In late February, the Senate Judiciary Committee held a hearing on the Due Process Act, a bill introduced in 2011 by Sen. Dianne Feinstein, D-Calif., that would have explicitly prohibited indefinite detentions without trial of U.S. citizens detained on terrorism charges within the U.S (the bill has gone nowhere). At the hearing, Minnesota’s Al Franken had harsh words for one of the witnesses, Steven Bradbury. While serving in the Bush administration as legal counsel, Bradbury authored three memos declaring the CIA’s use of torture to be legal.
“It’s very difficult for me, frankly, to rely on your legal opinion today. If the Office of Professional Responsibility questions your objectivity and reasonableness, then I think we on the panel should as well,” Franken told Bradbury. Mother Jones’ Adam Serwer tweeted at the time that “Franken dressing down Bradbury is the worst consequence any torture architect has ever faced: Mild embarrassment.” The confrontation was indeed hardly sufficient in holding torture sponsors accountable for their crimes. Nevertheless, it was the only time a Bush official has had to answer for his administration’s offenses against international law.
The Judiciary Committee finally got around last week to publishing the full record of the hearing. Turns out Franken inserted more damning comments into the written record. He and Bradbury exchanged an unusually hostile exchange of letters in the record, an exchange that shows what could have happened had President Obama been willing to hold hearings on the torture policies of the Bush administration.
In the complete report, Bradbury first complains that he was not given a chance to respond to Franken at the initial hearing. He says that the Justice Department’s Office of Professional Responsibility (OPR) never found that he failed to satisfy standards of personal responsibility. “I never allowed policy or programmatic purposes to override my legal judgment, and any suggestion to the contrary is flatly wrong,” Bradbury writes, clearly referring to Franken’s comments.
Franken responds with a letter of his own. He says Bradbury’s letter contains a number of erroneous statements. He notes that while OPR didn’t find that Bradbury had failed to meet professional requirements, it still cast doubt on his “objectivity and reasonableness.” OPR said that Bradbury’s memos are inconsistent with the plain meaning of the Geneva Conventions. The report found that the memos were simply written with the goal of allowing the CIA torture program to continue. In other words, they were mere legal rationalizations. Franken also quotes the OPR report as observing that other lawyers in the Bush administration found Bradbury’s reasoning flawed, politically motivated and simply wrong.
He lists the horrid torture techniques Bradbury authorized: cramped confinement, waterboarding, sleep deprivation up to 180 hours, etc. The Minnesota senator calls the techniques Bradbury authorized to be “absolutely reprehensible” (though he sadly calls them “enhanced interrogation techniques”) and his professional advice “contemptible.”
Franken concludes bluntly by saying that the committee should not have allowed Bradbury to testify in the first place. Bradbury’s letter “just further underscores how woefully unsuited you are as a witness to appear before the Judiciary Committee.”
Bradbury gets the last word. He notes that OPR merely has the authority to determine whether an attorney has violated professional responsibilities, not to determine the quality of his legal opinion, and the comments condemning him have no independent force of effect — which seems to undermine his citation of the report’s exoneration of him as authoritative. If a government report takes the extraordinary step of stepping outside its mandate because its authors believe the subject’s conduct was worthy of censure — Bradbury was investigated for four years — it shows the degree of the problem. Bradbury complains that highly charged words like “contemptible” and “reprehensible” can’t substitute for sound legal analysis.
It is not unheard of to hear witnesses criticized at Senate committee hearings. It is unusual for back-and-forths to spill over into summaries of the hearings that aren’t released for nearly five months. Franken took the extraordinary step of insisting on attacking a witness. It wasn’t much, but at least one of the Bush torture masters finally heard some truth.
Jordan Michael Smith writes about U.S. foreign policy for Salon. He has written for the New York Times, Boston Globe and Washington Post.