PDF Version (42 MB PDF file)
S. Hrg. 111-324
``WHAT WENT WRONG: TORTURE AND THE OFFICE OF LEGAL COUNSEL IN THE BUSH
ADMINISTRATION''
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
----------
MAY 13, 2009
----------
Serial No. J-111-22
----------
Printed for the use of the Committee on the Judiciary
``WHAT WENT WRONG: TORTURE AND THE OFFICE OF LEGAL COUNSEL IN THE BUSH
ADMINISTRATION''
S. Hrg. 111-324
``WHAT WENT WRONG: TORTURE AND THE OFFICE OF LEGAL COUNSEL IN THE BUSH
ADMINISTRATION''
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
MAY 13, 2009
__________
Serial No. J-111-22
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
55-467 WASHINGTON : 2010
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
RON WYDEN, Oregon
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
Bruce A. Cohen, Chief Counsel and Staff Director
Matt Miner, Republican Chief Counsel
------
Subcommittee on Administrative Oversight and the Courts
SHELDON WHITEHOUSE, Rhode Island Chairman
DIANNE FEINSTEIN, California JEFF SESSIONS, Alabama
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
BENJAMIN L. CARDIN, Maryland LINDSEY O. GRAHAM, South Carolina
EDWARD E. KAUFMAN, Delaware
Sam Goodstein, Democratic Chief Counsel
Matt Miner, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 10
preapred statement........................................... 254
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 8
Graham, Hon. Lindsey, a U.S. Senator from the State of South
Carolina....................................................... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 6
preapred statement........................................... 269
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 1
preapred statement........................................... 559
statement of views........................................... 561
WITNESSES
Addicott, Jeffrey F., Professor, Director, Center for Terrorism
Law, St. Mary's University School of Law, San Antonio, Texas... 17
Luban, David, Professor of Law, Georgetown University Law Center,
Hyattsville, Maryland.......................................... 11
Soufan, Ali, Chief Executive, The Soufan Group LLC, New York, New
York........................................................... 22
Turner, Robert, Professor, Center for National Security Law,
University of Virginia School of Law, Charlottesville, Virginia 19
Zelikow, Philip, White Burkett Miller Professor of History,
University of Virginia, Charlottesville, Virginia.............. 14
QUESTIONS AND ANSWERS
Responses of David Luban to questions submitted by Senator
Whitehouse..................................................... 47
SUBMISSIONS FOR THE RECORD
Addicott, Jeffrey F., Professor, Director, Center for Terrorism
Law, St. Mary's University School of Law, San Antonio, Texas,
statement...................................................... 51
Alexander, Matthew, statement.................................... 66
Berman, Emily, Counsel and Katz Fellow, Brennan Center for
Justice, New York, New York, statement......................... 70
Bradbury, Steven, Senior Deputy General Counsel, Department of
Justice, Washington, D.C:
Memorandum for Alberto R. Gonzales, August 1, 2002........... 84
Memorandum for John A. Rizzo, May 10, 2005................... 134
Memorandum for John A. Rizzo, May 10, 2005................... 154
Memorandum for John A. Rizzo, May 30, 2005................... 200
Clark, Kathleen, Law Professor, Washington University, St. Louis,
and Congressional and Administrative Law Clinic, Washington,
D.C., statement................................................ 240
Cooper, Charles J., Cooper & Kirk PLLC, Washington, D.C.,
statement...................................................... 245
Kleinman, Steven M., Colonel, U.S. Air Force, statement.......... 255
Levin, Daniel, Acting Assistant Attorney General, Washington,
D.C., letter and attachment.................................... 271
Luban, David, Professor of Law, Georgetown University Law Center,
Hyattsville, Maryland, statement............................... 290
Malinowski, Tom, Director, Washington Advocacy, Human Rights
Watch, New York, New York, statement........................... 296
Massimino, Elisa, CEO and Executive Director, Human Rights First,
Washington, D.C., statement.................................... 304
Paulsen, Michael Stokes, Distinguished University Chair &
Professor of Law, University of St. Thomas, Minneapolis,
Minnesota, statement & attachment.............................. 314
Petraeus, David H., General, U.S. Army, letter................... 403
Powers, Richard C., Assistant Director, Office of Congressional
Affairs, Department of Justice, Federal Bureau of
Investigation, Washington, D.C., letter and attachment......... 404
Ritz, Mike, former U.S. Army Interrogator, letter................ 501
Shane, Peter M., and Jacob E. Davis, II, Chair in Law, Ohio State
University, Noritz College of Law, Columbus, Ohio, statement... 506
Soufan, Ali, Chief Executive, The Soufan Group LLC, New York, New
York, statement................................................ 514
Turner, Robert, Professor, Center for National Security Law,
University of Virginia School of Law, Charlottesville,
Virginia, statement............................................ 527
Yoo, John C., Deputy Assistant Attorney General, Department of
Justice, Washington, D.C:
Letter to Alberto R. Gonzales................................ 575
Memorandum for William J. Haynes II.......................... 581
Zelikow, Philip, White Burkett Miller Professor of History,
University of Virginia, Charlottesville, Virginia, statement... 662
WHAT WENT WRONG: TORTURE AND THE OFFICE OF LEGAL COUNSEL IN THE BUSH
ADMINISTRATION
----------
WEDNESDAY, MAY 13, 2009
U.S. Senate,
Subcommittee on Administrative Oversight and the Courts,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 10 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Sheldon
Whitehouse, Chairman of the Subcommittee, presiding.
Present: Senators Whitehouse, Leahy, Feinstein, Feingold,
Durbin, Cardin, Kaufman, Graham, and Coburn.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Chairman Whitehouse. Good morning. The hearing will come to
order. I will make some brief opening remarks. The
distinguished Acting Ranking Member will make some remarks. The
distinguished Chairman will make some remarks. Chairman
Feinstein will make some remarks. And if anybody else wishes to
make some remarks, I would like to try to get opening remarks
closed before the 10:30 vote begins, and then we will come back
and go to the witnesses. I thank everyone for being here.
Winston Churchill said, ``In wartime, truth is so precious
that she should always be attended by a bodyguard of lies.''
The truth of our country's descent into torture is not
precious. It is noxious; it is sordid. But it has also been
attended by a bodyguard of lies. This hearing is designed to
begin a process that will expose some of those lies, that will
prepare us to struggle with that sordid truth, and that will
examine the battlements of legal authority erected to defend
that truth and its bodyguard of lies.
The lies are legion.
President Bush told us ``America does not torture'' while
authorizing conduct that America has prosecuted--both as crime
and war crime--as torture.
Vice President Cheney agreed in an interview that
waterboarding was like ``a dunk in the water,'' when it was
used as a torture technique by tyrannical regimes from the
Spanish Inquisition to Cambodia's Killing Fields.
John Yoo told Esquire Magazine that waterboarding was only
done ``three times,'' when public reports now indicate that two
detainees were waterboarded 83 and 183 times. About Khalid
Sheik Mohammad, reportedly waterboarded 183 times, a former CIA
official had told ABC News, ``KSM lasted the longest under
waterboarding, about a minute and a half, but once he broke it
never had to be used again.'' That, too, was a lie.
We were told that waterboarding was determined to be legal,
but were not told how badly the law was ignored, bastardized,
and manipulated by the Department of Justice's Office of Legal
Counsel, nor were we told how furiously Government and military
lawyers rejected the defective OLC opinions--but were ignored.
We were told we could not second guess the brave CIA
officers who did this, and now we hear that the program was led
by private contractors with a profit motive and no real
interrogation experience.
Former CIA Director Hayden and former Attorney General
Mukasey told a particularly meretricious lie: that the Army
Field Manual restrains abuse by naive young soldiers but is not
needed by the experienced experts at the CIA.
The Army Field Manual is a code of honor, as reflected by
General Petraeus' May 10, 2007, letter to the troops, which I
ask unanimous consent to have admitted as an exhibit to this
hearing. Without objection.
Moreover, military and FBI interrogators such as Matthew
Alexander, Steve Kleinman, and Ali Soufan are the true
professionals. We know now that the ``experienced
interrogators'' referenced by Hayden and Mukasey had little to
no experience. In fact, the CIA cobbled its program together
from techniques used by the SERE program, designed to prepare
captured U.S. military personnel for interrogation by tyrant
regimes who torture to generate propaganda. To the proud,
experienced, and successful interrogators of the military and
the FBI, I believe Judge Mukasey and General Hayden owe an
apology.
Finally, we were told that torturing detainees was
justified by American lives saved--saved as a result of
actionable intelligence produced on the waterboard. That is far
from clear. Nothing I have seen convinces me this was the case.
FBI Director Mueller has said he is unaware of any evidence
that waterboarding produced actionable information. The example
of Zubaydah providing critical intelligence on Khalid Sheikh
Mohammed and Jose Padilla, often given, is false, as the
information was obtained before waterboarding was even
authorized.
And there has been no accounting of wild goose chases our
national security personnel may have been sent on by false
statements made by torture victims just to end the agony; no
accounting of intelligence lost if other sources held back from
dealing with us after our descent to what Vice President Cheney
called ``the dark side''; no accounting of the harm to our
national standing or our international goodwill; no accounting
of the benefit to our enemies' standing and goodwill--
particularly as measured in militant recruitment or
fundraising; and no accounting of the impact this program has
on information sharing with foreign governments, whose laws
prohibit the type of treatment and detention policies the
administration had enacted.
I could relate other lies, a near avalanche of falsehood,
on the subject of torture and what we have been told about
interrogation techniques, but I suffer a disability: I am a
legislator. Legislators have no authority to declassify. Our
Senate procedure for declassification is so cumbersome that it
has never been used. All of the ``declassifiers'' in Government
are executive branch officials. And the Bush administration
knew this. So they spouted their rhetoric, again much of it
outright false and much of it misleading; and though many of us
in Congress knew it to be false, we could not reply. It is
intensely frustrating.
We have been told you should not criminalize conduct by
prosecuting it. You criminalize conduct by making it a crime
under the law of the land at the time the crime was committed.
Prosecution does not criminalize anything; prosecution
vindicates the law in place at the time, based on the facts
that are admissible as evidence.
We have been told you should not prosecute people who
followed lawful orders or relied on proper legal authorities or
in good faith offered their best legal advice. But those are
the questions, aren't they, and not the answers?
This is the first of what I hope will be a series of
hearings looking into these questions. I hope we will soon be
provided the Department of Justice Office of Professional
Responsibility's report on its investigation of the Office of
Legal Counsel and hold more thorough hearings in the wake of
that.
Let me conclude by saying what a very sad day it is for
America and for the Department of Justice that there should be
such a thing as an OPR investigation into the United States
Department of Justice Office of Legal Counsel and how loathsome
it is what a few men did to bring this upon that office.
I would like to thank Chairman Leahy for allowing me to
hold this hearing. No one has worked harder and cares more
about this issue than he does. I also want to acknowledge the
tireless work of Senator Feinstein, my Chairman on the
Intelligence Committee, who is leading its detailed
investigation into the Bush administration's interrogation and
detention program. I applaud her for her efforts to get to the
bottom of this shameful period of our country's history.
Today, we will hear from a distinguished panel of witnesses
who will help us shed light on this topic. I thank them for
their appearance this morning. I remind them all about
unauthorized disclosure of classified information. I want to
make a particular note about our last witness, Ali Soufan. Mr.
Soufan interviewed al Qaeda terrorists and went undercover
against al Qaeda. Threats against him have been documented. We
ask the press to respect the security procedures we have in
place and avoid photographing his face.
Senator Graham, any statement you would like to give?
STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE STATE
OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman. Well, I really do
not know what to say or how to begin other than the difference
between the nobility of the law and a political stunt may be
soon evident one way or the other, and I do not know whether
this is actually pursuing the nobility of the law or a
political stunt. We will let the American people decide. But I
do not question the Chairman's motivation. He is a very fine
man, and I think he is rightly disturbed by some of the
decisions that were made in the past, and so have I been.
But I guess if we are going to talk about evil, we need to
talk about it more than just the last administration's policy
decisions about trying to protect the Nation or to put in
context what we are facing and who we are fighting--people who
really could care less about any law anywhere. And would we
have this hearing if we were attacked this afternoon? Do you
want to have a bunch more hearings about what happened in the
past? If one of our national treasures were attacked tomorrow,
would we have more hearings? Or would we focus on repairing the
damage and staying ahead of the enemy?
If we are going to find out who did what when, we need to
find out who was told about it and when they were told about
it. And if we are going to really find out what happened, it
seems to me we would want to know what worked and what did not.
So I am calling today for any memos that show information that
was gathered from any enhanced interrogation technique, that
that be made available to the Committee so we can look and see
what worked. That is only fair.
And you have got to remember we are talking about this now
many years after 9/11, and the people that we are judging woke
up one morning, like the rest of America, and said, ``Oh, my
God. What is coming next? ''
It is not really fair to sit here in the quiet peace of the
moment and put ourselves in such a holier-than-thou position,
because you do not have to make that decision. They did. And I
have been a criminal lawyer, defense and prosecutor, for most
of my adult life. I think I know the difference between a
policy debate where I may disagree with the conclusion and a
crime. The idea that you would read your political opponents
into your crime makes no sense. The idea that you would seek
advice from all corners of the Government in formulating policy
and to call that a crime is dangerous.
What happened on September 11, 2001, was unprecedented. It
was the most vicious attack on our homeland by a foreign entity
in the history of the Nation. Mr. Chairman, here is what I
think happened.
The Nation was rattled. The administration went on the
offensive, and they looked at some statutes on the book as a
way I would not have looked at it. They were very aggressive.
They were going to make sure this did not happen again, and
they tried to come up with interrogation techniques, evaluating
the law in a way that I disagree with their evaluation. But
there is no one iota of doubt in my mind that they were trying
to protect the Nation.
But they made mistakes. They saw the law many times as a
nicety that we could not afford, so they took a very aggressive
interpretation of what the law would allow, and that came back
to bite us. It always does. But that is not a crime.
What we have to understand as a Nation is that the fact
that we embrace the rule of law is a strength and not a
weakness. The fact that we will give our enemy a trial and they
will not makes us better. The fact that our judgments are
rendered based on evidence reviewed by an independent judiciary
is a strength. Their kangaroo courts are not the model for the
world. So I have tried over these many years to speak up in a
way that I think is best for the Nation.
As to the Army Field Manual, I think I have a pretty good
understanding of it. I know why it exists. To say that is the
only way you can interrogate someone within the law is not
right. There should be interrogation techniques not on the
Internet for our national security. And let us bring the CIA
Director into this hearing. He has already testified if we
caught a high-value target tomorrow, he would go to the
President and ask for interrogation techniques not in the Army
Field Manual to defend this Nation, but they would be lawful.
