Bradbury OLC Memos Reconstruct CIA Interrogation Authorization Post-Goldsmith Withdrawal — Three May 2005 Memos Re-authorize Waterboarding

Opening

On May 10, 2005, Acting OLC head Steven G. Bradbury signed two memoranda to CIA Senior Deputy General Counsel John A. Rizzo: the “Techniques” memo (addressing each interrogation technique individually) and the “Combined Techniques” memo (addressing techniques used in combination). A third memo, on the Convention Against Torture’s Article 16 “cruel, inhuman, or degrading treatment” prohibition, followed on May 30, 2005. A fourth memo re-authorizing a narrowed technique set followed on July 20, 2007 after the Military Commissions Act of 2006 altered the statutory environment. The Bradbury memos reconstructed CIA enhanced-interrogation authorization after Jack Goldsmith’s 2004 withdrawal of the Bybee/Yoo 2002 memos 2002-08-01–bybee-torture-memo-severe-pain-redefinition. Bradbury’s doctrinal innovation was procedural rather than substantive: where Yoo had argued that statutes could not constrain the commander-in-chief, Bradbury argued that the statutes did apply but the specific techniques did not violate them when applied within specified constraints. The conclusions were the same; the legal architecture was narrower and more defensible against challenge. Bradbury remained at OLC through January 2009 and returned to federal service as Trump-1’s DOT General Counsel (confirmed November 2017).

What Happened / Key Facts

The three May 2005 memos and the July 2007 re-authorization authorized the following techniques:

• Dietary manipulation (minimum 1,000 calories/day per July 2007 memo)
• Nudity
• The attention grasp
• Walling (slamming against a flexible wall)
• Facial hold
• Facial slap / insult slap
• Abdominal slap
• Cramped confinement (small and large box — the “insects” technique from Bybee 2002 was dropped)
• Wall standing (stress position)
• Stress positions
• Water dousing
• Sleep deprivation up to 180 hours (7.5 days)
• Waterboarding

The memos authorized combined use of multiple techniques — the “Combined Techniques” memo addressed the scenario in which a detainee might be subjected to sleep deprivation, stress positions, and waterboarding in sequence or concurrently.

The analytical structure differed from Bybee’s:

1. Statutory application affirmed, not denied. Where Bybee had argued that 18 U.S.C. § 2340 might be unconstitutional as applied to Presidentially directed interrogation, Bradbury argued that § 2340 did apply but the techniques did not constitute torture within the statutory meaning. This was a substantial retreat from the Article II plenary-authority claim but preserved the operational authorization.

2. Severe pain redefinition retained but softened. Bradbury retained the Bybee interpretive framework that “severe pain” requires extreme intensity, but backed away from the “organ failure or death” formulation. Instead, Bradbury relied on factual findings — CIA medical-staff attestations that specific techniques did not cause the statutory threshold of pain — to conclude the techniques did not cross the line.

3. Specific intent redefined. Bradbury accepted the specific-intent threshold but treated it as satisfied whenever the interrogator’s purpose was information-gathering rather than pain-infliction. This was essentially Yoo’s position, now framed as a factual rather than constitutional matter.

4. Article 16 applicability rejected for extraterritorial CIA conduct. The May 30, 2005 memo argued that the Convention Against Torture’s Article 16 obligation (prohibiting “cruel, inhuman, or degrading treatment” that falls short of torture) did not apply to CIA conduct outside the United States. This was a narrow but critical legal move: it permitted the CIA to employ techniques that would clearly constitute cruel, inhuman, or degrading treatment under Article 16, provided they were not “torture” under Article 1.

The July 20, 2007 memo narrowed the authorized technique set after the Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 (the “McCain Amendment”) had altered the statutory environment. The 2007 memo authorized six techniques — including dietary manipulation, sleep deprivation, and physical striking — but dropped waterboarding, walling, and cramped confinement.

Why This Event Matters

Three structural consequences:

1. Survival of the enhanced-interrogation program past the Goldsmith withdrawal. When Goldsmith withdrew the Bybee memo in June 2004, the CIA program was briefly suspended. The Bradbury May 2005 memos restored operational authorization and enabled the program to continue through approximately 2008. Without the Bradbury memos, the program would likely have been permanently terminated in 2004.

