Madam President, I thank my colleague, the Senator from Rhode Island, and I join him in strong opposition to the nomination of Mr. Steven Bradbury to be the general counsel of the U.S. Department of Transportation. Mr. Bradbury is a deeply…
Madam President, I thank my colleague, the Senator from Rhode Island, and I join him in strong opposition to the nomination of Mr. Steven Bradbury to be the general counsel of the U.S. Department of Transportation.
Mr. Bradbury is a deeply flawed nominee for many reasons, including his unwillingness to recuse himself from issues involving his former clients and dodging commitments to forgo accepting waivers for recusals. However, my opposition to his nomination is rooted in his troubling record while serving at the Department of Justice during the Bush administration.
As we know, Mr. Bradbury was Acting Attorney General at the Department of Justice from 2005 to 2007 and led the Office of Legal Counsel there from 2005 to 2009. When he was nominated by President George W. Bush to be Assistant Attorney General in 2004, his nomination was so unacceptable that the majority leader at the time offered to confirm 84 stalled nominees in exchange for the withdrawal of his nomination.
Let me repeat that. The Senate majority leader at the time was willing to accept 84 other nominees in exchange for President Bush withdrawing Mr. Bradbury's nomination.
What Senators objected to then--and the reason I am so strongly opposed to Mr. Bradbury's nomination now--is that Mr. Bradbury is the chief architect of the legal justification that authorized waterboarding and other forms of enhanced interrogation techniques we used to hear a lot about during the last Bush Presidency. For those who might not be familiar with the term ``enhanced interrogation,'' there is another term for it that most Americans probably are familiar with. It is called ``torture.''
The ``torture memos,'' as they are commonly referred to today, represent a dark period in our Nation's recent history that we must never repeat. In my opinion, his connection to these memos alone should disqualify Mr. Bradbury from government service. I understand he is nominated to serve at the Department of Transportation and not the Department of Justice, but his very willingness in the past to aid and abet torture demonstrates a failure of moral character that makes him dangerous to the American people and to our troops regardless of which agency he is nominated to serve in. Those torture memos displayed a disturbing disregard for the intent of Congress and flouted both international and U.S. law.
If confirmed, Mr. Bradbury will swear a solemn oath to serve the interests of the American public by providing honest and objective legal analysis to the Department and the administration. I doubt he can carry out that oath.
The American Government would, once again, rely on his counsel to make sure Department of Transportation employees do not subvert the law, the intent of Congress, or the U.S. Constitution. Unfortunately, he has let both the government and the American people down before, and I have no confidence that he is capable of carrying out this critically important role. Public servants are supposed to serve the public interests, not the political whims of any President, Democratic or Republican.
The public should be alarmed by Mr. Bradbury's history of demonstrating complete deference to a President's policy goals, and we in the Senate should do everything we can to prevent the likelihood of that history continuing in the Trump administration.
For my colleagues who may not be familiar with the programs Mr. Bradbury justified in his legal opinion, let me clarify. Detainees, in his opinion, could be sleep-deprived for up to 180 hours--approximately 7\1/2\ days--forced into stress positions. Sometimes they were shackled to the ceiling, subjected to rectal rehydration and feeding, confined in boxes the size of small dog crates. It was also Mr. Bradbury's legal opinion that led CIA personnel to conduct mock executions. His legal opinion led to one man being waterboarded to the point that he became ``completely unresponsive, with bubbles rising through his open, full mouth.'' His legal opinion also led to another man being frozen to death. Some of these abuses were authorized; others were not, but brutality, once sanctioned, is not easily contained.
In 2005, this body voted 90 to 9 to enact the Detainee Treatment Act to prohibit ``cruel, inhuman, or degrading treatment or punishment.'' That law was enacted after the Supreme Court decided that terrorism detainees in U.S. custody were protected by the Geneva Conventions. However, Mr. Bradbury still found legal loopholes to allow torture to continue.
Even the Department of Justice's own Office of Professional Responsibility criticized him for ``uncritical acceptance'' of the CIA's representations about the torture program. This is stunning, and it cannot simply be dismissed.
In testimony before the Senate Judiciary Committee in 2007, Mr. Bradbury defended the President's questionable interpretation of the Hamdan case, a case where the Supreme Court ruled that President Bush did not have the authority to set up military tribunals at Guantanamo Bay, by famously suggesting the ``President is always right.''
This rubberstamp mentality is extremely dangerous, especially in the Trump administration. What will Mr. Bradbury do if President Trump asks him to come up with a legal justification to abolish laws mandating seat belt use or to come up with ways to negate drunk driving laws?
Let me be clear. Mr. Bradbury didn't make America safer, and he certainly didn't make our men and women in uniform safer either--quite the opposite. The actions Mr. Bradbury helped to justify put our troops and diplomats deployed overseas in greater danger.
This is personal to me because perhaps most disturbingly Mr. Bradbury's efforts to enable torture compromised our Nation's values. Our Nation's military men and women are taught the laws of armed conflict, the proper way to care for detainees, the importance of acting in accordance with American values. Mr. Bradbury's actions at the Department of Justice undermined those values. This type of twisted legal wrangling done at a desk far from the field of battle puts larger targets on the backs of our troops. If captured, are they now at greater risk of being tortured themselves? How we treat prisoners under our control affects how our troops are treated.