Is he a criminal because he would do that? No. I think this
administration's policy, at least through the CIA Director's
sworn testimony, is that they would reserve unto themselves the
ability to brief the Commander-in-Chief about a high-value
target, and they would suggest techniques to the Commander-in-
Chief that were lawful that are not included in the Army Field
Manual.
So this idea that someone said the Army Field Manual is the
only way you can lawfully interrogate somebody I completely
disagree with. And to those who suggest it may not be the best
tool available to the country, I totally agree with.
Now, I do not know what Nancy Pelosi knew and when she knew
it, and I really do not think she is a criminal if she was told
about waterboarding and did nothing. But I think it is
important to understand that Members of Congress allegedly were
briefed about these interrogation techniques, and, again, it
goes back to the idea of what was the administration trying to
do. If you are trying to commit a crime, it seems to me that
would be the last thing you would want to do. If you had in
your mind and your heart that you are going to disregard the
law and you are going to come up with interrogation techniques
that you know to be illegal, you would not go around telling
people on the other side of the aisle about it. You would not
be getting legal advice. And the point of the matter is that
they chose to ignore some pretty good legal advice. But is that
a crime?
So as we go forward, there is a purpose to everything.
There is a reason people do what they do, and it will soon
become evident, I think, over time the reason for these
hearings. There is a lot going on in this world today, at home
and abroad. And I wonder where this fits into the average
American's hierarchy of needs right now.
I have been on the Armed Services Committee where we did a
very thorough investigation of these interrogation techniques
and how they came about. The Levin report is a good one. It is
there to be read. I will take a back seat to no one about my
love for the law and the desire for my Nation to be a noble
Nation. The moral high ground in this war is the high ground.
It is not a location. The enemy we are fighting, Mr. Chairman,
does not have a capital to conquer or a Navy to sink or an Air
Force to shoot down. It is an ideological struggle, and the
decisions made in the past have had two sides. We did get some
good information that made us safer, but we also hurt
ourselves. We damaged our reputation, and we did some things
that I think were not going to make us safer in the long run if
we kept doing them.
So I am ready to go forward. Waterboarding has never been
an appropriate technique for me, and if there are any military
members listening out there today, you will be prosecuted if
you waterboard a detainee in your charge. Under the Uniform
Code of Military Justice, it would be a violation. As to other
agencies, please understand that in 2001, 2002, and 2003, the
Geneva Convention did not apply to the war on terror--only in
2006. The war crimes statute that existed in 2001 was a joke.
It codified the Common Article 3 standard which nobody could
adhere to because it is so vague in terms of the notice it
would give to someone to comply.
We have today I think the best war crimes statute on the
books of any nation in the world that would outlaw a grave
breach of the Geneva Convention. We passed that in a bipartisan
fashion. We have policies now, the Detainee Treatment Act, the
McCain amendment, and other policies that give our people who
are fighting this war the guidance they need to make sure they
understand what is in bounds and what is not. And we have a new
President.
Now, I would conclude with this: President Obama, in my
opinion, has made some very sound decisions regarding
Afghanistan and Iraq. I had a meeting yesterday with the
administration about what to do with Gitmo detainees, how we
can deal with these detainees in a way that adheres to our
values and protects our Nation. I want to be on record as
saying that I think the administration has taken a very
responsible view of Afghanistan, Iraq, and Guantanamo Bay. And
it is my belief that they may ask for another continuance
regarding military commission trials so that the Congress and
the administration can sit down and work out what to do with
these detainees as we move forward. If that request is made, I
will applaud it.
I do appreciate what the President is trying to do to
repair our image and to create rules for the road as we go
forward. But as we look back--I will conclude with this: As we
harshly judge those who had to make decisions we do not have to
make, please remember this: that what we do in looking back may
determine how we move forward, and let us not unnecessarily
impede the ability of this country to defend itself against an
enemy who is, as I speak, thinking and plotting their way back
into America.
Chairman Whitehouse. Thank you, Senator Graham.
Chairman Leahy and then Chairman Feinstein.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. Well, thank you, Chairman Whitehouse.
This is one of the most important hearings the Senate
Judiciary Committee will hold this year. I have listened to my
friend from South Carolina. I have listened to each of his
several conclusions that he made during his opening statement.
I also heard him speak of the nobility of the law. I would just
urge Senators not to raise straw men and try to predetermine
this hearing. Let us listen to the witnesses who are going to
be testifying rather than raising hypotheses and facts really
not in the record.
I applaud Chairman Whitehouse for doing this. His own
background as Attorney General and as a U.S. Attorney makes him
eminently suited. I think it is one of the most important
hearings we will have in the Judiciary Committee because it
raises the question of how we got to a place where the
Department of Justice's Office of Legal Counsel, an office that
basically sets the standards for the whole Federal Government,
came to write predetermined and premeditated legal opinions
that allowed President Bush to authorize the torture of those
in American custody and control--opinions that had to ignore
our own laws, our own international agreements, and our own
precedents as a Nation. From General George Washington's
example during the Revolutionary War through the Civil War, the
World Wars, Korea, and Vietnam, it was America that provided
the model of a Nation that would not engage in such practices.
It was America that led the world in the recognition of human
dignity and human rights. And I think that the elite legal
office at the Justice Department responsible for guiding the
executive branch, and with the power to issue binding
interpretations of law, so misused its authority is one of the
fundamental breakdowns in the rule of law that dominated during
the past 8 years.
The recent release of four more Office of Legal Counsel
memos, written by two former heads of the OLC, Jay Bybee and
Steven Bradbury, demonstrate in excruciating detail the methods
authorized and used on people in American custody. We will hear
all about those. Shackling naked people from the ceiling,
keeping them inside a small box with an insect, beating them
repeatedly, and waterboarding--these are actions that we have
rightly protested when they have been used against Americans by
other countries.
The purported legal justifications for the policies are
disturbing. Some of the opinions use an ends-justify-the-means
type of circular reasoning, saying that even though we would
object if anybody ever did this to an America, it is OK for
Americans to do that because we are Americans. It is not
reasoning that stands up. Some seek to defend the use of these
techniques by relying on hypertechnical interpretations that
disregard the prohibitions in our laws. All seem posited on the
idea that the President is somehow above the law or can
override the law. Well, the rule of law in the United States
means that no one is above the law--none of us as Senators,
nobody in this room, and not the President of the United
States.
So Senator Whitehouse deserves applause for having this
hearing and for own his commitment to the rule of law and to
getting to the truth. I would like to go forward in a
nonpartisan commission, as I have said before, but that is
going to require support from both sides of the aisle, one that
could get to all the truth of what happened.
Two weeks ago, I invited Judge Jay Bybee to testify before
the Senate Judiciary Committee. I did so after reading accounts
in the Washington Post suggesting that he had expressed regrets
regarding his work at the OLC. And then, in comments he sent a
couple days later to the New York Times, he turned around and
defended the same legal opinions--incidentally, legal opinions
that have now been withdrawn. I invited him to come forward to
tell the truth, the complete truth, before the Committee. Which
Jay Bybee do we rely upon--the one who is in the press 1 day or
the one who is in the press the next day? I ask, Mr. Chairman,
if I could include in the record a copy of that letter to him.
Chairman Whitehouse. Without objection.
Chairman Leahy. Now, he has declined through his lawyers to
testify before the Committee, I assume that he has no
exonerating information to provide. I wish he would testify
before us to help complete the record, and opining on why he
refused, it is appropriate in this case because he has not done
anything but maintain silence about it. He made a number of
statements that certainly give his side. I would like to hear
it all. He has talked to friends and employees, he has
communicated to the press, and he has communicated through his
lawyers to the Justice Department regarding the Office of
Professional Responsibility's review of his actions while he
was a Government employee in the Office of Legal Counsel.
Apparently, the only people he will not explain his actions to
are the people who granted him a lifetime appointment to the
Federal bench--the American people through their elected
representatives in the Senate.
So how we approach the mistakes of the past and whether we
choose to learn from them is going to shape our way forward.
Accountability can help restore our reputation around the
world. But we have to restore the trust of the American public
in our Government. I am a proud American. I think all
Vermonters are. I am proud of the history of this country. I am
proud of the times when our country has upheld the rule of law.
I am also proud of the fact that the United States of America,
when it has made mistakes, has not been afraid to admit those
mistakes and learn from them and pledge not to make the same
mistakes again. That is why we have this hearing, and that is
why the American people deserve to know what mistakes were made
and what we intend to do about it.
So, Senator Whitehouse, I applaud you for holding this
hearing. I think it is one of the most important hearings the
Senate Judiciary Committee will hold this year.
Chairman Whitehouse. Thank you, Chairman.
The distinguished Chairman of the Senate Intelligence
Committee and a member of the Judiciary Committee, Senator
Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. I
would echo the Chairman's words. Thank you for your leadership
for holding this hearing.
Last month, the Obama administration released four
memoranda from the Office of Legal Counsel, and questions have
circulated ever since.
Now, it is well within the Judiciary Committee's
jurisdiction to review these opinions and make findings as to
whether the Committee does feel they fall within existing law
as well as international treaties and conventions to which the
United States is a signatory and, therefore, bound.
I listened very carefully to what Senator Graham said. I do
not agree. I agree that the prior administration made the
judgment that they did not apply, but that judgment was
repudiated in Supreme Court decisions. And as I read them, the
finding was that those conventions do, in fact, apply. But as
was the case with the program for warrantless surveillance,
access to these legal opinions was severely restricted for
years.
It has been publicly reported that the Office of
Professional Responsibility may soon recommend to the Attorney
General that the authors of these legal opinions face certain
sanctions. However, the specifics of the OPR report have not
been released.
While the Department of Justice can and should review the
performance of its employees, the Judiciary Committee does have
the responsibility of independent oversight of the Department
of Justice and how it interprets the Constitution and the law,
just as the Intelligence Committee, which I chair, has the
oversight jurisdiction of the 16 intelligence agencies.
As members know, the Intelligence Committee is exercising
its oversight responsibilities. We are conducting a major
review of the CIA detention and interrogation program. This
will include a detailed review of the conditions of detention
experienced by high-value detainees at black sites, more than
two dozen; how interrogation techniques were applied, by whom,
in what combination, over what period of time; what information
was produced as a result of these interrogations; and whether
such information could have been obtained through other means;
an evaluation of whether, in fact, the CIA detention and
interrogation program complied with or exceeded the OLC
opinions and other policy guidance; and whether the
Intelligence Committee was accurately briefed about the
detention and interrogation program and given a full
explanation of what was happening at certain sites around the
world. I believe this particular point is very important
considering our review responsibilities. All of the facts will
then be placed before the Committee, and the Committee will
then work its will.
Now, to do this right is a major undertaking. It involves
months of review. It involves going through millions of
unredacted papers, documents, cables, and e- mails and a
substantial number of personal interviews. The work will
necessarily be classified in order to get the full scope of
what has happened, and the work will be done fairly and
professionally and in a strong bipartisan manner. And I want to
stress that.
Yesterday, I had a brief meeting with Mr. Soufan, who is
going to shortly be before this Committee. He will be asked at
the right time when we have the facts to come before the
Intelligence Committee.
Now, we have six crossover members that sit on this
Committee and on Intelligence, including Senators Whitehouse,
Feingold, Wyden, Hatch, Coburn, and myself. So I am convinced
that between the Intelligence Committee's review and study and
the Judiciary Committee's oversight of DOJ and these opinions,
we will be able to provide a substantial body of knowledge and
work within which judgments and assessments can be made.
I very much hope that this will be the case. I think to
make this an explosive issue without carefully laying out all
of the facts, conditions, cables, directives, and the whole
situation will be a big, big mistake.
So I want to thank you, Mr. Chairman, and I certainly
welcome your hearing, and the Intelligence Committee will
welcome whatever evidence it might provide for our
deliberations as well. So thank you.
Chairman Whitehouse. Thank you, Madam Chair. And as
somebody who has seen firsthand your work on the Intelligence
Committee, I am very proud of it and look forward to supporting
you in that effort.
Senator Feinstein. Thank you very much. I appreciate that.
Chairman Whitehouse. Senator Feingold, do you wish to make
a brief opening statement?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Very brief, Mr. Chairman. We want to get
on to the hearing. But this hearing is such an important step
in shedding light on one of the worst abuses of the past
administration. Let me be clear: This so- called enhanced
interrogation program was illegal, it was contrary to our
national values, and it undermined our national security.
Like Chairman Whitehouse and Chairman Feinstein, I am a
member of the Intelligence Committee, and I can tell you that
nothing I have seen, including the two documents to which
former Vice President Cheney has repeatedly referred, indicates
that the torture techniques authorized by the last
administration were necessary or that they were the best way to
get information out of detainees. So, clearly, the former Vice
President is misleading the American people when he says
otherwise.
Mr. Chairman, I support further declassifications,
including the rest of the Justice Department memos and letters
on this program, the Inspector General report, and the work of
the Intelligence Committee, provided their release would not
jeopardize national security. And I have also sought the
declassification of my own correspondence which I sent to then-
CIA Director Hayden detailing my clear opposition to the
program.
While the revelations of the past month are uncomfortable
for some, they are absolutely essential if our country is to
return to the rule of law. I am pleased that the members of the
Judiciary Committee and the Intelligence Committee are moving
forward to determine exactly what happened, and I continue to
believe that an independent commission of inquiry, as Chairman
Leahy has proposed, is needed so that we can fully understand
and come to terms with this dark chapter in our recent history.
Thank you, Mr. Chairman.
Chairman Whitehouse. Thank you, Senator Feingold. And just
to chime in on that point, I think it is clear that I also
agree that the time will come when it, frankly, becomes
inevitable that a nonpartisan, authoritative commission should
take a look at the work of Senator Feinstein's investigations,
the OPR opinions, what the Judiciary Committee does under the
leadership of Chairman Leahy, and other factors, and draw it
all together so that the American people can make the
appropriate conclusions.
Our first witness is David Luban. Professor Luban is a
leading expert on legal ethics. He has written numerous
articles and books on the subject, including ``Legal Ethics,''
a leading textbook on the subject, and ``Legal Ethics and Human
Dignity,'' which collects selected essays he has written on
legal ethics during the last 20 years. He is the University
Professor of Law at Georgetown University Law Center, where he
has taught since he joined the faculty of Georgetown University
Law Center in 1997. He has previously taught at the University
of Maryland and Yale and Kent State universities. He hold a
Ph.D. from Yale University and a B.A. from the University of
Chicago.
Professor Luban's recent research interests have included
the legal ethics implications of U.S. torture policy and the
powers granted to the President by the Constitution. As a
result, he is particularly well suited to evaluate the OLC
memos and explain the ethical issues that they raise.
Professor Luban.
STATEMENT OF DAVID LUBAN, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER, HYATTSVILLE, MARYLAND
Mr. Luban. Thank you, Mr. Chairman.
