Mr. Speaker, my colleague from Virginia has offered a motion to recommit H.R. 2740 the MEJA Expansion and Enforcement Act, to the Judiciary Committee and to amend the legislation with regard to intelligence activities. I will support this…
Mr. Speaker, my colleague from Virginia has offered a motion to recommit H.R. 2740 the MEJA Expansion and Enforcement Act, to the Judiciary Committee and to amend the legislation with regard to intelligence activities. I will support this motion, but with two important qualifications.
The motion to recommit would amend H.R. 2740 with a rule of construction, stating, ``nothing in this Act shall be construed to affect intelligence activities that are otherwise permissible prior to the enactment of this Act.'' This amendment does not at all modify the force of my legislation, does not limit the scope of the MEJA jurisdiction, and does not grant immunity to anyone, including contractor employees of the intelligence community. Put simply, I am voting in support of this motion because it in no way alters the underlying bill before us.
With that said, let me attach two qualifications to my support. First, the amendment is
unnecessary in the context of both current law and this legislation. Second, the amendment raises serious questions about the activities its proponents may be seeking to protect.
My legislation would indeed place contractor employees of non-defense related agencies under the extraterritorial jurisdiction of United States federal law, granting the Department of Justice authority to prosecute felony offenses committed by non-defense contractors. Defense contractors are already covered by MEJA, a point that seems lost on the authors of this motion. Given that the majority of the intelligence community falls under the Department of Defense, it stands to reason that many--if not most--contractors engaged in intelligence-related activities are already under the jurisdiction of federal law. Not only that, employees of the Defense Department intelligence agencies, including agents of the Defense Intelligence Agency, the National Security Agency, and intelligence services of the different branches of the Armed Forces, among others, are covered by MEJA, and this coverage has not endangered our national security in the least. So concerns about my legislation, which deals with non-defense contractors, seem ill-founded in the context of current law.
To my knowledge, there have never been significant concerns raised about the coverage of these Defense Department intelligence agents and contractors, for one major reason: prosecutorial discretion. The Department of Justice always has the discretion to refrain from prosecuting a case if it will endanger our national security interests. My legislation does not compel prosecution and it does not interfere with the prosecutor's discretion. If a prosecutor ever has concerns that prosecution of a contractor under MEJA would endanger state secrets, expose clandestine networks, or otherwise undermine our security interests, the prosecutor has the discretion not to prosecute the case. It's as simple as that.
Let me also point out that this bill only affects contractors who commit felony crimes. So long as private contractors, including those who are engaged in intelligence-related activities, are conducting themselves within the bounds of the law, this legislation is irrelevant to them. However, if there are private, for-profit contractors tasked with duties that require them to commit felony offenses, Congress needs to know about it. Such a revelation would point to a need for a serious debate about whether we are using contractors appropriately.
My second qualification is that this amendment raises serious questions about the activities it may be intended to protect. The question here is, given that my bill only targets activities that are unlawful, why do my colleagues feel the need to clarify that it does not affect activities that are permissible? What activities are contractors carrying out that are permissible but not lawful?
I have great apprehension about what might be meant in this context, but first let me state clearly: the law is the highest authority in the land, other than the constitution. The law trumps executive orders, memorandums, and policies in all cases. I am voting for this motion with the understanding that there is no activity a contractor might be performing that could ever be permissible but not lawful. The activities that we assign to private contractors must be in accordance with the law on the books. Therefore, I interpret this motion simply to mean that nothing in my bill will have any effect on contractors working on lawful, permissible, appropriate intelligence activities.
I raise this concern because, as my colleagues well know, Congress-- including members on both sides of the aisle--and this Administration have been at significant odds about the activities appropriate for our military and intelligence community to perform in certain contexts relating to the war in Iraq and the broader war against terrorism, especially with regard to the treatment of suspects in interrogations and detentions. There is rampant evidence that this Administration believes certain activities to be ``permissible'' which are clearly illegal under several statutes in United States Code.
Just today, for example, the New York Times reported that the Department of Justice has issued secret memorandums that, in direct contrast to the policies they have publicly avowed, amounted to ``an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency'' and ``for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.'' I submit the full article for inclusion in the Record.
