Challenging the Nomination of 2005 “Torture Memo” Author Steven Bradbury as a Lawyer in the Trump Administration

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Yesterday (June 28), three members of Veterans for Peace — the US military veterans’ organization founded in 1985 and committed to building “a culture of peace” — interrupted the Senate confirmation hearing for Steven G. Bradbury, nominated by Donald Trump as general counsel for the Commerce, Science and Transportation Department, and were subsequently arrested. Videos are available here and here,

The three VFP members — Tarak Kauff, Ken Ashe and Ellen Barfield — were protesting about Bradbury’s role as one of the authors of the notorious “torture memos” under George W. Bush, and they were not alone. As the New York Times explained, Sen. Tammy Duckworth, a Democrat from Illinois, told Bradbury at the hearing, “You lacked the judgment to stand up and say what is morally right when pressured by the president of the United States, and I’m afraid you would do so again.” She then “wagged her finger at Mr. Bradbury and accused him of having a dangerous ‘rubber stamp’ mentality,” and said, “I cannot oppose this nomination strongly enough.”

For my call for Steven Bradbury to be prosecuted — along with other senior Bush administration officials and lawyers — listen to my song ‘81 Million Dollars,’ performed with my band The Four Fathers.

The “torture memos” were written and approved in the Office of Legal Counsel (the branch of the Justice Department that is supposed to provide impartial advice to the executive branch), and the first examples were written by law professor John Yoo, and approved by Yoo’s boss, Jay S. Bybee. The memos sought to redefine torture so that it could be used by the CIA on Abu Zubaydah, seized in Pakistan in March 2002 and regarded as a “high-value detainee,” and approved a list of techniques that included waterboarding, an ancient torture technique that involves controlled drowning.

Bybee served as head of the OLC until March 2003, when, as a reward for his service, he was made a federal appeals court judge (in the Ninth Circuit in California, joining Yoo who returned to his job as a law professor at Berkeley). His successor, Jack Goldsmith, withdrew the memos and advised government agencies not to rely on them, although this was not known at the time. The first the public knew of the memos was when one of the Yoo/Bybee memos was leaked in June 2004, after the Abu Ghraib scandal.

Even so, torture — and its twisted approval by lawyers — continued. After Goldsmith was forced out because of his objections, Attorney General John Ashcroft issued a one paragraph opinion re-authorizing the use of torture, and, in December 2004, Daniel L. Levin, the OLC’s latest Acting Assistant Attorney General, reaffirmed the original legal opinions.

This was when Steven Bradbury appeared, revisiting Yoo and Bybee’s spurious authorizations in three memos in May 2005, when he was the OLC’s Principal Deputy Assistant Attorney General. The memos were released by the Obama administration in April 2009, along with the previously unpublished Yoo/Bybee memo, and they are available here, here and here.

As I explained in an article at the time:

As with the earlier memos, from my point of view the arguments about the techniques not causing severe physical pain were more plausible than those in which Bradbury attempted to argue that techniques derived from the SERE program — which are based on teaching soldiers to resist techniques designed to cause a complete mental collapse — do not cause severe mental pain or suffering.The very fact that SERE psychologists were so prominent in the CIA’s torture program makes it clear that “learned helplessness” — involving the brutal training of prisoners to become dependent on their interrogators for every crumb of comfort in their wretched, tortured lives — was designed not just to cause them severe mental pain or suffering, but to completely destroy them mentally. As Bradbury himself noted, when discussing the “conditioning techniques” that underpin the CIA prisoners’ conditions of confinement, “they are used to ‘demonstrate to the [detainee] that he has no control over basic human needs.’”

And yet, for page after page, Bradbury concluded that “nudity, dietary manipulation and sleep deprivation” — now revealed explicitly as not just keeping a prisoner awake, but hanging him, naked except for a diaper, by a chain attached to shackles around his wrists — are, essentially, techniques that produce insignificant and transient discomfort. We are, for example, breezily told that caloric intake “will always be set at or above 1,000 kcal/day,” and are encouraged to compare this enforced starvation with “several commercial weight-loss programs in the United States which involve similar or even greater reductions in calorific intake.”