Chairman Whitehouse, Ranking Member Senator Graham,
Chairman Leahy, and distinguished members of the Committee----
Chairman Whitehouse. Professor Luban, let me say one thing
quickly, because you are our first witness. I would like to try
to keep all of the witness statements here--some of them are
quite lengthy on paper--to 5 minutes. And so at some point
witnesses are going to start hearing this noise [gavels], which
is your warning that the 5 minutes has run out and if you could
please wrap it up. And if you extend too far beyond it, I will
simply cut you off so that everybody has a fair chance and so
that the Senators have a chance to engage in dialog, which is
the most helpful part of a hearing.
I thank you. Please proceed.
Mr. Luban. I may go a minute or so over. Thank you for
inviting me to testify today. You have asked me to talk about
the legal ethics of the torture and interrogation memos written
by lawyers in the Office of Legal Counsel. Based on the
publicly available sources I have studied, I believe that the
memos are an ethical train wreck.
When a lawyer advises a client about what the law requires,
there is one basic ethical obligation: to tell it straight,
without slanting or skewing. That can be a hard thing to do, if
the legal answer is not the one the client wants. Very few
lawyers ever enjoy saying ``no'' to a client who was hoping for
``yes.'' But the profession's ethical standard is clear: a
legal adviser must use independent judgment and give candid,
unvarnished advice. In the words of the American Bar
Association, ``a lawyer should not be deterred from giving
candid advice by the prospect that the advice will be
unpalatable to the client.''
That is the governing standard for all lawyers, in public
practice or private. But it is doubly important for lawyers in
the Office of Legal Counsel. The mission of the OLC is to give
the President advice to guide him in fulfilling an awesome
constitutional obligation: to take care that the laws are
faithfully executed. Faithful execution means interpreting the
law without stretching it and without looking for loopholes.
OLC's job is not to rubber-stamp administration policies, and
it is not to provide legal cover for illegal actions.
No lawyer's advice should do that. The rules of
professional ethics forbid lawyers from counseling or assisting
clients in illegal conduct; they require competence; and they
demand that lawyers explain enough that the client can make an
informed decision, which surely means explaining the law as it
is. These are standards that the entire legal profession
recognizes.
Unfortunately, the torture memos fall far short of
professional standards of candid advice and independent
judgment. They involve a selective and, in places, deeply
eccentric reading of the law. The memos cherry-pick sources of
law that back their conclusions and leave out sources of law
that do not. They read as if they were reverse engineered to
reach a predetermined outcome: approval of waterboarding and
the other CIA techniques.
Now, my written statement goes through the memos in detail,
Mr. Chairman. Let me give just one example here of what I am
talking about. Twenty-six years ago, President Reagan's Justice
Department prosecuted law enforcement officers for
waterboarding prisoners to make them confess. The case is
called United States v. Lee. Four men were convicted and drew
hefty sentences that the Court of Appeals upheld.
The Court of Appeals repeatedly referred to the technique
of waterboarding as ``torture.'' This is perhaps the single
most relevant case in American law on the legality of
waterboarding.
Any lawyer can find the Lee case in a few seconds on a
computer just by typing the words ``water torture'' into a data
base. But the authors of the torture memos never mentioned it.
They had no trouble finding cases where courts didn't call
harsh interrogation techniques ``torture.'' It is hard to avoid
the conclusion that Mr. Yoo, Judge Bybee, and Mr. Bradbury
chose not to mention the Lee cases because it casts doubt on
their conclusion that waterboarding is legal.
Without getting further into technicalities that, quite
frankly, only a lawyer could love--maybe not even a lawyer,
only a professor could love--I would like to mention briefly
other ways that the torture memos twisted and distorted the
law. The first Bybee memo advances a startlingly broad theory
of executive power, according to which the President as
commander-in-chief can override criminal laws. This was a
theory that Jack Goldsmith, who headed the OLC after Judge
Bybee's departure, described as an ``extreme conclusion'' that
``has no foundation in prior OLC opinions, or in judicial
decisions, or in any other source of law.'' It comes very close
to President Nixon's notorious statement that ``when the
President does it, that means it is not illegal''--except that
Mr. Nixon was speaking off the cuff in a high-pressure
interview, not a written opinion by the Office of Legal
Counsel.
The first Bybee memo also wrenches language from a Medicare
statute to explain the legal definition of torture. The
Medicare statute lists ``severe pain'' as a symptom that might
indicate a medical emergency. Mr. Yoo flips the statute and
announces that only pain equivalent in intensity to ``organ
failure, impairment of bodily function, or even death'' can be
``severe.'' This definition was so bizarre that the OLC itself
disowned it a few months after it became public. It is unusual
for one OLC opinion to disown an earlier one, and it shows just
how far out of the mainstream Professor Yoo and Judge Bybee had
wandered. The memo's authors were obviously looking for a
standard of torture so high that none of the enhanced
interrogation techniques would count. But legal ethics does not
permit lawyers to make frivolous arguments merely because it
gets them the results they wanted. I should note that on
January 15th of this year, Mr. Bradbury found it necessary to
withdraw six additional OLC opinions by Professor Yoo or Judge
Bybee.
Mr. Chairman, recent news reports have said that the
Justice Department's internal ethics watchdog, the Office of
Professional Responsibility, has completed a 5-year
investigation of the torture memos. OPR has the power to refer
lawyers to their State bar disciplinary authorities, and news
reports say they will do so.
I have no personal knowledge about what OPR has found.
Presumably, investigators were looking either for evidence of
incompetence, evidence that the lawyers knew their memos do not
accurately reflect the law, or evidence that the process was
short-circuited.
This morning, I have called the interrogation memos a
``legal train wreck.'' I believe it is impossible that lawyers
of such great talent and intelligence could have written these
memos in the good-faith belief that they accurately state the
law. But what I or anyone else believes is irrelevant. Ethics
violations must be proved by clear and convincing evidence and
not just asserted. That sets a high bar, and it should be a
high bar.
In closing, I would like to emphasize to this Committee
that when OLC lawyers write opinions, especially secret
opinions, the stakes are high. Their advice governs the
executive branch, and officials must be told frankly when they
are on legal thin ice or crossing over into unlawful conduct.
They and the American people deserve the highest level of
professionalism and independent--let me emphasize
``independent''--judgment, and I am sorry to say that they did
not get it here.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Luban appears as a
submission for the record.]
Chairman Whitehouse. Thank you, Professor Luban.
One of the perils of Senate hearings is votes that happen,
and a vote has just happened. And what I will do is recess the
hearing for 5 minutes to give us a chance to vote. People
usually take longer than that, but I will be back immediately
to call the hearing back into session. And if other people need
to take a bit more time, it will be underway, and we are glad
to have you come back.
But, for now, the hearing is temporarily adjourned so that
we can vote.
[Recess 10:42 a.m. to 10:55 a.m.]
Chairman Whitehouse. Thank you all and my apologies again
for the interruption, but it is one of our obligations around
here.
The next witness is Philip Zelikow, who is the White
Burkett Miller Professor of History at the University of
Virginia, one of my alma maters. It is very good to have him
here. He was counselor at the Department of State, a deputy to
Secretary Condoleezza Rice from 2005 to 2007. From 1998 to
2005, Mr. Zelikow directed the University of Virginia's Miller
Center of Public Affairs as well as three bipartisan
commissions, including the National Commission on Terrorist
Attacks upon the United States--referred to colloquially as the
``9/11 Commission''--from 2003 to 2004. Previously, Mr. Zelikow
served as a career Foreign Service officer at the State
Department and on the White House National Security Council
staff. He is currently a member of the board for the Global
Development Program of the Bill and Melinda Gates Foundation.
Mr. Zelikow received his baccalaureate degree from the
University of Redlands, a law degree from the University of
Houston, and his master's and Ph.D. from the Fletcher School at
Tufts University.
Mr. Zelikow, welcome. We await your testimony.
STATEMENT OF PHILIP ZELIKOW, WHITE BURKETT MILLER PROFESSOR OF
HISTORY, UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE, VIRGINIA
Mr. Zelikow. Mr. Chairman, Senator Graham, thank you for
giving me the opportunity to appear before you today. The
Committee has my C.V. I will not detail my experience. I will
just say that I was working on counterterrorism for a number of
years before
9/11. I have experience looking at this as both a scholar and
as a policymaker. I was a member of the President's Foreign
Intelligence Advisory Board from 2001 to 2003, so I do remember
what it was like after 9/11 and what some of the issues were at
the time. And I have had some responsibility in having to make
tough decisions on these issues from the policy side.
I submitted to the Committee a lengthy written statement
that goes into a lot of detail, which I am not going to
recapitulate in detail. Basically, the statement touches on
some reasons why I think we chose to get into a program of this
kind, just trying to step back and analyze it, because I think
in many ways this was a large collective failure in which a lot
of Americans--a lot of Americans from both parties--thought
they needed a program like this in order to protect the
country.
I think we can now judge that to have been a mistake, as
Senator Graham said in his opening statement. Therefore, it is
important, since this is a collective failure and it was a
mistake, to learn from that mistake, comprehend why we made it.
So I have a few things in the statement that go into that.
Further, I then talk about my work on these issues. As our
suspicions grew about them in the 9/11 Commission, the 9/11
Commission included a recommendation that was designed to
anticipate some of these concerns, a recommendation that the
administration ignored, which was itself an ominous sign, and
then my getting involved more directly with these issues when I
joined the State Department at the beginning of 2005.
During most of 2005, the main focus in our work to get this
to change--and by ``our work,'' I mean the work of Secretary
Rice, Legal Adviser John Bellinger, and I--in a series of
principals and deputies meetings that had been put in motion by
President Bush because he clearly wanted his advisers to re-
evaluate all these issues.
During 2005, we mainly focused hard on getting the
administration to agree to the standard the 9/11 Commission had
proposed, which is please accept the CID standard. The CID
standard is an acronym that stands for ``cruel, inhuman, and
degrading.'' In other words, please accept that we are going to
have all our intelligence programs covered by this basic
provision of the law of armed conflict, which is codified in
various ways, including in our domestic law, I believe, through
the Federal war crimes statute.
By the end of 2005, those efforts had been successful. The
various battles that went on are detailed in my statement,
including a couple of documents that reflect the positions that
I adopted, along with the Deputy Secretary of Defense and
others, that give you some illustration of the way we were
making these arguments in June and July of 2005. By December of
2005, that battle had been won, both because of internal work,
but also because of the McCain amendment. It was clear that the
CIA and the Government were going to have to accept a CID
compliance analysis. Thus, by early 2006, there was no way for
the administration to avoid the need to re-evaluate the CIA
program against a CID standard.
The work of the NSC deputies that I was involved in
intensified. The OLC had guarded against the contingency of a
substantive CID review in its May 30, 2005, opinion. OLC had
held that even if the standard did apply, the full CIA program,
including waterboarding, complied with it--that is, the full
CIA program, including waterboarding, did not violate
proscriptions against cruel, inhuman, and degrading treatment.
The OLC view also meant, in effect, that the McCain
amendment was a nullity. It would not prohibit the very program
and procedures Senator McCain and his supporters thought they
had targeted.
So with the battle to apply the standard having been won,
my colleagues and I at the State Department then had to fight
another battle over how to define the standard's meaning. That
meant coming to grips with OLC's substantive analysis.
OLC contended that these subjective terms, like ``cruel''
or ``humane,'' should be interpreted in light of the well-
developed and analogous restrictions found in American
constitutional law. Therefore, to challenge OLC's
interpretation, it was necessary to challenge the Justice
Department's interpretation of U.S. constitutional law. This
was not easy since OLC is the authoritative interpreter of such
law for the executive branch of the Government.
Many years earlier, I had worked in this area of law. It
seemed to me that the OLC interpretation of U.S. constitutional
law in this area was strained and indefensible in a whole
variety of ways. My view was that I could not imagine any
Federal court in America agreeing that the entire CIA program
could be conducted and it would not violate the American
Constitution.
While OLC's interpretations of other areas of law were well
known to be controversial, I did not believe my colleagues had
ever heard arguments challenging the way OLC had analyzed these
constitutional protections. Further, the OLC position had
implications way beyond the interpretation of international
treaties. If the CIA program passed muster under an American
constitutional compliance analysis, then, at least in
principle, a program of this kind would pass American
constitutional muster even if employed anywhere in the United
States on American citizens. We will reflect on that for a
moment.
So I distributed my memo analyzing these legal issues to
other deputies at one of our meetings in February 2006. I then
took off to the Middle East on other work. When I came back, I
heard the memo was not considered appropriate for further
discussion and that copies of my memo should be collected and
destroyed. That particular request, passed along informally,
did not seem proper and I ignored it. This particular memo has
evidently been located in State's files and is being reviewed
for declassification.
The broader arguments over the future of the CIA program
went on for months, even though the old program had effectively
been discontinued.
Internal debate continued into July of 2006 after the
Hamdan decision, culminating in several decisions by President
Bush. Accepting positions that Secretary Rice had urged again
and again, the President set the goal of closing the Guantanamo
facility, deciding to bring all the high-value detainees out of
the black sites and move them toward trial, seek legislation
from the Congress that would address these developments, and
defend the need for some continuing CIA program but one that
would comply with relevant law. And President Bush announced
those decisions on September 6, 2006.
I left the Government at the end of 2006 and returned to
the University of Virginia. Secretary Rice and Mr. Bellinger
remained deeply involved in these issues for the following 2
years, working for constructive change. But, in sum, the U.S.
Government over the past 7 years adopted an unprecedented
program in American history of coolly calculated dehumanizing
abuse and physical torment to extract information. This was a
mistake--perhaps a disastrous one. It was a collective failure
in which a number of officials and Members of Congress and
staffers of both parties played a part, endorsing a CIA program
of physical coercion, even after the McCain amendment was
passed and even after the Hamdan decision.
Precisely because this was a collective failure, it is all
the more important to comprehend it and learn from it. For
several years, our Government has been fighting terrorism
without using these extreme methods. I can comment on that both
worldwide and in Iraq. We have been doing this under
international standards for years.
Now, we face some serious obstacles in defeating al Qaeda
and its allies, and we could be hit again, and hit hard. But
our decision to respect international standards does not appear
to be a hindrance in this fight. In fact, if the U.S. regains
higher ground in the wider struggle of ideas, our prospects in
a long conflict will be better. Others may disagree. They may
believe that recent history, even since 2005, shows that
America needs an elaborate program of indefinite secret
detention and physical coercion in order to protect the Nation.
The Government and the country needs to decide whether they are
right. If they are right, our laws must change, and our country
must change. I think they are wrong.
[The prepared statement of Mr. Zelikow appears as a
submission for the record.]
Chairman Whitehouse. Thank you, Mr. Zelikow.
