[Congressional Record Volume 163, Number 186 (Tuesday, November 14, 2017)]
[Senate]
[Pages S7196-S7206]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               Tax Reform

  Madam President, I would like to shift to a separate topic that the 
Senate will be addressing this week, and that is tax reform.
  Last Thursday, the Senate Finance Committee introduced our proposal 
that would enable more Americans to keep more of their hard-earned 
paychecks--send less of their money to Uncle Sam here in Washington, 
DC.
  Yesterday, the Senate Finance Committee on which I serve began the 
markup with the Tax Cuts and Jobs Act with a series of opening 
statements. Soon--tomorrow, perhaps--members of the committee will have 
an opportunity to consider and debate more than 300 filed amendments.
  This morning, during the proceedings, some of my colleagues across 
the aisle complained about the process. They said: This isn't a 
bipartisan bill.
  I said: That is because you have refused so far to participate in the 
process.
  They said: The bill is secret.
  I said: Well, you are going to have an opportunity to see it, read 
it, amend it, and debate it on the Senate floor and in committee.
  They then had the audacity to claim that this was all just a giveaway 
to corporations. I suppose what they would rather see is American jobs 
go overseas because our punitive Tax Code punishes those businesses in 
the United States with the highest tax rate in the world at 35 percent. 
Countries such as Ireland, the U.K., and others have lowered their tax 
rates and lured American businesses, investment, and job creators 
overseas. Are we supposed to ignore that and accept it? It would be 
absolutely irresponsible to do so.
  Unfortunately, I think some of our Democratic colleagues feel this is 
more about political posturing than it is about getting the economy 
growing again or seeing more money in our paychecks, more money that 
people can use for their family, for school, for retirement, or for 
whatever reason they want to use it.
  Under our bill, a family of four at median income, which is roughly 
$70,000 a year, will see a savings of about 40 percent on their tax 
bill. That may be chump change to the folks here in Washington, DC, 
inside the beltway, but for hard-working Texans and hard-working 
Americans, that is money they can use and put to good use. We owe it to 
them. If we can come up with a fairer, simpler, more competitive tax 
code, we owe it to them to do so.
  I mentioned the 300 amendments that have been filed. It is important 
to note that Chairman Hatch, just like Chairman Brady in the House Ways 
and Means Committee, is taking this through the regular legislative 
process. In other words, anyone who is willing to participate in it can 
introduce amendments and get a vote on those amendments. You are not 
guaranteed to win, but you are guaranteed an opportunity to participate 
and to shape the product. That is the way the Senate and House are 
supposed to work. Once both legislative houses come up with their 
version of the tax bill, we reconcile those in a conference committee 
before we send it to the President. That is what we intend to do 
sometime before Christmas this year.
  We have had 70 different hearings in the Senate alone, countless 
working groups, white papers published. We have been working on this 
for years. Now we finally have the opportunity to get it done.
  What is so strange about the criticism that I have heard is that many 
of

[[Page S7197]]

our Democratic colleagues, both past and present, have called for many 
of the reforms included in this legislation that they are now 
criticizing. They were for it before they were against it.
  Their previous support makes sense, because we know tax reform can 
work. A new study by the Tax Foundation found that our proposal would 
increase the size of the economy by 3.7 percent. It will increase wages 
for hard-working American families almost 3 percent. It will create 1 
million new jobs. If we reduce the business rate and don't chase jobs 
overseas, we can attract more investment and more job creation here in 
America. The Tax Foundation estimates that this bill will produce 
nearly 1 million new jobs here in America. It will, incidentally, 
provide more than $1.2 trillion of lost revenue for the Federal 
Government, helping us with our deficit and our debt. The study 
suggests that families would see an after-tax income boost of 4.4 
percent by the end of the decade. In Texas, for example, nearly 77,000 
jobs are expected to be created by this plan with an income growth for 
middle-class families surpassing $2,500 a year.
  Notably, by repealing the tax on poor Americans known as the 
individual mandate--half of it is paid by people who earn $25,000 or 
less, who can't afford to buy the government-mandated health insurance; 
they pay the penalty. That amounts to a $43 billion tax on poor people 
in America. We intend to repeal that and let them keep that $43 billion 
over the next 10 years in addition to the tax relief we are providing 
here.
  It is not just the Tax Foundation that has pointed out the positive 
impacts of our plan; the nonpartisan Joint Committee on Taxation has 
too. Its analysis over last weekend suggests that moderate-income 
folks--not the high wage earners--would benefit most. In 2019, people 
in the middle of the income spectrum earning between $50,000 and 
$70,000 would see their taxes fall by 7.1 percent; those earning less--
between $20,000 and $30,000--would see in excess of a 10-percent 
decline in taxes, according to that report.
  I know our Democratic friends have trotted out their old, tired 
talking points and claimed that tax relief is only for the wealthy. But 
these facts show otherwise, and it is not an accident. We tried on 
purpose to make sure that every taxpayer, every person across the 
spectrum, no matter what their tax rate, sees a reduction in their 
taxes. The JCT's analysis proves that this is real, and while some of 
our colleagues can't resist the temptation to demagogue the issue, I 
would suggest that a more productive use of their time would be for 
them to join us to try to make this product even better.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Madam President, I rise in opposition to the nomination of 
Steven G. Bradbury to be General Counsel of the Department of 
Transportation.
  Typically, the Department of Transportation has been a bastion of 
bipartisan cooperation. As former Transportation Secretary Norman 
Mineta said: ``There are no Democratic or Republican highways, no such 
thing as Democratic or Republican traffic congestion.'' Similarly, it 
has been the overwhelming position of the U.S. Senate that torture is 
disqualifying for high office. Mr. Bradbury's nomination threatens both 
of these traditions.
  Based on his role in the approval of enhanced interrogation 
techniques during the Bush administration, I believe Mr. Bradbury has 
failed to demonstrate the judgment that would merit the Senate to 
advise and consent on his nomination to any post. In addition, I am 
deeply troubled by his failure to commit to recuse himself from all 
matters related to his former client, the now-bankrupt airbag 
manufacturer, Takata, whose products are responsible for at least 16 
deaths and 180 injuries.
  From 2005 to 2009, Mr. Bradbury was the acting head of the Department 
of Justice's Office of Legal Counsel and was responsible for 
coauthoring numerous legal memos that authorize torture. During that 
period, enhanced interrogation techniques approved by the Office of 
Legal Counsel included techniques that constituted torture or cruel, 
inhumane, and degrading treatment. We would not accept such techniques 
being used on our servicemen and women held in captivity by our 
enemies. Yet Mr. Bradbury approved those techniques and, in doing so, 
endangered our men and women in uniform, and that danger still exists 
today.
  Mr. Bradbury authored four separate memos authorizing the harshest 
form of detainee abuse, including waterboarding and other forms of 
cruel, inhuman, and degrading treatment. Not only did these legal memos 
authorize techniques that have been deemed abusive, they provided a 
green light for those willing to abuse enemy combatants in U.S. 
custody.
  Following the revelations of prisoner abuse at Abu Ghraib, the 
Senate, led by Senator John McCain, passed the Detainee Treatment Act 
of 2005 by a vote of 90 to 9. That law prohibited detainee abuse by the 
military and other agencies.
  However, legal opinions by Mr. Bradbury sought to provide a legal 
cover for the continued use of techniques that ran counter to the 
intent of that law. Our most respected military leaders have spoken out 
against the use of these unlawful interrogation techniques. A letter 
signed by 176 retired senior military leaders opposed the kind of 
torture techniques approved by Mr. Bradbury's Office of Legal Counsel.
  Having had the privilege to serve in the Army of the United States, I 
believe they did this because they understood if we did it, our enemies 
would do it with even more gusto to our men and women, and it would be 
unconscionable to give them even a shred of credibility to point to and 
say: We are simply doing what you did to others.
  Retired Marine Gen. Charles Krulak wrote in opposition to the 
Bradbury nomination, saying that the use of techniques approved by Mr. 
Bradbury ``not only violated well-established law and military 
doctrine, but also endangered U.S. troops and personnel, hindered the 
war effort, and betrayed the country's values, damaging the United 
States' stature around the world as a beacon of human rights and the 
rule of law.''
  That is the voice of one marine, speaking from years of experience in 
combat, not simply to defend our ideals but to defend those men and 
women who serve today in uniform.
  Secretary of Defense Mattis has expressed his full support for the 
Army Field Manual as the single standard for all U.S. military 
interrogations and has advised President Trump that such enhanced 
interrogation techniques are not needed to keep our country safe.
  Under Mr. Bradbury's direction, DOJ's Office of Legal Counsel 
approved opinions on enhanced interrogation techniques that appear 
intended to meet the political inclinations of the White House rather 
than the intent of U.S. laws against such cruelty. Someone who has 
justified the use of torture, in spite of an act of Congress, should 
not be allowed to hold a position of responsibility in the U.S. 
Government. Indeed, it is for that reason that this body refused to 
approve Mr. Bradbury as Assistant Attorney General for the Office of 
Legal Counsel in 2008.
  If approved as the General Counsel of the Department of 
Transportation, Mr. Bradbury would again be called upon to render legal 
opinions that require sound and independent judgment. Even forgetting 
for a moment his history of bending to the political desires of a 
strong-willed White House, his refusal to completely recuse himself 
from matters relating to his former client, Takata, means he would 
enter this office with a cloud of potential conflicts around him.
  Public service is not an entitlement but a privilege. For Mr. 
Bradbury, the revolving door should swing shut. His lack of judgment at 
a critical time in the Nation's history has disqualified him from the 
privilege of holding high office in the current or any future 
administration.
  Surely the American people deserve someone who reflects our national 
values and has demonstrated much better judgment than Mr. Bradbury.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Ms. DUCKWORTH. Madam President, I thank my colleague, the Senator 
from Rhode Island, and I join him in strong opposition to the 
nomination of Mr. Steven Bradbury to be the general counsel of the U.S. 
Department of Transportation.

