JUSTICE DEPARTMENT'S
OFFICE OF LEGAL COUNSEL
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 14, 2008
__________
Serial No. 110-129
__________
Printed for the use of the Committee on the Judiciary
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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
------
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
C O N T E N T S
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FEBRUARY 14, 2008
Page
OPENING STATEMENT
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................ 1
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................ 3
WITNESSES
Mr. Steven G. Bradbury, Principal Deputy Assistant Attorney
General, Office of Legal Counsel, U.S. Department of Justice
Oral Testimony................................................. 5
Prepared Statement............................................. 8
APPENDIX
Material Submitted for the Hearing Record........................ 33
JUSTICE DEPARTMENT'S
OFFICE OF LEGAL COUNSEL
----------
THURSDAY, FEBRUARY 14, 2008
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 12:07 p.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Nadler, Davis, Ellison, Scott,
Watt, Franks, and King.
Staff Present: David Lachmann, Subcommittee Chief of Staff;
Burt Wides, Majority Counsel; Heather Sawyer, Majority Counsel;
Sam Sokol, Majority Counsel; Caroline Mays, Majority
Professional Staff Member; Paul Taylor, Minority Counsel;
Crystal Jezierski, Minority Counsel; and Jennifer Burba,
Minority Staff Assistant.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order.
Today's hearing will examine the work of the Office of
Legal Counsel of the Department of Justice with respect to its
involvement in the legal review of Administration policies
relating to detention and interrogation.
The Chair recognizes himself for 5 minutes for an opening
statement.
Today we consider a matter that goes to the heart of who we
are as a Nation. No one will argue that we live in a dangerous
world, that there are people who are organizing to attack our
Nation, or that our Government must gather reliable
intelligence to defend us. All that is obvious. What is at
issue is the lengths to which some people acting on our behalf
have gone, and what the Office of Legal Counsel has advised our
Government what it may and may not legally do.
The job of OLC is of critical importance to the rule of law
in this country. As Newsweek described it, the OLC, `is the
most important Government office you've never heard of.''
Within the executive branch, including the Pentagon and
CIA, the OLC acts as a kind of mini-Supreme Court. Its
carefully worded opinions are regarded as binding precedent,
final say on what the President and all his agencies can and
cannot legally do. So when it comes to the question of the
treatment, the use of waterboarding and other extreme forms of
coercion for interrogation of people detained by the United
States, OLC is really the place to start.
Our witness today, Steven Bradbury, is the Principal Deputy
Assistant Attorney General for OLC. He serves in that position,
because his nomination as Assistant Attorney General has not
yet been confirmed by the Senate.
OLC and Mr. Bradbury have been in the middle of the
controversy regarding the treatment of detainees. The now
infamous Bybee Torture Memo was produced by Mr. Bybee's deputy,
John Yoo. Its publication coming on top of the expose of
prisoner abuse at Abu Ghraib, devastated America's standing
around the world. It also led numerous prominent military
lawyers to fear it would permit hostile forces to brutalize our
soldiers and deny that what they were doing was torture.
That OLC product was so flawed and so at odds with our law
and our values that a subsequent head of OLC, Jack Goldsmith,
rescinded it. More recently, the OLC's role in developing
interrogation policy has again been in the spotlight. According
to the New York Times, Mr. Bradbury wrote two secret but
controversial opinions in 2005. Mr. Bradbury, as the acting
head of OLC, reportedly issued an opinion authorizing the use,
in combination, of certain harsh interrogation techniques,
including head-slapping, simulated drowning, and exposure to
frigid temperatures.
While its details remain unknown, that is to say secret,
Deputy Attorney General Comey has been reported to have
objected to it so vigorously that he told colleagues they would
all be ashamed when the world learned of it.
More recently, several developments have focused the
attention of this Subcommittee and of the Nation on the
chilling practice of waterboarding. My own view of
waterboarding is clear. It is torture, period; and as such,
violates several of our laws. Waterboarding is often misnamed
``simulated drowning.'' In fact, as was testified to by
witnesses at a couple of prior hearings of this Subcommittee,
it is actual drowning, with all the excruciating agony that
entails, which is stopped short of death. That is why what is
now euphemistically called ``waterboarding'' has for centuries
been more bluntly known as the water torture, from the
Inquisition to the U.S. prosecution in the last century of both
enemy captors and Americans alike for practicing waterboarding.
This has been the long-held view of our Nation, our legal
system and of our military.
Senator McCain, who is something of an expert on the
subject, has been unsparing in his criticism of these
practices. I have held several hearings where experts in
interrogation have testified not only to the cruelty, but to
the ineffectiveness of this practice.
Waterboarding is also prohibited by the Army Field Manual
on Interrogation. Just yesterday, the Senate passed a bill that
would extend the Army Field Manual guidance, which outlaws
waterboarding to the entire Intelligence Community
incorporating a bill which I had introduced initially with Mr.
Delahunt. As a civilized Nation there must be limits in our
conduct, even during military conflicts. And our laws so
dictate. President Bush has long said that America does not
torture. I urge him to sign this legislation into law and thus
affirm that commitment.
The fact that this Administration tortures, despite its
testimony that it doesn't, is no longer a closely held secret.
Recently, CIA Director Hayden disclosed the three individuals
who were subjected to waterboarding. He also disclosed that at
least two videotapes of those sessions had been destroyed after
several years of discussion among the CIA, Justice Department,
and the White House.
In addition to reportedly drafting several controversial
memoranda on interrogation, Mr. Bradbury also has been a point
man for the Bush administration, repeatedly explaining and
defending its programs and legal positions before congressional
Committees and participating in White House question-and-answer
sessions with the press and the public.
Opinions issued by OLC have offered the legal support for a
number of the Administration's more controversial programs and
actions, whose legality under statutes of the Constitution is
strongly questioned by many scholars. In addition, Mr. Bradbury
has been a frequent advocate for and defender of Administration
policies before the Congress and press and the public. This
raises the questions about the state of OLC today.
Some observers, including former OLC officials who served
in Administrations of both political parties, have questioned
whether OLC in this Administration has operated with sufficient
independence to present objective analysis of the controlling
law, or has too readily created weak arguments to support what
the President wants to do in regard to terrorism or other
areas. I hope we can get to this important issue.
I want to welcome our witness, I yield back the balance of
my time.
I would now recognize our distinguished Ranking minority
Member, the gentleman from Arizona, Mr. Franks, for his opening
statement.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, we are here today because of an article about
interrogation techniques that appeared in the New York Times.
The article describes a memo that allows what the headline
characterizes as ``Severe Interrogations,'' as described by a
few anonymous sources who are only briefed on the memo and who
have apparently not actually seen it. The Times article
concedes that the tactics it characterizes as ``severe
interrogations'' simply include ``interrogation methods long
used in training for our own American servicemen to withstand
capture.''
Severe interrogations are unpleasant, to be very sure, but,
Mr. Chairman, they are sometimes necessary to prevent severe
consequences that potentially involve the violent deaths of
thousands of innocent American citizens. Severe interrogations
are very infrequent. CIA Director Michael Hayden has confirmed
that despite the incessant hysteria, the waterboarding
technique has only been used on three high-level captured
terrorists, the very worst of the worst of our terrorist
enemies.
Director Hayden suspended the practice of waterboarding by
CIA agents in 2006. Before the suspension, Director Hayden
confirmed that his agency waterboarded Khalid Sheikh Mohammed,
Abu Zubayda, and Abd al-Rahim Nashiri, each for approximately 1
minute. The results were of immeasurable benefit to the
American people. CIA Director Hayden has said that Mohammed and
Zubayda provided approximately 25 percent of the information
the CIA had on al-Qaeda from human sources. That's 25 percent
of the total information in human intelligence that we have
received on al-Qaeda, derived from 3 minutes' worth of rarely
used interrogation tactics.