Our next witness is Professor Jeffrey Addicott, an
Associate Professor of Law and the Director of the Center for
Terrorism Law at St. Mary's University School of Law in San
Antonio, Texas. In 2000, he retired from the U.S. Army Judge
Advocate Generals Corps after 20 years of service specializing
in human rights law and national security law. Professor
Addicott holds a Doctor of Juridical Science and a Master of
Laws from the University of Virginia School of Law--we seem to
be populating the place today--and Juris Doctor from the
University of Alabama School of Law. The new Ranking Member of
the Judiciary Committee would be very pleased.
Professor Addicott.
STATEMENT OF JEFFREY F. ADDICOTT, PROFESSOR, DIRECTOR, CENTER
FOR TERRORISM LAW, ST. MARY'S UNIVERSITY SCHOOL OF LAW, SAN
ANTONIO, TEXAS
Mr. Addicott. Thank you, sir. Just for the record, I am a
full professor now, but even though I am from Alabama, I am
going to try to talk fast because I have got 5 minutes.
The purpose of this testimony is to provide information
from a legal perspective on the issue of ``enhanced
interrogation practices'' used on certain al Qaeda operatives
by CIA interrogators during the Bush administration as approved
by the subject legal memorandums. In the context of the
approved interrogation methodologies, the primary concern is
associated with the CIA's use of ``waterboarding.'' My full
testimony, of course, is in the record.
Since the al Qaeda detainees are not entitled to prisoner
of war status----
Chairman Whitehouse. Professor, if you intend to read
rapidly, even that will not work with 16 pages of testimony. I
think you will have to make some measure to summarize.
Mr. Addicott. Well, let me just do it off the cuff, then.
You know, the Torture Convention is the primary international
document that we are looking at here in the context of how we
are measuring what these CIA memos refer to. And when the
United States signed the Torture Convention, we had certain
reservations in there, and we said that we understood that, in
order to constitute torture, an act must specifically intend to
inflict severe physical or mental pain or suffering and that
mental pain or suffering refers to prolonged mental harm.
The memorandums looked at the issue of torture, of course,
and the word ``torture'' rolls off the tongue with great ease;
but you have to recognize that not every alleged incident of
interrogation or mistreatment necessarily satisfies the legal
definition of ``torture.'' It is imperative that one view such
allegations with a clear understanding of the applicable legal
standards set out in law and judicial precedent. In this
manner, allegations or claims of illegal interrogation
practices--e.g., waterboarding--can be properly measured as
falling above or below a particular legal threshold. In my
legal opinion, the so-called enhanced interrogation practices
detailed in the subject legal memorandums did not constitute
torture under international law.
Why do I say that? There are very few international cases
that really stand on point when you look at this issue. Perhaps
the leading case, though, in the Anglo-Saxon tradition is the
European Court of Human Rights Ruling of Ireland v. United
Kingdom. By an overwhelming majority vote of 16-1, the Ireland
court found certain interrogation practices--called the ``five
techniques''--utilized by British authorities to investigate
suspected terrorism in Northern Ireland to be ``inhumane and
degrading,'' i.e., ill-treatment, but not torture, by a vote of
13-4. These five techniques, let me just describe for the
Committee what some of them were.
One of them was wall-standing. They forced the detainees to
stand for periods of hours in a stress position described as
``spread-eagled against the wall, with their fingers put high
above their head against the wall, the legs spread apart and
the feet back, causing them to stand on their toes with the
weight of the body mainly on the fingers.'' Wall-standing was
practiced for up to 30 hours with occasional periods for rest.
The British authorities also engaged in hooding, where they
placed a dark hood over the head of the detainee, again, for
prolonged periods of time--days.
They subjected the detainees to noise in a room where there
was continuous loud and hissing noise for prolonged periods of
time.
They deprived them of sleep for prolonged periods of time.
They deprived them of food and drink, reducing the food and
drink to suspects pending interrogations.
Now, to the reasonable mind, considering the level of
interrogation standards set out in the Ireland case, the
conclusion is clear. Even the worst of the CIA techniques
authorized by the DOJ legal memorandums--waterboarding--would
not constitute torture; the CIA method of waterboarding appears
similar to what we have done hundreds and hundreds of times to
our own military special operations soldiers in military
training courses on escape and survival.
I was also in the military for 20 years. I was a senior
legal adviser for all the Green Berets in the world, so I am
very familiar with the concept of waterboarding.
If you look at the Ireland case and use a fortiori logic,
if you look at what they did in the Ireland case--and that
court said that is not torture; they said it is ill treatment--
then even the worst of what we have done, that level is going
to be way below the Ireland standard. So, therefore, my legal
conclusion based on the Ireland case is that we have not
engaged in torture.
Another international case is the Public Committee case
that comes out of the Supreme Court of Israel, which also
looked at harsh interrogation tactics.
In conclusion, those who order, approve, or engage in
torture must be criminally prosecuted. If we conclude, in fact,
that we did engage in torture--in other words, that we are
going to ignore the Ireland precedent and say, yes, our people
engaged in torture--there is no way out of this. We have to
prosecute under the Torture Convention those that approved it,
those that authorized it, and those that carried it out. We
cannot say on the one hand, yes, we engaged in torture, and not
do anything. We are violating international law if we do that.
On the other hand, if we conclude that the techniques did not
rise to the level of torture, which I argue, then we are under
no international obligation to prosecute those individuals
under the Torture Convention.
Thank you.
[The prepared statement of Mr. Addicott appears as a
submission for the record.]
Chairman Whitehouse. Thank you very much, Professor
Addicott.
Our next witness, our penultimate witness, is Professor
Turner, who is the Associate Director of the University of
Virginia's Center for National Security Law. I promise we did
not set this up as a University of Virginia day.
He is the former Chair of the American Bar Association's
Standing Committee on Law and National Security, a veteran of
the Reagan administration, and a former National Security
Adviser to Senator Robert P. Griffin, a member of the Senate
Foreign Relations Committee. Professor Turner received his B.A.
from Indiana University and a J.D. and S.J.D. from the
University of Virginia. He is the author or editor of more than
a dozen books and monographs on national security issues, and
we welcome him to the Committee.
Professor Turner.
STATEMENT OF ROBERT TURNER, PROFESSOR, CENTER FOR NATIONAL
SECURITY LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
CHARLOTTESVILLE, VIRGINIA
Mr. Turner. Good morning, Mr. Chairman, and members of the
Committee. I am honored to be here. Like most JAG officers I
have dealt with, Senator Graham got these issues exactly right
from the beginning. I would like to associate myself with his
statement. And I am tempted just to stop there because mine is
probably not going to be as good as his, but I will continue.
Shortly after the story of abusive treatment of detainees
first broke, I was going on a short vacation with my 14-year-
old son, driving down Interstate 64, when my cell phone rang.
It was Voice of America wanting a comment on the story of the
abusive techniques. And my comment was: ``It appears that some
good people have made some very bad decisions.''
I have been a very strong critic of waterboarding and other
abusive techniques. I co-authored an article in the Washington
Post entitled ``War Crimes and the White House'' in July of
2007. I served with pride on the drafting committee for the
Executive Order barring torture and inhumane treatment. Indeed,
one of my suggestions was ``torture'' is not the controlling
international standard. Under international law, we are bound
by Common Article 3 of all four 1949 Geneva Conventions. That
standard is that all detainees are entitled to humane
treatment, so spending a lot of time deciding whether something
is torture or not misses the point that we have a much higher
duty in our treatment of detainees.
Some of the things that have been done since then have made
me furious, to the point of wanting to kick a wall or
something. But I continue to believe that the people who made
these tragic decisions were decent, honorable, and able. They
were also frightened for their fellow Americans and anxious to
do everything within their power to prevent the next 9/11
attack.
Now, some may think that good people cannot do bad things.
I would remind those people that on February 19, 1942,
President Franklin Roosevelt issued Executive Order 9066 that
ordered the detention and incarceration of more than 100,000
Americans without probable cause, judicial sanction, or the
slightest individualized suspicion of wrongdoing. Most of those
detained were U.S. citizens. Many of them had been born in this
country and never even visited Japan. Their crime was to have
Japanese ancestors.
Today, we see this as one of the most outrageous abuses of
civil liberties since the end of slavery. And yet it was
strongly supported at the time, not only by the President but
by California Attorney General Earl Warren, who later earned a
reputation as perhaps the most liberal Chief Justice of the
Supreme Court of the 20th century.
Another well-known civil libertarian involved in that case
was Justice Hugo Black, who wrote the Court's majority opinion
in the Korematsu case that upheld the detention as lawful. How
could so many good and able people give their support to such a
horrible policy? Indeed, one of the few people to speak out
against this was J. Edgar Hoover of the FBI, interestingly.
They did this because they were frightened, and they
desperately wanted to prevent another Pearl Harbor. And I would
submit that the OLC lawyers--I have met one of them two or
three times at conferences, but I do not know any of them
well--acted from precisely the same motive: they wanted to save
the lives of their fellow Americans.
The title of this hearing is ``What Went Wrong.'' Part of
the problem, I believe, is a general ignorance of some of the
fundamental details of national security law, not only at OLC
but elsewhere in the government and, indeed, throughout the
legal profession. In my prepared testimony, I give several
examples where the country has been divided because of
misunderstandings about very basic principles of international
law. The Third Geneva Convention provides that prisoners of war
are to be tried by military courts, not civilian courts, but
this was not well known, and so people got very unhappy over
proposals for military tribunals.
How could bright lawyers fail to understand that Common
Article 3 applies? Again, it sets the standard of humane
treatment. I think it is not that hard to understand why.
Common Article 3 applies to armed conflicts ``of a non-
international character.'' Well, what the OLC people said was,
well, there are at least 75 countries involved in this war in
one way or another against al Qaeda. The Authorization for the
Use of Military Force, approved by Congress in October of 2001,
clearly authorized the use of force against foreign nations.
Again, the sugestion of an international armed conflict.
It is not unreasonable to conclude that this was an
international conflict, but without a sovereign state on the
other side, the better view--and the view accepted by the
Supreme Court in the Hamdan case--is that is not the best
interpretation; that is to say, common Article 3 does apply.
Common Article 3 states further that in non-international
armed conflicts, it applies to conflicts occurring ``in the
territory of one of the high contracting parties.'' Now, you
can interpret that to mean that a conflict that occurs in the
territory of more than one state is not covered by Common
Article 3. Al Qaeda was global in its scope. It attacked us
inside the United States, in Saudi Arabia, Yemen, Kenya,
Tanzania and so forth. So it was not difficult, I think, for
non-experts to look at this language and say common Article 3
does not apply. I think they were horribly wrong, but I do not
think it was an evil decision.
There seems to be an overwhelming consensus in which I
share that waterboarding crosses both the humane treatment and
the torture line. I have a dear colleague who is very outraged
at all of this, who refers to it as ``torture lite,'' and I
think that is probably a good description. It is not comparable
to what was done to our POWs in Vietnam. It is not comparable
to the maiming and the branding and the dismemberment that has
gone on through history. But it is wrong. It should not have
happened. And the most important thing is to make sure it does
not happen again.
Let me turn to what we do now about those who made these
decisions. The Republicans came to power in Washington in 1953.
They controlled the White House and both Houses of Congress. To
the best of my knowledge and recollection, no one demanded a
``truth commission'' to go after the ghost of FDR or Justice
Hugo Black or Governor Earl Warren. They understood that good
people, fearful for the safety of their fellow Americans,
trying to stop the next attack, made some very bad decisions.
And I think that is what has happened here.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Turner appears as a
submission for the record.]
Chairman Whitehouse. Thank you, Professor Turner. It sounds
as if you would agree with the observation of the old French
Minister Talleyrand that ``the greatest danger in times of
crisis comes from the zeal of those who are inexperienced.''
[Mr. Turner nods affirmatively.]
Chairman Whitehouse. I will take a moment now to recess
very briefly so that the necessary security measures for Mr.
Soufan can be put into place. The witnesses can remain in their
seats. It will just take a second to clear some of the cameras
out of the front of the well.
[Pause.]
Chairman Whitehouse. Thank you. Ali Soufan is the Chief
Executive Officer of the Soufan Group LLC, an international
strategic consultancy firm that advises governments and
corporations on policy, strategy, security, risk management,
and training. More significantly for our purposes, he is a
former FBI supervisory special agent who investigated and
supervised highly sensitive and complex international terrorism
cases, including the attack on the USS Cole and the events
surrounding 9/11.
Mr. Soufan has received numerous awards and commendations
for his counterterrorism work. These include the Director of
the FBI's Award for Excellence in Investigation, the Respect
for Law Enforcement Award for relentless pursuit of truth and
bringing terrorist subjects before the bar of justice, and a
commendation from the U.S. Department of Defense that labeled
him ``an important weapon in the ongoing war on terrorism.''
Mr. Soufan is an honors graduate from Mansfield University
of Pennsylvania where he received undergraduate degrees in
international studies and political science. He is a magna cum
laude graduate of Villanova University where he received a
Master of Arts in international relations and appears to have
no connection to the University of Virginia.
[Laughter.]
Chairman Whitehouse. Mr. Soufan, thank you for being with
us.
STATEMENT OF ALI SOUFAN, CHIEF EXECUTIVE OFFICER, THE SOUFAN
GROUP LLC, NEW YORK, NEW YORK
Mr. Soufan. Thank you, sir. Mr. Chairman, Committee
members, thank you for the opportunity to appear before you
today. I know that each one of you cares deeply about----
Chairman Whitehouse. Could you speak up, and clearly, with
the microphone near you so that everybody can hear? Without the
ability to see you, it is even more important that you be
heard.
Mr. Soufan. Mr. Chairman, Committee members, thank you for
the opportunity to appear before you today. I know that each
one of you cares deeply about our Nation's security. It was
always a comfort to me during the most dangerous of situations
that I faced, from going undercover as an al Qaeda operative,
to tracking down the killers of the 17 U.S. sailors murdered on
the USS Cole, that those of us on the frontline had your
support and the backing of the American people. So I thank you.
The issue that I am here to discuss today--interrogation
methods used to question terrorists--is not, and should not be,
a partisan matter. We all share a commitment to using the best
interrogation method possible that serves our national security
interests and fits within the framework of our Nation's
principles.
As an FBI agent, I spent much of my career investigating
and unraveling terrorist cells around the globe. I have had the
privilege of learning and working alongside some of the most
dedicated and talented individuals from the FBI and other law
enforcement, military, and intelligence agencies.
I was the Government's main witness in both of the trials
we have had in Guantanamo Bay so far, and I am currently
helping the prosecution prepare for future ones.
From my experience, I strongly believe that it is a mistake
to use what has become known as enhanced interrogation
techniques, a position shared by professional operatives,
including CIA officers who were present at the initial phases
of the Abu Zubaydah interrogation. These techniques from an
operational perspective are slow, ineffective, unreliable, and
harmful to our efforts to defeat al Qaeda.
