[Senate Hearing 115-281]
[From the U.S. Government Publishing Office]
S. Hrg. 115-281
NOMINATION TO THE
U.S. DEPARTMENT OF TRANSPORTATION
AND THE U.S. DEPARTMENT OF COMMERCE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
JUNE 28, 2017
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available online: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
30-769 PDF WASHINGTON : 2018
----------------------------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected]
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri MARIA CANTWELL, Washington
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD MARKEY, Massachusetts
DEAN HELLER, Nevada CORY BOOKER, New Jersey
JAMES INHOFE, Oklahoma TOM UDALL, New Mexico
MIKE LEE, Utah GARY PETERS, Michigan
RON JOHNSON, Wisconsin TAMMY BALDWIN, Wisconsin
SHELLEY MOORE CAPITO, West Virginia TAMMY DUCKWORTH, Illinois
CORY GARDNER, Colorado MAGGIE HASSAN, New Hampshire
TODD YOUNG, Indiana CATHERINE CORTEZ MASTO, Nevada
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Renae Black, Senior Counsel
C O N T E N T S
----------
Page
Hearing held on June 28, 2017.................................... 1
Statement of Senator Thune....................................... 1
Support letter dated June 22, 2017 to Hon. John Thune and
Hon. Bill Nelson........................................... 35
Support letter dated June 22, 2017 to Hon. John Thune and
Hon. Bill Nelson........................................... 37
Support letter dated June 27, 2017 to Hon. John Thune and
Hon. Bill Nelson........................................... 38
Support letter dated June 27, 2017 to Hon. John Thune and
Hon. Bill Nelson........................................... 39
Opposition letter dated June 28, 2017 to Hon. Mitch McConnell
from John McCain, United States Senator.................... 40
Opposition letter dated July 31, 2017 from nonpartisan group
of former national security, law enforcement, intelligence,
and interrogation professionals............................ 40
Opposition letter dated August 1, 2017 to Hon. John Thune and
Hon. Bill Nelson from Sheldon Whitehouse, United States
Senator.................................................... 41
Opposition letter dated August 1, 2017 from Robert Weissman,
President, Public Citizen.................................. 42
Statement of Senator Nelson...................................... 29
Letter dated June 22, 2017 to Steven G. Bradbury, Esquire
from Hon. Bill Nelson...................................... 31
Response letter dated June 23, 2017 to Hon. Bill Nelson from
Steven G. Bradbury......................................... 32
Statement of Senator Cantwell.................................... 44
Statement of Senator Cortez Masto................................ 47
Statement of Senator Sullivan.................................... 49
Statement of Senator Hassan...................................... 51
Statement of Senator Klobuchar................................... 53
Statement of Senator Duckworth................................... 55
Letter dated July 14, 2006 to Hon. Arlen Specter and Hon.
Patrick J. Leahy from Steven G. Bradbury, Acting Assistant
Attorney General, U.S. Department of Justice............... 58
Senate Select Committee on Intelligence Committee, Study of
the Central Intelligence Agency's Detention and
Interrogation Program...................................... 59
Memorandum dated May 10, 2005 for John A. Rizzo, Senior
Deputy General Counsel, Central Intelligence Agency........ 60
Memorandum dated July 20, 2007 for John A. Rizzo, Senior
Deputy General Counsel, Central Intelligence Agency........ 106
Memorandum dated October 6, 2008 from Steven G. Bradbury,
Principal Deputy Assistant Attorney General, U.S.
Department of Justice...................................... 195
Memorandum dated January 15, 2009 from Steven G. Bradbury,
Principal Deputy Assistant Attorney General, U.S.
Department of Justice...................................... 196
Department of Justice's Office of Professional Responsibility
Report on the Investigation into the Office of Legal
Counsel's Memoranda Concerning Issues Relating to the
Central Intelligence Agency's Use of ``Enhanced
Interrogation Techniques'' on Suspected Terrorists......... 203
Letter dated June 26, 2017 to Hon. John Thune and Hon. Bill
Nelson from Charles C. Krulak, General, United States
Marine Corps (Ret.)........................................ 203
Opposition letter dated June 22, 2017 to Chairman John Thune
from 14 leading human rights groups........................ 204
Statement of Senator Blumenthal.................................. 206
Article dated May 18, 2009 from The New York Times entitled,
``Advocacy Groups Seek Disbarment of Ex-Bush Administration
Lawyers'' by Scott Shane................................... 208
Statement of Senator Young....................................... 210
Witnesses
Steven Gill Bradbury, Nominee to be General Counsel, U.S.
Department of Transportation................................... 3
Prepared statement........................................... 4
Biographical information..................................... 5
Elizabeth Erin Walsh, Nominee to be Assistant Secretary of
Commerce and Director General of the United States and Foreign
Commercial Service, U.S. Department of Commerce................ 21
Prepared statement........................................... 22
Biographical information..................................... 23
Appendix
Response to written questions submitted to Steven Gill Bradbury
by:
Hon. John Thune.............................................. 215
Hon. Bill Nelson............................................. 215
Hon. Amy Klobuchar........................................... 217
Hon. Richard Blumenthal...................................... 219
Hon. Maggie Hassan........................................... 222
Response to written questions submitted to Elizabeth Erin Walsh
by:
Hon. Dan Sullivan............................................ 223
Hon. Bill Nelson............................................. 224
NOMINATION TO THE
U.S. DEPARTMENT OF TRANSPORTATION
AND THE U.S. DEPARTMENT OF COMMERCE
----------
WEDNESDAY, JUNE 28, 2017
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SR-253, Russell Senate Office Building, Hon. John Thune,
Chairman of the Committee, presiding.
Present: Senators Thune [presiding], Nelson, Sullivan,
Young, Cantwell, Klobuchar, Blumenthal, Duckworth, Hassan,
Cortez Masto, Fischer, and Heller.
OPENING STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
The Chairman. Good morning. Thank you, Mr. Bradbury and Ms.
Walsh, for being here. We have two well-qualified nominees
before our Committee today.
Steven Bradbury has been nominated to serve as the General
Counsel at the Department of Transportation. Mr. Bradbury is
currently a litigation partner at Dechert here in Washington,
D.C., and his practice focuses on regulatory enforcement and
investigations, rulemakings, and judicial review of agency
actions, as well as appellate cases and antitrust matters.
From 2005 to 2009, Mr. Bradbury headed the Office of Legal
Counsel at the Department of Justice, the office that provides
essential legal advice to the President and the heads of
executive departments and agencies. In that role, he received
the Edmund J. Randolph Award and the Secretary of Defense Medal
for Outstanding Public Service, among other awards.
Before serving in the Justice Department, Mr. Bradbury was
a partner at Kirkland & Ellis for 10 years. He clerked for
Justice Clarence Thomas on the Supreme Court and for Judge
James L. Buckley on the D.C. Circuit. Mr. Bradbury graduated
magna cum laude from Michigan Law School and received his B.A.
from Stanford University.
If confirmed, Mr. Bradbury will serve as the Chief Legal
Officer at the Department of Transportation, with final
authority on questions of law. The General Counsel is the legal
advisor to the Secretary and is responsible for the
supervision, coordination, and review of the legal work of the
almost 500 lawyers throughout the Department. The General
Counsel is also responsible for the Office of Aviation Consumer
Protection and Enforcement, and coordinates the Department's
legislative efforts, regulatory program, and involvement in
legal proceedings before other agencies as well as various
operational and international legal matters.
Elizabeth Walsh has been nominated to serve as Assistant
Secretary and Director General of the United States and Foreign
Commercial Service, within the Department of Commerce. She
currently serves as a Senior Advisor to Secretary Wilbur Ross.
Before that, she served as a Special Assistant to the President
and Associate Director for Presidential Personnel. She has had
an extensive career in the international arena in both the
private and public sectors.
Ms. Walsh has served more than 12 years in the Federal
Government, including at the Department of State, the U.S.
Mission to the United Nations, and the Department of Energy.
She also worked at the United Nations, serving 18 months in
Bosnia, during the war. At the Department of State, Ms. Walsh
was a senior advisor in the Bureau of Near Eastern Affairs. She
holds a Bachelor of Arts degree in Government and International
Relations from Georgetown University and a Master of Science
degree from the London School of Economics and Political
Science.
If confirmed, Ms. Walsh will lead the trade promotion arm
of the U.S. Department of Commerce's International Trade
Administration. U.S. Commercial Service trade professionals in
over 100 U.S. cities and in more than 75 countries help U.S.
companies get started in exporting or increasing their sales to
new global markets.
As part of the Commerce Department's International Trade
Administration, the Commercial Service helps American firms and
workers navigate the often complicated and unpredictable waters
of foreign trade, so that U.S. firms' sales abroad help to
support jobs here in the United States.
Both nominees have consistently proven their willingness to
address the challenges facing our Nation.
I would like to thank you both for testifying today and for
your willingness to continue your service to our country.
And Senator Nelson, our Ranking Member, is at the DOD NDAA
markup right now. The Senate Armed Services Committee is
marking up the defense bill, so he is going to be joining us a
little bit late.
Senator Cantwell, anything you would like to add?
Senator Cantwell. [Off microphone.]
The Chairman. OK. We will then proceed to our panel,
starting with Steven Gill Bradbury, of Virginia. He was
nominated to be General Counsel, Department of Transportation.
As I mentioned Elizabeth Erin Walsh, of the District of
Columbia, to be Director General of the United States and
Foreign Commercial Service and Assistant Secretary for Global
Markets at the Department of Commerce.
So if you would proceed with your opening remarks, and then
we'll get a chance to ask some questions.
Mr. Bradbury.
STATEMENT OF STEVEN GILL BRADBURY, NOMINEE TO BE GENERAL
COUNSEL, U.S. DEPARTMENT OF TRANSPORTATION
Mr. Bradbury. Well, thank you, Chairman Thune and Senator
Cantwell. Before I begin, I would just like to introduce my
family. My wife, Hilde Kahn, is here, and my daughter, Susanna
Bradbury, who just graduated from TJ, Thomas Jefferson High
School, in Fairfax. I'm very proud of her. And also here are my
wife's parents, Barbara and Walter Kahn, of Bethesda. And I
would also just like to introduce my partner and colleague Paul
Dennis, who is here supporting me from our firm.
So thank you again, and to the distinguished members of the
Committee. I am humbled and honored to come before you today as
the nominee to serve as General Counsel of the Department of
Transportation. I am deeply grateful to the President and
Secretary Chao for the trust and confidence they have placed in
me. And again I would like to thank my family and supporters
who are here. And I especially want to thank my wife, Hilde,
among other things for putting up with me for 29 years.
Someone who could not be here today, but who I know would
be the proudest person in this hearing room if she were still
alive is my mother, Cora Gill Bradbury. She raised me in
Portland, Oregon, as a single mom after my father died before
my first birthday. She took in ironing for 75 cents an hour and
worked nights in a bakery to support me and my grandmother and
to supplement our Social Security income. She encouraged me in
every endeavor and always pointed me toward college and a
better future. Because of her, I was the first in our family to
attend a 4-year university, graduating from Stanford and later
from Michigan Law School.
After serving judicial clerkships with Judge James Buckley
on the D.C. Circuit and with Justice Clarence Thomas on the
Supreme Court, my legal career has focused on administrative
litigation and antitrust, agency rulemakings and enforcement
actions, appellate cases, and constitutional issues. I have
handled a number of substantial regulatory matters in private
practice, including before the Department of Transportation.
As the Chairman said, I've also had the great good fortune
to serve previously in the Executive Branch of our government.
From 2005 to 2009, I headed the Office of Legal Counsel at the
Justice Department, where I advised the President, the Attorney
General, and the heads of executive departments and agencies on
a wide range of complex legal questions arising under the
Constitution and the laws and treaties of the United States.
OLC is the office in the Executive Branch where the buck
stops on contentious legal issues. OLC does not make policy
decisions or authorize any policies for the Executive Branch;
rather, its essential function is to provide unvarnished legal
advice, not distorted by policy objectives or political
considerations to help ensure that the programs approved by
senior policymakers are consistent with the rule of law.
Every opinion I gave for OLC represented my best judgment
of what the laws in effect at that time required. 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. Indeed, our opinions
acknowledged as much.
My previous experiences in government and private practice
have given me a working base of knowledge in administrative law
and a healthy appreciation for the limits of government
authority. They've also instilled in me an abiding reverence
for the rule of law and a dedication to preserving the
constitutional structures and traditions on which----
[Audience interruption.]
The Chairman. Order. Order in the hearing room.
Mr. Bradbury, please proceed.
Mr. Bradbury. Thank you, Mr. Chairman.
These experiences really have instilled in me an abiding
reference for the rule of law and a dedication to preserving
the constitutional structures and traditions on which our
freedom depends, not least of which is the proper relationship
between the Federal Government and the States. I pledge to this
Committee that if confirmed, I will bring these same values to
work with me every day at the Department of Transportation.
DOT's mission is exceptionally important. The liberty and
prosperity of the American people depend in no small part on
the safe, efficient operation of the Nation's transportation
systems and infrastructure. If privileged to be confirmed by
the Senate, I will work alongside the many dedicated career
lawyers of DOT to ensure to the best of our abilities that the
Department's decisions are well founded and consistent with the
statutory authorities provided by Congress. We will devote
ourselves to giving the Secretary and the administrators of the
Department the legal support they need to maximize public
safety in accordance with the law, to strengthen our nation's
infrastructure through efficient implementation of authorized
funding programs, and to preserve, as Congress intended,
competitive markets for private investment and innovation in
transportation technology.
Thank you.
[The prepared statement and biographical information of Mr.
Bradbury follow:]
Prepared Statement of Steven Gill Bradbury, Nominee to be General
Counsel, U.S. Department of Transportation
Thank you, Chairman Thune, Ranking Member Nelson, and distinguished
Members of the Committee. I am humbled and honored to come before you
today as the nominee to serve as General Counsel of the Department of
Transportation.
I am deeply grateful to the President and Secretary Chao for the
trust and confidence they have placed in me.
I want to thank my family for their love and support. I am
especially thankful to my wife Hilde Kahn--among other things, for
putting up with me for 29 years. Hilde is here today, along with our
daughter Susanna, who is 18 and just graduated from Thomas Jefferson
High School for Science and Technology in Fairfax County, Virginia, and
my wife's parents, Barbara and Walter Kahn of Bethesda, Maryland. Our
two sons, James and Will, are busy working in Silicon Valley and could
not be with us.
Someone else who could not be here today, but who would be the
proudest person in this hearing room if she were still alive, is my
mother Cora Gill Bradbury. She raised me in Portland, Oregon, as a
single mom after my father died before my first birthday. She took in
ironing for 75 cents an hour and worked nights in a bakery to support
me and my grandmother and to supplement our Social Security income. She
encouraged me in every endeavor and always pointed me toward college
and a better future.
Because of her, I was the first in our family to attend a four-year
university, graduating from Stanford University and later from the
University of Michigan Law School.
After serving judicial clerkships with Judge James L. Buckley on
the U.S. Court of Appeals for the D.C. Circuit and for Justice Clarence
Thomas on the Supreme Court of the United States, my legal career has
focused on administrative litigation and antitrust law, agency
rulemakings and enforcement actions, appellate cases, and
constitutional issues. I have handled a number of substantial
regulatory matters in private practice, including before the Department
of Transportation.
I have also had the great fortune to serve previously in the
Executive Branch of our government. From 2005 to 2009, I headed the
Office of Legal Counsel (``OLC'') at the U.S. Department of Justice,
where I was called upon to advise the President, the Attorney General,
and the executive departments and agencies on a broad range of the most
complex legal questions arising under the Constitution and the statutes
and treaties of the United States.
As you may know, OLC is the office in the Executive Branch where
the buck often stops on contentious legal issues. OLC does not make
policy decisions or authorize any policies for the Executive Branch;
rather OLC's essential function is to provide unvarnished legal advice,
not distorted by policy objectives or political considerations, to help
ensure that the programs approved by senior policy makers are
consistent with the rule of law.
In performing that duty, every opinion I gave for OLC represented
my best judgment of what the law required. I certainly recognize and
respect that some of the questions we addressed raised difficult issues
about which reasonable people could disagree. Indeed, my opinions
recognized as much at the time.
My previous experiences both in government and in private practice
have given me a working base of knowledge in administrative law and a
healthy appreciation for the limits of government authority. More
broadly, they have instilled in me an abiding reverence for the rule of
law and a dedication to the preservation of our Nation's constitutional
structures and traditions on which our freedom depends--not least of
which is the proper relationship between the Federal Government and the
states.
I pledge to this Committee that, if confirmed, I will bring those
same values to work with me every day at the Department of
Transportation.
DOT's mission is exceptionally important. The liberty and
prosperity of the American people depend in no small part on the safe,
efficient operation of the Nation's transportation systems and
infrastructure.
If privileged to be confirmed by the Senate, I will work alongside
the many dedicated career lawyers of DOT to ensure, to the best of our
abilities, that the Department's decisions are well-founded and
consistent with the statutory authorities provided by Congress.
We will devote ourselves to giving the Secretary and the
administrators of the Department the legal support they need to
maximize public safety in accordance with the law, to strengthen our
Nation's infrastructure through efficient implementation of authorized
funding programs, and to preserve, as Congress intended, competitive
markets for private investment and innovation in transportation
technology.
Thank you, Mr. Chairman. That concludes my statement, and I would
be happy to answer the Committee's questions.
______
a. biographical information
1. Name (include any former names or nicknames used): Steven Gill
(``Steve'') Bradbury. Former name used: Steven Dean Bradbury, 1958-1986
(judicial name change, July 15, 1986).
2. Position to which nominated: General Counsel, Department of
Transportation.
3. Date of nomination: June 6, 2017.
4. Address (list current place of residence and office addresses):
Residence: Information not released to the public.
Office: 1900 K Street, N.W. Washington, D.C. 20006
5. Date and place of birth: September 12, 1958; Portland, Oregon.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Spouse: Hilde Elisabeth Kahn. Occupation: Homemaker; registered
real estate agent, affiliated with Long & Foster, McLean, VA;
owner and developer of investment property (single family home)
through a limited liability company, Chesterbrook Homes LLC, of
which she is the sole member.
Three children: James, age 23; Will, age 21; Susanna, age l8.
7. List all college and graduate degrees. Provide year and school
attended.
Stanford University (Sept. 1976 to June 1980), BA English, June
1980.
University of Michigan Law School (Aug. 1985 to May 1988), JD
magna cum laude, May 1988.
8. List all post-undergraduate employment, and highlight all
management-level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
July 2009-Present:
Partner
Dechert LLP (law firm)
1900 K Street, N.W.
Washington, D.C. 20006
My practice with Dechert LLP has included representing clients
in administrative proceedings and government investigations and
enforcement actions, including matters before the Department of
Transportation and matters involving public safety and
competition issues. I have also represented clients in court
cases at all levels raising constitutional issues and questions
involving the interpretation of Federal statutes and judicial
review of agency actions. In many of these matters, I have
interacted extensively with officials of the Federal
Government, including at the Department of Transportation. I
have also managed complex projects and supervised teams of
attorneys and support staff. Finally, during my years at
Dechert, I have appeared in public, in court, and in Congress
to address issues of public importance and significant legal
questions. I believe these experiences are relevant and useful
in approaching the duties of the position to which r have been
nominated.
April 2004-January 2009:
Acting Assistant Attorney General (Feb. 2005; June 2005-Apr.
2007)
Principal Deputy Assistant Attorney General (Apr. 2004-Jan.
2009)
Office of Legal Counsel
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
As head of the Office of Legal Counsel, I managed an office of
numerous attorneys, including some of the most experienced and
accomplished senior career lawyers in the executive branch. OLC
is the office in the Justice Department that exercises the
Attorney General's authority to provide legal advice to the
President and the heads of executive departments and agencies
on complex, difficult, and novel questions of constitutional
law, statutory interpretation, and treaty matters. During my
tenure in OLC, I interacted directly with the Attorney General,
the President, the Vice President, the White House Counsel,
Cabinet officers, and the general counsels of departments and
agencies to address and resolve significant legal issues,
including issues on which there was a division of views within
the executive branch. I also interfaced extensively with the
Committees and Members of Congress and their staffs to explain
the legal positions of the Executive Branch and to assist in
crafting legislative solutions for complex problems. These
experiences in OLC are relevant preparation for potential
service as General Counsel of the Department of Transportation.
September 1993-April 2004:
Partner (Oct. 1994-April 2004)
Associate (Sept. 1993-Oct. 1994)
Kirkland & Ellis LLP
655 Fifteenth Street, N.W.
Washington, D.C. 20005
As a partner at Kirkland & Ellis, I supervised teams of lawyers
in several large cases of significance, including a proposed
merger of major airlines, several high profile telecom mergers,
large antitrust and securities litigation matters in court, and
numerous other appellate matters, constitutional cases, and
administrative law matters, several of which involved court
challenges to agency rulemakings. I also served on the firm's
Finance Committee and the Associate Review Committee for the
firm's Washington office. These matters and assignments provide
relevant experience for potential service supervising the legal
staff of a major department of government with responsibilities
in a wide range of administrative law areas.
July 1992-July 1993:
Law Clerk to Justice Clarence Thomas
Supreme Court of the United States
1 First Street, N.E.
Washington, D.C. 20543
July 1991-July 1992:
Attorney-Adviser
Office of Legal Counsel
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
July 1990-July 1991:
Law Clerk to Judge James L. Buckley
U.S. Court of Appeals for the D.C. Circuit
333 Constitution Avenue, N.W.
Washington, D.C. 20001
September 1988-July 1990:
Associate
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044
May 1987-July 1987:
Summer Associate
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington. D.C. 20044
May 1986-August 1986:
Summer Associate
Miller, Nash, Wiener, Hager & Carlsen
111 SW Fifth Avenue
Portland, OR 97204
September 1983-August 1985:
Legal Assistant
Davis Polk & Wardwell
1 Chase Manhattan Plaza
New York, NY 10001
(Now located 47th Street & Park Avenue)
November 1981-September 1983:
Assistant Editor (Feb. 1983-Sept. 1983)
Editorial Assistant (Nov. 1981-Feb. 1983)
Avon Books (then a Division of the Hearst Corporation)
1790 Broadway
New York, NY 10019
August 1981-October 1981:
Waiter & Bus Boy
Off Broadway Company (restaurant)
West 69th Street & Broadway
New York, NY
(No longer in business)
April 1981-June 1981:
Waiter
Le Cafe Meursault (restaurant)
Palo Alto, CA
(No longer in business)
September 1980-October 1980:
Food Service (sandwich maker)
Stanford Coffee House
Tresidder Student Union
Stanford University
Stanford, CA 94305
June 1980-September 1980:
Installer of insulation blankets for water heaters in
university housing
Stanford Conservation Center
Stanford University
Stanford, CA 94305
9. Attach a copy of your resume.
Please see Attachment A.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last ten years. None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last ten years.
Partner, Dechert LLP, 7/2009 to present.
Chair (9/2015 to present) and Member (9/2012 to present),
Editorial Board for Annual Review of Antitrust Law
Developments, ABA Section of Antitrust Law.
Member, 5/2012 to present, Capital Markets Litigation Advisory
Committee, U.S. Chamber of Commerce Litigation Center.
Chair, 5/2015 to present, International Law Working Group. John
Hay Initiative.
Member, 2/2012 to present, National Security Law Working Group,
Heritage Foundation.
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religious organization, private club, or other membership organization.
Include dates of membership and any positions you have held with any
organization. Please note whether any such club or organization
restricts membership on the basis of sex, race, color, religion,
national origin, age, or handicap.
D.C. Bar; member since 12/1988.
American Bar Association; member, 1988-1992 and 2009 to
present.
ABA Section of Antitrust Law, Editorial Board for Annual Review
of Antitrust Law Developments; chair, 9/2015 to present, and
member, 9/2012 to present.
U.S. Chamber of Commerce Litigation Center, Capital Markets
Litigation Advisory Committee; member since 5/2012.
Federalist Society; member off and on beginning in 1993 and
currently; was not a member while serving in government.
Heritage Foundation, National Security Law Working Group:
participating member since 2/2012.
John Hay Initiative, International Law Working Group; chair,
since 5/2015.
Alexander Hamilton Society; member 2012-2014.
Supreme Court Historical Society; member 2013.
Stanford University Alumni Association; member since 1980.
Michigan Law School Alumni Association; member since 1988.
Chesterbrook Swim and Tennis Club (community pool and tennis
courts inMcLean, VA); member from 06/2008 until 03/2013.
River Falls Community Center Association. Inc. (community pool
and tennis courts in Potomac, MD); member from 08/1996 until
09/2007.
Civic Association of River Falls; member from 08/1996 until 09/
2007.
Registered member of the Republican Party.
Maryland Republican Party; was a member while living in MD
(until 2007).
Virginia Republican Party; currently a member.
To my knowledge, no organization of which I have been a member
has ever had a policy of restricting membership on the basis of
sex, race, color, religion, national origin, age, or handicap.
13. Have you ever been a candidate for and/or held a public office
(elected, non elected, or appointed)? If so, indicate whether any
campaign has any out standing debt, the amount, and whether you are
personally liable for that debt.
As listed above, I have held appointed office in the U.S.
Department of Justice and have served as law clerk to two Federal
judges. I have not campaigned for public office and do not have any
campaign debt.
14. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years. Also list all offices
you have held with, and services rendered to, a state or national
political party or election committee during the same period.
I have made the following political contributions of $500 or more
in the last ten years:
09/26/2016 $1,000 National Republican Senatorial
Committee
02/21/2016 $2,700 Marco Rubio for President
06/18/2015 $2,700 JEB2016, Inc.
09/19/2012 $2,500 Romney Victory, Inc.
05/08/2012 $500 Ted Cruz for Senate
09/14/2011 $1,500 Romney for President
07/26/2011 $1,000 Romney for President
02/24/2010 $1,000 National Republican Senatorial
Committee
I have held no offices with any political party or election
committee. I did serve as an unpaid legal adviser to presidential
candidate Mitt Romney in 2012 and as an informal legal adviser to
candidate Jeb Bush in 2015-2016.
15. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
--Edmund J, Randolph Award for outstanding service to the
Department of Justice, 2007.
--Secretary of Defense Medal for Outstanding Public Service,
Nov. 2006.
--National Security Agency's Intelligence Under Law Award, May
2008.
--Director of National Intelligence's 2007 Intelligence
Community Legal Award (Team of the Year, FISA Modernization).
--Criminal Division's Award for Outstanding Law Enforcement
Partnerships, Nov. 2006.
--Included in list of Washington's top 40 lawyers under age 40,
Washingtonian Magazine, Aug. 1998.
--J.D., magna cum laude, University of Michigan Law School, May
1988.
--Order of the Coif, University of Michigan Law School, 1988.
--Article Editor, Michigan Law Review, 1987-1988.
--Dean's 1987-1988 Law Review Award for outstanding
contribution to the Michigan Law Review.
--Book Awards for top grade in law school classes:
Administrative Law, Civil Procedure II; and Legal Process.
--Supreme Court clerkship, Justice Thomas, October Term 1992.
--D.C. Circuit clerkship, Judge Buckley, 1990-1991.
--Student Body President, Washington High School, Portland, OR,
1976.
--Officer, Honor Society, Washington High School, Portland, OR,
1975-1976.
--National Merit Scholarship Letter of Commendation, Washington
High School, Portland, OR, 1976.
16. Please list each book, article, column, or publication you have
authored, individually or with others. Also list any speeches that you
have given on topics relevant to the position for which you have been
nominated. Do not attach copies of these publications unless otherwise
instructed.
Publications:
--Steven G. Bradbury, ``National Security and the New Yellow
Press,'' published as chapter 11 in Journalism After Snowden:
The Future of the Free Press in the Surveillance State, p. 172
(Emily Bell, Taylor Owen, et al., eds., Columbia Journalism
Review Books, Columbia Univ. Press 2017).
--Steven G. Bradbury, Justice Thomas and the Second Amendment:
Protecting Liberty and Promoting Equal Justice, published
online at JusticeThomas.com (Oct. 24, 2016).
--Steven Gill Bradbury, ``Celebrating Justice Thomas's 25 Years
of Service on the Supreme Court,'' Letter of Tribute Addressed
to Sen. Orrin G. Hatch, Senate Committee on the Judiciary
(Sept. 16, 2016) (published in the Congressional Record).
--Steven G. Bradbury, Opinion Piece, ``Clarence Thomas's 25
years on theSupreme Court are a triumph of perseverance,''
FoxNews.com (online) (June 27, 2016).
--John Hay Initiative International Law Working Group, Chaired
by Steven G. Bradbury. ``Update on China's Expansion in the
South China Sea'' (May 6, 2016) (published online).
--John Hay Initiative International Law Working Group, Chaired
by Steven G. Bradbury, ``JHI Backgrounder: China's Maritime
Expansion in the South and East China Seas'' (Sept. 21, 2015)
(published online).
--Steven G. Bradbury, Balancing Privacy and Security, Harv. J.
L. & Pub. Pol'y (Federalist Ed.), Vol. 2, No. 1, p.5 (Winter
2015).
--Steven G. Bradbury, Op-Ed, ``Opposing view: Preserve this
critical tool [NSA telephone metadata program],'' USA Today, p.
10A (Mar. 28, 2014).
--Steven G. Bradbury, Op-Ed, ``Don't limit the NSA's
effectiveness,'' Wash. Post, p.Al3 (Jan. 5, 2014).
--Michael B. Mukasey, Steven G. Bradbury, & David B. Rivkin
Jr., Op-Ed, ``An ill-founded ruling against the NSA,'' Wash.
Post, p.A27 (Dec. 20, 2013).
--Steven G. Bradbury, Understanding the NSA Programs: Bulk
Acquisition of Telephone Metadata Under Section 215 and
Foreign-Targeted Collection Under Section 702, Lawfare Research
Paper Series 1, No. 3 (Aug. 30, 2013), available at https://
www.lawfareblog.com/topic/lawfare-research-paper-series.
--Steven G. Bradbury, Op-Ed, ``The use of phone data:
Constraining the NSA would make Americans less safe,'' Wash.
Post, p.A15 (July 23, 2013).
--Steven G. Bradbury, Op-Ed, ``Opposing view: `The system works
well as it is': FISA court judges serve the rule of law,'' USA
Today, p.8A (July 19, 2013).
--Thomas P. Vartanian & Steven G. Bradbury, How to Fight Back
Against Bad Agency Decisions, American Banker BankThink
(online) (Jan. 16, 2013).
--Steven G. Bradbury, Anticipating How the U.S. Supreme Court
May Rethink Fraud-on-the-Market Standards for Securities Class
Actions, Bloomberg BNA (online) (Aug. 24, 2012).
--George G. Gordon & Steven G. Bradbury, K-Dur: The Rejection
of ``Scope of the Patent'' Test, Law360 (online) (July 24,
2012).
--FTC Recommends Improvements to Patent System, Intellectual
Prop. & Tech'y L.J. (June 2011).
--Timothy C. Blank, Steven G. Bradbury, & Christopher R.
Boisvert, The Dawn of Internet Privacy?, Law360 (online) (Apr.
22, 2011).
--Steven G. Bradbury, Keynote Address, The Developing Legal
Framework for Defensive and Offensive Cyber Operations, 2 Harv.
Nat'l Sec. J. 629 (Mar. 2011).
--Steven G. Bradbury & John P. Elwood, Op-Ed, ``Recess is
canceled: President Obama should call the Senate's bluff,''
Wash. Post, p.Al9 (Oct. 15, 2010).
--Steven G. Bradbury, Dechert LLP, After further review, NFL's
``Hail Mary'' pass ruled incomplete: Supreme Court holds NFL's
joint trademark licensing subject to Section 1 of the Sherman
Act, Lexology (online) (May 28, 2010).
--Steven G. Bradbury, Gearing up for American Needle v. NFL,
Law360 (online) (Jan. 11, 2010).
--Steven G. Bradbury & Grant M. Dixton, Court Ruling Wrongly
Creates New Right to Sue Telecom Companies, Washington Legal
Foundation Legal Opinion Letter, Vol. 12, No. 22 (Aug. 30,
2002) (discussing Law Offices of Curtis V. Trinko, LLP v. Bell
Atlantic Corp., 294 F.3d 307 (2d Cir. 2002), a case later
reversed by the Supreme Court).
--Steven Bradbury & Kelion Kasler, Kirkland & Ellis, ``Verizon
Communications: The Merger of Bell Atlantic and GTE,''
published in Corporate Finance, Global M&A Yearbook 2000: New
Strategies in M&A at 47 (Nov. 2000).
--Steven G. Bradbury, Paul T. Cappuccio & Patrick F. Philbin,
Kirkland & Ellis, ``Telecommunications,'' published in
International Financial Law Review, United States: A Legal
Guide at 33 (June 1998).
--Steven G. Bradbury, Paul T. Cappuccio & Patrick F. Philbin,
Kirkland & Ellis, ``United States,'' published in International
Financial Law Review, Telecommunications: An International
Legal Guide at 69 (Aug. 1997).
