They've got muck; we've got rakes. TPM Muckraker
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.