An example of a successful interrogation is that of an al
Qaeda terrorist known as Abu Jandal. In the immediate aftermath
of 9/11, together with my partner----
Chairman Whitehouse. Let me interrupt just for one moment
to ask unanimous consent that the 302s that were developed in
the investigation of Abu Jandal be made a part of the record. I
believe this is the first time they have been fully
declassified.
Please proceed. Without objection.
Mr. Soufan. In the immediate aftermath of 9/11, together
with my partner Special Agent Robert McFadden, a first-class
agent from the Naval Criminal Investigative Service, we
obtained a treasure trove of highly significant actionable
intelligence that proved instrumental in the war effort against
al Qaeda and Taliban in the fall of 2001. It included extensive
information on everyone from Osama bin Laden's network and
modus operandi to details on individual operatives, some of
them we later apprehended.
The approach we used was completely by the book, and it can
be labeled as the ``informed interrogation approach.'' It is
outlined in the Army Field Manual and is derived from the
cumulative experiences, wisdom, and successes of the most
effective operatives from our country's military, intelligence,
and law enforcement community.
The approach is based on leveraging our knowledge of the
detainee's mindset, vulnerabilities, and culture, together with
using intelligence already known about him. The interrogator
uses a combination of interpersonal, cognitive, and emotional
strategies to extract the information needed. If done
correctly, this approach works quickly and effectively because
it outsmarts the detainee using a method that he is not trained
nor able to resist.
The Army Field Manual is not about being soft. It is about
outwitting, outsmarting, and manipulating the detainee. The
approach is in sharp contrast with the enhanced interrogation
method that instead tries to subjugate the detainee into
submission through humiliation and cruelty. The idea behind it
is to force the detainee to see the interrogator as the master
who controls his pain. It is merely an exercise in trying to
force compliance rather than elicit cooperation.
A major problem is that it is ineffective. Al Qaeda
terrorists are trained to resist torture. As shocking as these
techniques are to us, their training prepares them for much
worse--the torture that they would receive if caught by
dictatorships for example. In a democracy, however, there is a
glass ceiling the interrogator cannot breach, and eventually
the detainee will call the interrogator's bluff. That is why,
as we see from the recently released DOJ memos on
interrogation, the contractors had to keep requesting
authorization to use harsher and harsher methods. In the case
of Abu Zubaydah, that continued for several months, right until
waterboarding was introduced. And waterboarding itself had to
be used 83 times, an indication that Abu Zubaydah had already
called his interrogators bluff. In contrast, when we
interrogated him using informed interrogation methods, within
the first hour we gained important actionable intelligence.
The technique is also unreliable. We do not know whether
the detainee is being truthful or just speaking to mitigate his
discomfort. The technique is also slow. Waiting 180 hours as
part of a sleep deprivation stage is time we cannot afford to
waste in a ticking bomb scenario.
Just as importantly, this amateurish technique is harmful
to our long-term strategy and interests. It plays into the
enemy's handbook and re-creates a form of the so-called Chinese
Wall between the CIA and the FBI. It also taints sources, risks
outcomes, ignores the end game, and diminishes our moral high
ground.
My interest in speaking about this issue is not to advocate
the prosecution of anyone. Examining a past we cannot change is
only worthwhile when it helps guide us toward claiming a
future, a better future that is yet within our reach.
For the last 7 years, it has not been easy objecting to
these methods when they had powerful backers. I stood up then
for the same reason I am willing to take on critics now,
because I took an oath swearing to protect this great nation. I
could not stand by quietly while our country's safety was
endangered and our moral standing damaged.
I know you are motivated by the same considerations, and I
hope you help ensure that these grave mistakes are never,
never, made again.
Thank you.
[The prepared statement of Mr. Soufan appears as a
submission for the record.]
Chairman Whitehouse. Thank you, Mr. Soufan.
Let me, now that we are in the questioning period, begin
with questions to you, and let me ask you more specifically
about the interrogation of Abu Zubaydah, again reminding you
not to divulge any information that is classified.
You were present--indeed, you were one of the first, if not
the first, interrogators present when Abu Zubaydah was brought
into custody for the first time outside of Pakistan. Correct?
Mr. Soufan. Yes, sir.
Chairman Whitehouse. And your testimony indicates that
within the first hour of your interrogation of him, you had
gained important actionable intelligence. Is that correct?
Mr. Soufan. Yes, sir.
Chairman Whitehouse. At that point, his condition was such
that you indicated that we had to take him to a hospital or he
would die. But at the hospital, you continued your questioning,
and it was during your questioning of him at the hospital that
you elicited information regarding the previously unknown role
of Khalid Sheikh Mohammed as the mastermind of the 9/11
attacks.
Mr. Soufan. Correct, sir.
Chairman Whitehouse. One of the more significant pieces of
intelligence information we have ever obtained in the war on
terror. Correct?
Mr. Soufan. It is one of them, yes, sir.
Chairman Whitehouse. And all of this happened before the
CIA CTC team and the private contractors arrived. Correct?
Mr. Soufan. Yes, sir.
Chairman Whitehouse. And then they arrived, and immediately
you say on the instructions of the contractor, harsh techniques
were introduced, which ``did not produce results as Abu
Zubaydah shut down and stopped talking.'' Correct?
Mr. Soufan. Correct, sir.
Chairman Whitehouse. And with that happening, you knew he
had good information. He had shut down under the harsh
techniques, and so you again were given control of the
interrogation. Correct?
Mr. Soufan. Yes, sir.
Chairman Whitehouse. And you used the same techniques you
had originally, which were within the Army Field Manual.
Mr. Soufan. Yes, sir. It was me, another FBI agent who was
with me, and a top CIA interrogator. So the interrogation team
was a combination of FBI and CIA officials, and all of us had
the same opinion that contradicted with the contractor.
Chairman Whitehouse. And in this third interview, the one--
or series of interviews, anyway, the one before the hospital,
one in the hospital, and then one after the first round of
harsh interrogation when you were brought back, was in the
second round pursuant to appropriate tactics that Abu Zubaydah
disclosed the details of Jose Padilla, the so-called dirty
bomber. Correct?
Mr. Soufan. Yes, sir.
Chairman Whitehouse. And then, again, the contractor
reasserted himself and began reimplementing harsh techniques
and, again, Abu Zubaydah shut down and stopped producing
information. Is that correct?
Mr. Soufan. Yes, sir.
Chairman Whitehouse. And once again you were brought back
in to interrogate him. Now it was more difficult because some
of these harsh techniques had been applied and his resistance
was increased, but eventually you succeeded and you re-engaged
again. But at that point, the contractor took over and began
stepping up the notches of his experiment to the point where
you protested to your superiors in the FBI that this was
becoming inappropriate, illegal. I believe you even
threatened----
Mr. Soufan. I think my description was----
Chairman Whitehouse [continuing].--To arrest somebody if
you were to stay there. Correct?
Mr. Soufan. Yes, sir. My description was ``borderline
torture.''
Chairman Whitehouse. And at that point, your participation
in his interrogation ended.
Mr. Soufan. Yes. We were asked by Director Mueller to leave
the facility.
Chairman Whitehouse. So when you look at the Office of
Legal Counsel opinion of May 30, 2005, on page 10, here is what
the Office of Legal Counsel said was the fact: ``Interrogations
of Zubaydah, again, once enhanced techniques were employed,
furnished detailed information regarding al Qaeda's
organizational structure, key operatives, and modus operandi,
and identified KSM as the mastermind of the September 11th
attacks. You have informed us that Zubaydah also provided
significant information on two operatives, including Jose
Padilla, who planned to build and detonate a dirty bomb in the
Washington, D.C., area.''
From your position at the actual interrogation of Abu
Zubaydah, you know that statement not to be true.
Mr. Soufan. Yes, sir.
Chairman Whitehouse. On September 6, 2006, President Bush
stated the following: ``Within months of September 11, 2001, we
captured a man named Abu Zubaydah. We believed that Zubaydah
was a senior terrorist leader and a trusted associate of Osama
bin Laden. Zubaydah was severely wounded during the firefight
that brought him into custody, and he survived only because of
the medical care arranged by the CIA. After he recovered,
Zubaydah was defiant and evasive. He declared his hatred of
America. During questioning, he at first disclosed what he
thought was nominal information and then stopped all
cooperation. We knew that Zubaydah had more information that
could save innocent lives, but he stopped talking. As his
questioning proceeded, it became clear that Zubaydah had
received training on how to resist interrogation, and so the
CIA used an alternative set of procedures.
Does that statement by the President accurately reflect the
interrogation of Abu Zubaydah?
Mr. Soufan. Well, the environment that he is talking about,
yes, he was injured and he needed medical care, but I think the
President--my own personal opinion here based on my
recollection is that he was told probably a half-truth.
Chairman Whitehouse. And repeated a half-truth, obviously.
His statement as presented does not conform with what you know
to be the case from your experience on hand.
Mr. Soufan. Yes, sir.
Chairman Whitehouse. I am over my time.
Senator Graham.
Senator Graham. Well, since there is just the two of us, if
you want to keep going.
Thank you, Mr. Chairman. What we have got is four lawyers
who are very bright. All have one thing in common: they like
Virginia. And I counted seven opinions among you. I think two
of you disagree with yourselves somewhere along the line. And
the point is that you are very bright. I appreciate you coming.
And, Mr. Soufan, thank you for serving our country.
Mr. Soufan. Thank you, sir.
Senator Graham. And I appreciate your view of how we should
behave. The point that we are trying to make as we go forward
is that we get this right, and as we look back in the past, we
do not want to shade this one way or the other unnecessarily.
Is it your testimony that enhanced interrogation techniques
that were employed right after 9/11 yielded no good
information?
Mr. Soufan. I can only speak about my own personal
experience.
Senator Graham. That is the point, isn't it?
Mr. Soufan. Yes.
Senator Graham. And I admire you. I really do. I really
appreciate what you are doing.
And, Mr. Chairman, I think there is some information out
there that shows that enhanced techniques did yield good
information, and I would like that to be part of this inquiry
if we are going to have it.
But having said that, Mr. Soufan, I appreciate what you are
telling us. Were you involved in the KSM interrogation at all?
Mr. Soufan. No, sir. After my stand in the Abu Zubaydah----
Senator Graham. Okay.
Mr. Soufan. And what I believed is right----
Senator Graham. No, I don't----
Mr. Soufan [continuing].--Out of the program.
Senator Graham. I do not doubt that at all, and I do not
doubt that you are trying to help the country. I am just saying
that this idea that no good information was acquired is
probably not accurate. But that does not justify what we did.
That is all I am saying.
Now, as to the Geneva Convention, Mr. Turner--I appreciate
the compliment, by the way. The Geneva Convention to me has
always been a warehousing agreement between the signatory
nations. We catch some of your guys, we are going to treat them
well, and we expect like reciprocity. We catch a civilian, we
are going to treat them well until the conflict is over. Is
that generally the goal of the Geneva Convention?
Mr. Turner. Senator, that is exactly the term that I use in
teaching about the Geneva Convention. If you go back through
history, the original practice was to put captured enemy
soldiers to the sword. Somebody got smart and said, ``Hey, we
can turn them into slaves.'' They played around briefly with
paroling them, which is to say, ``Okay, go back to your flock
or your farm, do not come back to the battlefield,'' and the
king or the prince said ``Get your tail back on the
battlefield.'' And so they finally said, ``Look, let's not kill
them, let's just warehouse them, treat them humanely, feed
them, when the war is over we will trade prisoners.'' And that
has been the practice for several hundred years.
Senator Graham. And isn't the problem in this war that, No.
1, al Qaeda is not a signatory to the Convention. The only way
we are going to stop this enemy from attacking us to find good
information and hit them before they hit us.
Mr. Turner. Again, that is right out of my prepared
testimony.
Senator Graham. I have never taken your class, by the way,
but I am liking it so far.
Mr. Turner. Unlike any war we have ever had, this war is 90
percent, if not more, intelligence. Usually you need your
intelligence service to identify the location of the enemy and
their plans, and then you send your tanks, your armor, your
aircraft carriers.
In this battle, a good police department could arrest al
Qaeda if we can find them and know what they are doing. So
intelligence is incredibly important.
Senator Graham. Mr. Addicott, we are the only Nation that I
know of that considers al Qaeda operatives a military threat.
Every other nation looks at this through the law enforcement
prism. Is that true? Does everyone agree with that?
Mr. Zelikow. No, sir. I do not think that is the case any
longer.
Senator Graham. Okay. What nation has adopted the enemy
combatant theory?
Mr. Zelikow. We have actually been engaged in international
conferences on just this point with our key allies for about
the last 4 years. I helped initiate that.
Senator Graham. Is there any country that holds a detainee
under the theory of the law of armed conflict?
Mr. Zelikow. They do not hold detainees under that theory,
but partly it is because other countries are holding them under
that theory.
Senator Graham. Well, my point is that we do hold people
under the theory of the law of armed conflict. Have you ever
been to an interrogation conducted by the Spanish police?
Mr. Zelikow. I have not had that rare privilege, sir.
Senator Graham. Well, I have. Have you ever been to an
interrogation conducted by the Carboneri in Italy?
Mr. Zelikow. Neither have I.
Senator Graham. Do you believe, Mr. Turner, that these
interrogations are Common Article 3 compliant?
Mr. Turner. No, sir.
Senator Graham. There is no law enforcement agency in the
world dealing with terrorism interrogates in a Common Article 3
manner, because you cannot say ``Hello'' firmly under Common
Article 3. I just want the world to understand--and my time is
up--that the reason we have adopted a different theory is very
important because I think we are at war, and the people we are
prosecuting did not rob a liquor store. They are an ongoing
military threat. And the odd thing about this is if you go down
the military law of armed conflict, in many ways you restrict
your ability to get information versus the law enforcement
model. But I think that is the right model to have.
With that, I will yield to you. It is just the two of us.
Take any time----
Chairman Whitehouse. Let us go back and forth.
Senator Graham. Yes.
Mr. Turner. I agree, Senator, just for the record.
Senator Graham. I mean, we have got to figure this out as a
world, not just a nation. Right, Philip?
Mr. Zelikow. Absolutely. In fact, it is a coalition fight.
We need coalition standards for the fight. And one reason we
are having this discussion is let us work on standards that
will also be interoperable with our allies.
Senator Graham. Right.
Chairman Whitehouse. One other question I wanted to pursue
about the interrogation of Abu Zubaydah. There was obviously
considerable conflict between one side that was achieving
significant actionable information, so significant that when
the Jose Padilla information became available, as I recall, the
Attorney General of the United States had a press conference in
Moscow to trumpet it, and the other method which was producing
a shutdown, if you will, on the part of the detainee. And it
has been often cast as the difference between the trained
professionals of the CIA versus the amateurish military
interrogators, teenagers who need the Army Field Manual sort of
for their training wheels, and law enforcement investigators
who are constrained by Miranda and other things and, therefore,
cannot be serious interrogators.