Curtailing this program would drastically reduce our
ability to protect against horrific terrorist attacks. Even the
New York Times article points out that such techniques have
``helped our country disrupt terrorist plots and save innocent
lives.''
Torture, Mr. Chairman, by contrast is illegal, as it should
be. Torture is banned by the Uniform Code of Military Justice
in 19 U.S.C. 893 and the 2005 McCain amendment prohibiting the
cruel, inhuman, or degrading treatment of anyone in U.S.
custody, as understood in the 5th, 8th and 14th amendments.
According to the New York Times, the Department of Justice
issued a legal opinion that ``The standards imposed by Mr.
McCain's Detainee Treatment Act would not force any change in
the CIA's practices. Relying on a Supreme Court finding that
only conduct that shocks the conscience was unconstitutional.
The opinion found that in some circumstances, waterboarding was
not cruel, inhuman or degrading if, for example, a suspect was
believed to possess crucial intelligence about a planned
terrorist attack, the officials familiar with the legal finding
said.''
Now, we do not know whether or not the confidential
Department of Justice legal opinion actually used the example
of waterboarding. But the general principle expressed by the
Department of Justice, echoed by the Supreme Court's finding
that circumstances inform our analysis of whether or not a
tactic is cruel, inhuman or degrading, and whether a tactic
constitutionally shocks the conscience.
The nonpartisan Congressional Research Service confirms
that this analysis, ``The types of acts that fall within cruel,
inhuman or degrading treatment or punishment contained in the
McCain amendment, may change over time, and may not always be
clear. Courts have recognized that circumstances often
determine whether conduct shocks the conscience and violates a
person's due process rights.''
Even ultra-liberal Harvard law professor Alan Dershowitz
agrees as he wrote this recently in The Wall Street Journal.
``Mukasey is absolutely correct,'' he says, ``as a matter of
constitutional law, that the issue of waterboarding cannot be
decided in the abstract. The Court must examine the nature of
the governmental interest at stake and then decide on a case-
by-case basis. In several cases involving the actions at least
as severe as waterboarding, courts have found no violations of
due process.''
As the Wall Street Journal pointed out in the recent
editorial, Congress wants the Justice memos made public, but
the reason to keep them secret is so that enemy combatants
cannot use them as a resistance manual. If they know what is
coming, they can psychologically prepare for it. We know al-
Qaeda training involves its own forms of resistance training,
and publicly describing the rules offers our enemies a road map
for resistance.
Mr. Chairman, as I said in the last hearing, I believe
those who would challenge aspects of the current practices and
procedures governing the interrogation of terrorists have an
absolute obligation to state explicitly what sorts of
interrogation techniques they do find acceptable. Criticism
without solution is useless and represents the opposite of
leadership.
And I look forward to hearing from our witnesses, Mr.
Chairman, and yield back.
Mr. Nadler. I thank the gentleman. I would comment that
some of us have done precisely that. We have suggested that the
practices that are permissible are those in the U.S. Army Field
Manual.
In the interest of proceeding to our witness, 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.
Without objection, the Chair will be authorized to declare
recess of the hearing.
As we ask questions of our witness, the Chair will
recognize Members in the order of their seniority in the
Subcommittee, alternating between majority and minority,
provided that the Member is present when his or her turn
arrives. Members who are not present when their turn begins
will be recognized after the other Members have an 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.
Our witness today, Steven G. Bradbury, who currently serves
as the Principal Deputy Assistant Attorney General for the
Office of Legal Counsel. The Office of Legal Counsel assists
the Attorney General in his function as legal advisor to the
President and all the executive branch agencies.
Before we begin, it is customary for the Committee to swear
in its witnesses. If you would please stand and raise your
right hand to take the oath.
[Witness sworn.]
Mr. Nadler. Let the record reflect the witness answered in
the affirmative. You may be seated.
Mr. Bradbury, you are recognized for your statement.
TESTIMONY OF STEVEN G. BRADBURY, PRINCIPAL DEPUTY ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF
JUSTICE
Mr. Bradbury. Thank you, Mr. Chairman, Chairman Nadler,
Ranking Member Franks and Members of the Committee.
Let me first extend my condolences to this body and to the
family of Congressman Lantos for the loss of a great American
and a great Member of this House.
Mr. Chairman, I appreciate the opportunity to appear before
you today to address the CIA's program of detention and
interrogation of high-value terrorists.
As this Committee knows, the Office of Legal Counsel
exercises the authority of the Attorney General to render legal
opinions for the executive branch. I've been privileged to
serve as the Principal Deputy in OLC since April 2004, and I
can assure the Committee that every opinion I sign for the
Office represents my best objective judgment as to what the law
requires, without regard for the political currents that often
swirl around the questions presented to us.
The CIA program was initiated not long after 9/11, when our
knowledge of al-Qaeda was more limited and when the possibility
of a follow-on attack was thought to be eminent. The program
has always been very narrow in scope, reserved for a small
number of hard-core al-Qaeda members believed to possess
uniquely valuable intelligence.
Fewer than 100 terrorists have been detained by the CIA as
part of this program. The President and CIA Director Hayden
have said that the program has been a critical source of
intelligence to help prevent further mass terrorist attacks on
the U.S. This program has involved the limited use of
alternative interrogation methods judged to be necessary in
certain cases because hardened al-Qaeda operatives are trained
to resist the types of methods approved in the Army Field
Manual which governs military interrogations. The CIA's
interrogation methods were developed for use by highly trained
professionals, subject to careful authorizations, conditions,
limitations and safeguards. They have been reviewed on several
occasions by the Justice Department over the past 5-plus years
and determined on each occasion to be lawful under then-
applicable law.
These alternative interrogation methods have been used with
fewer than one-third of the terrorists who have ever been
detained in the program. Certain of the methods have been used
on far fewer still. In particular, as General Hayden has now
disclosed, the procedure known as waterboarding was used on
only three individuals and was never used after March 2003.
While there is much we cannot say publicly about the CIA
program, the program has been the subject of oversight by the
Intelligence Committees of both Houses of Congress, and the
classified details of the program have been briefed to Members
of those Committees and other leaders in Congress.
In 2002 when the CIA was establishing the program and first
sought the legal advice of the Justice Department, the relevant
Federal law applicable to the CIA program was the Federal anti-
torture statute which prohibits acts intended to inflict severe
physical or mental pain or suffering, as defined in the
statute.
The Justice Department set forth its interpretation of the
anti-torture statute in OLC's public December 2004 opinion
where we affirm that torture is abhorrent to American values.
All advice we have given since has been consistent with the
December 2004 opinion.
Since 2005, additional laws have become applicable to the
program. Congress passed the Detainee Treatment Act in December
2005 and the Military Commissions Act in October 2006. And in
June 2006, the Supreme Court held for the first time, in Hamdan
v. Rumsfeld, that Common Article 3 of the Geneva Conventions
applies to our worldwide armed conflict with al-Qaeda.
The CIA program is now operated in accordance with the
President's executive order of July 20, 2007, which was issued
pursuant to the Military Commissions Act. The President's
executive order requires that the CIA program comply with a
host of substantive and procedural requirements. The executive
order reaffirms that the program must be operated in conformity
with all applicable statutory standards, including the Federal
prohibition on torture, Detainee Treatment Act, and the
prohibitions on grave breaches of Common Article 3, which were
added to the War Crimes Act by the 2006 Military Commissions
Act.
In addition, the executive order requires that all
detainees in the program must be afforded adequate food and
shelter and essential medical care. They must be protected from
extremes in temperature and their treatment must be free of
religious denigration or acts of humiliating personal abuse
that rise to the level of an outrage upon personal dignity.
The Director of the CIA must have procedures in place to
ensure compliance with the executive order, and he must
personally approve each individual plan of interrogation. After
enactment of the Detainee Treatment Act, the CIA commenced a
comprehensive policy and operational review of the program,
which eventually resulted in a narrower set of proposed
interrogation methods.