The harshest forms of physical and psychological tactics outlined in this article are inappropriate and illegal for our military personnel and intelligence agents, to say nothing of private contractors, and it is abominable that this Administration continues to work to circumvent our time-honored values and laws to authorize behavior that is un- American to its core.
There are clear laws on the books prohibiting torture, including the War Crimes Act (18 U.S. Code 2441) and the federal anti-torture statute (18 U.S. Code 2340). Moreover, torture is prohibited by the Uniform Code of Military Justice (articles 77-134). And the United States is a ratified signatory to international treaties, including the Geneva Conventions (Common Article 3) and the Convention Against Torture, which specifically outlaw torture. Most importantly, the United States Constitution (amendments 5, 8, and 14) explicitly prohibits cruel, unusual, and inhumane treatment or punishment.
The kinds of activities that, to the great shame of our nation, have been carried out at Abu Ghraib prison and Guantanamo Bay detention facilities are not, in any circumstances, permissible. Let us be clear that, in the passage of this motion, we are in no way authorizing or legitimating these behaviors. Let us also be clear that, in this passage of this legislation, we are providing federal prosecutors the tools to arrest and prosecute any contractor working for this government who commits such abominable acts to the full extent of the law.
[From the New York Times, Oct. 4, 2007]
Secret U.S. Endorsement of Severe Interrogations
(By Scott Shane, David Johnston and James Risen)
Washington, Oct. 3.--When the Justice Department publicly
declared torture ``abhorrent'' in a legal opinion in December
2004, the Bush administration appeared to have abandoned its
assertion of nearly unlimited presidential authority to order
brutal interrogations.
But soon after Alberto R. Gonzales's arrival as attorney
general in February 2005, the Justice Department issued
another opinion, this one in secret. It was a very different
document, according to officials briefed on it, an expansive
endorsement of the harshest interrogation techniques ever
used by the Central Intelligence Agency.
The new opinion, the officials said, for the first time
provided explicit authorization to barrage terror suspects
with a combination of painful physical and psychological
tactics, including head-slapping, simulated drowning and
frigid temperatures.
Mr. Gonzales approved the legal memorandum on ``combined
effects'' over the objections of James B. Comey, the deputy
attorney general, who was leaving his job after bruising
clashes with the White House. Disagreeing with what he viewed
as the opinion's overreaching legal reasoning, Mr. Comey told
colleagues at the department that they would all be
``ashamed'' when the world eventually learned of it.
Later that year, as Congress moved toward outlawing
``cruel, inhuman and degrading'' treatment, the Justice
Department issued another secret opinion, one most lawmakers
did not know existed, current and former officials said. The
Justice Department document declared that none of the C.I.A.
interrogation methods violated that standard.
The classified opinions, never previously disclosed, are a
hidden legacy of President Bush's second term and Mr.
Gonzales's tenure at the Justice Department, where he moved
quickly to align it with the White House after a 2004
rebellion by staff lawyers that had thrown policies on
surveillance and detention into turmoil.
Congress and the Supreme Court have intervened repeatedly
in the last two years to impose limits on interrogations, and
the administration has responded as a policy matter by
dropping the most extreme techniques. But the 2005 Justice
Department opinions remain in effect, and their legal
conclusions have been confirmed by several more recent
memorandums, officials said. They show how the White House
has succeeded in preserving the broadest possible legal
latitude for harsh tactics.
A White House spokesman, Tony Fratto, said Wednesday that
he would not comment on any legal opinion related to
interrogations. Mr. Fratto added, ``We have gone to great
lengths, including statutory efforts and the recent executive
order, to make it clear that the intelligence community and
our practices fall within U.S. law'' and international
agreements.
More than two dozen current and former officials involved
in counterterrorism were interviewed over the past three
months about the opinions and the deliberations on
interrogation policy. Most officials would speak only on the
condition of anonymity because of the secrecy of the
documents and the C.I.A. detention operations they govern.
When he stepped down as attorney general in September after
widespread criticism of the firing of federal prosecutors and
withering attacks on his credibility, Mr. Gonzales talked
proudly in a farewell speech of how his department was ``a
place of inspiration'' that had balanced the necessary
flexibility to conduct the war on terrorism with the need to
uphold the law.
