[Congressional Record: May 11, 2009 (Senate)]
[Page S5305-S5307]                      


  Mr. ALEXANDER. Mr. President, even though President Obama has said we 
should look forward, some in Congress insist on looking backward to a 
broader investigation of interrogation tactics that were used against 
9/11 terrorists to find out whether even more airplanes were on their 
way to kill even more Americans.
  These interrogation tactics are now well known. They had been 
approved by the National Security Council, approved by the Department 
of Justice, were known to senior Democratic and Republican Members of 
Congress who, CIA records now show, were briefed some 40 times. The CIA 
has not used the tactics in question for several years. They are not 
being used today. The Congress has since enacted laws that make clear 
that interrogation tactics used by the military are limited to those 
contained in the Army Field Manual. The President extended those same 
limitations to intelligence agencies this year by Executive order.
  The President is following his own advice about looking forward by 
asking the National Security Council to review what tactics would be 
appropriate when terrorists are captured who might have information 
about imminent attacks on Americans. The Senate Intelligence Committee 
is conducting its own review of tactics and is considering expanding 
the briefing process for interrogation tactics.
  Despite these investigations, some still say, let's have ``a full-
blown criminal'' investigation.
  That raises these questions: Investigation of whom? Where do we draw 
the line? Where is the logical place to stop?
  On Thursday, I asked these questions of the Attorney General, Eric 
Holder, at a Senate Appropriations Committee hearing. He found it 
difficult to give me specific answers.
  To begin with, the Attorney General did not answer my question about 
what directions he had received from the White House concerning 
  Then, he would only answer ``hypothetically'' when I asked if we are 
going to investigate lawyers for giving their opinions, shouldn't we 
also investigate intelligence agents who created the interrogation 
techniques and asked for the opinions, or officials who approved the 
techniques, or Members of Congress who knew about or approved or even 
encouraged the interrogation tactics?
  The Attorney General could not remember whether he knew or approved 
of renditions that occurred during the Clinton administration when he 
was Deputy Attorney General--renditions that took captured terrorists 
to other countries, for example, perhaps to Egypt, for custody, maybe 
for interrogation. He did not say what precautions he took to make sure 
these renditions followed the law.
  The Attorney General's unresponsive answers and poor memory suggest 
what a difficult path it will be if the Government continues to 
publicize and expand its investigation of interrogation tactics.
  This is not a pleasant subject. When we debated it in the Senate in 
2005, I was among those Senators, including Senator McCain, who 
disagreed with the administration. We believed it was Congress's 
constitutional responsibility to set the rules for dealing with 
detainees and we helped enact a law requiring that techniques used by 
the military should be limited to those in the Army Field Manual. But 
showing videotapes of even those techniques will not be a pretty sight.
  Public officials, of course, should follow the law. But it is not 
necessary to have a circus to determine whether the law was followed.
  If there is to be a broader investigation than currently is underway, 
it must be fair and evenhanded and lead wherever it may lead--perhaps 
to intelligence officers, perhaps to administration officials, perhaps 
to Members of Congress. The Attorney General himself needs to be 
willing to say what he knew and when he knew it and what he did about 
renditions during the Clinton administration when he was Deputy 
Attorney General.
  Obsessively looking in the rear view mirror could consume our 
Nation's every waking moment. There is plenty about America's history 
that, in retrospect, we wish had not happened: Supreme Court decisions 
barring Blacks from public facilities, Congress filibustering anti-
lynching laws, excluding Jews from major institutions, denying women 
the right to vote, incarcerating Japanese Americans during World War 
  We have dealt with those instances best by acknowledging and 
correcting them, not wallowing in them by recognizing that the United 
States has always been a work in progress toward great goals, rarely 
achieving them, often falling back, but always trying. In fact, the 
late political scientist Samuel Huntington has written that most of our 
political debates are about dealing with the disappointment of not 
meeting great goals we have set for ourselves.
  Then there is the thoroughly practical question of who will want to 
serve in public life in Washington, DC, if the first thing a newly 
elected administration does is to try to discredit, disbar, or indict 
all those with whom it disagrees in the last administration. Some of 
that damage already has been done.
  For all these reasons, I would hope the President will follow his 
first instinct and insist that we go forward as a country--focus on the 
economy, on the banks and the auto companies, on health care and 
energy, on a Supreme Court Justice, and two wars in which our men and 
women are serving.
  Mr. President, I ask unanimous consent to have printed in the Record 
the questions I asked Attorney General Holder on Thursday, along with 
his answers.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


 Hearing of the Appropriations Subcommittee on Commerce, Justice, and 
                    Science Transcript, May 7, 2009

