Steven Bradbury testifies in the Senate in 2008. Credit: Diego M. Radzinschi

Steven Bradbury, a Dechert litigation partner in Washington and former top U.S. Justice Department lawyer, narrowly won confirmation Tuesday as general counsel to the U.S. Transportation Department after a rebuke for his role in writing memos that justified the use of harsh tactics against detainees in the aftermath of the Sept. 11 terror attacks.

Republican Sen. John McCain of Arizona used a 15-minute floor speech to lash Bradbury, a former leader of the Justice Department's Office of Legal Counsel during the George W. Bush administration. Bradbury was confirmed 50-47 as the top lawyer at the Transportation Department, where he will oversee nearly 500 attorneys across the agency.

“I must say to my colleagues, in the years that I have been here, in the United States Senate, I never believed that I would be voting against an individual who justified the practice of torture,” McCain said. He added, later: “Put simply, Mr. Bradbury's memos were permission slips for torture.”

At his confirmation hearing, Senate Democrats scrutinized Bradbury over Office of Legal Counsel (OLC) memos that permitted U.S. investigators to use enhanced interrogation tactics such as waterboarding and sleep deprivation. Bradbury, in his remarks then, called OLC the place “where the buck often stops on contentious legal issues” facing executive officials.

“Every opinion I gave for OLC represented my best judgment of what the laws in effect at that time required,” Dechert said, according to reports. “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.”

McCain, speaking late Tuesday, said he would “challenge Mr. Bradbury to go through 48 hours of sleep deprivation before he signs off on another memo.”

McCain said in his speech:

“I know their responsibilities were grave and urgent, and the strain of their duty was considerable. I admire their dedication and love of country. But I argued then and I argue now that it was wrong to use these methods and that it undermined our security interests and that it contradicted the ideals that define us and which we have sacrificed so much to defend. Mr. Bradbury has justified his work on these torture memos as the duty of the lawyer representing his client the commander in chief of the United States. I believe he had a higher duty, as to all who serve this country, to defend our most cherished ideals from wholesale violation in the same of self-defense.”

McCain also voted against the nomination of Dechert's Steven Engel to lead DOJ's Office of Legal Counsel. Engel was confirmed last week 51-47. Bradbury hired Engel for an OLC post during the Bush administration. “He can deliver the bad news. He is not someone who is driven by ideology. I am confident he will focus on the strongest, most reasonable basis” for determining the lawfulness of proposed action, Bradbury told The National Law Journal in January.

At the Transportation Department, Bradbury will work closely with Secretary Elaine Chao. One major issue on their plate: regulatory oversight of the driverless car industry. “DOT's mission is exceptionally important,” Bradbury said at his confirmation hearing. “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.”

Katie Thompson, an Obama-era Transportation Department general counsel, recently left Morrison & Foerster for a new logistics role at Amazon.com.

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