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It’s not easy being the Bush administration lawyer charged with the legal defense of the White House’s warrantless domestic surveillance program. There are the conference calls with hostile reporters, closed-door meetings with senators angry at being kept in the dark by the White House, and reports that other administration lawyers who reviewed the program were so concerned about its legality that they hired lawyers of their own. But the duty of helping Attorney General Alberto Gonzales advance the legality of the spy program has fallen to Steven Bradbury, the acting chief of the Justice Department’s Office of Legal Counsel. Bradbury, the lead author of the unsigned 42-page white paper explaining the legal rationale for the warrantless surveillance program, is the head of a tiny but hugely influential office within the DOJ. Bradbury and his predecessors at the OLC have been the nerve center for fleshing out not only the spy initiative but the legality of a number of the administration’s most controversial policies. The office also has seen, perhaps not coincidentally, an unusual amount of turnover for an administration that prides itself on continuity. “It’s perhaps the most important legal office in Washington that nobody knows about,” says Howard Nielson, a lawyer who left the OLC last year to join Cooper & Kirk. From giving the go-ahead to abusive treatment of foreign prisoners to spying on Americans, the OLC has provided the administration and its lawyers in the White House counsel’s office with legal cover on a number of politically charged matters. But the two dozen lawyers at the OLC serve as more than just a private law firm for the president. They also serve as a backstop to each of the executive agencies and issue legal opinions that can have the force of law within the executive branch. “The office essentially serves as special counsel to the executive branch,” says Evan Caminker, an OLC deputy in the Clinton era who’s now dean of the University of Michigan Law School. “It’s designed to provide experts and independent advice about the legality of proposed or actual actions.” The independence of that advice is particularly critical when it comes to the OLC’s dealings with the White House, which, in both Republican and Democratic administrations, has historically pressured the office to make legal interpretations in line with presidential political objectives. That independence appeared to be an issue in the OLC’s authorship of the now-infamous (and since rescinded) 2002 torture memo. The opinion, signed by former OLC chief Jay Bybee but largely drafted by former OLC deputy John Yoo, argued that abusive interrogation techniques that caused pain short of “death or serious organ failure” were lawful. That interpretation has been widely viewed by critics as an advocacy position for a particularly narrow view of torture expounded by White House hard-liners, rather than a sober assessment of relevant laws and treaties. Interrogation and questions about the office’s independence have also played a role in keeping Bradbury from obtaining Senate confirmation for his post as assistant attorney general. Though he was nominated for the position in June, his confirmation was initially held up by Sen. Dick Durbin (D-Ill.), in a dispute with the Justice Department over access to a secret OLC opinion on interrogations. Then, just before Christmas, the National Security Agency surveillance story appeared in The New York Times. That, say Democratic staffers on the Senate Judiciary Committee, only added to Democratic hesitations about confirming a new OLC chief without a clearer idea of the office’s role in justifying the program. The Justice Department’s Office of Professional Responsibility has opened an investigation into the role Justice lawyers played in authorizing the program. And the hesitation has also been fueled by regrets among Democrats that they allowed Bybee to be confirmed for a lifetime spot on the U.S. Circuit Court of Appeals for the 9th Circuit in March 2003. He was approved more than a year before the 2002 torture memo bearing his name emerged. “If that memo had become public before the vote on his confirmation, there’s no way he would have been confirmed,” says an aide to a Democratic senator on the Judiciary Committee. As a training ground for elite Washington lawyers, the OLC rivals the Justice Department’s solicitor general’s office as a prestigious government credential. Its alumni include Justices Antonin Scalia and Samuel Alito Jr., the late Chief Justice William Rehnquist, and former Attorney General William Barr. But turnover at the OLC has been high in recent years; during the first five years of the Bush administration, six men have held the office’s top job. Bradbury, 47, joined the OLC in 2004 as one of the office’s four deputy assistant attorneys general during the tenure of Jack Goldsmith, an international law scholar noted for his skepticism of international treaties and organizations. But Goldsmith reportedly clashed with the vice president’s office over the torture memo and the scope of the White House’s executive-power claims. After just eight months on the job, Goldsmith left to teach at Harvard Law School. His temporary replacement, Daniel Levin, issued an OLC opinion effectively revoking the most controversial aspects of the 2002 torture memo, in December 2004. Levin left Justice to join the D.C. office of WilmerHale shortly thereafter and was replaced as chief by Bradbury. “There was turnover in the office, which is, in general, not a good thing,” says Douglas Cox, a friend of Bradbury’s and a former OLC official in President George H.W. Bush’s Justice Department. “After things played out with Goldsmith, they must have thought Steve was the one to turn to. . . . He is somebody with both the background and the intellectual qualities.”
WHIRLING CAROUSEL: OLC CHIEFS
Assistant AG Dates served Legacy
Jay Bybee 11/01 – 3/03 Career lawyer Daniel Koffsky had served as the acting head of the Office of Legal Counsel during the early months of the Bush administration. After Bybee took over, he signed his name to the infamous 2002 torture memo. Fortunately for Bybee, that memo wasn’t leaked until after he had won confirmation to a lifetime appointment on the federal bench.
M. Edward Whelan III (acting) 3/03 – 10/03 Whelan, a deputy at the OLC, filled in as head of the office before Goldsmith’s confirmation. He left in 2004 to head the Ethics and Public Policy Center, a think tank established “to clarify and reinforce the bond between the Judeo-Christian moral tradition and the public debate over domestic and foreign policy issues.”
Jack Goldsmith 10/03 – 7/04 An academic known for his skepticism of international law, Goldsmith reportedly clashed with the White House over its broad assertions of executive power. He left the job after less than a year for Harvard Law School.
Daniel Levin (active) 7/04 – 2/05 A former aide to moderate Republicans Colin Powell and Brent Scowcroft, Levin was the driving force within the OLC to rescind the 2002 torture memo. He left the Justice Department soon after succeeding.
Steven Bradbury (active) 2/05 – present He joined the OLC as Goldsmith’s No. 2 in the spring of 2004, only to see Goldsmith walk a few months later. Officially nominated for the top spot in June, his confirmation has languished in the Senate amid concerns about the OLC’s role in interrogation and warrantless surveillance policies.