       Senator Alexander: I have a few questions about the 
     interrogation of enemy combatants. I thought President 
     Obama's first instinct was a good one when he said that we 
     should look forward, but apparently not everyone agrees with 
     that. I notice that a member of the House of Representatives 
     yesterday said that she wanted a full, top-to-bottom, 
     criminal investigation. These are my questions: 1) What 
     directions or guidance have you received from the President 
     or his representatives or anyone in the White House 
     concerning the interrogation of enemy combatants?
       Attorney General Holder: Well, as we have indicated, for 
     those people who were involved in the interrogation and 
     relied upon, in good faith and adhered to the memoranda 
     created by the Justice Department's Office of Legal Counsel, 
     it is our intention not to prosecute and not to investigate 
     those people. I have also indicated that we will follow the 
     law and the facts and let that take us wherever it may. A 
     good prosecutor can only say that. So, I think those are the 
     general ways in which we view this issue.
       Senator Alexander: My second question would be: Should you 
     follow these facts

[[Page S5306]]

     and continue in an investigation if you're investigating 
     lawyers at the Department of Justice who wrote legal opinions 
     authorizing certain interrogations, wouldn't it also be 
     appropriate to investigate the CIA employees or contractors 
     or other people from intelligence agencies who asked or 
     created the interrogation techniques or officials in the Bush 
     Administration who approved them or what about members of 
     Congress who were informed of them or knew about them or 
     approved them or encouraged them? Wouldn't they also be 
     appropriate parts of such an investigation?
       Attorney General Holder: Well, there is, as has been 
     publicly reported, an OPR inquiry into the work of the 
     attorneys who prepared those OLC memoranda. It is not in 
     final form yet and I have not reviewed that report. I will 
     look at that report and make a determination as to what we 
     want to do with it. It deals, I suspect, not only with the 
     attorneys, but people that they interacted with, so I think 
     we will gain some insights by reviewing that report. Our 
     desire is not to do anything that would be perceived as 
     political or partisan. We do want to report, to the extent 
     that we can do that, but as I said, my responsibility is to 
     enforce the laws of this nation and to the extent that we see 
     violations of those laws, we will take the appropriate 
       Senator Alexander: If you're going to investigate the 
     lawyers whose opinion was asked about whether this is legal 
     or not, I would assume you could also go to the people who 
     created the techniques, the officials who approved them, and 
     the members of Congress who knew about them and may have 
     encouraged them.
       Attorney General Holder: Hypothetically that might be true, 
     I don't know. What I want to do is look at, in a very 
     concrete way, what that OPR report says and get a better 
     sense from that report about what it says about the 
     interaction of those lawyers with people in the 
     administration and see from there whether further action is 
       Senator Alexander: My last question is, once we begin this 
     process, where is the line drawn? According to former 
     intelligence officials, renditions, and by renditions we mean 
     moving captured people from our country to another country 
     where they might be interrogated or even worse. Those 
     renditions were used by the Clinton Administration beginning 
     in the mid-1990s to investigate and disrupt al-Qaeda. That's 
     the testimony before Congress by Michael Shoyer. He said they 
     began in the late summer of 1995, ``I authored it, I ran it, 
     I managed it against al-Qaeda leaders.'' The Washington Post 
     says the former director of the Central Intelligence Agency, 
     George Tenet, said there were about seventy renditions 
     carried about before Sept. 11, 2001; most of them during the 
     Clinton years. Mr. Attorney General, you were the Deputy 
     Attorney General from 1997-2001. Did you know about these 
     renditions? Did you or anyone else at the Department of 
     Justice approve them? What precautions were taken to ensure 
     these renditions, any interrogations of such detainees on by 
     or behalf of the US Government complied with the law?
       Attorney General Holder: I think the concern that we have 
     with renditions is renditions to countries that would not 
     treat suspects in a way that's consistent with the laws and 
     treaties that we have signed. If there is a rendition taking 
     a person to a place where that person might be tortured? 
     That's the kind of rendition that I think is inappropriate. 
     My memory of my time in the Clinton Administration, I don't 
     believe that we did that--that we had renditions where people 
     were taken to places where we had any reasonable belief that 
     they were going to be tortured. That would be the concern 
     that I would have. I wouldn't want to restrict the ability of 
     our government to use all the techniques that we can to keep 
     the American people safe, but in using those tools, we have 
     to do so in a way that's consistent with our treaty 
     obligations and values as a nation.
       Senator Alexander: But I think you can see the line of my 
     inquiry which is that if we're going to ask lawyers who were 
     asked their legal opinions, if we're going to investigate 
     them, jeopardize their career, second guess them, look back, 
     then where does that stop? Do we not also have to look at the 
     people who asked for those techniques, people who approved 
     those techniques, the members of Congress who knew about and 
     encouraged those techniques perhaps, or in your case, in the 
     Clinton Administration, we don't know what the interrogations 
     were then. Perhaps you do and perhaps the question would be 
     whether you approved them. I prefer President Obama's 
     approach. I think it's time to look forward and I hope he 
     sticks to that point of view.
       Attorney General Holder: Well, I will note that the OPR 
     inquiries we've done in the prior administration, and also 
     note that I'm a prosecutor. I've been a career prosecutor and 
     I hope a good one. A good prosecutor uses the discretion that 
     he or she has in an appropriate way and has the ability to 
     know how far an inquiry needs to go to satisfy the 
     obligations that that prosecutor has without needlessly 
     dragging into an investigation at great expense, both 
     personal and professional, people who should not be there and 
     that will be the kind of judgment that I hope I will bring to 
     making the determinations that you express concern about.

