U.S. DEPARTMENT OF HOMELAND SECURITY INSPECTOR GENERAL REPORT OIG-08-
18, `THE REMOVAL OF A CANADIAN CITIZEN TO SYRIA'
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
AND THE
SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS, AND
OVERSIGHT
OF THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JUNE 5, 2008
__________
Serial No. 110-101 Serial No. 110-196
(Committee on the Judiciary) (Committee on Foreign Affairs)
----------
Printed for the use of the Committee on the Judiciary and the
Committee on Foreign Affairs
Available via the World Wide Web: http://judiciary.house.gov
and http://foreignaffairs.house.gov
----------
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Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
KEITH ELLISON, Minnesota DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
COMMITTEE ON FOREIGN AFFAIRS
HOWARD L. BERMAN, California, Chairman
GARY L. ACKERMAN, New York ILEANA ROS-LEHTINEN, Florida
ENI F.H. FALEOMAVAEGA, American CHRISTOPHER H. SMITH, New Jersey
Samoa DAN BURTON, Indiana
DONALD M. PAYNE, New Jersey ELTON GALLEGLY, California
BRAD SHERMAN, California DANA ROHRABACHER, California
ROBERT WEXLER, Florida DONALD A. MANZULLO, Illinois
ELIOT L. ENGEL, New York EDWARD R. ROYCE, California
BILL DELAHUNT, Massachusetts STEVE CHABOT, Ohio
GREGORY W. MEEKS, New York THOMAS G. TANCREDO, Colorado
DIANE E. WATSON, California RON PAUL, Texas
ADAM SMITH, Washington JEFF FLAKE, Arizona
RUSS CARNAHAN, Missouri MIKE PENCE, Indiana
JOHN S. TANNER, Tennessee JOE WILSON, South Carolina
GENE GREEN, Texas JOHN BOOZMAN, Arkansas
LYNN C. WOOLSEY, California J. GRESHAM BARRETT, South Carolina
SHEILA JACKSON LEE, Texas CONNIE MACK, Florida
RUBEN HINOJOSA, Texas JEFF FORTENBERRY, Nebraska
JOSEPH CROWLEY, New York MICHAEL T. McCAUL, Texas
DAVID WU, Oregon TED POE, Texas
BRAD MILLER, North Carolina BOB INGLIS, South Carolina
LINDA T. SANCHEZ, California LUIS G. FORTUNO, Puerto Rico
DAVID SCOTT, Georgia GUS BILIRAKIS, Florida
JIM COSTA, California VACANT
ALBIO SIRES, New Jersey
GABRIELLE GIFFORDS, Arizona
RON KLEIN, Florida
BARBARA LEE, California
Robert R. King, Staff Director
Yleem Poblete, Republican Staff Director
------
Subcommittee on International Organizations,
Human Rights, and Oversight
BILL DELAHUNT, Massachusetts, Chairman
RUSS CARNAHAN, Missouri, DANA ROHRABACHER, California
Vice Chair RON PAUL, Texas
DONALD M. PAYNE, New Jersey JEFF FLAKE, Arizona
GREGORY W. MEEKS, New York
JOSEPH CROWLEY, New York
Cliff Stammerman, Subcommittee Staff Director
Natalie Coburn, Subcommittee Professional Staff Member
Paul Berkowitz, Republican Professional Staff Member
Elisa Perry, Staff Associate
C O N T E N T S
----------
JUNE 5, 2008
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 2
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 5
The Honorable William D. Delahunt, a Representative in Congress
from the State of Massachusetts, and Chairman, Subcommittee on
International Organizations, Human Rights, and Oversight....... 6
The Honorable Dana Rohrabacher, a Representative in Congress from
the State of California, and Ranking Member, Subcommittee on
International Organizations, Human Rights, and Oversight....... 14
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 15
WITNESSES
Mr. Richard L. Skinner, Office of the Inspector General, U.S.
Department of Homeland Security
Oral Testimony................................................. 18
Prepared Statement............................................. 21
Mr. Clark Kent Ervin, Director, Homeland Security Program, The
Aspen Institute
Oral Testimony................................................. 36
Prepared Statement............................................. 37
Mr. Scott Horton, Distinguished Visiting Professor, Hofstra Law
School
Oral Testimony................................................. 38
Prepared Statement............................................. 42
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Chairman, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 4
Prepared Statement of the Honorable William D. Delahunt, a
Representative in Congress from the State of Massachusetts, and
Chairman, Subcommittee on International Organizations, Human
Rights, and Oversight.......................................... 8
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Chairman, Committee on the Judiciary, and Member, Subcommittee
on the Constitution, Civil Rights, and Civil Liberties......... 16
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Member,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 81
Document from the Department of Homeland Security, Office of
Inspector General entitled (U) The Removal of a Canadian
Citizen to Syria............................................... 82
U.S. DEPARTMENT OF HOMELAND SECURITY INSPECTOR GENERAL REPORT OIG-08-
18, `THE REMOVAL OF A CANADIAN CITIZEN TO SYRIA'
----------
THURSDAY, JUNE 5, 2008
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary, and the
Subcommittee on
International Organizations,
Human Rights, and Oversight,
Committee on Foreign Affairs
Washington, DC.
The Subcommittees met, pursuant to notice, at 10:42 a.m.,
in Room 2141, Rayburn House Office Building, the Honorable
Jerrold Nadler (Chairman of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties) presiding.
Present from the Subcommittee on the Constitution, Civil
Rights, and Civil Liberties: Representatives Conyers, Nadler,
Ellison, Watt, Franks, Issa, and King.
Present from the Subcommittee on International
Organizations, Human Rights, and Oversight: Representatives
Delahunt and Rohrabacher.
Staff present from the Subcommittee on the Constitution,
Civil Rights, and Civil Liberties: David Lachman, Majority
Chief of Staff; Heather Sawyer, Majority Counsel; Elliot
Mincberg, Majority Counsel; Caroline Mays, Majority
Professional Staff Member; Sean McLaughlin, Minority Chief of
Staff and General Counsel; Paul Taylor, Minority Counsel;
Crystal Jezierski, Minority Counsel; and Allison Halataei,
Minority Counsel.
Staff present from the Subcommittee on International
Organizations, Human Rights, and Oversight: Cliff Stammerman,
Majority Staff Director; Natalie Coburn, Majority Professional
Staff Member; Paul Berkowitz, Minority Professional Staff
Member; and Elisa Perry, Majority Staff Associate.
Mr. Nadler. [Presiding.] This joint hearing of the
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties and the Subcommittee on International Organizations,
Human Rights, and Oversight will come to order. Without
objection, the Chair is authorized to declare a recess of the
hearing.
I will now recognize myself for a 5-minute opening
statement.
Today's hearing will continue the Subcommittee's
investigation into the matter of Maher Arar and this
Administration's policy of what has been described as rendition
to torture. Today, 4\1/2\ years after Chairman Conyers' initial
request, the Inspector General's report on this matter is
finally being released to the public in a redacted form. I
especially want to commend the Chairman, Mr. Conyers, for his
work on this and for his efforts to bring out the truth on this
terrible incident.
I am pleased to be joined by our colleague, the gentleman
from Massachusetts, Mr. Delahunt, the Chairman of the
Subcommittee on International Organizations, Human Rights, and
Oversight, who will be co-chairing this hearing. The gentleman
has done an extraordinary job of investigating this matter and
I am pleased to continue our partnership investigations.
We will now proceed, and I amend what I said a moment ago
about the 5 minutes, to Members' opening statements. As has
been the practice of the Subcommittee, I will recognize the
Chairs and Ranking Members of the Subcommittees and of the full
Committees to make opening statements. In the interests of
proceeding to our witnesses and mindful of our busy schedules,
I would ask that other Members submit their statements for the
record. Without objection, all Members will have 5 legislative
days to submit opening statements for inclusion in the record.
The Chair now recognizes himself for 5 minutes for an
opening statement.
Today, 4\1/2\ years after Chairman Conyers' initial request
for an investigation, we will begin to get the facts about the
Administration's transfer of a Canadian citizen, Maher Arar, to
Syria, a country listed by our State Department as engaging in
torture. Specifically, we will examine the report of the
Department of Homeland Security's Inspector General in the
case.
Maher Arar, a Canadian citizen, was seized by our
Government as he was changing planes at Kennedy Airport while
returning from vacation in Tunisia to his home in Canada. Our
Government detained and interrogated him for 2 weeks and then
handed him over to the Syrians, who imprisoned him for 1 year
and tortured him. We have been told by the Administration that
the United States takes seriously its obligations under the
Convention Against Torture, and under the laws of the United
States, not to hand people over to governments that will
torture them.
We have been specifically told by Attorneys General John
Ashcroft and Alberto Gonzales, as well as by Secretary of State
Condoleezza Rice, that in the case of Mr. Arar, the law was
followed, that the United States obtained from the Syrians
``assurances'' that he would not be tortured. But as we now
know from the Canadian government's commission of inquiry into
this case, the Syrians did what our Government says they always
do. They tortured him.
It has taken 4\1/2\ years since Chairman Conyers' original
request in a December 16, 2003 letter asking the Inspector
General to investigate this matter and to get some of the facts
in the open. We finally have this redacted report. Today, the
Inspector General's report with classified material blacked out
is finally being made public. Even in its redacted form, it is
a deeply disturbing document. The facts it lays out raise
serious questions not just of fact, but of law, that demand
answers.
What does the report reveal? From the report, ``the INS
concluded that Arar was entitled to protection from torture and
returning him to Syria would more likely than not result in
torture.''
``The assurances upon which INS based Arar's removal were
ambiguous regarding the source or authority purporting to bind
the Syrian government to protect Arar.'' In other words, the
INS concluded he was probably going to be tortured and that the
assurances provided that he would not be were ambiguous as to
whether they were authoritative or what the source was.
``The validity of the assurances to protect Arar appears
not to have been examined.'' In other words, it is reasonable
to conclude that the INS knew or fully suspected that we were
handing over Arar to probable torture. The government took
steps to conceal Mr. Arar's whereabouts and to prevent him from
contacting his family or from speaking with counsel.
The general counsel of the Department of Homeland Security
insisted that the Inspector General sign an agreement reprinted
in the report to give the department virtual veto power over
what could be shared or made public, even setting conditions on
the circumstances under which information could be shared with
Congress. It was, to put it mildly, a case of allowing an
Agency to set the rules for the investigation of its own
conduct.
Now that this report is public, people will be able to read
it and judge for themselves whether the delay and the secrecy
was excessive, and whether that delay and secrecy was part of
an effort to protect the security of the Nation, or part of an
effort to protect the Administration from having immoral
actions made public. People should read this report and decide
for themselves.
We also need to consider whether the law was violated in
this case. The Inspector General's report stated that he has
been unable to determine whether or not laws were violated at
least, in part, because key witnesses refused to cooperate with
his investigation. But the report seems overly cautious in its
conclusions. A fair reading of the facts revealed in the report
indicates that the Administration knowingly violated the
obligations this Nation has agreed to observe under the
Convention Against Torture.
A fair reading reveals that the Administration knowingly
violated our Nation's laws against conspiracy to commit
torture. A fair reading reveals that the Administration
knowingly violated our laws governing the treatment of persons
passing through our ports of entry or who are detained on our
soil. A fair reading would seem to indicate that Administration
officials, including Secretary of State Condoleezza Rice and
Attorneys General John Ashcroft and Alberto Gonzales materially
misrepresented the facts and misled the Congress in their
testimony on this issue.
We need to strengthen our laws to ensure that our Nation
does not again become a party to torture by a country like
Syria, which the Administration has identified as a country
that tortures and is a state sponsor of terrorism. This case
and the rendition policy generally gets more disturbing with
each bit of information we obtain. The fact that it has taken
more than 4 years to obtain even this limited amount of
information in the report is itself very disturbing.
I look forward to the testimony of our witnesses, and I can
assure my colleagues that this is not the end of our
investigation. I yield back the balance of my time.
[The prepared statement of Mr. Nadler follows:]
Prepared Statement of the Honorable Jerrold Nadler, a Representative in
Congress from the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties
Today, four and a half years after Chairman Conyers' initial
request for an investigation, we will begin to get the facts about this
Administration's transfer of a Canadian, Maher Arar, to Syria, a
country listed by our State Department as engaging in torture.
Specifically, we will examine the report of the Department of
Homeland Security's Inspector General on the case. Maher Arar, a
Canadian citizen, was seized by our government as he was changing
planes at Kennedy Airport while returning from vacation to his home in
Canada. Our government detained and interrogated him for two weeks and
then handed him over to the Syrians who imprisoned him for one year and
tortured him.
We have been told by this Administration that the United States
takes seriously its obligations under the Convention Against Torture,
and under the laws of the United States, not to hand people over to
governments that will torture them. We have been specifically told by
Attorneys General John Ashcroft and Alberto Gonzales, as well as by
Secretary of State Condolezza Rice, that, in the case of Mr. Arar, the
law was followed, and that the United States obtained from the Syrians
``assurances'' that he would not be tortured.
But, as we now know from the Canadian Commission inquiry into this
case, the Syrians did what our government has always said they do: they
tortured him.
It has taken four and a half years, since Chairman Conyers'
original request, in a December 16, 2003 letter asking the Inspector
General to investigate this matter, to get some of the facts out in the
open.
Today, the Inspector General's report, with classified material
blacked out, is finally being made public. It is, even in its redacted
form, a deeply disturbing document. The facts it lays out raise serious
questions not just of fact, but of law, that demand answers.
What does the report reveal?
From the report: ``The INS concluded that Arar was entitled to
protection from torture and that returning him to Syria would more
likely than not result in torture.''
``The assurances upon which INS based Arar's removal were ambiguous
regarding the source or authority purporting to bind the Syrian
government to protect Arar.''
``The validity of the assurances to protect Arar appears not to
have been examined.''
In other words, it is reasonable to conclude that the INS knew that
we were handing over Arar to probable torture.
The government took steps to conceal Mr. Arar, and prevent him from
contacting his family or speaking with counsel.
The General Counsel of the Department of Homeland Security insisted
that the Inspector General sign an agreement, reprinted in the report,
to give the Department virtual veto power over what could be shared or
made public, even setting conditions on the circumstances under which
information could be shared with Congress. It was, to put it mildly, a
case of allowing an agency to set the rules for an investigation of its
own conduct.
Now that this report is public, people will be able to read it and
judge for themselves whether the delay and the secrecy was excessive,
and whether that delay and secrecy was part of an effort to protect the
security of the nation or an effort to protect the Administration from
having immoral actions made public.
People should read this report and decide for themselves.
We also need to consider whether the law was violated in this case.
The Inspector General's report stated that he has been unable to
determine whether or not laws were violated, at least in part because
key witnesses refused to cooperate with his investigation. But the
report seems overly cautious in its conclusions.
A fair reading of the facts revealed in the report indicates that
the Administration knowingly violated the obligations this nation has
agreed to observe under the Convention Against Torture.
The Administration knowingly violated our nation's laws against
conspiracy to commit torture.
The Administration knowingly violated our laws governing the
treatment of persons passing through our ports of entry, or who are
detained on our soil.
Administration officials, including Secretary of State Condoleezza
Rice and Attorney General John Ashcroft and Alberto Gonzales,
materially misrepresented the facts and misled the Congress in their
testimony on this case.
We need to strengthen our laws to ensure that our nation does not
again become a party to torture by a country like Syria, which the
Administration has identified as a country that tortures and is a state
sponsor of terrorism.
This case, and the rendition policy, generally gets more disturbing
with each bit of information we obtain, and the fact that it has taken
more than four years to obtain even this limited amount of information
in the report is itself very disturbing.
I look forward to the testimony of our witnesses, and I can assure
my colleagues that this is not the end of our investigation.
I yield back the balance of my time.
Mr. Nadler. I would now recognize the distinguished
Chairman of the full Committee on the Judiciary for 5 minutes,
the distinguished Chairman from Michigan.