As the Attorney General disclosed, the program as it is
authorized today does not include waterboarding. And let me be
clear, Mr. Chairman. There has been no determination by the
Justice Department that the use of waterboarding under any
circumstances would be lawful under current law. Many of the
legal questions raised by the CIA program are difficult ones
and ones over which reasonable minds may differ. But the
dedicated professionals at the CIA are working with honor to
protect the country in accordance with the law.
Mr. Chairman, while differences between Congress and the
Department in these turbulent times are inevitable and are
consistent with the institutional tension embedded in our
Constitution, it is important to remember that I, like Members
of this Committee, have sworn an oath to protect and defend the
Constitution of the United States. Each of the opinions I have
rendered at the Office of Legal Counsel has been true to this
oath. While difficult questions arise, every opinion I have
issued has been consistent with my professional obligations as
an attorney and with my obligation to protect and defend the
Constitution.
Thank you Mr. Chairman.
Mr. Nadler. I thank you, Mr. Bradbury.
[The prepared statement of Mr. Bradbury follows:]
Prepared Statement of Steven G. Bradbury
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. I will begin by recognizing myself for 5
minutes to question the witness.
Mr. Bradbury, I understand that for many of the CIA's
enhanced interrogation techniques, the test of their legality
under current law is linked to the constitutional standards of
whether it shocks the conscience, and that this may depend on
the circumstances. But under the convention against torture and
the implementing Federal torture statute, torture is absolutely
barred; and that does not depend on the circumstances and that
does not depend on whether it shocks the conscience.
So let's put that aside and cut to the chase. The
convention and the Federal torture statute defined torture to
be ``an act specifically designed to inflict severe physical or
mental pain or suffering.'' I fail to see how the agonizing
pain of not being able to breathe as your lungs fill with water
and oxygen is denied your body cannot be considered severe
physical pain. And I fail to see how feeling that you are
drowning and about to die cannot be considered severe mental
pain and suffering.
It is certainly specifically designed--waterboarding, that
is--to inflict both severe mental and physical pain and
suffering so that the prisoner will speak.
Now, in your legal opinion, is waterboarding a violation of
the Federal torture statute?
Mr. Bradbury. Well, Mr. Chairman, as General Hayden has
disclosed, our office has advised----
Mr. Nadler. I'm not interested in your opinions before.
Never mind former OLC opinions. I'm asking you the question
now: Is waterboarding a violation of the Federal torture
statute?
Mr. Bradbury. I was about to answer the question, Mr.
Chairman, this way. Our office has advised the CIA, when they
were proposing to use waterboarding, that the use of the
procedure, subject to strict limitations and safeguards
applicable to the program, was not torture and did not violate
the anti-torture statute. And I think that conclusion was
reasonable. I agree with that conclusion.
Mr. Nadler. Given the definition I just read, how can you
possibly justify that?
Mr. Bradbury. Well, first of all, I'm limited in what I can
say about the technique itself, because----
Mr. Nadler. We know what the technique is. It has been done
for hundreds of years.
Mr. Bradbury. Well, with respect, Mr. Chairman, your
description is not an accurate description of the procedure
that's used by the CIA, and I think there's----
Mr. Nadler. My description was a description that was given
to this Committee by ex-interrogation officers.
Mr. Bradbury. Well, there's been a lot of discussion in the
public about historical examples. For example, as the Chairman
referenced, from the Spanish Inquisition; cases of torture from
the Philippines and committed by the Japanese during World War
II. Those cases of water torture have involved the forced
consumption of mass amounts of water and often large amounts of
water in the lungs. They have often involved the imposition of
weight or pressure----
Mr. Nadler. But your testimony is that that's not what
we're talking about now.
Mr. Bradbury. That is not what we are talking about.
Mr. Nadler. Well, then let me go to the following. You have
refused--according to the New York Times, you wrote several
memos on interrogation techniques in 2005. The Times said that
the opinion about using a whole bunch of very intense
techniques on the prisoner, in combination, including
waterboarding, so outraged Deputy Attorney General Comey that
he told colleagues they would be ashamed if it ever came out.
Now, that has peaked our curiosity. But the Attorney
General said he could not give us those memos and others we
have repeatedly asked for on this subject because they were
very sensitive. When the Chairman of this Committee, Mr.
Conyers, reminded him that we all have Top Secret clearance,
the Attorney General simply repeated that he was unable to
share them with us.
Now we have been shown documents on the NSA warrant list
wiretapping that are Code Word, which I'm sure is a higher
classification than your legal opinion of interrogation. So can
you tell us why you won't--I mean, you're telling us that the
opinions we're making about waterboarding are wrong because we
don't know what waterboarding really is. Therefore we can't
form a judgment, you're telling us, on the legal basis; or on
whether it is legal because we don't know what--literally, we
don't know about what we're talking because you won't tell us.
So can you tell us precisely what the legal authority is
for withholding those documents from the Committee of proper
subject matter jurisdiction other than the fact that they might
be embarrassing to somebody?
Mr. Bradbury. Well, Mr. Chairman, let me say I and the
Department of Justice and the Attorney General fully recognize
and respect the strong oversight interest this Committee has in
the work of our office----
Mr. Nadler. We've seen no evidence of that.
Mr. Bradbury. Well, let me say that we do intend and we
strive to respond to----
Mr. Nadler. Let's break through all this. Will you commit
to letting us see those memos? And, if not, why not?
Mr. Bradbury. We will--we are giving that serious
consideration, Mr. Chairman. We are giving that serious
consideration.
Mr. Nadler. Is there any legal basis for saying ``no'' to a
committee of jurisdiction which falls squarely within our
jurisdiction and where we all have clearance--security
clearance?
Mr. Bradbury. Well, these are matters that traditionally
are subject to the extensive oversight of the Intelligence
Committees.
Mr. Nadler. And the Judiciary Committee.
Mr. Bradbury. And the classified details of the program are
very close hold----
Mr. Nadler. Excuse me. I said we all had top security
clearances. So given that fact, is there any legal
justification for withholding those documents?
Mr. Bradbury. Well, Mr. Chairman, as you and I have
discussed these--this very question before, the interest is--
the interest that the President and the executive branch have
in protecting the potential public disclosure of----
Mr. Nadler. Wait, that's saying ``secret''. We all have top
security clearance, so all you're saying is that it might be
revealed. We have top security clearance.
Mr. Bradbury. Well, I think there was some discussion
previously, perhaps mentioned earlier in the opening
statements, about public disclosure. That----
Mr. Nadler. We're not talking right now about public
disclosure, we're talking about disclosure to this Committee.
Mr. Bradbury. I understand that. And my point today is we
recognize your interest, we recognize the unique nature of this
issue, the controversial nature of the issue. We do recognize
the extraordinary----
Mr. Nadler. But what is--you keep not answering my
question. What is the legal basis for your assertion of your
ability to have discretion about whether to give those
documents to us?
Mr. Bradbury. Mr. Chairman, I'm not asserting any legal
basis.
Mr. Nadler. If there is no legal basis, then you must give
them to us.
Mr. Bradbury. It's not a decision for me, but I am saying--
I am saying that the Attorney General, in close consultation
with the President, are giving careful consideration----
Mr. Nadler. Are you the head of the Office of Legal
Counsel?
Mr. Bradbury. Yes.
Mr. Nadler. Isn't it your job as such to give the opinion
to the Attorney General on these kinds of questions?
Mr. Bradbury. We do most often, yes, advise the Attorney
General and the President on matters that potentially involve
executive privilege issues.
Mr. Nadler. So have you advised the Attorney General that
they have the legal right to withhold these documents from this
Committee?
Mr. Bradbury. I don't----
Mr. Nadler. Or that they don't have the legal right?
Mr. Bradbury. Mr. Chairman, the executive branch does have
the legal right to protect the confidentiality of deliberations
of the executive branch and sensitive documents----
Mr. Nadler. The executive branch, you're saying, has the
unlimited right, in its own discretion, to withhold any
document because of confidentiality?