Associates at the Justice Department said Mr. Gonzales
seldom resisted pressure from Vice President Dick Cheney and
David S. Addington, Mr. Cheney's counsel, to endorse policies
that they saw as effective in safeguarding Americans, even
though the practices brought the condemnation of other
governments, human rights groups and Democrats in Congress.
Critics say Mr. Gonzales turned his agency into an arm of the
Bush
White House, undermining the department's independence.
The interrogation opinions were signed by Steven G.
Bradbury, who since 2005 has headed the elite Office of Legal
Counsel at the Justice Department. He has become a frequent
public defender of the National Security Agency's domestic
surveillance program and detention policies at Congressional
hearings and press briefings, a role that some legal scholars
say is at odds with the office's tradition of avoiding
political advocacy.
Mr. Bradbury defended the work of his office as the
government's most authoritative interpreter of the law. ``In
my experience, the White House has not told me how an opinion
should come out,'' he said in an interview. ``The White House
has accepted and respected our opinions, even when they
didn't like the advice being given.''
The debate over how terrorism suspects should be held and
questioned began shortly after the Sept. 11, 2001, attacks,
when the Bush administration adopted secret detention and
coercive interrogation, both practices the United States had
previously denounced when used by other countries. It adopted
the new measures without public debate or Congressional vote,
choosing to rely instead on the confidential legal advice of
a handful of appointees.
The policies set off bruising internal battles, pitting
administration moderates against hard-liners, military
lawyers against Pentagon chiefs and, most surprising, a
handful of conservative lawyers at the Justice Department
against the White House in the stunning mutiny of 2004. But
under Mr. Gonzales and Mr. Bradbury, the Justice
Department was wrenched back into line with the White
House.
After the Supreme Court ruled in 2006 that the Geneva
Conventions applied to prisoners who belonged to Al Qaeda,
President Bush for the first time acknowledged the C.I.A.'s
secret jails and ordered their inmates moved to Guantanamo
Bay, Cuba. The C.I.A. halted its use of waterboarding, or
pouring water over a bound prisoner's cloth-covered face to
induce fear of suffocation.
But in July, after a monthlong debate inside the
administration, President Bush signed a new executive order
authorizing the use of what the administration calls
``enhanced'' interrogation techniques--the details remain
secret--and officials say the C.I.A. again is holding
prisoners in ``black sites'' overseas. The executive order
was reviewed and approved by Mr. Bradbury and the Office of
Legal Counsel.
Douglas W. Kmiec, who headed that office under President
Ronald Reagan and the first President George Bush and wrote a
book about it, said he believed the intense pressures of the
campaign against terrorism have warped the office's proper
role.
``The office was designed to insulate against any need to
be an advocate,'' said Mr. Kmiec, now a conservative scholar
at Pepperdine University law school. But at times in recent
years, Mr. Kmiec said, the office, headed by William H.
Rehnquist and Antonin Scalia before they served on the
Supreme Court, ``lost its ability to say no.'' ``The approach
changed dramatically with opinions on the war on terror,''
Mr. Kmiec said. ``The office became an advocate for the
president's policies.''
From the secret sites in Afghanistan, Thailand and Eastern
Europe where C.I.A. teams held Qaeda terrorists, questions
for the lawyers at C.I.A. headquarters arrived daily. Nervous
interrogators wanted to know: Are we breaking the laws
against torture? The Bush administration had entered
uncharted legal territory beginning in 2002, holding
prisoners outside the scrutiny of the International Red Cross
and subjecting them to harrowing pressure tactics. They
included slaps to the head; hours held naked in a frigid
cell; days and nights without sleep while battered by
thundering rock music; long periods manacled in stress
positions; or the ultimate, waterboarding.
Never in history had the United States authorized such
tactics. While President Bush and C.I.A. officials would
later insist that the harsh measures produced crucial
intelligence, many veteran interrogators, psychologists and
other experts say that less coercive methods are equally or
more effective.