  Mr. ALEXANDER. Mr. President, I also ask unanimous consent to have 
printed in the Record the statement before the House Committee on 
Foreign Affairs of Michael F. Scheuer, former Chief of the CIA's Bin 
Laden Unit, in which he says:
  The CIA's rendition program began in late summer, 1995. I authored 
it, and then ran and managed it against al-Qaeda leaders and other 
Sunni Islamists from August 1995 until June 1999.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Statement Before the House Committee on Foreign Affairs, Subcommittee 
      on International Organizations, Human Rights, and Oversight 
                         Subcommittee on Europe

extraordinary rendition in u.s. counter terrorism policy: the impact on 
                        transatlantic relations

 (Statement by Michael F. Scheuer, Former Chief, Bin Laden Unit, CIA, 
                             Apr. 17, 2007)

                         the rendition program

       The CIA's Rendition Program began in late summer, 1995. I 
     authored it, and then ran and managed it against al-Qaeda 
     leaders and other Sunni Islamists from August, 1995, until 
     June, 1999.
       (A) There were only two goals for the program:
       (1) Take men off the street who were planning or had been 
     involved in attacks on U.S. or its allies.
       (2) Seize hard-copy or electronic documents in their 
     possession when arrested; Americans were never expected to 
     read them.
       (3) Interrogation was never a goal under President Clinton. 
       --Because it would be a foreign intelligence or security 
     service without CIA present or in control.
       --Because the take from the interrogation would be filtered 
     by the service holding the individual, and we would never 
     know if it was complete or distorted.
       --Because torture might be used and the information might 
     be simply what an individual thought we wanted to hear.
       (B) The Rendition Program was initiated because President 
     Clinton, and Messrs. Lake, Berger, and Clarke requested that 
     the CIA begin to attack and dismantle AQ. These men made it 
     clear that they did not want to bring those captured to the 
     U.S. and hold them in U.S. custody.
       (1) President Clinton and his national security team 
     directed the CIA to take each captured al-Qaeda leader to the 
     country which had an outstanding legal process for him. This 
     was a hard-and-fast rule which greatly restricted CIA's 
     ability to confront al-Qaeda because we could only focus on 
     al-Qaeda leaders who were wanted somewhere. As a result many 
     al-Qaeda fighters we knew were dangerous to America could not 
     be captured.
       (2) CIA warned the president and the National Security 
     Council that the U.S. State Department had and would identify 
     the countries to which the captured fighters were being 
     delivered as human rights abusers.
       (3) In response, President Clinton et. al asked if CIA 
     could get each receiving country to guarantee that it would 
     treat the person according to its own laws. This was no 
     problem and we did so.
       --I have read and been told that Mr. Clinton, Mr. Burger, 
     and Mr. Clarke have said since 9/11 that they insisted that 
     each receiving country treat the rendered person it received 
     according to U.S. legal standards. To the best of my memory 
     that is a lie.
       (C) After 9/11, and under President Bush, rendered al-Qaeda 
     operatives have most often been kept in U.S. custody. The 
     goals of the program remained the same, although Mr. Bush's 
     national security team wanted to use U.S. officers to 
     interrogate captured al-Qaeda fighters.
       (1) This decision by the Bush administration allowed CIA to 
     capture al-Qaeda fighters we knew were a threat to the United 
     States without on all occasions being dependent on the 
     availability of another country's outstanding legal process. 
     This decision made the already successful Rendition Program 
     even more effective.
       (D) The following particulars about the Rendition Program 
     may be of interest to you.
       (1) From its start until today, the Program was focused on 
     senior al-Qaeda leaders and not aimed at the rank-and-file 
     members. With only limited manpower to conduct the Rendition 
     Program, CIA wanted to inflict as much damage on al-Qaeda as 
     possible and therefore focused on senior leaders, financiers, 
     terrorist operators, field commanders, strategists, and 
       (2) To the best of my knowledge, not a single target of 
     rendition has ever been kidnapped by CIA officers. The claims 
     to the contrary by the Swedish government regarding Mr. 
     Aghiza and his associate, and those by the Italian government 
     regarding Abu Omar, are either misstatements or lies by those 
       --Indeed, it is passing strange that European leaders are 
     here today to complain about very successful and security 
     enhancing U.S. Government counterterrorism operations, when 
     their European Union (EU) presides over the earth's single 
     largest terrorist safe haven, and has done so for a quarter 
     century. The EU's policy of easily attainable political 
     asylum and its prohibition against deporting wanted or 
     convicted terrorists to country's with the death penalty have 
     made Europe a major, consistent, and invulnerable