Mr. Conyers. Thank you, Chairman Nadler. I never go before
Subcommittee Chairmen when we have joint hearings. It is my
custom to allow all you big guns on the Committee to go first,
and I will come back a little later on. Thank you very much.
Mr. Nadler. I thank the gentleman.
The Chair now recognizes the distinguished Ranking Member
of the Subcommittee on the Constitution, Civil Rights, and
Civil Liberties, the gentleman from Arizona, Mr. Franks, for 5
minutes.
Mr. Franks. Thank you, Mr. Chairman.
Mr. Chairman, I just want to say in the preface of my
remarks here that any injustice to anyone is an oversight on
the part of everyone. I personally am disturbed by some of the
things that occurred here. I guess the purpose of my remarks
here today are to try to put in context America's role in all
of that.
The Department of Homeland Security's Office of Inspector
General investigated the case of Mr. Maher Arar, and on
Tuesday, June 2, 2008, that office issued a 52-page extended
unclassified report stating, ``INS appropriately determined
that Mr. Arar was inadmissible under relevant provisions of
immigration law.'' It also stated that ``ICE concurred with our
recommendations, and that is those of the report, and has taken
steps to implement them.
``It does not appear that any INS personnel whose
activities we reviewed violated any then-existing law,
regulation or policy with respect to the removal of Arar. We
have received ICE's responses to the recommendations and
consider both recommendations resolved and closed.''
Mr. Chairman, I look forward to hearing more about the
process that led to the IG's report and how and whether
additional information about this case can be made public in
unclassified form. The final report of the Canadian commission
released in September, 2006, concluded that the Canadian
officials provided U.S. authorities with inaccurate information
regarding Mr. Arar that led to his transfer to Syria.
The Canadian report entitled Commission of Inquiry into the
Actions of Canadian Officials in Relation to Maher Arar, made
clear that the Canadian government did have reason to be
suspicious of Mr. Arar as he seemed to be close to Abdullah
Almaki, who is believed to be a member of al-Qaida. As the
Canadian commission stated in its report, ``Canadian
authorities properly considered Mr. Arar to be a person of
interest in its investigation. While the meeting might have
been innocent, there were aspects of it that reasonably raised
investigators' antennae. Mr. Almaki and Mr. Arar were seen
walking together in the rain and conversing for 20 minutes.
Given that Mr. Almaki was a target of this investigation, it
was reasonable for Canadian authorities to investigate Mr.
Arar. Mr. Arar was properly a person of interest to the
investigators who were aware that he had met with Mr. Almaki
and that he had listed him as an emergency contact on his
rental application, indicating that he might have close ties.''
Mr. Chairman, 4 years later, Canadian officials would
correct this information. But be that as it may, it appears
that the situation which Mr. Arar ultimately found himself in
2002 was caused by Canadian officials who provided the U.S.
with inaccurate negative information in 2002 regarding Mr. Arar
and the threat he might pose to our national security. That
inaccurate negative information went well beyond the facts that
made Mr. Arar an appropriate person of interest.
The official Canadian commission concluded that the Royal
Canadian Mounted Police provided American authorities with
information about Mr. Arar that was inaccurate and portrayed
him in an unfairly negative fashion. The report further
concluded that, ``it is very likely that in making the
decisions to detain and remove Mr. Arar, American authorities
relied on information about Mr. Arar provided by Canadian
authorities.''
Some examples follow: the description of Mr. Arar as being
a member of a group of Islamic extremist individuals suspected
of being linked to the al-Qaida terrorist movement; several
references to Mr. Arar as a suspect, principal target, or
target or important figure; and the assertion that Mr. Arar had
refused an interview with Canadian authorities.
So what we are left with the official Canadian
investigation of this incident is that whatever decisions were
made by American authorities, they were driven by inaccurate
information provided by Canadian authorities that case Mr. Arar
in a negative light that went far beyond what was warranted by
the facts.
I truly and sincerely regret any injustice that may have
occurred to Mr. Arar by any hands in any country, and I very
much want to hear any additional information about this case
that our witnesses can tell us today. I look forward to your
testimony.
I yield back.
Mr. Nadler. I thank the gentleman.
I would now recognize for 5 minutes the distinguished
Chairman of the Subcommittee on International Organizations,
Human Rights, and Oversight, the co-Chairman of this hearing,
the gentleman from Massachusetts, Mr. Delahunt.
Mr. Delahunt. Thank you, Chairman Nadler. I thank top-gun
himself for deferring to big guns so that we could proceed.
First, I heard the opening statement of the Ranking Member,
and I have great respect for him, and I know he is sincere in
his statements. I would also remind those on the panel that
myself, Mr. Rohrabacher, Mr. Nadler, and Mr. Franks, apologized
publicly to Mr. Arar at an earlier hearing which I chaired over
in the Foreign Affairs Committee.
But I also would note that in the report by the Inspector
General, it stated that the Joint Terrorism Task Force
investigators at the time concluded that they had no interest
in Arar as an investigative subject. That is the report that is
before us today. Something happened afterwards. I would hope
that Mr. Skinner would reconsider and reopen his efforts in
terms of determining what happened because I have to
acknowledge some disappointment with the new redacted report.
I still do not know the answer to two key questions. On
what basis did our Government determine that it would be
prejudicial to the interests of the United States to send Mr.
Arar back to Canada? I am unaware of any designation in terms
of Canada that they are a state sponsor of terrorism. Since
when and under what circumstances would the United States's
interests be prejudiced if Mr. Arar returned to Canada? I would
suggest that is an offense to our friends, our neighbors, and
our erstwhile ally Canada.
And another unanswered question is, what assurances did
Syria give that Arar would not be tortured if he were to be
sent there? What is the answer to that question? Well, as I
indicated, in terms of the first question, I am baffled because
there is no explanation in the report. I do not know whether
the Office of Inspector General asked or perhaps you did, but
there was no evidence to provide a justification that it would
hurt the interests of the United States to send Mr. Arar back
to Canada. I hope we can get to the bottom of that today.
On the second point, I read the following line from the
redacted report and from your testimony, Mr. Skinner. ``The
assurances upon which INS based Arar's removal were ambiguous
regarding the source or authority purporting to bind the Syrian
government.'' How could it be that the Office of Inspector
General found that the INS appropriately followed procedures to
implement the Convention Against Torture when the assurances
were ambiguous regarding the source or the authority?
Nor does the report even address my main concern about the
assurances, which is how could any assurances from Syria be
deemed reliable? This is, after all, the country that President
Bush himself cited for its legacy of torture, oppression,
misery and ruin, and that the State Department routinely
condemns in its annual country reports for torture. And now we
hear that the assurances received from this country were
ambiguous to its source and authority. I find that incredulous.
How assurances from an unknown source within a government
that routinely tortures, according to President Bush, are found
sufficiently reliable for purposes of the Convention Against
Torture, is simply beyond me.
I believe the difficulties faced with this report are
symptomatic of a larger problem, which is the failure of the
Bush administration to come to terms with its own mistakes.
Now, the Canadian government has sent an outstanding example of
how a healthy, viable democratic government should act when it
commits a mistake, and our Government should follow their lead.
With that, I yield back.
[The prepared statement of Mr. Delahunt follows:]
Prepared Statement of the Honorable William D. Delahunt, a
Representative in Congress from the State of Massachusetts, and
Chairman, Subcommittee on International Organizations, Human Rights,
and Oversight
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. I thank the gentleman.
I would now recognize for 5 minutes the distinguished
Ranking minority Member of the Subcommittee on International
Organizations, Human Rights, and Oversight, the gentleman from
California, Mr. Rohrabacher.
Mr. Rohrabacher. Thank you very much, Mr. Chairman.
I remember this hearing and this issue very well. I think
it was very clear after going through the facts that Mr. Arar
had suffered unjustly and was indeed an unintended victim of
America's efforts to try to prevent another terrorist attack
that would have cost the lives of thousands of Americans.
Although the goal was not, obviously, to waste our time and
our resources, but also to act roughshod and immorally in a way
that would result in the mistreatment of people like Mr. Arar,
who would unfortunately suffer unintentionally as a part of
this effort. The fact is that we know that every major effort
at providing security for this country and the West will result
in an unintended suffering by certain individuals because
people make mistakes in trying to implement policy no matter
how noble that policy.
When we do so, it is incumbent--and if I have any criticism
of this Administration since 9/11, it has been that we have
been unwilling to admit mistakes like this readily, and to
offer our apologies and compensation to people like Mr. Arar.
And there are a number of people like Mr. Arar obviously who
are innocent and were caught up in this incredible effort that
we have made to prevent another major terrorist attack on our
country. So there is some criticism that I think is justified
in that we did not admit right away when it became evident that
the Canadians had given us false information.
That does not, however, mean that the tactics used against
Mr. Arar had he been a terrorist are necessarily the wrong
decisions that would have been made had he been a terrorist,
which is an issue that we need to discuss at this hearing. I
think it is something that we need as a people to determine how
far we are willing to go with people who are terrorists--not
mistakes, but people who are terrorists--in order to get
information, and what is an effective method of doing so in
order to prevent the massive death of our citizens who have
been targeted by terrorist organizations that mean to terrorize
the people of the United States by slaughtering the people of
the United States.
There is, as I say, a debate, and I think this is a good
and appropriate place for us to have that debate. But let us
not pretend that this that we are talking about, the activities
of an innocent or the suffering of an innocent person being the
intentional outcome of American policy. The American policy's
intent was designed to prevent another major terrorist attack
on the people of the United States, and quite frankly, I think
that policy has been successful. We have not suffered another
9/11, and people have to realize that has not been a gift from
God. That has been a result of American policy.
Now, I believe that hearings like this, yes, we need to
discuss these issues, but let me remind my colleagues--and I
have used this example on a number of occasions--and that is
prior to the invasion of Normandy on D-Day of June 6, 1944, the
week prior to that invasion American military opened up on
Normandy and killed 9,000 Frenchmen. That is more Frenchmen
than had been killed during the entire occupation by Nazi
Germany in France.
Now, this would be the equivalent. If we constantly harp on
those 9,000 people, that would be the equivalent of
concentrating totally on Arar as an analysis of what we have
done to try to prevent 9/11s. Should we have hung our head in
shame that 9,000 Frenchmen died as we were preparing the
landings at Normandy? Should there be a monument that American
military and diplomatic personnel visiting that monument of
shame to all those innocent people that were killed?
No, our intent was not to kill those innocent Frenchmen.
Our intent was to liberate Europe from the Nazi domination, and
that was just as noble a goal as the goal of trying to prevent
another 9/11 that would result in the death of thousands of
Americans. Our apology should be to those people who we are
unintended victims because of mistakes made in the
implementation of the policy. There will always be such
mistakes. There will always be such victims no matter how noble
the goal.
Again, if I cite any mistake of this Administration, it has
been the unwillingness to admit certain mistakes and correct
those things and to make it right as much as can be made right
by people who have been dealt an injustice.
Thank you very much, Mr. Chairman.
Mr. Nadler. I thank the gentleman.
I would observe that the rules prohibit any demonstrations
or holding of signs or anything, so I would ask that the person
who was doing so a moment ago not do so and that no one do so.
I would now recognize for 5 minutes the distinguished
Chairman of the full Committee, Mr. Conyers.
Mr. Conyers. Thank you very much.
After hearing four impressive opening statements, I find I
have very little to add. So I am going to ask that my
statement, which I think you will find equally as impressive as
the ones that you have heard, that you read it. The only one
thing I am trying to find out between my present and former
Inspector Generals is how in heaven's name that it takes 4\1/2\
years for me to get a redacted report on a subject like this.
To have both of you here is very consoling to me.
Now, I am always happy to see my strong Members on the
other side from Judiciary here--Steve King and Darrell Issa--
because they are strong contributors to this. But I close with
this observation, and I do not wear my religion on my sleeve,
but how does my internationally renowned surfer from California
know that God didn't have anything to do with this? I leave
this maybe the subject of another hearing. [Laughter.]
But it intrigues me greatly.
I thank you very much, Mr. Chairman, and yield back my
time.
Mr. Nadler. I thank the gentleman.
Without objection, the gentleman's statement will be
inserted into the record.
[The prepared statement of Chairman Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights,
and Civil Liberties
More than 4\1/2\ years ago, in December, 2003, I requested a
thorough Inspector General review of the troubling case of Maher Arar,
a Canadian citizen who was denied admission to the U.S. as he was
returning home and was instead sent against his will to Syria, where he
was imprisoned and reportedly tortured. It wasn't until last December,
4 years later, that I received that report from the Department of
Homeland Security IG. And it wasn't until this week, despite my request
in January, that even a heavily edited version of that report was made
ready for release to the public. This disturbing chronology leads me to
three questions that I hope our witnesses will address today.
First, why did it take so long to produce this report? The events
described happened almost 6 years ago. Canada appointed a commission on
this subject, and it released a report in 31 months.
Second, why have so many deletions of NON- classified material been
made to the public version of this report? By our count, there are at
least 24 such deletions in this 52-page report. By comparison, in the
recent Justice Department IG 370 page report on the FBI and detainee
interrogations, an extremely sensitive subject, there are ZERO
deletions of non-classified material. For today's hearing, I will
respect Mr. Skinner's request that I not disclose any such non-
classified material. But these deletions, as well as what I consider
over- classifications, continue to raise serious concerns.
Third, and perhaps most important, what does the report tell us
about the Arar case? Despite my concerns about what has been withheld,
what has been RELEASED in this report tells us a lot that is very
troubling. Among other things, the redacted report suggests that:
In Mr. Arar's case, the government deviated
significantly from the usual process when someone is found
inadmissible to the U.S. ``Most'' such persons, according to
the report, are returned to their country of embarkation (in
this case, Switzerland) or citizenship (in this case, Canada).
But Mr. Arar was involuntarily sent to Syria, where he was
reportedly tortured.
In fact, the IG states that INS concluded that it was
``more likely than not'' that Mr. Arar would be tortured if
sent to Syria, and sent him there only after receiving
``assurances'' that he would not be tortured, as provided in
the Convention Against Torture. But the report states that
those assurances were ``ambiguous'' and their validity
``appears not to have been examined.''
The report also strongly suggests that our government
mistreated Mr. Arar in other ways. The IG specifically
``question[s] the reasonableness of the length of time he was
given'' to ``respond to the charges against him'' and obtain
counsel, and states that the notification to him of the
interview to assess the torture issue was ``questionable.''
More information is needed on this issue, particularly since the IG
has told us that he has just reopened the investigation. But what we
all know already is very troubling, and I look forward to hearing from
our witnesses today. With that, I yield back.
Mr. Nadler. As we ask questions of our witnesses, the Chair
will recognize Members in the order of their seniority on the
Subcommittee and the Committee, alternating between majority
and minority and between the two Subcommittees, provided that
the Member is present when his or her turn arises. Members who
are not present when their turn begins will be recognized after
the other Members have had the opportunity to ask their
questions.
The Chair reserves the right to accommodate a Member who is
unavoidably late or only able to be with us for a short time.
The Chair will administer the 5-minute rule for both sides
flexibly so that we can have a full examination of this issue.
I want to welcome our distinguished panel of witnesses
today. Our first witness is Richard Skinner, the Inspector
General for the Department of Homeland Security. Mr. Skinner
was confirmed as the Department of Homeland Security Inspector
General on July 28, 2005. Between December 9, 2004 and July 27,
2005, he served as Acting Inspector General. He held the
position of Deputy Inspector General, Department of Homeland
Security, since March, 1, 2003--the date that the Office of
Inspector General in the Department of Homeland Security was
established.