Let me read to you Warrant Officer Michael Durant's account of what happened to him when he was shot down and captured in Mogadishu, Somalia. This is from his book.
DURANT'S fear of being executed or tortured eased after
several days in captivity. After being at the center of that
enraged mob on the day he crashed, he mostly feared being
discovered by the Somalian public. It was a fear shared by
Firimbi--
Who was one of the people guarding him--
The ``propaganda minister'' had clearly grown fond of him.
It was something Durant worked at, part of his survival
training. The two men were together day and night for a week.
Firimbi spoke Italian and Durant spoke some Spanish,
languages similar enough for them to minimally communicate.
Firimbi considered Durant a prisoner of war. He believed
that by treating the pilot humanely, he would improve the
image of Somalis in America upon his release.
Mr. Durant talked at length about how he was treated when he was captured in Somalia. He talked about going for days without his wounds being cared for, being dragged out of his downed Black Hawk by a mob. He talked about being beaten. He talked about someone sticking a rifle into his room and firing and shooting him, where he had to pull the round out of his own shoulder. He talked about being shackled.
All of that is still better than the treatment that Mr. Bradbury's justifications allow to happen now. It makes our troops' jobs harder and more dangerous, and their job is already pretty dangerous. Take it from me, our troops will do any job we ask of them, but we shouldn't be trying to make those jobs more difficult or dangerous than they already are.
I can tell you from firsthand experience, as someone who has bled behind enemy lines, legal gymnastics are a luxury not afforded our men and women in the field. They are at battle and, more importantly, these justifications do not protect our troops who are sitting on the floor of a POW cell. When you are stuck bleeding in a helicopter behind enemy lines, you hope and pray that if the enemy finds you first, they treat you humanely.
When I was in flight school, I began the first of several periods when I was trained in the art of survival, escape, evasion, and rescue. All pilots received this training. Then, when we were deployed to Iraq, we also, as members of
the U.S. troops overseas who were identified as most likely at risk of being captured among U.S. troops deployed there, received additional training. This is what the Army told me I could expect upon being captured: I could expect to be raped. I could expect to be beaten. I could expect to be starved.
As I sat in my helicopter thanking God that there was another aircraft there to pull me out, even as the enemy were jumping into their pickup trucks, speeding toward us to try to capture us, the very realities of what Mr. Bradbury was justifying happened to me. It is not something that you can look at from the safety and security of a desk in Washington. Our troops face this every single day. This is why this nomination is so incredibly, incredibly troubling.
If the warlords in Somalia recognized the Geneva Conventions and treated Chief Warrant Officer Durant's capture more humanely, what does that say about Mr. Bradbury and his willingness to allow far greater forms of torture than what the Somali warlords were willing to do?
Mr. Bradbury lacked the moral conviction in the Bush White House that Somali warlords possessed in Mogadishu, and I don't think he can be trusted to stand up for the values I fought to defend, especially not in the current administration.
You don't just need to take my word for it. Mr. Bradbury's record speaks for itself, but in case this point isn't clear enough, here is what retired Marine Corps General Charles Krulak wrote to the Commerce, Science, and Transportation Committee about this nominee just this year on June 26 of 2017:
In his role as acting head of the Department of Justice's
Office of Legal Counsel . . . Mr. Bradbury displayed a
disregard for both U.S. and international law when
authorizing the use of so-called ``enhanced interrogation
techniques'' to interrogate terrorism suspects.
The general goes on further to say:
These interrogation techniques, which Mr. Bradbury
repeatedly approved, included methods that the United States
has acknowledged and even prosecuted as torture and cruel,
inhuman, and degrading treatment.
The use of these techniques not only violated well-
established law and military doctrine, but also endangered
U.S. troops and personnel, hindered the war effort, and
betrayed the country's values, damaging the United States'
stature around the world as a beacon for human rights and the
rule of law. We know that the United States is strongest when
it remains faithful to its core values. The use of torture
and cruel, inhuman, and degrading treatment undermines those
values, and Mr. Bradbury continually represented their use as
legal and advisable during his time serving in the Bush
Administration.
The general goes on to say further:
In recommending these techniques, Mr. Bradbury also
displayed a discomforting deference to the executive branch's
wishes, tailoring his legal recommendations to fit the White
House's preferred outcome, and even testified in a Senate
Judiciary Committee hearing that ``the President is always
right.'' Mr. Bradbury's recommendations also contradicted the
intent of Congress. In 2005, Congress passed the Detainee
Treatment Act with a vote of 90-9. The law prohibited abuse
of detainees by the U.S. military and agencies, but Mr.
Bradbury authored a legal memo specifically designed to
undermine the will of Congress and to provide the Bush
Administration with authorization to continue using
interrogation methods that constitute torture and cruel,
inhuman, and degrading treatment.