--Steven G. Bradbury, The Unconstitutionality of Qui Tam Suits,
Federalist Society Federalism & Separation of Powers News, Vol.
1 No. 1 (Fall 1996) (discussing pending cert. petition in
Hughes Aircraft Co. v. United States ex rel. Schumer).
--Steven G. Bradbury, Original Intent, Revisionism, and the
Meaning of the CGL Comprehensive General Liability Insurance]
Policies, 1 Environmental Claims J. 279 (Spring 1989).
--Note, Corporate Auctions and Directors' Fiduciary Duties: A
Third-Generation Business Judgment Rule, 87 Mich. L. Rev. 276
(1988).
--Book Note, 85 Mich. L. Rev. 941 (1987).
--A Cattleman's Calling (short story), published in The Hoboken
Terminal, Vol. 1 No. 1 (Spring 1982).
In addition to the publications listed above, I have assisted in
preparing client alerts issued online by Dechert LLP regarding a wide
variety of legal topics. Those client alerts are available at https://
www.dechert.com/steven_bradbury/ (click on ``Related Publications''). I
also authored or supervised the preparation of legal opinions for the
Office of Legal Counsel (``OLC'') of the U.S. Department of Justice
from 2004 to 2009. Many of those opinions are posted on the OLC Website
and can be found at www.usdoj.gov/olc/opinions-main and https://
www.usdoj.gov/olc/olc-foia-electronic-reading-room.
Speeches and Other Public Remarks:
I have given numerous speeches, panel presentations, and other
public remarks, mostly addressed to issues of national security law,
cybersecurity, antitrust, securities law, and administrative law and
regulation. Very few of my public remarks have been relevant to the
position to which I have been nominated. The following is the most
complete list I have been able to compile of my speeches and public
remarks.
Panel Presentation, ``How to Shut It Down: Creative Strategies
that Ended Government Antitrust Investigations,'' Dechert LLP's
2017 Annual Antitrust Spring Seminar, Philadelphia, PA (Apr. 4,
2017).
Panel Presentation, ``Financial Services Breakfast Briefing:
Current Developments Affecting the Fund Industry--Washington
Update,'' Investment Company Institute Annual Legal Conference,
Palm Desert, CA (Mar. 14, 2017).
Panel Presentation, ``A Term in Review: An Overview of Key
Supreme Court Decisions from the 2015 Term & Thoughts About the
Upcoming Term,'' Dechert LLP CLE Seminar, Washington, D.C.
(Nov. 29, 2016).
Panel Presentations, ``A Bitter Pill?: Recent Developments in
Pharma''; and ``Antitrust in the Next U.S. Administration,''
Dechert LLP's 2016 Annual Antitrust Spring Seminar,
Philadelphia, PA (Apr. 13, 2016).
Panel Presentation, ``What Every Lawyer Needs to Know About
Recent Supreme Court Cases,'' Dechert LLP CLE Seminar,
Washington, D.C. (Sept. 16, 2015).
Guest Appearance, Discussion and Debate on Reauthorizing the
PATRIOT Act, C-SPAN Washington Journal, Washington, D.C. (May
16, 2015) (appeared with Neema Singh Guliani of ACLU).
Panel Presentation, Dechert LLP's 2015 Annual Antitrust Spring
Seminar, Philadelphia, PA (Apr. 28, 2015).
Participant in Panel Debate, Legality of Section 215 Telephone
Metadata Acquisition, Heritage Foundation, Washington, D.C.
(Mar. 17, 2015).
Remarks, ``The Legal Framework for Cybersecurity,'' Presented
to the Legal Department of Raytheon Company, Waltham, MA (Nov.
4, 2014).
Featured Speaker (with John B. Bellinger, II), Discussing the
President's Use of the 2001 AUMF to Combat ISIS, Event
Organized by Alexander Hamilton Society and Federalist Society,
Mayflower Hotel, Washington, D.C. (Oct. 22, 2014).
Moderator, Discussion between Two Former SEC Commissioners
Regarding ``Corporate Disclosure Effectiveness: Ensuring a
Balanced System [of SEC Disclosure] that Informs and Protects
Investors and Facilitates Capital Formation,'' U.S. Chamber of
Commerce, Washington, D.C. (July 29, 2014).
Panel Speaker, Discussion Regarding Supreme Court's Decision in
Utility Air Regulatory Group v. EPA Striking Down EPA Rule on
Greenhouse Gas Emissions from Stationary Sources, ABA
Administrative Law Section Forum, Washington, D.C. (July 24,
2014).
Panel Presentation, Dechert LLP, ``So the Government Thinks
Your Deal Is Anticompetitive: Restructuring Your Deal to
Overcome Antitrust Hurdles,'' Lawline CLE Webinar, New York, NY
(June 24, 2014).
Video-Recorded Remarks Discussing Supreme Court's Decision in
Halliburton Case (Addressing Securities Law Class Action
Standards), Federalist Society YouTube Video Series,
Washington, D.C. (June 23, 2014).
Panel Speaker, ``Executive Branch Action in a Time of Political
Dysfunction,'' American Constitution Society, Annual
Convention, Washington, D.C. (June 20, 2014).
Panel Speaker) ``Debrief on Supreme Court's UARG v. EPA Opinion
Regarding Greenhouse Gas Rules,'' Environmental Law Institute,
Associates Seminar, Washington, D.C. (June 19, 2014).
Panel Speaker, ``Foreign Intelligence Surveillance in an Era of
`Big Data'--Is There a Need to Recalibrate Boundaries?,'' ABA
Standing Committee on Law and National Security, Washington,
D.C. (May 2, 2014).
Panel Presentation, ``What Every Lawyer Needs to Know About
Recent Supreme Court Cases,'' Dechert LLP CLE Seminar, New
York, NY (Apr. 30, 2014).
Panel Presentation, Dechert LLP's 2014 Annual Antitrust Spring
Seminar, Philadelphia, PA (Apr. 29, 2014).
Panel Speaker, Forum on Data Privacy and Balancing National
Security and Civil Liberties, Clements Center for History,
Strategy, & Statecraft, University of Texas Law School, Austin,
TX (Apr. 3, 2014).
Panel Speaker, Panel Discussing Data Privacy and
Constitutionality of National Security Surveillance Activities,
Georgetown Journal of Law & Public Policy Spring Symposium,
Washington, D.C. (Mar. 27, 2014).
Panel Speaker, Panel Discussing Constitutionality of Border
Searches of Electronic Media by TSA Officials, National Press
Club, Washington, D.C. (Mar. 20, 2014).
Featured Speaker, ``National Security versus Data Privacy,''
Ferrum College Annual Forum, Roanoke, VA (Mar. 19. 2014).
Panel Speaker, ``Balancing Privacy and Security,'' Federalist
Society's 33rd Annual National Student Symposium, Univ. of
Florida Levin College of Law, Gainesville, FL (Mar. 8, 2014).
Panel Speaker, Addressing the Halliburton case and the Supreme
Court's Reconsideration of the Basic v. Levinson Presumption of
Reliance in Securities Fraud Litigation, D.C. Bar Luncheon,
Washington, D.C. (Mar. 5, 2014).
Panel Speaker, Addressing Individual Privacy and National
Security, Chicago Bar Association Forum, Union League Club,
Chicago, IL (Mar. 3, 2014).
Panel Speaker, ``Erica P. John Fund & Beyond: The Past,
Present, and Future of Securities Class Actions,'' U.S. Chamber
of Commerce, Washington, D.C. (Feb. 28, 2014).
Panel Speaker, ``Debrief of the Supreme Court's Oral Argument
on EPA's Greenhouse Gas Rulemakings,'' D.C. Bar Association,
Washington, D.C. (Feb. 25, 2014).
Panel Speaker, Constitutionality of NSA Programs, Organized by
the National Security Law Committee of the Federalist Society,
Held at the Offices of Jones Day, Washington, D.C. (Feb. 24,
2014).
Panel Speaker, Addressing Fallout from the NSA Revelations for
Foreign Relations and the Legal Regime Governing Surveillance
in the U.S. and Among Our Allies, Breakfast Panel Debate,
Council on Foreign Relations, Washington, D.C. (Feb. 20, 2014).
Panel Speaker, Conference on Privacy and Security, Chicago
Council on Global Affairs and Notre Dame Law School's
International Security Program, Chicago, IL (Feb. 14, 2014).
Panel Speaker, ``Reforming the NSA Surveillance System:
Assessing the Options,'' at the State of the Net Conference,
organized by the Internet Education Foundation and the National
Cable and Telecommunications Association, The Newseum,
Washington, D.C. (Jan. 28, 2014).
Featured Speaker, Address on the Constitutional Underpinnings
of the NSA Programs, Stanford Law School Constitutional Law
Center, Stanford, CA (Jan. 23, 2014).
Guest on radio program discussing FISA Court process and NSA
programs, NPR Philadelphia affiliate (Jan. 21, 2014).
Audio Teleconference and Podcast, Discussing District Court
Decision Enjoining NSA Metadata Program, Federalist Society
Teleforum, Washington, D.C. (Dec. 19, 2013).
Webinar Presentation, ``Supreme Court Takes on the Clean Air
Act: EME Homer and Utility Air Regulatory Group v. EPA,''
Bloomberg BNA Webinar (Dec. 17, 2013).
Panel Speaker, Addressing Cybersecurity and the NSA
Disclosures, Federalist Society Annual Convention, Washington,
D.C. (Nov. 15, 2013).
Debate, ``NSA Surveillance: A Necessary Evil?,'' Paul H. Nitze
School of Advanced International Studies (SAIS), Johns Hopkins
University, Washington, D.C. (Oct. 28, 2013) (debating Prof.
David Cole of Georgetown Law School; moderated by SAIS Prof
John McLaughlin, former Deputy Director of the CIA).
Participant, Debate on National Security versus Privacy
Interests, St. Thomas Law School, St Paul, MN (Oct 3, 2013).
Panel Presentation, CLE Seminar on Antitrust Law Developments,
presented to Time Warner Inc. Legal Department, New York, NY
(Sept. 24, 2013).
Participant, Debate on Legality of NSA Programs, Milbank Tweed
Forum, NYU Law School, New York, NY (Sept 18, 2013) (debating
Liza Goitein of the Brennan Center for Justice, among others).
Participant in nationally televised debate addressing the
propriety and legality of the NSA programs disclosed by Edward
Snowden, PBS News Hour, Shirlington, VA (July 31, 2013)
(debating author and NSA critic Jim Bamford).
Participant in radio debate addressing the legality of the NSA
programs disclosed by Edward Snowden, Minnesota Public Radio's
Daily Circuit program (July 30, 2013) (debating Marc Rotenberg
of EPIC),
Debate on constitutionality of NSA programs disclosed by Edward
Snowden, Federalist Society Teleforum, Washington, D.C. (July
23, 2013) (debating Prof. Randy Barnett of Georgetown Law
School).
Webinar Presentation, ``FTC v. Actavis, Inc.: The Unsettling of
Hatch-Waxman Settlements,'' BNA Bloomberg Webinar (July 16,
2013).
Guest on Public Radio Program To The Point With Warren Olney
Discussing the FISA Court and NSA Programs (July 10, 2013).
Prepared Remarks and Q&A Addressing Legal Bases for NSA
Programs, Delivered before the Privacy and Civil Liberties
Oversight Board, Washington, D,C. (July 9, 2013).
Live Analysis, SCOTUS Decision in FTC v. Actavis, Inc., Dechert
LLP, Washington, D,C. (June 19, 2013).
Panel Speaker, Addressing Cost-Benefit Analysis and OMB Review
of Administrative Rulemaking, Federalist Society Luncheon
Event, National Press Club, Washington, D.C. (June 11, 2013).
Panel Speaker in Live Conference and Pod cast, ``The Pentagon,
the National Security Agency, and Domestic Cybersecurity,''
Federalist Society International & National Security Law
Practice Group, Washington, D.C. (May 3, 2013).
Panel Presentation, Dechert LLP's 2013 Annual Antitrust Spring
Seminar, Philadelphia, PA (April 17, 2013).
Webinar Participant, Briefing on Supreme Court case FTC v.
Actavis, Inc. regarding intersection of patent law and
antitrust, American Intellectual Property Law Association
Webinar, Washington, D.C. (Apr. 2, 2013).
Panel Speaker, ``The Importance of Cost-Benefit Analysis in
Agency Rulemaking,'' U.S. Chamber of Commerce Center for
Capital Markets Competitiveness, Washington, D.C. (Mar. 12,
2013).
Featured Speaker, ``Agency v. Agency (and other problems of
overlapping jurisdiction),'' Federalist Society event, Duke Law
School, Durham, NC (Jan. 31, 2013).
Debate Presentation, ``Debating the USA PATRIOT Act: 10 Years
Later,'' Appellate Judges Education Institute, 2012 Annual
Summit, New Orleans, LA (Nov. 18, 2012) (debating Susan Herman,
National President of the ACLU).
Webinar Participant, ``The Legal Challenge to the CFTC's New
Registration Regime for Mutual Funds)'' Mutual Fund Directors
Forum Webinar, Washington, D.C. (Oct 9, 2012).
Web Video, Addressing Federal Trade Commission's Policy Change
in Seeking Restitution in Enforcement Proceedings, Washington
Legal Foundation Web Video, Washington, D.C. (Aug. 30, 2012).
Debate on the Constitutionality of the Individual Mandate in
the Affordable Care Act Following Oral Argument in the Supreme
Court, American Constitution Society, Annual Convention,
Washington, D.C. (June 16, 2012) (debating Walter Dellinger;
moderated by Adam Liptak).
Mock Oral Argument on the Constitutionality of the Individual
Mandate in the Affordable Care Act, Georgetown Law School
Supreme Court Institute, Washington, D.C. (Feb. 1, 2012)
(arguing opposite Walter Dellinger before a distinguished panel
of Supreme Court practitioners sitting as mock justices).
Panel Speaker, Addressing Developments in Cybersecurity Law,
Steptoe & Johnson Forum, Washington, D.C. (June 28, 2011).
Featured Speaker, Roundtable Discussion on the Developing Legal
Framework for Defensive and Offensive Cybersecurity, Council on
Foreign Relations, Washington, D.C. (Apr. 18, 2011).
Keynote Address, ``The Developing Legal Framework for Defensive
and Offensive Cyber Operations,'' Harvard National Security
Journal Forum on Cybersecurity, Harvard Law School, Cambridge,
MA (Mar. 4, 2011).
Remarks Addressing Matrix Initiatives Supreme Court Case,
Federalist Society Press Call, Washington, D.C. (Jan. 6, 2011).
Moderator, ``Merck & Co. v. Reynolds,'' Law Seminars
International TeleBriefing (May 18, 2010) (panel presentation
included Richard Cordray, then Attorney General of Ohio).
Panel Presentation, Dechert LLP, Spring Antitrust CLE Seminar,
Philadelphia, PA (Apr. 28, 2010).
Remarks on Receiving the Intelligence Under Law Award, NSA's
Law Day, National Security Agency, Fort Meade, MD (May 1,
2008).
Remarks on the Departure of Attorney General Alberto R.
Gonzales, Great Hall of the U.S. Department of Justice,
Washington, D.C. (Sept. 17, 2007).
Remarks delivered to attorneys of my former law firm, Kirkland
& Ellis LLP, concerning the functions of the Office of Legal
Counsel and my experiences as Acting AAG, Washington, D.C.
(Jan. 22, 2007).
Guest on NPR's Morning Edition radio program, Explaining the
Legal Basis for the Special NSA Surveillance Program Authorized
by the President, Washington, D.C. (Feb. 14, 2006).
Guest Appearance, Explaining the Legal Basis for the Special
NSA Surveillance Program Authorized by the President, C-SPAN
Washington Journal, Washington, D.C. (Feb. 8, 2006).
In addition to the speaking engagements listed above, in private
practice with Kirkland & Ellis LLP between 1993 and 2004, I
participated in several pm1el discussions for industry or bar
associations concerning matters or issues on which I was working; these
included: a Washington Legal Foundation panel discussing an upcoming
Supreme Court term; a panel discussing antitrust litigation in the
securities industry at the Securities Industry Association Annual Law
and Compliance Seminar; and a panel discussing airline industry mergers
at the ABA's Air and Space Law Section annual conference. I also
appeared as a guest on a cable television program discussing Justice
Thomas.
17. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony.
Hearing before the House Committee on the Judiciary,
``Examining Recommendations to Reform FISA Authorities'' (Feb.
4, 2014).
Hearing before the House Permanent Select Committee on
Intelligence, ``Legislative Proposals for Modifying NSA
Programs and Amending FISA Authorities'' (Oct. 29, 2013).
Hearing before the House Committee on the Judiciary,
``Oversight Hearing into the Administration's Use of FISA
Authorities'' (July 17, 2013).
Hearing before the House Ways and Means Committee, ``The
Ramifications of the Supreme Court's Ruling on the Affordable
Care Act'' (July 10, 2012).
Hearing before the House Ways and Means Committee, ``The
Constitutionality of the Individual Mandate in the Affordable
Care Act'' (Mar. 29, 2012).
Hearing before the Senate Committee on the Judiciary, ``The Due
Process Guarantee Act: Banning Indefinite Detention of
Americans'' (Feb. 29, 2012).
Hearing before the House Committee on the Judiciary,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties, ``Oversight of the Justice Department's Office of
Legal Counsel'' (Feb. 14, 2008).
Classified Hearing before the Senate Select Committee on
Intelligence Concerning Legal and Policy Review of CIA Program
(Apr. 12, 2007).
Hearing before the House Committee on Armed Services,
``Standards of Military Commissions and Tribunals Following the
Supreme Court's Decision in Hamdan v. Rumsfeld'' (Sept. 7,
2006).
Hearing before the House Committee on the Judiciary,
Subcommittee on Crime, Terrorism, and Homeland Security,
``Legislative Proposals to Update the Foreign Intelligence
Surveillance Act'' (Sept. 6, 2006).
Hearing before the Senate Committee on the Judiciary, ``The
Authority to Prosecute Terrorists under the War Crimes
Provisions of Title 18'' (Aug. 2, 2006).
Hearing before the Senate Committee on the Judiciary, ``FISA
for the 21st Century'' (July 26, 2006).
Hearing before the House Committee on Armed Services,
``Standards of Military Commissions and Tribunals Following the
Supreme Court's Decision in Hamdan v. Rumsfeld'' (July 12,
2006).
Hearing before the Senate Committee on the Judiciary, ``Hamdan
v. Rumsfeld: Establishing a Constitutional Process for Military
Commissions'' (July 11, 2006).
Confirmation Hearing before the Senate Committee on the
Judiciary, Nominations of several nominees, including Steven G.
Bradbury, to be Assistant Attorney General for the Office of
Legal Counsel, Department of Justice (Oct. 6, 2605).
18. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
Through my work in private practice and in the Justice Department's
Office of Legal Counsel (``OLC''), I am familiar with the statutory and
administrative authorities of Federal departments and agencies,
specifically including the Department of Transportation. Every major
mission and program administered by the Department depends on accurate
and reliable legal advice for policymakers on the application and
limits of such authorities, and I have extensive experience supervising
teams of attorneys in providing such legal advice.
19. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
Proper management and accounting controls are critical to the
Department's appropriate and effective administration of its statutory
authorities. My responsibilities in OLC included providing legal advice
to deparh11cnt heads and the White House on compliance with Federal
budget and accounting controls, including under the Anti-Deficiency
Act. I have managed teams of lawyers in carrying out this legal role,
and I have advised senior appointed officials at various departments
and agencies in the proper supervision of their statutory mandates. In
private practice, I have advised general counsels and other senior
legal offices to ensure compliance with applicable laws and
regulations.
20. What do you believe to be the top three challenges facing the
department/agency, and why?
I see the top three challenges facing the Department of
Transportation to be (a) promoting public safety through reasonable and
effective application of the legal authorities provided by Congress;
(b) achieving rational rulemaking consistent with law and with the
preservation of competitive markets and incentives for private
investment in innovation; and (c) advancing critical transportation
infrastructure improvements through cooperation with Congress in the
budget process and through the efficient administration of grants and
other funding programs authorized by Congress. If confirmed as General
Counsel, my role will be to ensure that the Secretary and the
Department have the legal advice and support needed in exercising their
authorities to address these and other challenges.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
I currently am employed as a partner at Dechert LLP. If confirmed,
I will resign from that position. Pursuant to Dechert's partnership
agreement, following my withdrawal from the firm, I will receive a pro
rata partnership share based on the value of my partnership interests
for services performed in 2017 through the date of my withdrawal. The
firm will calculate the value of that share based on the firm's 2016
earnings. Consistent with the partnership agreement, I will receive the
partnership share no later than April 2018. Also pursuant to the
partnership agreement, following my withdrawal from the firm, I will
receive a lump-sum payment of my capital account, calculated as of the
date of my withdrawal. This payment will be made on or before 60 days
from the date of my withdrawal. Dechert may withhold a portion of my
capital account as a reserve for account reconciliations and tax
payments, pursuant to the partnership agreement.
I also currently participate in Dechert's defined contribution
savings and pension plans, which I will continue to participate in if
confirmed; the firm as plan sponsor docs not contribute to these plans
and will not contribute to them after my separation. I also currently
hold residual interests in certain contingent-fee cases from my
previous law firm, Kirkland & Ellis LLP, and I will forfeit these
interests upon confirmation.
In addition, I currently hold uncompensated positions with the
American Bar Association Section of Antitrust Law, the Capital Markets
Litigation Advisory Committee of the U.S. Chamber of Commerce
Litigation Center, the National Security Law Working Group of the
Heritage Foundation, and the John Hay Initiative. If confirmed, I will
resign from those positions.
I have a Thrift Savings Plan (``TSP'') account from my previous
government service; if confirmed, I will retain my TSP account.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain: No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the Department of Transportation
(``DOT'') Designated Agency Ethics Official to identify potential
conflicts of interest. Any potential conflicts of interest will be
resolved consistent with the terms of an ethics agreement I have
entered into with the DOT Designated Agency Ethics Official, which has
been provided to this Committee. I am not aware of any other potential
conflicts of interest.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the DOT Designated Agency Ethics
Official to identify potential conflicts of interest. Any potential
conflicts of interest will be resolved consistent with the terms of an
ethics agreement I have entered into with the DOT Designated Agency
Ethics Official, which has been provided to this Committee. I am not
aware of any other potential conflicts of interest.
5. Describe any activity during the past ten years in which you
have been engaged for the purpose of directly or indirectly influencing
the passage, defeat, or modification of any legislation or affecting
the administration and execution of law or public policy.
I have not been engaged by a client in private practice during the
past ten years to influence legislation. In 2013-2014, based on my
prior experiences as a senior official in the Department of Justice and
acting in my personal capacity, not for any client, I provided
testimony and authored letters and other writings urging Congress not
to enact certain legislative proposals concerning important national
security programs. I also signed a letter on behalf of former
government officials urging Congress to reduce the number of committees
with responsibility for oversight of the Department of Homeland
Security. I have represented clients involved in agency investigations
and enforcement actions and similar matters in which I presented good
faith arguments relating to the interpretation and application of
relevant laws.
Earlier, during my tenure as head of the Office of Legal Counsel of
the Department of Justice, I represented the President and the
Executive Branch in working with Congress on legislative reforms of the
Foreign Intelligence Surveillance Act, the procedures for military
commissions of enemy combatants, and the War Crimes Act.
6. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
In connection with the nomination process, I have consulted with
the Office of Government Ethics and the DOT Designated Agency Ethics
Official to identify potential conflicts of interest. Any potential
conflicts of interest will be resolved consistent with the terms of an
ethics agreement I have entered into with the DOT Designated Agency
Ethics Official, which has been provided to this Committee. I am not
aware of any other potential conflicts of interest.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, professional association, disciplinary committee, or other
professional group? If yes:
(a) Provide the name of agency, association, committee, or group;
(b) Provide the date the citation, disciplinary action, complaint,
or personnel action was issued or initiated;
(c) Describe the citation, disciplinary action, complaint, or
personnel action; and
(d) Provide the results of the citation. disciplinary action,
complaint, or personnel action.
No.
2, Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity other than for a minor traffic
offense? If so, please explain. No.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding or civil litigation? If so, please
explain.
I have not been a party to civil litigation, administrative agency
proceedings, or criminal proceedings, except as described in response
to Question 4 below. The law firms of which I have been a partner have
on occasion been parties to litigation, but none of those litigation
matters has concerned activities involving me personally, and I am not
personally familiar with the details of any such litigation matters.
Certain legal opinions issued by the Office of Legal Counsel in 2002
and 2003 (before my time as Principal Deputy in OLC) were the subject
of an investigation by the Office of Professional Responsibility
(``OPR'') of the Department of Justice, and in the course of that
investigation, OPR also considered certain later OLC opinions that I
authored. OPR did not make any finding that my opinions failed to
satisfy standards of professional responsibility. The final OPR report
made recommendations concerning the earlier OLC opinions, hut that
report was overruled and its recommendations were rejected by the
senior career official of the Department of Justice (the Associate
Deputy Attorney General), and the OPR report does not have continuing
official force or validity.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain.
Yes, as follows:
(a) Moving violation: Failure to yield right of way on a left turn
(in connection with a traffic accident on Bradley Blvd. in
Montgomery County, MD on 06/05/2002). On 10/01/2002, I pleaded
guilty in Circuit Court of Montgomery County, MD, and paid a
$37 fine plus $23 in court costs. The court reduced the points
for this violation from 3 to 1.
(b) I received a citation on 10/02/1981 and paid a $10 fine on 11/
02/1981 for entering the New York City subway system without
paying the fare.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. None.
d. relationship with the committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees?
Yes, to the extent reasonable and feasible.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistleblowers from reprisal for
their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee?
Yes, to the extent consistent with legal and customary
requirements.
4. Arc you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______
Attachment A
Resume of Steven Gill Bradbury
Work Experience
Dechert LLP, Washington, D.C., 2009-Present
Law Partner, Litigation & Regulatory Enforcement
Practice includes regulatory enforcement matters;
administrative law and judicial review of agency actions;
congressional investigations; all aspects of antitrust,
including government enforcement, merger reviews, and private
litigation; other Supreme Court cases and appellate litigation;
constitutional issues; general commercial litigation; data
privacy and national security law.
See separate sheets for significant representations.
U.S. Department of Justice, Washington, D.C., 2004-2009
Acting Assistant Attorney General and Principal Deputy, Office of Legal
Counsel
Served as senior appointed official in charge of the Office of
Legal Counsel (``OLC''). Nominated by President to be Assistant
Attorney General. As head of OLC, advised the President, the
Attorney General, and the heads of executive departments and
agencies of the Federal Government on significant questions of
constitutional, statutory, and administrative law and treaty
interpretation; represented the Justice Department and
Executive Branch before Congress.
Awards received during government service:
Edmund J. Randolph Award for outstanding service to the
Department of Justice
Secretary of Defense Medal for Outstanding Public Service
National Security Agency's Intelligence Under Law Award
Director of National Intelligence's 2007 Intelligence Community
Legal Award (Team of the Year, FISA Modernization)
Criminal Division's Award for Outstanding Law Enforcement
Partnerships
Kirkland & Ellis LLP, Washington, D.C., 1993-2004
Litigation Partner (1994-2004); Associate (1993-1994)
Practice included all aspects of antitrust, including
government enforcement, merger reviews, and private litigation;
other regulatory enforcement matters; administrative law and
judicial review of agency actions; Supreme Court cases and
appellate litigation; constitutional issues; and general
commercial litigation.
See separate sheets for significant representations.
Honorable Clarence Thomas, Supreme Court of the United States, 1992-
1993
Law Clerk
U.S. Department of Justice, Washington, D.C., 1991-1992
Attorney-Adviser, Office of Legal Counsel
Honorable James L. Buckley, U.S. Court of Appeals for the D.C. Circuit,
1990-1991
Law Clerk
Covington & Burling, Washington, D.C., 1988-1990
Associate
Gained substantial Federal trial and appellate court
experience. Represented Missouri and Washington State in
defending suits brought by hospitals and nursing homes seeking
additional Medicaid reimbursements. Represented policyholders
and amici in suits seeking insurance coverage for environmental
liabilities.
Davis Poll & Wardwell, New York, N.Y., 1983-1985
Legal Assistant
Avon Books, a Division of Hearst Corporation, New York, N.Y., 1981-1983
Assistant Editor (1982-1983); Editorial Assistant (1981-1982)
Education
University of Michigan Law School, Ann Arbor, Michigan
J.D., magna cum laude, May 1988. Order of the Coif
Article Editor, Michigan Law Review.
Dean's 1987-1988 Law Review Award for outstanding contribution
to the Review.
Note, Corporate Auctions and Directors' Fiduciary Duties: A
Third Generation Business Judgment Rule, 87 Mich. L. Rev. 276
(1988).
Book Awards: Administrative Law, Civil Procedure 11, Legal
Process.
Stanford University, Stanford, California
B.A., June 1980. Major in English.
Additional course work in history, politics, languages. and
philosophy, including tutorial study in theory of knowledge at
Lincoln College, Oxford University.
Bar and Court Memberships
District of Columbia Bar
Supreme Court of the United States
U.S. District Court for the District of Columbia
U.S. Courts of Appeals for D.C., First, Second, Fourth, Fifth, Sixth,
and Seventh Circuits
Personal
Born and raised, Portland, Oregon. Spouse: Hilde E. Kahn.
Children: James (B.A., Stanford, 2016); Will (Stanford, Class of 2018);
Susanna (Thomas Jefferson High School for Science & Technology, Class
of 2017)
Significant Representations
Represent provider of cloud-based software solutions before
the National Highway Traffic Safety Administration (``NHTSA'')
in connection with a recall involving potential safety risks
from lithium ion batteries.
Represent Internet registry company in connection with
antitrust issues raised by ICANN award of top-level domain
rights.
Represented the Independent Community Bankers of America in
Federal court action challenging a final rule of the National
Credit Union Administration relating to commercial lending by
insured credit unions (E.D.Va.).
Represented TK Holdings Inc. (Takata Corporation) in
connection with investigations of airbag inflator ruptures by
NHTSA, Congress, and other entities, and in related civil
litigation.
Represent Verizon in connection with wireless data roaming
rate cases before the Federal Communications Commission.
Represent American Airlines, Inc., in Department of
Transportation rulemaking proceedings on competition and
consumer protection issues and in international route
authorization proceedings.
Represented major media company in connection with
Department of Justice and FCC antitrust review of the proposed
merger of Comcast Corporation and Time Warner Cable, Inc., and
the merger of Charter Communications and Time Warner Cable.
Represented U.S. Airways Group in defending merger with AMR
Corp. (American Airlines) against antitrust challenge by the
U.S. Department of Justice and several States--United States v.
U.S. Airways Group & AMR Corp. (D.D.C.).
Represented Polypore International, Inc., in appeal from FTC
antitrust order requiring divestiture of assets acquired from
Microporous Products LP--Polypore International, Inc. v. FTC
(11th Cir. and U.S. Sup. Ct.).
Represented Turing Pharmaceuticals in connection with
congressional investigation of drug pricing practices.
Represented leading claims administrator in connection with
congressional hearing concerning administration of historic
settlement of Indian trust fund claims.
Represent various financial industry associations and
companies, including as amici, in judicial challenges to agency
rulemakings under the Dodd-Frank Act.
Represent U.S. Chamber of Commerce and Investment Company
Institute as amici in support of MetLife, Inc.'s challenge to
its designation as ``too big to fail'' by the Financial
Stability Oversight Council under the Dodd-Frank Act.
Represent U.S. Chamber of Commerce and National Association
of Manufacturers as amici in various appellate cases before the
Supreme Court and U.S. courts of appeals.
Represented the American Intellectual Property Law
Association as amicus before the Supreme Court in FTC v.
Actavis, Inc. (U.S.Sup. Ct. 2013), concerning antitrust
analysis of ``reverse payment'' patent settlements.
Represented 215 economists as amici in appellate challenge
to the Federal health care reform law (11th Cir. and U.S. Sup.
Ct.).
Represented Dean Foods Company in defending litigation
brought by the Antitrust Division of the U.S. Department of
Justice and the States of Wisconsin, Illinois, and Michigan
challenging Dean Foods' acquisition of milk processing plants--
United States v. Dean Foods Co. (E.D. Wis.).
Represented third party before DOJ and FCC in connection
with antitrust issues raised by AT&T's proposed acquisition of
T-Mobile.
Represented industry stakeholders in antitrust challenge to
restrictive trademark licensing practices by NCAA colleges and
their exclusive licensing agent.
Lead counsel to Morgan Stanley in defending dozens of
consolidated securities class action suits involving the
allocation of shares in high-tech IPOs--In re IPO Securities
Litigation (S.D.N.Y.)--and related litigation in various other
courts.
Lead counsel to Morgan Stanley in SEC and NASD
investigations of IPO allocation practices.
Lead counsel to Verizon Communications in successfully
obtaining dismissal of antitrust class action against Bell
companies relating to competition for local telephone service--
Twombly v. Bell Atlantic Corp. (S.D.N.Y.).
