By Charlie Savage

From The New York Times | Original Article

WASHINGTON — President Trump’s nominee for general counsel of the Transportation Department, Steven G. Bradbury, is coming under fire by Democrats and human rights advocates for his role in providing legal blessing for waterboarding and other torture techniques used by the Central Intelligence Agency on terrorism suspects during the administration of George W. Bush.

Amid interruptions by anti-torture protesters at his confirmation hearing on Wednesday before the Senate Commerce, Science and Transportation Committee, Democrats grilled Mr. Bradbury about interrogation memos he wrote as head of the Justice Department’s Office of Legal Counsel during Mr. Bush’s second term.

“You lacked the judgment to stand up and say what is morally right when pressured by the president of the United States, and I’m afraid you would do so again,” said Senator Tammy Duckworth, Democrat of Illinois, who wagged her finger at Mr. Bradbury and accused him of having a dangerous “rubber stamp” mentality. “I cannot oppose this nomination strongly enough.”

Mr. Bradbury argued that his job at the Office of Legal Counsel, which is often called O.L.C., was to sort through murky legal issues and that he did not advocate particular policies. He also stressed that the legal landscape was different at the time because Congress had not yet enacted a law requiring intelligence agency interrogators to obey the same rules the military follows.

“Every opinion I gave for O.L.C. represented my best judgment of what the laws in effect at that time required,” he said. “I certainly recognize and respect that some of the questions we addressed during my tenure in the office raised difficult issues about which reasonable people could disagree.”

Democrats also pressed Mr. Bradbury about his work in private practice representing the now bankrupt Takata Corporation as it grappled with regulators at the Transportation Department over its faulty airbags that killed or injured over 100 people and led to an enormous recall. Mr. Bradbury said he would recuse himself from work involving the airbag recall.

Republicans took a friendlier line, with Senator Todd Young of Indiana thanking Mr. Bradbury for “enduring the scrutiny we have come to expect from these hearings” and for his “exemplary legal work” for Takata in collaboration with the National Highway Traffic Safety Administration, a component of the Transportation Department, to craft the recall program.

Because Republicans control the Senate, it appeared unlikely that the opposition to Mr. Bradbury would derail his nomination; Senator Bill Nelson of Florida, the ranking Democrat on the panel, told Mr. Bradbury that “it looks like you are going to be confirmed.” But the turbulence underscored how many Democrats are continuing to pay close attention to the disputed Bush-era interrogation program.

Mr. Bradbury was not in government when the Bush administration developed its torture program after the terrorist attacks of Sept. 11, 2001. Officials who carried it out were protected from prosecution under an anti-torture statute because the Office of Legal Counsel issued secret memos that invoked sweeping theories of executive power to declare that it would be lawful to subject detainees to waterboarding, prolonged sleep deprivation, shackling into painful stress positions and confinement in cramped boxes.

In 2005, after taking over the office, Mr. Bradbury wrote a new set of memos that reapproved the C.I.A.’s interrogation tactics, even when combined, although he relied on narrower legal reasoning. He also concluded that they did not violate a prohibition on “cruel, inhuman and degrading treatment” established by an international treaty; at the time, Senator John McCain, Republican of Arizona, was pushing to codify that rule in domestic statutes.

At the end of 2005, Congress enacted Mr. McCain’s law, and six months later, the Supreme Court ruled that a humane-treatment mandate in the Geneva Conventions protected Qaeda prisoners. The C.I.A. temporarily shuttered its program, and Congress passed a law limiting the court ruling’s impact by specifying categories of ill treatment that would be considered grave breaches of the Geneva Conventions.

In 2007, the C.I.A. proposed restarting a more limited version of its interrogation program under which inmates were deprived of sleep and solid food, slapped and grabbed by the head. Mr. Bradbury approved that shorter list of tactics. He did not address whether the others, too, would also still be legally permissible if a policy maker wanted to use them.

On Wednesday, Mr. Bradbury said his legal opinions “speak for themselves,” but denied that he had set out to justify the Bush administration’s existing policies.

“I viewed them as very hard questions,” he said. “If I had my druthers, I wouldn’t have then engaged in having to address those issues. But when you serve in an office where you are asked to provide legal advice about the very hardest questions, that’s the job. And that is what I did.”