It strikes me from your description that two elements of
that framing of the issue are wrong. First of all, it seems
very well that military and law enforcement investigators are
actually the trained professionals. You refer to the other
group as ``amateurish Hollywood type.'' And the second is that
the division was not between the CIA and the FBI. You had CIA
professionals who were with you and wanted to continue. And on
the other side of the equation was a private contractor who was
not even a Government employee.
Could you comment on those observations?
Mr. Soufan. Yes, sir. It has been reported that it was a
conflict during the interrogation between the FBI and CIA. I
totally disagree with this assertion, and that is something
that I mentioned in my----
Chairman Whitehouse. At the field level, at least.
Mr. Soufan. Field level.
Chairman Whitehouse. At the point of the interrogation,
yes.
Mr. Soufan. Yes. And that is why I supported the CIA
officers in my op-ed in the New York Times on this issue. They
were 100 percent supportive. Actually, the chief psychologist
of the CIA, a forensic psychologist, objected to these
techniques, and he even left the location before I did. Their
top interrogator was 100 percent, I think, in sync with our
view, with the FBI view, because he is a professional
interrogator.
I think this technique using the harsh methods or using the
enhanced interrogation methods misunderstands the threat that
we face from ideological Islamic extremists like al Qaeda. And
countries around the world, in the Middle East, who actually
use these techniques as regularly as possible, have now pedaled
away from these techniques when it comes to the terrorists of
al Qaeda and Islamic extremists. They are ideologically
motivated. They are expecting a lot to happen to them when they
get caught. And the best way to deal with them is to be smart
and to engage with them. And that is what provided a lot of
actionable intelligence, before 9/11 and after 9/11. And, you
know, in a classified session, we can actually talk about a lot
of the successes versus the failures of these techniques.
One of the things that has been mentioned about this
technique, the successes that have been talked about publicly
are Padilla and Khalid Sheikh Mohammed. Well, waterboarding was
not approved until August 1, 2002. Padilla, after an
international manhunt in three countries, was finally arrested
after he landed from Switzerland to the Chicago airport on May
8, 2002--almost 3 months before these techniques were imposed.
We knew about Khalid Sheikh Mohammed in April of 2002. Again,
waterboarding was not approved until August 1st of 2002.
So I am basing my opinion here on two things: from my
recollection of the facts--I do not have any notes. I am just
having my memory on these facts and what happened.
Chairman Whitehouse. Understood.
Mr. Soufan. That is number one.
No. 2, I am basing on what I have been hearing in the
public domain what had been classified.
Chairman Whitehouse. I am going to turn to Senator Durbin.
I have just a few seconds left. I just want to drop in one
question to Professor Luban during this round. That is, in your
review of the OLC memos, was there any mention of the role of
private contractors?
Mr. Luban. I do not recall any specific mention of private
contractors.
Chairman Whitehouse. I do not recall it either, and it
would seem that that might raise legal issues. It is
interesting that that would be a fact in the lengthy, lengthy
OLC opinions that never appears to have surfaced.
Mr. Luban. Well, I agree, Senator. And I should add that I
was also very troubled by the chronology that Mr. Soufan just
mentioned because when Mr. Bradbury was writing the opinion and
wrote that the capture of Jose Padilla resulted from enhanced
interrogation techniques, it was already public information
that Padilla had been captured in May and the techniques were
not approved until August. So the legal opinion that he wrote
stipulates something that was publicly known to be untrue.
Chairman Whitehouse. Yes, he did not have to have special
knowledge to know that that assertion in the OLC opinion was
false. Correct?
Mr. Luban. That is correct.
Chairman Whitehouse. Senator Durbin.
Senator Durbin. Thank you very much, Mr. Chairman, for this
hearing.
Mr. Zelikow, you have had fascinating assignments, working
as counselor for Secretary of State Rice and serving as
Executive Director of the 9/11 Commission. And I would like to
ask you if you could amplify a little bit on what has been
characterized as disclosures to leaders in Congress about
interrogation techniques. I served on the Intelligence
Committee of the Senate for 4 years and found myself constantly
in a frustrating position of being told classified information
and being warned not to breathe a word of it to the public at
large for fear that it would endanger the lives of people who
were helping the United States.
Chairman Whitehouse. Or, if I might add, Senator Durbin,
our colleagues, in some cases our staff.
Senator Durbin. Yes. And so there were times when, frankly,
I wanted to walk right out of the Senate Intelligence Committee
room and call a press conference and say, ``If America only
knew.''
Now, when I have said that on the floor before, people have
said to me, ``I don't get it. Aren't you supposed to say what
you believe is true no matter what?'' Well, I think you know
better. You know that there are limits to sharing information,
particularly when it might endanger someone's life.
So when Members of Congress were briefed of this, was it
before the fact? Were they being asked to authorize these
techniques and give their approval?
Mr. Zelikow. Sir, I think Senator Feinstein mentioned SSCI
is apparently really trying to break down the chronology. The
Office of the Director of National Intelligence has been
publicizing chronologies of briefings, which then need to be
matched up against when we were actually doing things. And so
the honest answer is I do not know whether folks were briefed
before the fact.
Formally, what is supposed to happen is a memorandum of
notification is prepared that lets key Members of Congress know
that a program is being undertaken with the authorization of
the President pursuant to some prior Presidential finding. And,
therefore, Members of Congress are being informed that pursuant
to this finding we are now doing certain things.
Senator Durbin. After the fact?
Mr. Zelikow. It could be after the fact. It should be at
the time the program is initiated and before the program is
implemented so that it appears that you are taking the
congressional consultation seriously, which the administration
should.
Senator Durbin. And I recall only one instance where a
Member--in this case, Senator Rockefeller--was briefed on the
wiretap situation, and in his frustration, maybe desperation,
hand-wrote a letter to file about protesting this, which did
not surface until much later. But it was the only way that he
could create tangible evidence of his displeasure or
disapproval of what was happening.
I raise this because I have spoken to Senator Rockefeller,
and I think now he was duty-bound by the law and by his
conscience not to make disclosures of classified information,
and yet felt that there was something here that was worthy of
at least being on the record, as crude as his method was. I
raise this because many people seem to be suggesting that if
Members of Congress at the highest level are informed, that
they are somehow complicit. And I have not seen that. I have
seen specific limitations on that information when it is given
to me in the Senate Intelligence Committee and, by reference,
from leaders when they are briefed.
Do you understand the difference here?
Mr. Zelikow. I think I do, and as I have listened to both
sides of this argument, I step away from this with some
concern. I will tell you on the inside, when I was arguing--we
were having heated arguments about these policies on the inside
in the White House Situation Room, and the argument would often
be deployed against me and my colleagues that, well, we briefed
the following Members of Congress--name, name, name, name,
name--and they do not have a problem with it.
So, in other words, these briefings are being used actually
to deal with arguments on the inside of the administration, yet
I hear what you are saying and what other Members of Congress
have said. And so I have to ask myself: Does the Congress think
that the oversight process that accompanies these programs is
working to their satisfaction?
Senator Durbin. Well, the answer from me, after 4 years'
experience on the Senate Intelligence Committee, it is not even
close. Not even close. I mean, there were times when, you know,
you wanted to express your disapproval, and there was no means
to do it. If you were privy to the most important information,
there was no means.
I just have a few seconds left, if I might. I would like to
ask Mr. Zelikow his opinion on the notion of closing down the
Guantanamo facility. Do you believe that is a good decision?
Mr. Zelikow. Yes, sir. In fact, Deputy Secretary of Defense
Gordon England and I wrote a paper suggesting that the
President announce his determination to close that facility in
June 2005.
Senator Durbin. I am aware of one detainee represented by
an attorney in Chicago who was advised by e-mail--after 6 years
of incarceration, he was advised by e-mail there were no
charges against him--and this was 15 months ago--and that he
could be released. He is still at Guantanamo. And it is an
indication to me of a serious miscarriage of justice. And there
are many now arguing to, I guess, maintain Guantanamo. I cannot
imagine, after President Bush and President Obama have made
these statements publicly and reached that same conclusion,
that that is their position.
But what do you think would be the consequence if we kept
Guantanamo open at this point?
Mr. Zelikow. When I was on the inside, I would make the
argument sometimes that Guantanamo has now become as much
symbol as substance. I could ask people here, Has anyone here
ever heard of the Federal correctional institution at Marion?
Senator Durbin. I have. It is in my State.
Mr. Zelikow. But everyone in America has heard of Alcatraz.
One reason Alcatraz was closed was because it had become a
symbol as much as a substance of a particular kind of facility.
Then we basically created super-max facilities that were at
least maybe just as tough as Alcatraz in some ways that no one
has really heard of. And it does not become the same focal
point of controversy in the same way.
Guantanamo had become in world public opinion a toxic
problem for the United States of America. And so we needed to
address that as an issue in our foreign policy.
Senator Durbin. Do you have any doubt in your mind that if
the decision is made that any of these prisoners of Guantanamo
would be transferred to Federal correctional institutions that
they could be held safely and securely?
Mr. Zelikow. Sir, we hold people who are far more dangerous
in such institutions, including quite dangerous terrorists like
Ramzi Yousef, who is currently residing in a super-max facility
inside the United States now.
I will also add that when we--I have had the opportunity on
behalf of one of the Federal judges who has been working
through the habeas petitions to be asked to examine classified
files and provide expert advice on holding these folks. And one
of the things that strikes me now and struck me then is we have
a vast amount of experience in how to judge the continued
incarceration of highly dangerous prisoners since we do this
with thousands of prisoners every month all over the United
States, including some really quite dangerous people. We
routinely make these decisions, and for better or worse, we
have worked out a lot of ways of deciding how to make those
calls. And I think that that is a whole body of knowledge that
actually has not been tapped very well in making judgments
about how long you can incapacitate a really pretty broad
spectrum of people at Guantanamo, many of whom do not show
large signs of future dangerousness.
Senator Durbin. Thank you very much.
Thank you, Mr. Chairman.
Chairman Whitehouse. Senator Graham.
Senator Graham. Mr. Zelikow, what is the recidivism rate
regarding the people who have been released from Guantanamo
Bay? Do you know?
Mr. Zelikow. There are no reliable statistics on the
recidivism rate. What we do know is that some number of people
who have been released have been encountered again on the
battlefield. Numbers range--dozens, perhaps, of people who have
been released have been encountered again. And so as with--that
is an important----
Senator Graham. Would that be a miscarriage of justice?
Mr. Zelikow. Not necessarily.
Senator Graham. What if it were your son or daughter that
was killed by one of these guys? How would you feel about it?
Mr. Zelikow. I would feel the same way I would if a parole
board had released someone from a prison and then that person
committed a crime. That problem happens all over the country,
and we are pretty familiar with it. And sometimes----
Senator Graham. Is there a difference between KSM and a guy
that robbed a liquor store?
Mr. Zelikow. I beg your pardon?
Senator Graham. Is there a difference between KSM and a
domestic criminal?
Mr. Zelikow. There sure is, sir, and I think----
Senator Graham. And the only reason I mention it--I
generally agree with you. The only reason I mention that is we
have got to understand there are two sides to this story. There
is very much two sides to this story, and we need to move on
and get it right. We need a facility somewhere--Senator Durbin
has left. I do not take by his examination that he is
volunteering Illinois as the housing site. And I am not going
to ask my friend from Rhode Island would he take these people,
because if you are waiting for a Member of Congress to stand up
and say, ``Bring them to my State,'' you are going to be
waiting until hell freezes over, because nobody is going to do
that.
But I do believe we need to close Guantanamo Bay. I do
believe we can handle 100 or 250 prisoners and protect our
national security interests, because we had 450,000 German and
Japanese prisoners in the United States. So this idea that they
cannot be housed somewhere safely, I disagree. But the decision
to put them somewhere is very important. It needs to be well
thought out. And the idea that you have to let these people go
or try them, I completely disagree with that.
Mr. Turner, how do you believe about that?
Mr. Turner. Well, I was going to suggest a correction for
the record. Senator Durbin was talking about somebody being
held for years without being charged. As you well know----
Senator Graham. That is----
Mr. Turner [continuing].--The theory of a POW is he is
being warehoused, he is not considered a wrongdoer. Now, if he
has committed a war crime or murdered someone as a prison, you
charge him and try him. But international law does not require
that military combatants be charged to be detained. Indeed, you
mentioned the 400,000-plus mostly German POWs we had in more
than 40 States during World War II. Two or three of them got to
courts briefly because they claimed American citizenship. They
were quickly sent back. None of them got a day in court. They
did not get a lawyer. You know, the theory of POWs is they are
not wrongdoers; they are enemy soldiers who had the misfortune
of falling into the hands of their enemy. You warehouse them
and then you send them home. If they have committed crimes, you
have the option of charging them and trying them, but you are
not supposed to keep them in a civilian prison, and you are not
supposed to try them in a civilian court.
Senator Graham. That is exactly right. Now, the point that
we are trying to make, Mr. Turner and myself, is that when a
member of al Qaeda is captured, all of them are not subject to
war crime trials simply by their status. But if an independent
judiciary agrees with the military and the CIA that the person
is, in fact, the evidence supports the decision that you are a
member of al Qaeda, an enemy combatant, a military threat,
there is no requirement under military law to let people go. Do
you agree with that, Mr. Addicott?
Mr. Addicott. Yes, I mean, part of the premise here, if we
are not using the law of war, we have done a lot of illegal
stuff. If we are operating under the law of war, we are doing
what we perfectly do in every war. In my opinion, closing down
Gitmo is a mistake. It is a propaganda victory for our enemies
because we are saying to the world we have something to
apologize for, we are hold these people illegally, we are
torturing them--which has never occurred at Gitmo. And that is
the exact opposite message that we should be sending. We are in
a state of war with these people. If you are trying to stop
them at the airport, you are too late.
Senator Graham. Right. Well, I agree with that, but I agree
with Mr. Zelikow that it is an image problem. See, this is why
we need to move on. I mean, the moral high ground, Mr.
Addicott, is the place to be. The only way we are going to
persuade people on the fence to come our way is to show a
difference between us and our enemy.
Now, I do not want to treat these people with kid gloves,
but I want to--do you agree with this concept, that once we
capture an enemy combatant, it becomes about us, not them.
Mr. Addicott. I think, you know, if we detain that
individual under the law of war--and that is an issue that we
have not made----
Senator Graham. But we will do things that they will not do
to us, and that is good.
Mr. Addicott. Oh, absolutely. I mean, we----
Senator Graham. That is a good thing.
Mr. Addicott. Absolutely.
Senator Graham. That we will treat them better than they
will treat us.
Mr. Addicott. Exactly. And that is why my testimony is--the
propaganda here is that we have tortured people is a lie. We
have tortured no one.
Senator Graham. See, I--if I may just for a moment here,
waterboarding at the time of 2002, it was not clear what law it
violated. The Geneva Convention did not apply until 2006----
Chairman Whitehouse. That would depend what case you read.
