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Who Is Steve Bradbury?
It took two days of hearings for the Senate Judiciary Committee to reinforce its consensus that Michael Mukasey should be attorney general. The panel asked Mukasey tough questions about torture, detentions, surveillance and the president's inherent wartime powers. But those questions might have been misdirected. That's because an obscure Justice Department lawyer, Steven G. Bradbury, the acting head of the Office of Legal Counsel (OLC), might actually be more important to the war on terrorism than the attorney general.
It's also a position that's arguably more important to the administration too, since the OLC chief has the power to issue what former chief Jack Goldsmith called "an advance pardon" for dubious activities.
Yet while Bradbury has been serving as the acting head of the office since early 2005, he's never been confirmed for the spot. Senate Democrats continue to express opposition to Bradbury's nomination and say he remains in the position illegally.
Bradbury, a respected conservative lawyer, was nominated by President Bush in June 2005 to fill the void left by Goldsmith. The Office of Legal Counsel's job is to give guidance about whether certain government policies or presidential prerogatives are legal. But it's not meant to be an advocate for the president himself -- that's the White House counsel's responsibility. Goldsmith, in an agonizing reappraisal during 2003 and 2004, ended up rescinding earlier OLC directives about interrogation, expressed discomfort over administration plans to try terrorism suspects in military tribunals, and was part of a near-revolt in DOJ over warrantless surveillance, all of which is documented in Goldsmith's meditation on presidential authority, The Terror Presidency.
Following the president's reelection, the White House put loyalist Alberto Gonzales atop the Justice Department. Gonzales, the former White House counsel, was a consistent critic of Goldsmith's, and a staunch ally of presidential-power hardliners like David Addington and Dick Cheney. But Gonzales couldn't directly undo Goldsmith's revisions. That power falls to the OLC chief, and so the White House tapped Steven Bradbury, who had been deputy OLC chief, for the job.
But Bradbury, who clerked for Supreme Court Justice Clarence Thomas before taking a job with Ken Starr's law firm, hit a snag. In August 2006, three Democratic senators, Dick Durbin (D-IL), Ted Kennedy (D-MA) and Russ Feingold (D-WI), blocked Bradbury's nomination in a maneuver to compel the Bush administration to disclose more about its warrantless surveillance program. Around that time, President Bush personally quashed a review by the Justice Department's Office of Professional Responsibility into the propriety of DOJ lawyers who approved the program. The Democrats countered that they couldn't confirm Bradbury until he was formally cleared of wrongdoing.
The move angered Gonzales, who had told the judiciary committee that Bradbury's work was "critical." But since the OPR investigation died, Bradbury was caught. An attempted renomination in January of this year went nowhere.
But a funny thing happened on the way to Bradbury's downfall: he stayed in his job. And it's not hard to see why. Throughout 2006, Bradbury argued forcefully that the Supreme Court's rejection of the administration's military tribunals in terrorism cases was incorrectly decided. He argued that Geneva Conventions language barring "humiliating and degrading treatment" was hopelessly vague, and subject to "uncertain and unpredictable application." He was a leading advocate of the Military Commissions Act of 2006, which revoked habeas corpus for terrorism detainees. He authored an opinion immunizing ex-White House counsel Harriet Miers from testifying in the U.S. attorneys investigation. And, most infamously, he apparently authored secret memoranda reauthorizing torture techniques, including waterboarding.
Bradbury, however, shouldn't have been in his job, at least not this year. A 1998 law called the Vacancies Reform Act bars non-Senate-confirmed appointees for holding their jobs for longer than 210 days. Durbin, Kennedy and Feingold wrote to Bush this week to note Bradbury's "apparent violation" of the statute, and asked Bush to offer up a new nominee as OLC chief. You can read that letter here.
Whether that happens is the next big legal test for the Bush administration in the war on terrorism. Bradbury received crucial support yesterday from Sen. Arlen Specter (R-PA), the top Republican on the judiciary committee. Mukasey showed no inclination to urge Bush to throw Bradbury overboard. Even if he ultimately recommends that a new OLC chief should be appointed, it's ultimately Bush's call. Given how precious the OLC's blessing is to the White House on crucial counterterrorism programs, it's clear that what happens with Bradbury will reveal a lot about Bush's intentions as he heads into his final year in office.
Comments (35)
Scott L wrote on October 19, 2007 12:40 PM:Just another rodent in the woodpile.