Mr. Bradbury. I'm absolutely not saying that. The Congress
has a very strong constitutionally based interest in getting
information necessary for oversight----
Mr. Nadler. Thank you very much.
Mr. Bradbury. We recognize those interests.
Mr. Nadler. But you won't commit to giving us those
documents despite the fact that we have security clearance, so
your recognition is totally hollow.
Mr. Bradbury. I will commit to attempting fully to satisfy
the Committee's interest in these matters, to the fullest
extent possible, consistent with legitimate interests that the
executive branch has. And let me just underscore, we are----
Mr. Nadler. Okay. Let me just say, then, that within a few
days after this Committee, we'd like an explanation in writing.
Either--we'd either like to see those documents or an
explanation in writing in why we can't see them, and what the
legal basis of your right to withhold them is.
Mr. Bradbury. Okay.
Mr. Nadler. Thank you.
I now recognize the distinguished Ranking Minority Member
for 5 minutes.
Mr. Franks. Well, thank you, Mr. Chairman.
Let me just first offer a little illustration that I hope
gives some idea as to why some of us separate waterboarding
from torture, and why we do believe that circumstances in
certain situations do change whether or not something shocks
the conscience--and by way of just an illustration I hope that
is relevant to most people.
If a neighbor is invited over for dinner and insults the
hostess on the dessert, and the husband of the home takes a
baseball bat and beats his skull in for such an insult, I think
that the courts would look negatively upon that. However, if a
criminal breaks in at night and is attempting to rape his 4-
year-old daughter and he does the same thing, it changes the
way the courts look at the same situation.
So I want to put to rest the idea that there aren't effects
on the circumstances, given the nature of any act. That's very
fundamental and I'm astonished that we don't understand that.
Another thing I'm a little confused about, Mr. Chairman, in
all deference to the leadership of this Subcommittee and the
larger Committee, the Judiciary Committee itself, we've spent
time trying to deal with waterboarding issues, with issues
related to FISA, with issues related to habeas corpus and
Guantanamo. In all three of those areas we spent considerable
time, and those things asserted by the majority would have
great favorable effect on terrorists and very little effect on
protecting American citizens.
And I'm astonished that, given the fact that our first
purpose in the Federal Government is to protect our citizens,
that we spend so much time doing what we can to make sure that
we're protecting terrorists and not our own--not the citizens,
which is our primary cause.
With that said, I want to ask Mr. Bradbury a question.
Incidentally, sir, I think you've done a good job today.
General Hayden testified last week that in the past, the
U.S. military has used waterboarding against America's soldiers
during the SERE training program. SERE, that's Survival Escape
Resistance and Evasion is the acronym. If waterboarding really
is torture, then doesn't that mean that the U.S. military
routinely tortures soldiers during their training? Would that
be lawful? Do you think that those who support a criminal
investigation of CIA officers for their interrogation of
terrorists also would support an investigation of the military
officers who waterboarded our soldiers during training
exercises?
Mr. Bradbury. Well, Mr. Franks, as General Hayden did say,
the CIA's use of the waterboarding procedure was adapted from
the SERE training program used by the Navy and other
departments of the military, in which many, many members of the
military have been trained using that procedure.
And I agree with Chairman Nadler that, as distinct from the
cruel, inhuman or degrading treatment shocks the conscience
standard under the Detainee Treatment Act, the torture statute
is an absolute standard statute. It is a bright line rule and
whenever its done in color of law, that's when it's done for
Government purposes on behalf of the Government. If it is
torture when done for one purpose. The same act would be
torture when done for another purpose. So I believe it would be
correct that those training personnel engaged in the use of
that procedure, which I think was used until very recently,
would be guilty of torture.
Mr. Franks. Well, again, I would just assert that I too
truly believe that torture in our statute and in the practice
of this country is illegal and should remain illegal.
I've heard a lot of reports in the press that waterboarding
was developed in the Spanish Inquisition and that the United
States repeatedly prosecuted it. Is that true? Do you believe
that these past historical practices bear any resemblance to
the waterboarding as done by the CIA?
Mr. Bradbury. To my knowledge, they bear no resemblance to
what the CIA did in 2002 and 2003. The only thing in common is,
I think, the use of water. The historical examples that have
been referenced in public debate have all involved a course of
conduct that everyone would agree constituted egregious cases
of torture.
And with respect to the particular use of water in those
cases, as I've indicated, in most of those cases they involved
the forced consumption of large amounts of water, to such
extent that--beyond the capacity in many cases of the victim's
stomach, so that the stomach would be distended. And then in
many cases weight or pressure, including in the case of the
Japanese, people standing on or jumping on the stomach of the
victim, blood would come out of the mouth. And in the case of
the Spanish Inquisition, there truly would be agony and, in
many cases, death.
And so some of these historical examples I think have been
used in a way that's not, I think, an accurate portrayal of
what--of the careful procedures that the CIA was authorized to
use with strict time limits, safeguards, restrictions, and not
involving the same kind of water torture that was involved in
most of those cases.
Mr. Franks. Mr. Bradbury, my time is almost up, but
you've--is it your testimony that waterboarding is indeed not
torture and, if so, what briefly would you offer as the
difference?
Mr. Bradbury. Well, let me say--first of all, let me make
it very clear, as I tried to do in my testimony, there are a
lot of laws that apply here beyond the torture statute, and
waterboarding has not been used by the CIA since March of 2003.
There has been no determination by the Justice Department that
its use today would satisfy those recently enacted laws, in
particular the Military Commissions Act, which has defined new
war crimes for violations of Common Article 3, which would make
it much more difficult to conclude that the practices were
lawful today.
But under, strictly speaking, just under the anti-torture
statute, as we've said in our December 2004 opinion, there are
three basic concepts: severe physical pain, severe physical
suffering, and severe mental pain or suffering, which is
specifically defined in the statute.
And if something subject to strict safeguards, limitations
and conditions does not involve severe physical pain or severe
physical suffering--and severe physical suffering, we said in
our December 2004 opinion, has to take account both the
intensity of the discomfort or distress involved and the
duration. Something can be quite distressing or uncomfortable,
even frightening, but if it doesn't involve severe or physical
pain and it doesn't last very long, it may not constitute
severe physical suffering. That would be--that would be the
analysis.
Under the mental side, Congress was very careful in the
torture statute to have a very precise definition of severe
mental pain or suffering. It requires predicate conditions be
met. And then, moreover, as we said in our opinion in December
2004, reading many cases, court cases under the Torture Victims
Protect Act, it requires an intent to cause prolonged mental
harm. Now that's a mental disorder that is extended or
continuing over time. And if you've got a body of experience
with a particular procedure that's been carefully monitored
that indicates that you would not expect that there would be
prolonged mental harm from a procedure, you could conclude that
it is not torture under the precise terms of that statute.
Mr. Franks. Thank you.
Mr. Bradbury. The last thing on the torture statute I'd
like to say, though, Mr. Chairman, is that the Attorney General
has made it clear that if he's essentially taken--he's taking
ownership of this issue in the sense that if there were any
proposal to use this technique again, the question would have
to go to the Attorney General, and he would personally have to
determine that it satisfies all the legal standards, including
the torture statute. By the way, he is not simply going to rely
on past opinions that may have addressed it years ago; he would
make an independent and new judgment today as to whether he
agrees with that conclusion.
Mr. Franks. Mr. Chairman, thank you. I just wanted to ask
you to pass something to the Chairman. If indeed we've had
testimony in this Committee that waterboarding is being used to
train our soldiers, why aren't we investigating that? Why are
we more concerned about the terrorists than we are our own
soldiers?
Mr. Nadler. Well, first of all, it is not necessary. One of
the problems with waterboarding people that you may think are
terrorists may not be. There's the question--there is always
the question of----
Mr. Franks. Well, we know that is happening to our
soldiers; why are we not investigating that?