I believe that this is more important than political
affiliation. Mr. Bradbury has time and again shown his
willingness to contravene established law and the intent of
Congress in service to the will of the executive branch.
Though the position to which he is nominated likely will not
involve decisions on national security issues, I believe that
based on his past governmental service, Mr. Bradbury is not
fit for this political office. I ask you respectfully to
oppose his nomination.
That letter is signed:
Semper Fidelis,
Charles C. Krulak,
General, USMC (Ret.)
31st Commandant of the Marine Corps.
Also opposing Mr. Bradbury's nomination are 14 former national security law enforcement, intelligence, and interrogation professionals whose experience include service in the U.S. military, the Federal Bureau of Investigation, the Central Intelligence Agency, the Drug Enforcement Administration, the Defense Intelligence Agency, the Army Criminal Investigation Command, and the Naval Criminal Investigative Service.
They wrote:
We write today to express our opposition to the nomination
of Mr. Steven Bradbury to serve once again in a position of
significant responsibility within the U.S. government as
general counsel of the Department of Transportation.
Our opposition stems from the necessary judgment and
personal courage this office requires to provide candid and
objective legal advice to policymakers that may be seeking
politically expedient policy solutions.
We dedicated our professional lives to keeping our nation
safe. That work demanded using every resource at our
disposal, including and especially our moral authority. Our
enemies act without conscience. We must not.
Mr. Bradbury spent many years serving in the Department of
Justice--including as acting head of the Office of Legal
Counsel--during the George W. Bush Administration.
In this position, he prepared official memoranda that
provided legal cover for other agencies in the U.S.
Government to employ a program of interrogation tactics that
amounted to torture or cruel, inhuman, or degrading
treatment.
These brutal methods--which included waterboarding--
fundamentally violated domestic and international law
governing detainee treatment and caused untold strategic and
operational harm to our national security.
As former interrogators, intelligence, and law enforcement
professionals with extensive firsthand experience in the
field of interrogation, we were shocked by Mr. Bradbury's
attempt to defend the use of the waterboard and other torture
tactics based on the incorrect assertions that their use
would not cause severe physical pain or suffering and would
produce valuable intelligence.
In our professional judgment, torture and other forms of
detainee abuse are not only immoral and unlawful, they are
ineffective and counterproductive in gathering reliable
intelligence. They also tarnish America's global standing,
undermine critical alliances, and bolster our enemies'
propaganda efforts.
If the Senate confirms Mr. Bradbury, it would send a clear
message to the American public that authorizing the use of
torture is not only acceptable, but is not a barrier to
advancement into the upper ranks of our government.
We understand that Mr. Bradbury did not act alone in
authorizing torture, but as his nomination is before you, we
ask you to take this opportunity to reaffirm our commitment
to the ideals we strive to uphold by rejecting his
nomination.
Torture is not a partisan issue. Our respect for human
dignity is timeless, and we must never risk our national
honor to prevail in any war. Your vote to reject this
nomination would reflect the morally sound leadership that
this country needs and would not forget.
In another letter dated July 27, 2017, to the Commerce Committee, retired U.S. Air Force Col. Steven Kleinman wrote:
I write to express my deep concerns about confirming Mr.
Bradbury to serve once again in a position of significant
trust and responsibility within the U.S. Government.
I do not for a moment question his legal credentials;
rather, my apprehension centers around the equally important
elements of judgment and personal courage necessary to
provide legal advice that might run counter to the positions
advocated by his superiors.
History records that we have been down this road once
before with Mr. Bradbury and he was found sadly wanting.
As I trust you are aware, Mr. Bradbury served in senior
positions within the Department of Justice--including as
acting head of the Office of Legal Counsel--during the George
W. Bush Administration.
In that capacity, he prepared official memoranda that
provided legal cover for other agencies of the U.S.
Government to implement a program of severely coercive
interrogation practices.
These practices included an array of tactics--to include
waterboarding--that fundamentally violated domestic and
international law prohibiting cruel, inhuman, and degrading
treatment.
As an officer with extensive experience in both strategic
interrogation and in training members of the U.S. Armed
Forces to resist hostile interrogation, I was taken aback by
Mr. Bradbury's attempt to defend the use of the waterboard
based on wholly unfounded conjecture that it would not cause
severe physical pain or suffering.
If the committee were to favorably report this nomination
to the full Senate, it would be sending a clear and
undeniable message to the world, and, more importantly, to
the American public: Definitive action to support the
institutional use of torture is acceptable.
Clearly, Mr. Bradbury acted in concert with an untold
number of others within our government, and I am not asking
that he be singled out for his actions.
At the same time, his nomination is the one before you . .
. and with it an opportunity for the committee members to act
on behalf of all Americans in taking a vital step toward
reclaiming the moral high ground.
From the perspective of this American, the debate over
torture is not one that can be subject to partisan debate.
Instead, torture is something that is so inherently wrong and
so contrary to this nation's traditional values that it can
be one issue around which the entire country--and the U.S.
Senate--can rally.
Your vote to unfavorably report this nomination to your
colleagues would be a much-needed demonstration of ethical
leadership that would not soon be forgotten.