[[Page S7198]]

  Mr. Bradbury is a deeply flawed nominee for many reasons, including 
his unwillingness to recuse himself from issues involving his former 
clients and dodging commitments to forgo accepting waivers for 
recusals. However, my opposition to his nomination is rooted in his 
troubling record while serving at the Department of Justice during the 
Bush administration.
  As we know, Mr. Bradbury was Acting Attorney General at the 
Department of Justice from 2005 to 2007 and led the Office of Legal 
Counsel there from 2005 to 2009. When he was nominated by President 
George W. Bush to be Assistant Attorney General in 2004, his nomination 
was so unacceptable that the majority leader at the time offered to 
confirm 84 stalled nominees in exchange for the withdrawal of his 
nomination.
  Let me repeat that. The Senate majority leader at the time was 
willing to accept 84 other nominees in exchange for President Bush 
withdrawing Mr. Bradbury's nomination.
  What Senators objected to then--and the reason I am so strongly 
opposed to Mr. Bradbury's nomination now--is that Mr. Bradbury is the 
chief architect of the legal justification that authorized 
waterboarding and other forms of enhanced interrogation techniques we 
used to hear a lot about during the last Bush Presidency. For those who 
might not be familiar with the term ``enhanced interrogation,'' there 
is another term for it that most Americans probably are familiar with. 
It is called ``torture.''
  The ``torture memos,'' as they are commonly referred to today, 
represent a dark period in our Nation's recent history that we must 
never repeat. In my opinion, his connection to these memos alone should 
disqualify Mr. Bradbury from government service. I understand he is 
nominated to serve at the Department of Transportation and not the 
Department of Justice, but his very willingness in the past to aid and 
abet torture demonstrates a failure of moral character that makes him 
dangerous to the American people and to our troops regardless of which 
agency he is nominated to serve in. Those torture memos displayed a 
disturbing disregard for the intent of Congress and flouted both 
international and U.S. law.
  If confirmed, Mr. Bradbury will swear a solemn oath to serve the 
interests of the American public by providing honest and objective 
legal analysis to the Department and the administration. I doubt he can 
carry out that oath.
  The American Government would, once again, rely on his counsel to 
make sure Department of Transportation employees do not subvert the 
law, the intent of Congress, or the U.S. Constitution. Unfortunately, 
he has let both the government and the American people down before, and 
I have no confidence that he is capable of carrying out this critically 
important role. Public servants are supposed to serve the public 
interests, not the political whims of any President, Democratic or 
Republican.
  The public should be alarmed by Mr. Bradbury's history of 
demonstrating complete deference to a President's policy goals, and we 
in the Senate should do everything we can to prevent the likelihood of 
that history continuing in the Trump administration.
  For my colleagues who may not be familiar with the programs Mr. 
Bradbury justified in his legal opinion, let me clarify. Detainees, in 
his opinion, could be sleep-deprived for up to 180 hours--approximately 
7\1/2\ days--forced into stress positions. Sometimes they were shackled 
to the ceiling, subjected to rectal rehydration and feeding, confined 
in boxes the size of small dog crates. It was also Mr. Bradbury's legal 
opinion that led CIA personnel to conduct mock executions. His legal 
opinion led to one man being waterboarded to the point that he became 
``completely unresponsive, with bubbles rising through his open, full 
mouth.'' His legal opinion also led to another man being frozen to 
death. Some of these abuses were authorized; others were not, but 
brutality, once sanctioned, is not easily contained.
  In 2005, this body voted 90 to 9 to enact the Detainee Treatment Act 
to prohibit ``cruel, inhuman, or degrading treatment or punishment.'' 
That law was enacted after the Supreme Court decided that terrorism 
detainees in U.S. custody were protected by the Geneva Conventions. 
However, Mr. Bradbury still found legal loopholes to allow torture to 
continue.
  Even the Department of Justice's own Office of Professional 
Responsibility criticized him for ``uncritical acceptance'' of the 
CIA's representations about the torture program. This is stunning, and 
it cannot simply be dismissed.
  In testimony before the Senate Judiciary Committee in 2007, Mr. 
Bradbury defended the President's questionable interpretation of the 
Hamdan case, a case where the Supreme Court ruled that President Bush 
did not have the authority to set up military tribunals at Guantanamo 
Bay, by famously suggesting the ``President is always right.''
  This rubberstamp mentality is extremely dangerous, especially in the 
Trump administration. What will Mr. Bradbury do if President Trump asks 
him to come up with a legal justification to abolish laws mandating 
seat belt use or to come up with ways to negate drunk driving laws?
  Let me be clear. Mr. Bradbury didn't make America safer, and he 
certainly didn't make our men and women in uniform safer either--quite 
the opposite. The actions Mr. Bradbury helped to justify put our troops 
and diplomats deployed overseas in greater danger.
  This is personal to me because perhaps most disturbingly Mr. 
Bradbury's efforts to enable torture compromised our Nation's values. 
Our Nation's military men and women are taught the laws of armed 
conflict, the proper way to care for detainees, the importance of 
acting in accordance with American values. Mr. Bradbury's actions at 
the Department of Justice undermined those values. This type of twisted 
legal wrangling done at a desk far from the field of battle puts larger 
targets on the backs of our troops. If captured, are they now at 
greater risk of being tortured themselves? How we treat prisoners under 
our control affects how our troops are treated.
  Let me read to you Warrant Officer Michael Durant's account of what 
happened to him when he was shot down and captured in Mogadishu, 
Somalia. This is from his book.

       DURANT'S fear of being executed or tortured eased after 
     several days in captivity. After being at the center of that 
     enraged mob on the day he crashed, he mostly feared being 
     discovered by the Somalian public. It was a fear shared by 
     Firimbi--

  Who was one of the people guarding him--

       The ``propaganda minister'' had clearly grown fond of him. 
     It was something Durant worked at, part of his survival 
     training. The two men were together day and night for a week. 
     Firimbi spoke Italian and Durant spoke some Spanish, 
     languages similar enough for them to minimally communicate.
       Firimbi considered Durant a prisoner of war. He believed 
     that by treating the pilot humanely, he would improve the 
     image of Somalis in America upon his release.