Mr. Nadler. It is training in case they're tortured. That's
what it is there for.
Mr. Franks. That's my point.
Mr. Nadler. In case they are tortured, because we assume
that enemy nations might torture people. We assume that we
won't torture people. We don't assume the enemy is going to
obey the law, so it may prudent to train our people for
torture.
In addition to which, I would point out that at least with
respect to the mental element, infliction of severe mental
distress, when they are tortured they know they are not going
to die. When someone is being drowned, the mental aspect is he
doesn't know you're going to stop. If someone is being trained,
he knows you're not going to actually drown him. May be severe
physical, but it is certainly not a severe mental aspect. When
we are torturing somebody else or someone else is torturing one
of our soldiers, they don't know that they are going to be
treated kindly.
Mr. Franks. But if it is indeed, Mr. Chairman--if it is
indeed torture shouldn't we be
Mr. Nadler. Well, is the gentleman asking me to investigate
the military?
Mr. Franks. I'm asking you to understand the points here.
Mr. Davis. Mr. Chairman, can I ask for regular order? Mr.
Franks has exceeded his time.
Mr. Franks. Thank you.
Mr. Nadler. Mr. Franks has exceeded his time.
I would also point out that one thing is very interesting
from Mr. Bradbury's testimony, which really puts a very
different light on a lot of things and makes it very necessary
to get those documents, is that essentially what he said is
that everything we have thought we knew about waterboarding
from past cases--what the Japanese did, the Inquisition did,
the newspapers have reported--that's not what we're talking
about. We are talking about something else which may be
different. If that's the case, we have to know about it.
I now recognize the gentleman from Alabama for 5 minutes.
Mr. Davis. Thank you, Mr. Chairman.
Mr. Bradbury, I have a number of questions I want to ask
you, but I want to pick up on your last line with the Ranking
Member. You reiterated to him, and I think you stated in your
testimony today, that you do not consider waterboarding to be
torture as the term is precisely defined.
Your boss, the Attorney General, was asked a series of
questions before the Senate Judiciary Committee and he stated
that he would consider waterboarding to be torture if it was
done to him. Is the Attorney General being hypersensitive?
Mr. Bradbury. Well, I think he was describing how he would
personally react to what I think everybody would recognize
would be a very distressing and frightening procedure.
Mr. Davis. Let me pick up on that observation that it is a
very distressing and frightening procedure. If individuals were
subject to distressing, frightening procedures, is it
conceivable that they might respond by lying?
Mr. Bradbury. Well, I'm not an expert on that.
Mr. Davis. Well, let me ask you just to rely on your common
sense. If someone--and I recognize we've quibbled today about
the definition of waterboarding, let's see if we can agree on
some common sense concepts.
Could waterboarding cause someone to feel distressed? If
you would give me a simple answer.
Mr. Bradbury. I think so, yes.
Mr. Davis. Could waterboarding cause someone to feel
extremely frightened?
Mr. Bradbury. I think so.
Mr. Davis. And if someone were feeling distressed or
extremely frightened, would that human being be capable of
telling a lie?
Mr. Bradbury. I suppose so.
Mr. Davis. John McCain, who is an authentic American hero
and is about to become a nominee of the party that I suspect
you belong to, was subject to torture in Vietnam, was he not?
Mr. Bradbury. Yes, sir.
Mr. Davis. And in response to that torture, he signed a
confession of being a war criminal. That was a false confession
on his part, wasn't it?
Mr. Bradbury. Yes, sir.
Mr. Davis. It was an inaccurate, untruthful statement, was
it not?
Mr. Bradbury. Yes, it was.
Mr. Davis. And it was in response to the extreme distress
and anxiety that he was experiencing, was it not?
Mr. Bradbury. I believe he had bones broken and he----
Mr. Davis. If you could answer my question.
Mr. Bradbury. Yes. Yes, it was.
Mr. Davis. That's the concern, Mr. Bradbury, that I think a
number of us have.
I strongly disagree with the Ranking Member, a very able
Member of this Committee, but I strongly disagree with his
characterization that those of us who take issue with his
position and yours are somehow trying to pass laws that favor
terrorists. Some of us are concerned about the inherent
unreliability of some of these practices.
You were absolutely correct when you say that someone who
is experiencing waterboarding can feel or experience anxiety,
distress, and you're absolutely correct to say that people in
those conditions can lie. And if people can lie, they are not
giving us the inherent information we need. Now let's test that
for a moment.
Page 3 of your written statement, you state that these
alternative interrogation methods have been used with fewer
than one-third of the terrorists who have been detained in this
program. Approximately how many people is that, Mr. Bradbury,
about 30 or so?
Mr. Bradbury. I don't think the exact number has been
publicly----
Mr. Davis. Just give me a ball park, if you would. This was
your word choice.
Mr. Bradbury. I actually am not authorized to be more
precise.
Mr. Davis. Well, but this is your word choice. They have
been used with fewer than one-third of the terrorists who have
been detained. Approximately how many have been detained?
Mr. Bradbury. Fewer than 100.
Mr. Davis. All right. Fewer than 100, a third of those.
Have any of those individuals, to your knowledge, lied in
response to the interrogation techniques?
Mr. Bradbury. I don't know.
Mr. Davis. Is it conceivable that some of them might have
lied?
Mr. Bradbury. I don't know.
Mr. Davis. My point again. Mr. Bradbury, you're right, you
don't know, you can't know.
How many prosecutions have been brought based on what those
30 or so individuals have said?
Mr. Bradbury. Mr. Davis----
Mr. Davis. That's a simple question. How many prosecutions
have been brought? Have there been any?
Mr. Bradbury. No.
Mr. Davis. No prosecutions have been brought. You don't
know if any of them have given untrue or false information. You
know, I am an SCC guy, so I like football. That sounds to me
like a completion rate that could be pretty low for all we
know.
Mr. Bradbury. May I--may I respond?
Mr. Davis. Yes.
Mr. Bradbury. The purpose of this program is not to obtain
evidence to use in criminal prosecutions. The purpose of the
program is to obtain intelligence that may be used to----
Mr. Davis. No, Mr. Bradbury. We have to test whether or not
you are doing that. We have to test--if I could finish my
sentence, sir, we have to test whether or not the program is
reliable. I assume you don't mean to fashion a program that's
unreliable.
Mr. Bradbury. I----
Mr. Davis. I assume you don't mean to fashion a program
that doesn't yield results.
Mr. Bradbury. I don't fashion the program. We don't
fashion----
Mr. Davis. You don't mean to condone or sanction a program
that doesn't yield results, do you?
Mr. Bradbury. I just give my legal opinion----
Mr. Davis. Let me make my point, Mr. Bradbury, since you're
not addressing my point. It is a very simple one. We can't
measure the accuracy of this program by saying we've gone out
and brought hard-and-fast cases based on it. You cannot tell me
whether any of these individuals, or all of these individuals,
have lied. You've conceded to me that someone facing extreme
anxiety and pressure could yield false information.
I add all of that up and come to one simple conclusion: We
can't tell if this program is working. You won't give us the
information to let us know that. And for some of us, that's not
enough for this program to pass muster. And we take that
position--not in the name of protecting terrorists, with all
due respect to Mr. Franks--we take that position because we
want to get the real terrorists, and we don't know if you were
succeeding in doing that or if you were unearthing a bunch of
lies.
And I yield back the balance of my time.
Mr. Bradbury. If I might, I rely--I can only rely on what
General Hayden has said. General Hayden has said that this
program has produced thousands and thousands of intelligence
reports that have been extremely valuable in heading----
Mr. Davis. That's an inherently subjective conclusion, Mr.
Bradbury, that cannot be quantified in any way. It in no way
resolves the concerns.
Mr. Bradbury. I believe he thinks it can be quantified and
has been.
Mr. Davis. Will he share that information with this
Committee?
Mr. Bradbury. I know he has shared it with the House
Intelligence Committee.
