Counsel. Within 
the Department of Justice, the Office of Legal Counsel is seen as being 
the best of the best. The Department of Justice prides itself on 
attracting, training, and perfecting the skills of the best lawyers in 
America.
  As a U.S. Attorney, I had the privilege of serving with a lot of 
absolutely spectacularly skilled lawyers and trial advocates just in 
the small Rhode Island U.S. attorney's office and working with others 
from the Department of Justice, and I have a very, very high opinion of 
Department of Justice lawyers and Department of Justice lawyering. But 
even within the expectation that the Department of Justice lawyering 
will be first rate, the Office of Legal Counsel is supposed to be a cut 
above. These are people who go into that office with the possibility 
that they will become U.S. Supreme Court Justices. These are people who 
come out of clerkships on the U.S. Supreme Court--one of the highest 
academic achievements a law student can have--and end up joining the 
Office of Legal Counsel. The Office of Legal Counsel ought to be held 
to a very high standard.
  What happened when the Office of Legal Counsel was asked to take a 
look at the CIA torture program in the Bush administration was that it 
fell down or rolled over in virtually every respect. The factual 
investigation into what the CIA was actually doing was weak and 
ineffectual. The legal investigation into the past, into precedents, 
was--as I said in previous speeches at the time--fire-the-associate 
quality legal work. It is particularly bad coming from the Office of 
Legal Counsel because the Office of Legal Counsel is supposed to be the 
best of the best.
  It is hard to say that these guys failed having tried their best. 
They just weren't smart enough to figure it out. They just weren't 
working hard enough. They just didn't know enough about legal research 
or scholarship. So, you know, nice try but you blew it, but no harm in 
it because we don't expect much of you to begin with.
  That is certainly not the case with OLC. The array of memos that the 
OLC wrote--the Bybee, Yoo, and Bradbury memos--were calamitous failures 
of historical and legal research. For one thing, they failed to 
recognize and report that there had been prosecutions of Japanese 
military officers after World War II for torturing American soldiers. 
One of the techniques of torture for which those Japanese soldiers were 
prosecuted and convicted as torturers, as war criminals, was the use of 
the waterboard. You may be able to say that there were some different 
justifications. You may be able to say that there were some different 
circumstances, but to not even mention that, to not even do the 
research to find out that had taken place is a pretty bad legal 
failing.
  One of the reasons was that they kept it so close hold that they 
didn't let military lawyers know what they were doing. One could argue 
that there is consciousness of guilt there, that they didn't want 
other lawyers to know what they were doing because they knew that what 
they were doing was shoddy legal work and they didn't want to be caught 
out in it. In fact, ultimately, a lot of those opinions were withdrawn.

  The fact of the matter is that it was a failure to properly inform 
the President of the United States about this history of our country 
actually prosecuting Japanese soldiers for the type of conduct that the 
Department of Justice was approving that the CIA engage in. It wasn't 
just prosecutions of Japanese soldiers by American military tribunals. 
There were also prosecutions of American soldiers in the Philippines by 
courts-marshal for torture. Guess what. The conduct involved was 
waterboarding.
  Again, perhaps you can say that there were some differences, that 
there were some distinctions, but the fact is, in memo after memo--
including the wrapup memo that Bradbury wrote--that was not discussed. 
It was not disclosed, and it was not discussed.
  You may say: Well, you know, it is asking an awful lot of the Office 
of Legal Counsel to go and look at history, to go and look at the 
practice of our military in prosecuting adversary officers or in 
prosecuting our own soldiers. After all, we are just the Department of 
Justice. That is the Department of Defense. What could we possibly 
learn from that?
  Well, obviously, that would be wrong and, obviously, that would be a 
mistake, particularly when you look across that boundary to military 
law and see these examples right on point that they did not bother to 
discuss or disclose.
  Then, it gets better still. The OLC memos failed to disclose 
prosecutions by the Department of Justice for waterboarding. This is 
not some case that never got reported someplace, that was just a trial, 
and you would have to look deep into your own records to try to find 
out what took place--perhaps, without a reported decision, just a 
verdict from the jury. This was a case that was extensively documented 
with writings by the trial court judge, a U.S. district judge in the 
State of Texas, that went up on appeal to the circuit court of appeals, 
and the U.S. circuit court of appeals wrote a decision on appeal of the 
district court's decision.