2. Doctrinal model: narrow legal architecture, same operational outcome. Bradbury’s innovation — conclude that the techniques don’t violate the statute rather than argue that the statute doesn’t bind — became a template for later OLC work. The framework is more defensible in litigation and less vulnerable to withdrawal than the Yoo/Bybee maximalism. This pattern recurs across subsequent OLC output on surveillance (post-STELLAR WIND reconstruction), on executive privilege, and on emergency-powers invocations. When the Trump-1 and Trump-2 OLC has pursued unitary-executive claims, it has generally followed Bradbury’s narrower-architecture model rather than Yoo’s maximalist model.

3. OPR misconduct finding — and its limits. The 2009 DOJ Office of Professional Responsibility report concluded that Yoo and Bybee had engaged in professional misconduct. OPR reached no misconduct finding against Bradbury. The finding was itself evidence of Bradbury’s success at the doctrinal-reconstruction task: his memos were legally aggressive but intellectually and procedurally defensible.

Broader Context

Steven G. Bradbury served as Principal Deputy Assistant Attorney General at OLC from April 2004 and as Acting head from June 2005 through January 2009. Senate Democrats repeatedly blocked his formal confirmation as AAG after learning of his authorship of the enhanced-interrogation memos. He never held the permanent OLC head title, operating as “acting” for three and a half years.

Bradbury’s post-Bush career took a long pause. He was in private practice 2009-2017. In June 2017, Trump-1 nominated him to be General Counsel of the Department of Transportation. His nomination was contested in Senate Commerce Committee proceedings specifically on the basis of the torture-memo record. He was confirmed in November 2017 on a 50-47 party-line vote. He served at DOT through January 2021, during which period he participated in OLC-adjacent legal work on Trump-1 emergency-powers and IEEPA-related questions.

Bradbury has not publicly engaged with Trump-2 administration legal positions as of April 2026. Whether he has any formal or informal advisory role in the current administration is not publicly documented.

The Bradbury memos were publicly released by the Obama administration on April 16, 2009 2009-04-16–obama-releases-torture-memos-no-prosecutions. The release was followed by a public pledge of non-prosecution for CIA personnel who had relied on OLC opinions in good faith. No prosecutions have ever been brought against OLC attorneys, CIA interrogators, or CIA medical personnel involved in the program.

Research Gaps

• Bradbury’s full OLC output 2005-09: substantial classified OLC work on FISA, Section 702 predicates, executive privilege, and interrogation-related matters remains unreleased.
• Bradbury’s Trump-1 DOT role and post-2021 activity: his engagement with Trump-1 OLC-adjacent legal questions is partially documented; his post-January 2021 professional activity is not fully public.
• Internal OLC dissent during Bradbury’s tenure: some indications in the 2009 OPR report, but the full record is not public.

Actors involved

• Steven G. Bradbury: Acting OLC head; principal author.
• Alberto Gonzales: Attorney General from February 2005; memo supervision.
• John A. Rizzo: CIA Senior Deputy General Counsel; principal CIA liaison on memo drafting; memo addressee.
• David Addington: Counsel to VP Cheney; principal external coordinator of OLC output on interrogation.
• Dick Cheney: Vice President; architect of the broader executive-power agenda.
• George Tenet / Porter Goss / Michael Hayden: sequential CIA Directors during the program.

Consequences

The Bradbury memos authorized the CIA enhanced-interrogation program for approximately four years (May 2005 – approximately 2008, with narrowing after December 2005 McCain Amendment and October 2006 Military Commissions Act). The program was formally ended by Obama EO 13491 on January 22, 2009.

The doctrinal legacy is subtler than Bybee’s: Bradbury’s narrower-architecture model — statutes apply but don’t prohibit the conduct — is the dominant contemporary OLC approach to unitary-executive questions. When the Trump-2 Solicitor General briefs Trump v. Wilcox and Slaughter v. FTC, the analytical posture follows Bradbury rather than Yoo: Humphrey’s Executor is narrowly read rather than argued to be wrongly decided; removal power is located within a restrictive reading of the statute rather than in Article II’s overriding of the statute. The Bradbury model is the current OLC’s governing methodology.

See olc-memo-lineage for the mechanism-level treatment of the Reagan-through-Trump-2 OLC doctrinal lineage of which this reconstruction is Stage 6.