[Congressional Record: May 11, 2009 (Senate)]
[Page S5305-S5307]
INVESTIGATING INTERROGATION TACTICS
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
interrogations.
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
II.
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:
ALEXANDER-HOLDER EXCHANGE ON INVESTIGATION OF INTERROGATION TACTICS
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
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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
action.
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
warranted.
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.
Why?
--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
logisticians.
(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
governments.
--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
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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
Program.
(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.
____________________