With virtually no experience in interrogations, the C.I.A.
had constructed its program in a few harried months by
consulting Egyptian and Saudi intelligence officials and
copying Soviet interrogation methods long used in training
American service men to withstand capture. The agency
officers questioning prisoners constantly sought advice from
lawyers thousands of miles away.
``We were getting asked about combinations--`Can we do this
and this at the same time?' '' recalled Paul C. Kelbaugh, a
veteran intelligence lawyer who was deputy legal counsel at
the C.I.A.'s Counterterrorist Center from 2001 to 2003.
Interrogators were worried that even approved techniques
had such a painful, multiplying effect when combined that
they might cross the legal line, Mr. Kelbaugh said. He
recalled agency officers asking: ``These approved techniques,
say, withholding food, and 50-degree temperature--can they be
combined?'' Or ``Do I have to do the less extreme before the
more extreme?''
The questions came more frequently, Mr. Kelbaugh said, as
word spread about a C.I.A. inspector general inquiry
unrelated to the war on terrorism. Some veteran C.I.A.
officers came under scrutiny because they were advisers to
Peruvian officers who in early 2001 shot down a missionary
flight they had mistaken for a drug-running aircraft. The
Americans were not charged with crimes, but they endured
three years of investigation, saw their careers derailed and
ran up big legal bills.
That experience shook the Qaeda interrogation team, Mr.
Kelbaugh said. ``You think you're making a difference and
maybe saving 3,000 American lives from the next attack. And
someone tells you, `Well, that guidance was a little vague,
and the inspector general wants to talk to you,' '' he
recalled. ``We couldn't tell them, `Do the best you can,'
because the people who did the best they could in Peru were
looking at a grand jury.'' Mr. Kelbaugh said the questions
were sometimes close calls that required consultation with
the Justice Department. But in August 2002, the department
provided a sweeping legal justification for even the harshest
tactics.
That opinion, which would become infamous as ``the torture
memo'' after it was leaked, was written largely by John Yoo,
a young Berkeley law professor serving in the Office of Legal
Counsel. His broad views of presidential power were shared by
Mr. Addington, the vice president's adviser. Their close
alliance provoked John Ashcroft, then the attorney general,
to refer privately to Mr. Yoo as Dr. Yes for his seeming
eagerness to give the White House whatever legal
justifications it desired, a Justice Department official
recalled.
Mr. Yoo's memorandum said no interrogation practices were
illegal unless they produced pain equivalent to organ failure
or ``even death.'' A second memo produced at the same time
spelled out the approved practices and how often or how long
they could be used. Despite that guidance, in March 2003,
when the C.I.A. caught Khalid Sheikh Mohammed, the chief
planner of the Sept. 11 attacks, interrogators were again
haunted by uncertainty. Former intelligence officials, for
the first time, disclosed that a variety of tough
interrogation tactics were used about 100 times over two
weeks on Mr. Mohammed. Agency officials then ordered a halt,
fearing the combined assault might have amounted to illegal
torture. A C.I.A. spokesman, George Little, declined to
discuss the handling of Mr. Mohammed. Mr. Little said the
program ``has been conducted lawfully, with great care and
close review'' and ``has helped our country disrupt terrorist
plots and save innocent lives.''
``The agency has always sought a clear legal framework,
conducting the program in strict accord with U.S. law, and
protecting the officers who go face-to-face with ruthless
terrorists,'' Mr. Little added.
Some intelligence officers say that many of Mr. Mohammed's
statements proved exaggerated or false. One problem, a former
senior agency official said, was that the C.I.A.'s initial
interrogators were not experts on Mr. Mohammed's background
or Al Qaeda, and it took about a month to get such an expert
to the secret prison. The former official said many C.I.A.
professionals now believe patient, repeated questioning by
well-informed experts is more effective than harsh physical
pressure.
Other intelligence officers, including Mr. Kelbaugh, insist
that the harsh treatment produced invaluable insights into Al
Qaeda's structure and plans. ``We leaned in pretty hard on
K.S.M.,'' Mr. Kelbaugh said, referring to Mr. Mohammed. ``We
were getting good information, and then they were told:
``Slow it down. It may not be correct. Wait for some legal
clarification.''