  Mr. Durant talked at length about how he was treated when he was 
captured in Somalia. He talked about going for days without his wounds 
being cared for, being dragged out of his downed Black Hawk by a mob. 
He talked about being beaten. He talked about someone sticking a rifle 
into his room and firing and shooting him, where he had to pull the 
round out of his own shoulder. He talked about being shackled.
  All of that is still better than the treatment that Mr. Bradbury's 
justifications allow to happen now. It makes our troops' jobs harder 
and more dangerous, and their job is already pretty dangerous. Take it 
from me, our troops will do any job we ask of them, but we shouldn't be 
trying to make those jobs more difficult or dangerous than they already 
are.
  I can tell you from firsthand experience, as someone who has bled 
behind enemy lines, legal gymnastics are a luxury not afforded our men 
and women in the field. They are at battle and, more importantly, these 
justifications do not protect our troops who are sitting on the floor 
of a POW cell. When you are stuck bleeding in a helicopter behind enemy 
lines, you hope and pray that if the enemy finds you first, they treat 
you humanely.
  When I was in flight school, I began the first of several periods 
when I was trained in the art of survival, escape, evasion, and rescue. 
All pilots received this training. Then, when we were deployed to Iraq, 
we also, as members of

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the U.S. troops overseas who were identified as most likely at risk of 
being captured among U.S. troops deployed there, received additional 
training. This is what the Army told me I could expect upon being 
captured: I could expect to be raped. I could expect to be beaten. I 
could expect to be starved.
  As I sat in my helicopter thanking God that there was another 
aircraft there to pull me out, even as the enemy were jumping into 
their pickup trucks, speeding toward us to try to capture us, the very 
realities of what Mr. Bradbury was justifying happened to me. It is not 
something that you can look at from the safety and security of a desk 
in Washington. Our troops face this every single day. This is why this 
nomination is so incredibly, incredibly troubling.
  If the warlords in Somalia recognized the Geneva Conventions and 
treated Chief Warrant Officer Durant's capture more humanely, what does 
that say about Mr. Bradbury and his willingness to allow far greater 
forms of torture than what the Somali warlords were willing to do?
  Mr. Bradbury lacked the moral conviction in the Bush White House that 
Somali warlords possessed in Mogadishu, and I don't think he can be 
trusted to stand up for the values I fought to defend, especially not 
in the current administration.
  You don't just need to take my word for it. Mr. Bradbury's record 
speaks for itself, but in case this point isn't clear enough, here is 
what retired Marine Corps General Charles Krulak wrote to the Commerce, 
Science, and Transportation Committee about this nominee just this year 
on June 26 of 2017:

       In his role as acting head of the Department of Justice's 
     Office of Legal Counsel . . . Mr. Bradbury displayed a 
     disregard for both U.S. and international law when 
     authorizing the use of so-called ``enhanced interrogation 
     techniques'' to interrogate terrorism suspects.

  The general goes on further to say:

       These interrogation techniques, which Mr. Bradbury 
     repeatedly approved, included methods that the United States 
     has acknowledged and even prosecuted as torture and cruel, 
     inhuman, and degrading treatment.
       The use of these techniques not only violated well-
     established law and military doctrine, but also endangered 
     U.S. troops and personnel, hindered the war effort, and 
     betrayed the country's values, damaging the United States' 
     stature around the world as a beacon for human rights and the 
     rule of law. We know that the United States is strongest when 
     it remains faithful to its core values. The use of torture 
     and cruel, inhuman, and degrading treatment undermines those 
     values, and Mr. Bradbury continually represented their use as 
     legal and advisable during his time serving in the Bush 
     Administration.

  The general goes on to say further:

       In recommending these techniques, Mr. Bradbury also 
     displayed a discomforting deference to the executive branch's 
     wishes, tailoring his legal recommendations to fit the White 
     House's preferred outcome, and even testified in a Senate 
     Judiciary Committee hearing that ``the President is always 
     right.'' Mr. Bradbury's recommendations also contradicted the 
     intent of Congress. In 2005, Congress passed the Detainee 
     Treatment Act with a vote of 90-9. The law prohibited abuse 
     of detainees by the U.S. military and agencies, but Mr. 
     Bradbury authored a legal memo specifically designed to 
     undermine the will of Congress and to provide the Bush 
     Administration with authorization to continue using 
     interrogation methods that constitute torture and cruel, 
     inhuman, and degrading treatment.
       I believe that this is more important than political 
     affiliation. Mr. Bradbury has time and again shown his 
     willingness to contravene established law and the intent of 
     Congress in service to the will of the executive branch. 
     Though the position to which he is nominated likely will not 
     involve decisions on national security issues, I believe that 
     based on his past governmental service, Mr. Bradbury is not 
     fit for this political office. I ask you respectfully to 
     oppose his nomination.

  That letter is signed:

     Semper Fidelis,

                                            Charles C. Krulak,

                                              General, USMC (Ret.)
                              31st Commandant of the Marine Corps.

  Also opposing Mr. Bradbury's nomination are 14 former national 
security law enforcement, intelligence, and interrogation professionals 
whose experience include service in the U.S. military, the Federal 
Bureau of Investigation, the Central Intelligence Agency, the Drug 
Enforcement Administration, the Defense Intelligence Agency, the Army 
Criminal Investigation Command, and the Naval Criminal Investigative 
Service.
  They wrote:

       We write today to express our opposition to the nomination 
     of Mr. Steven Bradbury to serve once again in a position of 
     significant responsibility within the U.S. government as 
     general counsel of the Department of Transportation.
       Our opposition stems from the necessary judgment and 
     personal courage this office requires to provide candid and 
     objective legal advice to policymakers that may be seeking 
     politically expedient policy solutions.
       We dedicated our professional lives to keeping our nation 
     safe. That work demanded using every resource at our 
     disposal, including and especially our moral authority. Our 
     enemies act without conscience. We must not.
       Mr. Bradbury spent many years serving in the Department of 
     Justice--including as acting head of the Office of Legal 
     Counsel--during the George W. Bush Administration.
       In this position, he prepared official memoranda that 
     provided legal cover for other agencies in the U.S. 
     Government to employ a program of interrogation tactics that 
     amounted to torture or cruel, inhuman, or degrading 
     treatment.
       These brutal methods--which included waterboarding--
     fundamentally violated domestic and international law 
     governing detainee treatment and caused untold strategic and 
     operational harm to our national security.
       As former interrogators, intelligence, and law enforcement 
     professionals with extensive firsthand experience in the 
     field of interrogation, we were shocked by Mr. Bradbury's 
     attempt to defend the use of the waterboard and other torture 
     tactics based on the incorrect assertions that their use 
     would not cause severe physical pain or suffering and would 
     produce valuable intelligence.
       In our professional judgment, torture and other forms of 
     detainee abuse are not only immoral and unlawful, they are 
     ineffective and counterproductive in gathering reliable 
     intelligence. They also tarnish America's global standing, 
     undermine critical alliances, and bolster our enemies' 
     propaganda efforts.
       If the Senate confirms Mr. Bradbury, it would send a clear 
     message to the American public that authorizing the use of 
     torture is not only acceptable, but is not a barrier to 
     advancement into the upper ranks of our government.
       We understand that Mr. Bradbury did not act alone in 
     authorizing torture, but as his nomination is before you, we 
     ask you to take this opportunity to reaffirm our commitment 
     to the ideals we strive to uphold by rejecting his 
     nomination.
       Torture is not a partisan issue. Our respect for human 
     dignity is timeless, and we must never risk our national 
     honor to prevail in any war. Your vote to reject this 
     nomination would reflect the morally sound leadership that 
     this country needs and would not forget.

