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.
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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.