The Bush Administration has been breaking the law for a while now. According to the 1998 Vacancies Reform Act, they cannot keep a non-Senate-confirmed in an “Acting” role for longer than 210 days without being confirmed. This was pointed out to the Bush Administration in an October letter sent by several Senators, including Kennedy, Feingold and Durbin (from TPM Document collection). No action on bringing forth a new appointee, of course. The good background is over there on TPMmuckraker, including why Mr. Bradbury will never be confirmed by the Senate:

Throughout 2006, Bradbury argued forcefully that the Supreme Court’s rejection of the administration’s military tribunals in terrorism cases was incorrectly decided. He argued that Geneva Conventions language barring “humiliating and degrading treatment” was hopelessly vague, and subject to “uncertain and unpredictable application.” He was a leading advocate of the Military Commissions Act of 2006, which revoked habeas corpus for terrorism detainees. He authored an opinion immunizing ex-White House counsel Harriet Miers from testifying in the U.S. attorneys investigation. And, most infamously, he apparently authored secret memoranda reauthorizing torture techniques, including waterboarding.

Why is this important? Well, the Senate is in session this Christmas, and the Republicans are whining. The Senate will be in session for thirty seconds or so because Harry Reid is tired of recess appointments, and because Harry Reid has decided to draw the line at Steven Bradbury, a torture apologist, being appointed as Assistant Attorney General. Here’s some of that Republican whining from Peter Baker of the Washington Post (reprinted in the Philadelphia Inquirer):

The White House, unsurprisingly, views it differently. From its perspective, the Senate warped the equation by routinely holding up even unobjectionable nominees for political reasons or no discernible reason at all. More than 165 nominations are pending, White House officials said, so the recess appointment becomes a necessary corrective tool to fill vacancies and keep government moving.

“The Senate’s role is to advise and consent, not attack and condemn,” said White House spokesman Tony Fratto. “This harassment of nominees turns away qualified people who would otherwise want to serve their country. This is just another example of the breakdown of Congress under this leadership.”

Of course, the White House doesn’t address the Senate distaste for Steven Bradbury at all, though the article by Baker details the bargain Harry Reid offered up, the confirmation of dozens and dozens of nominees in exchange for Bush pulling the Bradbury nomination. Yeah, this amazing Christmas Day session of the Senate is there for one reason, to keep a torture advocate from being appointed permanently by the President. The President’s people, of course, won’t discuss Bradbury at all.

I say Reid should make some more moves that this extended session in order to prevent the recess appointment. After all, Bradbury is still illegally in the job, and the Bush Administration, last I heard, has not answered why they are breaking the law with Bradbury, completely unconfirmable, still in that position. Surely this is contempt of the law, or contempt of Congress, or something like that. I’m thinking this Imperial Presidency needs to be challenged more forcefully. Still, it is nice to see that Harry Reid is working to prevent Bush Administration chicanery, even if it is just to prevent permanent appointment of a man illegally already in the “Acting” role.

And, as always, it’s good to point out yet another example of Bush Administration whining. But let’s make sure to get this straight. Bush himself is being petulant here. He wants his waterboarder, even in the midst of reports of records of this torture technique being destroyed. Bush knows there is no chance of Bradbury ever getting confirmed, and with a controversy concerning the CIA tapes being erased, there’s not even much chance that any Republicans will vote for the guy. That’s petulance, not principle, unless, of course, Bush’s principle is that he wants every man who defends him on the use of torture to get a permanent job in this administration. So, not just whining, but petulance, and once more the Bush Administration looks far more like an overtired four year old protesting a bedtime than it does a duly elected group serving our interests.