There Can Be No Justification For Torture

The Constitution charges the Senate with giving its advice and consent to senior executive branch nominations as a check against the appointment of people to important government positions who, because of one failing or another, should not be entrusted with the interests of the American people. Today, I speak in opposition to the nomination of Steven Bradbury to be the General Counsel of the Department of Transportation. I do not believe that Mr. Bradbury deserves that public trust, and I will oppose his nomination.

Some of us here remember that Mr. Bradbury served as the acting head of the Department of Justice Office of Legal Counsel from 2005 to 2009. During this time, he authored a few of what have come to be known infamously as the ‘torture memos,’ which provided the legal justifications for 13 types of enhanced interrogation techniques employed by the CIA for detainees held by the United States under law of war authorities.

The term enhanced interrogation techniques is a euphemism. These memos provided a legal framework for the use of methods including waterboarding, which is a mock execution and an exquisite form of torture in which the victim suffers the terrible sensation of drowning. In discussing this practice, we are speaking of an interrogation technique that dates from the Spanish Inquisition and has been a prosecutable offense for over a century. It is among the crimes for which Japanese war criminals were tried and hanged following World War II and was employed by the infamous Khmer Rouge in Cambodia.

The memos also provided justifications for the inhumane interrogation of detainees using methods such as forced nudity and humiliation, facial and abdominal slapping, dietary manipulation, stress positions, cramped confinement, striking, and more than 48 hours of sleep deprivation. Worse, the legal justifications for these techniques were interpreted to permit their use simultaneously, over long periods of time, which constituted what I and many others familiar with these techniques believe is torture — torture inflicted by the representatives of a nation founded on the ideal that all people are born with equal dignity and that even enemies who scorn our ideals, once they are our prisoners, are to be spared cruel, inhuman and degrading treatment.

The memos, authored in part by Mr. Bradbury, justified the use of these techniques under Article 16 of the United Nations Convention against Torture and declared them not in contravention to Article 3 of the Geneva Convention, which prohibits ‘outrages upon personal dignity’ and violence to the life of a person. Most people have never been tightly bound, made to remain in a stress position, and deprived of sleep for 48 hours. Let me assure my colleagues: anyone who has suffered such treatment will know they’ve been tortured.

“The two main memos Mr. Bradbury wrote and signed were entitled: ‘Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees,’ and ‘Application of the War Crimes Act, the Detainee Treatment Act, and Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees.’

In the Senate Select Committee on Intelligence’s study of the detention and interrogation program, CIA leadership and interrogators frequently cited these two Bradbury memos as the legal justification that permitted them to use enhanced interrogation techniques. These techniques amounted to de facto torture. Put simply, Mr. Bradbury’s memos were permission slips for torture.

I have long said that I understand the reasons that governed the decision to approve these interrogation methods, and I know that those who approved them and those who employed them in the interrogation of captured terrorists were dedicated to protecting the American people from harm. I know they were determined to keep faith with the victims of terrorism and prove to our enemies that the United States would pursue justice relentlessly and successfully, no matter how long it took. I know their responsibilities were grave and urgent, and the strain of their duty was considerable. I admire their dedication and love of country. But I argued then, and I argue now, that it was wrong to use these methods, that it undermined our security interests, and that it contradicted the ideals that define us and which we have sacrificed much to defend.

While Mr. Bradbury has justified his work on these torture memos as the duty of a lawyer representing his client, the Commander in Chief of the United States, I believe he had a higher duty — as do all who serve this country — to defend our most cherished ideals from wholesale violation in the name of self-defense. Leave aside the fact that as intelligence gathering tools, torture is mostly useless and has been proven so by the record assembled by the Intelligence Committee. We have led by example and sacrificed blood and treasure to advance our ideals around the world, only to undermine our good reputation in a crucible in which we allowed fears to get the better of our decency.

And while it is true, as Mr. Bradbury and his supporters claim, that the memos issued under his name improved upon the sloppy and more expansive legal work done by his predecessors, I do not think that absolves Mr. Bradbury of his role in this dark chapter of American history. Indeed, a more meticulous justification for torture is still a justification for torture — and arguably a more pernicious one.

Let’s not pretend that there was no direct connection between the legal work done by Mr. Bradbury and the abuses that followed. The memos that bear his name made it possible for Khaled Sheik Mohammed — a monster and a murderer, to be sure, but a detainee held in U.S. custody under the laws of armed conflict — to be water-boarded 183 times. This technique was used so gratuitously that even those applying it eventually came to believe that there was no reason to continue. They were ordered to do so anyway.

The memos also made it possible for an Abu Zubaydah, an alleged al Qaeda operative, to be subjected to waterboarding 2–4 times a day, rendering him so distressed that he was unable to speak. The damaging effects of waterboarding cannot be overstated. According to the Senate Intelligence Committee’s report on torture, Zubaydah’s waterboarding sessions ‘resulted in immediate fluid intake and involuntary leg, chest and arm spasms’ and hysterical pleas. In at least one session, ‘Zubaydah became completely unresponsive with bubbles rising through his open, full mouth’ and required medical intervention.

The memos that bear Mr. Bradbury’s name also made it possible for a Libyan detainee and his wife to be rendered to a foreign country, where that woman was bound and gagged while several months pregnant, and photographed naked as several American intelligence officers watched. I am told that picture still exists, somewhere in the archives that record this shameful period in our history.

In voting against Mr. Bradbury’s nomination, as I also voted last week for similar reasons against Mr. Steven Engel’s nomination to head the Department of Justice’s Office of Legal Counsel, I am making it clear that I will not support any nominee who justified the use of torture by Americans. The laws of war were carefully created to be precise and technical in nature — but also to leave room for interpretation, even at the risk of abuse, by the Executive Branch. This makes the duty of government lawyers all the more significant. They must serve as guardians of our ideals and our obligations under international law. They are safeguards and checks on the conscience of our government, and I cannot in good faith vote to confirm lawyers who have fallen short in this awesome responsibility.

I cast my vote against Mr. Bradbury not because I believe him to be unpatriotic or malevolent, but because I believe that what is at stake in this confirmation vote, much like what we stand to gain or lose in the war we are still fighting, transcends the immediate matter before us. Ultimately, this is not about Mr. Bradbury. This is not about terrorists. This is about us — who we are and who we will be in the future.

This is about what we lose when — by official policy or official neglect — we allow, confuse or encourage those who fight this war for us to forget that best sense of ourselves. This is our greatest strength: that when we fight to defend our security we also fight for an idea, not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion, but for an idea that all men are created equal and endowed with inalienable rights.

It is indispensable to our success in this war that those we ask to fight it know that in the discharge of their responsibilities to our country, they are expected never to forget that they are Americans, and the defenders of a sacred idea of how nations should be governed and conduct their relations with others — even our enemies.

And those of us who have given them this enormous duty are obliged by our history and the many terrible sacrifices that have been made in our defense to make clear to them that they need not risk our country’s honor to prevail; that they are always, always, always Americans — and different, stronger and better than those who would destroy us.

Mr. Bradbury’s work many years ago did a disservice to our nation and its defenders. I cannot in good conscience vote to give him my trust to serve us again.