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.