Lead counsel to Morgan Stanley in successfully obtaining
dismissal of antitrust class action relating to the allocation
of shares in IPOs--In re IPO Antitrust Litigation (S.D.N.Y .).
Represented Bell Atlantic and DSC Communications Corp. in
$3.5 billion monopolization suit against AT&T and Lucent
Technologies (E.D. Texas).
Represented Bell Atlantic and NYNEX in challenge to AT&T's
$19 billion acquisition of McCaw Communications (E.D.N.Y.).
Lead antitrust counsel to United Air Lines in obtaining DOJ
approval of code-share agreement with U.S. Airways.
Lead antitrust counsel to United Air Lines in proposed
acquisition of U.S. Airways (abandoned).
Lead antitrust and regulatory counsel to GTE Corporation in
its $56 billion merger with Bell Atlantic to create Verizon.
Represented AOL in defending AOL-Time Warner merger before
the Competition Directorate of the European Commission
(``EC'').
Lead counsel to GTE before DOJ, FCC, EC, and D.D.C. in
successfully challenging Internet aspects of MCI-WorldCom
merger.
Represented Bell Atlantic in antitrust defense of $23
billion acquisition of NYNEX.
Lead counsel to Verizon Directories Corp. in Lanham Act
action against Yellow Book USA, Inc. for false advertising and
sales claims (E.D.N.Y.).
Handled jury trial and argued appeal in magazine trademark
suit between Petersen Publishing Co. and Time, Inc. (S.D.N.Y. &
2d Cir.).
Represented NFL football players in Supreme Court case
addressing the non-statutory labor exemption to the antitrust
laws--Brown v. Pro Football, Inc., 518 U.S. 231 (1996).
The Chairman. Thank you, Mr. Bradbury.
[Audience interruption.]
The Chairman. Order.
[Audience interruption.]
The Chairman. This hearing will come to order.
[Audience interruption.]
The Chairman. The hearing will come to order.
Ms. Walsh, please proceed.
STATEMENT OF ELIZABETH ERIN WALSH, NOMINEE TO BE
ASSISTANT SECRETARY OF COMMERCE AND DIRECTOR
GENERAL OF THE UNITED STATES AND FOREIGN
COMMERCIAL SERVICE, U.S. DEPARTMENT OF COMMERCE
Ms. Walsh. Senator Cantwell and distinguished members of
the Committee, I am grateful for the opportunity to appear
before you today. I am very honored to be nominated by
President Trump for the position of Assistant Secretary for
Global Markets and Director General of the U.S. and Foreign
Commercial Services.
If you don't mind, I would like to take a moment to
introduce you to the people that are here to support me and my
guests: my sister Molly Walsh, who works at the Pentagon; my
sister Anne Walsh; and my best friend from home, Mary Glass. We
all grew up in Portland together. And my friend here, Rick
Ardell.
I bring to this nomination over 30 years of public and
private sector experience. Through my work, I have had the
opportunity to gain extensive knowledge of foreign and economic
affairs in Asia, the Middle East, and Africa, and I have
traveled to or worked in 100 countries at this time.
After graduating from Georgetown University, I worked at
the White House, the Department of Energy, and the Department
of State at Blair House. In 1989, I moved to New York to serve
as Chief of Protocol to the U.S. Mission to the United Nations.
I left and joined UNICEF as head of emergency operations in
Tuzla, Bosnia. Following that, I went to the London School of
Economics and Political Science and then returned back to
Sarajevo to serve in the Office of Political Affairs and
Economic Affairs.
Returning home from Bosnia, I went to work at Cisco, and
there I built a strong partnership organization to bring the
Cisco Networking Academy Program to 90 countries, including 41
of the least developed countries in the world.
After several years in the private sector, I went back in
the State Department in 2005, a Senior Advisor in the Bureau of
Near Eastern Affairs. There, I formulated and executed a
strategic plan to advance U.S. policy interests, strengthen
alliances, and establish programs focused on women across 16
countries in the Middle East and North Africa.
I also served on the U.S.-Saudi Strategic Dialogue in the
Human Development Working Group.
At Goldman Sachs, I was based in China and led the firm's
philanthropic activities across Asia Pacific. I developed a
long-term strategic platform in Asia, seeking to foster
economic growth and opportunity through investment in the
community, public engagement, and partnership building.
Through this experience, I have seen firsthand the role
that the private sector can play in facilitating and enhancing
America's prominence abroad and in advancing U.S. values.
Furthermore, I know the critical role the U.S. Government plays
in leveling the playing field to ensure U.S. companies can
compete around the world and to ensure that our foreign
competitors abide by their commitments and play by the same
rules. At the same time, I've also seen what happens when U.S.
policy is not carried out or implemented in a way that
facilitates businesses.
I am passionate about the mission of the Department of
Commerce, and I can think of nothing more meaningful and
impactful than working with a team that is highly skilled and
dedicated professionals in the U.S. and Foreign Commercial
Services to create jobs through promoting U.S. exports and
attracting foreign direct investment into the United States.
Trade, exports, and FDI are a powerful engine for growth in
the United States. With 95 percent of the world's population
outside of the U.S. and more than 1 in 5 American jobs
supported by trade, the Office of Global Markets has a critical
role to play particularly with its focus on small- and medium-
sized enterprises, the engine for growth in America.
In addition, I believe the direction that Secretary Ross is
taking to ensure we have fair and reciprocal trade with our
partners will promote America's continued growth and vitality.
I am deeply grateful to the Secretary for his leadership and
confidence in me.
If confirmed, I look forward to having the opportunity to
lead this organization and will bring to it my global
experience and business background as well as my knowledge of
how to leverage government resources and assure efficiency and
effectiveness.
Thank you for your time today and for your consideration of
my nomination.
[The prepared statement and biographical information of Ms.
Walsh follow:]
Prepared Statement of Elizabeth Erin Walsh, Nominee to be Assistant
Secretary of Commerce and Director General of the United States and
Foreign Commercial Service, U.S. Department of Commerce
Thank you Chairman Thune, Ranking member Senator Nelson, members of
the Commerce Committee. I am grateful for the opportunity to appear
before you today. I am very honored to be here as the President Trump's
nominee for Assistant Secretary for Global Markets and D.G. for the
U.S. and Foreign Commercial Service.
And I am so honored to have my family with me on this special day.
If you don't mind, I would like to take a moment to introduce them. My
mother, June and my father Michael a retired attorney--they both served
in the Reagan and Bush Administrations. My sister Molly, currently
serving at the Department of Defense and my beloved sister Anne. While
my parents met in Washington, we grew up in Portland Oregon.
I bring to this nomination over 30 years of public and private
sector experience.
During this time, I have built a strong track record in four key
areas: Strategy and Program Development for market entry/expansion,
political and/or policy advancement; Design-Build Scalable Models to
promote products or programs regionally or globally; Complex
Negotiations; and Public-Private Partnership Creation at local,
national and international levels. I have extensive knowledge of
foreign affairs in Asia, Middle East, and Africa and have traveled or
worked in 100 countries.
I earned my undergraduate work at Georgetown University and started
as an intern for three years at the White House before landing a full-
time position in the Office of Political Affairs. I also worked at the
Department of Energy, and from there had the opportunity to join the
U.S. Department of State and serve as the Deputy Manager and then
acting Manager of Blair House, the President's guest house. During my
tenure there, we hosted over 60 heads of State and Governments. I was
then asked by Ambassador Thomas Pickering to come to the U.S. Mission
to the UN and serve as Chief of Protocol. It was an incredible five
years in the world's largest diplomatic community. But starting in
1992 I started to see cables come across my desk that seemed
unimaginable. Particularly after witnessing the revolutionary Fall of
the Berlin wall in 1989 and the euphoria that came with it. These
cables referred to the conflict in Bosnia. As I continued to read the
news and the cables I felt I had to go to see for myself. I resigned my
position at USUN to join UNICEF as head of emergency operations in
Tuzla during in 1994. I later left Bosnia to attend graduate school at
the London School of Economics and then returned to Sarajevo to work
with the UN as an Economic and Political Affairs Officer. In preparing
for post war conflict operations, there was an enormous gap in the lack
of focus on economic development and investment. Over 20 years later,
we can see the outcome and results today. No economic development, high
unemployment and the presence of ISIS in Europe.
After returning from Bosnia, I came home and wrote a proposal
focused on Education, Technology and job creation and got an offer from
Cisco. The firm provided a platform allowing me to build a strong
partnership organization to bring the Cisco Networking Academy Program
to 90 countries, in Africa, Asia Pacific, central America and included
41 of the Least Developed Countries in the world. In the late 1990s we
began to strong Chinese investment in these areas. Times were changing
and so was the playing field.
After several years in the private sector, I returned to the State
Department in 2005 to serve as Senior Advisor in the Bureau of Near
Eastern Affairs. I was Recruited to formulate and execute a strategic
plan to advance U.S. policy interests, strengthen alliances and
establish and/or expand programs focused on women across 16 countries
in the Middle East and North Africa. I also served on the U.S.-Saudi
Arabia Strategic Dialogue, Human Development Working Group.
I was then hired by Goldman Sachs to lead the firm's philanthropic
activities in Asia Pacific. I developed a long-term strategic platform
in Asia, seeking to foster economic growth and opportunity, through
investment in the community, public engagement and partnership
building. I incorporated global Goldman Sachs Foundation programs and
Goldman Sachs Gives, and created a portfolio of multi-year, regional
and country specific programs aligned with the firms focus and the
economic/development goals of 11 countries where investments had been
made. Major programs included: Goldman Sachs 10,000 Women Initiative
(40 percent of women from Asia); China Breast Cancer Initiative.
From I have seen first-hand the role that the private sector can
play in facilitating and enhancing America's prominence abroad and in
advancing U.S. values.
I know the critical role the U.S. Government plays in leveling the
playing field to ensure U.S. companies can compete abroad, and to
ensure that our foreign competitors abide by their commitments and play
by the same rules.
I have also seen what happens when U.S. policy is not carried out
or implement in a way that facilitates business.
I am passionate about the mission of the Department of Commerce.
And can think of nothing more meaningful or impactful then creating
jobs through promoting U.S. exports or attracting foreign direct
investment into the United States. In addition, I believe the direction
that Secretary Ross is taking to ensure we have fair and reciprocal
trade with our partners will ensure American's continued growth and
vitality.
I am deeply grateful to President Trump, and Secretary Ross for
their leadership. I am honored to be nominated by the President and am
grateful to the Secretary for his confidence and support.
In the past couple of weeks, I have had the opportunity to meet
with a number of the dedicated civil servants and foreign commercial
officers who constitute the leadership of the International Trade
Administration's Global Markets, and the U.S. Foreign Commercial
Service, and I find in them a kindred spirit, one that is driven to
help American companies succeed. Because they share my belief that
there is nothing more meaningful or powerful than helping to create
jobs that put people to work. Trade, exports and FDI are a powerful
engine for economic growth. With 95 percent of the world' population
outside of the U.S. and more than 1 in 5 American jobs supported by
trade, the Office of Global Markets has a critical role to play.
If confirmed I look forward to having the opportunity to lead this
organization, and will bring to it my global experience and business
background as well as my knowledge of how to leverage government
resources to ensure its efficiency and effectiveness.
Thank you for your time today and for your consideration of my
nomination.
______
a. biographical information
1. Name (Include any former names or nicknames used): Elizabeth
Erin Walsh.
2. Position to which nominated: Assistant Secretary for Global
Markets and Director General for the U.S. and Foreign Commercial
Services.
3. Date of Nomination: June 6. 2017.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: Department of Commerce, 1401 Constitution Avenue, NW,
Washington, D.C. 20230
5. Date and Place of Birth: Portland, Oregon, USA; 12/18/1961.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).
Single
7. List all college and graduate degrees. Provide year and school
attended.
Masters of Science, London School of Economics and Political
Science, 1995
Bachelor of Arts, Georgetown University, 1983
8. List all post-undergraduate employment, and highlight all
management-level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.
U.S. Department of Commerce, Washington, D.C. (6/17 to present)
Senior Advisor, Office of the Secretary
The White House, Washington, D.C. (1/20-6/17)
Special Assistant to the President and Associate Director for
Presidential Personnel, Foreign Affairs
Presidential Transition, Washington, D.C.
Co-lead of the State Department transition and landing team
(11/16-11/17)
Donald J. Trump for President, Inc. Washington, D.C.
Lead for the State Department (8/16-11/16)
Goldman Sachs, Washington, Beijing, Hong Kong, China
Executive Director, Head of the Office of Corporate Engagement,
Asia Pacific (5/10-4/15)
Led the firm's philanthropic activities in Asia Pacific.
Developed a long-term strategic platform in Asia, seeking to
foster economic growth and opportunity, through investment in
the community, public engagement and partnership building.
U.S. Department of State, Washington, D.C.
Senior Advisor, Bureau of Near Eastern Affairs (5/05-5/08)
Recruited to formulate and execute a strategic plan to advance
U.S. policy interests, strengthen alliances and establish and/
or expand programs focused on women across 16 countries in the
Middle East and North Africa.
Cisco Systems, Inc., Washington, D.C. and San Jose, CA
Senior Manager, International Strategies and Partnerships,
Corporate Affairs (8/98-4/05)
Built a multi-million dollar public-private partnership
organization at Cisco. Brought together strategic partners to
deliver the Cisco Networking Academy Program to 90 developing
and emerging market countries around the globe. Produced a
program that successfully fused multi-stakeholder interests,
integrated sound business practices and promoted pro-
competitive policies and regulatory reform.
United Nations Mission, Sarajevo, Bosnia-Herzegovina
Economic and Political Affairs Officer (11/95-10/96)
Economic advisor to Chief of UN Civil Affairs.
UNICEF, Tuzla, Bosnia-Herzegovina
Head of Office (4/94-9/94)
Directed UNICEF's emergency operations in the Tuzla region.
United States Mission to the United Nations, New York, NY
Chief Protocol (4/89-4/94)
Directed and managed an effective Protocol Affairs program
based on U.S. Foreign policy objectives. Organized a program
which fostered positive relations with the other 184 member
states of the UN.
U.S. Department of State, Washington, D.C.
Deputy to the Assistant Chief of Protocol for Ceremonials (6/
88-4/89)
Blair House. the President's Guest House, Washington, D.C.
Assistant Manager and Acting Manager (9/85-6/88)
U.S. Department of Energy, Washington, D.C.
Legislative Affairs Specialist (2/85-8/85)
Presidential Inaugural Committee, Washington, D.C.
Assistant to the Director of Events and Inaugural balls (12/84-
2/85)
Reagan-Bush '84, Washington, D.C.
Administrative Assistant to the Campaign Director (10/83-11184)
The White House, Washington, D.C.
Staff Assistant--Office of Political Affairs (4/83-10/83)
9. Attach a copy of your resume.
A copy is attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above, within the last ten years. None
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution within the last ten years.
Managing Member of Chinoiserie Style, LLC (4/16-3/17)
12. Please list each membership you have had during the past ten
years or currently hold with any civic, social, charitable,
educational, political, professional, fraternal, benevolent or
religious organization, private club, or other membership organization.
Include dates of membership and any positions you have held with any
organization. Please note whether any such club or organization
restricts membership on the basis of sex, race, color, religion,
national origin, age, or handicap.
A. Council on Foreign Relations
B. The Sulgrave Club, Washington (no restrictions)
13. Have you ever been a candidate for and/or held a public office
(elected, non elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt. No
14. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past ten years. Also list all offices
you have held with, and services rendered to, a state or national
political party or election committee during the same period.
$500 2008 John McCain
$1,000 2012 Romney Victory, Inc.
$1,000 2012 Romney/Ryan
$1,000 2015 Right to Rise PAC
Full time Volunteer Trump for President--8/4/2016-12/1/2016
15. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements. None.
16. Please list each book, article, column, or publication you have
authored, individually or with others. Also list any speeches that you
have given on topics relevant to the position for which you have been
nominated. Do not attach copies of these publications unless otherwise
instructed. None.
17. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony. None.
18. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
I have extensive professional experience running operations of
large international firms, having worked for five years as Vice
President and Head of the Office of Corporate Engagement for Asia
Pacific for Goldman Sachs and seven years at Cisco as Senior Manager of
International Strategies and Partnerships. I have also served more than
twelve years in the U.S. Government at the White House, State
Department and Department of Energy as well as at the United Nations. I
have put major programs in more than one hundred countries across the
globe, managed budgets of over $80m and, managed globally dispersed,
culturally diverse teams. Working and living overseas has given me
insight into the challenges that American companies face in exporting
their products to global markets. I understand the requirement that the
United States maintain a strong diplomatic presence in the markets in
which American businesses operate.
19. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
Any government leader needs to be a good steward of the American
taxpayer. I have been a senior manager in the private sector at large
companies and have managed a dispersed global organization similar to
the one that I will oversee at the Department of Commerce. My
experience in financial management and accountability, and in
implementing digital strategies to improve productivity of the
corporate enterprise, should benefit the Department of Commerce's
Global Markets division, which I will lead.
20. What do you believe to be the top three challenges facing the
department/agency, and why?
1. Addressing the trade deficit: Growing exports and displacing
imports with more U.S. production will lead to increased growth of GDP
and job creation.
2. Battling unfair trade as it impacts U.S. companies and
particularly small business: American companies need the U.S.
Government to battle surges of unfairly priced imports and competitors
that are subsidized by foreign governments.
3. Getting more companies to export to help grow the U.S. economy
and American jobs: Companies that export pay their workers more than
companies that don't. Most of the world's consumers live outside the
United States. The United States will not prosper unless American
companies and their workers are successfully competing in global
markets.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts.
None with respect to business associates, clients or customers.
However, information about my retirement accounts is included on the
public financial disclosure repm1 I filed and to which I understand you
have access.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association or other organization during your appointment? If so,
please explain.
In connection with the nomination process, I have consulted with
the Office of Government and Department of Commerce agency ethics
officials to identify any potential conflicts of interest. Any
potential conflicts of interest will be resolved in accordance with the
terms of my ethics agreement. I understand that my ethics agreement has
been provided to the Committee. I am not aware of any potential
conflict of interest other than those that are the subject of my ethics
agreement.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. None.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated. None.
5. Describe any activity during the past ten years in which you
have been engaged for the purpose of directly or indirectly influencing
the passage, defeat, or modification of any legislation or affecting
the administration and execution of law or public policy. None.
6. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items.
Any potential conflicts of interest will be resolved in accordance
with the terms of my ethics agreement. I understand that my ethics
agreement has been provided to the Committee. I am not aware of any
potential conflict of interest other than those that are the subject of
my ethics agreement.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, professional association, disciplinary committee, or other
professional group? If yes:
a. Provide the name of agency, association, committee, or group;
b. Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;
c. Describe the citation, disciplinary action, complaint, or
personnel action;
d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.
No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain. No.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so, please
explain. No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. None.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees? Yes.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistle blowers from reprisal
for their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______
Resume of E. Erin Walsh
Highly motivated leader and innovator with 25 years of progressively
responsible management experience in government, the private sector and
international organizations. Exceptional track record in four key
areas: Strategy and Program Development for market entry/expansion,
political and/or policy advancement; Design-Build Scalable Models to
promote products or programs regionally or globally; Complex
Negotiations; Public-Private Partnership Creation at local, national
and international levels. Extensive knowledge of foreign affairs in
Asia, Middle East, and Africa. Traveled or worked in 100 countries.
Professional Experience
U.S. Department of Commerce, Washington, D.C. (6/17-present)
Senior Advisor, Office of the Secretary
The White House, Washington, D.C. (1/16-6/17)
Special Assistant to the President and Associate Director for
Presidential Personnel, Foreign Affairs
Presidential Transition, Washington, D.C.
Co-lead of the State Department transition and landing team (11/9/16-1/
19/17)
Trump for America, Washington, D.C.
Full-time unpaid volunteer, lead for the State Department (8/16-11/8/
16)
Goldman Sachs, Washington, Beijing, Hong Kong, China
Executive Director, Head of the Office of Corporate Engagement, Asia
Pacific
(5/10-4/15)
Lead the firm's philanthropic activities in Asia Pacific. Developed a
long-term strategic platform in Asia, seeking to foster economic growth
and opportunity, through investment in the community, public engagement
and partnership building.
Incorporated global Goldman Sachs Foundation programs and
Goldman Sachs Gives, and created a portfolio of multi-year,
regional and country specific programs aligned with the firms
focus and the economic/development goals of 11 countries where
investments had been made. Major programs include: Goldman
Sachs 10,000 Women Initiative (40 percent of women from Asia);
China Breast Cancer Initiative in partnership with the All
China Women's Federation launched under the umbrella of the
U.S.-China People to People Exchange; Asia Breast Cancer
Initiative in Korea and Hong Kong; ``Women's Economic
Empowerment through Entrepreneurship'' program in partnership
with the UN Economic and Social Commission of Asia Pacific.
Establish and manage relationships with governments, non-
profit organizations, international organizations and private
sector clients.
Advised the Vice Chairman and leadership on philanthropy in
Asia Pacific, trends, and opportunities for investment and
partnerships.
U.S. Department of State, Washington, D.C.
Senior Advisor, Bureau of Near Eastern Affairs (5/05-5/08)
Recruited to formulate and execute a strategic plan to advance U.S.
policy interests, strengthen alliances and establish and/or expand
programs focused on women across 16 countries in the Middle East and
North Africa.
Created 16 major demand-driven programs in four thematic
areas: economy, law, democracy building and women's rights.
Advised senior department officials, ambassadors and members
of congress on regional progress, trends, risks and
opportunities as they developed in these areas.
Negotiated and managed a $50 million budget (Middle East
Partnership Initiative and NEA/Iraq) over three fiscal year
cycles to support the implementation of programs.
Designed, led and implemented the first women's programs
sponsored by the U.S. Government in the Gulf region.
Architect of several sustainable public-private partnership
programs that have had demonstrable positive impact on U.S.
foreign relations, societies at large and thousands of
individuals in the Middle East. These programs include: U.S.-
Middle East Partnership for Breast Cancer Awareness and
Research, MENA Businesswomen's Network, Women in Technology,
and Women in Politics.
Served on the U.S.-Saudi Arabia Strategic Dialogue, Human
Development Working Group.
Cisco Systems, Inc., Washington, D.C. and San Jose, CA
Senior Manager, International Strategies and Partnerships, Corporate
Affairs
(8/98-4/05)
Built a multi-million dollar public-private partnership organization at
Cisco. Brought together, for the first time, strategic partners that
included: foreign governments, NGOs, U.S. Agency for International
Development, and UN Agencies to deliver the Cisco Networking Academy
Program (CNAP, the world's largest e-learning program), to 90
developing and emerging market countries around the globe. Produced a
program that successfully fused multi-stakeholder interests, integrated
sound business practices and promoted pro-competitive policies and
regulatory reform. Founded and directed Cisco's Corporate Social
Responsibility strategic initiatives including:
Cisco's Least Developed Countries Initiative, launched at
the G-8 Summit in 2000, which led the way in bridging the
digital divide by rolling out CNAP in 39 Least Developed
Countries. This resulted in training more than 25,000 students
(as of '05) in industry standard IT skills, reaching 33 percent
female enrollment and 78 percent employment for graduates in
countries where 80 percent of the population live on less than
$2 per day.
Cisco/CLI Gender Initiative. First major corporate
initiative designed to level the playing field for women in IT.
By mainstreaming gender in CNAP, investing in women and girls
and institutionalizing policies and processes to ensure access
and opportunities to women, the program had substantial impact
on instructors, students, institutions and governments in more
than 150 countries.
Eudy Nelson & Associates, Washington, D.C. (8/97-12/97)
Consulted on events for the National Republican Senatorial Committee
United Nations Mission, Sarajevo, Bosnia-Herzegovina
Economic and Political Affairs Officer (11/95-10/96)
Economic advisor to Chief of UN Civil Affairs. Responsible for analysis
of economic situation in post-war Bosnia including: political and
economic ramifications of delays in reconstruction, progress on
financial institution building, bi-lateral economic aid, unemployment,
downside risks and investment climate.
UNICEF, Tuzla, Bosnia-Herzegovina
Head of Office (4/94-9/94)
Directed UNICEF's emergency operations in the Tuzla region. Led
training programs in the sectors of education, health, nutrition and
psycho-social rehabilitation for children. Managed the joint UN
supplementary feeding program, coordinating the efforts of three UN
agencies and four NGOs. Supervised humanitarian missions across
confrontation lines, bringing doctors, medical and education supplies
to children in conflict zones. Worked with government ministries to
develop post-war education and health policies and systems. Served as
regional spokesperson for UNICEF.
United States Mission to the United Nations, New York, NY
Chief of Protocol (4/89-4/94)
Directed and managed an effective Protocol Affairs program based on
U.S. Foreign policy objectives. Organized a program which fostered
positive relations with the other 184 member states of the UN. Planned
and executed over 100 events annually. Managed budget and staff of
four.
U.S. Department of State, Washington, D.C.
Deputy to the Assistant Chief of Protocol for Ceremonials (6/88-4/89)
Planned and organized all official social functions for the Secretary
of State for Chiefs of State and other foreign guests. Acted as liaison
between the diplomatic corps and the Department of State. Served as an
authority on ceremonial protocol matters in the U.S. Government.
Blair House, the President's Guest House, Washington, D.C.
Assistant Manager and Acting Manager (9/85-6/88)
Responsible for Chiefs of State, their families and delegations from
over 60 countries during official visits to Washington. Coordinated
accommodations for all official visitors of the President and worked
with the Chief of Protocol and visits staff to organize their schedules
and activities. Assisted the general manager with oversight of the $13
million renovation project, and all operations of the house, including
the supervision of staff and budget.
U.S. Department of Energy, Washington, D.C.
Legislative Affairs Specialist (2/85-8/85)
Presidential Inaugural Committee, Washington, D.C.
Assistant to the Director of Events and Inaugural balls (12/84-2/85)
Reagan-Bush '84, Washington, D.C.
Administrative Assistant to the Campaign Director (10/83-11/84)
The White House, Washington, D.C.
Staff Assistant--Office of Political Affairs (4/83-10/83)
Research Assistant--Library and Research Center (4/82-4/83)
Intern--Office of Correspondence (10/81-4/82)
Education
The London School of Economics and Political Science, London, England
Masters of Science, Economics, Social Policy in Developing Countries.
September, 1995
Georgetown University, Washington, D.C.
Bachelor of Arts, (Majors: International Relations and American
Government). May, 1983
Other Activities
Member of the Council on Foreign Relations
Board Member, USA, King Hussein Cancer Center
Advisor, Antiquities Coalition
The Chairman. Thank you, Ms. Walsh.
Senator Nelson has arrived. And I'll turn to him for an
opening statement.
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. And, Mr. Chairman, I've been in markup of
the Senate Armed Services Committee, and we have successfully
marked up the bill. I might say to Ms. Walsh, indeed I know
Wilbur Ross is from Florida, and he is quite interested in
trade. So if you will work with him--and hopefully this
Committee will consider a Deputy Secretary for International
Trade as well--I think we can have a good approach there.
Mr. Chairman, thank you for calling this hearing. The
Department of Transportation's most important job is the
regulation and oversight of safety, and that job never stops.
Just last night, an Amtrak train fatally struck two CSX
employees who were working on a nearby track. This is tragic.
These kinds of accidents happen far too often, and we need to
do more to prevent them.
I just rode Amtrak, the Acela, and when I got off in the
Washington station, I looked up on the platform at those steel
beams that cover the tracks, They are all up and down the
tracks for the passengers to walk without getting into the
elements. Lo and behold, all of the steel beams are rusting.
We've got an infrastructure problem, and we've got to address
it.
The Department also has a critical safety role in an issue
that is important to so many of our constituents, especially in
Florida, and that is the continuing Takata airbag mess. Back in
2014, this Senator chaired the first congressional hearing on
the defective airbag failures, and at that time, we heard from
a victim, Air Force Lieutenant Stephanie Erdman, who was
seriously injured and almost lost an eye when a Takata airbag
exploded after a minor accident in the Florida Panhandle, a
minor accident. And we also heard from a senior Takata
executive who stonewalled and failed to acknowledge the
severity of the problem.
And in a series of reports, we uncovered evidence that the
company routinely manipulated data about the safety of its
airbags. Takata's actions were shameful and showed a lack of
regard for human safety. And as a result, the Department of
Justice charged Takata with criminal violations for wire fraud
and conspiracy concerning the defective airbag inflators.
And because of all this, you would think that we would
finally be making some serious progress on Takata recalls, but
that's not the case. Earlier this month, this Senator released
new statistics showing that two-thirds of over 46 million
recalled Takata airbag inflators nationwide have not been
repaired, 2 years later. And even more troubling is that 16
people have died and more than 180 people worldwide have been
injured because of the airbags.
So this is a crisis, and we need leadership to get these
recalls back on track. This is especially true in light of
Takata's announcement that it will enter into bankruptcy, an
announcement just made in the last few days, making it almost
certain that the company will not be able to pay for all the
replacement airbags needed to fix this mess or adequately
compensate all the victims who have been injured or families
who have lost their loved ones.
So this leads me to your nomination, Mr. Bradbury. You
obviously know a lot about this issue because you represented
Takata in regulatory and congressional investigations for more
than 2 years. There's no problem that you are an advocate as an
attorney at law representing a client. I understand that.
But we've got a problem of automobile safety. You have been
generously compensated for being an advocate as an attorney at
law. And I believe, as the Department's General Counsel, you
must be free of any conflicts that could be perceived as
affecting your ability to do the job of protecting the public.
As a result, I wrote you last week and I urged you, if
confirmed, to recuse yourself from all matters involving Takata
for your entire term as the Department's General Counsel.
So, Mr. Chairman, I would like to ask that my letter to Mr.
Bradbury and his response be entered in the record.
The Chairman. Without objection, so ordered.
[The information referred to follows:]
United States Senate
Washington, DC, June 22, 2017
Steven G. Bradbury, Esquire
McLean, VA
Dear Mr. Bradbury:
The U.S. Senate Committee on Commerce, Science, and Transportation
is in receipt of your nomination to the position of General Counsel of
the U.S. Department of Transportation.
This position plays a critical role in ensuring the safety of our
Nation's transportation systems. As such, I believe that the person
occupying this position must be free of any arrangements or
entanglements that could be seen as impeding that duty to serve the
American people.
In your response to the Committee questionnaire, you state that you
``[r]epresented TK Holdings Inc. (Takata Corporation) in connection
with investigations of airbag inflator ruptures by [the National
Highway Traffic Safety Administration] NHTSA, Congress, and other
entities, and in related civil litigation.'' As you know, defective
Takata inflators have been linked to 11 deaths and approximately 180
injuries nationwide. Recently, Honda confirmed that another Takata
airbag inflator ruptured in Las Vegas, Nevada, causing serious injury
to the driver.
Both civil and criminal litigation surrounding the Takata recalls
is ongoing, and on February 27, 2017, Takata pled guilty to one count
of wire fraud related to fabrication of its inflators' safety record
and agreed to pay $1 billion in criminal penalties. Three Takata
executives currently face criminal charges for their alleged
involvement in the Takata scheme. On May 18, 2017, four automakers
involved in multi-district civil litigation reached a settlement
agreement to pay $553 million to compensate vehicle owners affected by
the recalls.
Furthermore, under Takata's Amended Consent Order and Coordinated
Remedy Orders with NHTSA, the agency will play an active role in
overseeing the recall process, including the production of replacement
airbag inflators, well into the next decade. In light of the low recall
completion rates, it is reasonable to expect that oversight of the
recalls by NHTSA and the Department will only increase in the future.
Additionally, by the end of 2019, Takata must demonstrate to NHTSA the
safety of its desiccated ammonium nitrate-based inflators. NHTSA's
determination on this matter could result in expanding the recalls to
include millions of additional Takata inflators.
In your agreement with the Department's Designated Agency Ethics
Official, you state, ``I will not participate personally and
substantially in any particular matter involving specific parties in
which I know a former client of mine is a party or represents a party
for a period of one year after I last provided service to that client,
unless I am first authorized to participate, pursuant to 5 C.F.R.
Sec. 2635.502(d).'' In addition, you state, ``[F]or the duration of my
appointment as General Counsel, I will not participate personally and
substantially in any particular manner in which I know I previously
appeared before, or directly communicated with, the U.S. Department of
Transportation on behalf of Dechert LLP or any former client, unless I
am first authorized to participate, pursuant to 5 C.F.R.
Sec. 2635.502(d).''
Unfortunately, this language does not fully address how you intend
to handle recusals from matters involving Takata Corporation or TK
Holdings Inc. Accordingly, prior to taking further action on your
nomination, I ask you to confirm in writing that you will:
(1) Not participate in any NHTSA or Department matter involving
Takata Corporation or TK Holdings, Inc, including all
subsidiaries and successor entities, during your entire term as
General Counsel; and
(2) Not seek or accept an authorization under 5 C.F.R.
Sec. 2635.502(d) to participate in any matter involving Takata
Corporation or TK Holdings Inc., including all subsidiaries and
successor entities, during your entire term as General Counsel.
