Steven G. Bradbury

Last updated on 9 August 2017

Steven Gill Bradbury[1] is an American lawyer and government official. He served as Acting Assistant Attorney General (AAG) from 2005 to 2007[2] and Principal Deputy AAG from 2004 to 2009,[3]:132 heading the Office of Legal Counsel (OLC) in the U.S. Department of Justice during President George W. Bush's second term.

During his tenure in OLC, he authored a number of significant classified opinions providing legal authorization for so-called "enhanced interrogation techniques", which are frequently described as torture.[4] Bradbury was nominated to be the Assistant Attorney General for OLC but individual Democratic Senators put holds on his nomination, preventing the full Senate from voting on it, and Democratic leaders in the Senate instituted pro forma sessions of the Senate during scheduled recesses to prevent the President from giving him a recess appointment.[5][6] Bradbury continued to serve as the acting chief of OLC until the end of the Bush Administration on January 20, 2009.

He is currently a partner at the Washington, D.C., office of Dechert LLP.[7][8] In June 2017, he was nominated by President Donald Trump to become General Counsel of the United States Department of Transportation.[9]

Steven G. Bradbury 2013-07-27.png
Steven G. Bradbury 2013-07-27.png

Early life and education

Bradbury was born in 1958 in Portland, Oregon, the youngest of four children. His father, Edward T. Bradbury,[10] died when he was 11 months old, and his mother supported the family by working nights and taking in laundry to supplement their Social Security income.[11] He grew up in the Sunnyside neighborhood of Portland, where he attended Washington High School from 1972 to 1976. He was student body president his senior year.[12] Bradbury was the first in his family to graduate from college,[11] earning a B.A. from Stanford University in 1980 with a major in English.

After working in publishing and as a legal assistant in New York in the early 1980s, Bradbury attended the University of Michigan Law School, where he received his J.D., magna cum laude, in 1988.[10] He was an editor for the Michigan Law Review[10] and a member of the Order of the Coif.[7] In October 1988, following graduation, he married Hilde Kahn, his law school classmate.[10]

Early career

From 1988 to 1990, Bradbury worked as an associate at Covington & Burling in Washington, D.C. In 1990–1991, he served as a law clerk to Judge James L. Buckley on the U.S. Court of Appeals for the D.C. Circuit. After working as an Attorney-Adviser in the Office of Legal Counsel from 1991 to 1992, he served as a law clerk to Justice Clarence Thomas on the Supreme Court of the United States from 1992 to 1993.[7][11]

Following his clerkship for Justice Thomas, Bradbury practiced law with Kirkland & Ellis[11] in Washington, D.C., first as an associate from 1993 to 1994 and then as a partner from 1994 to 2004. In 1998, Bradbury was named one of the top 40 lawyers under 40 by Washingtonian.[13] In his law practice at Kirkland & Ellis, he focused on antitrust (mergers and litigation), securities law (including class action litigation and regulatory investigations), and various other regulatory, constitutional, and commercial litigation matters, both at the trial and appellate levels.

Office of Legal Counsel

In April 2004, Bradbury left private practice after being appointed as the Principal Deputy Assistant Attorney General at the OLC under Assistant Attorney General Jack Goldsmith,[14] becoming Acting Assistant Attorney General in February 2005.[3]:132[15] He was nominated by President George W. Bush to be the Assistant Attorney General for OLC on June 23, 2005.[1] The delay between his appointment and nomination was seen by some within the Justice Department as a "trial period", in which he would be susceptible to pressure, before he could be formally nominated for the position.[11][16][17][18][3]:142

His nomination was approved by the Senate Judiciary Committee in November 2005 but was never voted on by the full Senate, due to Senate holds placed by four Democratic Senators. Their resistance was due in part to his memoranda concerning the use of torture during interrogations in the War on Terror[19] and due to questions about his role in NSA warrantless surveillance programs.[5][14] Senate Majority Leader Harry Reid offered to confirm 84 other stalled nominees in exchange for the White House withdrawing Bradbury's nomination, but this offer was declined by the Bush administration.[20]

