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A controversial lawyer has led a top Justice Department office for the past three years without the approval of the Senate, a scenario that Democrats charge is illegal. Now the majority party is considering ways to force him from the position.
Steven Bradbury, President Bush’s nominee to head the department’s Office of Legal Counsel, has become a flashpoint in the battle between Senate Democrats and the White House over stalled nominees to fill spots in the administration and the judiciary. Bradbury was first nominated to head the office in June 2005, but his confirmation has stalled in the Senate after it was revealed that he might have played a crucial role in authorizing memos outlining tough interrogation tactics on terrorism detainees.
Even without confirmation, Bradbury continues to serve in the role that provides legal advice to the president and attorney general.
By running the office, Bradbury is in violation of an obscure 1998 law known as the Vacancies Reform Act, which limits the time a person can serve in an acting capacity. A Republican-controlled Congress created the law retaliating against the Clinton White House’s decision to keep controversial acting appointments in departments without Senate consent.
The Bush administration has countered that Bradbury is perfectly legal serving in his role, even without confirmation. The key distinction is found in Bradbury’s official title. In an opinion that draws on a Clinton administration memo, the Justice Department says Bradbury technically is not the “acting” administrator of the office even though he is in charge of its daily operations. Bradbury is considered the “principal deputy assistant attorney general,” a title he held prior to being nominated for the top spot.
Having made no progress urging Bush to withdraw the nomination, Democrats are now weighing other options to put pressure on the president, including changing the law to make it clear that Bradbury is breaking the law. That includes voting him down at the Judiciary Committee or simply preventing Bush from getting what wants from the panel.
“They have an arrogant disregard of the law, and this is just another example,” said Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee. “As long as they feel that they are totally independent of the law, some of us are going to think, ‘Why should we cooperate with them?’ ”
Since Bradbury was first proposed in 2005, Democrats have sent his nomination back to the president, who has sent the nomination back to the Senate. The threat of a Bradbury recess appointment has been one reason why Majority Leader Harry Reid (D-Nev.) has kept the Senate in “pro forma” sessions during extended congressional recesses — a tactical move that prevents Bush from bypassing the Senate.
Under that law, a nominee can serve as an acting head of an office for only 210 days after a nomination is returned to the president for a second time.
The Senate sent the nomination back to the White House a second time on Sept. 29, 2006, and Bradbury has remained in the top job since.
Senate Majority Whip Dick Durbin (D-Ill.) has pressed Attorney General Michael Mukasey to explain whether Bradbury’s actions can be considered legal since he has extended his stay beyond the law’s requirements.
In a February letter to Durbin, Mukasey said Bradbury’s leadership of the office is legal.
The department acknowledges that the time period for the Vacancies Reform Act has lapsed, but says that Bradbury is not the “acting” administrator. He remains the “principal deputy assistant attorney general” of the office, a position he has held since 2004.
The department says nothing in the law prohibits the attorney general from reassigning the responsibility of the vacant Senate-confirmed position to another employee in the office, including the principal deputy assistant attorney general.
“There are no duties that, by law, only the assistant attorney general for the [office] may perform,” said Peter Carr, a spokesman for the department.
An author of the 1998 law, who requested anonymity to speak freely, said the interpretation is in “real tension with the spirit of the act.”
The author said Bush is doing exactly what the law was intended to prevent — appointments without Senate confirmation.
Now Democrats are mulling their options. Taking the Justice Department to court could be fruitless since plaintiffs could face an uphill climb in proving they have legal standing, they say. Durbin intends to ask the comptroller general if that argument complies with the law and take steps based on that answer, according to an aide to the Senate majority whip.
Another option under consideration is to defeat Bradbury in committee, which would add further pressure to remove him from the spot. Sen. Dianne Feinstein (D-Calif.), a swing vote on the panel, said she doesn’t “believe” she would support him if the committee scheduled a vote, meaning that Democrats appear to have enough votes to defeat the nomination.
“I think those opinions were so flawed and so bad that they give you a window into the legal thinking that led to those opinions,” Feinstein said.
Bradbury’s critics focus on a 2005 opinion where he is believed to have agreed to authorize the use of waterboarding and other harsh interrogation techniques. Another 2005 opinion reportedly suggests that current interrogation tactics would not conflict with a detainee-rights bill moving through Congress that year.
His supporters say his role in approving those memos is unclear, despite strong concerns from human-rights groups.
“He’s a very good lawyer,” said Sen. Arlen Specter (R-Pa.). “He’s done some things some people don’t like, but he’s the president’s lawyer.” |