It is signed ``Very Respectfully, Steven M. Kleinman, Colonel, U.S. Air Force, Retired.''
Former Navy general counsel Alberto Mora wrote:
While acting as the head of the Office of Legal Counsel,
Steven Bradbury proved himself to be an advocate for the
brutal treatment of detainees, and then, when the Congress
enacted the McCain amendment to strengthen the legal
prohibitions against cruelty, he counseled the administration
on legal strategies on how to circumvent the law and the
Congress's will.
In exercising its advice and consent duty with respect to
the nominations of senior counsel to serve in this, or any,
administration, the Senate should take care to confirm only
those individuals with a clear record of respect for the law
and for the power of Congress as a coordinate and equal
branch of government. Steven Bradbury's record,
unfortunately, demonstrates a disrespect for both.
In a June 22, 2017, letter to the Commerce Committee, 14 human rights organizations highlighted their opposition to Mr. Bradbury's nomination:
We write to express our serious concerns regarding the
nomination of Steven G. Bradbury for general counsel of the
Department of Transportation (DOT).
Mr. Bradbury's role in justifying torture and cruel,
inhuman, or degrading treatment of individuals held in U.S.
custody marked him as an architect of the torture program.
Not only should the Senate be concerned about confirming a
nominee who had a central role in the criminal violation of
human rights, but his work during that period calls into
question his ability to provide the kind of rigorous,
independent legal analysis that is required of any top
government lawyer.
Mr. Bradbury was acting head of the Department of Justice's
(DOJ) Office of Legal Counsel (OLC) from 2005 to 2009. During
that time, Mr. Bradbury wrote several legal memoranda that
authorized waterboarding and other forms of torture and
cruel, inhuman, or degrading treatment. As such, he is most
prominently--and correctly--known as one of the authors of
the ``torture memos.''
His analysis directly contradicted relevant domestic and
international law regarding the treatment of prisoners and
helped establish an official policy of torture and detainee
abuse that has caused incalculable damage to both the United
States and the prisoners it has held.
Mr. Bradbury's role in the torture program, even then, was
notorious--so much so that the Senate refused to confirm him
as assistant attorney general for the Office of Legal Counsel
during the Bush Administration.
The Senate now knows even more about Mr. Bradbury's record,
and the harm caused by his opinions, based on oversight by
the Senate Select Committee on Intelligence and its report on
the Central Intelligence Agency's use of torture and abuse.
In Mr. Bradbury's time as acting head of the OLC, he
demonstrated an unwavering willingness to defer to the
authority and wishes of the president and his team instead of
providing objective and independent counsel.
During congressional testimony in 2007, Mr. Bradbury
responded to questions about the president's interpretation
of the law of war by declaring, ``The President is always
right''--a statement that is as outrageous as it is
inaccurate.
The DOJ Office of Professional Responsibility reviewed Mr.
Bradbury's ``torture memos'' and determined they raised
questions about the objectivity and reasonableness of Mr.
Bradbury's analyses; that Mr. Bradbury relied on uncritical
acceptance of executive branch assertions; and that in some
cases Mr. Bradbury's legal conclusions were inconsistent with
the plain meaning and commonly held understandings of the
law.
Senior government officials from the Bush Administration
who worked with Mr. Bradbury have said that they had ``grave
reservations'' about conclusions drawn in the Bradbury
torture memos and have described Mr. Bradbury's analysis as
flawed, saying the memos could be ``considered a work of an
advocacy to achieve a desired outcome.''
Moreover, Mr. Bradbury's 2007 torture memo was written with
the purpose of evading congressional intent and duly enacted
Federal law.
The Detainee Treatment Act of 2005, legislation that passed
the Senate with a vote 90-9, stated, ``No individual in the
custody or under the physical control of the United States
Government, regardless of nationality or physical location,
shall be subject to cruel, inhuman, or degrading treatment.''
However, Mr. Bradbury's memo explicitly allowed the
continuation of many of the abusive interrogation techniques
that Congress intended to prohibit in the DTA.
Perhaps most concerning from a congressional oversight
perspective, Mr. Bradbury affirmatively misrepresented the
views of members of Congress to support his legal
conclusions.
Specifically, in his 2007 memo, he relied on a false claim
that when the CIA briefed ``the full memberships of the House
and Senate Intelligence Committees and Senator McCain . . .
none of the Members expressed the view that the CIA detention
and interrogation program should be stopped, or that the
techniques at issue were inappropriate.''
In fact, Senator McCain had characterized the CIA's
practice of sleep deprivation as torture both publicly and
privately, and at least four other Senators raised objections
to the program.
As a senior government lawyer, Mr. Bradbury authorized
torture and cruel treatment of detainees in violation of U.S.
and international law.
Mr. Bradbury demonstrated either an inability or an
unwillingness to display objectivity and reasonableness in
evaluating the president's policy proposals.
We ask that in reviewing Mr. Bradbury's nomination for
general counsel of the Department of Transportation, another
profoundly important position of public trust, you take these
serious and disturbing factors into consideration.