Bradbury authored numerous significant legal opinions for OLC, many of which are published on OLC's website.[21] Among these opinions was one issued in August 2004 in which Bradbury concluded that the Second Amendment to the United States Constitution secures an individual right to keep and bear arms.[22] This opinion was cited throughout an amicus curiae brief by the Department of Justice[23] reasoning which was adopted by the Supreme Court of the United States in District of Columbia v. Heller.[24]

In 2007, Bradbury approved an OLC opinion to the Social Security Administration that endorsed granting social security benefits to the non-biological child of a same-sex union.[25]

Bradbury received a number of awards and honors while at OLC, including the Edmund J. Randolph Award for outstanding service to the Department of Justice, the Secretary of Defense Medal for Outstanding Public Service, the National Security Agency's Intelligence Under Law Award, the Director of National Intelligence's Intelligence Community Legal Award, and the Criminal Division's Award for Outstanding Law Enforcement Partnerships.[7][8]

Memoranda concerning the War on Terror

In May 2005, in response to requests from the CIA, Bradbury authored the "2005 Bradbury Memo"[3]:133 confirming that 13 so-called "enhanced interrogation techniques" did not constitute torture, including waterboarding,[26] nudity,[3]:133 walling,[27] stress positions, slapping or striking a prisoner,[28][6][26] exposure to extreme temperatures,[4][6] dousing with cold water,[29] and forced sleep deprivation of up to 180 hours (7.5 days).[29][30][31][14][32][27][33] A second memorandum, the "Combined Techniques Memo"[3]:133 found that the techniques did not constitute torture, even when used in combination.[3]:137-138[34][15] These memoranda found the CIA's practices to be lawful if applied in accordance with specified conditions, limitations, and safeguards, including those set forth in the agency’s interrogation procedures.[3]:134[28] Later in May, Bradbury signed a third memo, the "Article 16 Memo",[3]:145-151 which contained the opinion that the CIA's use of these techniques did not violate the Article 16 of the United Nations Convention against Torture, which forbids "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture".[35]:351 These memoranda were described by Democrats as an attempt to sidestep anti-torture laws and subvert a 2004 public Justice Department legal opinion characterizing torture as "abhorrent".[4] These memoranda were publicly released by the Obama Administration on April 16, 2009.[36]

In response to the 2006 Supreme Court decision Hamdan v. Rumsfeld, Bradbury described sections of Common Article 3 of the Geneva Conventions as "hopelessly vague", singling out its ban on "outrages upon person dignity, in particular, humiliating and degrading treatment"[37] and arguing that military tribunals should admit evidence obtained during coercive interrogations.[38][39]

In July 2007, Bradbury issued the "2007 Bradbury Memo"[3]:151 addressing the legality of a subset of interrogation techniques in light of Hamdan and other developments, including intervening legislation such as the Military Commissions Act of 2006 and the December 2005 Detainee Treatment Act. The 2007 memo provided legal authorization and OLC approval for a more limited set of actions for use when interrogating high-value detainees. This approval encompassed six listed techniques, including temporary food deprivation (no less than 1,000 calories/day), sleep deprivation by being forced to hold a "standing position for as many as four days", and several types of physical striking.[40][41]

In February 2008, Bradbury testified before a subcommittee of the House Judiciary Committee about the legality of waterboarding and other coercive interrogation techniques. During questioning, Bradbury stated that the administration did not deem techniques to be torture unless they inflicted pain that was both severe and long-lasting.[26] This testimony was criticized by numerous civil liberties advocates and legal scholars.[26] Bradbury did not offer an opinion if waterboarding was illegal under the Detainee Treatment Act or the Military Commissions Act of 2006, but stated that these laws "would make it much more difficult to conclude that the practice was lawful today".[26]

Near the end of the Bush Administration, Bradbury signed two memoranda for the files; these said that, during his tenure OLC had determined that certain legal propositions, previously stated in ten OLC opinions issued between 2001 and 2003 concerning executive power in the War on Terror, no longer reflected the views of OLC and "should not be treated as authoritative for any purpose". In addition, his memo said that some of the underlying opinions had been withdrawn or superseded and that "caution should be exercised" by the Executive Branch "before relying in other respects" on the other opinions that had not been superseded or withdrawn.[42][43][44]