Thank you in advance for your prompt response to this request.
Sincerely,
Bill Nelson,
Ranking Member.
cc: The Honorable John Thune, Chairman
______
June 23, 2017
Hon. Bill Nelson,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Dear Senator Nelson:
Thank you for your letter of yesterday concerning my nomination to
be General Counsel of the U.S. Department of Transportation (the
``Department''). After reviewing my responses to the Committee's
Questionnaire and my Ethics Agreement with the Department's Designated
Agency Ethics Official, or ``DAEO,'' you have asked me to make specific
commitments regarding recusals from matters involving Takata
Corporation, including its subsidiaries and successor entities
(together, ``Takata''), in the event I am confirmed as the Department's
General Counsel.
I very much appreciate your interest in these questions, and I know
from direct experience how much you personally care about addressing
and resolving the safety issues relating to airbag inflator ruptures.
As you know, I represented the U.S. subsidiary of Takata in connection
with the airbag inflator rupture issues before the Department and
elsewhere. Among other things, I participated directly in the
discussions with the National Highway Traffic Safety Administration, or
``NHTSA,'' that produced the consent orders governing the recalls of
Takata airbag inflators and establishing the framework for expansion of
those recalls going forward.
With regard to Takata, as in all matters, you can be assured I take
my ethical responsibilities extremely seriously, both as an attorney
representing clients in private practice and as a prospective officer
of the Government whose only client will be the United States. I will
honor my professional duties as a lawyer and will adhere scrupulously
to the requirements of the Federal ethics laws and regulations, as well
as the additional obligations I will assume under Executive Order 13770
(``Ethics Commitments by Executive Branch Appointees''), if confirmed.
Specifically: For the duration of my tenure with the Department, I
will recuse myself from all aspects of the Takata airbag inflator
recalls. Furthermore, under Executive Order 13770, for a period of two
years following my confirmation as General Counsel of the Department, I
will not participate in any other particular matter involving specific
parties that is directly and substantially related to Takata, including
regulations and contracts. I do not plan to seek a waiver under
applicable ethics regulations to participate in particular matters
involving Takata.
Respectfully submitted,
Steven G. Bradbury.
cc: The Honorable John Thune, Chairman
Senator Nelson. Mr. Bradbury, I want to thank you for your
prompt response and your written commitment to recuse yourself
from Takata recall-related matters. I intend to seek
clarification from you during my questioning on whether you
would seek or accept any waivers that would allow you to
participate in any Takata-related matters. I will be asking you
those questions, and I expect a direct answer.
In the meantime, Ms. Walsh and Mr. Bradbury, I look forward
to continuing this hearing today.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Nelson.
Mr. Bradbury and Ms. Walsh, I know you both appreciate the
importance of cooperation between the branches of our
government. Nevertheless, these hearings give us an opportunity
to underscore that point. So a question for both of you is, if
confirmed, will you pledge to work collaboratively with this
committee and provide thorough and timely responses to our
requests for information as we work together to address various
policies?
Ms. Walsh. Yes, Chairman, I will.
Mr. Bradbury. Yes, absolutely, Mr. Chairman.
The Chairman. Thank you.
Mr. Bradbury, as you know, a major part of the General
Counsel's job is to help oversee the regulatory process at DOT.
Though I know Deputy Secretary Rosen, who is the Department's
Regulatory Reform Task Force Officer, will also play a large
role in that, could you speak to the principles that you will
use to evaluate regulations that come to your office?
Mr. Bradbury. Yes. Thank you, Mr. Chairman. As----
[Audience interruption.]
The Chairman. Order in the hearing room!
Mr. Bradbury, again if you could speak to the principles
that you will use to evaluate regulations that come to your
office.
Mr. Bradbury. Yes. Thank you. Mr. Chairman, as Senator
Nelson stressed, the number one mission of the Department of
Transportation is public safety. So the necessity of regulation
to address safety issues is certainly the primary
consideration, as I think the Secretary of Transportation has
made clear in her testimony.
But I do look forward to working with the Regulatory Task
Force, the Regulatory Reform Task Force, to review the
regulations of the Department and to determine those that are
necessary to address safety issues, and then to ensure that the
regulations are focused in a way that will preserve incentives
to invest in innovation because this is a transformational time
in transportation and technology, and we need to preserve those
investments to invest in new innovation. So I think that's a
critical part of the equation.
Thank you.
The Chairman. Is there a way that maybe you could
illustrate a couple of examples of DOT regulations that in your
view do a good job of reflecting or incorporating those
principles that you just alluded to?
Mr. Bradbury. Yes. Thank you, Mr. Chairman. In a couple of
different areas. One is in automotive safety regulation. The
regulations I think that NHTSA has promulgated are very clear
in terms of the disclosure obligations and the procedures that
manufacturers have to follow, and I think that kind of clear
procedural guidance is critical. Those types of regulations are
I think extremely helpful in terms of achieving the safety
mandate and leaving the markets free to innovate.
Similarly, on the aviations side, where the Department has
very important authority to enforce prohibitions on unfair or
deceptive trade practices, if the Department has a record, a
factual record, it develops of practices that are unfair to
consumers, for example, in the aviation industry, then a clear
rule based on that record that prohibits that specific
activity, we have several examples of that, I think, are
examples of the right kind of regulation.
The Chairman. Thank you, Mr. Bradbury.
Ms. Walsh, if confirmed, your authority as Assistant
Secretary for Global Markets will include the SelectUSA
program, which is an initiative of the Department of Commerce
to attract more direct foreign investment in the United States.
What are your thoughts about how the SelectUSA program could be
used to further your goals for the Global Markets Division at
the Department of Commerce should you be confirmed?
Ms. Walsh. Thank you, Mr. Chairman. The SelectUSA has just
completed a fourth conference that they have done. It was
highly successful. There were 3,000 participants from around
the world, and it was really one of the highest rated and only
event of its sort here in the United States.
SelectUSA's purpose is to attract foreign direct investment
from around the world, something that we welcome, particularly
the United States at this time. So certainly export promotion
and FDI attraction into the United States will be critical, if
confirmed, in this position.
The Chairman. Thank you.
Mr. Bradbury, tomorrow we are going to be marking up the
FAA Reauthorization Act of 2017. What do you view as the proper
role for the Office of General Counsel with respect to the
protection of aviation, consumers, and DOT enforcement of laws
enacted for their benefit?
Mr. Bradbury. Well, I think as you well know, Mr. Chairman,
the Office of General Counsel has a critical role in terms of
enforcing the aviation standards against unfair deceptive
practices in aviation. And then through its supervisory role
with respect to the Chief Counsel at the FAA, the Federal
Aviation Administration, a critical role in assisting the FAA
in terms of legal support in ensuring that its regulation and
enforcement of safety requirements for the air system are
enforced and are clear and are effective. So it's certainly an
important part, and I would, if confirmed, very much look
forward to working closely with you and the members of this
Committee in terms of your policy goals with respect to FAA
Reauthorization and the issues that arise with respect to
aviation. Thank you.
The Chairman. Thank you.
There are a series of letters I want to enter into the
record. There are four letters signed by a total of over 60
prominent individuals, including the signatures of former DOT
Secretary Norm Mineta, former DOT Secretary Rod Slater, as well
as former Attorney General Michael Mukasey, and former Attorney
General Ed Meese, and several state attorneys general,
including the Attorney General of South Dakota, have also
signed a letter of support for Mr. Bradbury's nomination. And
he has also received some letters expressing concerns about Mr.
Bradbury's nomination, and these too will be entered into the
record for members of this Committee to review. So those will
be entered into the record without objection.
[The information referred to follows:]
June 22, 2017
Hon. John Thune,
Chairman,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Hon. Bill Nelson,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Re: Nomination of Steven Gill Bradbury to be General Counsel of the
Department of Transportation
Dear Chairman Thune and Ranking Member Nelson:
We write in strong support of the nomination of Steven Bradbury to
be General Counsel of the Department of Transportation. Each of us
served with Steve in the Federal Government, and we believe him to be
an excellent choice to serve as General Counsel.
Steve's education, prior public service and work in private
practice make him exceptionally well-qualified for this important role.
For the past eight years, Steve has served as a partner at a prominent
law firm in Washington, D.C. and New York (and from 1994-2004 served as
a partner at a different but equally prominent firm). He holds degrees
from Stanford University and the University of Michigan Law School, and
clerked for Associate Justice Clarence Thomas of the Supreme Court and
Judge James L. Buckley of the U.S. Court of Appeals for the D.C.
Circuit. From 2004 to 2009, he served as Acting Assistant Attorney
General and Principal Deputy Assistant Attorney General at the Office
of Legal Counsel, where he advised the President, the Attorney General
and the heads of executive departments and agencies on significant
questions of constitutional, statutory, and administrative law.
Because of Steve's extensive experience in both government and
private practice, we believe he is very well-qualified to serve as
General Counsel of the Department of Transportation. While at the
Justice Department, Steve approached his work with extraordinary care,
and we believe he will demonstrate the same exceptional commitment at
the Department of Transportation. We also understand that Steve has
valuable experience handling significant matters before the Department
(including one of the largest automotive safety recalls in history),
and has also handled issues involving aviation competition and
international route authorizations. Most important, Steve has the
integrity, temperament, judgment, and legal acumen to succeed in the
role of General Counsel.
In short, we believe that Steve will serve in this position with
distinction and honor. We respectfully urge the Committee and the
Senate to approve his nomination to be General Counsel of the
Department of Transportation.
Sincerely,
Alex M. Azar II
Deputy Secretary, Health and Human Services (2005-2007)
General Counsel, Health and Human Services (2001-2005)
Thomas O. Barnett
Assistant Attorney General, Antitrust Division (2006-2008)
C. Frederick Beckner III
Deputy Assistant Attorney General, Civil Division (2006-2009)
John B. Bellinger III
Legal Adviser to the Department of State (2005-2009)
Legal Adviser to the National Security Council (2001-2005)
Bradford A. Berenson
Associate Counsel to the President (2001-2003)
Megan L. Brown
Counsel to the U.S. Attorney General (2007-2008)
Reginald Brown
Associate Counsel to the President (2003-2005)
Jeffrey S. Bucholtz
Acting Assistant Attorney General, Civil Division (2007-2008)
Principal Deputy Assistant Attorney General, Civil Division (2006-2008)
Lily Fu Claffee
General Counsel, U.S. Department of Commerce (2008-2009)
Deputy General Counsel, U.S. Department of the Treasury (2006-2008)
Deputy Associate Attorney General, U.S. Department of Justice (2005-
2006)
Gus P. Coldebella
Acting General Counsel, Department of Homeland Security (2007-2009)
Deputy General Counsel, Department of Homeland Security (2005-2009)
Jonathan Cohn
Deputy Assistant Attorney General, Civil Division (2004-2009)
Daniel J. Dell'Orto
Acting General Counsel, Department of Defense (2008-2009)
Principal Deputy General Counsel, Department of Defense (2000-2009)
Grant M. Dixton
Associate Counsel to the President (2003-2006)
Thomas H. Dupree Jr.
Deputy Assistant Attorney General, Civil Division (2007-2009)
John P. Elwood
Deputy Assistant Attorney General, Office of Legal Counsel (2005-2009)
Alice Fisher
Assistant Attorney General, Criminal Division (2005-2008)
Brett Gerry
Chief of Staff to the Attorney General (2007-2008)
Deputy Assistant Attorney General, National Security Division (2006-
2007)
Matthew W. Friedrich
Acting Assistant Attorney General, Criminal Division (2008-2009)
William J. Haynes
General Counsel of the Department of Defense (2001-2008)
Richard Klingler
Senior Associate Counsel to the President and Legal Adviser, NSC Staff
(2006-2007)
Special Assistant and Associate Counsel to the President (2005-2006)
C. Kevin Marshall
Deputy Assistant Attorney General, Office of Legal Counsel (2005-2007)
Counsel to the Assistant Attorney General, Office of Legal Counsel
(2004)
William E. Moschella
Principal Associate Deputy Attorney General (2006-2008)
Assistant Attorney General, Office of Legislative Affairs (2003-2006)
Carl J. Nichols
Deputy Assistant Attorney General, Civil Division (2005-2008)
Principal Deputy Associate Attorney General (2008-2009)
Jake Phillips
Senior Counsel to the Deputy Attorney General (2008-2009)
Counsel to the Assistant Attorney General, Office of Legal Counsel
(2007-2008)
Benjamin A. Powell
General Counsel, Office of the Director of National Intelligence (2006-
2009)
J. Patrick Rowan
Assistant Attorney General, National Security Division (2008-2009)
Kate Comerford Todd
Associate Counsel to the President (2007-2009)
Ted Ullyot
White House and Department of Justice (2003-2005)
______
June 22, 2017
Hon. John Thune,
Chairman,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Hon. Bill Nelson,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Re: Nomination of Steven Gill Bradbury to be General Counsel of the
Department of Transportation
Dear Chairman Thune and Ranking Member Nelson:
We write to express our strong support for the nomination of Steven
Bradbury to be General Counsel of the Department of Transportation.
Each of us has previously served in one or more senior positions at the
Department of Justice, the White House, or agencies within the
Intelligence Community. We believe Mr. Bradbury is an excellent choice
to serve as General Counsel.
Mr. Bradbury's professional experience, both in public service and
in the private sector, render him exceptionally well-prepared for this
position. A graduate of Stanford and the University of Michigan Law
School, he clerked for Justice Clarence Thomas of the United States
Supreme Court and Judge James Buckley of the United States Court of
Appeals for the District of Columbia Circuit. He served during two
Administrations in the Office of Legal Counsel at the Department of
Justice, first as an Attorney-Adviser and later as the Principal Deputy
Assistant Attorney General and Acting Assistant Attorney General. In
those capacities, he was called upon to advise government officials at
the highest levels, including many of us, on challenging and important
issues of law. In private practice he has likewise been relied upon to
handle matters of great significance and complexity, many of which have
involved issues affecting the transportation industry.
The breadth and depth of Mr. Bradbury's background and experience,
his demonstrated capacity for careful and thoughtful legal analysis,
his consistent professionalism, and his strong integrity would enable
him to provide exemplary service to the Department of Transportation--
and the country--as General Counsel. We strongly urge the Committee to
report favorably upon his nomination.
Sincerely,
William P. Barr
Attorney General (1991-1993)
William A. Burck
Deputy Counsel to the President (2007-2009)
Paul D. Clement
Solicitor General (2005-2008)
Fred. F. Fielding
Counsel to the President (2007-2009; 1981-1986)
Commissioner, 9-11 Commission (2002-2004)
Mark Filip
Deputy Attorney General (2008-2009)
Gregory G. Garre
Solicitor General (2008-2009)
Principal Deputy Solicitor General (2005-2008)
Alberto R. Gonzales
Attorney General (2005-2007)
Counsel to the President (2001-2005)
Stephen J. Hadley
National Security Advisor (2005-2009)
Deputy National Security Advisor (2001-2005)
General Michael V. Hayden, USAF (retired)
Director, Central Intelligence Agency (2006-2009)
Director, National Security Agency (1999-2005)
Peter D. Keisler
Acting Attorney General (2007)
Assistant Attorney General, Civil Division (2003-2007)
Edwin Meese III
Attorney General (1985-1988)
Michael B. Mukasey
Attorney General (2007-2009)
United States District Judge (1988-2006)
Theodore B. Olson
Solicitor General (2001-2004)
George J. Terwilliger III
Deputy Attorney General (1991-1993)
Kenneth L. Wainstein
Homeland Security Advisor (2008-09)
Assistant Attorney General for National Security (2006-08)
______
June 27, 2017
Hon. John Thune,
Chairman,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Hon. Bill Nelson,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Dear Chairman Thune and Ranking Member Nelson:
We write to endorse the nomination of Steven Gill Bradbury to serve
as General Counsel of the Department of Transportation.
We have nothing but the highest respect for his legal skills, his
judgment, his work ethic, and his professionalism. As a public servant,
he undoubtedly will bring those same qualities to this important job in
service to the country.
We thus urge you to report his nomination favorably to the full
Senate. Thank you in advance for considering our views.
Sincerely,
Jeremy Bash
Chief of Staff, U.S. Department of Defense (2011-2013)
Chief of Staff, Central Intelligence Agency (2009-2011)
Democratic Counsel, House Permanent Select Committee on Intelligence
(2005-2009)
John P. Carlin
Assistant Attorney General for the National Security Division, U.S.
Department of Justice (2014-2016)
Chief of Staff, Federal Bureau of Investigation (2009-2011)
Daryl Joseffer
Principal Deputy Solicitor General (2008-2009)
Assistant to the Solicitor General (2004-2008)
Deputy General Counsel, Office of Management and Budget (2003-2004)
The Honorable Norman Y. Mineta
Secretary, U.S. Department of Transportation (2001-2006)
Matthew G. Olsen
Former Director, National Counterterrorism Center (2011-2014)
Former General Counsel, National Security Agency (2010-2011)
Virginia A. Seitz
Former Assistant Attorney General, Office of Legal Counsel (2011-2013)
The Honorable Rodney E. Slater
Secretary, U.S. Department of Transportation (1997-2001)
Jeffrey L. Turner
Managing Partner, Public Policy Practice Group, Squire Patton Boggs
(U.S.) LLP
______
June 27, 2017
Hon. John Thune,
Chairman,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Hon. Bill Nelson,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Re: Nomination of Steven Gill Bradbury to be General Counsel of the
Department of Transportation
Dear Chairman Thune and Ranking Member Nelson:
We the undersigned Attorneys General for various States are writing
in strong support of the President's nomination of Steven Gill Bradbury
to serve as General Counsel of the U.S. Department of Transportation.
As Attorneys General responsible for protecting the rights and
legal interests of the people of our States, we have a keen interest in
the Federal Government's exercise of its broad authorities with respect
to the Nation's interstate transportation systems. The public safety of
our highways, rail lines, and other modes of transportation is critical
to each of our states, and we look to the Department of Transportation
for smart and effective enforcement action in cooperation with State
and local authorities. It is also important that the Federal Government
act wisely and efficiently in spending tax dollars in support of needed
infrastructure projects. In addition, we expect that the Department of
Transportation will pursue reasonable regulatory policies that are
consistent with the law and that promote safety while preserving
appropriate incentives for technological innovation, private
investment, and variation in approach among the States.
In all of these areas, it is vital that the Department of
Transportation receive sound legal counsel on the proper exercise of
its statutory authorities. We believe that Mr. Bradbury has exactly the
right background and set of experiences to provide that legal guidance.
As the head of the Office of Legal Counsel at the U.S. Department of
Justice from 2005 to 2009, Mr. Bradbury advised the entire Executive
Branch on compliance with the laws and the Constitution. And as an
attorney in private practice, he has gained experience with a range of
regulatory and enforcement issues before the Department of
Transportation. We applaud the President for nominating Mr. Bradbury,
and we look forward to working with him and with Secretary Chao on
important transportation issues of common interest.
Accordingly, we respectfully urge the Committee to move Mr.
Bradbury's nomination forward.
Respectfully submitted,
Alan Wilson
Attorney General
State of South Carolina
Pam Bondi
Attorney General
State of Florida
Derek Schmidt
Attorney General
State of Kansas
Tim Fox
Attorney General
State of Montana
Sean Reyes
Attorney General
State of Utah
Bill Schuette
Attorney General
State of Michigan
Patrick Morrisey
Attorney General
State of West Virginia
Chris Carr
Attorney General
State of Georgia
Jeff Landry
Attorney General
State of Louisiana
Doug Peterson
Attorney General
State of Nebraska
Brad Schimel
Attorney General
State of Wisconsin
Ken Paxton
Attorney General
State of Texas
Leslie Rutledge
Attorney General
State of Arkansas
Curtis Hill
Attorney General
State of Indiana
Josh Hawley
Attorney General
State of Missouri
Adam Paul Laxalt
Attorney General
State of Nevada
Steve Marshall
Attorney General
State of Alabama
Marty Jackley
Attorney General
State of South Dakota
Wayne Stenehjem
Attorney General
State of North Dakota
______
United States Senate
Washington, DC, June 28, 2017
Hon. Mitch McConnell,
Majority Leader,
United States Senate,
Washington, DC.
Dear Mitch:
I am writing to inform you of my strong objection to any
consideration of the nomination of Steven G. Bradbury to serve as the
general counsel of the Department of Transportation.
It has come to my attention that while serving as the acting head
of the Department of Justice's Office of Legal Counsel from 2005 to
2009, Mr. Bradbury authored several legal memoranda that authorized the
use of waterboarding and other forms of torture and degrading
treatment.
I find his nomination to any position of trust in our government to
be personally offensive.
Please know that I will use whatever means I have at my disposal to
block consideration of this nominee.
Sincerely,
John McCain,
United States Senator.
______
July 31, 2017
Dear Senator,
We are a nonpartisan group of former national security, law
enforcement, intelligence, and interrogation professionals. Our
collective professional experience includes 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.
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.
Signed,
Frank Anderson--CIA (Ret.) Marcus Lewis--Former U.S. Army Interrogator
Glenn Carle--CIA (Ret.) Mike Marks--NCIS (Ret.)
Barry Eisley--Former CIA Robert McFadden--NCIS (Ret.)
Mark Fallon--NCIS (Ret.) Joe Navarro--FBI (Ret.)
Charlton Howard--NCIS (Ret.) William Quinn--Former U.S. Army Interrogator
Timothy James--NCIS (Ret.) Ken Robinson--U.S. Army (Ret.)
Colonel Steven Kleinman--U.S. Air Force (Ret.) Patrick Skinner--CIA (Ret.)
______
United States Senate
Washington, DC, August 1, 2017
Hon. John Thune,
Chairman,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Hon. Bill Nelson,
Ranking Member,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Dear Chairman Thune and Ranking Member Nelson:
I write to share my deep concerns about Steven G. Bradbury, who has
been nominated by President Trump to serve as General Counsel of the
Department of Transportation and whose vote before the Senate Commerce
Committee is scheduled for August 2, 2017. Mr. Bradbury 's role as an
architect of the torture program, along with his proven unwillingness
to exercise independence and objectivity at moments when those
qualities were most warranted, in my view disqualify him from any
position of public trust.
Mr. Bradbury was acting Assistant Attorney General from 2005 to
2007 and headed the Office of Legal Counsel at the U.S. Department of
Justice from 2005 to 2009. During that time, along with John Yoo and
Jay Bybee, he served as a principal author of what have come to be
known as the ``torture memos.'' While the torture program had already
been developed by the administration prior to Mr. Bradbury's
appointment, he contributed to secret OLC memos that provided the legal
justification for a range of CIA interrogation tactics including
waterboarding, cramped confinement, and dietary manipulation.
Mr. Bradbury's work has been sharply criticized inside and outside
the Department of Justice. In 2007, State Department Legal Adviser John
Bellinger warned Mr. Bradbury that his draft opinion analyzing Common
Article 3 of the Geneva Convention ``will not be considered the better
interpretation of [the law] but rather a work of advocacy to achieve a
desired outcome.'' \1\ Mr. Bradbury's legal opinions were eventually
overturned, and the Department's Office of Professional Responsibility
(OPR) issued a report in 2009 citing ``serious concerns about some of
his analysis.'' \2\ OPR's review ``raised questions about the
objectivity and reasonableness of some of the Bradbury Memos'
analyses'' and found that instead of providing objective legal analysis
his memos ``were written with a goal of allowing the ongoing CIA
program to continue.'' \3\ As a coalition of human rights groups noted
in their letter of June 22 to Chairman Thune and Ranking Member Nelson
of the Committee on Commerce, Science, and Transportation, Mr.
Bradbury's ``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.'' \4\
---------------------------------------------------------------------------
\1\ Department of Justice Office of Professional Responsibility,
Report on Investigation into the Office of Legal Counsel's Memoranda
Concerning Issues Relating to the Central Intelligence Agency's Use of
``Enhanced Interrogation Techniques'' on Suspected Terrorists, July 29,
2009.
\2\ Id.
\3\ Id.
\4\ Coalition Letter Expressing Concern Regarding the Nomination of
Steven Bradbury for General Counsel of the Department of
Transportation, June 22, 2017, available at https://ccrjus
tice.orglcoalition-letter-expressing-concern-regarding-nomination-
steven-bradbury-general-counsel-department.
---------------------------------------------------------------------------
In testimony before the Senate Judiciary Committee in 2006, Mr.
Bradbury justified the administration's interpretation of the Supreme
Court's decision in Hamdam v. Rumsfeld by stating that the ''president
is always right.'' \5\ The general counsel of a Federal agency must not
simply be a rubber stamp for the administration and its policies. In
2008, the Senate refused to confirm Mr. Bradbury as assistant attorney
general for the Office of Legal Counsel in light of his role in
crafting the torture memos and demonstrated lack of political
independence. I urge you to again reject his nomination to this
position of public trust.
---------------------------------------------------------------------------
\5\ Senate Judiciary Committee, Hearing on Hamdan v. Rumsfeld:
Establishing a Constitutional Process, July 11, 2006.
---------------------------------------------------------------------------
Sincerely,
Sheldon Whitehouse,
United States Senator.
______
Public Citizen
Washington, DC, August 1, 2017
Dear Senator,
We are writing to urge you to deny confirmation for Steven
Bradbury, the nominee to become general counsel for the Department of
Transportation.
Mr. Bradbury has a long record of opposing consumer and
environmental interests that makes him singularly unfit for the general
counsel position at an agency charged with developing a safe,
affordable and environmentally sustainable transportation system for
Americans.
Most notably, Mr. Bradbury has represented Takata Corporation as it
has sought to defend itself from civil and criminal liability related
to faulty air bags that have killed or injured more than 100 people.
Recalls of the Takata airbags are proceeding at a disturbingly slow
rate. As Senator Nelson said at Mr. Bradbury's confirmation hearing, he
was ``one of the main advocates for a company that has done dastardly
things.''
Unfortunately, that representation and advocacy was part of a long
history of advocating on behalf of corporate wrongdoers. He has
represented:
Turing Pharmaceuticals, of Martin Shkreli fame, in
connection with congressional investigations of outrageous drug
price increases;
Southeastern Legal Foundation in a Supreme Court challenge
to EPA greenhouse gas emission rules;
US Airways during its 2013 merger with AMR Corporation, the
company that operates American Airlines, a merger that created
the country's largest airline:
Verizon, in a lawsuit against the Federal Communications
Commission, challenging an early FCC net neutrality rule.
The U.S. Chamber of Commerce and Investment Company
Institute as amici in support of MetLife, Inc.'s challenge to
its designation as ``too big to fail'' by the Financial
Stability Oversight Council under the Dodd-Frank Act.
In Mr. Bradbury's world, corporations would be bigger, freer to
pollute, price gouge and endanger the public.
This is not the resume of someone qualified to serve as general
counsel at the Department of Transportation. Mr. Bradbury's record
evinces a hostility to the very priorities he would be charged with
upholding at the department. We urge you to reject his nomination.
Sincerely,
Robert Weissman,
President.
The Chairman. Senator Nelson.
Senator Nelson. Mr. Chairman, this is an airbag. It goes in
this device--in this case, this is a Honda--and it's right in
the middle of the steering wheel. And it inflates. Even minor
fender benders cause it to inflate. The actual inflator is
inside the steering wheel. This is cut in half, and the
explosive material is in the inside, and that has been the
problem. Takata's ammonium nitrate, when exposed to humidity
over time, can explode with great force. You can see how heavy
that is. That explosive force starts to shred this metal, and
that's what has killed 16 people and injured 180. The very
device that is intended to save lives is killing lives.
Now, in response to the letter that I sent you last week,
you said that you would agree to recuse yourself from all
aspects of the Takata airbag inflator recall and that you,
quote, do not plan to seek a waiver that would allow you to
participate in, quote, particular matters involving Takata
since you were their counsel.
Well, I appreciate your response, but I want to get very
specific. Will you agree to completely recuse yourself from all
Takata matters and agree never to seek or accept a waiver of
these restrictions?
Mr. Bradbury. Thank you, Senator Nelson. And let me explain
what the statements in the letter indicate just so it's clear.
There would not be a waiver available at all with respect to
the Takata airbag recall issues. Those I am recused from
entirely. So as I've indicated to you, Senator Nelson, I
recognize that I am recused for my entire time as General
Counsel, if I am confirmed, from all aspects of the Takata
airbag recalls.
With respect to any other unrelated matter that might come
up, so let's say, for example, with respect to seatbelts, if
the Takata successor, and based on what I read in the news,
that could be the key systems company has an issue with
seatbelts completed unrelated to airbags, I am indicating I
would be recused under the ethics pledge of the President's
Executive Order for 2 years from the commencement of my time at
the Department if I am confirmed.
So I would not involve myself in any other particular
matter that relates directly to Takata. Those unrelated matters
are the ones for which at least theoretically a waiver might be
available. And what I indicated in the letter is I do not plan
to seek a waiver to participate in any of those unrelated
matters that involve a Takata successor. I can't, as I sit here
today, foresee what those matters might be, and if it did
involve something completely unrelated and there was a strong
need for the General Counsel to be involved, that's the kind of
situation that I cannot foresee. But I do not plan to seek any
such waiver for any such unforeseen matter, as I sit here. And,
of course, if something came up like that, I would certainly be
in touch with your office in advance of anything. But I think
that's a pretty broad and clear statement.
Senator Nelson. Mr. Bradbury, I appreciate your good
intentions, but the fact is that you were one of the main
advocates for a company that has done dastardly things and that
has, according to U.S. attorneys, violated criminal laws.
Now, we just need the understanding, as a committee, that
you're still not going to be an advocate for Takata. And
they've already said they're filing for bankruptcy. And this is
at a time that the American public is still at risk because
two-thirds of the recalled vehicles are not repaired. The
Department of Transportation can in fact affect this, although
it's specifically NHTSA. Why can't you just say that, ``I'm not
going to get involved in Takata''?
Mr. Bradbury. Well, certainly, Senator Nelson, I will not
in any way, shape, or form be an advocate for any private
interest. I will represent only one client as General Counsel
if I am confirmed, and that's the United States. I have no
plans, as I indicated, to seek any waiver to be involved with
respect to Takata on any matter that's unrelated to the airbag
recalls. As to the airbag recalls, I would be entirely recused
my entire time.
I agree with you completely, these are serious safety
issues. One of the things I did as attorney for Takata was
assist them in coming forward and disclosing these serious
issues to NHTSA and to the Department of Justice and assisting
them in working out the consent order, and consent orders, with
NHTSA to create the framework for these expanded recalls.
I agree entirely that they've got a long way to go, and
it's critically important that they continue and that they be
completed as promptly as possible. And so the Deputy General
Counsel will be overseeing that. I know it has Secretary Chao's
personal and direct attention. From personal experience, I well
know how important it is to you and what a high priority it is
and how it particularly affects Florida. So I'm not at all
going to be an advocate for that company or any private
company. Thank you.
Senator Nelson. OK. Mr. Chairman, I've just got to respond.
So here's a potential hypothetical. We're rocking along into
bankruptcy, and there is something in the bankruptcy with
regard to creditors that would be favorable to Takata but would
slow down the process of recall. That's something that you
shouldn't get involved in because you had been the advocate,
the spokesperson, the mouthpiece for Takata.
Mr. Bradbury. I agree, and I would not get involved because
that would have an effect potentially, as you have indicated
there, on the completion of the recalls. So you have my pledge,
I will not participate in any aspect of any work of the
Department or the Department's activities with respect to that,
that affect the recalls, the Takata airbag recalls, because we
have to complete those as quickly as possible.
Thank you.
The Chairman. Thank you, Senator Nelson.
Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman.
Ms. Walsh, thanks for your willingness to serve. You know,
I'm sure you understand because you said you traveled to 100
different countries, that approximately 96 percent of global
consumers are and over three-quarters of the world's purchasing
power are overseas. So by some estimates, the middle class is
expected to triple by 2030, creating booming markets in Asia,
Africa, and India. Only 1 to 3 percent of the U.S. small
businesses are currently exporters, so obviously we want our
exporters to have all the help and support they can to break
down those barriers and become champions.
One of the programs that I have supported and many of my
colleagues have supported is the State Export Promotion
Program, and I wanted to get your thoughts on whether you
support that program. And, second, do you support the Export-
Import Bank as a tool to help small business exporters?
Ms. Walsh. Thank you, Senator, for your interest and
support in the Commerce Department. I definitely feel that the
time is now to really be focusing on small and medium-sized
enterprises in terms of the states. I think everyone has a role
to play at the Federal, the state, and the local levels in
ensuring that our small-and medium-sized enterprises are
prepared to export for those that are interested in doing so.
The markets out there are huge, and the growth is
exponential that we're seeing particularly in Asia. I would
also say that obviously it's up on the upswing in Africa as
well. And to answer your question with regard to the Export-
Import Bank, I am not in a position to respond to that right
now. The Export-Import Bank has definitely been part of the
cycle of success in terms of our exports around the globe, but
in terms of--I'm not in a position, but if confirmed, I would
definitely look into working with them at the direction of the
Secretary and Under Secretary.