That letter was signed by the American Civil Liberties Union, Appeal for Justice, Center for Constitutional Rights, Center for Victims of Torture, the Constitution Project, the Council on American-Islamic Relations, Defending Rights and Dissent, Human Rights First, Human Rights Watch, the Leadership Conference on Civil and Human Rights, the National Religious Campaign Against Torture, Open Society Policy Center, Physicians for Human Rights, and Win Without War.
Earlier this year, a group of 176 of the most respected retired generals and admirals wrote to then President-Elect Trump urging him to reject the very kinds of torture and cruel treatment Mr. Bradbury authorized. They wrote:
We have over six thousand years of combined experience in
commanding and leading American men and women in war and in
peace, and believe strongly in the values and ideals that our
country holds dear. We know from experience that U.S.
national security policies are most effective when they
uphold these ideals.
For these reasons, we are concerned about statements made
during the campaign about the use of torture or cruel,
inhuman, or degrading treatment of detainees in U.S. custody.
The use of waterboarding or any so-called ``enhanced
interrogation techniques'' is unlawful under domestic and
international law.
Opposition to torture has been strong and bipartisan since
the founding of our republic, through the administration of
President Ronald Reagan to this very day. This was reinforced
last year when the Congress passed the McCain-Feinstein anti-
torture law on an overwhelmingly bipartisan basis.
Torture is unnecessary. Based on our experience--and that
of our Nation's top interrogators, backed by the latest
science--we know that lawful, rapport-based interrogation
techniques are the most effective way to elicit actionable
intelligence.
Torture is also counterproductive because it undermines our
national security. It increases the risk to our troops,
hinders cooperations with allies, alienates populations whose
support the United States needs in the struggle against
terrorism, and provides a propaganda tool for extremists who
wish to do us harm.
Most importantly, torture violates our core values as a
nation. Our greatest strength is our commitment to the rule
of law and to the principles embedded in our Constitution.
Our servicemen and women need to know that our leaders do not
condone torture or detainee abuse of any kind.
I know some people might not understand why these enhanced interrogation techniques are a problem so let me just take a few moments to explain what they are.
Waterboarding. Waterboarding is a well-known torture tactic. Waterboarding creates the sensation of asphyxiation or drowning. The detainee is immobilized on his back and water is poured over a cloth covering his face. Far from the ``dunk in the water'' Dick Cheney has referred to, internal CIA reports describe instances of waterboarding as ``near drownings.''
Detainees were often waterboarded repeatedly. Khalid Shaikh Mohammed was waterboarded at least 183 times. Another detainee, Abu Zubaydah, was waterboarded so often that it led him at least once to become completely unresponsive, with bubbles rising through his mouth. This torture tactic may also lead to bleeding from the ears, severe lung and brain damage, and lasting psychological damage.
If we waterboard our prisoners, they will waterboard our men and women when they become prisoners.
Walling. Walling is a torture technique that involves encircling the detainee's neck with a collar or a towel and slamming him against the wall. Despite a requirement to use a false wall to avoid injury, Abu Zubaydah
was slammed against a concrete wall. Even in the event of using a false wall, detainees suffered extreme injury. Abu Ja'far al-Iraqi suffered from an edema, or swelling on his head, as a consequence of walling with the use of a false wall.
If we use this technique on our prisoners, they will use this technique on our men and women in uniform if they were to capture them.
Sleep deprivation. The detainees were kept awake by being shackled, forced to stand, or kept in stressed positions in an attempt to destroy their capacity for psychological resistance. This was routinely combined with nudity and/or round-the-clock interrogation. Although not overtly violent, extended periods of sleep deprivation can have painful and damaging mental and physical effects. After being forced to stand for 54 hours, Abu Ja'far al-Iraqi required blood thinners to treat the swelling in his legs. Following 56 hours without sleep, Arsala Khan suffered from violent hallucinations of dogs mauling and killing his family.
If we--the United States of America--use this technique on our prisoners, our enemies will use this technique on our men and women in uniform should they be captured.
Standing on broken feet. As an extreme form of sleep deprivation, two detainees--Abu Hazim and Abd al-Karim--were forced to stand for hours with broken feet. Despite recommendations that he avoid weight bearing for 3 months, Abu Hazim underwent 52 hours of standing sleep deprivation on his broken foot barely a month after his diagnosis. While injured, these detainees were also subject to walling.
Again, when we do this to our prisoners, our enemies would do this to our troops.
Solitary confinement. Detainees were regularly confined with no opportunity for social interaction. This is often combined with nudity, sensory deprivation, total darkness, or constant light, and shackling. Abu Zubaydah was isolated naked in a cell with bright lights and white noise or loud noise playing. At one point, he was kept for 47 days in total isolation.
The dangers of solitary confinement were recognized by the U.S. Supreme Court as early as 1890 in In re Medley, where the Court described prisoners becoming violently insane, committing suicide, and the partial loss of their mental activity.
If we do this to our prisoners, they would do it to our troops.
Stress positions. These positions are designed to cause pain and discomfort for extended periods of time and were often used in combination with sleep deprivation. Detainees were shackled with their arms over their heads, forced to stay standing, or were placed in cramped confinement, such as coffin-sized boxes.
