March 26, 2008

Human Rights Watch and the Open Society Policy Center write to Senators Leahy and Specter, chair and ranking member of the Senate Judiciary Committee, opposing the nomination of Steven Bradbury to be Assistant Attorney General of the Department of Justice's Office of Legal Counsel. As effective head of the OLC since June 2005, Bradbury’s approval of torture and other cruel, inhuman or degrading techniques to interrogate detainees defies applicable law and precedent. It is an affront to fundamental American values and has done enormous damage to America’s authority and reputation in the world.

Dear Chairman Leahy and Ranking Member Specter:

We are writing to urge you to oppose the nomination of Steven Bradbury to be Assistant Attorney General of the Department of Justice’s Office of Legal Counsel (OLC). While the undersigned groups rarely take positions on nominations, we believe that Bradbury’s role in authorizing torture makes this an extraordinary case.

As you know, Bradbury has been effective head of OLC since June 2005. The OLC is entrusted with providing the president and other executive branch agencies with legal advice that is an accurate and honest appraisal of applicable law, even if it places constraints on the policies of the executive. Bradbury’s approval of torture and other cruel, inhuman or degrading techniques to interrogate detainees defies applicable law and precedent. It is an affront to fundamental American values and has done enormous damage to America’s authority and reputation in the world.

Soon after joining OLC, Bradbury is believed to have signed off on still-secret OLC legal opinions authorizing the use of “waterboarding” in combination with other abusive interrogation techniques, such as head-slapping, and extended exposure to cold. James Comey, then deputy attorney general, reportedly told his colleagues that they would be “ashamed” when the opinion became public.

Many of the interrogation techniques Bradbury reportedly approved have been prosecuted by US military and civilian courts as torture over the past 100 years. As recently as 1983, the Justice Department prosecuted a Texas sheriff for subjecting prisoners to “water torture” in an attempt to coerce confessions. Bradbury apparently ignored these precedents. In so doing, he placed in legal jeopardy everyone from the president of the United States to CIA interrogators in the field who trust the Justice Department to provide responsible legal guidance.

In late 2005, as the McCain amendment prohibiting cruel, inhuman, and degrading treatment was working its way through Congress, Bradbury is believed to have signed off on another legal memo which concluded that none of the interrogation techniques already authorized would violate the amendment, despite the clear contrary intent of the Congress.

Last month, the Justice Department’s Office of Professional Responsibility announced that it was investigating whether those who gave legal approval to waterboarding and other harsh interrogation techniques violated the department’s professional standards.

Still, Bradbury continues to offer a legal justification for the use of waterboarding. Testifying before the House Judiciary Committee in February 2008, he argued that waterboarding, as has been used by the US government, was not torture. He explained that this was because US interrogators did not allow “mass amounts” of water to enter the lungs of the victims, nor did they jump on the victims’ distended bellies, as was done during the Spanish Inquisition, and by Japanese soldiers prosecuted by the United States after World War II.

This is the kind of legal analysis one would expect from a defense counsel trying to keep his client out of prison, rather than an objective analyst of the law. But however you parse it, waterboarding is torture.

Bradbury’s public testimony sends a profoundly dangerous message to potential adversaries of the United States about the kind of treatment the US government would consider acceptable if inflicted on Americans in custody. Imagine if North Korea captured an American soldier and said to the United States, “Don’t worry. We only used the good waterboarding on the American in our custody. We made sure that his stomach never became distended, and we didn’t jump on it. We just made sure he thought he was going to suffocate, but stopped after he went into terrible hysterics.” This is precisely what Bradbury suggests would be acceptable.

The United States needs someone to head the Office of Legal Counsel who can maintain the highest legal standards and provide the president a reliable interpretation of what the law is -- rather than what the president wants the law to be. Steven Bradbury has proven unable to do so, and we urge you to oppose his nomination.

Sincerely,

Kenneth Roth
Executive Director
Human Rights Watch

Morton H. Halperin
Executive Director
Open Society Policy Center

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