On April 15, 2009, Bradbury's successor, Acting Assistant Attorney General David J. Barron withdrew four OLC memoranda pertaining to CIA interrogations, including three signed by Bradbury.[45][46]

A 2009 report from the Justice Department's Office of Professional Responsibility cited "serious concerns about some of his analysis" but noted that "these issues did not rise to the level of professional misconduct."[3]:258-259[33][47]

Post-OLC career

Following his term in OLC, Bradbury returned to private practice as a partner at Dechert LLP in Washington, D.C., where he specializes in antitrust, administrative litigation and enforcement actions, general commercial litigation, and appellate matters.[7][8]

In February 2012, Bradbury testified before the Senate Judiciary Committee on H.R. 3702, the "Due Process Guarantee Act of 2011".[47]

During the 2012 presidential election, Bradbury served as an advisor to Mitt Romney's campaign on matters of national security law.[48][34]

In the wake of the 2013 global surveillance disclosures, Bradbury testified before Congress and authored several editorials in defense of the National Security Agency's surveillance programs, including the collection of telephone metadata.[49]

General Counsel of the U.S. Department of Transportation

In June 2017, he was nominated by President Donald Trump to become General Counsel of the United States Department of Transportation.[9][50] Bradbury's nomination was opposed by a coalition of human rights groups,[51] including the American Civil Liberties Union, Human Rights Watch, Center for Victims of Torture, and the Center for Constitutional Rights.[52][18] Following a preliminary hearing by the Senate Commerce, Science, and Transportation Committee, on June 29 Senator Tammy Duckworth announced that she had placed a hold on Bradbury's nomination.[53] The Senate normally operates by unanimous consent, meaning one Senator has the ability to prevent action.[53] As a result of Duckworth's hold, a majority of Senators would have to vote to proceed to action on the nomination in order for Bradbury to receive a confirmation vote.[53]