Abd al-Rahim al-Nashiri was subjected to improvised stress positions that not only caused cuts and bruises but led to the intervention of a medical officer who was concerned that his shoulders would be dislocated. Abu Zubaydah was confined to a coffin-shaped box for a total of over 11 days.
If we do this to our prisoners--and Mr. Bradbury justified this--they would do it to our troops.
Rectal feeding and rectal exams. Rectal feeding was used for prisoners who refused food and entails insertion of a tube containing pureed food into the detainee's anal passage. This was used for behavioral control, without medical necessity, despite risks of damage to the colon and rectum or of food rotting inside the digestive tract. One detainee, Mustafa Ahmed al-Hawsawi, suffered a rectal prolapse likely caused by overly harsh rectal exams.
If we do this to our prisoners--and Mr. Bradbury's memo made it so we could--they would do this to our troops should our troops be captured by the enemy.
Nudity. This form of sexual humiliation relies on cultural and religious taboos and required detainees to be fully or partially naked during interrogations or when shackled. Nudity was also regularly combined with cold temperatures and cold showers. One detainee, Gul Rahman, died of suspected hypothermia following 48 hours of sleep deprivation, half naked, in an extremely cold room.
Again, if we do this to our prisoners--and Mr. Bradbury wrote the legal justification allowing this to happen--they will do this to our troops. We do not want this man in the U.S. Government making more decisions about what is right and what is wrong and how to protect the American public. If he was willing to do this and allow this to happen, what can we trust him to have good judgment on?
In a September 6, 2006, article by Sean Alfano at CBS/AP entitled ``U.S. Army Bans Torture Of Prisoners,'' he wrote:
A new U.S. Army manual bans torture and degrading treatment
of prisoners, for the first time specifically mentioning
forced nakedness, hooding and other procedures that have
become infamous since the Sept. 11, 2001 terrorist attacks.
Delayed more than a year amid criticism of the Defense
Department's treatment of prisoners, the new Army Field
Manual was released Wednesday, revising [a previous] one from
1992.
It also explicitly bans beating prisoners, sexually
humiliating them, threatening them with dogs, depriving them
of food or water, performing mock executions, shocking them
with electricity, burning them, causing other pain and a
technique called ``water boarding'' that simulates drowning,
said Lt. Gen. John Kimmons, Army Deputy Chief of Staff for
Intelligence.
Officials said the revisions are based on lessons learned
since the U.S. began taking prisoners in response to the
Sept. 11, 2001, attacks on the United States.
Release of the manual came amid a flurry of announcements
about the U.S. handling of prisoners, which has drawn
criticism from Bush administration critics as well as
domestic and international allies.
The Pentagon also announced an overall policy statement on
prisoner operations. And President George W. Bush
acknowledged the existence of previously secret CIA prisons
around the world where terror suspects have been held and
interrogated, saying 14 such al Qaeda leaders had been
transferred to the military prison at Guantanamo Bay and will
be brought to trial.
An international outcry about prisoner rights began shortly
afterward. Human rights groups and some nations have urged
the Bush administration to close the prisons at the U.S.
naval base in Guantanamo Bay, Cuba, since not long after it
opened in 2002 with prisoners from the campaign against al
Qaeda in Afghanistan. Scrutiny of U.S. treatment of prisoners
shot to a new level in 2004 with a release of photos showing
U.S. troops beating, intimidating and sexually abusing
prisoners at Abu Ghraib in Iraq--and then again with news of
secret facilities.
Though defense officials earlier this year debated writing
a classified section of the manual to keep some interrogation
procedures a secret from potential enemies, Kimmons said
Wednesday that there is no secret section to the new manual.
Defense Secretary Donald H. Rumsfeld has said from the
start of the counter-terror war that prisoners were treated
humanely and in a manner ``consistent with Geneva
Conventions.''
But President George W. Bush decided shortly after the
Sept. 11 attacks that since it was not a conventional war,
``unlawful enemy combatants'' captured in the fight against
al Qaeda would not be considered prisoners of war and thus
would not be afforded the protections of the convention.
The new manual, called ``Human Intelligence Collector Operations,'' applies to all the armed services, not just the Army. It does not cover the Central Intelligence Agency, which also has come under investigation for mistreatment of prisoners in Iraq and Afghanistan and for allegedly keeping suspects in secret prisons elsewhere around the world since the Sept. 11 attacks.
Sixteen of the manual's 19 interrogation techniques were
covered in the old manual and three new ones were added on
the basis of lessons learned from the counter-terror war,
Kimmons said.
The additions are that interrogators may use the good-cop/
bad-cop tact with prisoners, they may portray themselves as
someone other than an American interrogator, and they may use
``separation,'' basically keeping prisoners apart from each
other so enemy combatants can't coordinate their answers with
each other.
The last will be used only on unlawful combatants, not
POWs, only as an exception and only with permission of a
high-level commander, Kimmons said.
The Pentagon also on Wednesday released a new policy
directive on detention operations that says the handling of
prisoners must--at a minimum--abide by the standards of the
Geneva Conventions and lays out the responsibilities of
senior civilian and military officials who oversee detention
operations.