Prior to his arrival at DHS, Mr. Skinner was with the
Federal Emergency Management Agency, where he served as the
Acting Inspector General from October, 2002 to February, 2003,
and Deputy Inspector General from 1996 to 2002. From 1991 to
1996, Mr. Skinner served at FEMA OIG as the Assistant Inspector
General for Audits. From 1988 to 1991, Mr. Skinner worked at
the U.S. Department of State OIG. During his tenure at State,
Mr. Skinner served as a senior inspector on more than a dozen
foreign and domestic inspections. In 1991, Mr. Skinner was
appointed by the IG to serve as the de facto Inspector General
for the Arms Control and Disarmament Agency.
From 1972 to 1988, Mr. Skinner held a variety of audit
management positions with the U.S. Department of Justice and
the U.S. Department of Commerce. He began his Federal career in
1969 with the OIG of the U.S. Department of Agriculture. Mr.
Skinner holds a bachelor of science degree in business
administration from Fairmont State College and an MPA from
George Washington University.
Clark Ervin is the director of the homeland security
program at the Aspen Institute. From January, 2003 to December,
2004, he served as the first Inspector General of the
Department of Homeland Security. Prior to his service at DHS,
he served as the Inspector General of the United States
Department of State from August, 2001 to January, 2003. His
service in the George W. Bush administration was preceded by
his service as the associate director of policy in the White
House Office of National Service in the George H. W. Bush
administration.
A native of Houston, Mr. Ervin served in the State
government of Texas from 1995 to 2001, first as Assistant
Scretary of State and then as the Deputy Attorney General. Mr.
Ervin earned a BA degree cum laude in government from Harvard
in 1980, and MA degree in politics, philosophy and economics
from Oxford University in 1982 as a Rhodes Scholar, and a JD
degree cum laude from Harvard Law School in 1985.
Our third witness is Scott Horton. Mr. Horton teaches
international public and private law, national security law,
and the law of armed conflict at Columbia Law School, and will
spend the coming academic year as distinguished visiting
professor at Hofstra Law School in Hampstead, New York. Mr.
Horton is a member of the board of the National Institute of
Military Justice, the Eurasia Group, and the American branch of
the International Law Association, and is a member of the
Council on Foreign Relations.
He was previously a partner at Patterson, Belknap, Webb and
Tyler. He holds his JD degree from the University of Texas at
Austin, and studied law at the Universities of Mainz and Munich
in Germany before coming to Austin.
Before we begin, it is customary for the Committee to
swear-in its witnesses. If you would please stand and raise
your right hands to take the oath.
[Witnesses sworn.]
Thank you. Let the record reflect that the witnesses
answered in the affirmative.
You may be seated.
I will now ask each witness to summarize his testimony in 5
minutes. There is a timer in front of you. It should indicate
green. When there is 1 minute left, it should indicate yellow.
And when the time has expired, it should indicate red. We would
ask that when the red light goes on, you try to sum up the
remaining part of your testimony, period.
I now recognize Mr. Skinner for 5 minutes.
TESTIMONY OF RICHARD L. SKINNER, OFFICE OF THE INSPECTOR
GENERAL, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Skinner. Good morning, Chairman Nadler, Chairman
Delahunt, Chairman Conyers, Ranking Members, and Members of the
Subcommittees. I am pleased to be here today.
Prior to this hearing, I provided the appropriate
congressional Committees and Subcommittees with copies of my
unredacted classified report on the removal of the Canadian
citizen, Maher Arar, to Syria. I also provided you with the
redacted unclassified version of the report, as well as a
formal statement for the record.
In so far as this is an open hearing, I am here today to
discuss the redacted unclassified version of the report. I will
be happy to talk further about the contents of the unredacted
version at your convenience in a more secure environment.
Before I begin my opening remarks, there are a couple of
comments I would like to make. First, I think it is important
to note that we have reopened our review of the Mr. Arar
matter. We recently received additional classified information
that could be germane to our findings. We are in the process of
validating the veracity of this information and if need be we
will publish a supplement to our existing report.
Secondly, I would like to comment on the challenges we
encountered while doing this work. It took us 4 years to
produce our report. No doubt, that is a long time, but we
diligently tried to the extent we could to tell the story and
tell it accurately. As frustrating as this must have been for
the Congress, it was equally if not more frustrating for me
personally and the inspection team.
At the time we began our review in January, 2004, the
department was still in its embryo stage of development. The
cooperation we received was not as good as it could have been
or should have been. I am pleased to say that we have since
overcome those issues. Cooperation between the department and
the OIG has improved dramatically.
To compound matters, we were hampered by the amount of time
that had elapsed--16 months between the time Mr. Arar was
removed to Syria and the time we began our review. While the
memories of some of the people we interviewed were extremely
vivid, memories of others had faded to the point that they only
vaguely remembered Arar's name.
Furthermore, we were unable to interview the principal INS
decision-makers involved in the Arar matter, including a former
INS commissioner, the former INS chief of staff, and the former
INS general counsel. They have left Government service and
declined our request for interviews. Many of the decisions
concerning Arar were made during conversations between those
individuals.
Nevertheless, even though the documentation of the events
was sparse, we were able to compile enough written records to
corroborate the information we obtained through the interviews
and to reconstruct significant events of this case. To muddy
the waters further, we had to contend with multiple components
within DHS, classified information outside the purview of the
department, and other Government agencies that did not have the
same sense of urgency as our inspectors.
We also had to contend with a pending lawsuit filed by Mr.
Arar's attorneys against the U.S. government and several
individually named U.S. government officials. Both Government
and private counsel expressed concern that our interviews of
some witnesses might constitute a waiver of privileges that
counsel would want to preserve in the litigation with Arar.
It has been almost 5\1/2\ years since Arar was removed from
the United States. This hearing is a long time coming, and I
want to thank the Members, and Chairman Conyers in particular,
for supporting our efforts to get this right and for keeping
the spotlight on this very important issue. It took time, but
we are committed to conducting thorough reviews and in
publishing accurate reports.
Let me now discuss the work itself. Mr. Arar was a dual
citizen of Canada and Syria. He arrived at JFK International
Airport on September 26, 2002 on a flight from Zurich,
Switzerland. He presented a Canadian passport for admission to
the United States as a non-immigrant in order to board a
connecting flight to Montreal, Canada. Mr. Arar did not
formally apply for admission to the United States, but because
he did not have a transit visa, by operation of law, he was
deemed to be an applicant for admission.
Mr. Arar was identified as a special interest alien who was
suspected of affiliation with a terrorist organization. He was
detained by inspectors for INS at JFK, questioned by Federal
agents, and transferred to a nearby Federal detention center.
INS determined Arar's inadmissibility to the U.S. on the
grounds that he was a member of a foreign terrorist
organization and was removed on Tuesday, October 8, 2002. INS
flew him to Amman, Jordan, and he was later taken into custody
by Syrian officials. After Arar returned to Canada in October,
2003, he alleged that he was beaten and tortured while in the
custody of the Syrian government.
Our review examined the basis for determining that Mr. Arar
was inadmissible to the United States, the rationale for
designating Syria as Mr. Arar's country of removal, and how INS
assessed Mr. Arar's eligibility for protection under the United
Nations Convention Against Torture. We concluded that INS
appropriately determined that Mr. Arar was inadmissible under
relevant provisions of immigration law. INS officials analyzed
derogatory information concerning Mr. Arar and sought
clarification. INS elected to remove Arar pursuant to section
235(c) of the Immigration and Nationality Act. By using a
section 235(c) proceeding, INS could use classified information
to substantiate the charge without any risk that the classified
information would be disclosed in an open hearing in an
immigration court.
Syria was designated as Mr. Arar's country of removal. INS
could have attempted to remove Mr. Arar to Canada, his country
of citizenship, or Switzerland, his point of embarkation into
the United States. Further, Mr. Arar specifically requested to
be returned to Canada and formally stated his opposition to
returning to Syria. However, the Acting Attorney General ruled
against removing Mr. Arar to Canada because that was determined
to be prejudicial to the interests of the United States. Also,
U.S. officials determined that they could choose any of the
three countries as a destination to remove Mr. Arar.
INS followed procedures for assessing Mr. Arar's
eligibility for protection under the United Nations Convention
Against Torture, CAT. INS supervisory asylum officers conducted
a protection interview of Mr. Arar on Sunday, October 6, 2002,
to ascertain whether Mr. Arar had a fear of returning to
Canada, Syria or any other country for that matter. Although
INS attempted to notify Mr. Arar's attorneys of the interview
at their offices that day, and I believe it was a Sunday, we
believe the timing and manner in which they were notified of
the protection interview was highly questionable.
INS concluded that Arar was entitled to protection from
torture and that returning him to Syria would more likely than
not result in his torture. However, we concluded that
assurances upon which INS based Arar's removal were ambiguous
regarding the source or authority purporting to bind the Syrian
government.
Based on this documentation we reviewed and the interviews
we conducted, it does not appear that any INS person violated
any then-existing law, regulation or policy in the removal of
Mr. Arar. However, I believe it is important to note that we
did not have the opportunity to interview all the individuals
involved in this matter.
This concludes my opening statement. I will be happy to
answer any questions you may have.
[The prepared statement of Mr. Skinner follows:]
Prepared Statement of the Honorable Richard L. Skinner
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. I thank the gentleman.
Our next witness is Mr. Ervin, who is recognized for 5
minutes for his statement.
TESTIMONY OF CLARK KENT ERVIN, DIRECTOR, HOMELAND SECURITY
PROGRAM, THE ASPEN INSTITUTE
Mr. Ervin. Thank you, Mr. Chairman, Ranking Members, and
Members for inviting me to testify today at this important
hearing. As you know, I was the Inspector General of the
Department of Homeland Security from its inception in January,
2003 to December, 2004. I was in this position, then, when
Chairman Conyers asked me in December, 2003 to undertake an
investigation of the circumstances under which Mr. Arar was
rendered to Syria.
Upon receipt of this request, my office and I promptly
began to investigate this matter, and we worked diligently to
try to obtain the necessary documents from DHS, and, if I
recall correctly, the Department of Justice as well, where the
necessary documents were DOJ's to release.
As I explained to you in my July, 2004 update letter, while
my staff and I had by then obtained access to a number of
classified documents, we were stymied in our efforts to
complement the review of those documents with a review of other
documents and interviews with present and former Government
officials.
Those efforts were blocked by the assertion of certain
privileges, namely attorney-client, attorney-work product, and
certain pre-decisional privileges. It was my view then,
expressed in the update letter, and it remains my view now,
that such privileges must yield to the broad authority of the
Inspector General under section 6(a)(1) of the Inspector
General Act. And in any event, I understand that there is
considerable legal support for the proposition that providing
information to an Inspector General does not constitute a
waiver of privileges that can be asserted by an Agency in
litigation with a third party.
Unfortunately, because of this legal dispute, we were not
able to complete our investigation of this matter prior to my
forced departure from office. Since leaving DHS at the end of
2004, I have followed the Arar case with great interest through
the news media. Like many, I had been anxiously awaiting the
release of my successor's report on this matter. Like many, I
was disappointed that the initial public version of the report,
released nearly 4 years after the start of the investigation,
said so little, citing legal privileges.
Had I still been in office, I would have asserted the
Inspector General's statutory authority to trump such
privileges and exercised that authority by disclosing
information relevant to the process the INS used to make the
determination to remove Mr. Arar. I believe that could have
been done in a way without disclosing legitimately asserted
privileges, as opposed to matter that was merely embarrassing
to our Government. It seems to me that at a minimum the public
version of this report should have explained exactly what
privileges were asserted, the rationale for their assertion,
and why the Inspector General felt compelled to acquiesce in
their assertion.
I did not see the initial classified version of the report,
of course, but I understand that the Inspector General refused
to publicly release those individual paragraphs of the initial
classified version that were themselves unclassified, or at
least summaries of them. It is my view that those paragraphs
should have been publicly released, especially if they are not
duplicative of the contents of the rather spare unclassified
initial version of the report and therefore could have
amplified it. At a minimum, there should have been, I believe,
a detailed explanation of why these paragraphs should not, in
the Inspector General's judgment, not DHS's or DOJ's, be
publicly disclosed.
I further understand that Chairman Conyers considered some
of the classified paragraphs in the initial classified version
of the report to be classified unnecessarily and that
accordingly he requested a paragraph-by-paragraph explanation
for such classification. I support the notion that while
certainly there is no right to disclose information that is
classified even if one believes that the information at issue
should not be classified, the classifying entity has an
obligation to provide an explanation for the view that such
information should be classified.
I drafted this testimony on Tuesday and submitted it that
day, which was the deadline for all witnesses to do so. I
learned yesterday afternoon that the Inspector General has now
substantially revised the classified version of the report and
submitted from it a much more informative unclassified version.
I had an opportunity rather quickly this morning to review this
revised document.
Paragraphs in the initial classified version that were
themselves unclassified are revealed in this new unclassified
version, and there is at least a statutory citation for those
paragraphs that remain classified. I commend the Inspector
General for taking this further step, and I am also very
pleased to learn just now that the investigation will be
reopened and this report may be further supplemented depending
upon the outcome of that further investigation.
Many thanks for this opportunity to testify, and I look
forward to any questions and learning more about the report
that was released today.
[The prepared statement of Mr. Ervin follows:]
Prepared Statement of Clark Kent Ervin
Thank you very much Chairman Conyers, for inviting me to testify
today at this important hearing. As you know, I was the Inspector
General of the Department of Homeland Security (DHS) from its inception
in January 2003 to December 2004. I was in this position, then, when
you asked me in December, 2003, to undertake an investigation of the
circumstances under which Maher Arar, a citizen of Canada and Syria,
was ``rendered'' to Syria by the United States government.
Upon receipt of your request, my office and I promptly began to
investigate this matter and we worked diligently to try to obtain the
necessary documents from DHS, and, if I recall correctly, the
Department of Justice (DOJ) as well, where the necessary documents were
DOJ's to release. (Of course, as the Inspector General of DHS only, I
did not have the authority to require DOJ to release any documents to
me.)
As I explained to you in my July 2004 ``update letter,'' while my
staff and I by then had obtained access to a number of classified
documents (and we noted that, in our judgment, such documents were
properly so classified), we were stymied in our efforts to complement
the review of those documents with a review of other documents and
interviews with present and former government officials. Those efforts
were blocked by the assertion of certain privileges, namely, attorney-
client, attorney work product, and pre-decisional privileges. It was my
view then, expressed in the update letter, and it remains my view now,
that such privileges must yield to the broad authority of the Inspector
General under Section 6(a)(1) of the Inspector General Act. And, in any
event, there is considerable legal support for the proposition that
providing information to an Inspector General does not constitute a
waiver of privileges that can be asserted by an agency in litigation
with a third party.
Unfortunately, because of this legal dispute, we were not able to
complete our investigation of this matter prior to my forced departure
from office by virtue of the expiration of my recess appointment and
the continued refusal of then Senate Homeland Security Chairman Collins
and Ranking Member Lieberman to allow the full committee to consider my
nomination as DHS' Inspector General.
Since leaving DHS at the end of 2004, I have followed the Arar case
with great interest through the news media. Like many, I had been
anxiously awaiting the release of my successor's report on this matter.
Like many, I am disappointed that the public version of the report,
issued nearly four years after the start of the investigation, said so
little, citing legal privileges. Had I still been in office, I would
have asserted the Inspector General's statutory authority to trump such
privileges and exercised that authority by disclosing information
relevant to the process the Immigration and Naturalization Service used
to make the determination to remove Mr. Arar, given especially the
conviction that such disclosure would not constitute a waiver of those
privileges in any third party litigation. It seems to me that, at a
minimum, the public version of this report should have explained
exactly what privileges were asserted; the rationale for their
assertion; and why the Inspector General felt compelled to acquiesce in
their assertion.
I have not seen the classified version of the report, of course.
But, I understand that the Inspector General has objected to the public
release of those individual paragraphs of the classified version that
are themselves unclassified (or, at least, summaries of those
paragraphs). It would be my view that those paragraphs should be
publicly released, especially if they are not duplicative of the
contents of the unclassified version of the report and they could,
therefore, amplify it. At a minimum, there should be a detailed
explanation of why these paragraphs should not, in the Inspector
General's judgment (not DHS' or DOJ's), be publicly disclosed.