Scott L wrote on October 19, 2007 12:42 PM:Just another rodent in the woodpile.
DallasNE wrote on October 19, 2007 1:12 PM:This arrangement makes no sense. Why should an executive department official make a ruling founded on an opinion that the Supreme Court ruled wrongly on a matter of law. Frankly, this position does not even belong in the Justice Department.
It seems to me that something along the lines of the FISA Court is necessary for rulings of this nature. Should the Administration not agree with this Courts ruling they could appeal up to the Supreme Court.
Do I sometimes think the Supreme Court rules wrongly? Yes. Do I accept the ruling of the Supreme Court? Yes. That is the way it is supposed to work in a nation of laws. Obviously, Bush thinks that during an endless war on terror that he is above the law. This looks like it is no more than another article for impeachment.
Dennis wrote on October 19, 2007 1:24 PM:"Bradbury received crucial support yesterday from Sen. Arlen Specter (R-PA), the top Republican on the judiciary committee."
Good ole boy, Arlen Specter. Best damned forked tongue in Washington.
You don't have to be a blind conservative not to see it, just an ignorant one to deny it.
centerfielder wrote on October 19, 2007 1:36 PM:The president's refusal to comply with the Vacancies Reform Act is a direct violation of the law and should be considered an impeachable offense.
If Durbin et al. are really serious, they will file a bill of impeachment.
sailmaker wrote on October 19, 2007 1:47 PM:Nice situation Addington/Bush/Cheney have fixed up for themselves - their own private appellate court to rubber stamp their opinions. I wonder what it would take to curb these abuses in the future?
Anonymous wrote on October 19, 2007 1:50 PM:Yikes, shockingly lawless behavior!
Why didn't anyone figure out sooner that Bradbury had overstayed his appointment?!
I suppose there is no remedy, other than impeachment, for a lawless president who refuses to remove a non-confirmed appointee in violation of the Vacancies Reform Act.
Great, just great. The torturers rule the hen house.
Dennis wrote on October 19, 2007 1:54 PM:Regarding the remarks of "sailmaker" @1:47 p.m.
I'm beginning to wonder if all of the stalling by Nancy Pelosi and others, on this and other matters, isn't for the purpose of allowing them to do the same thing if/when they take office in 2009.
You don't have to be a blind conservative not to see it, just an ignorant one to deny it.
Taxpayer wrote on October 19, 2007 2:13 PM:Why doesn't somebody do something about it? All this shady activity -- and all that ever happens is hearings and talk...
Shadow Wolf wrote on October 19, 2007 3:17 PM:To centerfielder:
Does ANYONE in this country remember how impeachment actually WORKS?
Durbin, etc. CANNOT file a bill of impeachment - they are SENATORS, and impeachment begins in the HOUSE.
(And let's be honest. Cheney would be far worse than Bush. Even if by some miracle we got enough Republican Senator's to convict Bush and remove him from office, we'd be at war with Iran within the hour. As for impeaching both Bush *and* Cheney - this would make Nancy Pelosi President - even admitting to *considering* such an idea would lead to scream of outrage about the Democrats pulling a coup de etat, and is there ANYONE delusional enough to believe that even ONE Republican Senator would vote to make Pelosi President?)
Without at least 16 honest Republican Senators, removing Bush and/or Cheney from office through impeachment is simply *impossible*. And frankly, I don't think there's even ONE honest Republican Senator.
AZBelle wrote on October 19, 2007 3:35 PM:After watching Frontline this week (episode: Cheney's Law), it's easier for me to put this in perspective.
If you did not see this episode of Frontline, you can watch it online. Or you can see if you can somehow follow the pbs.com links to see if your local PBS station will re-air this program.
One line from the program (as I loosely remember), "The OLC is the most important office in the government that you've never heard of." And it proceeded with interviews with John Yoo and Jack Goldsmith.
Very much worth the watch. And points out just how important focusing on Steven Bradbury is right now.
quasar wrote on October 19, 2007 3:36 PM:DallasNE wrote on October 19, 2007 1:12 PM:
"This arrangement makes no sense. Why should an executive department official make a ruling founded on an opinion that the Supreme Court ruled wrongly on a matter of law. Frankly, this position does not even belong in the Justice Department."