``The revisions . . . took time,'' Deputy Assistant
Secretary of Defense for Detainee Affairs Cully Stimson said
at the briefing. ``It took time because it was important to
get it right, and we did get it right.''
It is interesting that the Department of Defense took the time and the effort to rewrite their manuals as a result of the abuses that came about following Mr. Bradbury's legal justification for the use of torture.
Here is what the Army Field Manual 2-22.3 says. This is the Human Intelligence Collector Operations manual,
dated September 6, 2006. This is what the Army now teaches our soldiers:
All captured or detained personnel, regardless of status,
shall be treated humanely and in accordance with the Detainee
Treatment Act of 2005 and DOD Directive 2310.1E, ``Department
of Defense Detainee Program,'' and no person in the custody
or under the control of DOD, regardless of the nationality or
physical location, shall be subject to torture or cruel,
inhuman, or degrading treatment or punishment, in accordance
with and as defined in US law.
All intelligence interrogations, debriefings, and tactical
questionings to gain intelligence from captured or detained
personnel shall be conducted in accordance with applicable
law and policy.
Applicable law and policy include US law; the law of war;
relevant international law, relevant directives, including
DOD Directive 3115.09, ``DOD Intelligence Interrogations,
Detainee Debriefings, and Tactical Questioning''; DOD
Directive 2310-1E, ``The Department of Defense Detainee
Program''; DOD instructions; and military execute orders
including FRAGOs. Use of torture is not only illegal but also
it is a poor technique that yields unreliable results, may
damage subsequent collection efforts, and can induce the
source to say what he thinks the HUMINT collector wants to
hear. Use of torture can also have many possible negative
consequences at national and international levels.
All prisoners and detainees, regardless of status, will be treated humanely.
Cruel, inhuman, and degrading treatment is prohibited. The Detainee Treatment Act of 2005 defines ``cruel, inhuman or degrading treatment'' as the cruel, unusual, and inhumane treatment or punishment provided by the Fifth, Eighth, or Fourteenth Amendments to the U.S. Constitution.
This definition refers to an extensive body of law developed by the courts of the United States to determine when, under various circumstances, treatment of individuals would be inconsistent with American constitutional standards related to concepts of dignity, civilization, humanity, decency, and fundamental fairness.
All DOD procedures for treatment of prisoners and detainees have been reviewed and are consistent with these standards as well as our obligation under international law as interpreted by the United States.
Questions about applications not resolved in the field by reference to the DOD publications must be forwarded to higher headquarters for legal review and specific approval by the appropriate authority.
Isn't it amazing that it took the Army to contradict and to come up with the procedures to counter the very actions Mr. Bradbury was willing to condone? And we want this man back in government? He doesn't belong back in government. This is a man who has, as his first priority, not America's values, not the morality of this Nation, not humanity--his first value is: What is it that my boss wants me to say, and I will find a way to do it. He said just as much in testimony. That is not who we want as a top lawyer over in the Department of Transportation. It is simply not acceptable.
In that same Army Field Manual, there is a section that talks about how interrogation should be conducted and the prohibited actions included, which are not limited to forcing the detainee to be naked, to perform sexual acts, or pose in a sexual manner, placing hoods or sacks over the head of a detainee, using duct tape over the eyes, applying beatings, electric shock, burns, or other forms of physical pain, waterboarding, using military working dogs, inducing hypothermia or heat injury, conducting mock executions, depriving the detainee of necessary food, water, or medical care.
The field manual goes on to say:
While using legitimate interrogation techniques, certain
applications of approaches and techniques may approach the
line between permissible actions and prohibited actions. It
may often be difficult to determine where permissible actions
end and prohibited actions begin. In attempting to determine
if a contemplated approach or technique should be considered
prohibited, and therefore should not be included in an
interrogation plan, consider these two tests before
submitting the plan for approval:
If the proposed approach technique were used by the enemy
against one of your fellow soldiers, would you believe the
soldier had been abused?
Could your conduct in carrying out the proposed technique
violate a law or regulation? Keep in mind that even if you
personally would not consider your actions to constitute
abuse, the law may be more restrictive.
I wish those questions had been made available to Mr. Bradbury when he was writing his memo, because the actions he condoned in his memo certainly would have failed this very simple two-question test.
The manual says:
If you answer yes to either of these tests, the
contemplated action should not be conducted. If the HUMINT
collector has any doubt that an interrogation approach
contained in an approved interrogation plan is consistent
with applicable law, or if he believes that he is being told
to use an illegal technique, the HUMINT collector should seek
immediate guidance from the chain of command and consult with
the SJA to obtain a legal review of the proposed approach or
technique. . . . If the HUMINT collector believes that an
interrogation approach or technique is unlawful during the
interrogation of a detainee, the HUMINT collector must stop
interrogation immediately and contact the chain of command
for additional guidance.
This is not something that Steven Bradbury did or has even now stated that he wished he had done, because his memo, which allowed all the torture techniques I have already detailed, would truly have failed these two tests, and he would have failed in moving forward with his memo to do the basic thing, which is to stop an illegal activity from occurring.