Senator Cantwell. You are not in a position to say whether
you support it? Is that what you're saying?
Ms. Walsh. Not in a position to say personally? Is that
what you're asking, Senator?
Senator Cantwell. I mean, you are in such a big position to
promote trade for the United States, the Export-Import Bank is
one of the key tools.
Ms. Walsh. Right. And I think that it has been outstanding
thus far from what I know of working with the Export-Import
Bank, but in this position, I am not prepared to say what role
the Department will play. But definitely, Senator, if
confirmed----
Senator Cantwell. Thank you.
Mr. Bradbury, I would love to ask you the same related
question as it relates to DOT and trade because one of the
things that will be in the purview of DOT is these FASTLANE
grants that we were able to approve last administration to more
quickly move freight, and we're still waiting for the awards
for this year.
But I feel so compelled to ask you about your time in the
Bush administration obviously regarding on this torture issue.
Do you stand by your previous decisions now that you've seen
how the Court has ruled on this issue?
Mr. Bradbury. I'm sorry, Senator, how the Court has ruled?
How the Court has ruled on what?
Senator Cantwell. Do you think that you were right and do
you stand by your positions on torture? Or do you now see a
change or a problem with your philosophy that you were
advocating?
Mr. Bradbury. Well, first of all, I just really want to
make it clear, I was not advocating for any policies. I didn't
have a philosophy about these policies. I certainly didn't ask
to be in the position to provide legal advice on these
questions. You know, the Office of Legal Counsel is that office
where tough questions come to you when senior policymakers need
legal advice and clarity, and that's the function of the
office.
I will say there is one point I really want to make about
this, because certainly I don't feel the need to defend or
discuss the analysis of opinions, which I think speak for
themselves, and, of course, these opinions are not operative
anymore. There's been a real, you know, major, major
development.
At that time, when we were addressing these issues, it was
recognized that there were two standards. There were the
standards that applied to the Armed Forces in the military,
which use the Army Field Manual, and very clear, and they have
traditions and protocols that they followed. And then there
were different standards for intelligence officers, and those
standards were much less well formulated, much more vague, less
clear, very few precedents, and that's what we were really
struggling with.
Now, of course, there has been a big sea change since that
time because Congress has come----
Senator Cantwell. Do you support that sea change?
Mr. Bradbury. I do. I think it's tremendous for the country
historically that Congress and the Executive Branch have come
together on this highly contentious issue. And Congress has
fully debated it. Senators I really have great affection and
respect for led the charge, like Senator McCain and Senator
Feinstein. And Congress has enacted new laws which essentially
said for the United States, the standard is going to be the
same, it's going to be one and the same----
Senator Cantwell. So you didn't see a violation of the
Geneva Convention in what you were recommending?
Mr. Bradbury. Well, I wasn't recommending anything. OK? The
office that I headed up is pure legal advisory, it doesn't
recommend anything. So policymakers----
Senator Cantwell. But you were interpreting the law----
Mr. Bradbury. Correct, and----
Senator Cantwell.--and standards.
Mr. Bradbury. Yes. And, of course, what we faced in 2006
was a Supreme Court decision which really caught everybody by
surprise which said the standard that applies in the war on
terror is the Common Article III standard. That was something
new. The President previously said, ``it doesn't apply.'' So we
needed to work on addressing what those standards in that
framework would mean for the United States. And I actually was
privileged at the time to work on behalf of the Executive
Branch closely with Senator McCain and others to resolve those
issues through legislation in 2006, legislation that actually
got 67 votes in the Senate. I was very----
Senator Cantwell. Well, my time is expired, Mr. Chairman,
and I don't want to go on and on, but I think that people are
here this morning because they don't think that you showed
enough leadership. So now trying to say that--we'll go over
this in more detail when I have an opportunity.
Mr. Bradbury. OK.
Senator Cantwell. But I think what people want to know is
that, as an attorney, whether it's Takata airbags or this
issue, you're bringing forth complete facts and information
like somebody we're going to put in the position to be a
government lawyer should.
Mr. Bradbury. I understand, Senator.
Senator Cantwell. Thank you.
Mr. Bradbury. And, of course, in the work we did, we tried
to lay out all of the factors that we considered, and I
certainly appreciate the strong feelings on this issue. I
appreciate them deeply. Thank you.
The Chairman. Thank you, Senator Cantwell.
Senator Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you, Mr. Chair.
Thank you both. And it's nice to see your family here.
Welcome. And thank you for your willingness to serve.
Mr. Bradbury, let me start with you, and I want to follow
up on just some of the conversation we're having with respect
to Takata and your representation. And let me just put this in
context. Prior to becoming a Senator here for the state of
Nevada, I was the Attorney General for 8 years, was general
counsel for the state agencies when they were looking to
implement the laws that were passed for their mission and help
them interpret it. That's similar to what I see you are going
to be doing.
And so I do have concerns about how you manage your private
life and what you did in your private life, particularly when
it comes to your advocacy for Takata and the recall of the
airbags, and now how you're representing the very agency that
you were fighting against on this public safety issue.
So let me just say this and ask you a couple of questions
surrounding this because there was a young woman in Nevada by
the name of Karina Dorado who was seriously injured, as you
well know, from a defective Takata airbag, which exploded in
her car after a minor accident in Las Vegas, causing severe
damage to her trachea.
There are currently no laws or regulations prohibiting the
sale of cars under recall or used parts that may be under
recall. In other words, they can be recycled. That troubles me.
As General Counsel of the Department, would you be supportive
of NHTSA, should it be decided that such laws or regulations
are indeed necessary, to prohibit the recycling of any
defective products?
Mr. Bradbury. Well, that issue certainly is a significant
issue, and I would look forward, if confirmed, to working
closely with the Chief Counsel of NHTSA to address whether
there is an appropriate tool to bring to bear there or whether
some new authority may be required. And I certainly would look
forward to meeting with you and members of this committee to
hear your perspective on those issues.
And just to emphasize again, I've been in government
previously and I clearly know the difference between
representing a client in private practice and representing the
United States as an attorney, such as in the position of
General Counsel, if I am fortunate enough to be confirmed by
the Senate. So you certainly have my pledge that that
difference will be very, very important to me, and I will not
lose sight of it.
Senator Cortez Masto. Good. I appreciate that. And so one
final question on a similar track. So then do you think there
are additional steps the Department can take to detect the type
of behavior that Takata engaged in, which is data manipulation
and deception, before it gets to the crisis stage we are in
today? And it may not pertain to Takata, maybe the next company
or another company there that is engaging in that data
manipulation and deception, do you think there's a role that
you can continue down that path and the Department can take to
detect it?
Mr. Bradbury. Well, I certainly look forward to exploring
that issue and whether there are things that can be done
differently perhaps in terms of new regulation. Certainly when
there is a--my understanding is--and let me just say, through
my experience in that matter, I gained a great respect for the
career attorneys and the engineers in NHTSA, I really did. I
think very highly of NHTSA and my experience with them. And
that actually was a significant factor in my decision to pursue
this position. I was----
Senator Cortez Masto. I'm glad to hear that. And I'm just
going to cut you off because I don't have enough time, and I
would like to get to Ms. Walsh. But I will tell you I respect
them as well, and they were great partners of mine as Attorney
General representing the state in working together in public
safety issues across this country. So thank you for that.
Ms. Walsh, welcome as well. In Nevada, actually in 2016,
there are over $10 billion worth of commodities that were sold
to the international marketplace. So this space is very
important for us in Nevada.
So I have a couple of questions when it comes to the
foreign direct investment. A significant proportion in Nevada
of previous foreign direct investment has come into the areas
of renewable energy, which is an important space for us in
Nevada, and I think we can continue to lead the country here.
Unfortunately, the President recently made the decision to pull
the United States out of the Paris climate agreement, signaling
to other companies that the United States is no longer
prioritizing the fight against climate change. Will you commit
to continue efforts to increase foreign direct investment in
the renewable energy sectors?
Ms. Walsh. Thank you, Senator, for that question. The
renewable energies and the whole foreign direct investment
piece is critically important I believe to the Department,
certainly to the Secretary, and if confirmed, I commit to
absolutely supporting the foreign direct investment in your
state of Nevada.
Senator Cortez Masto. Thank you. And then the President has
made several statements throughout his campaign and into the
start of the administration insinuating that certain foreigners
are not welcome in the United States. Since then, we have seen
a number of reports of companies who have chosen to take their
business elsewhere. As the Director of SelectUSA, how will you
promote future investment despite the President's divisive
rhetoric with respect to foreigners?
Ms. Walsh. Thank you, Senator. Again, I think, if
confirmed, I would definitely be one to look at all foreign
direct investment. It's critically important to our country. I
think that whatever the President's and the Secretary's
direction is, I do feel that we can attract foreign direct
investment particularly because of the new tax and regulation
reforms that they are doing. America has a huge consumer
population, and has always been the number one attraction for
foreign investment.
Senator Cortez Masto. Thank you very much.
Thank you.
The Chairman. Thank you, Senator Masto.
Senator Sullivan.
STATEMENT OF HON. DAN SULLIVAN,
U.S. SENATOR FROM ALASKA
Senator Sullivan. Thank you, Mr. Chair.
And welcome to the witnesses. I appreciate your desire to
serve.
Mr. Bradbury, I just wanted to follow up on a couple issues
that first Senator Nelson talked about Takata. So you're going
to fully recuse yourself on those issues, correct?
Mr. Bradbury. That's correct. Yes.
Senator Sullivan. OK. So we appreciate that. That's the
right thing to do. I think that's important for all of us to
hear.
This is less likely, but there was a mention of the issue
of turning pharmaceutical if there is any issue that, however
remote that might be, would you recuse yourself on that as
well?
Mr. Bradbury. Yes. Any private client that might have
business before the Department of Transportation that I've
represented, of course, any matter I personally handled for a
client, I'm recused for the rest of my career basically from
representing any other client in that. And for 2 years under
the Executive Order, I would not handle any matter in which
that former client has a direct and substantial interest. So
absolutely, yes, but I don't anticipate any pharmaceutical
issues coming before the Department.
Senator Sullivan. No, I know, but I think it's very good to
get it out there. It's pretty much your previous clients, and
that's important for all of us to know. So I'm glad you're so
direct on that.
You know, Senator Cantwell was talking about the
interrogation issues, and you might get more questions on it,
but the Justice Department career attorneys and the Office of
Professional Responsibility took a look at all of this
afterwards. Obviously, the context was very different.
As you mentioned, we have now passed laws, I voted for laws
that make it very clear about where our nation is with regard
to torture and not allowing it. Can you just give me a sense on
where OPR was and everything in terms of any activities you
were involved with? I think that's also important to hear what
the career Justice Department officials, their judgment was
during----
Mr. Bradbury. Yes.
Senator Sullivan.--which was, let's face it, after 9/11, it
was a very, very difficult time. A lot of us were involved in
different ways on responding to the attack on our Nation and so
it would be good to hear what they had to say.
Mr. Bradbury. Well, thank you, Senator Sullivan. It's very
important, I think. You know, it was a challenging time----
Senator Sullivan. Yes.
Mr. Bradbury.--and the issues were very difficult ones, as
I've stressed.
Senator Sullivan. Yes.
Mr. Bradbury. I wasn't in the Administration in the early
days, you know, after 9/11, and there were opinions given by
the Office of Legal Counsel in those early days that, you know,
have become very famous at this point----
Senator Sullivan. Right.
Mr. Bradbury.--that relied on very expansive
interpretations of executive power of the United States
Commander in Chief.
Senator Sullivan. That you weren't part of.
Mr. Bradbury. I was not in the office then, I did not
author those opinions.
Senator Sullivan. Yes, that's important to clarify.
Mr. Bradbury. From my perspective, one of the significant
initiatives that I took during my time in the Office was to go
back and review all of those opinions, identify where they were
flawed, where the invocation of executive power was overly
expansive and we felt not well supported, and we pulled back.
So we withdrew those opinions. What I actually was working on,
including with respect to all the interrogation-related
opinions I did, was to replace and supersede those earlier very
expansive opinions, which were much more narrow-focused
opinions where I tried to explain very clearly all the factors
and focus only on the statutory provisions, never relied on the
Commander in Chief authority, et cetera.
Senator Sullivan. That's helpful, and obviously you
mentioned about Senator McCain and other Members voted on
amendments within the last couple years. It clarified this
under U.S. law. And you obviously agree with that because
that's the law, correct?
Mr. Bradbury. Oh, absolutely. The law has changed. I think
it's a welcomed development for the branches to come together,
make clear standards that apply across the government, and so
the proposals and policies that we had to grapple with back
then----
Senator Sullivan. Are clarified now.
Mr. Bradbury.--would not be permitted, many of them would
not be permitted, today, and I would not anticipate that it
would require a change in the law. That would require Congress
to make that happen.
Senator Sullivan. Right.
Mr. Bradbury. So it's completely different.
Senator Sullivan. Let me ask another quick question really
of both of you, Ms. Walsh as well. A lot of us are focused on
infrastructure. I think hopefully we're going to see an
infrastructure bill. I've also been very focused on the
importance of permitting reform, right? The President might
want to do a trillion dollar infrastructure, but our permitting
system is so broken that it takes 8 years to permit an airport
runway or 6 years to permit a bridge, 20 years to permit a gold
mine in Alaska. I mean, it's a broken system.
I've gotten commitments from both Secretary Ross and
Secretary Chao to work with this Committee, where I think
you'll see bipartisan support, on looking at ways that we have
to, have to, reform a Federal permitting system that doesn't
put people to work. A trillion dollars, half of that will be
blown by red tape and lawyers fees if we don't reform our
permitting system.
I'll be introducing a bill here soon. I'm hoping to get
some of my Democratic colleagues on a Rebuild America Now Act
that reforms our Federal permitting system. I just want to get
your commitment in both of your agencies, in both of your
positions, where it's very important that you work with us on
trying to address the dysfunctional permitting system that
undermines our infrastructure and keeps so many hardworking
Americans and their families from actually working.
Can I get both your commitments on that?
Mr. Bradbury. Absolutely. I'll speak for myself, yes.
Senator Sullivan. Ms. Walsh?
Ms. Walsh. Senator, absolutely. It's a top priority for the
Department of Commerce, and I will definitely commit to working
with your teams and yourself.
Senator Sullivan. Great. Thank you very much.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Sullivan.
I would agree that if we can get an infrastructure bill
going this year that one of the key priorities has to be making
sure the dollars that are put into infrastructure are actually
going into infrastructure and not into legal fees and a long
permitting process.
So next up is Senator Hassan.
STATEMENT OF HON. MAGGIE HASSAN,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Hassan. Well, thank you, Mr. Chair and Ranking
Member Nelson.
And good morning to our witnesses. Thank you both for being
here, and congratulations on your nominations.
Mr. Bradbury, I also have concerns about your role in
developing the justification for enhanced interrogation
techniques and what many people call torture. I just did hear
some of the exchange with Senator Sullivan, and what I'll plan
to do is have my office follow up with you.
I want to turn now to the Department of Transportation
General Counsel's responsibility for agency regulatory reform.
We've spent some time this year in this committee and in the
Committee on Homeland Security and Government Affairs on
regulatory issues. And one of the things that's come up
repeatedly is the issue of how to incorporate quantitative
factors into a cost-benefit analysis. For example, the
Department of Transportation's 2014 rule on backup cameras in
motor vehicles explicitly takes into account, and this is a
quote, values that are difficult or impossible to quantify,
including equity, human dignity, fairness, and distributive
impacts.
The 2014 rule takes into account the idea that the pain of
harming or killing one's own small child by backing up over
them with a car cannot, and this is another quote, fully or
adequately be captured in the traditional measure of the value
of a statistical life.
So, Mr. Bradbury, do you agree with that qualitative
analysis? And as General Counsel, would you continue to take
these kinds of important qualitative values into account when
conducting cost-benefit analyses of proposed regulatory
changes, including actions to change or repeal current rules?
Mr. Bradbury. Well, thank you, Senator Hassan. I appreciate
your focus on these issues. In approaching any regulatory
question, including whether to reform existing regulations, the
number one priority from the Department of Transportation
perspective is safety. So safety and the effect of the rule on
safety and the goal of promoting safety has to take precedence,
and I think Secretary Chao has stressed that.
In tandem with that is it has to be made clear that we have
to comply with the law, and any statutory requirements that
Congress has provided under the laws that the Department of
Transportation enforces, those are mandates that we have to
comply with. So just because we're going through an exercise of
regulatory reform and reviewing regulations doesn't mean that
that process trumps a clear requirement of the law.
So safety and complying with all legal requirements, those
are the top priorities, and then you can get to the question
of, how are the costs and benefits balanced? How do they weigh
and how do you measure them? And I think, you know, I can't
speak for the administration, I'm not in the administration
yet, I haven't worked on these issues for the Department or the
administration. Those quantifications, those analyses, there's
a long set of protocols and traditions that apply to that that
have been brought to bear by administrations of different
parties. So there's consistency in that approach. The Office of
Management and Budget and OIRA in particular oversees that.
Senator Hassan. Right.
Mr. Bradbury. So they review how you calculate things.
There are hundreds of analysts who are career analysts there
who perform that function. Similarly, at a big department like
the Department of Transportation there are many analysts and
career lawyers and economists who are involved in reviewing
that.
So I would not be in a position to simply come in and say,
``Oh, you've got to do it completely differently.''
Senator Hassan. Right.
Mr. Bradbury. So I would look to those traditions. I would
work closely with OMB and obviously I would love to hear your
perspective and the perspective of others on this Committee on
how to approach those issues.
Regulatory reform, though, is very important, you know,
as----
Senator Hassan. Sure. And I thank you. I'm going to cut you
off here just because I want to get to one question to Ms.
Walsh, but I thank you for the answer, and I look forward, if
you are confirmed, to continuing this discussion.
Ms. Walsh, in the month of May, the Export-Import Bank
financed almost $750,000 in exports from my home state of New
Hampshire. I'm sure that many of my colleagues get similar
monthly reports for the positive ways in which EXIM is helping
their constituents. However, the lack of quorum on the bank's
board of directors is holding it back from fully supporting our
Nation's businesses.
Members of this administration, in particular, Secretary
Ross, have spoken about wanting to dramatically reduce the U.S.
trade deficit in the world, but one of the administration's
nominees to fill out the quorum on the bank's board, and, in
fact, to be its president, has been a strong and outspoken
opponent of the bank's very existence.
Can you explain this contradiction? And if your job will be
to promote trade investment and increased market access for
U.S. exporters, how will this hinder your ability to do your
job, and what will you do to fix it? And we're just about out
of time, so we can follow up. But if you have a short answer, I
would ask for the Chair's indulgence for just a second.
Ms. Walsh. Thank you, Senator, for that question. Indeed,
our mission is to focus on exports and FDI. The discussion
regarding EX-IM Bank is not something at this point that I am
able to participate in, but if confirmed, it's certainly
something that we would look at because, as I mentioned before,
we're looking at the whole cycle of success and what it takes
to help our companies export overseas and really begin to gain
more market share.
Senator Hassan. Thank you very much.
The Chairman. Thank you, Senator Hassan.
Senator Klobuchar.
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Thank you. Thank you to both of you.
Ms. Walsh, I enjoyed our meeting. I told you how important
the U.S. Commercial Service is in my state helping tremendously
with exports. What ideas do you have to increase the number of
companies served, and particularly with a focus on rural
companies?
Ms. Walsh. Thank you, Senator, and thank you for the
opportunity to meet with you and your staff yesterday. It was
very encouraging meeting, to hear all of the wonderful things
going on in the State. The Department is focused on really
again the exports.
One of the ways, if confirmed, that we would begin to look
at how do we help companies better is to look at the way that
we're using technology. The Department began to really
integrate that into the program and training at the Commercial
Services on the ground, and that also impacts rural companies
as well. I think looking at the rural companies is a hugely
important area that, if confirmed, that we would take a closer
look at.
Additionally, I think it's important, if confirmed, to look
at what we're doing for small-and medium-sized enterprises that
are women-owned as well as minority-owned and veteran-owned;
and the Department is taking a much closer look at that, and
that will definitely impact rural companies as well.
Senator Klobuchar. And that was your background. You've
done a lot of work in that area promoting women and assist
them.
Ms. Walsh. That's right.
Senator Klobuchar. What role do you believe overseas
offices play? We talked about this in promoting U.S. products
and getting more contracts. I've seen other embassies from
other countries more focused on that, and then oftentimes we
can lose out if we don't have that as a major focus in our
embassies.
Ms. Walsh. Thank you, Senator, for that question. From what
I have heard, if confirmed, I would definitely be looking
closer into that, but Secretary Ross has made it very clear to
the potential Ambassador nominees that this is one of the top
priorities of the administration, and the Commercial Service
officers are the person on point in the country. They're there
to help pick up the businesses from the United States when
they're export-ready and ensure that they get what they need to
gain the market share in the country.
Senator Klobuchar. And as we look at the budget coming up,
we also discussed this, just the concern that if we make any
major cuts to Foreign Commercial Service and to the people that
are stationed overseas, I think it will have the opposite
effect despite, I believe, the good work that you want to do.
So----
Ms. Walsh. Yes, Senator, on that, I have not had access to
the budget discussions. I have not seen any list, but
definitely I would work, if confirmed, with the Secretary and
the Under Secretary to take a close look and analyze not only
the numbers, but the success and what the posts are able to do
at this point.
Senator Klobuchar. Thank you very much for that answer.
Mr. Bradbury, welcome. We do a lot of work with
transportation out of my state, and we've had, of course, the
bridge collapse and other things, and many visits from the
various Secretaries. I share my colleagues' concern on the
torture issue. We're actually in Minnesota, we're the home of
the Center for Victims of Torture, and I carry the Torture
Victims Relief Reauthorization Act every year. So I think I'm
going to focus on those because some of my other colleagues did
with some questions on the record for you.
But I did want to ask you about one issue, Open Skies. You
know, Open Skies agreements are an important part of our
transportation policies under both Democrat and Republican
administrations. These agreements provide consumers, carriers,
and airports with more choice. And I'm concerned, of course,
with recent actions like Norwegian Air and some of the other
countries, UAE, Qatar, and how their airlines are undermining
our U.S. carriers. And it just feels like the opposite of what
the President has been talking about, but this has been going
on before this administration came in. So I'm just hoping that
this administration will work with us to take some action. What
can the Department do to ensure American airline workers are
not harmed by unfair competition where, of course, you have
subsidized airlines? And I would suggest you look at the recent
report that came out on the Qatar airline, which shows that
they've been given the license for the alcohol in the country
and other things, which are subsidies that would never to come
to weight on American airlines.
Mr. Bradbury. Well, thank you, Senator Klobuchar. And I
just want to say as an aside I very much appreciate the work
you've done on the antitrust issues in the Judiciary Committee,
on the Subcommittee on Antitrust, where I think you've been
very effective.
Senator Klobuchar. You're welcome. Thank you.
Mr. Bradbury. Just two quick points. One, I certainly
appreciate and understand the critical importance of Open Skies
bilateral agreements, the freedom they create for U.S. airlines
to compete and to gain access to new markets, and the economic
engine that that is for the United States.
I have to sound a note of caution. This is another area
where I have represented clients in private practice and will
have recusal issues with respect to aviation issues that may
affect--in particular, my client has been American Airlines.
Senator Klobuchar. OK.
Mr. Bradbury. So I will certainly look----
Senator Klobuchar. That's better than another client, so--
--
Mr. Bradbury. Yes. I will certainly look to the advice of
the ethics officers, the senior ethics officer, career ethics
officer, at the Department of Transportation and follow that
advice with respect to those issues.
Senator Klobuchar. All right.
Mr. Bradbury. But I appreciate your interest in this. And I
know it's a big important issue for the Department.
Senator Klobuchar. Well, and Secretary Chao told me when
she was last here that she would be looking into it.
I know I've run out of time, but I did want to note there
were some families out there in red shirts that are with the
families of people who died in the Colgan Air crash, and they
have been working with me and Captain Sullenberger and others
to try to pass a bill on hours for freight air. And so I hope
that you will look at that as well. I'll put a question and
submit it later.
Mr. Bradbury. Thank you for your interest in that. I
definitely will and will enjoy hearing from you on that.
Senator Klobuchar. Thank you.
Mr. Bradbury. I look forward to that.
Senator Klobuchar. Thank you.
The Chairman. Thank you, Senator Klobuchar.
Senator Duckworth.
STATEMENT OF HON. TAMMY DUCKWORTH,
U.S. SENATOR FROM ILLINOIS
Senator Duckworth. Thank you, Mr. Chairman.
Mr. Bradbury, I want to discuss your experience at the
Department of Justice during the Bush administration and why
your authorship of the torture memos not only sunk your
nomination to be Assistant Attorney General during the prior
decade, but made you so unacceptable that the then Majority
Leader offered to confirm 84 stalled Bush administration
nominees, 84, in exchange for the withdrawal of just one
nominee, you. That is quite the ransom you commanded from your
work with the torture memos, that you could actually get 84
people nominated just to have your one nomination withdrawn.
I think it's clear what the Senators objected to then also
remains the reason I am strongly opposed to your nomination
now, your role in crafting the torture memos. You were an
architect of the legal justification for detainee abuse in the
form of waterboarding and other forms of torture. In my
opinion, that alone should disqualify you for future government
service. And while you are nominated to serve at DOT and not at
Justice, your willingness to aid and abet torture demonstrates
a failure of moral and professional character that makes you
dangerous regardless of which agency you serve in.
If confirmed, it's your sworn duty and obligation to serve
the interests of the American public by providing honest and
objective legal analysis to the Department and the
administration. We would rely on your counsel to make sure that
DOT employees do not subvert the law, the intent of Congress,
or the United States Constitution. And unfortunately, as
someone who defended the Constitution of the United States for
23 years in uniform, I have no confidence that you are capable
of carrying out that critical role.
In fact, based on your work on the torture memo, we know
that you are more than willing to use torture legal maneuvers
very much to get around the laws and the Constitution of the
United States. The public should be alarmed by your history of
demonstrating complete deference to a President's policy goals
and the likelihood of continuing this in the Trump
administration.
Mr. Bradbury, let me just make it clear what you justified.
In one of the programs you justified, detainees were sleep
deprived for up to 180 hours, that's 7-1/2 days; forced into
stress positions; sometimes shackled to the ceiling; subject to
rectal hydration and feeding; confined in boxes the size of a
small dog crate. CIA personnel conducted mock executions. One
man was waterboarded to the point that he became completely
unresponsive with bubbles rising through his open full mouth.
Another man was frozen to death. Some of these abuses were
authorized; others were not. But brutality, once sanctioned by
the likes of you, by the likes of you, is not easily contained.
In 2005, the Senate voted 90 to 9 to enact the Detainee
Treatment Act to prohibit cruel, inhuman, or degrading
treatment or punishment after the Supreme Court decided that
terrorism detainees in the U.S. custody were protected by the
Geneva Conventions that you found legal loopholes to allow
torture to continue. Even the DOJ Office of Professional
Responsibility criticized you, in particular, for uncritical
acceptance of the CIA's representations about the torture
program.
In testimony before the Senate Judiciary Committee in 2007,
you defended the President's questionable interpretation of the
Hamdan case where the Supreme Court ruled that President Bush
did not have the authority to set up military tribunals at
Guantanamo by famously, and I quote, your words, ``The
President is always right,'' unquote. This rubberstamp
mentality is extremely dangerous, especially in the Trump
administration regardless of where you might serve.
Let me be clear, Mr. Bradbury, you didn't make America any
safer, and you certainly didn't make the men and women who wore
the uniform of this great nation any safer; quite the opposite.
The actions you helped justify put our troops in harm's way,
put our diplomats deployed overseas in harm's way, and you
compromised our Nation's very values.
As a soldier, I was taught the laws of armed conflict, how
to handle and treat detainees and prisoners, and the importance
of acting in accordance with American values. Your actions at
DOJ undermined that education. And let me tell you, until you
have sat bleeding in a helicopter behind enemy lines like I
did, hoping and praying there was an American who came for you,
and not the enemy, what you did put our men and women who are
behind enemy lines right today in danger.
And I don't care that you say that now you think the laws
that were passed in response to your actions are great and that
you support them, the fact is 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 that you would
do again.
Mr. Chairman, I can't oppose this nomination strongly
enough. I yield back.
The Chairman. Thank you, Senator Duckworth.
Mr. Bradbury, do you want to respond?
Mr. Bradbury. Can I say a few words?
The Chairman. Yes.
Mr. Bradbury. I would just like to say a couple of words.
First, Senator Duckworth, I truly do appreciate the strong
feelings that you hold. I share the feelings about the military
and the potential for actions that may happen to our military
personnel overseas, and that is a critically important set of
issues, and that's one of the reasons why I think Congress made
the judgment to make the standards the same for the military
and for intelligence officers in the 2015 NDAA, National
Defense Authorization Act. That's sensible, I understand that,
and it's a sea change in the laws that we had to grapple with.
I want to stress that many of the practices that you
described were not ones that I addressed or had to review in
terms of legality, and I never approached the project in terms
of attempting to justify anything or achieve any policy result.
I viewed them as very hard questions. If I had my druthers, I
wouldn't have been engaged in having to address those issues,
but when you serve in an office where you're asked to provide
legal advice on the very hardest questions, that's the job, and
that is what I did.
I want to say one thing very important because this has
been repeated, and it's repeated in a couple of the letters,
and, Senator, you referenced it. The testimony I gave was in
2006. It was before the Senate Judiciary Committee when I made
the statement, ``The President is always right,'' and
unfortunately, it was an ill-considered attempt at humor at the
time. I realize it doesn't look that way objectively when you
look at the record. It was an attempt to be ironic. It was
unfortunate.
I can tell you it's the last time I will ever testify
before Congress and try to be funny in that kind of
inappropriate way. I testified the next day before the House
Armed Services Committee, and I made that very clear, that I've
never met anybody who's always right, and this was just
probably a thoughtless attempt on my part to be jocular and to
be humorous.
I also wrote a letter to Chairman Specter and Ranking
Member Leahy just two days later after that hearing in July,
and that's part of the record for that hearing. There is a copy
of the letter, which I provided to the Chairman, and I would
hope it becomes part of the record here because I made it clear
there that I did not ascribe to the sentiment of that
unfortunate statement that I made attempting to be funny. What
I said was, ``I hope this clarification is helpful to the
Committee, and I am sorry if my ill-considered attempt at humor
caused any concern.'' And then I stressed--this was on July 14,
2006, to Senator Leahy and Specter--``Certainly I well
understand that an actual belief that the President can never
be wrong would be wholly inconsistent with my responsibilities
as a legal advisor to the Executive Branch.'' It was an
unfortunate attempt in response to questions to be funny, and
that's why I sent that clarification to try to be clear.
I viewed so much of the work we did on these fraught
national security issues during my time in OLC as an attempt
really to pull back and narrow advice that had been given
previously by the Office by predecessors before my time. Even
with respect to some of the most difficult issues that I think
you have addressed, we really took an effort to do it in a
different way. We didn't rely on the President's authority
under the Constitution, we focused on specific statutes. There
weren't a lot of precedents. We used what we thought was
relevant. We explained all the factors. I put everything in
there, so there is nothing left out in terms of what I
considered. I truly realize and respect that there are
differences of views, that these are issues that reasonable
people will disagree about, and I respect your position on
these issues, and I understand it.
Thank you.
Senator Duckworth. Mr. Chairman, may I ask your indulgence
to submit a few items in the record since the witness is doing
the same?
The Chairman. Sure.
And your letter to Senators Leahy and Specter will be
included without objection.
[The information referred to follows:]
U.S. Department of Justice
Washington, DC, July 14, 2006
Hon. Arlen Specter,
Chairman,
Committee on the Judiciary,
United States Senate,
Washington, DC.
Hon. Patrick J. Leahy,
Ranking Minority Member,
Committee on the Judiciary,
United States Senate,
Washington, DC.
Dear Chairman Specter and Senator Leahy:
I write to clarify one aspect of the testimony I gave before the
Committee on Tuesday, July 11, in the hearing addressing the
implications of the Supreme Court's decision in Hamdan v. Rumsfeld.
Lest there be any doubt or confusion, I wish to make clear to the
Committee that my statement, ``The president is always right,'' made in
response to a question from Senator Leahy, was intended only to be
humorous. I clarified this point in my testimony the next day before
the House Armed Services Committee, in response to a question from
Congressman Cooper:
REP. COOPER: Mr. Bradbury, . . . [y]ou were quoted in the
newspaper yesterday as saying that the president is always
right. And I hope that's a misquote because I've never met an
infallible human being yet----
MR. BRADBURY: Neither have I, Congressman.
REP. COOPER:--with the possible exception of the Pope.
MR BRADBURY: Neither have I, Congressman. I'm glad you brought
that up. I guess that just shows I shouldn't try to be humorous
when I'm testifying. That was a tongue-in-cheek comment. Nobody
is always right, and I certainly didn't mean to say that, other
than as in humor.
I hope this clarification is helpful to the Committee, and I am
sorry if my ill-considered attempt at humor caused any concern.
