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Smart but misguided. Diligent and evasive. Modest and a lackey. Steven Bradbury has been called many things since his 2005 nomination to run the influential Office of Legal Counsel at the Justice Department stalled in the Senate. Nearly three years later, Bradbury is undoubtedly Washington’s most controversial nominee. To Senate Democrats, he is the official who has repeatedly given legal approval for the government to use punishing interrogation techniques on terrorism suspects and whose involvement in the warrantless eavesdropping program remains a mystery. Senate Majority Leader Harry Reid (D-Nev.) proclaimed that Bradbury is not qualified “to hold a position of trust” and three months ago offered to clear more than 84 other pending nominees if President Bush withdrew Bradbury’s nomination. Bush said no and instead sent Bradbury’s name back to the Senate for the fifth time in January. Spurned Democrats went so far as to schedule short-gaveled sessions during holiday breaks — and plan to do the same this Easter recess — to stop Bush from sneaking Bradbury through as a recess appointment. Even without a confirmation, Bradbury has been working at OLC since 2004 as its principal deputy and became its acting chief three years ago. The former Kirkland & Ellis partner and one-time Covington & Burling associate sat down last week with Senior Reporter Pedro Ruz Gutierrez to discuss his role as legal adviser to the executive branch, his confirmation prospects, and his relations with Congress and the White House. The following are excerpts from that interview…
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.’ 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. That’s kind of our job description. That’s what we do. Those issues —such as the NSA surveillance activities, the CIA interrogation program, and other similarly related questions —have generated a lot of heat, a lot of controversy, and a lot of debate. I think that the issues that have been expressed regarding the nomination relate to those areas of controversy. Again, I try not to take it personally. I really do believe that the work that the office has done during my tenure —we strived very hard for this, and I think we have achieved it —the opinions we provided in all cases have been our best judgment truly of what the law requires, what the law permits, objectively provided. We tried to explain the analysis that supports our conclusions clearly to policy-makers so they can understand it. And I think our opinions have been careful and thoroughly reasoned. I’m very proud of the work we’ve done. I actually think that the American public would be proud of the work we’ve done if all of our opinions could be instantly published on the Web.
So now you’ve been re-nominated and your name is back … [T]he president resubmitted my nomination … for the fifth time, I guess. Don’t ask me if that’s a record. I hope not. It is on one level frustrating and disappointing, but on another level again it just continues to be an honor and a privilege and really a lot of fun to serve in the position I’m serving in. I’m not really doing it to promote, you know, my future earning power in private practice, because sometimes it’s difficult to line up the kind of work we do in the Office of Legal Counsel, which is rather a unique position with any kind of private practice in the future. So, I really am doing because I think it’s a high calling and a high form of public service and an essential function for our system of government and for the executive branch to really be the one that answers those tough legal questions for the executive branch.
Democratic critics have accused you and your office of being a rubber stamp for the White House and the White House counsel … That is not at all the case. I think that you can look at the opinions we have provided, that we have made available, and there will be more as we come toward the end of the administration. But I will tell you we are not a rubber stamp for anything they have done. It’s been my experience that the counsel’s office, that the White House, has accepted our advice even when they don’t like the answer.
How many times have you actually had to tell them, �No’? A number of times. I’m not really able to put a number on it. Obviously, as you might imagine, most of those instances would be nonpublic and confidential. But there are some examples of opinions we have provided, not only for the White House, but for other departments and agencies, including some opinions we published where you can see that the answer is not really the answer that particular agency preferred.
Do you feel any sense that the office is either diminished or less legitimate because there is no confirmation? As a practical matter, I don’t think that’s the case. I do think, however, that it is important for the office to have a confirmed head. I know it’s important to Attorney General Mukasey, and there’s just a greater sense that things are as they should be. One of the things I have worked hard on and strived for in this office is to bring stability to the office, continuity, rigor, consistency. I think we have achieved that, I really do. And I think it would be appropriate if that were recognized and the office had a confirmed head.
Are there any practical differences between having a Senate-confirmed head of the office versus a principal deputy serving in an acting capacity? A significant practical difference as I indicated is that we would have the ability … we would have an additional deputy basically who could really make a difference in terms of the workload. We have a good number of brilliant line attorneys, attorney-advisers we call them, prepare our draft opinions and plenty of horsepower in the office, but then the front office and the deputies tend to become a little bottleneck because everything flows through the deputies. Some people might argue that there would be more of a sense of permanence or prestige to an opinion from a confirmed head. I don’t. I have not found that to be the case in my experience.