[[Page S7195]]

  What were the facts? The facts were that there was a local sheriff. 
His last name was Lee. So the case was named United States v. Lee. Mr. 
Lee had gone into the business of waterboarding prisoners--strapping 
them in a chair, tipping them back, and pouring water over their faces 
to give the illusion of drowning. The court's decision over and over 
describes this conduct as torture. If you use legal search tools and 
look for the words ``water'' and ``torture,'' United States v. Lee 
comes up, and it is a circuit court of appeals decision.
  How could they miss it? There are only two explanations that I can 
come up with. One is that they really did a shoddy job of workmanship, 
that they didn't bother to do basic legal research. That is why I have 
described this in the past as fire-the-associate quality work. If you 
haven't done the basic legal research to determine what the cases are 
on point on the question of whether the use of water on bound prisoners 
is torture, you haven't done much of a good job. The problem is that 
scenario is actually the best case scenario. The best case scenario is 
that they did such slipshod work at the Office of Legal Counsel that 
they didn't find a U.S. circuit court of appeals decision on point to 
the question upon which the OLC was advising the President of the 
United States. That is the best case scenario.
  The worst case scenario is that they did find it and decided not to 
talk about it in their memos because you can read United States v. Lee 
and put it against those OLC memos, and I think any rational reader 
will find them impossible to correlate.
  There is a real possibility that the Office of Legal Counsel decided 
that, because Cheney had decided on this torture program and because 
they were embarked on this torture program, they were going to have to 
deliver the legal opinion that allowed it to continue. If it meant 
ignoring a case that proved their opinion wrong, they were going to 
ignore the case, and they were going to go ahead with the opinion. As 
you can imagine, that is considerably worse than simply not finding the 
case.
  We have never had a very good description of how this all came out. 
There was an OPR report from the Department of Justice that heaped 
condemnation on the various players here, but ultimately this question 
of what the obligation is of an OLC lawyer to fairly disclose what the 
relevant case law is in writing an OLC opinion was never reached. It 
was never reached because, at the end of this long and arduous process, 
the Department of Justice made, I think, a terrible decision.
  There is a rule of professional conduct that is called the rule of 
candor to the tribunal. If you are a lawyer and you are going before a 
judge, you have an obligation to state the law fairly and accurately to 
the judge. If you are not being truthful to the judge about what the 
law is, that is a violation of professional conduct for which lawyers 
can be sanctioned. It applies to lawyers across the board. A hard-
working lawyer with six or seven files under his arms, piling into a 
State district court to maybe run through three or four cases in that 
day before a busy judge, has the obligation of candor, and it includes 
an obligation to do adequate research, to actually have looked up the 
case law and to disclose it to the judge so that you are not misleading 
the court about the state of the law. That applies to lawyers across 
the country. The busiest, most distracted local lawyer and just a guy 
with a practice, maybe in a strip mall, who buzzes into court with a 
bunch of files under his arms--that lawyer is under that same 
obligation.
  Yet the Office of Legal Counsel--this high temple of lawyering, this 
``best of the best'' of the Department of Justice--made the decision 
that those lawyers, in their providing advice to the President of the 
United States, did not have the same obligation of candor that an 
ordinary, day-to-day, working lawyer in a local courthouse had to that 
local judge.
  I believe that rule has since been reversed, and it is very good that 
it has been reversed because I think the President of the United States 
is entitled to at least the level of candor from these ``best of the 
best'' lawyers at the Office of Legal Counsel that a local judge is 
from the hard-working, overburdened, day-to-day lawyers who appear in 
front of him or her. That is not what the President got, not from this 
Office of Legal Counsel, not from Steve Bradbury.
  Again, I don't know that we will ever know because that decision by 
the Department put to an end the investigation of the question of 
whether this failure amounted to professional malpractice by the OLC 
lawyers, but the options aren't great. These lawyers either did not do 
the work to discover the military tribunals, the courts-martial, and 
the Texas criminal prosecution by the Department of Justice, or, worse 
yet, they did discover those things and deliberately withheld that 
information so that they could give the opinion they thought they were 
supposed to give. It is about the worst thing a lawyer in that position 
could do, and until that is cleared up, I could not possibly support 
the nomination of Steven Bradbury to any position of trust in the 
Government of the United States.
  I yield the floor.
  The PRESIDING OFFICER. The majority whip.