Senator Graham. Yes, well, here is what I am saying. The
difference between law enforcement and intelligence gathering
is a big difference. And what you would do to a military
member, an MP who abused a detainee, would be a violation of
the UCMJ. The CIA or the FBI, you are not controlled by the
UCMJ, are you, Mr. Soufan?
Mr. Soufan. No.
Senator Graham. Was your interrogation Common Article 3
compliant?
Mr. Soufan. Not after 9/11. We get instructions that we do
not read people, for example, their Miranda rights; we do not
follow with a lot of things that we used to do, after 9/11,
when it comes----
Senator Graham. I would say that there is no FBI
interrogation of a high-value target Common Article 3 compliant
simply because Common Article 3 was written to make sure that
military forces do not abuse civilians. It was never written to
restrict the ability of a nation to defend itself. And we have
made a huge mistake here. We have made two big mistakes. We
adopted interrogation techniques from the Inquisition that have
survived time because in some cases they do work, Mr. Soufan,
but they always come back to bite you.
So I will turn it over now to the Chairman, and hopefully
we will find some way to move forward here.
Mr. Luban. Senator, may I comment on something that the
other witnesses have said?
Chairman Whitehouse. Very briefly.
Mr. Luban. First, I do not agree that everybody in
Guantanamo is an enemy combatant. We do know that there have
been a number of people that the CSRTs have already cleared of
being enemies of the United States.
Senator Graham. Right. I agree with that.
Mr. Luban. They are still being held there.
Second, I do not agree that people have not been tortured
in Guantanamo. I think that it is very clear that Mohamed al-
Kahtani was. As was made, I think, perfectly clear in the
Schmidt Report, four of the tactics that were used on al-
Kahtani later surfaced to worldwide consternation----
Senator Graham. Should President Bush be prosecuted for
authorizing these techniques?
Mr. Luban. Sir, I do not have any opinion about who should
be prosecuted for what was done to al-Kahtani.
Chairman Whitehouse. Well, I have suggested there are too
many opinions on that going around. We have prosecutors who
look at that stuff professionally, and we should let them do
their jobs.
Mr. Zelikow, you have described the reaction to your
report, and Senator Graham serves with great distinction on the
Armed Services Committee, which has done a report of its own.
Without objection, I would ask that 119 to 128, those pages of
the report, be admitted into the record. And, selectively, I
can report from that that there was a great deal of
disagreement with the OLC analysis and serious concerns and
objections over some of the legal conclusion reached by OLC;
that the Navy General Counsel Alberto Mora called the OLC memo,
relied on by the working group in 2003, ``profoundly in error
and a travesty of the applicable law''; that now Rear Admiral
Dalton likewise said that, ``To the extent that the working
group report relied on the OLC memo, it did not include what I
consider to be a fair and complete legal analysis of the issues
involved.''
There was a chart that was created based on the OLC
opinion, and the result of that chart, it had a sort of ``green
means go'' column for techniques that were authorized. Real
Admiral Dalton again, ``That green column was absolutely wrong
legally. It was embarrassing to have it in there. Most, if not
all, working group members and judge advocates general
disagreed with significant portions of the OLC opinion but were
forced to accept it.''
``At Mr. Hain's direction,'' the report continues, ``Ms.
Walker instructed the working group, instructed them to
consider the OLC memorandum as authoritative and directed that
it supplant the legal analysis being prepared by the working
group action officers.''
You in your testimony, Mr. Zelikow, said that when your
alternative views, if you will, were made known, you heard that
the memo was not considered appropriate for further discussion,
to use your phrase, and that copies of your memo should be
collected and destroyed.
What do those behaviors tell you about the environment for
proper legal debate and discussion about this question at the
highest levels of the administration?
Mr. Zelikow. It told me that the lawyers involved in that
opinion did not welcome peer review of their conclusions and,
indeed, would shut down challenges from peers even inside the
Government.
Chairman Whitehouse. Lawyers love to debate. It is our
nature to quarrel with each other and to exchange views. Is
there any suggestion that you would draw that they were less
than perfectly confident in their views when they were not
willing to subject them to peer review? That is ordinarily
viewed as the test of confidence in one's judgments.
Mr. Zelikow. Well, the arguments I was making were pretty
profound, because if I was right, their whole interpretation of
the CID standard was fundamentally unsound and raised really
quite grave issues about their interpretation of constitutional
law.
Now, they have a couple of options there. One option is
either they or the NSC Legal Adviser or the White House Counsel
is to say, ``Gee, let's take another look at this. The case law
you cite has some merit. We will take another look.''
Or they could say, ``Zelikow, boy, this shows how rusty you
are in practicing law. We need to set you straight and tell you
why you have just fundamentally misunderstood this whole area
of the law.''
They did not do either of those things. Instead, what they
preferred to do was, C, ``We do not want to talk about it.''
Chairman Whitehouse. Thank you very much.
I am going to ask a question of Professor Luban. Then I am
going to give the distinguished Ranking Member some time, and
then I think the hearing is already a bit over time, and I have
a plane to catch to an important engagement. So I will make a
closing statement after that.
My question for you, Professor Luban, has to do with the
Lee decision, a Texas decision. I note that Professor Addicott
did not cite it in his opinion, despite the fact that he is
from Texas and it was a Texas decision. I do not know if we
have the diagram, but Lee describes waterboarding and describes
it as ``torture'' over and over again. Here is a picture of the
actual pages of the Federal Reporter highlighting the U.S.
Department of Justice prosecution about all the times in which
the court refers to this technique as ``torture.''
And what is astonishing to me is that in 93 pages where
they dig out Medicare reimbursement law as relevant, they do
not find a case on point or they do not discuss a case on point
in which one of the highest courts in the land, the United
States Court of Appeals for the Fifth Circuit, describes
waterboarding and called it repeatedly--I think it is 12 times
in the opinion--``torture.''
I have pressed the Department of Justice on this question
because I think it is unimaginable. I have discussed this on
the Senate floor. I have pursued it in hearings. Attorney
General Mukasey's response was that it was not relevant because
it was brought under the Civil Rights Act, and a case brought
under the Civil Rights Act does not relate to a case brought
under the torture statute or under the Convention Against
Torture. And at that time, I was out of time, and I did not
have the chance to follow up. But I would like your legal
opinion on that, because it strikes me that the Civil Rights
Act under which Sheriff Lee was prosecuted, convicted, and
jailed for the crime of waterboarding has no substantive
elements of its own. It is a vehicle for enforcing
constitutional requirements and for punishing constitutional
violations. So that the Civil Rights Act leads directly, with
no interference from the statutory point of view, directly to
constitutional standards of torture.
If you look at the Convention Against Torture and what OLC
itself said about it, the definition of that treaty obligation
is also founded, according to OLC itself, directly in the
constitutional standards of the United States. And to the
extent that the statute against torture applies, it is
impossible for Congress by statute to overrule the
Constitution. And so as a matter of fundamental law, the
statute criminalizing torture cannot create a definition of
torture that narrows the constitutional definition.
So it seems to me that wherever you go with this, all roads
lead to Rome. Rome is the Constitution, and what it says about
torture, and that the distinction that is drawn is yet another
false device thrown out there to confuse and distract from the
fundamental fact that they either missed the case on point or
they found it, hated it, and did not bother to put it in the
memo. And I guess we will find out from the OPR which it was.
But what are your comments on this, Professor Luban?
Mr. Luban. Senator, I agree with your diagnosis of it. Now,
the Lee case was decided in 1983. That was before the
Convention----
Chairman Whitehouse. Under President Reagan. This was
charged by the Department of Justice of President Reagan.
Mr. Luban. That is correct. It preceded the Convention
Against Torture and the torture statutes, so it is not
surprising that it did not mention these because they did not
exist yet.
The word ``torture'' was not defined eccentrically or in a
way to change its meaning in the Torture Convention or the
torture statutes. It is roughly severe mental or physical pain
or suffering.
I took the liberty of looking at dictionary definitions of
torture from around--the dictionaries that would have been
available to the court that was writing the Lee opinion, and
that is more or less the same definition that you find in the
Oxford English Dictionary edition at that time. So the word had
not mysteriously changed its meaning.
The torture statute and the Torture Convention were giving
the words very, very common-sense, everyday, non-technical
meanings, and what is striking about the Lee case is that the
court just used the word again and again and again as if it was
obvious that this technique of leaning the guy back in the
chair, putting the towel over his face, pouring the water on
until he thought he was suffocating and started jerking and
twitching--they had no problem calling it ``torture.'' The word
means exactly the same thing in the dictionary definitions of
1983 as the definition in the treaty and the statutes that
followed. So there is absolutely no reason in the world that we
should think that the fact that it was decided as a
constitutional case rather than a torture statute case would
have led to a different outcome.
Chairman Whitehouse. Thank you, Professor Luban.
Senator Graham.
Senator Graham. Thank you.
Professor, would it be torture to put a spider in the jail
cell of a person who was afraid of spiders?
Mr. Luban. Conceivably. If that person was afraid----
Senator Graham. I need a black-and-white, yes-or-no answer.
Mr. Luban. You know, it depends on whether the person
believes----
Senator Graham. We believe the person in the jail cell was
part of a terrorist organization who had information about an
impending attack, and we know he is afraid of spiders. Would
you say that if we put a spider in the jail cell that we would
torture that person?
Mr. Luban. I would not. There is one circumstance in which
the answer would be yes--that is, if he knew or believed--if it
was known that he believed that spiders are deadly, because
part of the torture statute says that you can inflict mental
pain and suffering that is torture by threatening death to
someone if it causes mental----
Senator Graham. Isn't the point to it----
Mr. Luban. To an ordinary person, no.
Senator Graham. Okay. Well, we are trying to exploit
phobias here without--Mr. Addicott has a different view of what
happened here in terms of torture. Do you think he is unethical
if he arrives at a different view of what happened here?
Mr. Luban. I think that he--I do not think that he is
unethical for arriving at a different view. I think he would be
unethical if he ignored the relevant law and told you that----
Senator Graham. Have you ever met Mr.----
Mr. Luban [continuing].--His official legal opinion was----
Senator Graham. Have you ever met Mr. Bybee?
Mr. Luban [continuing].--That it was not torture.
Senator Graham. Have you ever met Mr. Bybee?
Mr. Luban. I have never met him.
Senator Graham. Have you met any of these people?
Mr. Luban. I met----
Senator Graham. So you are basing----
Mr. Luban [continuing].--John Yoo once.
Senator Graham. You are basing your opinion because they
did not cite a case that you think is dispositive, they are a
bunch of crooks? I mean, is that what this comes down to, your
opinion that no reasonable lawyer could write a memo and
exclude this case without being unethical? Is that what you are
telling this Committee?
Mr. Luban. This case is just one example out of many. I
think that no reasonable lawyer could discuss the commander-in-
chief power----
Senator Graham. How could Mr. Addicott----
Mr. Luban [continuing].--And not cite Youngstown.
Senator Graham. How could Mr. Addicott come to a completely
different conclusion about the common definition of torture and
not be unethical?
Mr. Luban. Well, Senator, I cannot speak for Mr. Addicott,
but----
Senator Graham. Well, let him speak for himself.
Mr. Luban [continuing].--I will--I would be happy to
mention that the Ireland case that he leaned his opinion on is
not the only European court case on the meaning of torture----
Senator Graham. Well, the fact that you did not tell me
about the Ireland case----
Mr. Luban [continuing].--There are subsequent cases that
have called, for example, for hosing somebody down with water--
--
Senator Graham. Mr. Luban, the fact that----
Mr. Luban [continuing].--Torture.
Senator Graham. Please. The fact that you did not tell me
about the Ireland case, can I assume that you were trying to
hide something from me?
Mr. Luban. Sir, I am not writing an opinion that is binding
on----
Senator Graham. Why doesn't it work both----
Mr. Luban [continuing].--The entire executive branch----
Senator Graham [continuing].--Ways?
Mr. Luban [continuing].--Of Government.
Senator Graham. Well, you are telling the Nation what is
wrong and what is right, and he has told me about a case that I
did not even know about that suggests that the techniques in
question have been looked at by an international body, and the
ones that we used are less severe than the ones that were found
not to be torture, and you did not tell me about it. Did you
know about it?
Mr. Luban. Sir, I am not telling you what is right and
wrong. I am telling you----
Senator Graham. Did you know about the case?
Mr. Luban [continuing].--What is ethical and unethical
conduct----
Senator Graham. Did you know about the case?
Mr. Luban [continuing].--By a lawyer.
Senator Graham. Did you know about the case, the Ireland
case?
Mr. Luban. Of course I did.
Senator Graham. Well, you know what? I do not think you are
unethical.
Mr. Luban. Thank you. I greatly appreciate that, and my----
Senator Graham. Mr. Addicott.
Mr. Addicott. I have also got some further bad news for Mr.
Soufan, who I respect very greatly in his interrogation work.
If you look at the 2003 Supreme Court case of Chavez v.
Martinez, you have an identical set of facts here. You had an
individual that was interrogated while in an emergency room. He
had been shot five times in the face by a police official, and
Justice Stevens said that that practice was torture. Now, thank
goodness he was in the minority----
Senator Graham. This hearing is bordering on----
Mr. Soufan. Can I respond to----
Mr. Addicott. Thank goodness he was in the minority in that
case, because Justice Clarence Thomas, of course, rendered----
Chairman Whitehouse. Professor Addicott, wouldn't it depend
on--you are not suggesting that it is torture to interview
somebody in a hospital?
Mr. Addicott. That is what Justice Stevens suggested in
Chavez v. Martinez in----
Chairman Whitehouse. So it is your opinion as a law
professor that Chavez v. Martinez stands for the proposition
that it is torture for law enforcement to ever question a
suspect in a hospital?
Mr. Addicott. My opinion is that Stevens was wrong, but I
am just saying that is what Stevens' opinion was.
Chairman Whitehouse. You think it stands for the
proposition that Stevens would oppose any interrogation of any
criminal defendant in a hospital?
Mr. Addicott. That is what he said in his opinion, page 10
of my testimony.
Mr. Soufan. Can I respond, please, to some of those
assertions.
First, the timeline that was criticized before, the memo
that----
Senator Graham. Excuse me. We will let you explain, but I
have got a few questions, then you can say anything you want,
because you are a great American.
Mr. Soufan. Okay. Thank you.
Senator Graham. Now, about the interrogation of this
suspect, do you know a gentleman named John K-I-R-I-A-K-O-U?
Mr. Soufan. Me?
Senator Graham. Yes.
Mr. Soufan. No, I do not know him.
Senator Graham. Okay. He gave an interview--he is a retired
CIA officer, and he said Abu Zubaydah--is that the guy's name?
Mr. Soufan. Yes.
Senator Graham. Did I say it right? He said that they
waterboarded the guy and he broke within 35 seconds.