I further understand that you, Mr. Chairman, consider some of the
classified paragraphs to be classified unnecessarily and that,
accordingly, you have requested a paragraph-by-paragraph explanation
for any classification. I would support the notion that, while there is
no right to disclose information that is classified even if one
believes that the information at issue is not classified, the
classifying entity has an obligation to provide an explanation for the
view that such information should be classified.
Again, thank you for the opportunity to testify today and I look
forward to any questions you may have of me.
Mr. Nadler. I thank the gentleman.
The Chair now recognizes Professor Horton for his
statement.
TESTIMONY OF SCOTT HORTON, DISTINGUISHED VISITING PROFESSOR,
HOFSTRA LAW SCHOOL
Mr. Horton. Thank you, Chairmen Conyers, Nadler and
Delahunt, Ranking Members Rohrabacher and Franks, and
distinguished Members.
Back in 1950----
Mr. Nadler. Would you pull the mic a little closer please?
Mr. Horton. Sorry.
Back in 1950, Robert Jackson observed in a case that
involved a secret immigration exclusion proceeding, which a
young Irish woman was being excluded on the basis of secret
and, it turned out, totally false information, he said this:
``Security is like liberty in that many are the crimes
committed in its name. The plea that evidence of guilt must be
secret is abhorrent to free men because it provides a cloak for
the malevolent, the misinformed, the meddlesome, and the
corrupt to play the role of informer undetected and
uncorrected.''
Today, I think we are looking at the investigation of an
immigration proceeding which was conducted under a similar
provision and used similar rules to the celebrated Shaughnessy
case, but in this case it is not just secrecy that has
corrupted the proceeding. It is also secrecy that has
obstructed the investigation of the proceeding and what
happened to it.
I think Chairman Delahunt is correct in flagging the key
issue that you need to keep before you. That is the correct
construction and application of the Foreign Affairs Reform and
Restructuring Act of 1998, and the provisions that implemented
the prohibition on rendition to torture that is contained in
the Convention Against Torture. That forbids the rendition of
persons to countries where it is more likely than not that they
will be tortured.
In this case, I think the very disturbing facts that have
developed are essentially these. It is quite clear that the
administering officials believed that Maher Arar, if rendered
to Syria, would be tortured, and clearly he was at the end of
the day, and nevertheless a decision was made to render him.
How exactly we get from these two conclusions is the crux of
the inquiry I think you have to make. It is going to turn
ultimately on the question of diplomatic assurances.
Now, it is actually reasonable diplomatic assurances that
is the question. There is nothing in the statute that provides
that diplomatic assurances overcome the more likely than not to
be tortured determination. So I think there is some very, very
serious, weighty policy issues here that have to be gotten to
the bottom of. This is about more than just the fate of Mr.
Arar. It is about proper implementation of a rule that the
United States put forward on the international stage and the
United States has upheld in its own legislation.
Now, when I looked into this report and interviewed
individuals who were involved in preparing it, I got the same
account repeatedly. The thrust of the account was pretty
simple. It was that there were a number of high-level political
appointees who had been intensely involved in Arar's case. They
were concerned that their identities would be exposed. The
actions that they had taken were essentially to railroad Arar
and his lawyer and ensure that he had no meaningful opportunity
to be heard or to contest the decision to render him to be
tortured.
By the way, I think that is really the focus. It is the
rendition to Syria, not his exclusion. I think no one questions
but that it was a reasonable decision to deny him entry to the
United States based on the information that was at hand.
Now, having acted to accomplish their goal, these
individuals then sought to enshroud their actions in a fog bank
of secrecy. They invoked national security concerns and various
privilege claims in order to obstruct the Inspector General and
his report. They also seemed to have pressured the writers of
the report intensely in an effort to editorially manipulate it.
Some of this is in fact reflected in the redacted version that
is being released today.
The center of this conduct is inside the Department of
Justice, particularly it is in the Office of Legal Counsel and
the Office of the Deputy Attorney General. It seems fairly
clear to me that in sum we are not really dealing here with a
process of internal bureaucratic weighing and deciding down
below. We are dealing with a decision that was taken at a very,
very high level in the bureaucracy and that was pushed down on
people below. It seems to me that dynamic is a lot of what is
going on here in the claims and the assertions of privilege and
secrecy and been designed to obscure understanding of that
dynamic, and an understanding of the fact that decisions were
taken at a very high level.
Now, since I prepared my written statement, I have had a
chance to look through the report. I would like to just offer
questions, I think points that merit some further focus because
I think we are going in the right direction now toward
disclosure of vital information that the public needs to know.
I do agree, by the way, that there are things that are
legitimately cloaked by privilege and there are things that are
legitimately covered by security classifications, but the sweep
here is far, far too broad.
So the points I think that need to be focused on are, one,
it seems to me pretty clear that classification could not have
been the reason for originally withholding this report because
it accounts for not more than about 20 paragraphs out of the
entire document. Two, it seems to me that privilege and
deliberative process also didn't justify the original decision
to withhold because there is far more white than there is
black. But even when we look into what has been redacted, there
are many things where it appears the redactions are simply far
too sweeping, and in some cases ridiculously so.
I also think the excuses that are offered for delay at
times could be amusing if the issue were not so earnest here. I
mean, for instance we are told that the Inspector General had
to wait for the Justice Department attorneys to complete their
FOIA process, and therefore it wasn't the OIG's office. But in
fact this report was circulated in draft probably in late 2006
for the first time. That is plenty of time for the FOIA process
to have been completed.
We are also told that FOIA doesn't require us to write a
report to avoid implicating classification privilege issues.
Now, that is true, but the IG Act does impose on the Inspector
General an obligation to inform, and IG's write around the
privilege of law enforcement-sensitive and classification
issues all the time in order to provide the public and Congress
with the gist of the problem on a timely basis. I think many of
you here were involved in the hearing yesterday involving Glen
Fine in which he dealt with this in the report he recently
issued. Again, I think he timely, informatively and very
carefully well-navigated those straits.
I think there is something foul-smelling about this report
still. It is not the conduct of the investigation. It is not
the professionalism of the investigators. But there is a very
troubling failure of the Inspector General to rigorously uphold
his mission. I do not think he has lived up to the charge that
IG's carry to complete the report as expeditiously as possible,
to root out the key operative factors, to write it all up in a
manner that takes the claims of privilege and other
bureaucratic efforts at obstruction into account, but
nevertheless strikes a balance in favor of the Congress's and
public's right to know the essence of what happened.
Had this report been prepared with zeal, it would have been
completed along the same timelines that the Canadian report was
completed that we have right here. In fact, just the one-page
summary compared to this tells you a lot about absence of zeal
and thoroughness.
Now, looking at some of the redactions, on page three, the
list of abbreviations and organizations that were involved has
been redacted. The recipients of the report distribution,
appendix G, was redacted. Both of these are standard normal
components of every OIG report. They redacted information that
was passed on by Canadian intelligence to the U.S. and they
redacted the Canadian government's subsequent clarification of
the false information, even though this is public information
in the Canadian commission report.
Mr. Nadler. The light in front of Mr. Horton is apparently
not working.
Mr. Horton. Is my time up?
Mr. Nadler. The red light should have gone off a while ago,
so we would appreciate it if you would wind up.
Mr. Horton. I am sorry about that. I was looking for the
red light and didn't see it.
Mr. Nadler. Well, none of the lights there are working.
Mr. Horton. Thank you, thank you.
I think most disturbingly, the second recommendation, which
is really the crux of our inquiry, has been deleted as
classified, although it is clear from looking at the report
that that second recommendation is that the State Department
should be involved in these issues. Why is this a secret? Why
is that recommendation pulled? That is something this Committee
and Congress needs to probe further.
Thank you.
[The prepared statement of Mr. Horton follows:]
Prepared Statement of Scott Horton
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
ATTACHMENT
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. I thank the gentleman.
We will now start the questioning. I will begin by
recognizing myself for 5 minutes to question the witnesses. As
I said at the beginning, I will interpret for both majority and
minority the 5-minute rule flexibly so we can get to the bottom
of some of these issues.
First, I would like to address the question of why the
decision was made for movement of Mr. Arar to Syria, rather
than to Canada or Switzerland. Mr. Skinner, your report notes
that in addition to Canada, Arar could have been removed to
Switzerland, which is the origin of the flight coming here, and
that this option would usually have been pursued. Why are there
no publicly available facts regarding consideration or ruling
out of Switzerland as an option over Syria? Did your
investigation cover that issue?
I note that in the report, there is a lot of stuff
redacted, but there is one sentence that is not redacted with
respect to the decision not to have Canada, and that is saying
that because of the porous border, it might have been
considered that if Mr. Arar had gone to Canada, they have a
porous border, presumably meaning he might have come to the
United States after that.
That is certainly not true with regard to Switzerland,
which may or may not have a porous border, but not with the
United States. So did your investigation cover that issue? What
facts did you discover? And did it not cause concern that the
U.S. could have, but didn't, choose a country without a known
history of torture in favor of one with a clear record of
torture, when your report indicates that the INS felt that it
was more likely than not that he would be tortured if sent to
Syria?
Mr. Skinner. Yes, we did take that into consideration. We
did ask those questions. I could answer that, but it would have
to be in a classified environment.
Mr. Nadler. You have a good answer as to why he couldn't go
to Switzerland which cannot be publicly revealed?
Mr. Skinner. That is correct.
Mr. Nadler. And you regard the classification decision as
not outrageous with respect to that question?
Mr. Skinner. I do not think it is outrageous.
Mr. Nadler. Okay. Well, then, we are going to have to
follow up in a classified session.
Mr. Skinner. Yes.
Mr. Nadler. And then we will make the decision as to
whether it is outrageous.
Your report says that the usual disposition of a removal
action--well, let me ask Mr. Horton. Mr. Horton, can you think
of any reasonable reason why a decision that he couldn't be
removed to Switzerland might be legitimately classified?
Mr. Horton. You know, I can't speculate as to what it is,
but it seems to me the Swiss cooperate with us very strongly.
On counterterrorism law enforcement, they take aggressive
preemptive action. They have rights under their legal system to
hold people almost indefinitely under investigation. I am
mystified by this.
Mr. Nadler. Thank you.
Mr. Skinner, your report says on page 22 that ``the usual
disposition of a removal action would have involved a removal
to Switzerland or transporting him to the nearby country where
he resided and had citizenship, that is Canada, not to
transport him to a nation where his proof of citizenship had
lapsed.''
These, along with other findings, indicate that it is at
least a reasonable possibility that the U.S. wanted to send Mr.
Arar to Syria precisely because it knew he would be detained
and interrogated and that harsh measures, or torture, depending
on how you define these things, would be used to obtain
information.
Do you feel that your investigation has ruled out the
possibility that the decision was made to send him to Syria
because people in our Government wanted him interrogated under
conditions that our law would not permit?
Mr. Skinner. We can't rule that out, but I want to say
here, in the jurisdiction that I had in conducting this review,
we tried to stay within the confines of the----
Mr. Nadler. But you couldn't rule it out?
Mr. Skinner. That is correct.
Mr. Nadler. If this possibility could not be ruled out,
which I believe it has not and cannot be given the
incompleteness of the investigation as you have just said, why
didn't your office refer this question to the Attorney General,
or take greater steps to get the information to Congress in a
timely manner? I note that the IG Act, the law, requires
referral of possible criminal conduct and obviously if he were
sent to Syria for the purpose of being tortured, that would be
criminal actions under a half-dozen different laws.
Since you couldn't rule that out, the IG Act requires
referral of possible criminal conduct to the Attorney General.
If the Inspector General finds serious problems, he must report
immediately to the Agency, who must then tell Congress within 7
days and not wait for 4 years. So if you could not rule it out,
why didn't your office refer this to the Attorney General and
take greater steps to get the information to Congress in a
timely manner?
Mr. Skinner. We did keep the Department of Justice
informed. It is my understanding that there is an investigative
inquiry going on as we speak.
Mr. Nadler. So referral for possible criminal action has
been made to the Attorney General?
Mr. Skinner. Investigation.
Mr. Nadler. Did you note that this was or was not told to
Congress within 7 days, as the statute requires?
Mr. Skinner. I am not sure I understand your question. Once
we had sufficient information or facts, we did share that with
the Office of Professional Responsibility with the Department
of Justice, who has the responsibility for investigating
attorneys within the Department of Justice. I didn't do it
prematurely, when you say 7 days.
Mr. Nadler. No, referral to Congress must occur within 7
days of that.
Mr. Skinner. That is not our standard protocol.
Mr. Nadler. No, it is the requirement that the department
notify Congress within 7 days of your referral. Did you make
any attempt to----
Mr. Skinner. I am not aware of that requirement. I am
sorry.
Mr. Nadler. You are not?
Yes, well, the statute requires that if you find a serious
problem, you must tell the Agency head, which you did.
Mr. Skinner. Yes.
Mr. Nadler. And that requires the Agency head to report
that to Congress within 7 days, which he has not done to date.
And you think you have no responsibility to note whether the
Attorney General followed his statutory duty to report it to
us?
Mr. Skinner. I am not so sure. I am not familiar with that
protocol, sir. I am sorry.
Mr. Nadler. Let me ask Mr. Ervin. Would you have acted
differently in this matter?
Mr. Ervin. Well, I would, sir, in a number of respects, as
I outlined in my statement. But on the specific question that
you are asking about, if I understand it correctly, this 7-day
letter procedure I think relates to a formal criminal referral
that the Inspector General would make to the Department of
Justice.
Mr. Nadler. And not to a formal criminal investigation
recommendation?
Mr. Ervin. Right--a recommendation that the Department of
Justice pursue prosecution because there is some sense that
there might have been a----
Mr. Nadler. In what way do you think the actions in
referring this to the AG or not referring this to the AG or not
telling Congress on this whole question were not as you would
have done or were inadequate?
Mr. Ervin. Well, there are a number of things, sir. As I
said in my statement, I would have written a public version of
this report in the beginning that would have disclosed the
process by which all the questions that we are talking about,
the process by which Mr. Arar was rendered to Syria. I think
that could have been done in a way that would not have
disclosed legitimate privileges.
Further, in the classified version of the report--and
certainly as we have all said there are things here that ought
to be classified--those paragraphs that contained unclassified
information I would have disclosed or at least summarized, but
probably disclosed, certainly disclosed. My preference always
is to get as much information on the public record with regard
to a matter of legitimate public interest. And this clearly is
a matter of legitimate public interest. I think it is possible
to do that without disclosing classified information.
Mr. Nadler. Okay. Thank you. I have one further question
for Mr. Skinner.
Mr. Issa. Mr. Chairman, point of order?
Mr. Nadler. Mr. Arar's attorney filed----
Mr. Issa. Point of order, Mr. Chairman.
Mr. Nadler. Had Mr. Arar's attorney filed a habeas corpus
petition, a possibility raised by INS attorneys----
Mr. Issa. I raise a point of order.
Mr. Franks. Mr. Chairman, he has raised a point of order.
Mr. Nadler. I am not recognizing him. I am in the middle of
my questioning.
Mr. Franks. I understand. He has raised a point of order.
Mr. Nadler. He has not raised a point of order----
Mr. Issa. I have raised a point of order, Mr. Chairman----
Mr. Nadler. Had Mr. Arar's attorney filed a habeas corpus
petition, a possibility acknowledged by INS attorneys that your
office interviewed as noted on page 27, an independent
assessment might have been made regarding the validity of the
Government's determination that Mr. Arar was a terrorist,
Deputy AG Thompson's determination that he could not be removed
to Canada, and any determination that Switzerland also wasn't
possible, and whether shipping him to Syria violated his right
not to be sent to a country where he would be tortured.
Now, the report indicates that given the fact that he was
held almost incommunicado, that he wasn't really given an
opportunity to contact an attorney, shouldn't we then be very
concerned with the efforts that seem to have been undertaken by
U.S. officials to interfere with his rights to obtain counsel
in order to prevent the habeas corpus petition from being
filed?