The doubts at the C.I.A. proved prophetic. In late 2003,
after Mr. Yoo left the Justice Department, the new head of
the Office of Legal Counsel, Jack Goldsmith, began reviewing
his work, which he found deeply flawed. Mr. Goldsmith
infuriated White House officials, first by rejecting part of
the National Security Agency's surveillance program,
prompting the threat of mass resignations by top Justice
Department officials, including Mr. Ashcroft and Mr. Comey,
and a showdown at the attorney general's hospital bedside.
Then, in June 2004, Mr. Goldsmith formally withdrew the
August 2002 Yoo memorandum on interrogation, which he found
overreaching and poorly reasoned. Mr. Goldsmith left the
Justice Department soon afterward. He first spoke at length
about his dissenting views to The New York Times last month,
and testified before the Senate Judiciary Committee on
Tuesday.
Six months later, the Justice Department quietly posted on
its Web site a new legal opinion that appeared to end any
flirtation with torture, starting with its clarionlike
opening: ``Torture is abhorrent both to American law and
values and to international norms.''
A single footnote--added to reassure the C.I.A.--suggested
that the Justice Department was not declaring the agency's
previous actions illegal. But the opinion was unmistakably a
retreat. Some White House officials had opposed publicizing
the document, but acquiesced to Justice Department officials
who argued that doing so would help clear the way for Mr.
Gonzales's confirmation as attorney general.
If President Bush wanted to make sure the Justice
Department did not rebel again, Mr. Gonzales was the ideal
choice. As White House counsel, he had been a fierce
protector of the president's prerogatives. Deeply loyal to
Mr. Bush for championing his career from their days in Texas,
Mr. Gonzales would sometimes tell colleagues that he had just
one regret about becoming attorney general: He did not see
nearly as much of the president as he had in his previous
post.
Among his first tasks at the Justice Department was to find
a trusted chief for the Office of Legal Counsel. First he
informed Daniel Levin, the acting head who had backed Mr.
Goldsmith's dissents and signed the new opinion renouncing
torture, that he would not get the job. He encouraged Mr.
Levin to take a position at the National Security Council, in
effect sidelining him.
Mr. Bradbury soon emerged as the presumed favorite. But
White House officials, still smarting from Mr. Goldsmith's
rebuffs, chose to delay his nomination. Harriet E. Miers, the
new White House counsel, ``decided to watch Bradbury for a
month or two. He was sort of on trial,'' one Justice
Department official recalled.
Mr. Bradbury's biography had a Horatio Alger element that
appealed to a succession of bosses, including Justice
Clarence Thomas of the Supreme Court and Mr. Gonzales, the
son of poor immigrants. Mr. Bradbury's father had died when
he was an infant, and his mother took in laundry to support
her children. The first in his family to go to college, he
attended Stanford and the University of Michigan Law School.
He joined the law firm of Kirkland & Ellis, where he came
under the tutelage of Kenneth W. Starr, the Whitewater
independent prosecutor.
Mr. Bradbury belonged to the same circle as his
predecessors: young, conservative lawyers with sterling
credentials, often with clerkships for prominent conservative
judges and ties to the Federalist Society, a powerhouse of
the legal right. Mr. Yoo, in fact, had proposed his old
friend Mr. Goldsmith for the Office of Legal Counsel job; Mr.
Goldsmith had hired Mr. Bradbury as his top deputy.
``We all grew up together,'' said Viet D. Dinh, an
assistant attorney general from 2001 to 2003 and very much a
member of the club. ``You start with a small universe of
Supreme Court clerks, and you narrow it down from there.''
But what might have been subtle differences in quieter
times now cleaved them into warring camps.
Justice Department colleagues say Mr. Gonzales was soon
meeting frequently with Mr. Bradbury on national security
issues, a White House priority. Admirers describe Mr.
Bradbury as low-key but highly skilled, a conciliator who
brought from 10 years of corporate practice a more pragmatic
approach to the job than Mr. Yoo and Mr. Goldsmith, both from
the academic world.
``As a practicing lawyer, you know how to address real
problems,'' said Noel J. Francisco, who worked at the Justice
Department from 2003 to 2005. ``At O.L.C., you're not writing
law review articles and you're not theorizing. You're giving
a client practical advice on a real problem.''
