Administration’s Lawyer Lauds “Healthy Process of Back and Forth”

Last time we checked in with Steven Bradbury, the guy who tells the administration how far they can legally go (the head of the Justice Department’s Office of Legal Counsel), he was explaining to Congress that the waterboarding technique used by the CIA on detainees was nothing at all like the “water cure” technique used by the Spanish Inquisition (it’s actually similar to the Khmer Rouge). He also explained in detail his reasoning for why waterboarding was not in violation of the criminal statute barring torture.

This is the guy currently with the power to issue “advance pardons” for administration lawbreaking.

He is clearly not a man who shrinks from airing his views. And in a rare interview (sub. req.) with Legal Times, Bradbury proclaims that he’s enjoying the healthy, vigorous debate occasioned by the administration’s interrogation and surveillance policies.

Of course, Democrats might have a different way of seeing things. Bradbury has effectively run the office since 2004, even though his nomination has been blocked by Democrats. He has been nominated five times. Dems have even charged that the administration is breaking the law by keeping Bradbury atop the Office of Legal Counsel. The Vacancies Reform Act bars non-Senate-confirmed appointees for holding their jobs for longer than 210 days. But the Justice Department has responded that Bradbury is not breaking the law because he is not the official acting head of the office; he’s officially the deputy who’s carrying out the duties of the chief because the position is vacant. So voila! no problem.

In his interview, Bradbury proclaims that he “very much respects” the role of the Senate in confirming nominees:

Q: Why do you think Democrats, especially Senate Democrats, oppose your nomination so much? Some have said, ‘There’s no way we’ll have Steven Bradbury confirmed.’

A: I very much respect the role the Senate plays, the essential role in all areas, but obviously in the express provisions of the Constitution giving advice and consent to nominations. That’s their prerogative. I respect the process. … I understand very well the fact that some policies that the administration has pursued in the war on terror have raised novel, controversial, and difficult legal questions. And this office has unavoidably been at the center of addressing those difficult and novel questions.

Bradbury also later offers his view about the relationship between Congress and the president. It’s an eye opening narrative of events. Remember that for roughly six years, the administration conducted a warrantless wiretapping program in contravention of a law passed by Congress and without the knowledge of all but a very few lawmakers. When the program was finally exposed by The New York Times, the administration defended it, and then ultimately modified it just before the Dems took control of Congress so that it complied with FISA. That, to Bradbury, is a “healthy process of back and forth”:

There has really been, I think, a healthy process of back and forth between the political branches in an evolutionary way in response to the novel threat posed by this unusual nontraditional conflict [i.e. the war on terror]. The same is true with the NSA surveillance, where the president put in place certain authorities based on his constitutional authority and based on the extraordinary authorization for the use of military force that Congress passed in the wake of 9/11. And now, years later, Congress is working with the president, attempting to put in place permanent legislation that would essentially enable this kind of nimble, modern-day surveillance to address the needs of the intelligence community in light of changes in technology and in light of the particular threat that is posed by international terrorists who hide out in communities here in the U.S. and other countries around the world.

So, in conclusion, Bradbury “very much respects” the Senate’s role in confirming nominees while at the same time serving in the position for more than three years without confirmation, and thinks that hiding an illegal program from Congress for years is just part of a healthy “back and forth.” Got that?