Mr. Davis. Well, Mr. Chairman, I would end by requesting
that if the individual you mentioned, General Hayden, the
Intelligence Director, has quantifiable information about the
accuracy of this program, we would ask that be disclosed and
shared with this Committee.
Mr. Nadler. The time of the gentleman is expired but I
would second that as Chair of this Subcommittee. This is
squarely within the jurisdiction of the Judiciary Committee as
well, and we would ask this be shared with us.
I now recognize the distinguished gentleman from Iowa, Mr.
King, for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
I point out that in the introduction of our witness Mr.
Bradbury, it was addressed that he is waiting confirmation by
the United States Senate. I believe there are dozens, in fact
perhaps hundreds, of the President's appointees awaiting
confirmation, and yet the unconfirmed representative of our
Federal Government is being pushed to divulge what we know are
State secrets here in a public meeting. And I don't take issue
with the security clearance.
Mr. Nadler. We have asked that he provide this stuff that's
confidential, in confidentiality to this Committee, all of
whose Members are cleared to Top Secret information we have not
asked.
Mr. King. Reclaiming my time.
Mr. Nadler. I will give you the time back in a second. And
we will take that off the time you are here.
I want to correct the record. Nobody has asked, nobody in
this Committee has asked that secret information be disclosed
publicly.
Mr. King. Our definition--thank you, Mr. Chairman, I
recognize your point. I think we disagree on what secret
information is, and some of that--the State secret has been a
subject of debate before this Committee. That would be one. And
how many have been interrogated under this fashion? The
question that was just asked and the answer Mr. Bradbury gave
reluctantly was less than 100.
But I think also some statements that have been made here
need to be clarified. One is the statement that we know what
waterboarding is. I don't think there is a consensus on this
Committee as to what waterboarding is. I think we understand
from the testimony what some of the historical examples of or
ancient versions of waterboarding are. But I go back to a
statement made earlier by the Chairman, that as your lungs fill
with water--and I would ask Mr. Bradbury, are you knowledgeable
about any activity that would include a modern version of
waterboarding in which the subject's lungs would fill with
water, literally?
Mr. Bradbury. No I'm not.
Mr. King. And I am not either. So I just point that out to
illustrate that we don't have a consensus on what we see as
waterboarding. You did illustrate how it was used by the
Japanese in World War II.
I want to go back to--I want to stress--I want to make
another point, is that while we are here having this hearing,
talking about State secrets and the risk of divulging
information to the terrorists who are pledged to kill us, we
have a debate going on on the floor of the House of
Representatives right now; at least it is a tactical
negotiation going on right now on the eve of the expiration of
our FISA law.
And I want to point out to this Committee that the national
security secrets that are subject here and the national
security secrets that are the subject of the FISA debate put
Americans at risk. And the sunset of the FISA law is an
important piece of this that ties this all together, and
politics are getting in the way of the policy.
But I'm interested in one piece of the subject, and you
went into the details of it to some degree. If your lungs don't
fill with water and the fear definition that you gave, how does
one define how this is torture under that definition if there
isn't a physical pain that's involved and if the lungs aren't
filling with water?
Could you go back to that fear factor, the mental pain
factor, and the fear definition that you gave Mr. Bradbury?
Mr. Bradbury. Yes, Mr. King, briefly. There is a specific
definition in the anti-torture statute of severe mental pain or
suffering, and it requires certain conditions, certain
prerequisites or factors be present, and that those factors
cause prolonged mental harm.
And one of the factors, the one that raises most questions
with respect to this particular procedure, is the question of
whether it involves a threat of imminent death. And what's
pointed to there is the physiological sensation that's created,
physiological or mental sensation, almost like a gag urge of
drowning.
The question is whether that's a threat of imminent death.
And as I would understand it, as I think the Chairman may have
suggested, it's a reaction that even if you're involved in
training, as I understand it, the subject would have. So
whether or not you know that it's not really involving
drowning, you have this physiological reaction, and that's the
acute nature of it.
And if that is a threat of imminent death, then you need to
ask: Is it the kind that would be expected to cause prolonged
mental harm; that is an ongoing, persistent mental disorder as
a result of that? That's what the cases have focused on with
respect to the Torture Victims Protection Act and that would
be--the analysis would turn on that.
Mr. King. Thank you, just a short----
Mr. Bradbury. I'm sorry, may I point out, though, I don't
want the Committee to lose sight. There are new statutes on the
books, and one of them is a new statute, the cruel and inhuman
treatment war crime, added by the Military Commissions Act in
fall 2006. That's a crime that took this definition from the
torture statute and changed it.
Mr. Nadler. It----
Mr. Bradbury. And it eliminated the prolonged mental harm
requirement and made it serious, but nontransitory, mental harm
which need not be prolonged. That's a new statute. It became
effective in the fall of 2006. The Department has not analyzed
this procedure under that statute. And as I think you can tell
from the change in the language, that statute would present a
more difficult question, significantly more difficult question
with respect to this.
Mr. King. That language sounds vague.
Are you aware of any version of waterboarding that's
currently practiced where there has been a result of death?
Mr. Bradbury. I am not.
Mr. King. That's my point. Thank you, Mr. Chairman. I yield
back.
Mr. Nadler. I thank the gentleman. The gentleman's time has
expired. I now recognize for 5 minutes the gentleman from
Minnesota.
Mr. Ellison. General Mukasey testified in a Senate
Judiciary Committee that he would not order an investigation of
waterboarding depicted on the destroyed tapes, because the OLC
had issued opinions regarding torture that were presumably
relied upon by those administering the technique.
He gave two reasons. It would not be appropriate for the
Justice Department to be investigating itself was one reason.
The other reason is it would not be fair to prosecute persons
who relied on OLC opinions.
As to the first reason, this is precisely the conflict
situation for which the special counsel regulations of the
Department call for pointing to someone outside of the
Department to conduct important investigations.
But I want to focus on the second reason, which has certain
implications I would like you to focus on. At a minimum, we
need to investigate whether their actions exceeded the legal
advice that OLC gave them, or whether they would have known on
their own that waterboarding could not be legal.
But there is much more basic concern. If an OLC opinion,
once written, had relied upon and relied upon, will prevent an
investigation of executive branch felony or constitutional
violations, we face a very dangerous situation. The President
or other officials can violate the rights of millions of
Americans and simply show that they ``relied on an OLC
opinion,'' no matter how far out and baseless the opinion is.
And if the victims try to bring a lawsuit, you will use the
State secrets option to have the case thrown out of court
before it even starts, so perpetuators will not even be
investigated.
Isn't that a recipe for unchecked executive power?
Mr. Bradbury. Well, Congressman, no. I don't--I don't
believe it is. And it may not be accepted at this point by this
Committee, but I believe that the opinions we are talking about
are reasonable and were appropriately relied on by the agency.
I understand this Committee is not in a position now----
Mr. Ellison. Excuse me. Mr. Bradbury, excuse me, I have got
to reclaim my time. How do you know that they were relied upon
as you set forth those opinions?
Mr. Bradbury. That's my understanding.
Mr. Ellison. What is your understanding based on?
Mr. Bradbury. Based on my interactions.
Mr. Ellison. Is it based on you attending the application
of these techniques of these enhanced interrogation techniques?
Mr. Bradbury. No, sir.
Mr. Ellison. Were you ever present for an incident of
waterboarding?
Mr. Bradbury. No.
Mr. Ellison. Now, you said earlier that----
Mr. Bradbury. I'm sorry, may I respond?
Mr. Ellison. No, I reclaim my time, sir. I'm sorry.
Now, you indicated earlier that the waterboarding that
we've been talking about, applied by people who you give legal
advice to, is nothing like what happened to American soldiers
at the hands of the Japanese or in the Spanish Inquisition.
You've made that point clear.
Can you tell us exactly what it is like? Can you describe
exactly what--how this technique is applied, based upon the
advice that you have given?