Certainly, I well understand that an actual belief that the President
can never be wrong would be wholly inconsistent with my
responsibilities as a legal adviser to the Executive Branch.
Sincerely,
Steven. G. Bradbury,
Acting Assistant Attorney General.
Mr. Bradbury. Thank you, Mr. Chairman.
Senator Duckworth. Thank you, Mr. Chairman. I would like to
submit the following documents for the record: the Senate
Intelligence Committee's exhaustive report, which outlines and
details the CIA's detention and interrogation program; three
separate memos from May 2005 that Mr. Bradbury wrote, which
provide detailed and explicit legal justifications for 13
specific interrogation tactics, including waterboarding, sleep
deprivation, cramped confinement, as well as providing new
justification for combining harsh physical and mental
interrogation techniques; a July 2007 memo from Mr. Bradbury
providing legal justification for certain enhanced
interrogation techniques even after Congress passed the
Detainee Treatment Act; the Department of Justice Office of
Professional Responsibility report examining whether Mr.
Bradbury and others provided poor legal advice and violated
professional standards; a letter addressed to members of this
committee from Retired Marine Corps General Charles Krulak
expressing his opposition to this nominee; a letter from 14
other leading human rights groups opposing this nominee.
Thank you, Mr. Chairman.
The Chairman. Without objection.
[The information referred to follows:]
Senate Select Committee on Intelligence Committee, Study of the Central
Intelligence Agency's Detention and Interrogation Program
The report ``Senate Select Committee on Intelligence Committee,
Study of the Central Intelligence Agency's Detention and Interrogation
Program'' is available at http://www.humanrightsfirst.org/uploads/pdfs/
torture/sscistudy1.pdf#page=461
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
______
U.S. Department of Justice
Washington. DC, October 6, 2008
MEMORANDUM FOR THE FILES
Re: October 23, 2001 OLC Opinion Addressing the Domestic Use of
Military Force to Combat Terrorist Activities
The purpose of this memorandum is to advise that caution should be
exercised before relying in any respect on the Memorandum for Alberto
R. Gonzales, Counsel to the President, and William J. Haynes II,
General Counsel, Department of Defense, from John C. Yoo, Deputy
Assistant Attorney General, and Robert J. Delahunty, Special Counsel,
Office of Legal Counsel, Re: Authority for Use of Military Force to
Combat Terrorist Activities Within the United States (Oct. 23, 2001)
(``10/23/01 Memorandum'') as a precedent of the Office of Legal
Counsel, and that certain propositions stated in the 10/23/01
Memorandum, as described below, should not be treated as authoritative
for any purpose.
It is important to understand the context of the 10/23/01
Memorandum. It was the product of an extraordinary--indeed, we hope, a
unique--period in the history of the Nation: the immediate aftermath of
the attacks of 9/11. Perhaps reflective of this context, the 10/23/01
Memorandum did not address specific and concrete policy proposals;
rather it addressed in general terms the broad contours of hypothetical
scenarios involving possible domestic military contingencies that
senior policymakers feared might become a reality in the uncertain wake
of the catastrophic terrorist attacks of 9/11. Thus, the 10/23/01
Memorandum represents a departure, although perhaps for understandable
reasons, from the preferred practice of OLC to render formal opinions
only with respect to specific and concrete policy proposals and not to
undertake a general survey of a broad area of the law or to address
general or amorphous hypothetical scenarios that implicate difficult
questions of law.
We also judge it necessary to point out that the 10/23/01
Memorandum states several specific propositions that are either
incorrect or highly questionable. The memorandum's treatment of the
following propositions is not satisfactory and should not be treated as
authoritative for any purpose:
The memorandum concludes in part V, pages 25-34, that the
Fourth Amendment would not apply to domestic military
operations designed to deter and prevent further terrorist
attacks. This conclusion does not reflect the current views of
this Office. The Fourth Amendment is fully applicable to
domestic military operations, though the application of the
Fourth Amendment's essential ``reasonableness'' requirement to
particular circumstances will be sensitive to the exigencies of
military actions. The 10/23/01 Memorandum itself concludes in
part VI, pages 34-37, that domestic military operations
necessary to prevent or address further catastrophic terrorist
attacks within the United States likely would satisfy the
FourthAmendment's reasonableness requirement, if the Fourth
Amendment were held to apply; thus, the erroneous conclusion in
part V was not necessary to the opinion.
Part V of the memorandum also contains certain broad
statements on page 24 suggesting that First Amendment speech
and press rights and other guarantees of individual liberty
under the Constitution would potentially be subordinated to
overriding military necessities. These statements, too, were
unnecessary to the opinion, are overbroad and general, and are
not sufficiently grounded in the particular circumstances of a
concrete scenario, and therefore cannot be viewed as
authoritative.
The memorandum concludes in part IV(A), pages 16-20, that
the domestic deployment of the Armed Forces by the President to
prevent and deter terrorism would fundamentally serve a
military purpose, rather than a law enforcement purpose, and
therefore the Posse Comitatus Act, 18 U.S.C. 1385 (2000),
would not apply to such operations. Although the ``military
purpose'' doctrine is a well-established limitation on the
applicability of the Posse Comitatus Act, the broad conclusion
reached in part IV(A) of the 10/23/01 Memorandum is far too
general and divorced from specific facts and circumstances to
be useful as an authoritative precedent of OLC.
The memorandum, on pages 20-21, treats the Authorization for
Use of Military Force (``AUMF''), enacted by Congress in the
immediate wake of 9/11, Pub. L. No. 107-40,115 Stat. 224 (Sept.
18, 2001), as a statutory exception to the Posse Comitatus
Act's restriction on the use of the military for domestic law
enforcement. The better view, however, is that a reasonable and
necessary use of military force taken under the authority of
the AUMF would be a military action, potentially subject to the
established ``military purpose'' doctrine, rather than a law
enforcement action.
The memorandum reasons, on pages 21-22, that in the
aftermath of the 9/11 attacks, the Insurrection Act, 10 U.S.C.
333 (2000), would provide general authority for the President
to deploy the military domestically to prevent and deter future
terrorist attacks; whereas, consistent with the longstanding
interpretation of the executive branch, any particular
application of the Insurrection Act to authorize the use of the
military for law enforcement purposes would require the
presence of an actual obstruction of the execution of Federal
law or a breakdown in the ability of state authorities to
protect Federal rights.
For all of the foregoing reasons, we have concluded that
appropriate caution should be exercised before relying in any respect
on the 10/23/01 Memorandum as a precedent of OLC, and that the
particular propositions identified above should not be treated as
authoritative. We have advised the Counsel to the President, the Acting
General Counsel of the Department of Defense, and appropriate offices
within the Department of Justice of these conclusions.
Steven G. Bradbury,
Principal Deputy Assistant Attorney General.
______
U.S. Department of Justice
Washington. DC, January 15, 2009
MEMORANDUM FOR THE FILES
Re: Status of Certain OLC Opinions Issued in the Aftermath of the
Terrorist Attacks of September 11, 2001
The purpose of this memorandum is to confirm that certain
propositions stated in several opinions issued by the Office of Legal
Counsel in 2001-2003 respecting the allocation of authorities between
the President and Congress in matters of war and national security do
not reflect the current views of this Office. We have previously
withdrawn or superseded a number of opinions that depended upon one or
more of these propositions. For reasons discussed herein, today we
explain why these propositions are not consistent with the current
views of OLC, and we advise that caution should be exercised before
relying in other respects on the remaining opinions identified
below.\1\
---------------------------------------------------------------------------
\1\ This memorandum supplements the Memorandum for the Files from
Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office
of Legal Counsel. Re: October 23. 2001 OLC Opinion Addressing the
Domestic Use of Military Force to Combat Terrorist Activities (Oct. 6,
2008). Neither memorandum is intended to suggest in any way that the
attorneys involved in the preparation of the opinions in question did
not satisfy all applicable standards of professional responsibility.
---------------------------------------------------------------------------
The opinions addressed herein were issued in the wake of the
atrocities of 9/11, when policymakers, fearing that additional
catastrophic terrorist attacks were imminent, strived to employ all
lawful means to protect the Nation. In the months following 9/11,
attorneys in the Office of Legal Counsel and in the Intelligence
Community confronted novel and complex legal questions in a time of
great danger and under extraordinary time pressure. Perhaps reflecting
this context, several of the opinions identified below do not address
specific and concrete policy proposals, but rather address in general
terms the broad contours of legal issues potentially raised in the
uncertain aftermath of the 9/11 attacks. Thus, several of these
opinions represent a departure from this Office's preferred practice of
rendering formal opinions addressed to particular policy proposals and
not undertaking a general survey of a broad area of the law or
addressing general or amorphous hypothetical scenarios involving
difficult questions of law.
Mindful of this extraordinary historical context, we nevertheless
believe it appropriate and necessary to confirm that the following
propositions contained in the opinions identified below do not
currently reflect, and have not for some years reflected, the views of
OLC. This Office has not relied upon the propositions addressed herein
in providing legal advice since 2003, and on several occasions we have
already acknowledged the doubtful nature of these propositions.
Congressional Authority over Captured Enemy Combatants
A number of OLC opinions issued in 2002-2003 advanced a broad
assertion of the President's Commander in Chief power that would deny
Congress any role in regulating the detention, interrogation,
prosecution, and transfer of enemy combatants captured in the global
War on Terror. The President certainly has significant constitutional
powers in this area, but the assertion in these opinions that Congress
has no authority under the Constitution to address these matters by
statute does not reflect the current views of OLC and has been
overtaken by subsequent decisions of the Supreme Court and by
legislation passed by Congress and supported by the President. The
following opinions contain variations of this proposition:
1. Memorandum for William J. Haynes II, General Counsel, Department
of Defense, from Jay S. Bybee, Assistant Attorney General,
Office of Legal Counsel, Re: The President's Power as Commander
in Chief to Transfer Captured Terrorists to the Control and
Custody of Foreign Nations at 4-5 (Mar. 13, 2002) (``3/13/02
Transfer Opinion'') (asserting that ``the power to dispose of
the liberty of individuals captured and brought under the
control of United States armed forces during military
operations remains in the hands of the President alone''
because the Constitution does not ``specifically commit[ ] the
power to Congress'') (``The treatment of captured enemy
soldiers is but one of the many facets of the conduct of war,
entrusted by the Constitution in plenary fashion to the
President by virtue of the Commander-in-Chief Clause. Moreover,
it is an area in which the President appears to enjoy exclusive
authority, as the power to handle captured enemy soldiers is
not reserved by the Constitution in whole or in part to any
other branch of the government.'').
2. Memorandum for Daniel J. Bryant, Assistant Attorney General,
Office of Legislative Affairs, from Patrick F. Philbin, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Swift
Justice Authorization Act at 2, 12 (Apr. 8, 2002) (``4/8/02
Swift Justice Opinion'') (``Indeed, Congress may no more
regulatethe President's ability to convene military commissions
or to seize enemy belligerents than it may regulate his ability
to direct troop movements on the battlefield.'') (``Precisely
because [military] commissions are an instrument used as part
and parcel of the conduct of a military campaign, congressional
attempts to dictate their precise modes of operation interfere
with the means of conducting warfare no less than if Congress
were to attempt to dictate the tactics to be used in an
engagement against hostile forces.'').
3. Memorandum for Daniel J. Bryant, Assistant Attorney General,
Office of Legislative Affairs, from John C. Yoo, Deputy
Assistant Attorney General, Office of Legal Counsel. Re:
Applicability of 18 U.S.C. 4001(a) to Military Detention of
United States Citizen at 10 (June 27, 2002) (``6/27/02 Section
4001 Opinion'') (``Congress may no more regulate the
President's ability to detain enemy combatants than it may
regulate his ability to direct troop movements on the
battlefield.'').
4. Memorandum for Alberto R. Gonzales, Counsel to the President,
from Jay S. Bybee, Assistant Attorney General, Office of Legal
Counsel, Re: Standards of Conduct for Interrogation under 18
U.S.C. 2340-2340A at 35, 39 (Aug. 1, 2002) (``8/1/02
Interrogation Opinion'') (``Congress may no more regulate the
President's ability to detain and interrogate enemy combatants
than it may regulate his ability to direct troop movements on
the battlefield.'') (``Any effort by Congress to regulate the
interrogation of battlefield combatants would violate the
Constitution's sole vesting of the Commander-in-Chief authority
in the President.'') (previously withdrawn).
5. Memorandum for William J. Haynes II, General Counsel, Department
of Defense, from John C. Yoo, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Military Interrogation of
Unlawful Enemy Combatants Held Outside the United States at 13,
19 (Mar. 14, 2003) (declassified by DoD Mar. 31, 2008) (``3/14/
03 Military Interrogation Opinion'') (``In our view, Congress
may no more regulate the President's ability to detain and
interrogate enemy combatants than it may regulate his ability
to direct troop movements on the battlefield.'') (``Congress
can no more interfere with the President's conduct of the
interrogation of enemy combatants than it can dictate strategic
or tactical decisions on the battlefield.'') (previously
withdrawn).
OLC has already withdrawn the last two opinions listed above, the
8/1/02 Interrogation Opinion and the 3/14/03 Military Interrogation
Opinion. See Memorandum for the Deputy Attorney General from Daniel B.
Levin, Acting Assistant Attorney General, Office of Legal Counsel, Re:
Legal Standards Applicable under 18 U.S.C. 2340-2340A (Dec. 30,
2004), available at www.usdoj.gov/olc/2004opinions.htm; Letter for
William J. Haynes II, General Counsel, Department of Defense, from
Daniel B. Levin, Acting Assistant Attorney General, Office of Legal
Counsel (Feb. 4, 2005). We have also previously expressed our
disagreement with the specific assertions excerpted from the 8/1/02
Interrogation Opinion:
The August 1, 2002, memorandum reasoned that ``[a]ny effort by
Congress to regulate the interrogation of battlefield
combatants would violate the Constitution's sole vesting of the
Commander-in-Chief authority in the President.'' I disagree
with that view.
Responses of Steven G. Bradbury, Nominee to be Assistant Attorney
General for the Office of Legal Counsel, to Questions for the Record
from Senator Edward M. Kennedy, at 2 (Oct. 24, 2005).
The Federal prohibition on torture, 18 U.S.C. 2340-2340A, is
constitutional, and I believe it does apply as a general matter
to the subject of detention and interrogation of detainees
conducted pursuant to the President's Commander in Chief
authority. The statement to the contrary from the August 1,
2002, memorandum, quoted above, has been withdrawn and
superseded, along with the entirety of the memorandum, and in
any event I do not find that statement persuasive. The
President, like all officers of the Government, is not above
the law. He has a sworn duty to preserve, protect, and defend
the Constitution andfaithfully to execute the laws of the
United States, in accordance with the Constitution.
Responses of Steven G. Bradbury, Nominee to be Assistant Attorney
General for the Office of Legal Counsel, to Questions for the Record
from Senator Richard J. Durbin, at 1 (Oct. 24, 2005).
Here, we record our conclusion that the assertions excerpted above
are not the position of OLC.
It is well established that the President has broad authority as
Commander in Chief to take military actions in defense of the country.
See, e.g., Power to Use the Armed Forces Abroad Without Statutory
Authorization, 4A Op. O.L.C. 185, 187 (1980) (``The power to deploy
troops abroad without the initiation of hostilities is the most clearly
established exercise of the President's general power as a matter of
historical practice.''); Training of British Flying Students in the
United States, 40 Op. Att'y Gen. 58, 62 (1941) (recognizing the
President's authority to ``dispose of troops and equipment in such
manner and on such duties as best to promote the safety of the
country''). Furthermore, this Office has recognized that Congress may
not unduly constrain or inhibit the President's exercise of his
constitutional authority in these areas. See, e.g.. Placing of United
States Armed Forces Under United Nations Operational or Tactical
Control, 20 Op. O.L.C. 182, 185 (1996) (Congress ``may not unduly
constrain or inhibit the President's authority to make and to implement
the decisions that he deems necessary or advisable for the successful
conduct of military missions in the field''). We have no doubt that the
President's constitutional authority to deploy military and
intelligence capabilities to protect the interests of the United States
in time of armed conflict necessarily includes authority to effectuate
the capture, detention, interrogation, and, where appropriate, trial of
enemy forces, as well as their transfer to other nations. Cf, e.g.,
Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality) (describing
important incidents of war).
At the same time. Article I, Section 8 of the Constitution also
grants significant war powers to Congress. We recognize that a law that
is constitutional in general may still raise serious constitutional
issues if applied in particular circumstances to frustrate the
President's ability to fulfill his essential responsibilities under
Article II. Nevertheless, the sweeping assertions in the opinions above
that the President's Commander in Chief authority categorically
precludes Congress from enacting any legislation concerning the
detention, interrogation, prosecution, and transfer of enemy combatants
are not sustainable.
Congress's power to ``define and punish . . . Offences against the
Law of Nations,'' U.S. Const, art. I, 8, cl. 10, provides a basis for
Congress to establish the Federal crime of torture, in accordance with
U.S. treaty obligations under the Convention Against Torture, and the
War Crimes Act offenses, in accordance, for example, with the ``grave
breach'' provisions of the Geneva Conventions. This grant of authority
also provides a basis for Congress to establish a statutory framework,
such as that set forth in the Military Commissions Act of 2006
(``MCA''), for trying and punishing unlawful enemy combatants for
violations of the law of war and other hostile acts in support of
terrorism. Without suggesting that congressional enactment was
necessary to authorize the establishment of military commissions, the
President's support for enactment of the MCA following the Supreme
Court's decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), confirms
this view. The prior opinion of this Office suggesting that Congress
has no role to play concerning the prosecution of enemy combatants is
incorrect. See 4/8/02 Swift Justice Opinion at 17-19. Furthermore, the
power ``[t]o make Rules for the Government and Regulation of the land
and naval Forces,'' U.S. Const, art. I, 8, cl. 14, gives Congress a
basis to establish standards governing the U.S. military's treatment of
detained enemy combatants, including standards for, among other things,
detention, interrogation, and transfer to foreign nations. This grant
of authority would support, for example, the provisions of the Detainee
Treatment Act of 2005 that address the treatment of alien detainees
held in the custody of the Department of Defense. We disagree with the
suggestion in the 3/13/02 Transfer Opinion that this Clause does not
permit Congress to establish standards of conduct for the military's
handling of detainees, but rather ``is limited to the discipline of
U.S. troops.'' Id. at 5.
The Captures Clause of Article I, which grants Congress power to
``make Rules concerning Captures on Land and Water,'' id. cl. 11, also
would appear to provide separate authority for Congress to legislate
with respect to the treatment and disposition of enemy combatants
captured by the United States in the War on Terror. Two of the opinions
identified above reasoned that the Captures Clause grants authority to
Congress only with respect to captured enemy property, such as enemy
vessels seized on the high seas or materiel taken on the battlefield,
and not captured persons, such as the fighters or supporters of al
Qaeda and its affiliates who are detained by the United States in the
global War on Terror. See 4/8/02 Swift Justice Opinion at 16-17; 3/13/
02 Transfer Opinion at 5. This Office has substantial doubts about that
view.
Sources from around the time of the Framing suggest that the
Founders understood battlefield ``captures'' to include the capture of
enemy prisoners. During the Revolutionary War, the Continental Congress
passed legislation concerning not simply the capture of enemy vessels,
but also the capture and treatment of persons on board those vessels.
See, e.g., 4 Journals of the Continental Congress 1774-1789, at 254
(Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1906)
(prohibiting the treatment of persons ``contrary to common usage, and
the practice of civilized nations in war''); 10 Journals of the
Continental Congress 1774-1789, at 295 (Worthington Chauncey Ford ed.,
William S. Hein & Co. 2005) (1908) (``[I]f the enemy will not consent
to exempt citizens from capture, agreeably to the law of nations, the
commissioners be instructed positively to insist on their exchange,
without any relation to rank.''). Likewise, in 1801, Alexander Hamilton
observed that belligerents in war have the right ``to capture the
persons and property of each other.'' Alexander Hamilton, The
Examination, No. 1 (Dec. 17, 1801) (emphasis added), quoted in 3 The
Founders' Constitution at 100 (Philip B. Kurland & Ralph Lemer eds.
1997). See id. (``War, of itself, gives to the parties a mutual right
to kill in battle, and to capture the persons and property of each
other. This is a rule of natural law; a necessary and inevitable
consequence of the state of war.''). Other early commentators similarly
understood the ``law of capture'' to encompass the capture of prisoners
of war, as well as the seizure of property. See Richard Lee, Treatise
of Captures in War 45-63 (2d ed. 1803) (tracing the evolution of the
law concerning definition and treatment of captured enemies); Emmerich
de Vattel, The Law of Nations 394 (Joseph Chitty ed., London, S. Sweet
1834) (1758) (explaining that persons or things ``captured'' by the
enemy are usually freed as soon as they fall into the hands of soldiers
belonging to their own nation); G.F. Martens, An Essay on Privateers,
Captures, and Particularly on Recaptures (Thomas Hartwell trans.,
Lawbook Exchange 2004) (1801) (addressing the treatment by various
nations of prisoners of war as part of the law of captures).
The Supreme Court also presumed this understanding of the Captures
Clause in the early decision Brown v. United States, 12 U.S. (8 Cranch)
110 (1814), in which Chief Justice Marshall considered whether by
virtue of a declaration of war the President possessed authority to
detain enemy aliens (both enemy civilians and enemy combatants) and to
confiscate their property. After quoting the Captures Clause, the Court
noted that Congress had enacted laws regulating both enemy aliens and
their property in the War of 1812, and concluded that those laws should
govern the actions of the Executive Branch in the conflict. See id. at
126 (``The act concerning alien enemies, which confers on the president
very great discretionary powers respecting their persons, affords a
strong implication that he did not possess those powers by virtue of
the declaration of war.''); see id. (citing an ``act for the safe
keeping and accommodation of prisoners of war''). Insofar as the early
Supreme Court, relying on the Captures Clause, commented favorably on
Congress's authority to regulate the treatment of prisoners of war--
and, indeed, actually suggested that the exercise of such congressional
authority counseled against locating the authority to detain enemy
prisoners solely in the general war powers of the President--we have
substantial doubts about the assertion that the Captures Clause grants
no power to Congress with regard to the detention and treatment of
enemy combatants.\2\
---------------------------------------------------------------------------
\2\ The survey of early historical examples in the 3/13/02 Transfer
Opinion similarly does not support that opinion's assertion that an
``unbroken historical chain'' recognizes ``exclusive Presidential
control over enemy soldiers.'' 3/13/02 Transfer Opinion at 19. To the
contrary, that history very usefully demonstrates a number of examples
(such as the statute cited in Brown) where Congress passed legislation
addressing the circumstances of captured soldiers. Although many of
those measures simply authorized Presidential action, and were careful
to preserve broad discretion for the President, they reflect an early
understanding that Congress, as well as the President, has relevant
authority in this area.
---------------------------------------------------------------------------
For all these reasons, the identified assertions in the five
opinions excerpted above do not reflect the current views of OLC and
should not be treated as authoritative. This Office previously has
withdrawn two of those opinions in their entirety. Appropriate caution
should be exercised before relying in other respects on the remaining
three opinions.
Interpreting FISA and its Applicability to Presidential Authority
A number of classified OLC opinions issued in 2001-2002 relied upon
a doubtful interpretation of the Foreign Intelligence Surveillance Act
(``FISA''). As the Department has previously acknowledged, these
opinions reasoned that unless Congress had made clear in FISA that it
sought to restrict Presidential authority to conduct warrantless
surveillance activities in the national security area, FISA must be
construed to avoid such a reading, and these opinions asserted that
Congress had not included such a clear statement in FISA. See Letter
for Senator Dianne Feinstein and Senator Sheldon Whitehouse, from Brian
A. Benczkowski, Principal Deputy Assistant Attorney General, Office of
Legislative Affairs (May 13, 2008). All but one of these opinions have
been withdrawn or superseded by later opinions of this Office. The
remaining opinion containing this questionable proposition is:
6. Memorandum for William J. Haynes II, General Counsel, Department
of Defense, from John C. Yoo, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: [Classified Matter] at 13
(Feb. 8, 2002) (``2/8/02 Classified Opinion'').
The proposition paraphrased above interpreting FISA and its
applicability to Presidential authority does not reflect the current
analysis of the Department of Justice and should not be relied upon or
treated as authoritative for any purpose. The general rule of
construction that statutes will not be interpreted to conflict with the
President's constitutional authorities absent a clear statement that
Congress intended to do so is unremarkable and fully consistent with
longstanding precedents of this Office. See, e.g.. Memorandum for Alan
Kreczko, Legal Adviser to the National Security Council, from Walter
Dellinger, Assistant Attorney General, Office of Legal Counsel, Re:
Applicability of 47 U.S.C. section 502 to Certain Broadcast Activities
at 3 (Oct. 15, 1993) (``The President's authority in these areas is
very broad indeed, in accordance with his paramount constitutional
responsibilities for foreign relations and national security. Nothing
in the text or context of [the statute] suggests that it was Congress's
intent to circumscribe this authority. In the absence of a clear
statement of such an intent, we do not believe that a statutory
provision of this generality should be interpreted to restrict the
President's] constitutional powers'' to conduct the Nation's foreign
affairs and to protect the national security). The courts apply the
same canon of statutory interpretation. See, e.g., Department of Navy
v. Egan, 484 U.S. 518, 530 (1988) (``[U]nless Congress has specifically
provided otherwise, courts traditionally have been reluctant to intrude
upon the authority of the Executive in military and national security
affairs.'') However, the application of this canon of construction to
conclude that FISA does not contain a clear statement that Congress
intended the statute to apply to the President's exercise of his
constitutional authority is problematic and questionable, given FISA's
express references to the President's authority. The statements to this
effect in earlier opinions of OLC were not supported by convincing
reasoning.
As set forth in the Justice Department's white paper of January 19,
2006, addressing the legal basis for the surveillance activities of the
National Security Agency publicly described by the President in
December 2005, the Department's more recent analysis is different:
Congress, through the Authorization for Use of Military Force of
September 18, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001)
(``AUMF''), confirmed and supplemented the President's Article II
authority to conduct warrantless surveillance to prevent further
catastrophic attacks on the United States, and such authority confirmed
by the AUMF could reasonably be, and therefore had to be, read
consistently with FISA, which explicitly contemplated that Congress
could authorize electronic surveillance by a statute other than FISA.
See U.S. Department of Justice, Legal Authorities Supporting the
Activities of the National Security Agency Described by the President
(Jan. 19, 2006) (``NSA Legal Authorities White Paper''). As the January
2006 white paper pointed out, ``[i]n the specific context of the
current armed conflict with al Qaeda and related terrorist
organizations. Congress by statute [in the AUMF] had confirmed and
supplemented the President's recognized authority under Article II of
the Constitution to conduct such surveillance to prevent further
catastrophic attacks on the homeland.'' Id. at 2. The white paper
further explained the particular relevance of the canon of
constitutional avoidance to the NSA activities: ``Even if there were
ambiguity about whether FISA, read together with the AUMF, permits the
President to authorize the NSA activities, the canon of constitutional
avoidance requires reading these statutes to overcome any restrictions
in FISA and Title III, at least as they might otherwise apply to the
congressionally authorized armed conflict with al Qaeda.'' Id. at 3.\3\
---------------------------------------------------------------------------
\3\ We recognize that the Supreme Court in Hamdan v. Rumsfeld
refused to read the AUMF to authorize the President to convene military
commissions in contravention of the Court's interpretation of the
Uniform Code of Military Justice. See 548 U.S. at 557-58. The
Department's 2006 white paper, however, was based on the view that
FISA, which expressly contemplated that Congress may authorize
warrantless surveillance in a separate statute, such as the AUMF, was
more like the statute at issue in Hamdi, 18 U.S.C. 4001(a), which
prohibits detention of a U.S. citizen, ``except pursuant to an act of
Congress.'' See NSA Legal Authorities White Paper at 20-23.
---------------------------------------------------------------------------
Accordingly, because the proposition highlighted above does not
reflect the current views of this Office, appropriate caution should be
exercised before relying in any respect on the 2/8/02 Classified
Opinion as a precedent of OLC.
Presidential Authority to Suspend Treaties
Two opinions of OLC from 2001 and 2002 asserted that the President,
under our domestic law, has unconstrained discretion to suspend treaty
obligations of the United States at any time and for any reason as an
aspect of the ``executive Power'' vested in him by the Constitution:
7. Memorandum for John B. Bellinger III, Legal Adviser to the
National Security Council, from John C. Yoo, Deputy Assistant
Attorney General, and Robert J. Delahunty, Special Counsel,
Office of Legal Counsel, Re: Authority of the President to
Suspend Certain Provisions of the ABM Treaty at 12, 13 (Nov.
15, 2001) (``11/15/01 ABM Suspension Opinion'') (``The
President's power to suspend treaties is wholly discretionary,
and may be exercised whenever he determines that it is in the
national interest to do so. While the President will ordinarily
take international law into account when deciding whether to
suspend a treaty in whole or in part, his constitutional
authority to suspend a treaty provision does not hinge on
whether such suspension is or is not consistent with
international law.'') (footnote omitted) (``The power
unilaterally to suspend a treaty subsumes complete and partial
suspension: both kinds of suspension authority are comprehended
within the `executive Power,' U.S. Const, art. II, 1, cl. 1.
. . .'').
8. Memorandum for Alberto R. Gonzales, Counsel to the President, and
William J. Haynes II, General Counsel, Department of Defense,
from Jay S. Bybee, Assistant Attorney General, Office of Legal
Counsel, Re: Application of Treaties and Laws to al Qaeda and
Taliban Detainees at 11-13 (Jan. 22, 2002) (``1/22/02 Treaties
Opinion'') (reasoning that the President has ``unrestricted
discretion, as a matter of domestic law, in suspending
treaties'').
The highlighted assertions were based on generalizations from
historical examples in which Presidents have acted in certain limited
circumstances to terminate or suspend treaties. See, e.g., 11/15/01 ABM
Suspension Opinion at 14-18.
We have previously concluded in a file memorandum that the
reasoning supporting these assertions is unconvincing. See Memorandum
to File from C. Kevin Marshall, Deputy Assistant Attorney General, and
Bradley T. Smith, Attorney-Adviser, Office of Legal Counsel, Re: Legal
Issues Regarding Proposed Broadcasts into Cuba at 2, 11-13 (May 23,
2007) (``Cuba Broadcasting File Memorandum ``). We observed that
Presidents have traditionally suspended treaties where authorized by
Congress or where suspension was authorized by the terms of the treaty
or under recognized principles of international law, such as where
another party has materially breached the treaty or where there has
been a fundamental change in circumstances. See id. at 6-13. We found
the two opinions' treatment of this history to be unpersuasive, their
analysis equating treaty termination with treaty suspension to be
doubtful, and their consideration of the Take Care Clause to be
insufficient. See id. at 11-13. For those reasons, in 2006 we advised
the Legal Adviser to the National Security Council and the Deputy
Counsel to the President not to rely on the two opinions identified
above to the extent they suggested that the President has unlimited
authority to suspend a treaty beyond the circumstances traditionally
recognized. Id. at 13. We noted that the President, in fact, had not
relied upon the broad assertions of authority to suspend treaties
contained in the 11/15/01 ABM Suspension Opinion and the 1/22/02
Treaties Opinion; the President decided not to suspend the Third Geneva
Convention as to Afghanistan, and he did not suspend the ABM treaty
(instead, the United States gave formal notice of withdrawal from the
treaty pursuant to its terms). Cuba Broadcasting File Memorandum at 13.
In summarizing the advice given in 2006 concerning the reliability of
the 2001 and 2002 opinions, our file memorandum emphasized that
although we questioned the reasoning in these opinions, we had no
occasion to make a determination about the extent of the President's
authority to suspend treaties:
The above critique is not meant to be a determination that
under the Constitution the President lacks authority to suspend
treaties absent authorization from Congress, the text, or
background law. The White House did not directly ask that
question [in 2006], and we did not purport to resolve it. There
are arguments to be made based on the Vesting Clause and other
provisions of Article II, as well as history. Other prior
opinions have suggested that the President could have plenary
authority to terminate treaties, and one can find scholars
supporting such a view. The issue, however, is not nearly as
simple or clear as the [11/15/01 ABM Suspension Opinion] and
[the 1/22/02 Treaties Opinion] indicated, and we therefore are
no longer willing to advise the President to act in reliance
upon those memoranda's more sweeping claims.
Id. (citation omitted).
We adhere to the 2007 Cuba Broadcasting File Memorandum, and,
accordingly, we confirm that the highlighted propositions from the 11/
15/01 ABM Suspension Opinion and the 1/22/02 Treaties Opinion do not
reflect the current views of this Office and should not be treated as
authoritative, and that appropriate caution should be exercised before
relying upon these opinions in other respects.