[[Page S5307]]

     source of terrorist threat to the United States.
       (3) Each and every target of a rendition was vetted by a 
     battery of lawyers at CIA and not infrequently by lawyers at 
     the National Security Council and the Department of Justice. 
     For each rendition target, I, and then my successors as the 
     chief of the bin Laden/al-Qaeda operations, had to prepare 
     and present a written brief citing and explaining the 
     intelligence information that made the rendition target a 
     threat to the United States and/or its allies. If the 
     brief persuaded the lawyers, the operation went ahead. If 
     the brief was insufficient, the lawyers disapproved and no 
     operation was conducted against that target until 
     additional reliable evidence was collected.
       --Let me be very explicit and precise on this point. Not 
     one single al-Qaeda leader has ever been rendered on the 
     basis of any CIA officer's ``hunch'' or ``guess'' or 
     ``caprice.'' These are scurrilous accusations that became 
     fashionable after the Washington Post's correspondent Dana 
     Priest revealed information that damaged U.S. national 
     security and, as result, won a journalism prize for abetting 
     America's enemies, and when such lamentable politicians as 
     Senators McCain, Rockefeller, Graham, and Levin followed Ms. 
     Priest's lead and began to attack the men and women of CIA 
     who had risked their lives to protect America under the 
     direct orders of two U.S. presidents and with the full 
     knowledge of the intelligence committees of the United States 
     Congress. Both Ms. Priest and the gentlemen just mentioned 
     have behaved disgracefully, and ought to publicly apologize 
     to the CIA's men and women who have executed the Rendition 
       (4) To proceed, the Rendition Program has been the single 
     most effective counterterrorism operation ever conducted by 
     the United States government. Americans are safer today 
     because of the program, but that degree of safety will ebb as 
     the Senators just mentioned slowly but surely destroy the 
     program. If there are those in this Congress, in the media, 
     in this country, or in Europe who believe that we would be 
     safer if Khalid Shaykh Muhammed, Abu Zubaydah, Mr. Hambali, 
     Ibn Shaykh al-Libi, Khalid bin Attash, and several dozen 
     other senior al-Qaeda leaders were still free and on the 
     street, then the educational systems and the reservoirs of 
     common sense on both sides of the Atlantic are in much more 
     dilapidated shape than I thought.
       (5) On the issue of how rendered al-Qaeda leaders have been 
     treated in prison, I am unable to speak with authority about 
     the conditions these men found in the Middle Eastern prisons 
     they were delivered to at President Clinton's direction. I 
     would not, however, be surprised if their treatment was not 
     up to U.S. standards, but this is a matter of no concern as 
     the Rendition Program's goal was to protect America and the 
     rendered fighters delivered to Middle Eastern governments are 
     now either dead or in places from which they cannot harm 
     America. Mission accomplished, as the saying goes.
       Under President Bush, the rendered al-Qaeda fighters held 
     in U.S. custody have been treated according to guidelines 
     that were crafted by U.S. government lawyers, approved by the 
     Executive Branch, and briefed to and permitted by at least 
     the four senior members of the two congressional intelligence 
     oversight committees.
       (6) Finally, I will close by saying that mistakes may well 
     have been made during my tenure as the chief of CIA's bin 
     Laden operations, and, if there were errors, they are my 
     responsibility. Intelligence information is not the 
     equivalent of court-room-quality evidence, and it never will 
     be. But I will again stress that no rendition target was ever 
     approved or captured without a written brief composed of 
     intelligence information that persuaded competent U.S. 
     government legal authorities. If mistakes were made, I can 
     only say that that is tough, but war is a tough and confusing 
     business, and a well-supported chance to take action and 
     protect Americans should always trump other considerations, 
     especially pedantic worries about whether or not the 
     intelligence data is air tight.
       --To destroy the Rendition Program because of a mistake or 
     two or more would be to sacrifice the protection of Americans 
     to venal and prize-hungry reporters like Ms. Priest, 
     grandstanding politicians like those mentioned above, and 
     effete sanctimonious Europeans who take every bit of American 
     protection offered them while publicly damning and seeking 
     jail time for those who risk their lives to provide the 
     protection. If the Rendition Program is halted, we will truly 
     be able to say, by paraphrasing the late film actor John 
     Wayne, that: War is tough, but it is a lot tougher if you are 
     deliberately stupid.

  Mr. ALEXANDER. Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.