As he had at the White House, Mr. Gonzales usually said
little in meetings with other officials, often deferring to
the hard-driving Mr. Addington. Mr. Bradbury also often
appeared in accord with the vice president's lawyer.
Mr. Bradbury appeared to be ``fundamentally sympathetic to
what the White House and the C.I.A. wanted to do,'' recalled
Philip Zelikow, a former top State Department official. At
interagency meetings on detention and interrogation, Mr.
Addington was at times ``vituperative,'' said Mr. Zelikow,
but Mr. Bradbury, while taking similar positions, was
``professional and collegial.''
While waiting to learn whether he would be nominated to
head the Office of Legal Counsel, Mr. Bradbury was in an
awkward position, knowing that a decision contrary to White
House wishes could kill his chances.
Charles J. Cooper, who headed the Office of Legal Counsel
under President Reagan, said he was ``very troubled'' at the
notion of a probationary period.
``If the purpose of the delay was a tryout, I think they
should have avoided it,'' Mr. Cooper said. ``You're implying
that the acting official is molding his or her legal analysis
to win the job.''
Mr. Bradbury said he made no such concessions. ``No one
ever suggested to me that my nomination depended on how I
ruled on any opinion,'' he said. ``Every opinion I've signed
at the Office of Legal Counsel represents my best judgment of
what the law requires.''
Scott Horton, an attorney affiliated with Human Rights
First who has closely followed the interrogation debate, said
any official offering legal advice on the campaign against
terror was on treacherous ground.
``For government lawyers, the national security issues they
were deciding were like working with nuclear waste--extremely
hazardous to their health,'' Mr. Horton said. ``If you give
the administration what it wants, you'll lose credibility in
the academic community,'' he said. ``But if you hold back,
you'll be vilified by conservatives and the administration.''
In any case, the White House grew comfortable with Mr.
Bradbury's approach. He helped block the appointment of a
liberal Ivy League law professor to a career post in the
Office of Legal Counsel. And he signed the opinion approving
combined interrogation techniques.
Mr. Comey strongly objected and told associates that he
advised Mr. Gonzales not to endorse the opinion. But the
attorney general made clear that the White House was adamant
about it, and that he would do nothing to resist.
Under Mr. Ashcroft, Mr. Comey's opposition might have
killed the opinion. An imposing former prosecutor and self-
described conservative who stands 6-foot-8, he was the rare
administration official who was willing to confront Mr.
Addington. At one testy 2004 White House meeting, when Mr.
Comey stated that ``no lawyer'' would endorse Mr. Yoo's
justification for the N.S.A. program, Mr. Addington demurred,
saying he was a lawyer and found it convincing. Mr. Comey
shot back: ``No good lawyer,'' according to someone present.
But under Mr. Gonzales, and after the departure of Mr.
Goldsmith and other allies, the deputy attorney general found
himself isolated. His troublemaking on N.S.A. and on
interrogation, and in appointing his friend Patrick J.
Fitzgerald as special prosecutor in the C.I.A. leak case,
which would lead to the perjury conviction of I. Lewis Libby,
Mr. Cheney's chief of staff, had irreparably offended the
White House.
``On national security matters generally, there was a sense
that Comey was a wimp and that Comey was disloyal,'' said one
Justice Department official who heard the White House talk,
expressed with particular force by Mr. Addington.
Mr. Comey provided some hints of his thinking about
interrogation and related issues in a speech that spring.
Speaking at the N.S.A.'s Fort Meade campus on Law Day--a
noteworthy setting for the man who had helped lead the
dissent a year earlier that forced some changes in the N.S.A.
program--Mr. Comey spoke of the ``agonizing collisions'' of
the law and the desire to protect Americans.
``We are likely to hear the words: `If we don't do this,
people will die,' '' Mr. Comey said. But he argued that
government lawyers must uphold the principles of their great
institutions.
``It takes far more than a sharp legal mind to say `no'
when it matters most,'' he said. ``It takes moral character.
It takes an understanding that in the long run, intelligence
under law is the only sustainable intelligence in this
country.''
Mr. Gonzales's aides were happy to see Mr. Comey depart in
the summer of 2005. That June, President Bush nominated Mr.