Mr. Skinner. Mr. Chairman, it is my understanding INS did
in fact provide Mr. Arar with a list of attorneys that he could
contact. It is my understanding that he also was in contact
with at least two attorneys, an immigration attorney that
interviewed Mr. Arar when he was detained, one that his wife
had arranged for, as well as I believe a criminal attorney that
the immigration attorney had referred to Mr. Arar.
I am not aware in the course of our review that there was a
deliberate effort to keep Mr. Arar from having contact with an
attorney.
Mr. Nadler. Mr. Ervin, having read that report, do you----
Mr. Issa. Mr. Chairman, point of order again.
Mr. Nadler. I will recognize your point of order after Mr.
Ervin finishes.
Mr. Issa. Mr. Chairman, my point of order is germane to
your continued asking of question beyond the 5-minute rule.
Mr. Nadler. The gentleman will state his point of order.
Mr. Issa. Mr. Chairman, pursuant to rule 3(d), the rules of
the House do not allow for flexible 5-minute, but rather it
says in the course of a hearing each Member shall be allowed 5
minutes for the interrogation of a witness until such time as
each Member who so desires has an opportunity to----
Mr. Nadler. The gentleman's point of order is correct. We
will be here for a few additional rounds so that everybody can
get the information out. From now on, we will stay strict,
especially when Mr. Issa has questions.
Mr. Issa. Thank you, Mr. Chairman.
Mr. Nadler. I recognize Mr. Franks for 5 minutes, a strict
5 minutes.
Mr. Franks. Thank you, Mr. Chairman.
Mr. Skinner, you stated in your testimony, this is your
written testimony, that ``even a casual reading of the report
reveals that significant portions that could have been redacted
under the Freedom of Information Act have been in fact
released, a testament both to the OIG's diligence and the good
faith of the components and other entities with which we
consulted.'' That is a basic quote.
Can you elaborate on that a little bit?
Mr. Skinner. When we began this whole process, the
department wanted to classify and redact the entire report. I
would like to comment on something my predecessor, Mr. Ervin,
had said, and I do agree with him. This is Monday night
quarterbacking. This is in retrospect.
Had we had to do this over, I would in fact have written,
and in fact we attempted to write a report where in we could
tell our story and we ran into a lot of difficulty with regard
to redactions. So that is why we opted to go this route, with a
classified report, then follow it up with a redacted version.
But we did in fact try to write two reports--a classified
report and an unclassified report that could tell the story.
This is where we ended up today with this redacted version.
This has taken us over 2 months of sitting down with not one
attorney, not two attorneys, not three, not four, not five, not
six not seven, but eight or more attorneys in different parts
of DHS and the Government, where we vetted word by word, and we
pushed back very hard, and there is a lot in here that
ordinarily that previously we were told could not be made
public, is now made public.
Those items that we agreed to redact, we do, and I was
personally briefed and brought into this, I do believe that the
classified stuff is in fact classified. We did not classify it.
We do not have the authority to declassify it. The attorney-
client privilege, the deliberative process, the attorney work
product--these are documents that we are convinced could
jeopardize the Government's case in defense of itself in the
civil lawsuit right now.
Mr. Franks. Thank you.
I have another question for you. Sometimes in these
Committees, what we are really trying to do is just to get to
the bottom line to what really happened and was there
culpability on someone's part? Did American officials make
mistakes? We are all interested in justice here.
So let me just ask you as sincerely as I can, to put it in
your own words, tell us what happened here? What do you think
potential injustices were and whose fault it was? What really
occurred here, just the bottom line?
Mr. Skinner. Without getting into it in a classified
environment, it would be very difficult to do. But from what
you can see in this report, there were some very questionable
processes and actions that were taken here. When you look a the
unclassified version, for example, the timing and the manner in
which the CAT interview was conducted with the attorney on a
Sunday evening late at night--that is questionable.
The process wherein the INS made one determination on the
torture more likely than not, yet which was ultimately
overridden--we could not find documentation though interview or
documentation that gave us a comfort level that was
justification for the INS's original decision to be overridden.
We could get into detail, a lot more detail, if we were in a
classified environment.
Mr. Franks. Mr. Chairman, I am going to go ahead and yield
back here, because it sounds like we are going to have more
rounds here of questioning. Thank you.
Mr. Nadler. I thank the gentleman.
The co-Chairman of the hearing, the gentleman from
Massachusetts is recognized.
Mr. Delahunt. I thank the Chairman for the time.
I find it incredulous that the department intended or
sought to have the entire report classified. Was that your
statement?
Mr. Skinner. Either classified or redacted for other
reasons because of the outstanding or the pending civil
lawsuit.
Mr. Delahunt. But this is the entire report that was their
stated request.
Mr. Skinner. That was a request. That is where we started,
then we sat down and negotiated to the point where we are at
today, this report here.
Mr. Delahunt. I just find that--that says all that really
has to be said. It is clear that this Administration, this
Government does not want the facts surrounding this case to
emerge. From my perspective, it is just that simple. To request
at the beginning that this entire report not become public is
outrageous. It is an embarrassment.
I am looking at the report of the O'Connor commission, the
Canadian commission. All of that is in the public domain. The
prime minister of Canada made a public apology and compensation
was awarded to the tune of some $10 million to this individual.
You indicated, Mr. Skinner, that the CAT interview on a
Sunday with no counsel present was questionable. To me, that
is, again, outrageous. Any individual in those circumstances,
any representative of the Government would know that the
likelihood of securing counsel on a Sunday was remote at best.
Explain to me once more what your office did in terms of
referral to the Attorney General or to the secretary of the
Department of Homeland Security about your findings.
Mr. Skinner. I am sorry. I am not quite sure I understand.
Mr. Delahunt. In other words, in response to the question
by Mr. Nadler, when a serious abuse or deficiency becomes
apparent or potential abuse or deficiency, what were the first
steps?
Mr. Skinner. I think I understand. During the course of our
review, nothing came to our attention that was criminal in
nature. So therefore, we would not have been referring anything
to the Department of Justice or the Attorney General for
prosecution. However, there were some questions raised by
employees not within the Department of Homeland Security, not
within INS, but there were other people involved in the Office
of the Deputy Attorney General and their counsel, which is
outside our jurisdiction and our purview.
We did turn over the results of our review to the Office of
Professional Responsibility for their investigation and
referral to the Attorney General for prosecution if deemed
necessary.
Mr. Delahunt. Mr. Horton, given your familiarity with the
facts, is there cause to have a criminal investigation
conducted?
Mr. Horton. Yes, I think the answer is yes here. In fact,
Chairman Nadler in his opening remarks referred to it. I would
say specifically section 2340(a) makes it--and this is one of
the enforcement provisions under the CAT--it makes it a crime
for individuals to gather together in a conspiracy to render
someone to be tortured. In fact, there is an internal
memorandum in the FBI prepared by legal counsel advising FBI
agents not to participate with in any way or support this
program because they risk the possibility of----
Mr. Delahunt. Let me interrupt because I know the Chairman
is going to be strict with time. I would ask the Members of
this panel on both sides to consider a request----
Mr. Nadler. The gentleman's time has expired. I apologize
to the gentleman, but our colleague from California has
insisted on his point of order. I do not like cutting off
colleagues, but my hands are tied. Perhaps the gentleman from
California will later apologize to you and everybody else.
Mr. Conyers. Mr. Chairman?
Mr. Nadler. Yes, the gentleman from Michigan is recognized.
Mr. Conyers. Might I generously yield the gentleman 1
minute of my time?
Mr. Nadler. The gentleman is yielded 1 minute.
Mr. Delahunt. I thank the Chairman of the full Committee.
What I was going to propose to Chairman Conyers and
Chairman Nadler and to the Ranking Members that this Committee
consider drafting a request to the Department of Justice, to
the Attorney General, seeking the appointment of a special
prosecutor to initiate an investigation to determine whether
there have, in this particular case, been violations of the
applicable domestic laws, as well as any of our obligations
under the Convention Against Torture. I would hope that we
would all join in that request because it is clear to me after
4\1/2\ years and the challenges that have been described by Mr.
Skinner and by Mr. Ervin, and what we have observed and heard
in the short time that we have been here, this Administration
will not comply.
I yield back.
Mr. Nadler. The gentleman's time has expired.
The gentleman from California, Mr. Rohrabacher, is
recognized for 5 minutes.
Mr. Rohrabacher. Thank you very much.
I obviously think that our problems in this Administration,
and I would say that the criticism by my friends on the other
side of the aisle quite often in this area are justified in
their specifics, but wrong in their general prescription of how
to solve things. In this particular case that we are looking
at, I think perhaps it is informative to us for Jerry to go
through these specific areas that are being blocked off so that
we do not know about them. I think that perhaps this case could
serve as an instrument to educate us as to how justified or
unjustified the control of information has been by this
Administration and compare it to what it would be like if other
people were making the decisions.
So I am watching very closely. I am sorry that I have some
constituents out in the anteroom where we had a local issue
that I had to touch on. But in the Maher case, I think that we
should not--and I emphasized this in my opening statement--we
should not take a case of someone who was innocent and caught
up in this fight against radical Islam. We should not take that
and use that as the basis for judging all policy that we are
going to have and what our goals should be in the fight against
radical Islam.
I know everyone likes to suggest Mr. Maher was tortured. He
was tortured, and that is wrong, but we do not assume that
everything that is called torture is something that is actually
parallel to what Mr. Maher went through. Yesterday, we had a
hearing and at that hearing the FBI was basically outlining
this misbehaving of the interrogators in Guantanamo. They went
through a list of why the FBI had distanced themselves of the
type of behavior, yes, the type of behavior that they were
objecting to on the part of the interrogators.
I have heard the word ``torture'' over and over and over
again, and the behavior that was described that was going on
had nothing to do with what the average American would call
torture. And the FBI was saying we shouldn't even go that far
in questioning an individual who in this case the FBI was
analyzing how a person had been interrogated, and that person
happened to have been the 20th hijacker, a man who had actually
been involved in the 9/11 conspiracy and by a fluke had been
stopped getting on an airplane.
Now, frankly I think that when you are talking about the
20th hijacker, we shouldn't let what happened to Mr. Maher
prevent us from interrogating and from dealing with the 20th
hijacker in a way that would prevent us from getting
information that might save the lives of millions of people. It
is very easy just to stand up and say we should never use any
type of physical pressure of any kind on someone who is a
suspect of terrorism, and see what happened to Mr. Maher.
Well, I would suggest that we do not use the exception to
the rule. Mr. Maher was an exception, and one we should
acknowledge as a mistake, but we should not use that as the
basis for how we will conduct the war on terror. I would
certainly think that the appointing of a special investigator
or prosecutor in this particular case is not justified because
we are getting to the bottom of this case right now, and we
will let the American people decide by exposing all the
details, as Mr. Nadler is clearly committed to, exposing the
details. Let the American people decide what was justified and
what wasn't.
With that, if you have any comments, go right ahead.
Mr. Nadler. The gentleman's time has expired.
Mr. Rohrabacher. Thank you very much.
Mr. Nadler. Again, I apologize for the rule we have imposed
upon us.
I now recognize the distinguished Chairman of the full
Committee on the Judiciary, Mr. Conyers, for 4 minutes.
Mr. Conyers. I would like to invite Darrell Issa to my
office for lunch next week because I think the results of his
reciting the rule on whether we should be liberal or strict in
interpreting the 5-minute rule may require some revisiting. We
could be here well into the afternoon with the strict
interpretation. Let's see how it works out today.
Mr. Issa. Would the gentleman yield?
Mr. Conyers. Of course.
Mr. Issa. Mr. Chairman, certainly the practice of this
Committee has been to allow the completion of a question. I
think of Ms. Jackson Lee, who you sort of encourage her to
finish her question, and then allow the witness to respond. If
that goes beyond the 5 minutes, I certainly understand. The
intention of the 5-minute rule is to end questioning and allow
the witnesses to complete. You as Chairman have been great at
making sure that witnesses did answer even if the 5 minutes had
expired. That was not the intention of my motion, and I hope
the Chairman would understand.
And I look forward to lunch, Mr. Chairman.
Mr. Conyers. Well, I look forward to the discussion.
But at any rate, I want to thank Trent Franks for the
question that he raised that has led to a much deeper inquiry
into this matter. I appreciate it very much.
Now, with the terminology and the language of my good
friend from California, I am trying to figure out maybe
terminology is used differently in the Foreign Affairs
Committee. What do I know? We are at war against terrorists. We
are at war against the Taliban. We are at war against al-Qaida.
Could I just ask my friend, we may be cutting this thing a
little bit wider than we intend to, and then to leave it to the
American people, I would think the American people are asking
us to tell them where all of these inquiries, these years of
investigations, these declassifications, all of these deletions
have led us. We have admitted a reasonable amount of error. Mr.
Skinner has been forthcoming as he feels he is permitted to.
The former Inspector General has shed some light on the
problem.
It would seem to me, I would say to my good friend from
California, Mr. Rohrabacher, that why don't we at least
determine whether it should be sent to a criminal
investigation? There seems to be enough reasonable information
before us. And how about us deciding, instead of letting 330
million Americans come to some kind of view? This is a
representative democracy. It is not a direct democracy. That is
why we are called representatives.
Mr. Rohrabacher. Would the gentleman yield?
Mr. Conyers. With pleasure.
Mr. Rohrabacher. That would be the equivalent, in my eyes,
of taking American military leaders at Normandy and sending a
special prosecutor to see if they should be prosecuted for the
death of French civilians as we got ready to invade. I do not
see it. There was never an intent for this individual to be
treated----
Mr. Issa. Mr. Chairman, I would ask unanimous consent for
the full Committee Chairman to have an additional 2 minutes.
Mr. Nadler. Without objection.
Mr. Rohrabacher. Okay. I see no intent that this man was
treated in the way that he was, an intent to treat an innocent
person in that way. This was a mistake and we should admit our
mistakes. It should be open to the American people. But to
bring a prosecutor or something like that in with the idea that
this might represent a criminal intent is absolutely the wrong
way to go.
Mr. Conyers. Well, you do not think you even want to find
out if that is a possibility. The criminal investigation
doesn't mean that we have made a finding of criminal intent.
That is an inquiry.
Mr. Rohrabacher. Mr. Chairman, I would say that would be up
to us to make sure that when we make our final statement on
this case, which Mr. Nadler is committed to do and I think Mr.
Delahunt, my Chairman, is committed to do as well, that is for
us to suggest that. If there was some type of criminal intent,
that should be a statement made by our Committees. That is why
we are here.
Mr. Conyers. Well, I am not going to sleep more comfortably
in my bed tonight.
Mr. Delahunt. Would the Chairman yield for a moment?
Mr. Conyers. Of course.
Mr. Delahunt. I think what we heard from Mr. Horton, and I
dare say if I inquired of the others, is that there are grounds
that would serve as a catalyst for a referral to determine
whether there were violations of the United States criminal
code. Clearly, in this particular case, because there is a
significant role by the Department of Justice----
Mr. Conyers. You would not object would you, Mr. Skinner,
to this inquiry?
Mr. Skinner. No.
Mr. Conyers. Of course, you would not.
You would not object would you, Mr. Ervin?
Mr. Ervin. I would enthusiastically support it, Mr.
Chairman.
Mr. Conyers. You would not object--well, you have
recommended it, so I know your view. [Laughter.]
Mr. Horton. I endorse the idea.
Mr. Delahunt. The point being here was, and Mr. Horton was
correct when he said this isn't about stopping terrorists
coming into the country. The issue is why did they send Mr.
Arar back to Syria. That is the issue.
Mr. Nadler. The gentleman's time has expired.
I now recognize the gentleman from California for a strict
5 minutes.
Mr. Issa. Thank you, Mr. Chairman.