  In another letter dated July 27, 2017, to the Commerce Committee, 
retired U.S. Air Force Col. Steven Kleinman wrote:

       I write to express my deep concerns about confirming Mr. 
     Bradbury to serve once again in a position of significant 
     trust and responsibility within the U.S. Government.
       I do not for a moment question his legal credentials; 
     rather, my apprehension centers around the equally important 
     elements of judgment and personal courage necessary to 
     provide legal advice that might run counter to the positions 
     advocated by his superiors.
       History records that we have been down this road once 
     before with Mr. Bradbury and he was found sadly wanting.
       As I trust you are aware, Mr. Bradbury served in senior 
     positions within the Department of Justice--including as 
     acting head of the Office of Legal Counsel--during the George 
     W. Bush Administration.
       In that capacity, he prepared official memoranda that 
     provided legal cover for other agencies of the U.S. 
     Government to implement a program of severely coercive 
     interrogation practices.
       These practices included an array of tactics--to include 
     waterboarding--that fundamentally violated domestic and 
     international law prohibiting cruel, inhuman, and degrading 
     treatment.
       As an officer with extensive experience in both strategic 
     interrogation and in training members of the U.S. Armed 
     Forces to resist hostile interrogation, I was taken aback by 
     Mr. Bradbury's attempt to defend the use of the waterboard 
     based on wholly unfounded conjecture that it would not cause 
     severe physical pain or suffering.
       If the committee were to favorably report this nomination 
     to the full Senate, it would be sending a clear and 
     undeniable message to the world, and, more importantly, to 
     the American public: Definitive action to support the 
     institutional use of torture is acceptable.
       Clearly, Mr. Bradbury acted in concert with an untold 
     number of others within our government, and I am not asking 
     that he be singled out for his actions.
       At the same time, his nomination is the one before you . . 
     . and with it an opportunity for the committee members to act 
     on behalf of all Americans in taking a vital step toward 
     reclaiming the moral high ground.
       From the perspective of this American, the debate over 
     torture is not one that can be subject to partisan debate. 
     Instead, torture is something that is so inherently wrong and

[[Page S7200]]

     so contrary to this nation's traditional values that it can 
     be one issue around which the entire country--and the U.S. 
     Senate--can rally.
       Your vote to unfavorably report this nomination to your 
     colleagues would be a much-needed demonstration of ethical 
     leadership that would not soon be forgotten.

  It is signed ``Very Respectfully, Steven M. Kleinman, Colonel, U.S. 
Air Force, Retired.''
  Former Navy general counsel Alberto Mora wrote:

       While acting as the head of the Office of Legal Counsel, 
     Steven Bradbury proved himself to be an advocate for the 
     brutal treatment of detainees, and then, when the Congress 
     enacted the McCain amendment to strengthen the legal 
     prohibitions against cruelty, he counseled the administration 
     on legal strategies on how to circumvent the law and the 
     Congress's will.
       In exercising its advice and consent duty with respect to 
     the nominations of senior counsel to serve in this, or any, 
     administration, the Senate should take care to confirm only 
     those individuals with a clear record of respect for the law 
     and for the power of Congress as a coordinate and equal 
     branch of government. Steven Bradbury's record, 
     unfortunately, demonstrates a disrespect for both.

  In a June 22, 2017, letter to the Commerce Committee, 14 human rights 
organizations highlighted their opposition to Mr. Bradbury's 
nomination:

       We write to express our serious concerns regarding the 
     nomination of Steven G. Bradbury for general counsel of the 
     Department of Transportation (DOT).
       Mr. Bradbury's role in justifying torture and cruel, 
     inhuman, or degrading treatment of individuals held in U.S. 
     custody marked him as an architect of the torture program.
       Not only should the Senate be concerned about confirming a 
     nominee who had a central role in the criminal violation of 
     human rights, but his work during that period calls into 
     question his ability to provide the kind of rigorous, 
     independent legal analysis that is required of any top 
     government lawyer.
       Mr. Bradbury was acting head of the Department of Justice's 
     (DOJ) Office of Legal Counsel (OLC) from 2005 to 2009. During 
     that time, Mr. Bradbury wrote several legal memoranda that 
     authorized waterboarding and other forms of torture and 
     cruel, inhuman, or degrading treatment. As such, he is most 
     prominently--and correctly--known as one of the authors of 
     the ``torture memos.''
       His analysis directly contradicted relevant domestic and 
     international law regarding the treatment of prisoners and 
     helped establish an official policy of torture and detainee 
     abuse that has caused incalculable damage to both the United 
     States and the prisoners it has held.
       Mr. Bradbury's role in the torture program, even then, was 
     notorious--so much so that the Senate refused to confirm him 
     as assistant attorney general for the Office of Legal Counsel 
     during the Bush Administration.
       The Senate now knows even more about Mr. Bradbury's record, 
     and the harm caused by his opinions, based on oversight by 
     the Senate Select Committee on Intelligence and its report on 
     the Central Intelligence Agency's use of torture and abuse.
       In Mr. Bradbury's time as acting head of the OLC, he 
     demonstrated an unwavering willingness to defer to the 
     authority and wishes of the president and his team instead of 
     providing objective and independent counsel.
       During congressional testimony in 2007, Mr. Bradbury 
     responded to questions about the president's interpretation 
     of the law of war by declaring, ``The President is always 
     right''--a statement that is as outrageous as it is 
     inaccurate.
       The DOJ Office of Professional Responsibility reviewed Mr. 
     Bradbury's ``torture memos'' and determined they raised 
     questions about the objectivity and reasonableness of Mr. 
     Bradbury's analyses; that Mr. Bradbury relied on uncritical 
     acceptance of executive branch assertions; and that in some 
     cases Mr. Bradbury's legal conclusions were inconsistent with 
     the plain meaning and commonly held understandings of the 
     law.
       Senior government officials from the Bush Administration 
     who worked with Mr. Bradbury have said that they had ``grave 
     reservations'' about conclusions drawn in the Bradbury 
     torture memos and have described Mr. Bradbury's analysis as 
     flawed, saying the memos could be ``considered a work of an 
     advocacy to achieve a desired outcome.''
       Moreover, Mr. Bradbury's 2007 torture memo was written with 
     the purpose of evading congressional intent and duly enacted 
     Federal law.
       The Detainee Treatment Act of 2005, legislation that passed 
     the Senate with a vote 90-9, 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, Mr. Bradbury's memo explicitly allowed the 
     continuation of many of the abusive interrogation techniques 
     that Congress intended to prohibit in the DTA.
       Perhaps most concerning from a congressional oversight 
     perspective, Mr. Bradbury affirmatively misrepresented the 
     views of members of Congress to support his legal 
     conclusions.
       Specifically, in his 2007 memo, he relied on a false claim 
     that when the CIA briefed ``the full memberships of the House 
     and Senate Intelligence Committees and Senator McCain . . . 
     none of the Members expressed the view that the CIA detention 
     and interrogation program should be stopped, or that the 
     techniques at issue were inappropriate.''
       In fact, Senator McCain had characterized the CIA's 
     practice of sleep deprivation as torture both publicly and 
     privately, and at least four other Senators raised objections 
     to the program.
       As a senior government lawyer, Mr. Bradbury authorized 
     torture and cruel treatment of detainees in violation of U.S. 
     and international law.
       Mr. Bradbury demonstrated either an inability or an 
     unwillingness to display objectivity and reasonableness in 
     evaluating the president's policy proposals.
       We ask that in reviewing Mr. Bradbury's nomination for 
     general counsel of the Department of Transportation, another 
     profoundly important position of public trust, you take these 
     serious and disturbing factors into consideration.

  That letter was signed by the American Civil Liberties Union, Appeal 
for Justice, Center for Constitutional Rights, Center for Victims of 
Torture, the Constitution Project, the Council on American-Islamic 
Relations, Defending Rights and Dissent, Human Rights First, Human 
Rights Watch, the Leadership Conference on Civil and Human Rights, the 
National Religious Campaign Against Torture, Open Society Policy 
Center, Physicians for Human Rights, and Win Without War.
  Earlier this year, a group of 176 of the most respected retired 
generals and admirals wrote to then President-Elect Trump urging him to 
reject the very kinds of torture and cruel treatment Mr. Bradbury 
authorized. They wrote:

       We have over six thousand years of combined experience in 
     commanding and leading American men and women in war and in 
     peace, and believe strongly in the values and ideals that our 
     country holds dear. We know from experience that U.S. 
     national security policies are most effective when they 
     uphold these ideals.
       For these reasons, we are concerned about statements made 
     during the campaign about the use of torture or cruel, 
     inhuman, or degrading treatment of detainees in U.S. custody. 
     The use of waterboarding or any so-called ``enhanced 
     interrogation techniques'' is unlawful under domestic and 
     international law.
       Opposition to torture has been strong and bipartisan since 
     the founding of our republic, through the administration of 
     President Ronald Reagan to this very day. This was reinforced 
     last year when the Congress passed the McCain-Feinstein anti-
     torture law on an overwhelmingly bipartisan basis.
       Torture is unnecessary. Based on our experience--and that 
     of our Nation's top interrogators, backed by the latest 
     science--we know that lawful, rapport-based interrogation 
     techniques are the most effective way to elicit actionable 
     intelligence.
       Torture is also counterproductive because it undermines our 
     national security. It increases the risk to our troops, 
     hinders cooperations with allies, alienates populations whose 
     support the United States needs in the struggle against 
     terrorism, and provides a propaganda tool for extremists who 
     wish to do us harm.
       Most importantly, torture violates our core values as a 
     nation. Our greatest strength is our commitment to the rule 
     of law and to the principles embedded in our Constitution. 
     Our servicemen and women need to know that our leaders do not 
     condone torture or detainee abuse of any kind.