References

  1. ^ a b "Presidential Nomination: Steven Gill Bradbury". The White House. n.d. Retrieved 2016-10-21.
  2. ^ Kepplinger, Gary L. (2008-06-13). "Federal Vacancies Reform Act of 1998-Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice". Government Accountability Office. Retrieved 2017-06-01.
  3. ^ a b c d e f g h i j k Department of Justice Office of Professional Responsibility (2009-07-29). Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists (PDF) (Report). United States Department of Justice. Retrieved 2017-05-29.
  4. ^ a b c Shenon, Philip; Lichtblau, Eric (2008-01-24). "Justice Nomination Seen as Snub to Democrats". The New York Times. Retrieved 2015-12-28.
  5. ^ a b "Webb opens, closes vacant Senate session". CNN. December 26, 2007.
  6. ^ a b c Miller, Greg; Schmitt, Richard B. (2007-10-06). "CIA doesn't use torture, Bush says". Los Angeles Times. Retrieved 2016-07-10.
  7. ^ a b c d e "Steven G. Bradbury". Dechert. n.d. Retrieved 2015-12-26.
  8. ^ a b c Passarella, Gina (2009-07-13). "DOJ Lawyer Who Argued Legality of Waterboarding Scores BigLaw Partnership". The Legal Intelligencer. Retrieved 2015-12-28. (Registration required (help)).
  9. ^ a b Morin, Rebecca (June 5, 2017). "'Torture memo' author nominated for Trump administration post". Politico. Retrieved June 6, 2017.
  10. ^ a b c d "Hilde Kahn Is Married To Steven G. Bradbury". The New York Times. October 17, 1988. Retrieved February 2, 2017.
  11. ^ a b c d e Shane, Scott; Johnston, David; Risen, James (2007-10-04). "Secret U.S. Endorsement of Severe Interrogations". The New York Times. Retrieved 2015-12-26.
  12. ^ Duin, Steve (April 24, 2008). "Once upon a time at WaHi". The Oregonian. Archived from the original on 2011-06-08. Retrieved March 24, 2010.
  13. ^ Washingtonian (September 1998), pp. 120–21.
  14. ^ a b c Khanna, Satyam (2007-10-16). "Durbin, Feingold, Kennedy Demand Bush Withdraw Nominee For DOJ Office Of Legal Counsel". ThinkProgress. Retrieved 2015-12-26.
  15. ^ a b Pfiffner, James P. (2010-05-02). Torture As Public Policy: Restoring U.S. Credibility on the World Stage. Abingdon-on-Thames, United Kingdom: Routledge. ISBN 978-1594515095. After Alberto Gonzales was confirmed as the Attorney General in February 2005, Steven Bradbury was designated as acting director of OLC, and he drafted two memos that authorized the CIA to use combinations of several techniques at the same time.
  16. ^ Kirk, Michael (2007-10-16). "Cheney's Law". FRONTLINE. Cheney's Law. PBS. Retrieved 2017-05-29. SCOTT SHANE: Some people at Justice told us that that was essentially a trial period during which he had to demonstrate to the White House that he wasn't going to make any big trouble. NARRATOR: Bradbury wrote a top secret opinion to authorize the harshest techniques yet for CIA interrogations. SCOTT SHANE: These are very harsh techniques which had not been approved in decades of U.S. practice, including slapping people, keeping them in cold rooms, sleep deprivation, bombarding them with music, and even water boarding, the simulated drowning. This opinion, we're told, gives expansive approval to the combination of those different tactics. NARRATOR: Steven Bradbury passed his trial period. The president nominated him permanent head of the Office of Legal Counsel.
  17. ^ Horton, Scott (2010-02-22). "Quid Pro Quo". Harper's Magazine. Retrieved 2017-06-02.
  18. ^ a b Eviatar, Daphne (2017-06-26). "'Torture Memo' Author Should Be Disqualified From Department Of Transportation Job". The Huffington Post. Retrieved 2017-07-16.
  19. ^ Shane, Scott (2007-10-29). "U.S. struggles with taint of torture". The New York Times. Retrieved 2016-08-28.
  20. ^ Reilly, Daniel W. (2008-02-06). "Bush ups the ante in nomination fight". Politico. Retrieved 2017-06-07.
  21. ^ Office of Legal Counsel. "Memoranda and Opinions". United States Department of Justice. Archived from the original on 2009-04-22.
  22. ^ Steven G. Bradbury; Howard C. Nielson, Jr.; C. Kevin Marshall (2004-08-24). "Whether the Second Amendment Secures an Individual Right: Memorandum Opinion for the Attorney General" (PDF). Office of Legal Counsel. Archived from the original (PDF) on 2009-04-22.
  23. ^ "Brief for Amici Curiaeformer Senior Officials of the Department of Justice in Support of Respondent" (PDF). American Bar Association. February 2008. Retrieved 2016-08-28.
  24. ^ See 554 U.S. 570, 128 S. Ct. 2753 (2008). A review of the opinion for the Court in Heller reveals that it closely tracks the August 2004 OLC opinion in both the structure and substance of its legal analysis.
  25. ^ "Justice for Gays". The Washington Post. 2008-07-05. Retrieved 2015-12-27.
  26. ^ a b c d e Eggen, Dan (2008-02-17). "Justice Official Defends Rough CIA Interrogations". The Washington Post. Retrieved 2017-02-02.