I would like to associate myself with the full Committee
Chairman's call that this line of investigation not end until
we know whether or not there was in fact what I would call a
back-door extraordinary rendition that took place. To that end,
Mr. Horton, I will start with you.
Would you say that regardless of what might have been
available in this declassified information, that it appears as
though what effectively happened is the United States got an
extraordinary rendition to Syria in which Syria asked question
and that either may have given us information or may have been
believed it would give us information on this individual?
Mr. Horton. It is hard to find that in the report, in the
declassified version that has just come out.
Mr. Issa. It is clearly not there.
Mr. Horton. It is clearly not there, but it is sort of in
the periphery all around it. It looks to me that decisions were
taken in the Office of the Deputy Attorney General to push
forward a process that externally looks a lot like an
extraordinary rendition, and then we have the Jordanians
turning them over to the Syrians, several published reports
that he was turned over with a list of questions that were
suggested to be presented. That, then, begins to look an awful
lot like extraordinary renditions.
But the question is still Syria. I mean, Syria is not a
partner in the CIA's extraordinary renditions program. It is a
country with whose intelligence services we do not have
positive relations.
Mr. Issa. And following up on that, 2002 was a long time
ago. It was before we went into Iraq. It was at a time in which
we were reaching out to Bashar Assad's government, and there
was high anticipation that they might be different, different
than a man who killed 25,000 of his own people using chemical
agents in order to let the Muslim Brotherhood know that he
meant business. Different in many ways, but probably believing
that they were similar to the Hafez Assad administration or
government or dictatorship that in fact had supported us in
Gulf War I. So I put my questions in perspective relative to
the time in which this occurred.
Mr. Ervin, we are I think not unified, but somewhat unified
up here in saying that we need to know more about this. But in
your looking at this case relative to other cases--and this
would be good for any of you--isn't it true that normally,
notwithstanding suspicions alleged but not available to us
today, that in fact normally when someone is transiting the
U.S., not entering the U.S. per se, but simply trying to come
through here or through London's airport or Paris's airport,
that if in fact we object to them, we simply do not allow them
to enter our space and we allow them to go to one of those
three locations.
So the real question is, in every other case within reason,
isn't it true that Mr. Arar would have in fact been given his
choice of those three locations and told to decide.
Mr. Ervin. That is my understanding, sir. Yes.
Mr. Issa. Mr. Skinner?
Mr. Skinner. No, I do not think that is totally accurate.
Mr. Issa. Okay.
Mr. Skinner. This was a 235(c) proceeding which is somewhat
different than what I think you are referring to, which is a
240 proceeding under which people can come through here and for
whatever reason we think they are undesirable or should not
be----
Mr. Issa. Okay, but he didn't attempt to enter the country.
Is that correct?
Mr. Skinner. But under 235(c), you do not have the same
rights.
Mr. Issa. Right. But I guess the question is, he did not
intend to enter the country. He was transiting.
Mr. Skinner. That is correct.
Mr. Issa. Okay. And the world relies on transiting
countries to be generally, unless there is a specific reason,
free of interference by the country that is simply being a hub.
Mr. Skinner. As a general rule, that is correct.
Mr. Issa. Okay. And had he entered the United States, had
he been through, he could have claimed that he was afraid of
being tortured in Syria when we said we were going to send him
back, and as such would have been allowed a lawyer and a
hearing. Isn't that true?
Mr. Skinner. No.
Mr. Issa. It is not true that if someone enters the United
States that before they can be sent to Syria, they have a right
to a hearing?
Mr. Skinner. I am sorry. I misunderstood your question.
Under 235(c) or 240 you have a requirement----
Mr. Issa. Right. I understand. Let me characterized the
question. But isn't it essentially a technicality that he
wasn't in the U.S. where he would have had a right to say do
not send me to Syria, I will be tortured, but he was in our
custody and we took advantage of that transit. I am looking at
this for the future. Regardless of the fact it was legal----
Mr. Nadler. The gentleman's time has expired.
The gentleman from Minnesota is recognized for 5 minutes.
Mr. Conyers. I ask unanimous consent that the gentleman be
given 1\1/2\ additional minutes.
Mr. Nadler. Without objection, the Chairman's courteous
request will be granted.
Mr. Issa. Thank you, and I won't use it all.
Mr. Skinner, if you would just sort of answer.
Mr. Skinner. I see where you are going. We do have a
responsibility regardless of the proceeding that we apply to
ensure that people are not removed to a country that we believe
could torture. In this particular case, the individual was on a
terrorist watch list, and those are rare that they would come
through this country, transit through this country if they
aware of the fact they are on a terrorist watch list, which
made him somewhat unique, and the reason he was pulled aside,
interrogated. We did make the decision, the U.S. government,
that he was in fact inadmissible and had to be returned.
Mr. Issa. But he wasn't returned. He was in fact sent to a
country that he was not per se from.
Mr. Skinner. Yes. I can't go beyond that because of the
classified----
Mr. Issa. I understand that. I join with the Chairman in
saying that further investigation until this Congress has full
understanding is appropriate.
I thank the gentleman for the extra time and yield back.
Mr. Nadler. The gentleman's time has once again expired.
The gentleman from Minnesota is recognized for 5 minutes.
Mr. Ellison. Mr. Chairman, before I get started I just want
to make the observation that I wish that we as a Congress would
stop saying that we are in a war with Islam or radical Islam.
We are not. If we are at any kind of a war, it is a war against
people who commit acts of terror no matter what their religious
motivation may be. I hope we can come to a consensus in the
Congress.
I believe it is this attitude that we are in a war with
Islam that has created the Maher Arar situation. That is why
somebody thinks it is a good idea to make all the parade of
mistakes that have been made in this case and the subsequent
cover-up. So I think we need to really re-tool our thinking on
both sides of the aisle on this question. I make that
abundantly clear.
You know, we have good relationships, formalized
relationships with Egypt, Jordan, Saudi Arabia, Nigeria,
Turkey, Indonesia, and Malaysia. All these are Muslim
countries. What are we saying if we are in a war against Islam?
It is ridiculous and it undermines American national security.
I wish we would stop doing that.
Is Maher Arar available to come into the United States at
this time or is he still barred?
Mr. Skinner. He is not permitted into the United States, it
is my understanding.
Mr. Ellison. Is there any evidence that he is a threat to
the United States at this point?
Mr. Skinner. I can't answer that.
Mr. Ellison. Mr. Ervin, in your view?
Mr. Ervin. I can't answer that either, except that I do not
believe that he is.
Mr. Ellison. Mr. Horton?
Mr. Horton. It is another point where I am mystified. I
hear the points made by the Administration, but they do not
make any sense to me, particularly in light of this.
Mr. Ellison. Well, the Committee----
Mr. Nadler. Would the gentleman yield for a moment?
Mr. Ellison. Okay.
Mr. Nadler. I will simply state that the Administration
says that on the basis of classified information, he is a
threat. I have seen the classified information. In my judgment,
it is nonsense. I yield back.
Mr. Ellison. Thank you for making that point, Mr. Chairman.
I will confess that I kind of knew the answer already.
[Laughter.]
But the point it, we are wrong and staying wrong. We are
committed to being wrong. We won't get right regardless of that
voluminous document the Canadian government has produced.
But here is the other question. The horrific thing that
happened to Mr. Arar, which both sides of the aisle have
apologized for, that is good. As I said, I think we are on a
track to keep doing stuff like this if we do not re-orient our
general national attitude. But besides all that, what about the
affront to the Congress itself? As I understand it, Mr. Arar
was rendered in 2002. You got a letter from Chairman Conyers in
2003. The AG did. And we get a follow-up letter asking about
the earlier letter in July of 2007. Is that right?
Mr. Skinner. I think you are referring to my response. That
was July 2004.
Mr. Ellison. Well, okay, so your response is that it is
taking too long, and I am sorry that it is taking so long.
Right?
Mr. Skinner. Exactly.
Mr. Ellison. But then the Members of Congress, Nadler and
Delahunt, say in July 2007, where is the stuff. Right? Anybody
want to acknowledge that?
Mr. Skinner. That is correct.
Mr. Ellison. And then we get a one-page unclassified, and
then another thing that is classified, in December 2007. Right?
Mr. Skinner. That is correct.
Mr. Ellison. You know, what level of respect has the
Administration accorded to the Congress with this
extraordinarily lengthy amount of time that it took to respond?
Mr. Skinner. I commented on that in my opening statement,
and I believe also in my formal statement. This was as
frustrating for my office as it was for the Congress. We worked
diligently to get this report out. It involved, multiple-agency
components within the department and outside the department.
Mr. Ellison. Thank you. Do you believe there was deliberate
obstruction from the Administration?
Mr. Skinner. No. But I do believe that when we initiated
this review, there was a lack of cooperation in the first year.
I also believe that----
Mr. Ellison. Do you mean in 2003 or 2004 would be that
first year?
Mr. Skinner. I would say the first 1\1/2\ years.
Mr. Ellison. Okay.
Mr. Skinner. Through 2004 to mid-2005. After that, things
did begin to pick up. It was the logistics of getting the job
done.
Mr. Ellison. It was 2 more years after that before we got
anything.
Mr. Skinner. Going outside the department, I do not believe
that those that we worked with had the same sense of urgency as
we did. We cannot control those outside agencies.
Mr. Ellison. Now, let me ask you this because my 5 minutes
is short. Does the world know about what happened to Maher
Arar? That is a rhetorical question. Yes, they do. Is that
right, Mr. Horton? The whole world knows that----
Mr. Horton. [OFF MIKE]
Mr. Ellison. Right. And so Mr. Horton, what does this do to
our national reputation?
Mr. Horton. I think the fact that the facts are out there
and we get a report in which they are redacted. In fact, even
quotations to this report are redacted away, make us look
ridiculous. It undermines public confidence, in fact the
confidence of Americans first and foremost, and the
comprehensiveness and quality of the work that is being done by
the Inspector General.
Mr. Ellison. Now, I will offer that as a matter of----
Mr. Nadler. The gentleman's time has expired. Without
objection, the gentleman will get 1 additional minute.
Mr. Ellison. I will offer that as a matter of national
security, we need the help of the world to help protect our
country and the rest of the world from people, whatever
religion they may be, to stop terrorism. Would you agree with
that, Mr. Horton? Are we instilling confidence in the world
when we obstruct, evade, and obscure the truth when the
Canadians have so clearly confronted this issue head-on? Are we
doing ourselves any good? I do not think Mr. Horton thinks we
are doing ourselves any good.
Mr. Horton. Yes, sir.
Mr. Delahunt. Would the gentleman yield for a moment?
Mr. Ellison. Yes, sir.
Mr. Delahunt. I just want to note that I had read an
excerpt from the book that was just published.
Mr. Ellison. Philip Sands' book?
Mr. Delahunt. No. The author was Scott McClellan, who is
known to many of us because he was the spokesman for the Bush
administration. This is what he had to say. The Bush
administration lacked real accountability in large part because
Bush himself did not embrace openness or Government in the
sunshine.
I think that is your answer, Mr. Ellison.
Mr. Ellison. Thank you, Mr. Chairman.
Mr. Nadler. Thank you. The gentleman's time has expired.
There are four votes on the floor, two of them 15-minute
votes, and there are 4\1/2\ minutes left on the first vote. So
the Committee will stand in recess. The Committee will
reconvene immediately after the four votes are completed, at
which time we will proceed to our second round of questions.
The meeting will be Chaired for a while at least, while I have
something else to do, by the co-Chair of the hearing, Mr.
Delahunt.
The meeting now stands in recess.
[Recess.]
Mr. Delahunt. [Presiding.] We will commence, while we await
my colleagues. I want to indicate that I expect very shortly
Chairman Nadler to reappear, and hopefully Mr. Franks and Mr.
Rohrabacher.
Let me proceed with my own questions. I am going to put
forth my own apologies because I will have to depart within 10
minutes as I have to catch a plane to make a college reunion. I
am not going to disclose what reunion it is.
To get back to the two questions I posed in my opening
remarks, I will address this to Mr. Ervin and Mr. Skinner. Why
Syria? In your investigations, were you able to divine the
rationale to return Mr. Arar to Syria?
Mr. Skinner. We did ask the question, and no, we could not
determine the rationale for the return to Syria.
Mr. Delahunt. I am glad to hear that you asked the
question. To how many individuals was the question posed, if
you know, or you can give me a range?
Mr. Skinner. Can I get back to you on that? I know we asked
within and outside the department.
Mr. Delahunt. The Department of Homeland Security?
Mr. Skinner. That is correct.
Mr. Delahunt. Did you ever ask representatives of the
Department of Justice that question?
Mr. Skinner. Yes, we did.
Mr. Delahunt. And was there a response?
Mr. Skinner. Yes, but it wasn't satisfactory, in our
opinion, and that is the reason I make the statement or draw
the conclusion in our report that there the decision was
somewhat ambiguous because we just could not find documentation
through interviews or through file reviews that would lead us
to believe, or give us a reason why Syria.
Mr. Delahunt. Did you inquire as to the Department of
State?
Mr. Skinner. Yes, we did.
Mr. Delahunt. And did you receive a response?
Mr. Skinner. Yes, but I am going to stop there, because we
did receive a response, but if I go beyond that, then I am
getting into a classified arena here.
Mr. Delahunt. In terms of the diplomatic assurances that
were provided by Syria, according to the O'Connor report, the
Canadian inquiry commission, according to your own report, was
there any definition of those assurances that were provided?
Mr. Skinner. No. And I would just like to clarify when you
say ``diplomatic assurances.''
Mr. Delahunt. Just ``assurances.''
Mr. Skinner. ``Diplomatic assurances'' implies something
entirely different.
Mr. Delahunt. Can you make the distinction for me?
Mr. Skinner. Not here, sir. I am sorry.
Mr. Delahunt. Well, let me just draw my own inference then.
Let me go to Mr. Ervin and ask him for his assistance on
the distinction between diplomatic assurances and assurances.
Mr. Ervin. Well, I am not an expert in this area, sir, but
my understanding is that there is a formality to diplomatic
assurances that does not attach, of course, to assurances.
Mr. Delahunt. So one could speculate that this was an
informal assurance.
Mr. Ervin. Yes.
Mr. Delahunt. It could have been a whisper.
Mr. Ervin. Yes.
Mr. Delahunt. It could have been a telephone conversation.
Mr. Ervin. It could have been.
Mr. Delahunt. And yet we have the then-Attorney General of
the United States, Mr. Gonzales, testifying before the a Senate
Committee, and I do not know the exact language, but I think it
was diplomatic assurances or reliable assurances. I will have
to go back and review that, but I would suspect that those
senators that heard that testimony presumed that it was more
than just simply a phone call or a whisper or a wink or a nod,
and you are on your way back to Syria.
Mr. Horton, do you have any opinion on this?
Mr. Horton. Well, I think one of the issues in the
background here that is very important is the role that the
Department of State did or did not play in connection with this
matter and similar matters. It seems to me fairly clear that
there was an effort to keep the State Department out of the
process, out of the loop here, and this is the subject of a
number of the redactions that have occurred here.
Similarly, saying that something is not a diplomatic
assurance is a way of saying that, well, the assurance would
not necessarily be passed through the State Department
diplomatic personnel. It might be passed through law
enforcement personnel, for instance. So I think those are
important points.
I also think the nature of what the assurance is--you know,
my surmise is, again from listening particularly to statements
that have been made by Justice Department personnel who have
addressed this issue in the past--is that they do not seem to
believe it has to be an assurance that a particular person will
not be tortured in so many words. They seem to be prepared to
accept a quite informal assurance that the country receiving
him would abide by its laws, assuming they can say that the
laws have protections against torture. That strikes me as
outrageous, frankly.
Mr. Delahunt. Are you familiar with the domestic laws of
Syria?
Mr. Horton. I am not. I have not undertaken a general
survey of them, but I would not be surprised if there weren't
provisions in them that preclude torture. I would imagine those
are things that are routinely ignored by police authorities in
Syria, certainly in accounts I have read that have been issued
by our own State Department, for instance.