Mr. Bradbury. No, Mr. Ellison, I'm really not----
Mr. Ellison. Have you seen video tape?
Mr. Bradbury. That--no, I've not.
Mr. Ellison. And so you haven't been there and you haven't
seen videotape. So how in the world do you know that the advice
you've been giving has been properly relied on? Somebody told
you?
Mr. Bradbury. I have reason to believe.
Mr. Ellison. Which is what?
Mr. Bradbury. In my interactions with the people that we
work with.
Mr. Ellison. Okay, your interactions. Are you talking about
statements that were made to you, and that's what you're
relying on?
Mr. Bradbury. Talking about statements between clients and
lawyers.
Mr. Ellison. I know. I'm not asking you about what your
client said or what you said back. I'm saying how do you know
that the advice that you were given was properly relied on, how
do you know that? How do you know that the limits were not
exceeded?
Mr. Bradbury. I believe that----
Mr. Ellison. Because somebody told you, right?
Mr. Bradbury. I believe that that's----
Mr. Ellison. Because somebody said so, right?
Mr. Bradbury. I don't have--I believe that that is the
case.
Mr. Ellison. Okay, so----
Mr. Bradbury. May I make----
Mr. Ellison. No, no, you can't, because I only have 5
minutes. If I had more time you could talk all you want.
Mr. Bradbury. I would like to respond to----
Mr. Ellison. No, I am going to ask you to answer my
questions. That's the way this hearing goes.
So let me ask you this. I think the point was made before
that it's somehow torture for the American military to use
waterboarding as a training exercise, you agreed that it would
in fact be torture if it were done and a violation of law.
That's what you said, right?
Mr. Bradbury. If something is torture for one purpose but
it's done by the Government for another purpose, the same
procedure would be torture in the other context.
Mr. Ellison. Sure. So when a police officer goes and sells
drugs as an undercover agent, do you think they should be
prosecuted for controlled substance violations? I would guess
you would say no to that, right?
Mr. Bradbury. May I?
Mr. Ellison. No. I mean, sting operations, if somebody--if
a police officer is told there's a child pornographer----
Mr. Bradbury. Mr. Chairman, may I respond?
Mr. Ellison. Respond to the question. You have to be
responsive.
Mr. Bradbury. May I? May I respond?
Mr. Ellison. If you're responsive.
Mr. Bradbury. There are lines of cases addressing exactly
that circumstance that say generally worded statutes that
simply say any person are not reasonably read to cover the
police officer in circumstances that you've suggested, because
it would be an absurd result and it would not allow the
Government to undertake an essential function. In this case
we're dealing with a statute that says under Color of Law it is
specifically addressed to Government activity. So that line of
cases would not apply to this statute.
Mr. Ellison. Right. And I'm sure you'll provide the
citations for the cases.
Mr. Bradbury. If you would like.
Mr. Ellison. I would like.
Mr. Bradbury. I'm happy to.
Mr. Ellison. You mean at some later point?
Mr. Bradbury. Well, I don't have the names of the cases on
me.
Mr. Ellison. So for example, you're saying there's a case,
so trust me?
Mr. Bradbury. Sure, there are Third Circuit cases and
Second Circuit cases.
Mr. Ellison. But you don't know the cases and so you can
get them to me later.
Mr. Bradbury. I'm happy to do that.
[The information referred to is available on page 46.]
Mr. Ellison. As a person who has practiced law for 16
years, if I told a judge, hey, there's a case, Judge, it
wouldn't pass muster. Not that I'm a judge here, but you're
citing caselaw, so I expect you to at least know the name of
the case.
Mr. Bradbury. I'm not making a legal argument.
Mr. Ellison. All right. Now, let me just ask you this
question. Are we done? Okay, I'm done.
Mr. Nadler. The time of the gentleman has expired. The
gentleman from Virginia is recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman. Mr. Bradbury, in your
statement you said that the CIA program is very narrow in scope
and is reserved for a small number of most hardened terrorists
believed to possess uniquely valuable intelligence,
intelligence that could directly save lives. Later on you say
fewer than 100 terrorists have been detained by the CIA as part
of this program. It's been one of the most valuable sources of
intelligence.
If you're using what everybody else in the world would
consider torture, is it okay if you're not doing it to too many
people and you're getting good information?
Mr. Bradbury. No. If it's torture it's not okay. We
recognize, and this is what we said in our December 2004
opinion, torture is abhorrent. And I think the President has
made it clear that it's not condoned or tolerated.
Mr. Scott. That's 2004. What about 2005?
Mr. Bradbury. I'm sorry, in 2005?
Mr. Scott. The 2005 memo.
Mr. Bradbury. Our memos have consistently applied the
principles from the December 2004 opinion.
Mr. Scott. And so if it's--is there any international
precedence outside of this Administration that suggests that
waterboarding is not torture? Anybody else in the world ever
consider waterboarding not torture except this Administration?
Mr. Bradbury. I am not aware of precedents that address the
precise procedures used by the CIA. I'm simply not aware of
precedents on point. And that's often what makes, frankly what
makes our job difficult. And I recognize that----
Mr. Scott. Well, you had the stuff on tape. You've heard
the, I'm sure you've heard the joke about the guy who was
testifying in his murder trial and the prosecutor asking him to
tell the truth and the guy said yes and the prosecutor said, do
you know the penalty for perjury, and the defendant said yes,
it's a whole lot less than the penalty for murder.
Now, my question is, is the penalty for destroying the CIA
tapes less or more than the penalty that could have been
imposed had the contents of the tape been seen?
Mr. Bradbury. I don't know the answer. I'm not in a
position to answer that. Of course that matter is being handled
by John Durham, the acting U.S. attorney in the Eastern
District of Virginia.
Mr. Scott. Was your office involved in the discussion as to
whether or not the CIA tapes should have been destroyed?
Mr. Bradbury. I was not, and to my knowledge I don't know
of anybody who was.
Mr. Scott. You do not know----
Mr. Bradbury. I don't know of anybody in our office who
was.
Mr. Scott. Well, who was involved in the discussion?
Mr. Bradbury. I don't know. I don't have personal knowledge
of that.
Mr. Scott. Well, give us some leads. Who do you think was
involved?
Mr. Bradbury. I'm not in a position, Mr. Scott, to do that.
I only know what I've read in the paper about the----
Mr. Scott. And so if we're trying to find out who was
involved in the discussion of the destruction of the CIA tapes,
who should we look to?
Mr. Bradbury. I would look to the outcome of Mr. Durham's
investigation.
Mr. Scott. Well, I mean, help us out a little bit. You're
right here. Who would be involved in that discussion, in your
opinion?
Mr. Bradbury. Well, I believe communications between the
Department and--I know Chairman Reyes on the Intel Committee
had been handled by the deputy, the acting deputy attorney
general, and so I would refer you to his office.
Mr. Scott. Okay. You've indicated that you want to be
clear. Let me be clear, though. There has been no determination
by the Justice Department. The use of waterboarding under any
circumstances would be lawful under current law.
Mr. Bradbury. That's correct.
Mr. Scott. Has there been any determination that it is
unlawful under current law?
Mr. Bradbury. No, sir, because the Department, as I've
tried to indicate, has not had occasion to address the question
since the enactment of these new laws.
Mr. Scott. And we don't have the CIA tapes to know what
we're talking about, so everything is kind of vague. In the
2007 Executive order in your statement says, the Executive
order makes clear to the world that the CIA program must and
will be operated in complete conformity with all applicable
statutory standards, including Federal prohibition against
torture, the prohibition on cruel inhumane or degrading
treatment contained in the Detainee Treatment Act and the
prohibitions on grave breaches of Common Article 3 in the
Geneva Conventions as defined in the amended War Crimes Act.
Did that part of the Executive order change anything?
Mr. Bradbury. Yes, in the sense that that Executive order--
that part of the Executive order simply affirms that those
statutes must be complied with.