Mr. Soufan. Is this question for me, sir?
Senator Graham. Yes.
Mr. Soufan. Well, last week, he retracted that and he said
he was misinformed, and actually he was not at the Abu Zubaydah
location.
Senator Graham. Okay. So he just----
Mr. Soufan. He retracted that, yes, sir. That is one of the
things that was mentioned before.
Senator Graham. Right, right.
Mr. Soufan. And now we know it is 83 times, not 35 seconds.
Senator Graham. Now, do you believe that any good
information was obtained through harsh interrogation
techniques? Can you say that there was no good information?
Mr. Soufan. Well, from what I know on the Abu Zubaydah, I
would like you to evaluate the information that we got before--
--
Senator Graham. Well, the Vice President is suggesting that
there was good information obtained, and I would like the
Committee to get that information. Let's have both sides of the
story here.
One of the reasons these techniques have survived for about
500 years is apparently they work.
Mr. Soufan. Because, sir, there are a lot of people who do
not know how to interrogate, and it is easier to hit somebody
than outsmart them.
Senator Graham. I understand that you believe you got it
right and you know how to do it and these other people do not.
I understand. I understand that. In many ways, I agree with
you. But this idea that you are the complete knowledge of what
happened in terms of interrogation techniques and what was
gained is not accurate. Your testimony is not a complete
repository of what happened during these interrogation
techniques of high-value targets. There are other
interrogations going on, and there is an allegation made that
these interrogations yielded information that protected
Americans. If we are going to talk about it, let's talk about
it in complete terms.
Chairman Whitehouse. And to be fair to the witness,
Senator, I think he has not represented himself----
Senator Graham. No, and I do not think----
Chairman Whitehouse.--as anything more than somebody who
can----
Mr. Soufan. I mentioned my own personal experience.
Chairman Whitehouse.--that arose from the----
Senator Graham. Right, and I have nothing but the----
Chairman Whitehouse.--interrogation of Abu Zubaydah.
Senator Graham.--highest regard for this gentleman. I just
know this is not it. This is not the whole story. And the point
is, Do we need to keep doing this? I think we have cleaned up
this mess. We have got it right, generally speaking. And the
more we get into this, the more we are going to make it
chilling for the next group of people who are asked to defend
this Nation, and that leads me to my last question.
Do you believe it would be wrong for President Obama to
authorize a technique outside the Army Field Manual if the CIA
told him they had a high-value target that they believe
possesses information about an imminent attack?
Mr. Soufan. I believe that they should ask other
professional interrogators to evaluate----
Senator Graham. I am telling you what the----
Mr. Soufan.--that detainee.
Senator Graham. Do you believe that the CIA--do you think
Leon Panetta is qualified for his job?
Mr. Soufan. Well, I believe he is extremely qualified for
his job. I did not agree with a lot----
Senator Graham. Let me tell you, these--I am going to read
something to you.
Chairman Whitehouse. If we are going to get into the
qualifications of Panetta.
Senator Graham. Yes, this is important, though.
Mr. Soufan. Right.
Senator Graham. Ron Wyden asked him, ``If a person has
critical threat information, urgent information, and you need
to be able to secure that information,'' he asked Panetta,
``What would you do? ''
``In that particular situation that you mentioned, where
you have someone who could be a ticking time bomb and it is
absolutely necessary to find out what information that
individual has, I think we would have to do everything
possible, everything possible within the law to get that
information. If we had a ticking time bomb situation, obviously
whatever was being used I felt was not sufficient, I would not
hesitate to go to the President of the United States and
request whatever additional authority I would need. But
obviously I will again state that I think this President would
do nothing that would violate the laws that were in place.''
Having said----
Chairman Whitehouse. Wrap it up. I am sorry.
Senator Graham. Okay. Wrap it up. Would the President of
the United States, President Obama, be wrong in considering a
request from the CIA to engage in interrogation techniques
beyond the Field Manual but that yet were lawful?
Mr. Soufan. Sir, from the quote that you read, the key word
in it from Director Panetta, ``within the law.'' Within the
law, yes, the President can authorize whatever----
Senator Graham. Right. Is the Army Field Manual the
complete law on what is----
Mr. Soufan. No. It is an outline for interrogations.
Senator Graham. Thank you.
Chairman Whitehouse. All right. Thank you all very much. I
appreciate----
Mr. Soufan. Can I--can I just----
Chairman Whitehouse. I am sorry. I have to end the hearing.
I have a plane that I cannot miss, and I just want to wrap up
by adding the following statements into the record: from Mike
Ritz, a former U.S. military interrogator; from Peter Shane, a
professor at Ohio State University, Moritz College of Law; from
Colonel Steve Kleinman, U.S. Air Force Reserve, a professional
interrogator; from Matthew Alexander, a professional
interrogator in the U.S. Air Force Reserve and author of ``How
to Break a Terrorist''; from Elisa Massimino of Human Rights
First; the Senate Armed Services Committee report I think I
already put into the record; and the testimony of Michael
Stokes Paulson.
I would like to close with the words of Matthew Alexander
from his statement. ``As an interrogator in Iraq, I conducted
more than 300 interrogations and supervised more than 1,000. I
led the interrogations team that located Abu Musab al-Zarqawi,
the former leader of al Qaeda in Iraq and one of the most
notorious mass murderers of our generation. At the time that we
killed Zarqawi, he was the No. 1 priority for the United States
military, higher than Osama bin Laden. I strongly oppose the
use of torture or abuse as interrogation methods for both
pragmatic and moral reasons.''
``There are many pragmatic reasons against torture and
abuse. The first is the lack of evidence that torture or abuse
as an interrogation tactic is faster or more efficient than
other methods. In my experience, when an interrogator uses
harsh methods that fit the definition of abuse, in every
instance that method served only to harden the resolve of the
detainee and made them more resistant to interrogation.''
``The second pragmatic argument against torture and abuse
is the fact that al Qaeda used our policy that authorized and
encouraged these illegal methods as their No. 1 recruiting tool
for foreign fighters. While I supervised interrogations in
Iraq, I listened to a majority of foreign fighters state that
the reason they had come to Iraq to fight was because of the
torture and abuse committed at both Abu Ghraib and Guantanamo
Bay. These foreign fighters made up approximately 90 percent of
the suicide bombers in Iraq at that time. In addition to
leading and participating in thousands of attacks against
coalition and Iraqi forces, it is not an exaggeration to say
that hundreds, if not thousands, of American soldiers died at
the hands of these foreign fighters. The policy that authorized
and encouraged the torture and abuse of prisoners has cost us
American lives.''
``I deployed to the war with four other Air Force special
agents with experience as criminal investigators. We brought
with us skills and training that were unique compared to our
Army counterparts. We learned to interrogate criminal suspects
using relationship building and non-coercive police
investigative techniques. I learned quickly that al Qaeda has
much more in common with criminal organizations than with
traditional rank-and-file soldiers. I used techniques permitted
by the Army Manual under the terms psychological ploys, verbal
trickery, or other non-violent or non-coercive subterfuge to
great success, and I taught these techniques to other members
of my interrogation team.''
``I also want to address the so-called ticking time bomb
scenario that is so often used as an excuse for torture and
abuse. My team lived through this scenario every day in Iraq.
The men that we captured and interrogated were behind Zarqawi's
suicide bombing campaign. Most of our prisoners had knowledge
of future suicide bombing operations that could have been
prevented with the quick extraction of accurate intelligence
information. What works best in the ticking time bomb scenario
is relationship building, which is not a time-consuming effort
when conducted by a properly trained interrogator and non-
coercive deception.''
``Contrary to popular belief, building a relationship with
a prisoner is not necessarily a time-consuming exercise. I
conducted point-of-capture interrogations in Iraqi homes,
streets, and cars, and I discovered that in these time-
constrained environments where an interrogator has 10 or 15
minutes to assess a detainee and obtain accurate intelligence
information, relationship building and deception were again the
most effective interrogation tools. It is about being smarter,
not being harsher.''
``When I took the oath of office as a military officer, I
swore to uphold and defend the Constitution of the United
States of America, which specifically prohibits cruelty toward
any person in the Eighth Amendment. In addition, torture and
abuse are inconsistent with the basic principles of freedom,
liberty, and justice upon which our country was founded. George
Washington during the Revolutionary War specifically prohibited
his troops from torturing prisoners. Abraham Lincoln prohibited
Union troops from torturing Confederate prisoners. We have a
long history of abiding by American principles while conducting
war.''
``I can offer no better words than those of General George
C. Marshall, the orchestrator of the Allied victory in Europe
during World War II, who stated, `Once an army is involved in
war, there is a beast in every fighting man which begins
tugging at its chains. A good officer must learn early on how
to keep the beast under control, both in his men and in
himself.' ''
``We are smart enough to effectively interrogate our
adversaries, and we should not doubt our ability to convince
our detainees to cooperate. American culture gives us unique
advantages that we can leverage during interrogations--
tolerance, cultural understanding, intellect, and ingenuity.''
``In closing, the same qualities that make us great
Americans will make us great interrogators.''
I had planned longer remarks, but given the hour, I think I
will conclude with those words, which are very helpful, and I
would add for the record pages from a book called ``Camp 020,''
describing the techniques employed by British Military
Intelligence when the Nazi threat loomed over their country,
presumably a threat at least equal to the threat of al Qaeda to
our country, and their findings, among other things, that
violence in interrogations is inappropriate. For one thing, it
is the act of a coward; for another, it is unintelligent.
Senator Graham. Well, thank you, Mr. Chairman. Maybe we
will end this hearing with some agreement. If we are talking
about do I agree with what the--was it the lieutenant that you
read, the statement?
Chairman Whitehouse. Michael Alexander.
Senator Graham. Yes. I mean, I generally agree with that. I
have been a military lawyer all my life. I believe in the
Geneva Convention. I believe that the moment we capture
somebody, the obligation falls upon us to abide by the
Convention. And if you do not want to live by the Convention,
get out of it.
Now, there are people who have a different view. There are
people, quite frankly, Mr. Soufan, that if we called as
witnesses would probably graphically describe what they did and
the information they received gave us knowledge about the enemy
we would not have had otherwise.
Chairman Whitehouse. I am terribly sorry to have to do
this.
Senator Graham. Can I----
Chairman Whitehouse. Yes.
Senator Graham. Okay.
Chairman Whitehouse. What I would like to do is to close
the hearing at the conclusion of Senator Graham's remarks.
There is a week to add any testimony that anybody wishes. I
cannot miss this plane. I apologize very much.
Senator Graham. You go.
Chairman Whitehouse. You have the floor, and at the
conclusion of your remarks, the hearing is over.
Senator Graham. [Presiding.] Thank you. They will not be
long. Go to the airport, and you will get screened, but that is
good.
Now, the point that I am trying to make is that how you
come down on this situation does not mean you are unethical and
it does not make you a criminal. I have always believed that
when you engage in harsh interrogation techniques like
waterboarding, eventually it comes back to bite you. And it
has. It is just not, I think, necessary to win the war.
But the people who were devising these interrogation
techniques right after 9/11 were not criminals. They were what
you said, Mr. Turner. They were Americans who were afraid that
the next attack is on its way. And if you are going to be
balanced about this----
[Protester interrupts.]
Senator Graham. Have a good day.
If you are really going to be balanced about this, that
needs to be told, too. And we need to look forward. And Abraham
Lincoln suspended habeas corpus, OK? That is part of his
legacy, is he thought the Nation was coming apart, and he was
right. And he was trying to keep it together. A hundred
thousand Japanese Americans were put in jail for being nothing
other than Japanese. Did we go back and try anybody for that
abuse?
All I am saying is that these interrogation techniques were
shared with Members of Congress who somehow cannot remember
what they are told. And to me, that is the best evidence that
we were trying to make policy, not violate the law.
Now, Mr. Luban, I do not believe these people are
unethical. I just think they did what Mr. Turner said. They
made some mistakes out of fear. And we have learned from those
mistakes. And here is my biggest fear: that if we keep doing
this, and I bring a CIA agent in that tells the country, ``Let
me tell you what I got when I waterboarded somebody or what I
did to this person, let me tell you what I learned,'' we are
going to tear this country apart.
I agree with you, but there are other people out there who
took a different view and understood the law was subject to
different interpretations, and the British may not have
tortured people in Northern Ireland, but they turned the people
in Northern Ireland against them. That is the downside of what
they were doing. They were legally probably not torturing
people. I agree with you, Mr. Addicott. But they made a mistake
when it came to winning over the people of Northern Ireland.
And that is the point I am trying to make.
We have made mistakes in this war. We are going to make new
ones. And I do not want to take off the table for this
President the ability to do things beyond the Army Field Manual
to protect this Nation. If we restrict ourselves to the Army
Field Manual, shame on us. It is the Field Manual, written for
soldiers to make sure they do not get themselves in trouble,
not to get intelligence about the next impending attack. Isn't
that right, Mr. Turner?
Mr. Turner. I agree.
Senator Graham. It is a guide to the soldier in the field.
It was never written to be the end-all and be-all of how you
protect this Nation. And if we adopt that theory, we have made
a huge mistake and learned nothing from the past. And if we put
it online and that is the only way we can interrogate somebody,
we are stupid.
So let's don't misunderstand the mistakes of the past to
the point that we restrict ourselves in the future from being
good Americans, but understanding that we are at war. We have
put people in Guantanamo Bay that were not enemy combatants.
The net was cast too large, and some people have been put there
that should have never gone. There are some people who have
been let go that should never have been let go.
My goal is to have a process, Mr. Zelikow, that would allow
us as a Nation to hold our head up high and say no one is in
jail at Guantanamo Bay because Dick Cheney said so. The only
people that are in jail in Guantanamo Bay are there because the
evidence presented to an independent judiciary by our military
passed muster with the judicial system. They are there because
they are a military threat. And that when you try these people,
they are tried not because we hate them, but because of what
they did, and that that decision will go all the way up to the
Supreme Court for review.
There is a way to move forward. There is a way to learn
from the past. But if we look backward and we get the wrong
message, we are going to make us less safe. The message coming
from the mistakes of the past are not unilaterally surrender,
not to treat these people as common criminals, because they are
certainly not. The message from the past is when you abide by
American principles, you are stronger than your enemy. When you
go backward from those principles, it comes back to bite you.
But the principle that I am advocating is an aggressive,
forward-leaning, ``hit them before they hit us'' attitude. Find
out what they are up to. Find out where they are getting their
money and keep them on their back foot. And we can do that, Mr.
Soufan, without having to go back to the Inquisition.
Mr. Soufan. I totally agree with you.
Senator Graham. And I am so afraid that what we are doing
here today is going to chill out the legal advice to come in
the future and that we are putting men and women at risk of
having their reputations ruined in the prosecution or civil
lawsuits who did nothing but try their best to defend this
Nation.
Thank you all.
[Whereupon, at 12:35 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record.]
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