  27. ^ a b Scherer, Michael (2009-04-21). "Scientists Claim CIA Misused Work on Sleep Deprivation". Time. Retrieved 2017-02-02.
  28. ^ a b Mark Mazzetti; Scott Shane (April 16, 2009). "Interrogation Memos Detail Harsh Tactics by the C.I.A.". The New York Times. Retrieved April 17, 2009.
  29. ^ a b Mark Benjamin (2010-03-09). "Waterboarding for dummies". Principal Deputy Assistant Attorney General Steven Bradbury wrote in a May 10, 2005, memo authorizing continued use of waterboarding
  30. ^ Bradbury, Steven G. (May 10, 2005). "Memorandum for John Rizzo" (PDF). ACLU. Retrieved October 24, 2011.
  31. ^ Bradbury, Steven G. (May 10, 2005). "Memorandum for John Rizzo" (PDF). ACLU. Retrieved October 24, 2011.
  32. ^ Bradbury, Steven G. (May 30, 2005). "Memorandum for John Rizzo" (PDF). ACLU. Retrieved October 24, 2011.
  33. ^ a b Reilly, Ryan J. (2017-03-30). "'Torture Memo' Author Spotted At Trump White House". Washington, D.C.: The Huffington Post. Retrieved 2017-06-01.
  34. ^ a b Savage, Charlie (2012-09-27). "Election to Decide Future Interrogation Methods in Terrorism Cases". The New York Times. Retrieved 2016-08-28.
  35. ^ United States Senate Select Committee on Intelligence (2014-12-03). Committee Study of the Central Intelligence Agency's Detention and Interrogation Program, foreword by Senate Select Committee on Intelligence Chairman Dianne Feinstein, Findings and Conclusions, Executive Summary (PDF) (Report). Archived from the original (PDF) on 2014-12-09. Retrieved 2017-05-30. Declassification Revisions December 3, 2014
  36. ^ de Vogue, Ariane (2009-04-16). "DOJ Releases Controversial 'Torture Memos'". ABC News. Retrieved 2017-06-01.
  37. ^ Bradbury, Steven G. (2006-09-18). "Ask the White House". The White House. Retrieved 2016-08-28. But other provisions of Common Article 3 are hopelessly vague and subject to almost unlimited interpretation – such as its prohibition on 'outrages upon person dignity, in particular, humiliating and degrading treatment.'
  38. ^ Diamond, John; Biskupic, Joan (2006-07-11). "Geneva Conventions cover Gitmo detainees". USA Today. Retrieved 2015-12-28.
  39. ^ Zernike, Kate (2006-07-13). "White House Prods Congress to Curb Detainee Rights". The New York Times. Retrieved 2016-07-10.
  40. ^ Steven G. Bradbury (2009-09-03). "Memorandum for John A. Rizzo Acting General Counsel, Central Intelligence Agency Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees" (PDF). United States Department of Justice.
  41. ^ Eviatar, Daphne (2009-08-27). "Memos Suggest Legal Cherry-Picking in Justifying Torture: DOJ Lawyers' Analysis Changed Little Despite New Legal Backdrop". The Washington Independent. Archived from the original on 2009-08-29. Retrieved 2015-12-28.
  42. ^ "Department of Justice Releases Nine Office of Legal Counsel Memoranda and Opinions". United States Department of Justice. 2009-03-09. Archived from the original on 2009-04-22.
  43. ^ "Office of Legal Counsel Memoranda". United States Department of Justice. Archived from the original on 2009-04-22.
  44. ^ Lee, Chisun (2009-03-03). "Bush Admin Quietly Rejected Own 'Highly Questionable' Counterterrorism Stances". ProPublica. Retrieved 2017-05-29.
  45. ^ Barron, David J. (2009-04-15). "Withdrawal of Office of Legal Counsel CIA Interrogation Opinions" (PDF). The Washington Post. Retrieved 2016-07-10. Four previous opinions of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency are withdrawn and no longer represent the views of the Office.
  46. ^ Miller, Greg; Meyer, Josh (2009-04-17). "Obama assures intelligence officials they won't be prosecuted over interrogations". Los Angeles Times. Retrieved 2016-07-10.
  47. ^ a b Smith, Jordan Michael (2012-07-18). "Franken’s torture smackdown". Salon. Retrieved 2017-06-02.
  48. ^ Rosenthal, Andrew (2012-09-27). "Will Waterboarding Make a Comeback?". The New York Times. Retrieved 2016-08-28.
  49. ^ Bradbury, Steven G. (2013-07-22). "NSA phone collection efforts shouldn't be constrained". The Washington Post. Retrieved 2016-07-10.
  50. ^ White House Office of the Press Secretary (2017-06-05). "President Donald J. Trump Announces Intent to Nominate Personnel to Key Administration Posts" (Press release). Washington, D.C.: The White House. Retrieved 2017-06-07.
  51. ^ Savage, Charlie (2017-06-28). "Trump Nominee Who Wrote Bush-Era Torture Memos Is Scrutinized". The New York Times. Retrieved 2017-07-07.
  52. ^ "Groups Express Concern Over Trump Nominee for Role in Torture" (Press release). Human Rights Watch. 2017-06-22. Retrieved 2017-07-07.
  53. ^ a b c Maizland, Lindsay (June 29, 2017). "Steven Bradbury wrote the memos authorizing torture. Trump wants him back in government". Washington, DC: Vox.com.

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