Mr. Scott. Did that part of the----
Mr. Bradbury. That doesn't--I'm sorry?
Mr. Scott. Did that part of the Executive order change
anything?
Mr. Bradbury. No, not in the sense that those statutes on
their own terms do apply. In other words, recognize that those
statutes must be satisfied. But I think the one thing the
Executive order does do is----
Mr. Scott. I'm just talking about that part of the
Executive order that says you're going to comply with the law.
Mr. Bradbury. We have to comply with the law. The program
has to comply with the law.
Mr. Scott. So those words didn't add anything. Could we be
concerned about the word ``grave,'' prohibitions on grave
breaches of Common Article 3?
Mr. Bradbury. That's the term, Congressman, that's used in
the Military Commissions Act, which define those new War Crimes
Act offenses. That's the term that is used in the statute.
That's all that is referring to. Those are those serious
violations of Common Article 3 that merit criminal penalties.
Mr. Scott. So breaches of Common Article 3 that are not
grave are not illegal under the War Crimes Act; they're
improper apparently, but not illegal under the War Crimes Act?
Mr. Bradbury. That's correct. They would be a violation of
our treaty obligations. And other aspects of the President's
Executive order address those other aspects of Common Article
3. The purpose of the Executive order is to define requirements
to ensure compliance with our treaty obligations under Common
Article 3.
Mr. Scott. My time has just about expired, Mr. Chairman. I
yield back.
Mr. Nadler. I thank the gentleman. I now recognize the
gentleman from North Carolina for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman. Mr. Bradbury, on page 2
of your written testimony you say that fewer than 100
terrorists have been detained by the CIA as part of the program
since its inception in 2002. Those are the people who were at
Guantanamo?
Mr. Bradbury. I believe the 14, maybe 15 high value
detainees at Guantanamo who were transferred there from CIA
custody are among those who have ever been detained by the CIA.
But the CIA has held others. So that's not the sum total of the
terrorists who have ever been detained in this program by the
CIA. Those were the ones who were--I believe, as the President
said in September of 2006, when the 14 HVDs were moved to Gitmo
at that time, that that emptied the overseas facilities of the
CIA. At that time there were no----
Mr. Watt. What's the totality of the number of people that
was held at Guantanamo?
Mr. Bradbury. Over time or today?
Mr. Watt. Over time and today.
Mr. Bradbury. I believe over time it may have--I may not
have the accurate number. It may be somewhere around 700, 750.
And today I believe it's about 350.
Mr. Watt. And if I were trying to determine the disposition
of one or more of those 350 people who are still there--well,
first of all, what is the maximum duration that they have been
held there?
Mr. Bradbury. I believe the first detainees came into Gitmo
around January or February of 2002, I believe.
Mr. Watt. So we've got some people there who have been
there since 2002?
Mr. Bradbury. I believe so.
Mr. Watt. And they're still there. And have they been
formally charged with anything?
Mr. Bradbury. Some of them have been. A small number have
been formally charged. That number is growing as we move
forward with military commission procedures. All of them have
had the combatant status review tribunal determinations that
they are enemy combatants. They go through that process, which
is then subject to appeal to the D.C. Circuit under the
Detainee Treatment Act.
Mr. Watt. And if I were trying to find out the status of
one or more of those 350 people, who would I be contacting?
Mr. Bradbury. I would suggest that you contact Gordon
England, the Deputy Secretary of Defense, directly.
Mr. Watt. And would he be in a position to determine who's
there and what their disposition is; is that the information
that would be made available to a Member of Congress?
Mr. Bradbury. I don't know for sure, but I believe yes,
sir. I believe he'll be able to provide that information.
Mr. Watt. Okay. And he's at the Department of Defense?
Mr. Bradbury. He's the Deputy Secretary of Defense, Mr.
England.
Mr. Watt. Okay. The whole legal regimen you say has changed
now; new statutes. I'm wondering whether the President still
has, in your opinion, the authority to under Article 2 to
disregard the new legal framework, regardless of what--let's
suppose you all issued an opinion that said under the new
framework waterboarding was illegal.
Mr. Bradbury. Correct.
Mr. Watt. Could the President disregard that under Article
2?
Mr. Bradbury. I don't believe the President would ever----
Mr. Watt. I didn't ask you whether he would do it. I said
could he do it?
Mr. Bradbury. May I make a couple of points?
Mr. Watt. If you will answer my question first, you could
make as many points as you would like. I would like to know
first whether in your legal opinion the President has the
authority under Article 2 to disregard an opinion that your
office has issued?
Mr. Bradbury. I don't believe he would disregard----
Mr. Watt. I didn't ask you that, Mr. Bradbury. I asked you
whether he would have the authority to do it. I didn't ask you
whether he would do it or not.
Mr. Bradbury. Well, he----
Mr. Watt. I give my President the same presumptions that
you do, that he would not.
Mr. Bradbury. He would not.
Mr. Watt. But would he have the authority to do it under
Article 2? That's the question I'm trying to----
Mr. Bradbury. Could I get to that in a second?
Mr. Watt. What about answering that first and then getting
to the explanation?
Mr. Bradbury. This Congress has constitutional authority to
enact these provisions, these War Crimes Act offenses. And so I
believe they're constitutional. The Congress has authority to
define offenses against the law of nations. It's constitutional
authority that Congress has. There's no question about the
constitutionality of the statutes. Moreover, traditionally and
by statute the Attorney General is the chief law enforcement
officer for the United States who gives opinions for the
executive branch on what the law requires. And in all cases the
President will look to those opinions; will not disregard them.
Now, in theory, Congressman, the President stands at the
top of the executive branch. So in theory all of the authority
of executive branch officers, including the Attorney General,
is subject to the ultimate authority of the President. That
said, it's not--it is quite hypothetical, and I believe
unsustainable, for the President to disregard an opinion of the
Attorney General, particularly a considered formal opinion of
the Attorney General.
Mr. Watt. My question you still haven't answered even after
all of that. Does the President have the authority to disregard
the opinion under Article 2?
Mr. Bradbury. Well, the President is sworn to----
Mr. Watt. I understand----
Mr. Nadler. The time of the gentleman has expired. I
believe, Mr. Bradbury, your answer is yes, he has that
authority?
Mr. Bradbury. Well, Mr. Chairman, you are putting words in
my mouth.
Mr. Nadler. Yes, I am. I think you've said he has that
authority, but it would be very rare for him to exercise it.
Mr. Watt. Well, the question is does he have the authority,
and if he does--I mean, I would love to have gotten, if you
hadn't ropey doped my whole 5 minutes here, to the next
question, which is are there any limits to that authority?
Mr. Bradbury. Yes, there are.
Mr. Nadler. Answer that question briefly.
Mr. Bradbury. General Hayden has very clearly said, and
this is a practical limit that matters under our system of
Government, he will not order his people and his people will
not do anything that the Attorney General has determined is
inconsistent with a statute that applies.
Mr. Watt. So if the President of the United States issues
the order to General Hayden, he's not going to--he's going to
listen to the Attorney General rather than to the President of
the United States, that's what you're saying?
Mr. Bradbury. That's what General Hayden has said.
Mr. Nadler. The time of the gentleman has expired. All time
has expired.
Mr. Bradbury, our Members may have additional questions
after this hearing. We've had some difficulty getting responses
to our questions from the Justice Department and timely
responses when we get them at all. Will you commit to providing
a written response to our written questions within 30 days of
receipt of the questions?
Mr. Bradbury. Yes. I will do it as soon as possible and I
will make every effort to do it within 30 days.
Mr. Nadler. Thank you. Without objection, all Members will
have 5 legislative days to submit to the Chair additional
written questions for the witness, which we will forward and
ask the witness to respond as promptly as you can so that your
answer 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.
I will note for the edification of the Members there are 7
minutes left on the vote on the motion to adjourn on the floor.
With that, this hearing is adjourned.
[Whereupon, at 1:25 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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