What I THINK I understand about the OLC is that it is actually the office of the assistant attorney generals' office.
http://www.usdoj.gov/olc/opinions.htm
quasar wrote on October 19, 2007 3:46 PM:The Attorney General has directed the Office of Legal Counsel to publish selected opinions for the convenience of the executive, legislative, and judicial branches of the government, and of the professional bar and the general public. The authority of the Office of Legal Counsel to render legal opinions is derived from the authority of the Attorney General. Under the Judiciary Act of 1789, the Attorney General was authorized to render opinions on questions of law when requested by the President and the heads of executive departments. This authority is now codified at 28 U.S.C. §§ 511-513. Pursuant to 28 U.S.C. § 510 the Attorney General has delegated to the Office of Legal Counsel responsibility for preparing the formal opinions of the Attorney General, rendering opinions to the various federal agencies, assisting the Attorney General in the performance of his function as legal adviser to the President, and rendering opinions to the Attorney General and the heads of the various organizational units of the Department of Justice. 28 C.F.R. § 0.25.
According to the Frontline doc "Cheney's Law" that poster AZBelle mentioned above, Bradbury is the one that was the instrument in putting together the opinions of Bush's many signing statements.
Gonzales was just a macho puppet.
workaday joe wrote on October 19, 2007 5:23 PM:If that letter from Durbin, Kennedy and Feingold was not sternly worded, then this whole thing has been a waste of time.
redwoodtreehugger wrote on October 19, 2007 6:47 PM:Frontline's program this week on Cheney called the OLC the most important US dept. you've never heard of. And yes, sailmaker, that's what it looks like.
JimBob wrote on October 19, 2007 7:14 PM:A sidebar thought for Shadow Wolf...a friend of mine made a citizen's arrest recently. If we can't count on Congress to impeach, let's arrest the bastards in the WH.
Call me naive, but why does an executive administration need a full time lawyer to tell it whether what it's doing on a day to day basis is legal? Is that normal? How often do citizens need that kind of advice? Seems to me the very fact of Bradbury's existence, or of his office, says that the executive branch is constantly testing the boundaries of what is legal. Is that in the Constitution somewhere in the fine print?
DallasNE wrote on October 19, 2007 7:39 PM:Thank you quasar for your response.
The issue isn't with the job description but with the performance. It looks like whenever Bush wanted cover for a questionable activity Bradbury was there to conjer one up.
As the article stated: "it's not meant to be an advocate for the president himself -- that's the White House counsel's responsibility".
It's also bothersome that Bradbury "argued forcefully that the Supreme Court's rejection of the administration's military tribunals in terrorism cases was incorrectly decided". That is a political statement, not a legally rational statement coming from someone responsible for supporting the Constitution and the rule of law.
paul wrote on October 19, 2007 8:27 PM:So if Bradbury cannot by law be in his current office, that would at the very least make any documents he signs purporting to be the holder of that office acts of criminal fraud (impersonating a federal officer), wouldn't it? Seems he would also be committing honest services fraud by pulling down a paycheck for duties he's not legally permitted to perform.
But no doubt he's issued himself a verbal opinion that it's OK.
cal1942 wrote on October 19, 2007 9:05 PM:"Is that in the Constitution somewhere in the fine print?"
posted by JimBob
The Constitution has no fine print except what the justices determine from its language.
The OLC is there to advise the executive branch and to represent the US govt in court.
The Supreme Court has the final word but that doesn't mean that a willful president can't simply ignore the Court (as has happened in the past).
Bush's (Cheney's) USE of the OLC (not the OLC itself), it seems to me, is part of the unitary executive fantasy AKA: we don't care what no stinkin court or no stnkin Congress or no stinkin law says, we'll do as we damn well please and we'll even have our bitch at the OLC write a piece of utter contortionist trash in an attempt to make it sound legal.
Among the biggest jokes I've heard during Bush's time is the argument made by John Yoo that consists of his word that the president as commander in chief has a great deal of power. How's that for a stunningly brilliant argument?
Article 2 which establishes the presidency is only 1032 words long and most of that language describes how the president is to be elected, his/her minimal qualifications for office, succession in office, method of kicking him out of office, his oath of office and a stipulation that the president must be paid a salary.
Only 324 words describe his/her duties/powers.
John Yoo's very favorite commander in chief clause ACTUALLY says he's nothing more than a commander of troops and sailors. So it really means that if Bush wants to he can lead troops in battle AND NOTHING else.
Understatement alert: These are dangerous people.