  I know some people might not understand why these enhanced 
interrogation techniques are a problem so let me just take a few 
moments to explain what they are.
  Waterboarding. Waterboarding is a well-known torture tactic. 
Waterboarding creates the sensation of asphyxiation or drowning. The 
detainee is immobilized on his back and water is poured over a cloth 
covering his face. Far from the ``dunk in the water'' Dick Cheney has 
referred to, internal CIA reports describe instances of waterboarding 
as ``near drownings.''
  Detainees were often waterboarded repeatedly. Khalid Shaikh Mohammed 
was waterboarded at least 183 times. Another detainee, Abu Zubaydah, 
was waterboarded so often that it led him at least once to become 
completely unresponsive, with bubbles rising through his mouth. This 
torture tactic may also lead to bleeding from the ears, severe lung and 
brain damage, and lasting psychological damage.
  If we waterboard our prisoners, they will waterboard our men and 
women when they become prisoners.
  Walling. Walling is a torture technique that involves encircling the 
detainee's neck with a collar or a towel and slamming him against the 
wall. Despite a requirement to use a false wall to avoid injury, Abu 
Zubaydah

[[Page S7201]]

was slammed against a concrete wall. Even in the event of using a false 
wall, detainees suffered extreme injury. Abu Ja'far al-Iraqi suffered 
from an edema, or swelling on his head, as a consequence of walling 
with the use of a false wall.
  If we use this technique on our prisoners, they will use this 
technique on our men and women in uniform if they were to capture them.
  Sleep deprivation. The detainees were kept awake by being shackled, 
forced to stand, or kept in stressed positions in an attempt to destroy 
their capacity for psychological resistance. This was routinely 
combined with nudity and/or round-the-clock interrogation. Although not 
overtly violent, extended periods of sleep deprivation can have painful 
and damaging mental and physical effects. After being forced to stand 
for 54 hours, Abu Ja'far al-Iraqi required blood thinners to treat the 
swelling in his legs. Following 56 hours without sleep, Arsala Khan 
suffered from violent hallucinations of dogs mauling and killing his 
family.
  If we--the United States of America--use this technique on our 
prisoners, our enemies will use this technique on our men and women in 
uniform should they be captured.
  Standing on broken feet. As an extreme form of sleep deprivation, two 
detainees--Abu Hazim and Abd al-Karim--were forced to stand for hours 
with broken feet. Despite recommendations that he avoid weight bearing 
for 3 months, Abu Hazim underwent 52 hours of standing sleep 
deprivation on his broken foot barely a month after his diagnosis. 
While injured, these detainees were also subject to walling.
  Again, when we do this to our prisoners, our enemies would do this to 
our troops.
  Solitary confinement. Detainees were regularly confined with no 
opportunity for social interaction. This is often combined with nudity, 
sensory deprivation, total darkness, or constant light, and shackling. 
Abu Zubaydah was isolated naked in a cell with bright lights and white 
noise or loud noise playing. At one point, he was kept for 47 days in 
total isolation.
  The dangers of solitary confinement were recognized by the U.S. 
Supreme Court as early as 1890 in In re Medley, where the Court 
described prisoners becoming violently insane, committing suicide, and 
the partial loss of their mental activity.
  If we do this to our prisoners, they would do it to our troops.
  Stress positions. These positions are designed to cause pain and 
discomfort for extended periods of time and were often used in 
combination with sleep deprivation. Detainees were shackled with their 
arms over their heads, forced to stay standing, or were placed in 
cramped confinement, such as coffin-sized boxes.
  Abd al-Rahim al-Nashiri was subjected to improvised stress positions 
that not only caused cuts and bruises but led to the intervention of a 
medical officer who was concerned that his shoulders would be 
dislocated. Abu Zubaydah was confined to a coffin-shaped box for a 
total of over 11 days.
  If we do this to our prisoners--and Mr. Bradbury justified this--they 
would do it to our troops.
  Rectal feeding and rectal exams. Rectal feeding was used for 
prisoners who refused food and entails insertion of a tube containing 
pureed food into the detainee's anal passage. This was used for 
behavioral control, without medical necessity, despite risks of damage 
to the colon and rectum or of food rotting inside the digestive tract. 
One detainee, Mustafa Ahmed al-Hawsawi, suffered a rectal prolapse 
likely caused by overly harsh rectal exams.
  If we do this to our prisoners--and Mr. Bradbury's memo made it so we 
could--they would do this to our troops should our troops be captured 
by the enemy.
  Nudity. This form of sexual humiliation relies on cultural and 
religious taboos and required detainees to be fully or partially naked 
during interrogations or when shackled. Nudity was also regularly 
combined with cold temperatures and cold showers. One detainee, Gul 
Rahman, died of suspected hypothermia following 48 hours of sleep 
deprivation, half naked, in an extremely cold room.
  Again, if we do this to our prisoners--and Mr. Bradbury wrote the 
legal justification allowing this to happen--they will do this to our 
troops. We do not want this man in the U.S. Government making more 
decisions about what is right and what is wrong and how to protect the 
American public. If he was willing to do this and allow this to happen, 
what can we trust him to have good judgment on?
  In a September 6, 2006, article by Sean Alfano at CBS/AP entitled 
``U.S. Army Bans Torture Of Prisoners,'' he wrote:

       A new U.S. Army manual bans torture and degrading treatment 
     of prisoners, for the first time specifically mentioning 
     forced nakedness, hooding and other procedures that have 
     become infamous since the Sept. 11, 2001 terrorist attacks. 
     Delayed more than a year amid criticism of the Defense 
     Department's treatment of prisoners, the new Army Field 
     Manual was released Wednesday, revising [a previous] one from 
     1992.
       It also explicitly bans beating prisoners, sexually 
     humiliating them, threatening them with dogs, depriving them 
     of food or water, performing mock executions, shocking them 
     with electricity, burning them, causing other pain and a 
     technique called ``water boarding'' that simulates drowning, 
     said Lt. Gen. John Kimmons, Army Deputy Chief of Staff for 
     Intelligence.
       Officials said the revisions are based on lessons learned 
     since the U.S. began taking prisoners in response to the 
     Sept. 11, 2001, attacks on the United States.
       Release of the manual came amid a flurry of announcements 
     about the U.S. handling of prisoners, which has drawn 
     criticism from Bush administration critics as well as 
     domestic and international allies.
       The Pentagon also announced an overall policy statement on 
     prisoner operations. And President George W. Bush 
     acknowledged the existence of previously secret CIA prisons 
     around the world where terror suspects have been held and 
     interrogated, saying 14 such al Qaeda leaders had been 
     transferred to the military prison at Guantanamo Bay and will 
     be brought to trial.
       An international outcry about prisoner rights began shortly 
     afterward. Human rights groups and some nations have urged 
     the Bush administration to close the prisons at the U.S. 
     naval base in Guantanamo Bay, Cuba, since not long after it 
     opened in 2002 with prisoners from the campaign against al 
     Qaeda in Afghanistan. Scrutiny of U.S. treatment of prisoners 
     shot to a new level in 2004 with a release of photos showing 
     U.S. troops beating, intimidating and sexually abusing 
     prisoners at Abu Ghraib in Iraq--and then again with news of 
     secret facilities.
       Though defense officials earlier this year debated writing 
     a classified section of the manual to keep some interrogation 
     procedures a secret from potential enemies, Kimmons said 
     Wednesday that there is no secret section to the new manual.
       Defense Secretary Donald H. Rumsfeld has said from the 
     start of the counter-terror war that prisoners were treated 
     humanely and in a manner ``consistent with Geneva 
     Conventions.''
       But President George W. Bush decided shortly after the 
     Sept. 11 attacks that since it was not a conventional war, 
     ``unlawful enemy combatants'' captured in the fight against 
     al Qaeda would not be considered prisoners of war and thus 
     would not be afforded the protections of the convention.