Mr. Delahunt. Again, in my opening remarks, I read the
statement by President Bush where he describes Syria as having
a legacy of torture. Those are his words. They are not mine,
but accepting them at face value.
Can you help me, Mr. Horton, with our relationship with
Canada? Do you consider them a terrorist state?
Mr. Horton. I certainly do not consider them to be a
terrorist state. I am not familiar with any suggestion by our
Government that Canada is a nation that harbors terrorists. In
fact, I think cooperation between the U.S. and Canada on
counter-terrorism issues is very, very strong. In fact, that
does come out in the record here. This was launched, after all,
by Canadians raising issues concerning one of their own
citizens. So I would say there has been robust, close
cooperation.
I know there is concern on the U.S. side that Canada is not
as aggressive in its sort of preemptive measures in dealing
with terrorist suspects as the United States is. There is also
concern that----
Mr. Delahunt. In other words, as a matter of practice they
do not render them to Syria.
Mr. Horton. They do not render them to Syria, but I think
also, too, the Canadian police authorities tend to study
terrorist groups closely over a period of time to try and pull
out all the roots very carefully, rather than leaping on them
right away. There is a sort of difference in police approach
between the U.S. and Canada.
I think there is also a concern that there is a porous
border between the U.S. and Canada. I mean, that is certainly
true.
Mr. Delahunt. Can you speculate as to why the acting
Attorney General, Mr. Thompson at the time, would have
concluded that to return Mr. Arar to Canada, rather than to
Syria, would have been prejudicial to the interests of the
United States?
Mr. Horton. To me, this is one of the most difficult cases
to understand because I think even if we look at the
extraordinary renditions program itself, I can sort of
understand the methodology or the legal reasoning that is
involved, but this is not really in the extraordinary
renditions program where someone is being rendered to a country
that cooperates with the U.S. and intelligence. It is a country
that harbors terrorists and is essentially an enemy of the
United States. I think it has been defined that way quite
sharply in the past.
I think that the rationale that must have been applied here
was one where they expected some level of cooperation with
Syrian police authorities. They expected an aggressive
interrogation potentially using prohibited techniques, highly
coercive techniques. And their legal analysis led them to
believe that a highly formalistic assurance provided by Syrian
authorities that they would not torture, even if they didn't
believe that assurance deep down inside, was adequate.
So the attitude seems to be do not really probe, do not ask
a lot of questions, do not----
Mr. Delahunt. Don't ask, don't tell.
Mr. Horton. Worse than that, even. You know, just them to
say something to you and go on that basis. That seems to me to
be playing fast and loose with the statute and the requirements
of the statute, because the statute basically puts forward the
test of more likely than not that the person will be tortured.
I mean, diplomatic assurances are under the regulations
permitted as a route that can be pursued, but they do not
overcome this basic requirement of a determination that it is
more likely than not.
I cannot see how the Attorney General could reach a
determination that it was not likely that Maher Arar would have
been tortured on rendition to Syria, under all the facts here.
Mr. Delahunt. Is there a formal process--and I will address
this to Mr. Skinner and Mr. Ervin and to you, Mr. Horton--that
describes the procedure of securing diplomatic assurances? Is
there in existence a Department of State protocol or series of
regulations that would clearly enumerate the steps to be taken
to secure diplomatic assurances?
Mr. Skinner. Yes, there are, and I believe we do comment on
that in our report. There are processes that you would
ordinarily take to obtain those assurances.
Mr. Delahunt. Were those assurances complied with in this
particular case?
Mr. Skinner. I do not want to draw a conclusion that they
were or were not, but certainly from the information we have it
does not appear that they were followed to the letter of the
law or the regulation. We have to keep in mind that in this
process there are two different processes that we could take
here in the proceedings. One I referred to earlier is a 240
proceeding, which is not necessarily dealing with terrorist per
se. And then there is the 235(c) proceeding, which does in fact
deal with terrorists. It is somewhat nebulous as to exactly
what process you must follow to obtain those assurances, so
there is some flexibility there.
Mr. Delahunt. Let me go back to a question that was posed
earlier about the requirements of the statute that a report to
Congress be made after 7 days in the event of an apparent
deficiency or lack of compliance. Why wouldn't the Office of
Inspector General have reported to Congress, to the Committee
on the Homeland Security or to the Judiciary Committee, this
deficiency, given the serious nature and the consequences that
we have endured since?
Mr. Skinner. Let's keep in mind that the department did
reach out to obtain assurances, and we could stop there. The
question is whether those assurances were sufficient.
Mr. Delahunt. That is my point, Mr. Skinner.
Mr. Skinner. Yes.
Mr. Delahunt. What I am suggesting to you, from my
perspective, and I am becoming somewhat conversant with the
details of this case, I would suggest that on their face they
were insufficient. I would suggest to you that it was the
responsibility of the office not to report necessarily to the
secretary of the Department of Homeland Security, but to this
institution, because we are in this together--you as Inspector
General and Congress as an institution with the constitutional
responsibility of serving as a check and balance on the
executive branch.
We have been in the dark on this particular case since the
incident occurred. This is a gross embarrassment to the people
of the United States and to this institution. What I would hope
is that you and Mr. Horton and Mr. Ervin and others would make
recommendations so that we could clarify the responsibility of
the Inspector General to report to the relevant Committees of
this institution where there are areas of significant concern.
Mr. Skinner. Mr. Chairman, we in fact did report to the
department through our report, and immediately followed that up
within 7 days, I believe 5 days actually, to report to the
Congress. Now, as far as when we say reporting immediately to
Congress on flagrant violations, what we are talking about here
is an event that had occurred 3, 4 years earlier. We did not
find during the course of this review that the practices that
were applied to the Arar case were still ongoing. If it was,
then of course we would have done a flash report immediately to
the secretary, who had an obligation to report that to you. But
we did not find any evidence that there was any flagrant or
serious rendition activities involving the various elements
within DHS. That would be ICE, CIS and CBP.
Mr. Delahunt. I note the appearance of Chairman Nadler. I
am going to turn the gavel back to him and excuse myself. I
want to thank the panel. It has been informative, but it has
been very disturbing to hear your testimony. This is a matter
that we have an obligation to pursue. Given the delay that has
already occurred and the penchant for secrecy that appears to
color this particular case and other situations in the
Administration, my recommendation for a special prosecutor to
be assigned will continue that secrecy, with the convening of a
grand jury, so those who are concerned about secrecy can give
their testimony to a Federal grand jury behind closed doors.
With that, I yield back the gavel to Chairman Nadler.
Mr. Nadler. [Presiding.] Thank you very much.
Let me ask Professor Horton, first of all. Before the
votes, you said that you thought that the procedures in this
case went outside the normal procedures and that very high-
level senior Government people made decisions on this case. Can
you elaborate on this? First of all, who and which decisions?
And why was it outside normal procedures?
Mr. Horton. Well, I would say you start with a real focus
on the compression of time, the extraordinary schedule on which
all of this happened, on which I think the CAT hearing that
occurred at 7 o'clock in the evening on a Sunday is just a
stunning example of it.
Mr. Nadler. With notice to the attorneys Friday night or
Saturday.
Mr. Horton. Telephonic notice left on a message----
Mr. Nadler. They were notified Sunday at 4:20, and
surprise, they didn't get the message until Monday, and the
hearing started at 7 o'clock. Do you think that is
extraordinary?
Mr. Horton. Absolutely extraordinary.
Mr. Nadler. Do you think it might be construed as designed
to make sure that he didn't have counsel?
Mr. Horton. I am quite certain that that is the case.
Mr. Nadler. Before you go further, Mr. Ervin would you
concur with that judgment?
Mr. Ervin. I would absolutely concur with that.
Mr. Nadler. And if you were writing this report, would you
make that a conclusion of this report, that there was a
deliberate intent that he not have an attorney?
Mr. Ervin. I would certainly draw that conclusion and I
would do it explicitly in the report.
Mr. Nadler. Thank you.
Mr. Skinner, do you draw that conclusion? If not, why not?
Mr. Skinner. I am sorry. I am not really clear on what the
question is.
Mr. Nadler. The question is, do you conclude from the fact
that for the protection hearing under CAT which occurred at 9
o'clock on Sunday night, his attorneys were notified at 4:20 on
Sunday, or at least a message was left, when they obviously
thought that the odds were nobody is going to be in a legal
office at 4:20 on Sunday. The hearing occurs at 9 o'clock. He
had no legal representation.
Would you conclude from that--and if you didn't, why
wouldn't you--that there was an intent that he not have legal
representation?
Mr. Skinner. Let me say it certainly appears that way.
Mr. Nadler. Well, what would mitigate that appearance?
Mr. Skinner. The process that they were using in the Arar
case was--I do not want to say exempt--was different than what
would you would use ordinarily.
Mr. Nadler. Well, was it in a class that was sometimes
used, but not often? Or was this unique?
Mr. Skinner. The 235(c) process is not used often.
Mr. Nadler. I understand--235(c) is a very rare situation.
Mr. Skinner. That is correct.
Mr. Nadler. But even within 235(c), was this done, given
the compression of time, given on a Sunday, given other
circumstances, would you say this is the way 235(c)s are
normally done?
Mr. Skinner. No. Let me add that we questioned why this had
to be moved so rapidly through the system. To set up an
interview on a Sunday and to contact attorneys on a Sunday is
highly questionable.
Mr. Nadler. And to contact the attorneys on a Sunday for a
Sunday evening interview, and to go ahead with the interview
when you didn't reach them.
Mr. Skinner. That is correct.
Mr. Nadler. And what response did you give to that?
Mr. Skinner. Arar was not entitled to an attorney.
Mr. Nadler. He was not entitled to an attorney. So why did
they call an attorney?
Mr. Skinner. I am going to be getting into some redacted
portions of our report.
Mr. Nadler. They called the attorney for secret reasons?
Mr. Skinner. Not secret, but for other reasons which would
be attorney-client privilege.
Mr. Nadler. Whose attorney-client privilege? Mr. Arar's
privilege, his attorney's privilege?
Mr. Skinner. No. Those that made the decision to move
forward without the attorney.
Mr. Nadler. Now, you say that Arar was not entitled to an
attorney in this hearing. That is not in the public report. Why
isn't it?
Mr. Skinner. It is not clear under the 235(c) proceedings,
at least in my understanding, as to what his rights are.
Mr. Nadler. So he may have been entitled to an attorney.
Mr. Skinner. Yes. We do know that he does not have a right
to go through a hearing. He does not have the right to appeal.
It is not clear as to what rights he has with regards to
representation.
Mr. Nadler. So it is not clear. But nonetheless, they went
through the motions of affording him the right to counsel by
calling an attorney on Sunday, but not the reality.
Mr. Skinner. That is correct.
Mr. Nadler. Now, why they did that is an attorney-client
privilege? Why he was given the appearance but not the reality?
How can that be attorney-client privilege? Which attorney and
what client?
Mr. Skinner. In this case here, it is those individuals who
made the decision to proceed without allowing representation
for Arar, or allowing an attorney to be present during the
interview.
Mr. Nadler. And some attorney would have advised that
decision-maker and the advice he gave him would be attorney-
client privilege?
Mr. Skinner. Yes.
Mr. Nadler. All right. Never mind the advice he gave him.
What about the decision that he made? What was the reason for
that? That is not privileged.
Mr. Skinner. The reason he they wanted to do the interview,
they wanted to remove as soon as possible, which we were never
able to determine why.
Mr. Nadler. So for undetermined reasons of haste, he was
denied effective assistance of counsel.
Mr. Skinner. That is correct.
Mr. Nadler. And you are still attempting to figure out what
was the rush?
Mr. Skinner. I do not know if we will ever determine why
because those people that made those decisions refused to be
interviewed.
Mr. Nadler. You can't subpoena them?
Mr. Skinner. No, I do not have subpoena authority.
Mr. Nadler. Who are those people? What are their names?
Maybe we will subpoena them.
Mr. Skinner. Maybe that is the INS commissioner, the chief
of staff at INS, and that would be the chief counsel at INS.
Mr. Nadler. At the time, obviously.
Mr. Skinner. Yes.
Mr. Nadler. Now, Professor Horton, I cut you off because
you hadn't finished answering. You said that this was handled
unusually even for a 235(c) case. Decisions were made by
higher-ups who would not normally have been involved. Can you
elaborate?
Mr. Horton. I think it is quite clear here that the
individuals who were involved were not just the commissioner
and the commissioner's council, but also figures in the
Department of Justice.
Mr. Nadler. How do we know that?
Mr. Horton. I think it comes out from the report as to who
was involved in these meetings at which the decisions were
made. We note that there are two individuals from the Office of
the Deputy Attorney General who were involved. We know that key
decisions were made by the Deputy Attorney General then, as
Acting Attorney General, to enable the entire process to move
forward.
To me, it seems highly unlikely that the professionals
within the INS would have proceeded in this highly expeditious
and expedited, contracted, compressed fashion, I think
violating normal rules that they would follow involving
bringing in counsel, among other things, and allowing
reasonable notice, without pressure coming from above for that
to happen. I believe that is what happened here.
If we look at the redacted passages of the report, it is
clear that immediately before this there is discussion in which
we see a footnote which has not been redacted in which the key
word appears: habeas corpus. It is clear that there has been
extensive discussion here about the fact that----
Mr. Nadler. There has been extensive discussion about how
to avoid allowing him to exercise the right of habeas corpus?
Mr. Horton. Bingo.
Mr. Nadler. Mr. Skinner, do you concur with that? Do you
think there was a deliberate plot, a deliberate scheme on the
part of high Government officials to arrange things in such a
manner, expedited and other ways, so as to make his right to
file a writ of habeas corpus not real?
Mr. Skinner. Mr. Chairman, I would be happy to answer that
question in a closed environment.
Mr. Nadler. I am asking your opinion. You do not need a
closed environment for an opinion.
Mr. Skinner. Sir, I am representing the Inspector General's
office. I am not going to offer my personal opinions. I do have
personal opinions, but I do not think this----
Mr. Nadler. All right.
Mr. Ervin, as an experienced observer and a former
Inspector General, do you think the facts and circumstances
indicate a deliberate scheme to make sure that he couldn't
exercise his habeas corpus right?
Mr. Ervin. It seems to me that there is no reasonable
conclusion otherwise that can be drawn from the facts and
circumstances that we know.
Mr. Nadler. Is there any proper legal motive for such a
scheme?
Mr. Ervin. I can think of none.
Mr. Nadler. So you would conclude that such a scheme had to
have an illegal or extra-legal motive?
Mr. Ervin. Well, I do not doubt that the scheme--if we can
use that word--was motivated by an intention to protect the
United States.
Mr. Nadler. That is not the question.
Mr. Ervin. But----
Mr. Nadler. Let me just observe, because I want to comment
also on the comments by Mr. Rohrabacher before. Lots of
terrible things have been done in history by people who were
well motivated to protect their country or other notable goals.
The reason we have laws and due process is to protect people
from men and women of zeal who may be perfectly well motivated.
So that is not the question.
If somebody has the motive of protecting the United States,
and in order to do that does illegal things, we have laws
because we do not trust people's even well-intentioned motives
to protect all of us.
Mr. Ervin. I completely agree with that. I was trying to be
completely comprehensive in my answer. There is no question but
that given everything we know, the intention here was to render
him to Syria, as opposed to Canada, because of the certainty
that he would be tortured in Syria and he would not be in
Canada.
Mr. Nadler. And the intention was to take whatever shortcut
possible so as to avert any legal challenge such as a writ of
habeas corpus that he could bring, which would have stopped
that rendition.
Mr. Ervin. That, to me, is the only reasonable conclusion
that can be drawn from this.
Mr. Nadler. Is there anything in our law that would stop
them from doing it tomorrow to somebody else, Mr. Ervin?
Mr. Ervin. Well, yes. The law would have prevented this
occurrence, it is just that the laws were not observed.