Arabflora wrote on October 19, 2007 9:09 PM:I hope that readers clicked through to read the pdf from Senators Durbin, Kennedy, and Feingold. It's so chock-full of sternness that I expected to find Leahy as lead author. You can bet that they're burning the midnight oil at the White House trying to figure a way out of THIS one.
Toothless, spineless, betrayers, the whole lot of them.
dkm wrote on October 19, 2007 9:14 PM:There is something about his picture that puts me in mind of Monica What's-her-face in "drag." I get the feeling that neither one of them is really qualified temperamentally to work in the DoJ, and that both of them are the rotten apples in the barrel that are spreading the rot to the rest of the barrel.
If he in fact has overstayed his welcome as it were, what options are there to remove him? The article implies that it is solely up to the president which means that laws and regulations don't matter.
Having said that, where did Mr. Bradbury study law and how well did he do in school?
hoppy wrote on October 19, 2007 9:29 PM:The Democrats in Congress are disgusting in their taking impeachment off the table, but we are almost equally disgusting in that we are willing to have a crook as president just because if we impeach we might get worse. Is our country better off or worse if our government is shut down for the next year due to impeachment of Bush, followed by impeachment of Cheney? I have my answer.
Nell wrote on October 20, 2007 12:15 AM:"Even if he ultimately recommends that a new OLC chief should be appointed, it's ultimately Bush's call."
It's ultimately Bush's call whether or not to obey the law? That's the heart of the freaking problem, is it not?
It certainly isn't "Bush's call". If he's not going to fully and faithfully execute the laws of the nation, then get him the hell out of there. There's a long list, but we can begin with the Vacancies Reform Act.
quasar wrote on October 20, 2007 1:35 AM:You got it, Dallas.
You've answered your own question.
At the doj website you can also see the duties of the Attorney General.
Which, Musksey has a historical understanding and respect evident in his oral citation of the duties during the hearing. It's not like the Wizard of Oz explanation that Gonzales gave.
If he comes back with the formal written opinions that were requested, then at least he is a good working judge. Gonzales didn't even ATTEMPT to clarify.
The only way to see his judicial balance of the future is to research back into his career. IF, push came to shove, the man said (me parapharasing) that he would not risk the Constitution nor his moral character for Bush. Nor any President. Nor Office. Which is why he could not show political leaning toward certain questioning during the hearing.
Surely all this stuff about Koolaid isn't true.
Brian Clymer wrote on October 20, 2007 2:47 AM:Why doesn't Congress simply refuse to fund the Office of Legal Counsel? If Congress lacks the will to impeach, at least they ought to exercise the power of the purse.
ARG in Chicago wrote on October 20, 2007 12:11 PM:Shadow Wolf, you are correct of course that impeachment procedings have to begin in the House. (Dennis Kucinich has already introduced a bill to begin impeachment hearings against Cheney, but the leadership has ignored it.) But actions by the Senate can have a serious impact. Wasn't it the Senate Watergate investigation, led by Sen. Sam Ervin, that blew the case open and made it clear that Nixon would not survive an impeachment? (I was only 11 years old at the time, but I remember Sam Ervin on my parents' black and white TV.)
I have to disagree with the thrust of your parenthetical statement about the wisdom or utility of persuing impeachment. First, the likely outcome should *NOT* figure in the decision. We have to do it -- because it's right, and because it's necessary, not because it's a "slam dunk" to succeed. Second, I believe the outcome is not already determined, because the politics of the situation will likely change once the facts are all on the table. Those Senators may not be honest, but they are still politicians, and have to run for re-election eventually. And third, Cheney could be impeached first, and that would put a VP nomination in the Senate while Bush was being impeached. The story does not have to end with Pelosi as President (and the spin that it's a coup). Can you say "let's make a deal?"
DallasNE and centerfielder, you nailed it. Impeach. That is the only way to stop this train. (sailmaker, that's what it will take.)
Impeach, impeach, impeach!!
-- ARG
TheraP wrote on October 20, 2007 2:52 PM:cal1942: "the unitary executive fantasy"
I like your wording here. We should never use the words "unitary executive" without following them by either "fantasy" or "delusion." Or "fiction." Something to indicate that the whole concept is without reality within our constitutional system.
More and more it is clear that any Dem nominee must pledge an oath to the Constitution BEFORE the election. An oath to preserve, protect, and RESTORE the Constitution, balance of powers, bill of rights, etc.