  The new manual, called ``Human Intelligence Collector Operations,'' 
applies to all the armed services, not just the Army. It does not cover 
the Central Intelligence Agency, which also has come under 
investigation for mistreatment of prisoners in Iraq and Afghanistan and 
for allegedly keeping suspects in secret prisons elsewhere around the 
world since the Sept. 11 attacks.

       Sixteen of the manual's 19 interrogation techniques were 
     covered in the old manual and three new ones were added on 
     the basis of lessons learned from the counter-terror war, 
     Kimmons said.
       The additions are that interrogators may use the good-cop/
     bad-cop tact with prisoners, they may portray themselves as 
     someone other than an American interrogator, and they may use 
     ``separation,'' basically keeping prisoners apart from each 
     other so enemy combatants can't coordinate their answers with 
     each other.
       The last will be used only on unlawful combatants, not 
     POWs, only as an exception and only with permission of a 
     high-level commander, Kimmons said.
       The Pentagon also on Wednesday released a new policy 
     directive on detention operations that says the handling of 
     prisoners must--at a minimum--abide by the standards of the 
     Geneva Conventions and lays out the responsibilities of 
     senior civilian and military officials who oversee detention 
     operations.
       ``The revisions . . . took time,'' Deputy Assistant 
     Secretary of Defense for Detainee Affairs Cully Stimson said 
     at the briefing. ``It took time because it was important to 
     get it right, and we did get it right.''

  It is interesting that the Department of Defense took the time and 
the effort to rewrite their manuals as a result of the abuses that came 
about following Mr. Bradbury's legal justification for the use of 
torture.
  Here is what the Army Field Manual 2-22.3 says. This is the Human 
Intelligence Collector Operations manual,

[[Page S7202]]

dated September 6, 2006. This is what the Army now teaches our 
soldiers:

       All captured or detained personnel, regardless of status, 
     shall be treated humanely and in accordance with the Detainee 
     Treatment Act of 2005 and DOD Directive 2310.1E, ``Department 
     of Defense Detainee Program,'' and no person in the custody 
     or under the control of DOD, regardless of the nationality or 
     physical location, shall be subject to torture or cruel, 
     inhuman, or degrading treatment or punishment, in accordance 
     with and as defined in US law.
       All intelligence interrogations, debriefings, and tactical 
     questionings to gain intelligence from captured or detained 
     personnel shall be conducted in accordance with applicable 
     law and policy.
       Applicable law and policy include US law; the law of war; 
     relevant international law, relevant directives, including 
     DOD Directive 3115.09, ``DOD Intelligence Interrogations, 
     Detainee Debriefings, and Tactical Questioning''; DOD 
     Directive 2310-1E, ``The Department of Defense Detainee 
     Program''; DOD instructions; and military execute orders 
     including FRAGOs. Use of torture is not only illegal but also 
     it is a poor technique that yields unreliable results, may 
     damage subsequent collection efforts, and can induce the 
     source to say what he thinks the HUMINT collector wants to 
     hear. Use of torture can also have many possible negative 
     consequences at national and international levels.

  All prisoners and detainees, regardless of status, will be treated 
humanely.
  Cruel, inhuman, and degrading treatment is prohibited. The Detainee 
Treatment Act of 2005 defines ``cruel, inhuman or degrading treatment'' 
as the cruel, unusual, and inhumane treatment or punishment provided by 
the Fifth, Eighth, or Fourteenth Amendments to the U.S. Constitution.
  This definition refers to an extensive body of law developed by the 
courts of the United States to determine when, under various 
circumstances, treatment of individuals would be inconsistent with 
American constitutional standards related to concepts of dignity, 
civilization, humanity, decency, and fundamental fairness.
  All DOD procedures for treatment of prisoners and detainees have been 
reviewed and are consistent with these standards as well as our 
obligation under international law as interpreted by the United States.
  Questions about applications not resolved in the field by reference 
to the DOD publications must be forwarded to higher headquarters for 
legal review and specific approval by the appropriate authority.
  Isn't it amazing that it took the Army to contradict and to come up 
with the procedures to counter the very actions Mr. Bradbury was 
willing to condone? And we want this man back in government? He doesn't 
belong back in government. This is a man who has, as his first 
priority, not America's values, not the morality of this Nation, not 
humanity--his first value is: What is it that my boss wants me to say, 
and I will find a way to do it. He said just as much in testimony. That 
is not who we want as a top lawyer over in the Department of 
Transportation. It is simply not acceptable.
  In that same Army Field Manual, there is a section that talks about 
how interrogation should be conducted and the prohibited actions 
included, which are not limited to forcing the detainee to be naked, to 
perform sexual acts, or pose in a sexual manner, placing hoods or sacks 
over the head of a detainee, using duct tape over the eyes, applying 
beatings, electric shock, burns, or other forms of physical pain, 
waterboarding, using military working dogs, inducing hypothermia or 
heat injury, conducting mock executions, depriving the detainee of 
necessary food, water, or medical care.
  The field manual goes on to say:

       While using legitimate interrogation techniques, certain 
     applications of approaches and techniques may approach the 
     line between permissible actions and prohibited actions. It 
     may often be difficult to determine where permissible actions 
     end and prohibited actions begin. In attempting to determine 
     if a contemplated approach or technique should be considered 
     prohibited, and therefore should not be included in an 
     interrogation plan, consider these two tests before 
     submitting the plan for approval:
       If the proposed approach technique were used by the enemy 
     against one of your fellow soldiers, would you believe the 
     soldier had been abused?
       Could your conduct in carrying out the proposed technique 
     violate a law or regulation? Keep in mind that even if you 
     personally would not consider your actions to constitute 
     abuse, the law may be more restrictive.

  I wish those questions had been made available to Mr. Bradbury when 
he was writing his memo, because the actions he condoned in his memo 
certainly would have failed this very simple two-question test.
  The manual says:

       If you answer yes to either of these tests, the 
     contemplated action should not be conducted. If the HUMINT 
     collector has any doubt that an interrogation approach 
     contained in an approved interrogation plan is consistent 
     with applicable law, or if he believes that he is being told 
     to use an illegal technique, the HUMINT collector should seek 
     immediate guidance from the chain of command and consult with 
     the SJA to obtain a legal review of the proposed approach or 
     technique. . . . If the HUMINT collector believes that an 
     interrogation approach or technique is unlawful during the 
     interrogation of a detainee, the HUMINT collector must stop 
     interrogation immediately and contact the chain of command 
     for additional guidance.

  This is not something that Steven Bradbury did or has even now stated 
that he wished he had done, because his memo, which allowed all the 
torture techniques I have already detailed, would truly have failed 
these two tests, and he would have failed in moving forward with his 
memo to do the basic thing, which is to stop an illegal activity from 
occurring.
  At this point, the Army Field Manual provides some caution:

       Although no single comprehensive source defines 
     impermissible coercion, certain acts are clearly prohibited. 
     Certain prohibited physical coercion may be obvious, such as 
     physically abusing the subject of the screening 
     interrogation. Other forms of impermissible coercion may be 
     more subtle, and may include:
       Threats to turn the individual over to others to be abused; 
     subjecting the individual to impermissible humiliating or 
     degrading treatment; implying harm to the individual or his 
     property. Other prohibited actions include implying a 
     deprivation of applicable protections guaranteed by law 
     because of a failure to cooperate; threatening to separate 
     parents from their children; or forcing a protected person to 
     guide US forces in a dangerous area. Where there is doubt, 
     you should consult your supervisor or servicing judge 
     advocate.