In “water dousing,” a new technique introduced since 2002, in which naked prisoners are repeatedly doused with cold water, we are informed that “maximum exposure directions have been ‘set at two-thirds the time at which, based on extensive medical literature and experience, hypothermia could be expected to develop in healthy individuals who are submerged in water of the same temperature,’” and when it comes to waterboarding, Bradbury clinically confirms that it can be used 12 times a day over five days in a period of a month.

In the New York Times article about Bradbury’s confirmation hearing, Charlie Savage noted that, after a series of blows to the Bush administration’s torture program — John McCain’s Detainee Treatment Act of 2005, which was intended to prevent torture, and the Supreme Court’s ruling in Hamdan v. Rumsfeld, in June 2006, in which, as he put it, “the Supreme Court ruled that a humane-treatment mandate in the Geneva Conventions protected Qaeda prisoners” — the CIA “temporarily shuttered its program,” although Congress then “passed a law limiting the court ruling’s impact by specifying categories of ill treatment that would be considered grave breaches of the Geneva Conventions.”

However, in 2007, the CIA “proposed restarting a more limited version of its interrogation program under which inmates were deprived of sleep and solid food, slapped and grabbed by the head,” and Bradbury then “approved that shorter list of tactics,” although he “did not address whether the others, too, would also still be legally permissible if a policy maker wanted to use them.”

In a letter to the Chair and Ranking Member of the Commerce, Science, and Transportation Committee, regarding Bradbury’s nomination, 14 organizations including Human Rights First, the American Civil Liberties Union, the Center for Constitutional Rights, Human Rights Watch and Physicians for Human Rights called for his nomination to be withdrawn and provided a detailed explanation of his role, including an unacceptable statement he made during congressional testimony in 2007. Responding to questions about the president’s interpretation of the law of war Bradbury declared, “The President is always right” — a statement that, as the organizations noted in their letter, “is as outrageous as it is inaccurate.”

In their letter, the organizations ran through Bradbury’s OLC history, stating, “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.”

Their letter continued:

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 (CIA) 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 (OPR) reviewed Mr. Bradbury’s “torture memos” and determined that 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 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 (DTA), legislation that passed the Senate with a vote of 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.

In an article about the protest, Medea Benjamin of CODEPINK: Women for Peace, who also took part in it, provided quotes from those arrested. As he was handcuffed by Capitol Police, Ken Ashe stated, “Anybody whose moral compass is so broken that they would condone torture doesn’t deserve a position in the US government.”

Tarak Kauff said, “I disrupted the hearing for a man, Steven Bradbury, who should be on trial for war crimes. He sanctioned, condoned, and confirmed torture practices that were used by the Bush administration, practices that disgraced our country.”

Ellen Barfield said, “I am a veteran. I am deeply concerned about our soldiers, who are at risk for torture if our nation tortures.”

For his part, Bradbury, at his hearing, claimed that he was just following orders. As the New York Times put it, he “said his legal opinions ‘speak for themselves,’ but denied that he had set out to justify the Bush administration’s existing policies.” As he described it, in his own words, “I viewed them as very hard questions. If I had my druthers, I wouldn’t have then engaged in having to address those issues. But when you serve in an office where you are asked to provide legal advice about the very hardest questions, that’s the job. And that is what I did.”

Given the Republicans’ majority in Congress, it is extremely unlikely that Steven Bradbury’s nomination will be overturned, but Donald Trump should reflect on the fact that might does not equal right, and be aware that on this, as on so much of his presidency to date, the decisions taken by him — and by a compliant Congress — will be judged not only as inadequate, but also as offensive to the values that the US claims to uphold.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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