``National Self-Defense'' as a Justification for Warrantless Searches
A 2001 OLC opinion addressing The constitutionality of proposed
FISA amendments asserted the view that judicial precedents approving
the use of deadly force in self-defense or to protect others justified
the conclusion that warrantless searches conducted to defend the Nation
from attack would be consistent with the Fourth Amendment:
9. Memorandum for David S. Kris, Associate Deputy Attorney General,
from John C. Yoo, Deputy Assistant Attorney General, Office of
Legal Counsel, Re: Constitutionality of Amending Foreign
Intelligence Surveillance Act to Change the ``Purpose''
Standard for Searches at 8 (Sept. 25, 2001) (``9/25/01 FISA
Opinion'') (reasoning that because the Government's post-9/11
interest in ``preventing terrorist attacks against American
citizens and property within the continental United States''
implicated the ``right to self-defense . . . of the Nation and
of its citizens,'' and because the courts had recognized that
``deadly force is reasonable under the Fourth Amendment if used
in self-defense or to protect others,'' it was appropriate to
conclude that ``[i]f the government's heightened interest in
self-defense justifies the use of deadly force, then it
certainly would also justify warrantless searches'').
We believe that this reasoning inappropriately conflates the Fourth
Amendment analysis for government searches with that for the use of
deadly force.
We do not doubt that the existence of a government interest in
preventing catastrophic terrorist attacks is highly relevant in
determining whether a particular search would be ``reasonable'' under
the Fourth Amendment. Although warrants are often required in the
criminal law context, the Supreme Court has recognized warrantless
searches to be ``reasonable'' in a variety of situations involving
``special needs'' that go beyond the routine interest in law
enforcement. E.g., Board of Educ. v. Earls, 536, U.S. 822, 828 (2002).
Foreign intelligence collection may fit squarely within the area of
``special needs, beyond the normal need for law enforcement,''
particularly where it occurs in the midst of an ongoing armed conflict
and for the purpose of preventing a future terrorist attack. See NSA
Legal Authorities White Paper at 37. Accordingly, as explained at
length in the Department's January 2006 white paper, warrantless
searches for such purposes may well be ``reasonable'' and consistent
with the Fourth Amendment. Id. To the extent that the 9/25/01 FISA
Opinion advances that straightforward proposition, we have no
disagreement.
However, the 9/25/01 FISA Opinion's reliance on court decisions
involving the use of deadly force suggests a ``self-defense'' rationale
whereby the purpose behind a search would, standing alone, justify the
search for purposes of the Fourth Amendment. The Supreme Court has
recognized that the use of deadly force may be ``reasonable'' under the
Fourth Amendment where the ``officer has probable cause to believe that
the suspect poses a threat of serious physical harm either to the
officer or to others.'' Tennessee v. Garner, 471 U.S. 1, 12 (1985); see
also Graham v. Connor, 490 U.S. 386, 392 (1989). Under this rule, the
circumstances in which deadly force may be employed are highly fact-
dependent and require a showing that the officer believed that the
suspect posed an imminent threat of harm. The 9/25/01 FISA Opinion's
assertion that ``[i]f the government's heightened interest in self-
defense justifies the use of deadly force, then it certainly would also
justify warrantless searches'' does not adequately account for the
fact-dependent nature of the Fourth Amendment's ``reasonableness''
review, and does not expressly recognize that the circumstantial
factors relevant to the Tennessee v. Garner self-defense analysis are
not necessarily the same as those that may determine the constitutional
reasonableness of a particular search, both in its inception and in its
scope.
Accordingly, the highlighted reasoning in the 9/25/01 FISA Opinion
does not reflect the current views of OLC.
* * *
For all the foregoing reasons, the propositions highlighted in the
nine opinions identified above do not reflect the current views of the
Office of Legal Counsel and should not be treated as authoritative for
any purpose. A number of the opinions that contained these propositions
have been withdrawn or superseded and do not constitute precedents of
this Office; caution should be exercised before relying in other
respects on the remaining opinions.
We have advised the Attorney General, the Counsel to the President,
the Legal Adviser to the National Security Council, the Principal
Deputy General Counsel of the Department of Defense, and appropriate
offices within the Department of Justice of these conclusions.
Steven G. Bradbury,
Principal Deputy Assistant Attorney General.
______
Department of Justice's Office of Professional Responsibility Report on
the Investigation into the Office of Legal Counsel's Memoranda
Concerning Issues Relating to the Central Intelligence Agency's Use of
`Enhanced Interrogation Techniques' on Suspected Terrorists
The report ``Department of Justice's Office of Professional
Responsibility Report on the Investigation into the Office of Legal
Counsel's Memoranda Concerning Issues Relating to the Central
Intelligence Agency's Use of ``Enhanced Interrogation Techniques'' on
Suspected Terrorists'' is available at https://www.aclu.org/files/pdfs/
natsec/opr20100219/20090729_OPR_Final_Report_with_20100719_declassifica
tions.pdf
______
United States Marine Corps
June 26, 2017
Senator John Thune,
Chairman,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Senator Bill Nelson,
Ranking Member,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Dear Chairman Thune and Ranking Member Nelson,
For over a decade, I have been part of a group of retired generals
and admirals of the U.S. Armed Forces who have voiced our opposition to
torture. I write to urge you to oppose the nomination of Steven G.
Bradbury for the position of Department of Transportation general
counsel.
In his role as acting head of the Department of Justice's Office of
Legal Counsel (OLC), 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. 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.
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 constituted 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.
Semper Fidelis,
Charles C. Krulak
General, USMC (Ret.)
31st Commandant of the Marine Corps
______
June 22, 2017
To:
Chairman John Thune
Ranking Member Bill Nelson
Committee on Commerce, Science, and Transportation
CC: All Other Senators
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.'' \1\ 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.\2\
---------------------------------------------------------------------------
\1\ See ``The Torture Documents,'' The Rendition Project, available
at: https://www.therendi
tionproject.org.uk/documents/torture-docs.html.
\2\ See Torture Act 18 U.S.C. Sec. 2340 (1994); Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted December 10, 1984, G.A. Res. 39/46, annex, 39 U.N. GAOR Supp.
(No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26,
1987, art. 7, The U.S. ratified Convention against Torture in 1994.
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx;
International Covenant on Civil and Political Rights (ICCPR), adopted
December 16, 1966, G.A. Res. 2200A (XXI), entered into force March 23,
1976, art. 2. The U.S. ratified the ICCPR in 1992.
---------------------------------------------------------------------------
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 (CIA) 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.\3\ The DOJ Office of Professional
Responsibility (OPR) reviewed Mr. Bradbury's ``torture memos'' and
determined that they raised questions about
---------------------------------------------------------------------------
\3\ Amanda Terkel, ``Justice Department Lawyer to Congress: `The
President is Always Right,' '' Think Progress, July 12, 2006, available
at: https://thinkprogress.org/justice-department-lawyer-to-congress-
the-president-is-always-right-1ce40cf3ab61.
---------------------------------------------------------------------------
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.\4\ 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 advocacy to achieve a desired
outcome.'' \5\
---------------------------------------------------------------------------
\4\ ``Investigation into the Office of Legal Counsel's Memoranda
Concerning Issues Relating to the Central Intelligence Agency's Use of
`Enhanced Interrogation Techniques' on Suspected Terrorists,'' U.S.
Department of Justice Office of Professional Responsibility, July 29,
2009, available at: https://www.aclu.org/files/pdfs/natsec/opr20100219/
20090729_OPR_Final_Report
_with_20100719_declassifications.pdf.
\5\ Id.
---------------------------------------------------------------------------
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 (DTA), legislation that passed the
Senate with a vote of 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.\6\
---------------------------------------------------------------------------
\6\ Jane Mayer, The Dark Side (New York: Doubleday, 2008): 321-322.
---------------------------------------------------------------------------
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.'' \7\ 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.\8\
---------------------------------------------------------------------------
\7\ Steven Bradbury, ``Memorandum for John A. Rizzo Acting General
Counsel, Central Intelligence Agency,'' U.S. Department of Justice
Office of Legal Counsel, July 20, 2007, available at: https://
www.justice.gov/olc/file/886296/download
\8\ ``Committee Study of the Central Intelligence Agency's
Detention and Interrogation Program,'' Executive Summary, Senate Select
Committee on Intelligence, December 13, 2012, 435-436, available at:
https://www.feinstein.senate.gov/public/_cache/files/7/c/7c85429a-ec38-
4bb5
-968f-289799bf6d0e/D87288C34A6D9FF736F9459ABCF83210.sscistudy1.pdf
---------------------------------------------------------------------------
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.
Sincerely,
American Civil Liberties Union
Appeal for Justice
Center for Constitutional Rights
Center for Victims of Torture
The Constitution Project
Council on American-Islamic Relations
Defending Rights & Dissent
Human Rights First
Human Rights Watch
The Leadership Conference on Civil and Human Rights
National Religious Campaign Against Torture
Open Society Policy Center
Physicians for Human Rights
Win Without War
The Chairman. Senator Blumenthal is up next.
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thanks, Mr. Chairman.
Thank you both for your willingness to serve.
Mr. Bradbury, in your questionnaire for this Committee, I
think you were asked whether you have been the subject of a
complaint to any, quote, professional association. How did you
answer that question?
Mr. Bradbury. I don't believe I've been subject of a
complaint.
Senator Blumenthal. You answered the question no, correct?
Is that answer correct?
Mr. Bradbury. Yes.
Senator Blumenthal. I have, and I would like it to be
admitted into the record, Mr. Chairman, if there's no
objection, a New York Times article of May 19, 2009, reporting
a complaint to the Bar associations of four states and the
District of Columbia regarding you and a number of other
attorneys relating to legal opinions that you provided as a
member of the Bush administration. Are you familiar with that
set of complaints?
Mr. Bradbury. I haven't seen them. I heard the report of
it, and we checked with the Bar on that, and they don't have a
record of a complaint. I think what happens, Senator, as I
understand it, is someone files something, and there's a period
of time, and then there has to be some procedure taken at the
Bar office, and then I would have been notified, and I was not
notified that I needed to do anything. So----
Senator Blumenthal. Were you aware of those complaints when
you answered your questionnaire?
Mr. Bradbury. I was aware that there had been reports in
the media of it. I was aware at the time of the reports in the
media. And that's why I said I checked with the D.C. Bar to see
if there was a record of a formal complaint. And there must be
some process that happens before it becomes a formal complaint
proceeding.
Senator Blumenthal. Did you check with the Bars of the four
states where those complaints were filed?
Mr. Bradbury. Well, I'm only a member of the D.C. Bar. That
would have been the only one that would pertain to me. I
believe some of the other people who were discussed in the
media reports included Attorney General Mukasey and several
others.
Senator Blumenthal. But the questionnaire asks whether you
have, quote, been the subject of a complaint to any
professional association?
Mr. Bradbury. Yes.
Senator Blumenthal. Wouldn't the correct answer to that
have been yes?
Mr. Bradbury. Well, my understanding would be we asked the
Bar and the Bar said there was not a complaint that they had a
record of. So that's--I think I was----
Senator Blumenthal. Well, whether or not there was a
record, there was a complaint.
Mr. Bradbury. I haven't seen this document, and I--so I----
Senator Blumenthal. In your questionnaire, you reported
things as minuscule as having been a sandwich maker in college.
Mr. Bradbury. Well, that was a job that fell within the
time period that I was required to----
Senator Blumenthal. Well, I would suggest respectfully that
perhaps you may want to reconsider that response and amend your
questionnaire. And I would like this article entered into the
record. And with your permission, Mr. Chairman, I would like to
suggest that the D.C. Bar be asked to respond as to where the
complaint is or was, whether it was ever formally filed, and
whether the procedure was started for pursuing it.
The Chairman. Mr. Bradbury, you indicated that you don't
have any knowledge of that?
Mr. Bradbury. I don't know internally within the bar what
the procedure is as I sit here. And so----
Senator Blumenthal. Let me move on for the moment, and I'll
follow up in written questions.
You indicated that you would recuse yourself with respect
to Takata. Will you recuse yourself as to any of the successor
companies or interests that purchase any of the assets of
Takata, since it's now in bankruptcy? And will you also recuse
yourself as to any of the issues concerning liability that
might pertain to other airbag manufacturers or automobile
manufacturers that use those airbags, since the same legal and
factual issues will be involved in all of the potential
liability?
Mr. Bradbury. Well, as I've indicated to Senator Nelson, I
certainly will recuse myself from all aspects of those recall
issues relating to the Takata airbag issues. So----
Senator Blumenthal. I'm not asking about recall issues, I'm
asking about liability for severe injuries and deaths caused by
airbags that may use, among other substances, ammonium
nitrate----
Mr. Bradbury. Yes.
Senator Blumenthal.--which has been found in Takata to be
very relevant, and with respect to those other airbag
manufacturers or automobile manufacturers be relevant as well.
Will you recuse yourself from all of those issues relating to
the automobile and airbag manufacturers?
Mr. Bradbury. Everything related to the airbag issues. So
the liability aspects that you describe would certainly be
related to that. And with respect to successor entities, that
was another question I think Senator Nelson asked, and I did
make it clear that I viewed the successor companies or
successor entities as part of that.
Senator Blumenthal. And while we're on the subject of
recusal, since you represented a number of airlines, I believe,
American Airlines, Delta Airlines--which others have you----
Mr. Bradbury. American Airlines is the one in recent years
that I've represented.
Senator Blumenthal. How about in previous years?
Mr. Bradbury. Well, many years ago, at my other firm, I
represented another airline with respect to competition issues.
Senator Blumenthal. Will you recuse yourself as to those
airlines?
Mr. Bradbury. As I've indicated, I certainly will recuse
myself with respect to American Airlines. Any particular matter
that has a direct or substantial effect on American Airlines,
I'm recused under the statute for one year, under the ethics
pledge for two years, if I were to be confirmed. And then, of
course, any--Senator Blumenthal, any, as you know, any matter
that I actually handled for American Airlines, where I was
involved, I would be recused from completely permanently.
So the answer to that is yes. American is the one that I
have been active on in recent years before the Department of
Transportation.
Senator Blumenthal. Well, I appreciate your response to my
questions. And I have a number of additional questions with
respect to competition in the airline industry, practices of
airlines, the need for more competition, the excessive
consolidation that's taken place in the industry, the need for
passenger bill of rights, which I have introduced to protect
against some of these abuses, and I will submit those questions
for the record because my time has expired.
[The article referred to follows:]
The New York Times
Advocacy Groups Seek Disbarment of Ex-Bush Administration Lawyers
By Scott Shane--May 18, 2009
WASHINGTON--A coalition of left-wing advocacy groups filed legal
ethics complaints on Monday against 12 former Bush administration
lawyers, including three United States attorneys general, whom the
groups accuse of helping to justify torture.
The coalition, called Velvet Revolution, asked the bar associations
in four states and the District of Columbia to disbar the lawyers,
saying their actions violated the rules of professional responsibility
by approving interrogation methods, including waterboarding, that
constituted illegal torture.
By writing or approving legal opinions justifying such methods, the
advocates say, the Bush administration lawyers violated the Geneva
Conventions, the Convention Against Torture and American law.
Kevin Zeese, a longtime activist and lawyer who signed the
complaints on behalf of Velvet Revolution, said the groups were acting
because the Obama administration had resisted calls for a criminal
investigation of abuse of prisoners under the Bush administration.
The Obama administration has not ruled out the possibility of
professional disciplinary action being taken against some of those
involved.
``The torture issue needs to be taken out of the hands of
politicians if it is going to be dealt with as the war crimes that it
is,'' Mr. Zeese said.
John C. Yoo wrote some of the legal opinions in dispute. Credit
Mandel Ngan/Agence France-Presse--Getty Images
The complaints are available online at the group's website,
www.velvetrevo
lution.us/torture_lawyers/index.php.
The filings come as the Justice Department's ethics office, the
Office of Professional Responsibility, completes a report on the
department lawyers who wrote opinions authorizing harsh interrogations.
The report, in the works for nearly five years and expected to be
released in the next few weeks, is said to be highly critical of some
authors of the opinions, including John C. Yoo, a senior official at
the department's Office of Legal Counsel in 2002, and his boss, Jay S.
Bybee.
The Velvet Revolution complaint also names Steven G. Bradbury, who
headed the legal counsel office from 2005 to 2009; the three attorneys
general, John Ashcroft, Alberto R. Gonzales and Michael B. Mukasey;
Michael Chertoff and Alice S. Fisher, who headed the Justice
Department's criminal division; two former Pentagon officials, Douglas
J. Feith and William J. Haynes II; and two former White House lawyers,
Timothy E. Flanigan and David S. Addington.
Legal experts are divided over the likely effect of such
complaints.
A complaint filed last year against Mr. Yoo, a Berkeley law
professor who remains a member of the Pennsylvania bar, was rejected by
that state's bar association, in part because the Justice Department
was already investigating Mr. Yoo's role in the interrogation
memorandums.
Mr. Yoo has often defended his role in writing the legal opinions,
noting that they were written in the anxious months after the terrorist
attacks of Sept. 11, 2001, and were intended only to outline the limits
of the law, not to advise policy makers on what methods to use.
But one interrogation opinion written primarily by Mr. Yoo was
later withdrawn by the Justice Department, which considered it overly
broad and poorly reasoned.
The Chairman. Thank you, Senator Blumenthal.
Senator Young.
STATEMENT OF HON. TODD YOUNG,
U.S. SENATOR FROM INDIANA
Senator Young. Thank you, Chairman.
Mr. Bradbury, I really enjoyed our visit, as I did with Ms.
Walsh, in my office.
Ms. Walsh. Thank you.
Senator Young. So it's good to see you. I really
appreciate, as I said, when we visited your interest in
serving, Mr. Bradbury, the sacrifices associated with that, and
I appreciate your enduring the scrutiny we've come to associate
with these hearings.
In the aftermath of the Takata incident, which has been
invoked numerous times, you were hired as a part of an
eminently qualified team of lawyers to bring swift resolution
to the Takata airbag recall effort and the related
investigation. As the legal representative of TK Holdings, the
parent company of Takata, you played an important role in
constructing a solution to one of the largest automotive safety
recalls in the history of this country. As somebody who just
practiced law for a couple of years, I want to commend you for
your exemplary legal work as you collaborated with NHTSA to
construct a model for addressing safety recalls of this
magnitude.
Could you please speak to the complexity of this recall and
how it might lay the groundwork for future automotive safety
recalls of this size?
Mr. Bradbury. Yes, thank you, Senator. It really is unique.
It's, I think, the largest, at this point, set of related
automotive safety recalls in history, hugely complex because of
all of the different automakers involved. And that's why
there's a coordinated remedy program with a coordinated remedy
order that NHTSA crafted. And there's an independent monitor at
the center of that to orchestrate this because I think there
are 13 automakers involved and, as was said by Senator Nelson,
tens of millions of devices that will need to be replaced in
cars, so hugely complicated.
And moreover, as Senator Nelson said, it's staged because
it's a problem that occurs over time. And all of this needed to
be worked out by the career lawyers and the engineers at NHTSA.
And really what I was doing as an attorney in this case for the
company was not really litigating against NHTSA and trying to
resist and stop this from happening, we were very proactive
from the beginning in terms of bringing the information
together, disclosing irregularities and issues that were
problems, producing millions of pages of documents, and then
working with NHTSA to craft these consent orders that create
these recalls and make them go forward and expand, obviously, a
long, long way to go. And there needs to be a lot of work done.
Senator Young. Sure.
Mr. Bradbury. But that's the kind of work that we did. I
think it demonstrates the kind of power and effectiveness that
NHTSA can have if it uses the tools that Congress has given it
to address these sorts of problems. So I think it's
groundbreaking.
Senator Young. I would presume over the course of preparing
for this legal work and the course of the work itself, you
acquired extensive knowledge about automotive safety, the
automobile sector, about the legal issues surrounding auto
safety. You no doubt acquired skills about related to the
structure that you put in place and knowledge of it, right? In
fact, you're the foremost expert arguably on that. Do you think
in your future role, all these things would help you serve
effectively in that role, this background?
Mr. Bradbury. Well, thank you, Senator. I do. I certainly
gained a familiarity with NHTSA and with its authorities and
with the people who work there. So I look forward to
collaborating closely with the Chief Counsel and with NHTSA to
address safety issues certainly in other areas. I won't be
involved at all with Takata and the recalls of the airbag
issues, but I have great respect for the people, for the
process, and for the focus on the safety mission.
Senator Young. Well, thank you again for your appearance
here today.
And I'm actually going to yield back the balance of my
time.
The Chairman. Thank you, Senator Young.
Senator Nelson, anything else for the good of the record?
Senator Nelson. Yes, please, Mr. Chairman.
I want to ask, Mr. Bradbury, since you were Counsel for
Takata, you argued with my belief, and that was your job as the
lawyer for Takata--that Takata put profits over safety. And now
we have seen the hundreds and hundreds of e-mails that went on
among executives in the company. And that has led to this sad
tale and ultimately Takata has filed for bankruptcy.
So with everything that you know now, do you still believe
that Takata was a good and moral actor?
Mr. Bradbury. Well, Senator, I certainly have high regard
for people at the company I came to know. I do think they care
greatly about the product, but I'm not here to defend any
client. I'm certainly not here to defend Takata. These are
matters I will not be working on for the Department of
Transportation. I appreciate your strong view on the issue. I
respect it greatly. I came to have strong views, too. And I
know that there are a lot of people both in NHTSA and in
industry who are working overtime to try to address the
problems that were created by the issues with the airbag
inflators. It is a serious, serious set of problems.
Senator Nelson. The point of my question, Mr. Bradbury,
because it looks like you're going to be confirmed with only 50
votes by the full Senate, is the moral frame of mind. I happen
to be talking about Takata, which I think was morally bankrupt
because they allowed this to happen, but you can look at the
other things. Take, for example, the General Motors ignition
switch and look at how many people have been killed or maimed
as a result of that.
And so there has to be some moral underpinning about what
is right and wrong and the willingness to speak out, as
government officials, against that kind of thinking.
Mr. Bradbury. I agree, absolutely. And there is a strong
moral component to the safety mission of NHTSA and the
Department of Transportation, and that has to be out front,
forward leaning, the mission, the action, what shapes and
directs the action of NHTSA and these issues.
I know NHTSA has been criticized in connection with some of
the matters that you mentioned, but I do think they're stronger
today at NHTSA by virtue of some of the authorities they've
exercised and the steps they've taken to resolve these
complicated issues, like the airbag issues.
And they, I think, have broken some new ground in terms of
the framework they've got in place, the way they're using their
authority. And I think at least there's a positive message in
that in terms of the willingness and the ability of the agency
to address those issues, which are moral issues, of public
safety, which has really got to be the uppermost priority.
Senator Nelson. Well, I'm talking to you because you, when
General Counsel, one of the chief positions at the Department
of Transportation, are going to have an influence over the
administration's appointees at NHTSA. So what is our philosophy
going forward? Is it to protect the company or to protect the
people?
Mr. Bradbury. It's to protect the people. It's public
safety. At NHTSA, it's public safety.
Senator Nelson. That's got to be asserted aggressively----
Mr. Bradbury. I agree.
Senator Nelson.--by the administration's appointees.
Mr. Bradbury. I agree.
Senator Nelson. All right. Ms. Walsh, I don't want you to
feel left out.
[Laughter.]
Senator Nelson. For some time, Florida fruit and vegetable
growers have had to deal with an onslaught of subsidized
agricultural imports from Mexico. This is a result of dumping
by Mexican companies--bell peppers, tomatoes, strawberries,
cucumbers--and Florida growers have been harmed by this anti-
competitive practice, and they took advantage of NAFTA to be
able to do this.
One of the reasons why Florida growers haven't been able to
file a trade case with the Department of Commerce is the
process doesn't account for seasonal differences in the market
place. Growers have to show the harm Mexican imports are
causing to the industry nationwide, even though northern
growers are not producing these types of crops in the winter.
So by the Department's regulations, the southern growers are
penalized.
So what do you think you can do to help improve the process
for our growers?
Ms. Walsh. Thank you, Senator, for that important question.
And I think that that is certainly a concern and probably one
of the most important concerns of Secretary Ross. And I think,
as you mentioned on NAFTA, Congress has received the letter for
renegotiation. That's a critical issue for this administration.
When the President said, ``America First,'' these are just the
types of issues that he was referring to, and it's my
understanding that this will continue to be a top priority in
Florida, and the orange growers are obviously a critical
market.
So if confirmed, the Commercial Service is not involved on
the enforcement side, but on the export side and on the FDI
side, but definitely as a team, we will be working closely with
you and your staff to ensure that Florida growers get what they
deserve.
Senator Nelson. This isn't orange growers. This is
vegetable growers, this is----
Ms. Walsh. Agriculture.
Senator Nelson.--this is peppers and tomatoes. This is
vegetables, not oranges. Now, we've got our own problem with
oranges, but it is in the form of a little insect that brings a
bacteria that is killing the citrus tree in 5 years. That's a
whole different problem. But in this particular case, I want to
know if you will be concerned about this inequity that is
devastating the fresh fruit and vegetable market, particularly
the winter vegetables.
Ms. Walsh. Certainly, if confirmed, Senator, I will look
with our team at that issue at the Department of Commerce.
Senator Nelson. So you'll look at it. That doesn't mean
that you're concerned about it.
Ms. Walsh. I'm absolutely concerned about it. If confirmed,
we will look at that.
Senator Nelson. Thank you.
The Chairman. Thank you, Senator Nelson.
And we would like to see more of those winter vegetables in
South Dakota in the winter.
[Laughter.]
Senator Blumenthal. Mr. Chairman, can I ask a couple more
questions if I promise not to ask about vegetables?
[Laughter.]
Senator Blumenthal. Just one?
The Chairman. If we let you ask a second round, then--and
we don't have anybody else that's coming back. Do we know?
All right. Be brief.
Senator Blumenthal. I'll be brief. Thank you.
Ms. Walsh, I would like to ask you, I know you've been
asked about the Export-Import Bank.
Ms. Walsh. Mm-hmm.
Senator Blumenthal. I come from a state that really depends
on this bank. Many of our large manufacturers, like General
Electric and United Technologies, but many of our small
manufacturers as well. Senator Cantwell asked you about the
Export-Import Bank earlier. I would like to give you another
chance to express a commitment to this bank because it is so
tremendously important to American manufacturing and to our
whole economy. Will you support the Export-Import Bank? And how
will you assure that our trade policies through the Export-
Import Bank favor small as well as large manufacturers?
Ms. Walsh. Thank you, Senator, for that question. As I
mentioned before, if confirmed, I personally would not be in a
position to have impact on that particular decision. That is
not within the Department of Commerce decisionmaking.
Senator Blumenthal. Well, what will you do to support the
Export-Import Bank insofar as it does affect manufacturing,
which is within the purview and jurisdiction of the Commerce
Department?
Ms. Walsh. Senator, if confirmed, I would take an
opportunity to discuss with the Secretary and the Under
Secretary what role we could play in that issue, but it's my
understanding that we are not directly involved in that.
Senator Blumenthal. Do you support American manufacturing?
Ms. Walsh. Absolutely.
Senator Blumenthal. Thank you.
Thanks, Mr. Chairman.
The Chairman. Thank you, Senator Blumenthal.
Again, we appreciate it very much. Thank you for taking our
questions. A special thank you to the families that are
represented here today. Thank you for your willingness to serve
and to work with your loved ones through the rigors of public
service. We are grateful for that and appreciate you being here
as well.
We're going to leave the hearing record open for a couple
of weeks, during which time Senators are asked to submit any
questions for the record. And I would ask our panelists upon
receipt that if they would submit their written answers to the
Committee as soon as possible, we will try and process these
nominations as quickly as we can. So thank you again.
And with that, this hearing is adjourned.
Mr. Bradbury. Thank you.
[Whereupon, at 11:48 a.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Question Submitted by Hon. John Thune to
Steven Gill Bradbury
Question. In your testimony before the Committee, you discussed
your tenure as Principal Deputy Assistant Attorney General and Acting
Assistant Attorney General at the Justice Department's Office of Legal
Counsel (OLC) from 2005-2009. Between 2001 and 2003, in the aftermath
of the 9/11 terrorist attacks, OLC issued several opinions regarding
enhanced interrogation techniques and the President's war powers. In
2008 and 2009, you authored two separate documents, each entitled
``Memorandum for the Files.'' These memoranda asserted that certain
opinions issued between 2001 and 2003 no longer reflected the then-
current views of OLC.
Please explain the scope and purpose of the aforementioned
memoranda you authored.
Answer. After I became Principal Deputy Assistant Attorney General
(``Principal Deputy AAG'') for the Office of Legal Counsel (``OLC'' or
the ``Office'') in 2004, I participated in decisions to withdraw and
supersede previous legal opinions addressing interrogation policies
that had been issued by our predecessors in OLC in 2002 and 2003. We
determined that the earlier opinions were flawed, in part because they
relied on overly broad interpretations of the President's
constitutional authorities in war time vis-a-vis the powers of
Congress. I was involved in preparing replacement opinions that focused
much more narrowly on the specific statutory and treaty provisions
necessary to provide the advice needed by senior policy makers and that
did not rely on broad assertions of presidential power.
After I became Acting AAG for OLC in 2005 and while I served as the
senior appointed official in charge of the Office, I undertook a
broader initiative to conduct a comprehensive review of all the post-9/
11 legal opinions issued by the Office from 2001 to 2003 relating to
war powers. The two memos to files that I prepared at the end of the
Bush administration in October 2008 and January 2009 memorialized for
senior government officials and for the new incoming Obama team the
results of that comprehensive review of the earlier war-power-related
opinions of the Office.
These memos to files set forth with specificity my conclusions for
OLC about the flawed reasoning of the 2001-2003 opinions and advised
policy makers across the government as to which opinions and which
specific propositions of law had been withdrawn or superseded by OLC
and no longer represented the views of the Office. I believe these
memos to files were helpful to the new OLC leadership at the beginning
of the Obama administration. Among other things, the Obama team decided
to post my memos to files on the OLC Website, where they remain
publicly avail-able today.
______
Response to Written Questions Submitted by Hon. Bill Nelson to
Steven Gill Bradbury
Question 1. A priority for me in last year's Federal Aviation
Administration extension law was to include consumer protections
pertaining to refunds for delayed baggage and family seating.
Specifically, the Department of Transportation (DOT) is statutorily
mandated to issue final regulations by July 15, 2017 that will require
airlines to promptly refund fees paid for checked baggage that is
delayed. Unfortunately, I have not seen much progress on this.
The law also required DOT to review and, if appropriate, establish
policies to ensure that children 13 years old and under can sit with an
adult in their party. Similarly, DOT does not appear to have taken any
action on this provision.
If confirmed, will you commit to addressing the statutory mandates
set by Congress for these and other consumer protection rules?
Answer. If confirmed, I do commit that, consistent with ethics
requirements on matters where I may be recused, I will address relevant
statutory mandates concerning DOT rules and other actions and will
assist in advising DOT leadership and policy makers on compliance with
applicable mandates. Please note that certain aviation matters pending
before DOT are one area where I may have recusals because of my recent
work representing an airline client.
Question 2. Developing autonomous vehicle technology could mean
that driverless trucks are regularly on our roads in the near future.
This raises both safety concerns and employment questions for the
millions of truck drivers in the U.S.
How do you plan to balance the industry's push for autonomous
vehicles with the potentially significant safety and employment
impacts?
Answer. It is a top priority that the autonomous vehicles developed
for use on America's highways will be safe for operation. Therefore,
the number one question in approaching the regulation of autonomous
vehicles must be whether the regulation is necessary and appropriate to
ensure the safe operation of the vehicles. At the same time, the
development of autonomous vehicle technology has the promise to be
transformational, including in advancing the overall goal of motor
vehicle and motor carrier safety, since the vast majority of motor
vehicle accidents today are caused by human error. For that reason, we
must take care to ensure that regulatory mandates do not unnecessarily
stifle incentives for investment and innovation in this new technology.
I believe these competing objectives can be harmonized, consistent with
the requirements of law.
Question 3. The Southeastern Legal Foundation is not listed among
significant representations as part of the resume submitted in response
to Question A.9 of the Commerce Committee Questionnaire.
Please explain this omission and detail the nature and extent of
all work you have performed for the Southeastern Legal Foundation.
Answer. I did not list the work I did for Southeastern Legal
Foundation (``SLF'') on my resume because, in my judgment, it was not
among my most significant client work within the usual focus areas of
my private practice. I have represented SLF in three projects, as
follows: (1) In 2012, I prepared an amicus brief for SLF and two other
public interest organizations in a Supreme Court case involving an
interpretation of the U.S. Tax Code (PPL Corp. v. IRS, No. 12-43
(U.S.)); (2) in 2013-2014, I assisted SLF with its cert. petition and
merits briefs in the Supreme Court in cases brought by several industry
petitioners and organizations, including SLF, challenging the EPA's
greenhouse gas rules for stationary-source permits under the Clean Air
Act (grouped together as Utility Air Regulatory Group v. EPA, No. 12-
1146 (U.S.)); and (3) in 2016, I prepared an amicus brief for SLF in
the U.S. Court of Appeals for the D.C. Circuit in a case challenging
the EPA's Clean Power Plan under the Clean Air Act (State of West
Virginia v. EPA, No. 15-1363 (D.C. Cir.)).