  This is the problem. Mr. Bradbury, in writing this memo, showed 
absolutely no attempt or even desire to figure out whether what he was 
trying to justify was truly legal, in keeping with American values, or 
was the right thing to do for the United States. He simply moved 
forward with drafting this memo because the President of the United 
States wanted it to happen. That is not the democracy we live in. We 
don't live in a dictatorship. We are the greatest democracy on the face 
of the Earth because we are individuals who have the right to exercise 
a moral authority and to speak up. Mr. Bradbury showed none of that.
  Even in testimony, he has expressed no regrets in the legal 
wranglings that he went through in order to justify torture. He showed 
no introspection, no thought as to whether it was the right thing to 
do. As far as he was concerned, his superiors wanted him to do this, so 
he did it.
  What is he going to do at the Department of Transportation? What is 
he going to do when someone there tells him: The airbag manufacturers 
have decided it is just too expensive, so we need you to come up with 
justification for us to stop using airbags?
  What he is going to do when people come to him and say: We really 
want to increase alcohol sales, so I think we should get rid of drunk 
driving laws? What he is going to do?
  He has shown that he is willing to do whatever his superiors have 
asked him to do and that he is just the right guy for the job if they 
want a lawyer who is going to execute legal gymnastics to find a way to 
make something happen. Do we really want that person at the very top of 
the legal department of the Department of Transportation--not to 
mention the fact that once he is Senate-confirmed and in the Department 
of Transportation, it is that much easier to move him to another 
Senate-confirmed position, and there is no guarantee that he will not 
make his way back over to the Department of Justice to create more 
harm.
  I ask my colleagues, if you care about this country, if you care 
about our troops who are in harm's way right now, please understand 
what it means to our troops who are downrange right now in all corners 
of the globe--facing the enemy, facing potentially being captured in 
the execution of their duties, protecting and defending our

[[Page S7203]]

great United States--to know that the enemy believes that America 
tortures and to know that they are at that much greater risk, if they 
were to be captured, to be tortured themselves.
  I can't oppose Mr. Bradbury's nomination strongly enough. His most 
prominent, consequential work was to justify unlawful torture and 
detainee abuse. His comments in testimony during his confirmation 
hearings did not alleviate any of my concerns.
  I know many of my colleagues are considering voting yes on this man 
because they think: Well, he is going to be over in the Department of 
Transportation. That was years ago; he will not have to write legal 
justification for the use of torture again, and we have passed laws 
about it since then. But he has shown that despite existing laws, he 
was able to find a way to get around them to justify torture. How do we 
know he will not do the same thing again at the Department of 
Transportation when it comes to public safety? What about our kids who 
ride school buses to school? They deserve protections.
  The American public deserves protections. What they don't deserve is 
a man who has no moral compass when it comes to what is right and what 
is wrong but only a compass that asks: What do my bosses want me to do? 
That is not what the American people need. That is certainly not 
something we should be voting for.
  If, in conversations with Mr. Bradbury, he promised you that he would 
be independent, I just ask you to look at his record. He has never been 
independent. In fact, when asked if he would recuse himself from 
various cases, he, in committee, avoided answering those questions, did 
not answer them straightforwardly, and showed he is simply not willing 
to commit to doing what is right.
  I don't know how anyone can vote for him. I don't know what he has 
said in private conversations--what he says he thinks he would do at 
the Department of Transportation. All I can ask is for my colleagues to 
please look at the evidence, and the evidence is overwhelming. This is 
a man who cannot be trusted with the values of this country. He cannot 
be trusted to do what is right on behalf of the American people. He is 
not someone who will speak truth to power. If anything, this is a time 
in this country that we need more people who will speak truth to power, 
not someone who will kowtow to power, and that is exactly the kind of 
person Mr. Bradbury is. He is an unprincipled lawyer who will be paired 
with an unprincipled executive, and that is a dangerous combination 
regardless of what agency he serves.
  Again, I ask my colleagues to please vote no on Mr. Bradbury. I 
cannot oppose his nomination strongly enough. If you have any 
questions, please come talk to those of us who have worn the uniform of 
this great Nation, who know what it is like to be in jeopardy of being 
captured by the enemy, who know what it is like to hope and pray that 
the nations around the world--which view America's conduct as the 
bellwether for how we treat others--know that they themselves will be 
treated in the same manner that we treat our prisoners.
  Those troops in harm's way right now know that because of Mr. 
Bradbury, they are less safe and they are less able to do their jobs. 
When our troops go into harm's way, they should focus only on getting 
the job done, not on what might happen should they get captured. Thanks 
to Mr. Bradbury, that is a real threat for them now.
  Again, I ask my colleagues to please say no.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Hoeven). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I want to begin by thanking the 
Senator from Illinois. Not only did she serve this country, she 
sacrificed for this country. I for one, as I see her rolling up and 
down the aisles and through the halls, am just so proud and so thankful 
for her, for her family, for her work, and particularly I thank her for 
these comments. I think the Senator is very worthy, and I am delighted 
to be her colleague.
  Mr. President, 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--and 
still am--and one of the things 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 opinions.
  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 or the War Crimes Act or the Geneva 
Conventions.
  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 U.S. 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 6 years of reviewing cables 
and information--all factual, not declassified, and a summary was 
declassified--and to date, nothing in it has been contradicted. 
Capturing terror 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 is interesting.
  Even more troubling, Bradbury's 2007 memo was written with the 
purpose of evading congressional intent. It is 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 2 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 include forced nudity and 
extended sleep deprivation. This should be a disqualifier for

[[Page S7204]]

continued service in the U.S. Government, regardless of the position, I 
believe.
  It is true that Congress settled this matter in June of 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 is 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 the 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 that one would have to be ``an idiot 
not to know what was wanted.'' Comey also said that in his opinion, 
Bradbury knew that ``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. I urge 
my colleagues to oppose his nomination.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Strange). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, I rise today to speak in opposition to the 
nomination of Steven Bradbury to be the general counsel of the 
Department of Transportation. I must say to my colleagues, of the years 
that I have been here, I never thought that we would be considering the 
nomination of a person who supported the commission of what the Geneva 
Convention says are war crimes. That is a serious, serious issue. And 
the Constitution charges the Senate to give its advice and consent to 
senior executive branch nominations as a check against the appointment 
of people to an important government position who, because of one 
failure or another, should not be entrusted with the interests of the 
American people. I do not believe that Mr. Bradbury deserves that 
public trust, and I will oppose his nomination. I am astonished that we 
are here, considering the nomination of a person who is in violation of 
the Geneva Convention, the rules of war to which the United States of 
America is signatory.

  Some of us remember that Mr. Bradbury served as the acting head of 
the Department of Justice's Office of Legal Counsel from 2005 to 2009. 
During this time, he authored a few of what have become to be known 
infamously as the torture memos, which provided the legal 
justifications for 13 types of enhanced interrogation techniques 
employed by the CIA against detainees held by the United States under 
law of war authorities.
  My dear friends and colleagues, the term ``enhanced interrogation 
techniques'' is a euphemism. These memos provided a legal framework for 
the use of methods that include waterboarding, which is a mock 
execution and an exquisite form of torture in which the victim suffers 
the terrible sensation of drowning. In discussing this practice, we are 
speaking of an interrogation technique that dates from the Spanish 
Inquisition and has been a prosecutable offense for over a century. It 
is among the crimes for which Japanese war criminals were tried and 
hanged following World War II and was employed by the infamous Khmer 
Rouge in Cambodia. I repeat. The Japanese war criminals were tried and 
hanged following World War II for--guess what--waterboarding. Of 
course, the Khmer Rouge, whom we all know about, was also one of those.
  I must say to my colleagues that in the years I have been here in the 
U.S. Senate, I never believed that I would be voting against an 
individual who justified the practice of torture. All you have to do is 
read the Geneva Conventions, to which the United States of America is 
signatory, and you will see that Mr. Bradbury's memos, which basically 
justified torture, were in direct contravention.
  The memos of which Mr. Bradbury was the author provided the 
justifications for the inhumane interrogation of detainees by using 
methods such as forced nudity and humiliation, facial and abdominal 
slapping, dietary manipulation, stress positions, cramped confinement, 
striking, and more than 48 hours of sleep deprivation. I would 
challenge Mr. Bradbury to go through 48 hours of sleep deprivation 
before he signs off on another memo. Worse, the legal justifications 
for these techniques were interpreted to permit their use 
simultaneously, over long periods of time, which constituted what I and 
many others who are familiar with these techniques believe are 
torture--torture inflicted by the representatives of a Nation founded 
on the ideal that all people are born with equal dignity and that even 
enemies who scorn our ideals, once they are our prisoners, are to be 
spared cruel, inhuman, and degrading treatment.
  The memos authored, in part, by Mr. Bradbury justified the use of 
these techniques under article 16 of the United Nations Convention 
against Torture and declared them not in contravention to article 3 of 
the Geneva Conventions, which prohibits ``outrages upon personal 
dignity''--those are the Geneva Conventions to which the United States 
is signatory--and violence to a life of a person. Most people, 
including, I am sure, Mr. Bradbury, have never been tightly bound, made 
to remain in a stress position, and deprived of sleep for 48 hours. Let 
me assure my colleagues that anyone who has suffered such treatment 
will know that he has been tortured.
  The two main memos that Mr. Bradbury wrote and signed were entitled 
``Application of United States Obligations Under Article 16 of the 
Convention Against Torture to Certain Techniques that May Be Used in 
the Interrogation of High Value al Qaeda Detainees'' and ``Application 
of the War Crimes Act, the Detainee Treatment Act, and Article 3 of the 
Geneva Conventions to Certain Techniques that May Be Used by the CIA in 
the Interrogation of High Value al Qaeda Detainees.''
  In the Senate Select Committee on Intelligence's study of detention 
and interrogation program, CIA leadership and interrogators frequently 
cited these two Bradbury memos as the legal justification that 
permitted them to use enhanced interrogation techniques. These 
techniques amounted to de facto torture. Put simply, Mr. Bradbury's 
memos were permission slips for torture. I repeat to my colleagues who 
are about to vote for him that his memos were permission slips for 
torture.