Bradbury to head the Office of Legal Counsel, which some
colleagues viewed as a sign that he had passed a loyalty
test. Soon Mr. Bradbury applied his practical approach to a
new challenge to the C.I.A.'s methods.
The administration had always asserted that the C.I.A.'s
pressure tactics did not amount to torture, which is banned
by federal law and international treaty. But officials had
privately decided the agency did not have to comply with
another provision in the Convention Against Torture--the
prohibition on ``cruel, inhuman, or degrading'' treatment.
Now that loophole was about to be closed. First Senator
Richard J. Durbin, Democrat of Illinois, and then Senator
John McCain, the Arizona Republican who had been tortured as
a prisoner in North Vietnam, proposed legislation to ban such
treatment. At the administration's request, Mr. Bradbury
assessed whether the proposed legislation would outlaw any
C.I.A. methods, a legal question that had never before been
answered by the Justice Department.
At least a few administration officials argued that no
reasonable interpretation of ``cruel, inhuman or degrading''
would permit the most extreme C.I.A. methods, like
waterboarding. Mr. Bradbury was placed in a tough spot, said
Mr. Zelikow, the State Department counselor, who was working
at the time to rein in interrogation policy. ``If Justice
says some practices are in violation of the C.I.D.
standard,'' Mr. Zelikow said, referring to cruel, inhuman or
degrading, ``then they are now saying that officials broke
current law.''
In the end, Mr. Bradbury's opinion delivered what the White
House wanted: a statement that the standard imposed by Mr.
McCain's Detainee Treatment Act would not force any change in
the C.I.A.'s practices, according to officials familiar with
the memo. Relying on a Supreme Court finding that only
conduct that ``shocks the conscience'' was unconstitutional,
the opinion found that in some circumstances not even
waterboarding was necessarily cruel, inhuman or degrading,
if, for example, a suspect was believed to possess crucial
intelligence about a planned terrorist attack, the officials
familiar with the legal finding said.
In a frequent practice, Mr. Bush attached a statement to
the new law when he signed it, declaring his authority to set
aside the restrictions if they interfered with his
constitutional powers. At the same time, though, the
administration responded to pressure from Mr. McCain and
other lawmakers by reviewing interrogation policy and giving
up several C.I.A. techniques.
Since late 2005, Mr. Bradbury has become a linchpin of the
administration's defense of counterterrorism programs,
helping to negotiate the Military Commissions Act last year
and frequently testifying about the N.S.A. surveillance
program. Once, he answered questions about administration
detention policies for an ``Ask the White House'' feature on
a Web site.
Mr. Kmiec, the former Office of Legal Counsel head now at
Pepperdine, called Mr. Bradbury's public activities a
departure for an office that traditionally has shunned any
advocacy role.
A senior administration official called Mr. Bradbury's
active role in shaping legislation and speaking to Congress
and the press ``entirely appropriate'' and consistent with
past practice. The official, who spoke on the condition of
anonymity, said Mr. Bradbury ``has played a critical role in
achieving greater transparency'' on the legal basis for
detention and surveillance programs.
Though President Bush repeatedly nominated Mr. Bradbury as
the Office of Legal Counsel's assistant attorney general,
Democratic senators have blocked the nomination. Senator
Durbin said the Justice Department would not turn over copies
of his opinions or other evidence of Mr. Bradbury's role in
interrogation policy.
``There are fundamental questions about whether Mr.
Bradbury approved interrogation methods that are clearly
unacceptable,'' Mr. Durbin said.
John D. Hutson, who served as the Navy's top lawyer from
1997 to 2000, said he believed that the existence of legal
opinions justifying abusive treatment is pernicious,
potentially blurring the rules for Americans handling
prisoners.
``I know from the military that if you tell someone they
can do a little of this for the country's good, some people
will do a lot of it for the country's better,'' Mr. Hutson
said. Like other military lawyers, he also fears that
official American acceptance of such treatment could endanger
Americans in the future.
``The problem is, once you've got a legal opinion that says
such a technique is O.K., what happens when one of our people
is captured and they do it to him? How do we protest then?''
he asked.