[Congressional Record Volume 163, Number 186 (Tuesday, November 14, 2017)]
[Senate]
[Pages S7194-S7206]
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 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
[[Page S7199]]
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.
____________________