[[Page S7205]]

  I wonder, of someone who is responsible for what he justifies, how he 
sleeps. I wonder how he gets rest. Doesn't the face of that person who 
has been deprived of sleep for 48 hours ever pop into his mind?
  I have long said that I understand the reasons that governed the 
decision to approve these interrogation methods, and I know that those 
who approved them and those who employed them in the interrogation of 
captured terrorists were dedicated to protecting the American people 
from harm. I know that they were determined to keep faith with the 
victims of terrorism and prove to our enemies that the United States 
would pursue justice relentlessly and successfully no matter how long 
it took. I know that their responsibilities were grave and urgent and 
that the strain of their duty was considerable. I admire their 
dedication and love of country, but I argued then and I argue now that 
it was wrong to use these methods, that it undermined our security 
interests, and that it contradicted the ideals that define us and which 
we have sacrificed so much to defend.

  While Mr. Bradbury has justified his work on these torture memos as 
the duty of a lawyer representing his client, the Commander in Chief of 
the United States, I believe that he had a higher duty, as do all who 
serve this country, to defend our most cherished ideals from wholesale 
violation in the name of self-defense. Leave aside the fact that, as 
intelligence-gathering tools, torture is mostly useless and has been 
proven to be so by the record assembled by the Intelligence Committee. 
We have led by example and sacrificed blood and treasure to advance our 
ideals around the world only to undermine our good reputation in a 
crucible in which we allowed fears to get the better of our decency.
  While it is true, as Mr. Bradbury and his supporters claim, that the 
memos issued under his name improved upon the sloppy and more expansive 
legal work done by his predecessors, I do not think that that absolves 
Mr. Bradbury of his role in this dark chapter of American history. 
Indeed, a more meticulous justification for torture is still a 
justification for torture--and, arguably, a more pernicious one.
  Let's not pretend that there was no direct connection between the 
legal work done by Mr. Bradbury and the abuses that followed. The memos 
that bear his name made it possible for Khalid Sheikh Mohammed--a 
monster and a murderer, to be sure, but a detainee held in U.S. custody 
under the laws of armed conflict--to be waterboarded 183 times. I 
repeat. Khalid Sheikh Mohammed was waterboarded 183 times. This 
technique was used so gratuitously that even those applying it 
eventually came to believe that there was no reason to continue. They 
were ordered to do so anyway.
  The memos also made it possible for Abu Zubaydah, an alleged al-Qaida 
operative, to be subjected to waterboarding two to four times a day, 
rendering him so distressed that he was unable to speak. The damaging 
effects of waterboarding cannot be overstated. According to the Senate 
Intelligence Committee's report on torture, Zubaydah's waterboarding 
sessions ``resulted in immediate fluid intake and involuntary leg, 
chest and arm spasms'' and hysterical pleas. In at least one session, 
``Zubaydah became completely unresponsive, with bubbles rising through 
his open, full mouth,'' and he required medical intervention.
  The memos that bear Mr. Bradbury's name also made it possible for a 
Libyan detainee and his wife to be rendered to a foreign country where 
the woman was bound and gagged, while being several months pregnant, 
and photographed naked as several American intelligence officers 
watched.
  I wonder what our average citizens would think when we tell them that 
an agent of the American Government took a woman who was several months 
pregnant and bound, gagged, and photographed her naked as several 
American intelligence officers watched. I am told that that picture 
still exists somewhere in the archives that has recorded this shameful 
period in our history.
  In voting against Mr. Bradbury's nomination, as I also voted last 
week for similar reasons against Mr. Steven Engel's nomination to head 
the Department of Justice's Office of Legal Counsel, I am making it 
clear that I will not support any nominee who justified the use of 
torture by Americans. The laws of war were carefully created to be 
precise and technical in nature but also to leave room for 
interpretation, even at the risk of abuse by the executive branch. This 
makes the duty of government lawyers all the more significant. They 
must serve as guardians of our ideals and our obligations under 
international law. They are the safeguards and checks on the conscience 
of our government, and I cannot in good faith vote to confirm lawyers 
who have fallen short in this awesome responsibility.
  I will cast my vote against Mr. Bradbury, not because I believe him 
to be unpatriotic or malevolent but because I believe that what is at 
stake in this confirmation vote, much as what we stand to gain or lose 
in the war we are still fighting transcends the immediate matter before 
us. Ultimately, this is not about Mr. Bradbury; this is not about 
terrorists. This is about us--who we are and who we will be in the 
future.
  This is about what we lose when, by official policy or official 
neglect, we allow, confuse, or encourage those who fight this war for 
us to forget that best sense of ourselves. This is our greatest 
strength: When we fight to defend our security, we also fight for an 
idea--not a tribe, not a land, not a King, not a twisted interpretation 
of an ancient religion but for an idea that all men are created equal 
and endowed with unalienable rights.
  It is indispensable to our success in this war that those we ask to 
fight it know that in the discharge of their responsibilities to our 
country, they are expected never to forget that they are Americans and 
the defenders of a sacred idea of how nations should be governed and 
conduct their relations with others, even our enemies.
  Those of us who have given them this enormous duty are obliged by our 
history and the many terrible sacrifices that have been made in our 
defense to make clear to them that they need not risk our country's 
honor to prevail and that they are always, always, always Americans--
and different, stronger, and better than those who would destroy us.
  Mr. Bradbury's work many years ago did a disservice to our Nation and 
its defenders. I cannot in good conscience give him my trust to serve 
us again.
  I am confident, because of the way this system works, that Mr. 
Bradbury will be confirmed, probably. This is a dark, dark chapter in 
the history of the United States Senate. We are legitimizing offenses 
against the code of the Geneva Conventions. We are harming the 
commitment that our forefathers made that we are all created equal. 
Unfortunately, we have now betrayed that sacred trust.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. TILLIS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. TILLIS. Mr. President, I ask unanimous consent that all 
postcloture time be yielded back.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The question is, Will the Senate advise and consent to the Bradbury 
nomination?
  Mr. TILLIS. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New Jersey (Mr. Booker), 
the Senator from New Jersey (Mr. Menendez), and the Senator from 
Maryland (Mr. Van Hollen) are necessarily absent.
  The PRESIDING OFFICER (Mr. Johnson). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 50, nays 47, as follows:

[[Page S7206]]

  


                      [Rollcall Vote No. 272 Ex.]

                                YEAS--50

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Cochran
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson
     Kennedy
     Lankford
     Lee
     McConnell
     Moran
     Murkowski
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Strange
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--47

     Baldwin
     Bennet
     Blumenthal
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Duckworth
     Durbin
     Feinstein
     Franken
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     McCain
     McCaskill
     Merkley
     Murphy
     Murray
     Nelson
     Paul
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall
     Warner
     Warren
     Whitehouse
     Wyden

                             NOT VOTING--3

     Booker
     Menendez
     Van Hollen
  The nomination was confirmed.
  The PRESIDING OFFICER. The majority leader.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that with 
respect to the Bradbury nomination, the motion to reconsider be 
considered made and laid upon the table and the President be 
immediately notified of the Senate's action.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

                          ____________________