Can you address your relationship with both the White House counsel’s office and the president? We have a very close kind of client-and-legal-adviser relationships with the attorney general on the one hand and with the counsel to the president on the other. Often, there are issues where the president is going to be making the determination, making a decision, and Fred Fielding, as counsel to the president, will often relay our advice to the president. That’s most often the case, but on rare occasions we’ll have meetings with the president, where we have an opportunity to explain the legal reasoning because often, as you may expect in this day and age, almost every significant policy decision, including important decisions of war and peace and decisions on the war on terror, have significant legal components or legal dimensions. And so the president will want to understand what the legal analysis is, what the support is as a legal matter.
Did you have any input in the March 8 veto by President Bush on the intelligence bill that addressed CIA interrogation techniques? Well, a decision to veto a bill is really most often a policy decision that the president makes. Sometimes some vetoes are because the president has concluded, often on the advice of his office, that a bill in one respect or another is unconstitutional and that may be a basis in this particular case. I’m not sure. There may have been some constitutional issues. If you look at a president’s veto statement, he lays out the reasons. And most of them, I believe in this case, were policy reasons.
So at some point in this particular process of this veto you had some input? We would review it, just as we would typically do where we had input on the matter.
Did you read ex-OLC assistant attorney general Jack Goldsmith’s book, The Terror Presidency? I did. Yes. Fascinating. I love Jack, by the way. He hired me here at the Office of Legal Counsel, and he’s a brilliant professor [at Harvard Law School]. I think it’s an interesting thesis of his book that the presidency during wartime, during times of armed conflicts, in recent decades has become the subject of more restrictive statutory regulation by Congress than was the case with earlier presidencies during the time of armed conflict. 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. 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.
Let me ask you about presidential powers, because of one statement that you made in a Senate hearing a couple of years ago. In response to a senator’s question, you said, “The president is always right.” Do you still stand by it? It was a statement made in jest. I guess I was rather thoughtlessly attempting to be humorous. And, in fact, that question arose the next day in a follow-up hearing on the House side, where I explained that it essentially had been a lame effort at humor. And I guess I learned my lesson — you shouldn’t try to be funny or shouldn’t try to make jokes when you’re testifying on the Hill, that’s for sure.
What are the easiest and hardest parts about your job? The easiest part has been the fact that I actually have tremendous assistance from very bright lawyers, some of whom have years of experience on the kinds of questions they answer for the executive branch. And that’s just a tremendous help. What it does is it helps focus and distill my thinking. Ultimately, the opinions of the office are my opinions when I sign. Other deputies also sign opinions. Anybody who signs opinions, it’s his or her opinion, but we try to come to a consensus. But ultimately, if it’s a hard question, I make the decision on what I think the right answer is. The hardest part will relate to issues … where there’s no clear answer … and you know the issue is one where reasonable minds will disagree. I’ll tell you, though, it’s a really intellectual joy and privilege to be able to tackle those kinds of questions. [Y]ou may have a gut feeling but understanding the rationale and the basis developed for that may be difficult. So sometimes there are very, very challenging questions.
Can you give examples? The Terrorist Surveillance Program, the CIA interrogation program? Well, I guess it’s probably best that I not address specific questions or specific issues. But you know, these issues like the NSA surveillance matters, like the CIA interrogation matters, I think it’s clear that they raise difficult questions. I’ve said before and I realize that there are strong arguments on both sides, and in the NSA surveillance context, we made an effort to explain in a very thorough white paper for Congress and the public, the analysis supporting the aspects of the program that the president publicly acknowledged.
Would you ever subject yourself to any of the interrogation techniques or other methods out there? Or have you? I think it’s probably best that I don’t speak to that particular detail. I guess I will say it’s important for us to have a documented basis on which to base our legal opinions, so we often will look to an agency that is expert in the factual questions for what the facts are on which we are providing a legal opinion. This office is not equipped to be an investigative office. We don’t go out and find facts. We don’t investigate the facts. Typically, we rely on the agencies that come to us for advice for their authoritative statement of the facts.
On politics, former colleagues have described you as independent-minded and apolitical. Yes. I think that’s accurate. I’ve not really been politically active on campaigns or in political ways in the past.
Some records that I pulled up from the Federal Election Commission show you made donations of more than $10,000 over the years. [Between 1999 and 2003, Bradbury gave mostly to Republican campaigns and to the Kirkland & Ellis PAC. He gave $500 to a Democratic contender in Ohio who was running for U.S. Senate.] Are you still active in politics? No. I’ve not been active in active political matters since coming here in April of 2004, and that’s consistent with the policy of the department for senior appointees within Department of Justice to take on extra restrictions beyond those provided for or required by the Hatch Act. I’ve just been consumed by the work of this office, which fundamentally is not political. This is not really a policy shop, so we really haven’t been involved in developing or promoting policies for this administration. So I haven’t had a lot of interaction with outside groups that may have an interest in policy, or political interest in policy matters.

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