That background is something of an uncommon one among top Justice officials. Born and raised in Portland, Ore., Bradbury grew up without his father, who died when he was an infant, and his mother worked nights and took in ironing to help support the family. “All our friends knew he had been raised without a father by his mom and that they didn’t have much money,” writes Sue Van Brocklin, a high school friend of Bradbury’s, in an e-mail to Legal Times. “But he never made an issue of it.” After high school, Bradbury won a scholarship to Stanford University, where he majored in English. Upon graduation, he moved to New York, in the early 1980s, and took a job in the publishing industry before becoming a paralegal. Law school at the University of Michigan introduced Bradbury to Hilde Kahn, his future wife, and led to a stint at D.C.’s Covington & Burling. After a clerkship on the U.S. Court of Appeals for the D.C. Circuit, Bradbury spent a year as a junior lawyer at the OLC before accepting a clerkship with Justice Clarence Thomas. “He’s no ideologue,” says Stephen Bates, who clerked with Bradbury on the D.C. Circuit. “Unlike some of the clerks on that court, he was very fair-minded.” WEALTH IN WASHINGTON Those conservative bona fides led Bradbury to join the Washington office of Kirkland & Ellis in 1993, where former Solicitor General Kenneth Starr was recruiting top conservative lawyers. Also in the group: Paul Cappuccio, now general counsel at Time Warner; Jay Lefkowitz, who became a policy adviser to President George W. Bush; and Brett Kavanaugh, the White House staff secretary who remains a nominee to the D.C. Circuit. In 2000, Bradbury served as antitrust counsel to United Airlines parent UAL Corp. in its efforts to merge with US Airways — a merger blocked by regulators. He later helped advise the airline in its mammoth bankruptcy, a proceeding in which Kirkland was criticized by the airline’s unions for legal fees that have topped $93 million during the bankruptcy. Among the more colorful cases Bradbury argued as an appellate lawyer was Doe v. GTE, in which a number of football players from Illinois State University sued the Verizon subsidiary after being secretly taped undressing in their locker room. The video was later shown on Web sites with names like youngstuds.com, a site hosted by GTE. Represented by Bradbury and Kirkland lawyer Timothy Elliot, GTE prevailed in 2003 in the U.S. Court of Appeals for the 7th Circuit, which upheld the suit’s dismissal by a lower court. As both a legal adviser to the White House and executive agencies and a legal arbiter, the political appointees who run the OLC can be caught between the sometimes-conflicting forces of the president’s policies and the law. After the disclosure of the 2002 torture memo, 19 former Clinton-era OLC officials sent an unusual letter to the attorney general offering an implicit critique of their Bush administration successors. Foremost, the letter argued, the OLC should provide the White House with a careful examination of all sides of a legal question. “The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action,” the letter stated. The genesis of the letter, says Dawn Johnsen, the acting head of the OLC from 1997 to 1998, was a “grave concern” on the part of its authors that the office was no longer offering independent legal opinions but mere justifications for actions the White House had already decided upon. “It’s clearly wrong for them to say �This is what the law is’ when what they’re actually describing is the best justification they can come up with for what the president wants to do,” says Johnsen, a professor at the University of Indiana-Bloomington School of Law. Whether Bradbury can say no to the White House when its prerogatives may clash with the law is a central concern to the administration’s critics. At the OLC, Bradbury has taken action on a number of issues that favored the administration’s viewpoints. • At the request of former Attorney General John Ashcroft, he determined that the right to bear arms is a constitutional right of individuals under the Second Amendment, rather than of states, a question the Supreme Court has not directly addressed. That opinion has since been cited in a legal challenge to a New York handgun licensing law. • After the Government Accountability Office found that video promotions designed to look like television news from the Department of Health and Human Services constituted illegal covert propaganda for the White House’s Medicare drug plan, Bradbury wrote a countervailing opinion. The White House distributed the memo and instructed agencies to ignore the GAO finding. • During the run-up to the 2004 election, Bradbury wrote an opinion allowing the Commerce Department to place tighter restrictions on the political activities of employees at the National Oceanic and Atmospheric Administration, an agency whose staffers have publicly criticized the White House’s policies on climate change. • And he was the one tapped by Justice to help defend the legality of the Bush domestic spying program once it came to light. The 42-page white paper, drafted primarily by Bradbury, claimed the White House had grounds under the 2001 congressional authorization to use military force in the wake of the Sept. 11 attacks to eavesdrop on American citizens without a warrant. But those who’ve worked with Bradbury say he doesn’t always take legal views to the White House’s liking. When it came to rescinding the torture memo, those familiar with the OLC say that Bradbury supported Levin’s effort to rewrite the earlier opinion. And those who’ve worked for the OLC’s most powerful client, the White House counsel’s office, say that Bradbury is anything but a yes man. Says Reginald Brown, a former White House lawyer who went into private practice last year, “He didn’t always give us the answers we wanted to hear.”


Jason McLure can be contacted at [email protected].

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