Question 4. Please identify all persons, organizations, and
entities that provided the funding in support of the work you performed
for the Southeastern Legal Foundation.
Answer. The only persons, organizations, or entities that provided
funding in support of my work for SLF were SLF and my law firm Dechert
LLP. SLF was a pro bono client of Dechert, and Dechert did not receive
payment for my services in connection with the first two projects
listed in response to Question 1. In reviewing records in response to
this Question, I was reminded that in connection with the third project
listed in response to Question 1 (the amicus brief filed in the D.C.
Circuit in case No. 15-1363), SLF offered to and did pay Dechert a
modest flat fee exceeding $5,000. I had forgotten about this payment,
and because SLF had been a pro bono client, I inadvertently omitted
reference to SLF in part 4 of my initial OGE-278e nominee financial
disclosure report, submitted to this Committee on June 8, 2017. I have
now corrected my OGE-278e report by adding Southeastern Legal
Foundation to the clients listed in part 4 of the report (those clients
from which my law firm received at least $5,000 for my services during
the reporting period). I thank the Senator for raising this question,
which led me to identify and correct this error in my disclosure
report.
Question 5. Pursuant to your association with the Southeastern
Legal Foundation, the following questions relate to the Petition for
Certiorari, Southeastern Legal Foundation, Inc. v. United States
Environmental Protection Agency (online at https://www.edf.org/sites/
default/files/SLF%20Petition%20for%20Cert.pdf).
Please explain the following statement:
In making the Endangerment Finding, EPA simply adopted the
conclusions of the Intergovernmental Panel on Climate Change (``IPCC'')
that not only were human GHG emissions a cause of atmospheric warming
in the second half of the twentieth century, but that it is ``90-99
percent certain'' that humans caused ``most'' of that warming. The
legal deficiency in this conclusion is that, given the current state of
science, it is irrational (and therefore reversible) to make this
conclusion with such certitude. (p. 10)
Answer. The quoted statement reflected the position of the client,
SLF. This position was developed and supported in submissions filed by
SLF and other parties in the underlying proceedings before the EPA and
the D.C. Circuit. The cert. petition cited to the record evidence that
supported this position and briefly summarized that support in the
discussion following the quoted language. I did not participate in the
underlying proceedings and was not involved in developing support for
this argument. The position reflected in the quoted statement was not
among the issues addressed on the merits in this case by the Supreme
Court, which limited its grant of cert. review to a narrower question
of statutory interpretation.
Question 6. Please explain the following statement:
As to the first line of evidence, EPA claimed that the twentieth
century had witnessed an ``unusual'' rise in average global
temperature, one that supposedly could not be explained by natural
variability, and one that therefore demanded an anthropogenic
explanation. The scientific evidence, however, shows otherwise[.] (p.
11)
Answer. The quoted statement reflected the position of the client,
SLF. This position was developed and supported in submissions filed by
SLF and other parties in the underlying proceedings before the EPA and
the D.C. Circuit. The cert. petition cited to the record evidence that
supported this position and briefly summarized that support in the
discussion following the quoted language. I did not participate in the
underlying proceedings and was not involved in developing support for
this argument. The position reflected in the quoted statement was not
among the issues addressed on the merits in this case by the Supreme
Court, which limited its grant of cert. review to a narrower question
of statutory interpretation.
Question 7. Please explain the following statement:
[T]he regional warming that did occur in various areas of the globe
during the last documented warming period was not anomalous in climate
history and was well within the normal range of historical variability.
(p. 12)
Answer. The quoted statement reflected the position of the client,
SLF. This position was developed and supported in submissions filed by
SLF and other parties in the underlying proceedings before the EPA and
the D.C. Circuit. The cert. petition cited to the record evidence that
supported this position and briefly summarized that support in the
discussion following the quoted language. I did not participate in the
underlying proceedings and was not involved in developing support for
this argument. The position reflected in the quoted statement was not
among the issues addressed on the merits in this case by the Supreme
Court, which limited its grant of cert. review to a narrower question
of statutory interpretation.
Question 8. Please explain the following statement:
There was no consistent trend of ``global'' warming in the second
half of the twentieth century, nor any global warming in the last 16
years, and the regional warming that did occur was not anomalous. EPA's
supposed physical understanding of GHG effects in the atmosphere is
contradicted by copious empirical evidence, and the models on which EPA
relies have proven to be wrong in many of their most important
predictions, including current temperatures. (p. 15)
Answer. The quoted statement reflected the position of the client,
SLF. This position was developed and supported in submissions filed by
SLF and other parties in the underlying proceedings before the EPA and
the D.C. Circuit. The cert. petition cited to the record evidence that
supported this position and briefly summarized that support in the
discussion following the quoted language. I did not participate in the
underlying proceedings and was not involved in developing support for
this argument. The position reflected in the quoted statement was not
among the issues addressed on the merits in this case by the Supreme
Court, which limited its grant of cert. review to a narrower question
of statutory interpretation.
______
Response to Written Questions Submitted by Hon. Amy Klobuchar to
Steven Gill Bradbury
Question 1. Last Congress, I introduced the Torture Victims Relief
Reauthorization Act to authorize increased funding for the Office of
Refugee Resettlement to support treatment centers and services for
torture victims. In the House, Representative Chris Smith has
introduced a companion bill. The Center for Victims of Torture, based
in St. Paul, has been a pioneer in providing support to victims of
torture who are resettled in the United States.
I am pleased that the issue of prohibiting torture, and providing
services for its victims, has largely been a bipartisan one.
Mr. Bradbury, I understand that during the Bush administration, you
were one of the principal authors of the legal opinions that later
became known as the ``torture memos.'' Knowing what we know now, do you
still agree with the views expressed in those memos?
Answer. As I testified in my nomination hearing, I support the
McCain-Feinstein Amendment, enacted by Congress in 2015, which mandates
that all agencies of the U.S. Government are limited to use of the Army
Field Manual in the interrogation of detainees and which prohibits the
use of physical coercion. I believe the McCain-Feinstein Amendment
represents a historic policy decision and a moral judgment for the
United States, and it reaffirms America's leadership on interrogation
policy and practice. The clear mandate of the McCain-Feinstein
Amendment appropriately elevates and vindicates the compelling
principle of reciprocity in the treatment of captured U.S. service men
and women.
Twelve years ago, when I was called upon to advise on the legality
of proposed interrogation policies for use by intelligence officers,
the McCain-Feinstein Amendment had not been enacted, and it was
understood at that time that intelligence agencies operated under a
different, less well defined, legal regime from the U.S. Armed
Services. I did my best to pull back previous OLC opinions that were
overly broad or otherwise flawed; to limit OLC's advice to the
narrowest grounds necessary and avoid reliance on expansive
interpretations of presidential power; to spell out very clearly the
specific factual assumptions on which the advice depended, including
the particular conditions, limitations, and safeguards that were
required as part of the policies; and to describe in detail the
specifics of those policies so that the senior decision makers on the
Principals Committee of the National Security Council would be fully
apprised of precisely what they were being asked to approve. The OLC
opinions I prepared on these issues are no longer operative, and the
law has changed. I welcome the statutory changes enacted by Congress.
Question 2. Mr. Bradbury, I also understand that the Justice
Department's Office of Professional Responsibility raised questions
about the objectivity and reasonableness of your analyses in these
memos. How would you respond to those statements?
Answer. While the Office of Professional Responsibility (``OPR'')
at the Justice Department later took issue with aspects of my opinions,
OPR did not conclude that my work failed in any way to meet
professional standards--in contrast to the earlier, superseded opinions
issued by my predecessors. On page 259 of its final report dated July
29, 2009, OPR found that my opinions were ``careful, thorough,
lawyerly'' and ``fell within the professional standards that apply to
Department attorneys.'' Moreover, OPR noted that I ``explicitly
qualified [my] conclusions and explained the assumptions and
limitations that underlay [my] analysis,'' and that I had properly
``distributed drafts of the memoranda widely, within and without the
Department [of Justice], for comments.'' And on page 260 of its report,
OPR stated, ``We commend the Best Practices [for OLC opinions] as laid
out [in a memo to the attorneys of OLC authored] by Bradbury and urge
the OLC to adhere to them.''
The final OPR report was rejected by the Justice Department in a
January 5, 2010 opinion by Associate Deputy Attorney General David
Margolis, DOJ's most senior career official. By tradition and DOJ
protocol, all OPR recommendations were presented to Mr. Margolis as the
senior career Associate in the Deputy Attorney General's Office. As a
result of the Margolis decision, the OPR report has no continuing force
or effect.
Question 3. The National Transportation Safety Board includes
reducing fatigue-related accidents on its 2017 Most Wanted List of
Transportation Safety Improvements. I recently introduced the Safe
Skies Act, which I worked on with Senator Boxer for many years. This
commonsense bill would take the rest requirements put into place for
passenger pilots after the tragic crash of Colgan Flight 3407 and apply
them to cargo pilots who--despite using the same runways and airspace
as passenger pilots--currently have looser rest requirements.
Mr. Bradbury, if confirmed, would dealing with pilot fatigue be a
priority for you at the Department of Transportation?
Answer. If confirmed, I look forward to working with the Secretary
and the FAA to make all aviation safety issues, including issues of
pilot fatigue, a top priority, consistent with ethics requirements on
matters where I may be recused. As I noted in my nomination hearing,
certain aviation matters pending before DOT are one area where I may
have recusals because of my recent work representing one of the major
U.S. passenger airlines.
______
Response to Written Questions Submitted by Hon. Richard Blumenthal to
Steven Gill Bradbury
Question 1. Forthrightness and honesty are extremely important
qualities for lawyers, especially those who work for the public in
government service. Do you agree that, especially for government
lawyers, forthrightness and transparency are extremely valuable
qualities?
Answer. Yes.
Question 2. Did you receive the Senate Committee's questionnaire?
Answer. Yes.
Question 3. Did you answer that questionnaire?
Answer. Yes.
Question 4. Did you read question C(1) on page 25, which asks:
``Have you ever been . . . the subject of a complaint to, any . . .
professional association . . . or other professional group?''
Answer. Yes.
Question 5. How did you answer this question?
Answer. I answered ``No.''
Question 6. Are you aware that this question does not concern the
merits of any complaint filed concerning you, but rather the fact that
a complaint had been filed?
Answer. I am aware that the question does not turn on whether a bar
complaint proceeding, once initiated, has resulted in any disciplinary
action.
Question 7. At the time you answered this question, were you aware
of a New York Times article on May 19, 2009 with the headline ``Ethics
Complaint Is Filed Against Lawyers for Bush Over Torture Policy,''
which reported that a coalition of advocacy groups filed legal ethics
complaints about you with the D.C. Bar?
Answer. I recall being aware of news articles in the spring of 2009
reporting that certain persons had announced the intention to submit
information or allegations concerning my work at the Department of
Justice, along with the work of other senior Justice Department
officials, including former Attorney General Mukasey, to relevant state
bars in an effort to initiate disciplinary proceedings. I did recall
those news reports when I prepared my responses to the Committee's
questionnaire.
Question 8. Did anyone inform you of the existence of this article?
Answer. I was aware of the news articles.
Question 9. Did you ever receive, read, or view the complaint
discussed in the above-referenced article?
Answer. No, not that I recall.
Question 10. Does your testimony to the Committee contradict this
article?
Answer. I believe my testimony is accurate.
Question 11. What steps did you take to make yourself aware of
whether this complaint had been filed concerning you?
Answer. In preparing my responses to the Committee's questionnaire,
I contacted the Office of Disciplinary Counsel of the D.C. Bar to
inquire if any disciplinary complaints had ever been filed against me,
and I was advised that the Bar had no record of any complaints.
Question 12. Did you ever contact the D.C. Bar as to whether a
complaint had been filed concerning you?
Answer. Yes, three times.
Question 13. When and how did you contact the D.C. Bar as to
whether a complaint had been filed concerning you?
Answer. Once by phone when preparing my responses to the
Committee's questionnaire; a second time by phone following my
nomination hearing; and a third time, in response to the Senator's
question, by submitting by mail a sworn affidavit seeking a Certificate
from the D.C. Bar's Office of Disciplinary Counsel.
Question 14. What response did the DC Bar give you in response to
any inquiry you made as to the presence of a complaint?
Answer. Twice by phone the D.C. Bar's Office of Disciplinary
Counsel advised me that it had no record of a bar complaint against me.
In response to my written request, the D.C. Bar's Office of
Disciplinary Counsel mailed me a Certificate Concerning Discipline and/
or Administrative Suspension, a copy of which has been provided to the
Committee to be included as part of the record of my nomination
hearing. The Certificate, dated July 6, 2017, states in relevant part:
``No discipline has been imposed upon this attorney nor has
Disciplinary Counsel filed a petition seeking discipline against this
attorney. No complaint has been filed, upon which basis, this attorney
has been required to respond to a formal investigation by Disciplinary
Counsel.''
Question 15. Do you stand by your response to the Committee?
Answer. Yes.
Question 16. Is your answer to the Committee's questionnaire
regarding past complaints an accurate statement?
Answer. Yes, I believe it is accurate. Section 6 of Rule XI of the
D.C. Bar provides that the Disciplinary Counsel shall have the power
and duty ``[t]o investigate all matters involving alleged misconduct by
an attorney subject to the disciplinary jurisdiction of this Court
which may come to the attention of Disciplinary Counsel or the Board
[on Professional Responsibility of the D.C. Bar] from any source
whatsoever, where the apparent facts, if true, may warrant
discipline,'' and it further provides that ``[e]xcept in matters
requiring dismissal because the complaint is clearly unfounded on its
face or falls outside the disciplinary jurisdiction of the Court, no
disposition shall be recommended or undertaken by Disciplinary Counsel
[including both formal disciplinary petitions and informal admonitions]
until the accused attorney shall have been afforded an opportunity to
respond to the allegations.'' I never received notice from the Bar's
Disciplinary Counsel that allegations had been received against me, and
the Disciplinary Counsel never sought a response from me as to any
allegations that may have been submitted to the Bar by any person.
Therefore, if any allegations concerning me were submitted to the D.C.
Bar, it appears evident that the Office of Disciplinary Counsel must
have concluded that such allegations were ``clearly unfounded on
[their] face'' or that they fell ``outside the disciplinary
jurisdiction'' of the Bar. Moreover, the confidentiality requirements
of Section 17 of Rule XI of the D.C. Bar prohibit the Disciplinary
Counsel from disclosing to me any allegations or materials that did not
result in a docketed complaint.
Question 17. What plans do you have to amend your answer to the
questionnaire?
Answer. For the reasons described above, I do not plan to amend my
answer to the questionnaire.
Question 18. In your public testimony before the Senate Commerce
Committee on June 28, 2017, did I ask you about your work representing
airlines?
Answer. I believe the question may have come up.
Question 19. What airlines did you mention as clients?
Answer. If asked, I would have mentioned American Airlines.
Question 20. Did you mention United Air Lines?
Answer. I would not have mentioned United Air Lines.
Question 21. I note this representation is mentioned in your
written disclosures, but why did you fail to mention your
representation of United at the hearing?
Answer. Although listed on my resume as a former client, United Air
Lines is not a current client of mine, and I have not represented
United Air Lines since approximately 2002. Moreover, the matters I
handled for United at that time are no longer active; they involved a
potential merger that was abandoned in 2001 and a codeshare alliance
that has since been terminated. Since the time I represented it, United
Air Lines has passed through bankruptcy, had several changes in
management, and underwent a merger with Continental Airlines; in short,
United Continental is not the same entity I last represented 15 years
ago.
Question 22. What message should the Committee take from a witness'
failure to mention a client as notable and pertinent to the question as
United Air Lines?
Answer. I believe my representation of a different United Air Lines
so many years ago is highly unlikely to raise (indeed, practically
certain not to raise) any conflict-of-interest issue with my potential
work for the United States, in the event I am confirmed as General
Counsel of DOT.
Question 23. Are there any clients that you forgot to include or
chose to exclude from your responses to any inquiries from the
Committee?
Answer. Yes. I inadvertently omitted reference to Southeastern
Legal Foundation in part 4 of my OGE-278e nominee financial disclosure
report, which was submitted to the Committee on June 8, 2016, as
explained above in response to Question 2 from Senator Nelson.
Question 24. Please list any clients you have failed to disclose.
Answer. Southeastern Legal Foundation.
Question 25. Will you recuse yourself from all issues affecting
your current and former clients during your tenure at the U.S.
Department of Transportation?
Answer. If confirmed, I will follow the requirements of the ethics
laws and the ethics pledge in the President's executive order with
regard to potential recusals from matters at DOT stemming from my
recent work on behalf of clients in private practice. These will
include my recusal from Takata-related matters, as I confirmed to
Senator Nelson. In considering recusal questions and the requirements
of the ethics laws and regulations, I will consult with the senior
career ethics officer at DOT.
Question 26. Lawyers must verify the information on which they rely
to make legal distinctions. Law schools teach their first-year students
the importance of facts when putting together a legal argument. Without
the correct facts and evidence, even incredibly intelligent legal
theories will fall apart. My reading of the Justice Department's Office
of Professional Responsibility's report on the Office of Legal
Counsel's torture memos leads me to conclude you did not attempt to
verify or question the information the CIA gave you regarding torture
techniques because you did not consider that to be your role.
Should a lawyer rely entirely on representations of fact made by
clients or other parties?
Answer. In providing legal advice in some instances, attorneys must
rely on the factual representations provided by clients.
Question 27. Do you agree that lawyers are expected to practice at
least a minimum amount of factual due diligence?
Answer. Yes, attorneys should ask questions and gain an
understanding of the relevant factual basis on which they are providing
a legal opinion.
Question 28. Do you agree that scientific research is important to
support regulations, especially at the Department of Transportation,
which considers extremely complicated technical innovations?
Answer. Yes.
Question 29. Did you rely on a study by Professor James Horne in a
memo that justified extended sleep deprivation because it did not cause
physical pain or even severe physical pain?
Answer. Our opinion did cite this study in analyzing the
application of the specific provisions of the anti-torture statute to
sleep deprivation. The opinion did not purport to ``justify'' sleep
deprivation and did not cite this study for the purpose of
``justifying'' any interrogation policy.
Question 30. Did you read that study in its entirety?
Answer. I don't recall; I know that attorneys in our Office did
review the book.
Question 31. Are you aware that Professor Horne responded to your
memo by saying that: ``I thought it was totally inappropriate to cite
my book as being evidence that you can do this and there's not much
harm. With additional stress, these people are suffering. I just find
it absurd. [The memo] distorts what I really meant.''?
Answer. I have read these statements.
Question 32. What is your response to Professor Horne's statement?
Answer. I understand and accept that the professor's study involved
very different circumstances.
Question 33. If you are confirmed as General Counsel, who will you
ask for assistance when making legal determinations that depend on
important, complex scientific findings?
Answer. If confirmed, I will seek input on complex scientific
matters from the engineers and other subject-matter experts within DOT
(or elsewhere in government, if necessary) who have the best knowledge
regarding those matters.
Question 34. How can the Committee rest assured you won't let
others dictate your conclusions?
Answer. I have never let anyone dictate my conclusions as a legal
adviser.
Question 35. I take the issue of ``regulatory capture'' quite
seriously. This occurs when an industry ``takes over'' or ``captures''
its regulator, exercising undue influence on the regulator's efforts.
It has been demonstrated throughout the transportation sector and the
U.S. Department of Transportation in recent years.
Are you familiar with the concept of ``regulatory capture''?
Answer. Yes.
Question 36. What does this concept mean to you?
Answer. In my understanding, the concept refers to a situation
where government regulators allow their regulatory actions to be
directed by the interests and objectives of the private industry they
are responsible for regulating, rather than by the public interest and
the terms and policy goals of the laws they are charged with
implementing.
Question 37. Do you think that regulatory capture is a problem in
the Department of Transportation?
Answer. In my experience with attorneys and engineers at DOT, I
have not observed examples of what I would consider regulatory capture.
Question 38. How would you combat regulatory capture as General
Counsel for the Department of Transportation?
Answer. By serving only one client, the United States; by upholding
the objective requirements of the law and remaining faithful to the
legal mandates enacted by Congress and the requirements of the rules
and regulations governing the actions of DOT; by acting in all matters
according to the public interest and in accordance with the highest
standards and principles of public service; by collaborating closely
with experienced career attorneys and other career employees of DOT;
and by keeping an open door policy and an atmosphere of relaxed
collegiality, so that career staff feel free to be candid and to bring
to my attention (or the attention of the Department's Inspector
General) any instance where it is perceived that actions are being
taken for improper reasons.
Question 39. How would you help protect the Department of
Transportation from regulatory capture?
Answer. By staying true to the commitments laid out in response to
Question 4.
Question 40. What are your views about the lack of competition in
the airline industry?
Answer. Competition in the airline industry is the policy adopted
by Congress in the Airline Deregulation Act. Competition in airline
services benefits consumers, and I believe the regulatory actions of
DOT should preserve and promote competition. If confirmed as DOT
General Counsel, I would expect to be guided by that objective,
consistent with ethics requirements on matters where I may be recused.
As noted, certain aviation matters pending before DOT are one area
where I may have recusals because of my recent work representing
American Airlines.
Question 41. How can government help support a competitive
marketplace?
Answer. Government can help support a competitive marketplace by
pursuing regulatory actions that preserve competition and the
incentives to invest in innovation and in new facilities and increased
capacity when supported by consumer demand, while addressing
demonstrated instances of unfair or deceptive practices in the airline
industry.
Question 42. Would you support a Government Accountability Office
investigation into airlines' anti-competitive practices?
Answer. I understand that DOT is or will be assessing competition
in the airline industry. The Government Accountability Office (``GAO'')
is an arm of Congress, and it is not for me to opine on whether GAO
should undertake an investigation. If confirmed, I would expect to
cooperate with GAO's investigations and audits.
Question 43. You've advised airlines [on] ways of achieving
antitrust immunity for joint ventures with foreign carriers. This
immunity exists in perpetuity. Should these grants ever expire?
Answer. It is my understanding that DOT monitors and reviews all
grants of antitrust immunity and reserves the right to amend or revoke
these grants as circumstances warrant. Again, this area is one where I
may have recusals because of my recent representation of American
Airlines.
Question 44. Would you support increasing the DOT's enforcement
power against the rail, aviation and auto industries?
Answer. I understand that DOT has broad authority across these
various transportation modes. If confirmed, I would intend to study
whether DOT requires additional authority in any area, to hear from
interested Members of Congress and stakeholders on that question, and
to work with the Secretary and the modal administrators accordingly.
Question 45. Do you support President Trump's budget proposal,
which massively funds an impractical, ego-driven border wall, but
provides no real funding for transportation issues like upgrading real
infrastructure?
Answer. I did not participate in formulating the President's budget
proposal, and I have not studied the details of the proposal. If
confirmed to be General Counsel of DOT, my primary concern regarding
the budget would be to help ensure adequate resources for regulatory
and enforcement activities and the fulfillment of all statutory
requirements.
______
Response to Written Questions Submitted by Hon. Maggie Hassan to
Steven Gill Bradbury
Question 1. During your confirmation hearing, you stated that every
opinion you gave for the Office of Legal Counsel ``represented [your]
best judgment of what the laws in effect at the time required.'' The
American Bar Association's Model Rules of Professional Conduct begin by
noting that lawyers are officers of the legal system and public
citizens with ``special responsibility for the quality of justice.''
Do you believe that you fulfilled this special responsibility as an
attorney in the legal opinions you wrote signing off on the use of
tactics such as waterboarding?
Question 2. Do you believe that those tactics are in accordance
with our shared American values?
Question 3. Was that a factor in your legal analysis?
Question 4. Do you think it should have been?
Answer. As I testified in my nomination hearing, I support the
McCain-Feinstein Amendment, enacted by Congress in 2015, which mandates
that all agencies of the U.S. Government are limited to use of the Army
Field Manual in the interrogation of detainees and which prohibits the
use of physical coercion. I believe the McCain-Feinstein Amendment
represents a historic policy decision and a moral judgment for the
United States, and it reaffirms America's leadership on interrogation
policy and practice. The clear mandate of the McCain-Feinstein
Amendment appropriately elevates and vindicates the compelling
principle of reciprocity in the treatment of captured U.S. service men
and women.
Twelve years ago, when I was called upon to advise on the legality
of proposed interrogation policies for use by intelligence officers,
the McCain-Feinstein Amendment had not been enacted, and it was
understood at that time that intelligence agencies operated under a
different, less well defined, legal regime from the U.S. Armed
Services. As my opinions acknowledged, I realize that reasonable people
may disagree with the legal conclusions I reached on these difficult
questions, but I did my best to limit OLC's advice to the narrowest
grounds necessary; to avoid reliance on broad interpretations of
presidential power; to spell out very clearly the specific factual
assumptions on which the advice depended, including the particular
conditions, limitations, and safeguards that were required as part of
the policies; and to describe in detail the specifics of those policies
so that the senior decision makers on the Principals Committee of the
National Security Council would be fully apprised of precisely what
they were being asked to approve. As noted above, however, the legal
landscape has changed since I authored these opinions, and I welcome
those changes. The OLC opinions I prepared on interrogation matters are
no longer operative, and the policies I addressed in the past would be
prohibited under current law.
Question 5. During your confirmation hearing, when referring to
your memoranda on enhanced interrogation techniques, which many people
have called torture, you stated, ``If I had my druthers, I wouldn't
have engaged in having to address those issues.''
Why did you seek to be the head of the Office of Legal Counsel if
you did not want to engage in addressing those difficult legal
questions?
Question 6. Why are you now seeking another government legal
position where you will be called on to engage in addressing difficult
legal questions?
Answer. My comment at the hearing related specifically to the
uniquely difficult issues I was called upon to address concerning
interrogation. These were not the only challenging issues I dealt with
at OLC, but they were the most difficult. If confirmed as General
Counsel of DOT, I would appreciate the challenge of addressing
interesting and difficult legal issues, particularly in areas of
regulation and complex statutory provisions touching on industries of
critical national importance, like drones, self-driving vehicles, and
other new technologies that are making their way into our
transportation systems. It would be a privilege and an honor to serve
in this position.
______
Response to Written Questions Submitted by Hon. Dan Sullivan to
Elizabeth Erin Walsh
Question 1. Alaska's seafood exports represent 55 percent of total
U.S. seafood exports, and make up roughly two-thirds of the value of
Alaska's seafood--over $3 billion annually. In 2015, Alaska exported to
102 different countries. In recent years, we've experienced challenges
as seafood consumption in Asian markets change, and U.S. exports face
pressure from farmed and other low-priced alternatives sourced
internationally.
What specific steps will you take to promote the export of Alaskan
seafood in global markets? What improvements can be made in our
discussions and strategies with the markets in which the Foreign
Commercial Service operates?
Answer. If confirmed, I look forward to finding ways to address the
current trade imbalance in fisheries so that our fishery resources
create more jobs here in America. In light of the fact that Trade
Promotion Authority now includes fish and fishery products, I look
forward to collaborating with colleagues throughout government--
including NOAA and USTR--on a range of export issues such as this one
where the International Trade Administration (ITA) and specifically the
U.S. and Foreign Commercial Service can add value. To ensure efficiency
and effectiveness, it is critical we work together and leverage each
other's capabilities to ensure the competitiveness of U.S. industries.
Question 2. One of the core missions of the Commerce Department is
to promote U.S. companies and exports. How will you improve upon the
existing efforts to promote opportunities for American companies
abroad?
Answer. U.S. exports face significant challenges in many markets.
The causes of market obstruction and closure are numerous including:
high tariffs; subsidies provided to foreign producers giving them
unfair advantage over their U.S. competitors; blocking or unreasonably
restricting the flow of digital data and services; theft of trade
secrets; as well as non-tariff barriers--such as unnecessary
regulations on particular items--to limit competition, including in the
services sector.
If confirmed, I will work tirelessly to increase exports by
breaking down long-standing trade barriers and fostering increased
access for American goods in foreign markets. I intend to work closely
with my colleagues within ITA and the Secretary to use all possible
tools to encourage other countries to give U.S. producers fair,
reciprocal access to their markets.
Question 3. There have been widely reported examples of China
denying access to U.S. industry and investment when Chinese companies
are granted access to the U.S. market in similar situations.
Specifically, how will you improve opportunities for American business
in China?
Answer. China has pursued policies that has disadvantaged American
companies and workers. If confirmed, I will use every available tool to
counter restrictive and unfair trade policies of those who pledge
allegiance to free trade while violating its core principles. I believe
in free and fair trade and I pledge to work with my colleagues in the
Trump Administration and the U.S. Congress to restore a level playing
field.
Question 4. What specific changes or improvements will you
implement in the mission of the Foreign Commercial Service that will
create better conditions for the promotion of U.S. enterprise abroad?
Answer. I support the International Trade Administration's mission
of promoting trade and investment, advancing the competitiveness of
U.S. industries, and ensuring fair trade through the rigorous
enforcement of our trade laws and agreements. Furthermore, I will
assist with the critical role the U.S. and Foreign Commercial Service
plays in executing our trade laws, particularly for U.S. small and
medium-sized businesses.
Question 5. Would you support an expansion of the CFIUS mandate to
include market access and reciprocity as factors considered by the
Committee?
Answer. CFIUS is an important statute that provides a valuable tool
that allows us to advance U.S. national security, foreign policy, and
economic objectives. If confirmed, I will work within the Department of
Commerce, with the Treasury Department--which leads CFIUS--and the rest
of the interagency as appropriate, to support a vigorous and thorough
CFIUS review process which must include consideration of market access
and reciprocity as important analytics in our national security
calculus.
______
Response to Written Questions Submitted by Hon. Bill Nelson to
Elizabeth Erin Walsh
Question 1. Florida acts as a central hub for trade with Latin
America. In fact, Latin America makes up three of the top five export
market fins for Florida. However, the value of goods exported to our
top South American trading partners declined from 2015 to 2016.
Given all the anxiety and rhetoric about trade recently, how do you
intend to ease tensions with our trade partners in Latin America and
increase opportunities for American exports in that part of the world?
Answer. Trade with Latin America remains vital to the prosperity of
American businesses, farmers, ranchers, workers and service providers.
The United States maintains comprehensive trade agreements with 11
trading partners in the region and is actively engaged in constructive
dialogue with the rest of the region on trade through trade and
investment framework agreements, bilateral trade councils, and other
initiatives. The Administration's commitment to maintaining and
expanding our commercial relationships with our Latin American trading
partners is evident in these expansive activities. Through these
efforts, the Administration seeks to build a trading system that holds
our trading partners to a higher standard of fairness, ensures a level
playing field, reduces impediments to free and fair trade, and creates
opportunities for American businesses, farmers, ranchers, workers and
service providers. I understand that the International Trade
Administration's Global Markets unit provides extensive support for
U.S. small and medium-sized businesses through the U.S. and Foreign
Commercial Service. These services are conducted through a large
network of experts and offices across America and in Latin America. The
services include cutting edge market intelligence, export counseling,
business matchmaking and advocacy. If confirmed, I look forward to
supporting Global Markets work in this important region.
Question 2. Do you see statements by the President and others in
the administration as counterproductive to that effort?
Answer. The United States recognizes how critical Latin America is
to the health and growth of the U.S. economy and maintains strong trade
relations with our Latin American trading partners. President Trump had
already met with many of his counterparts to discuss how the United
States hopes to grow our trading relationship in ways that are fairer
and more effective for both the United States and our Latin American
trading partners.
Question 3. The Obama Administration had a goal of doubling exports
in five years. What sort of goal would you set for exports in the next
five years?
Answer. If confirmed, I would welcome the support of the Congress
for the International Trade Administration's mission of promoting trade
and investment, advancing the competitiveness of U.S. industries, and
ensuring fair trade through the rigorous enforcement of our trade laws
and agreements.
Question 4. What do you believe is the most important thing
Congress could do to increase exports?
Answer. If confirmed, I would welcome the support of the Congress
for the International Trade Administration's mission of promoting trade
and investment, advancing the competitiveness of U.S. industries, and
ensuring fair trade through the rigorous enforcement of our trade laws
and agreements. In addition to Congress' support of ITA's mission, I
would welcome the support of Congress for the Administration's overall
vision for creating a more vibrant, and more competitive, economy,
including through tax reform, increased funding for infrastructure, and
other legislative steps to stimulate U.S. economic growth.
Question 5. The United States is the global leader in producing
phosphate-based fertilizer, with Florida leading the way for the
country. Florida produces 50 percent of the Nation's phosphate-based
fertilizer, including blended mixtures such as monoammonium phosphate
and diammonium phosphate. Given a level playing field, U.S. fertilizer
producers can compete with anyone, but they currently face unfair trade
barriers in places like the European Union.
Will you commit to working with our producers to find ways to open
the E.U. to U.S. fertilizer?
Answer. I share your concerns about the tariff and non-tariff trade
barriers that inhibit our U.S. fertilizer producers' ability to export.
If confirmed, I commit to working with industry to ensure a level
playing field in foreign markets.
[all]