This business of DoJ, OLC, or any department working for the president, and not the people, leaves me speechless!
TJ James wrote on October 20, 2007 6:50 PM:Why does TPM Muckraker report, essemtially the same story, over and over....why not instead, tell us whether the last "letter" received any response?
Senators: Justice Department's Chief Counsel Breaking the Law
By Paul Kiel - July 19, 2007, 4:24PM
Nothing surprises me any more.
Four Democratic senators wrote Alberto Gonzales today to inquire whether Stephen Bradbury, the apparent acting head of the Justice Department's Office of Legal Counsel, was illegally carrying out his duties.
Bradbury was nominated for the top spot at OLC last year, but the Senate Judiciary Committee returned his nomination to the president, refusing to hear it until Bradbury's role in approving the National Security Agency's surveillance program became clear. The President shut down an internal Justice Department investigation of the matter last year by taking the unprecedented and unexplained step of denying security clearances to investigators from the Office of Professional Responsibility.
westcoaster wrote on October 21, 2007 12:18 PM:Instead of a sugar coated letter to the White House they need to send Congressional lawyers to court and force Bradbury's ouster.
Bradbury is a reputed member of the Federalist Society which says something about his personal agenda.
Thomas Williams wrote on October 22, 2007 12:01 PM:Send the MAA and request that the FBI send a SAIC and the support team neccesary to arrest this REPUGATHUG and confine him to the basement, see what happens because with 7100 gallons of bomb making material loose in washington he is going to be central to the issue of wheather or not the president is above or outside the law.
Bradbury is another terrorist in the government and should not be allowed to continue the repugathug agenda to end democratic rule and replace it with a standerd form of a republic subject to the will of its rulers and excluding 90+% of the people from the political process.
Thomas Williams wrote on October 22, 2007 12:02 PM:Send the MAA and request that the FBI send a SAIC and the support team neccesary to arrest this REPUGATHUG and confine him to the basement, see what happens because with 7100 gallons of bomb making material loose in washington he is going to be central to the issue of wheather or not the president is above or outside the law.
Bradbury is another terrorist in the government and should not be allowed to continue the repugathug agenda to end democratic rule and replace it with a standerd form of a republic subject to the will of its rulers and excluding 90+% of the people from the political process.
ChickenHawk wrote on November 1, 2007 12:11 PM:The Democratic Leadership needs to impliment a strategy used recently by the House
anonymous wrote on November 6, 2007 5:35 PM:Republicans in an effort to censure a
Representative from California, Rep. Stark, for his floor remarks...knowing full well that the censure vote
would fail to win approval. But a least
notice of an effort was put on the record.
Why Nancy Pelosi can't see the wisdom and the leadership need in going along with Rep. Kucinish's proposal to get a vote for impeachment--even if it doesn't stand a chance of passing--on the floor of the House so that historians in the future can at least write that the House
Democrats made such a proposal.
A proposal to Impeach either Bush or Cheney or both would be historical. And
the press would have a field day with it! Nancy Pelosi's leadership is lacking
in courage to make such a gesture. And Rep. Steny Hoyer is even more of a coward.
Why not simply impeach Bradbury.
It avoids the Cheney issue (which is avoided in any event since Bush will never be impeached even if the Dems bring articles of impeachment, hold hearings, etc, etc, etc, you foolish dreamers).
It avoids a drawn out battle with the GOP over Bush who isn't going anywhere until January 2009 no matter how much you might want it.
The public wouldn't be torn over it, since Bradbury has no loyal following of any significance within the American citizenry.
Republicans voting against impeachment would be voting in favor of an illegal activity.
Win-Win-Win-Win.
Just Do It.
anonymous wrote on November 6, 2007 5:43 PM:"We have to do it -- because it's right, and because it's necessary, not because it's a "slam dunk" to succeed."
Ahhhh, the Bush defense (of the invasion of Iraq).
Or Nader supporters' defense of their vote for Nader instead of Gore.
Yes, a show of futility with nothing to show for it is a masterful game plan for bringing Bush to heel.
Sorta like Bush's plan for bringing al Queda to heel, eh?
Goldspinner wrote on December 20, 2007 7:37 PM:The OLC's been heavily politicized since the Nixon years: a veritable nest of vipers. Quasar hit the nail on the head; the OLC reps POTUS, period. Bradbury's dangerous.