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If someone at the Justice Department knew about the CIA interrogation tapes and their pending destruction in 2005, Steven Bradbury says he wasn’t in that loop. Bradbury, who has been acting chief of the Office of Legal Counsel since June 2005, told Congress last week that he wasn’t aware of the tapes or any deliberations in government circles about their imminent demise. “Was your office involved in the discussion as to whether or not the CIA tapes should have been destroyed?” Rep. Robert Scott (D-Va.) asked Bradbury at a Feb. 14 oversight hearing before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. “I was not. And to my knowledge, I don’t know of anybody who was,” replied Bradbury, who became acting deputy chief of the Justice office that acts as legal adviser to the attorney general and other federal agencies in April 2004. “I don’t know of anybody in our office.” Bryan Cunningham, a homeland security consultant at Morgan & Cunningham in Denver and a former deputy legal adviser to then-national security adviser Condoleezza Rice, says he is not surprised by Bradbury’s testimony. “Generally, this is not the type of issue OLC would be brought in on, as it is in no way a complicated or novel legal issue,” says Cunningham, a former federal prosecutor who also was a CIA assistant general counsel from 1994 to 1998. “But that doesn’t mean DOJ wasn’t involved. … If [Zacarias] Moussaoui’s case was still pending and there was an issue about any [court] order in that case, it would have been the AUSAs in Alexandria and possibly the Criminal Division.” Since the Sept. 11, 2001, terrorist attacks, the OLC has given the White House and other federal agencies the green light to use controversial tactics to hunt down terrorism suspects, including the detention of foreign prisoners and warrantless spying on U.S. soil. Under Bradbury’s tenure, Democrats and some ex-OLC deputies and chiefs have accused the OLC of rubber-stamping White House projects and requests. President George W. Bush nominated Bradbury to head the OLC in 2005, but Senate Democrats have successfully blocked his confirmation. The former Kirkland & Ellis partner has since become the de facto OLC chief. Critics note that in 2005, Bradbury signed secret legal memos authorizing more “enhanced” CIA interrogation techniques — such as head slaps and freezing temperatures — and say he has yet to explain his role in the warrantless surveillance program. The Justice Department’s Office of Professional Responsibility and Office of the Inspector General are conducting separate investigations of the program and the legal decisions underpinning it. Last summer, Bradbury also wrote the memos advising former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten to invoke executive privilege to ignore congressional subpoenas for their testimony about the firing of nine U.S. attorneys. Bush renominated Bradbury last month. While the Feb. 14 hearing was billed as an oversight hearing of Bradbury’s office, most Democrats and Republicans at the hearing spent their time inquiring about waterboarding, related interrogation memos, and his views of presidential power. Bradbury testified that the CIA program was lawful at the time and some of the interrogation techniques were used on about a third of 100 or so detainees. CIA director Gen. Michael Hayden has said only three suspected al-Qaida operatives were subjected to waterboarding, which is no longer in use. An intelligence bill approved by the Senate last week would ban waterboarding, but Bush has threatened to veto the legislation. Rep. Jerrold Nadler (D-N.Y.), chairman of the House subcommittee, opened his questioning of Bradbury with: “In your legal opinion, is waterboarding a violation of the federal torture statutes?” “Our office has advised the CIA, when they were proposing to use waterboarding, that the use of the procedure, subject to strict limitations and safeguards applicable to the program, was not torture [and] did not violate the anti-torture statute,” Bradbury replied. Democrats and other legal observers had hoped Attorney General Michael Mukasey would go further and order that the contents of the CIA tapes also be subject to the ongoing criminal investigation. However, Mukasey has said the department would not prosecute anyone who used or authorized waterboarding in the past and rejected such calls at a Feb. 7 hearing before the House Judiciary Committee. Bradbury’s disclosure suggests the OLC was not consulted when Jose Rodriguez, the CIA’s former chief spy in the clandestine service, sought approval between 2003 and 2005 from the CIA General Counsel’s Office and others to destroy the tapes. Meanwhile, Assistant U.S. Attorney John Durham — the Connecticut prosecutor appointed by Mukasey to oversee the CIA tapes investigation — says in a Feb. 8 court filing that his team is seeking information from several federal agencies, including the CIA and the Defense Department. “Central questions for this investigation include: Who within the federal government knew of the existence of the videotaped interrogations at issue; who was aware of the various orders that might have required the preservation of the videotapes; and who was involved, in any way, in the decision and/or directive to destroy the videotapes,” Durham wrote in an affidavit to Judge Richard Roberts of the U.S. District Court for the District of Columbia, who is presiding over the case of a Guant�namo Bay detainee challenging his detention. Specifically, Durham said, the FBI-led investigation is “actively reviewing whether any person or persons obstructed justice, made false statements, or acted in contempt of court or Congress in connection with the destruction of the videotapes.”
Pedro Ruz Gutierrez can be contacted at [email protected].

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