At this point, the Army Field Manual provides some caution:
Although no single comprehensive source defines
impermissible coercion, certain acts are clearly prohibited.
Certain prohibited physical coercion may be obvious, such as
physically abusing the subject of the screening
interrogation. Other forms of impermissible coercion may be
more subtle, and may include:
Threats to turn the individual over to others to be abused;
subjecting the individual to impermissible humiliating or
degrading treatment; implying harm to the individual or his
property. Other prohibited actions include implying a
deprivation of applicable protections guaranteed by law
because of a failure to cooperate; threatening to separate
parents from their children; or forcing a protected person to
guide US forces in a dangerous area. Where there is doubt,
you should consult your supervisor or servicing judge
advocate.
This is the problem. Mr. Bradbury, in writing this memo, showed absolutely no attempt or even desire to figure out whether what he was trying to justify was truly legal, in keeping with American values, or was the right thing to do for the United States. He simply moved forward with drafting this memo because the President of the United States wanted it to happen. That is not the democracy we live in. We don't live in a dictatorship. We are the greatest democracy on the face of the Earth because we are individuals who have the right to exercise a moral authority and to speak up. Mr. Bradbury showed none of that.
Even in testimony, he has expressed no regrets in the legal wranglings that he went through in order to justify torture. He showed no introspection, no thought as to whether it was the right thing to do. As far as he was concerned, his superiors wanted him to do this, so he did it.
What is he going to do at the Department of Transportation? What is he going to do when someone there tells him: The airbag manufacturers have decided it is just too expensive, so we need you to come up with justification for us to stop using airbags?
What he is going to do when people come to him and say: We really want to increase alcohol sales, so I think we should get rid of drunk driving laws? What he is going to do?
He has shown that he is willing to do whatever his superiors have asked him to do and that he is just the right guy for the job if they want a lawyer who is going to execute legal gymnastics to find a way to make something happen. Do we really want that person at the very top of the legal department of the Department of Transportation--not to mention the fact that once he is Senate-confirmed and in the Department of Transportation, it is that much easier to move him to another Senate-confirmed position, and there is no guarantee that he will not make his way back over to the Department of Justice to create more harm.
I ask my colleagues, if you care about this country, if you care about our troops who are in harm's way right now, please understand what it means to our troops who are downrange right now in all corners of the globe--facing the enemy, facing potentially being captured in the execution of their duties, protecting and defending our
great United States--to know that the enemy believes that America tortures and to know that they are at that much greater risk, if they were to be captured, to be tortured themselves.
I can't oppose Mr. Bradbury's nomination strongly enough. His most prominent, consequential work was to justify unlawful torture and detainee abuse. His comments in testimony during his confirmation hearings did not alleviate any of my concerns.
I know many of my colleagues are considering voting yes on this man because they think: Well, he is going to be over in the Department of Transportation. That was years ago; he will not have to write legal justification for the use of torture again, and we have passed laws about it since then. But he has shown that despite existing laws, he was able to find a way to get around them to justify torture. How do we know he will not do the same thing again at the Department of Transportation when it comes to public safety? What about our kids who ride school buses to school? They deserve protections.
The American public deserves protections. What they don't deserve is a man who has no moral compass when it comes to what is right and what is wrong but only a compass that asks: What do my bosses want me to do? That is not what the American people need. That is certainly not something we should be voting for.
If, in conversations with Mr. Bradbury, he promised you that he would be independent, I just ask you to look at his record. He has never been independent. In fact, when asked if he would recuse himself from various cases, he, in committee, avoided answering those questions, did not answer them straightforwardly, and showed he is simply not willing to commit to doing what is right.
I don't know how anyone can vote for him. I don't know what he has said in private conversations--what he says he thinks he would do at the Department of Transportation. All I can ask is for my colleagues to please look at the evidence, and the evidence is overwhelming. This is a man who cannot be trusted with the values of this country. He cannot be trusted to do what is right on behalf of the American people. He is not someone who will speak truth to power. If anything, this is a time in this country that we need more people who will speak truth to power, not someone who will kowtow to power, and that is exactly the kind of person Mr. Bradbury is. He is an unprincipled lawyer who will be paired with an unprincipled executive, and that is a dangerous combination regardless of what agency he serves.
Again, I ask my colleagues to please vote no on Mr. Bradbury. I cannot oppose his nomination strongly enough. If you have any questions, please come talk to those of us who have worn the uniform of this great Nation, who know what it is like to be in jeopardy of being captured by the enemy, who know what it is like to hope and pray that the nations around the world--which view America's conduct as the bellwether for how we treat others--know that they themselves will be treated in the same manner that we treat our prisoners.
Those troops in harm's way right now know that because of Mr. Bradbury, they are less safe and they are less able to do their jobs. When our troops go into harm's way, they should focus only on getting the job done, not on what might happen should they get captured. Thanks to Mr. Bradbury, that is a real threat for them now.
Again, I ask my colleagues to please say no.
I suggest the absence of a quorum.