Mr. Nadler. You think they broke the laws?
Mr. Ervin. Yes.
Mr. Nadler. Do you think there were criminal violations of
the laws?
Mr. Ervin. I think there should be a criminal inquiry.
Mr. Nadler. What possible criminal laws might have been
violated? Excuse me. What criminal laws might have been
violated?
Mr. Ervin. Well, we are a signatory to CAT.
Mr. Nadler. Yes. CAT, okay. And CAT is a criminal statute?
Mr. Ervin. I believe that a failure to observe this
international Convention of Torture would constitute a
violation of criminal law.
Mr. Nadler. Okay.
Professor Horton, could you answer the same question
please?
Mr. Horton. Yes. One of the provisions implementing the CAT
was section 2340(a) of the criminal code which makes torture
and the conspiracy to torture a person a criminal offense.
Mr. Nadler. Any high official who engaged in a--I am trying
to look for a word that doesn't have improper connotations--any
high official who engaged in a course of conduct with the
intent of depriving Mr. Arar of certain legal remedies so that
he could be rendered to Syria within the knowledge that he
might or probably would be tortured would be guilty of criminal
offenses?
Mr. Horton. Well, I think there are certain defenses built
into the statute and built into the CAT that one would have to
work one's way through, so there is a process----
Mr. Nadler. Clearly, but assuming those facts were proven?
Mr. Horton. Prima facie, yes, I think a prima facie case
could be made out here, yes.
Mr. Nadler. Mr. Ervin?
Mr. Ervin. Yes, I agree.
Mr. Nadler. Mr. Skinner, do you agree?
Mr. Skinner. That is correct. Let me also add, you asked
can this happen again. I think with the new policies and
procedures put in place, not to say it cannot happen again, but
it would be more difficult for it to happen again.
Mr. Nadler. And I am told one of those new procedures is
redacted as a secret procedure.
Mr. Skinner. That is correct. I would be happy to talk to
you about that in a classified environment.
Mr. Nadler. Mr. Skinner, given the extraordinary secrecy of
this, given the extraordinary secrecy from the beginning up
until now, what assurances does the American public have that
anyone walking down the street can't be--well, other cases of
rendition--well, let me ask you this. We have looked at a
number of rendition cases. Am I correct that this is the only
one in which the immigration laws were used as a pretext or a
fig leaf, which was done supposedly under the immigration laws?
Mr. Skinner. As far as I know, correct.
Mr. Nadler. And other cases of rendition that we know of
were done just completely outside the law?
Mr. Skinner. They were done outside the territory of the
United States, so that U.S. immigration laws did not apply to
them.
Mr. Nadler. They were all done outside the territory of the
United States, but the CAT still applies and the other criminal
laws still apply?
Mr. Skinner. Yes.
Mr. Nadler. Mr. Ervin, given the extraordinary secrecy here
and the evident use or misuse of classification and secrecy to
cover up improper conduct, what changes would you recommend so
that the American people could be more confident that official
misconduct, official torture, official lawbreaking would not be
covered up by the secrecy laws?
Mr. Ervin. Well, I am very concerned by this tendency that
we have seen in the last few years to over-classify
information. In preparation for this hearing, I reviewed that
mechanism that is available to challenge what one considers to
be over-classification. The bottom line is at the end of the
day the ultimate appeal is to the President. In these
circumstances, it is needless to say----
Mr. Nadler. Only the executive? Congress can't declassify
something if it wishes?
Mr. Ervin. My understanding the answer to that is no.
Mr. Nadler. I am told except by a vote of the full House.
Mr. Ervin. Well, then, if that is true, then that is your
remedy.
Mr. Nadler. It is a rather difficult remedy.
Mr. Ervin. Needless to say, but less difficult under these
circumstances than to appeal to the President, of course.
Mr. Nadler. Professor Horton, do we know who the ODAG
lawyers who were involved in this were?
Mr. Horton. They have been identified to me, yes.
Mr. Nadler. And that is public knowledge?
Mr. Horton. I am not sure it is public knowledge.
Mr. Skinner. No, it is not public. They are protected under
the privacy laws.
Mr. Nadler. Did they cooperate with your inquiry?
Mr. Skinner. Yes.
Mr. Nadler. What about the Acting Attorney General, Mr.
Thompson? Did he cooperate?
Mr. Skinner. I do not believe we reached out to the Acting
Attorney General.
Mr. Nadler. Was he not identified at some point in your
report, if memory serves, as having made some of the key
decisions here?
Mr. Skinner. I do not believe he was involved in the
decision to remove Mr. Arar to Syria. He made the decision I
believe that we would not honor Arar's request to go to Canada
because of the porous nature of our borders.
Mr. Nadler. Okay, because it was prejudicial to U.S.
interests.
Mr. Skinner. Yes.
Mr. Nadler. Now, given the fact that he made that decision,
he seems to be a key actor in this. Why did you not seek to
interview him?
Mr. Skinner. When we were doing the review, I think the
questions that we were asking could have been answered up
through the Deputy Attorney General.
Mr. Nadler. Mr. Skinner, I think your report concluded that
there is not enough evidence to justify that determination.
Didn't you conclude that? Or that you do not have enough
information to judge that determination with respect to Canada?
Mr. Skinner. That is correct.
Mr. Nadler. Therefore, that being the case, shouldn't you
have sought further evidence like by interviewing him?
Mr. Skinner. I believe he signed the letter, but it was the
recommendation that came from the Office of the Deputy Attorney
General.
Mr. Nadler. Did you interview the Deputy Attorney General?
Mr. Skinner. We did interview those individuals that were
involved in that decision process, those attorneys that were
present, who made that recommendation, yes.
Mr. Nadler. Okay.
I now recognize the distinguished Ranking Member, Mr.
Franks.
Mr. Franks. Thank you, Mr. Chairman. I am glad you waited
for me here.
Mr. Nadler. So you could ask questions.
Mr. Franks. I appreciate that. You know, I have never been
physically afraid of the Chairman, but this gavel here lately
is starting to intimidate me. It is pretty loud. [Laughter.]
In your written testimony, Mr. Skinner, you stressed the
need to protect certain information from civil discovery and
litigation involving Federal officials with national security
programs. I understand that. In discussing the need to protect
certain information under the Freedom of Information exemption
five, you describe the costs of any attempt to make such
information public, and you stated that ``such disclosures
would have ramifications not only for the Department of
Homeland Security and the Office of the Inspector General, but
for every Office of Inspectors General in the executive
branch.''
Can you elaborate on that? You make a very good point.
Mr. Skinner. Yes. We obtain proprietary information with
the understanding that we will protect that information. If we
ask for documents that are classified secret, for example, we
provide assurances that if you turn that over to us, we will in
fact protect the classification of that document.
If we do not honor that, then we will lose the opportunity,
we will lose our credibility within the department to cooperate
with us. That can spread through other departments, and in the
other departments why should I give any classified or
proprietary information to an IG if they cannot provide me
assurances that they will protect it.
Mr. Franks. That makes sense to me.
On page 35 of the unclassified report, it states that ICE
concurred with our recommendations and is taking steps to
implement them, and that it didn't appear that any INS
personnel, whose activities that your reviewed, violated any
existing law, regulation or policy with respect to the removal
of Mr. Arar. And you said that their responses to the
recommendations resolved and closed the situation.
Can you elaborate on that a little bit?
Mr. Skinner. Yes. Again, that is their statement. During
the course of our review, we did not find anyone within the
Department of Homeland Security that had violated any law or
regulation. I think we also qualified that. That is, we were
unable to interview everyone in the Department of Homeland
Security that were involved in this case, particularly the INS
commissioner at the time, the chief of staff, and chief
counsel. So we qualified our statement in accepting their
concurrence with our recommendations.
Mr. Franks. Okay. The Department of Justice's written
response to the incident states ``that the removal of Mr. Arar
to Syria complied with all legal obligations. As the Attorney
General recently testified, there were assurances sought that
Mr. Arar would not be tortured from Syria.'' They sought those
assurances. ``Mr. Arar's removal order incorporated the
determination by the commissioner of the INS that his removal
was consistent with the Convention Against Torture, and in sum,
the United States remains strongly committed to the worldwide
elimination of torture.''
Now, I know that there are some really difficult
circumstances here to fathom and to understand. As I said
earlier, the last thing I want to do is to see any injustice
done to anyone. But I do want to try to go on the record here
that at least from the stated perspective that there is a
strong commitment by the United States to the worldwide
elimination of torture. I do not know of anyone on this
Committee that isn't absolutely committed to that, from the
farthest to the right to the farthest to the left.
Do you have any information that contradicts their
statement in that regard, that they at least have not tried to
do everything they could to prevent torture, and their
commitment to worldwide elimination of torture is still in
place? Any contradiction of that?
Mr. Skinner. I can. We would have to talk about this in a
closed environment. But I do say that the information that was
provided was in fact ambiguous.
Mr. Franks. Mr. Chairman, I am just wondering. I would be
interested in learning more about this in some type of
classified setting.
With that, I will yield back.
Mr. Nadler. I thank the gentleman.
We will go on to the next round, and I recognize myself for
5 minutes.
Mr. Ervin, would you answer Mr. Frank's last question that
he addressed to Mr. Skinner?
Mr. Ervin. If I understood the question, was there a reason
to think that Syria would not engage in torture--essentially
that was the question as I understood it.
Mr. Nadler. Was there a reason to believe that the people
involved here were not committed against torture. That was the
question.
Mr. Franks. I am sorry, Mr. Chairman. The Attorney General
testified that ``there were assurances sought that Mr. Arar
would not be tortured in Syria.'' In other words, they sought
those assurances, and they tried to follow the rules. In sum,
he says that the United States strongly remains committed to
the worldwide elimination of torture.
Do you know something that we don't that would contradict
that statement?
Mr. Nadler. Or something that we do know.
Mr. Ervin. Right. Well, I think we have talked about that a
number of times during the course of the hearing. The President
himself, the secretary of state, the reports of the Department
of State routinely list Syria as a practitioner or torture.
That itself, it seems to me, ought to have made it clear to the
relevant officials here that to render Mr. Arar to Syria would
make it more likely than not that he would be tortured. Indeed,
it seems to me that that was precisely the reason that he was
so rendered.
Mr. Nadler. And what about the assurances that we got from
Syria that he would not be tortured? What reliability could be
put on those assurances?
Mr. Ervin. None, as a practical matter, because we talked a
second ago about the distinction between diplomatic assurances,
which are rather formal, and assurances, which is what we had
here, which are informal. So there was no basis, it seems to
me, given the assurances that were obtained, to think that
Syria would not engage in torture under these circumstances.
Mr. Nadler. Thank you.
Now, to Professor Horton, it seems possible, perhaps
likely, that privilege and in fact classification, but
certainly privilege was used here to ensure that facts do not
come out publicly so that the Administration can play fast and
loose with facts in the litigation initiated by Mr. Arar.
Do you think this is the case? In other words, do you think
that privilege is being misused here to prevent facts from
coming out that might be useful in Mr. Arar's litigation? If
so, is this an appropriate use of privilege?
Mr. Horton. I think there is a high likelihood that the
sweeping scope of privilege that has been invoked here has been
designed to avoid publication of a complete statement of the
facts that would show particularly the involvement of a number
of fairly high-ranking players, especially people in the Office
of the Deputy Attorney General.
I think that there seems to be a concern that the report
might contradict the positions that the Department of Justice
has taken in that litigation--positions as to fact. I do not
think that is an appropriate use of privilege. I would just
say, look, within the Department of Justice, most key decision-
makers are attorneys. They have a law license, but that doesn't
mean that everything that they do is subject to an attorney-
client privilege. Here, there seems to be a far too sweeping
view of it. So their actual actions certainly are not covered
by that privilege.
Mr. Nadler. Mr. Ervin, would you comment on the same
question?
Mr. Ervin. I completely agree with that. That is the
distinction I was trying to draw in my formal statement, that
there certainly were some privileges here, but it seems to me
that there was an attempt to use privileges, legitimate
privileges, over-broadly so as to cover-up information that
would merely be embarrassing and perhaps inculpatory.
Mr. Nadler. Let me ask the last question that I am going to
ask, and that is Mr. Arar was obviously subject to torture in
Syria. He apparently, even from the report it is pretty clear,
even what we do not know from the report, that he was
deliberately rendered to Syria, or at least he was deliberately
rendered to Syria either for the purpose of being tortured,
which you certainly could gather, or in reckless disregard of
whether he would be. That would seem to violate his rights, to
put it mildly. He has instituted litigation, and that
litigation so far has been dismissed on procedural grounds.
Is there anything that any of you would recommend to change
the law or the practice in such a way that someone who might
have the same kinds of violations done to him would be able to
get a day in court properly without the procedural dismissals?
Mr. Skinner. Let me say, we have to develop some policies,
some procedures, and we must adhere to them. We do not want to
get in the position where we have to go to court. We should
never be in a position to begin with. I think outlining some
clear policies, procedures, processes as to how you deal with
cases like this and adherence to the policies and procedures
will prevent this from happening again. I think the department
in fact has taken some steps to ensure, or at least to mitigate
this ever recurring within the department.
Mr. Nadler. Thank you.
Do either of you have any comments?
With that, I will yield back.
I recognize the gentleman from Arizona.
Mr. Franks. Mr. Chairman, just to kind of summarize my own
perspective here, it is obvious or pretty clear to me that
there were mistakes made here, but it appears to me that at
least on the American side that most of those mistakes were
predicated upon false information from Canada, and at least
what is in evidence seems to be that the Americans generally
tried to do the right thing.
Now, it appears from some of the panel members here that I
am hearing almost an implied statement that somehow the United
States deliberately, willfully, and knowingly sent Mr. Arar to
Syria to be tortured. There is nothing in the evidence that has
been presented here that convinces me of that.
However, if there is some type of evidence that can change
my mind on that in a classified setting, I am certainly open to
hearing that because I think that Congress is first and
foremost about justice, about defending the innocent against
the malevolent. If there is malevolence here deliberately, I
haven't seen it, but I am willing to hear it in a classified
setting if the Chairman is inclined.
With that, Mr. Chairman, it seems to me like there has been
a tragic situation occur here, but it is based primarily on
information that Americans thought they could rely on from
Canada, and it turned out to be unreliable.
With that, I yield back.
Mr. Nadler. Before closing the hearing, let me just observe
that assuming the information from Canada had been reliable,
what we are dealing with is what happened afterwards. Assuming
the information was reliable and that Mr. Arar in fact was a
terrorist, or that there were a lot of reasons to suspect he
was, he was then given to Syria and tortured. It is not
supposed to happen even to suspects who may in fact be guilty.
So it is a different question. So the question is what do we do
about that kind of thing.
I want to thank the witnesses. That concludes our hearing.
Without objection, all Members will have 5 legislative days to
submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond as promptly as you can so that the answers may be made
part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
Again, I thank the witnesses.
With that, this hearing is adjourned.
[Whereupon, at 2:13 p.m., the Subcommittees were
adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties
The Bush Administration's practice of ``extraordinary rendition''
violates fundamental of American values and basic human rights. From
what we know of this program, the Administration detains individuals
and then sends them to third countries that are not constrained by the
basic civil liberties and human rights guarantees of our Constitution
and laws. Often times, the Administration does so knowing that the
individual will be tortured, as the facts of Maher Arar's case
illustrate.
What I find even more disturbing in some ways is the secrecy that
continues to surround the Administration's ``War on Terror.'' Mr.
Conyers asked the Department of Homeland Security to investigate the
Arar case as well as the policies and procedures governing rendition
some four years ago. DHS responded only last December. Moreover, DHS,
and the Administration generally, continues to refuse to release much
information concerning rendition. Such secrecy does not serve the
American public and threatens to undermine democracy.
Document from the Department of Homeland Security, Office of Inspector
General entitled (U) The Removal of a Canadian Citizen to Syria
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
