[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]


 
 TORTURE AND THE CRUEL, INHUMAN AND DEGRADING TREATMENT OF DETAINEES: 
     THE EFFECTIVENESS AND CONSEQUENCES OF `ENHANCED' INTERROGATION

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 8, 2007

                               __________

                           Serial No. 110-94

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

ARTUR DAVIS, Alabama                 TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida    MIKE PENCE, Indiana
KEITH ELLISON, Minnesota             DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia  JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel


                            C O N T E N T S

                              ----------                              

                            NOVEMBER 8, 2007

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     5

                               WITNESSES

Mr. Malcolm W. Nance, Anti-Terrorism/Counter-Terrorism 
  Intelligence Specialist, former SERE Instructor
  Oral Testimony.................................................    22
  Prepared Statement.............................................    23
Mr. Steven Kleinman, Colonel, USAFR, Intelligence and National 
  Security Specialist, Senior Intelligence Officer/Military 
  Interrogator
  Oral Testimony.................................................    28
  Prepared Statement.............................................    31
Ms. Amrit Singh, Staff Attorney, ACLU
  Oral Testimony.................................................    36
  Prepared Statement.............................................    38

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     9


 TORTURE AND THE CRUEL, INHUMAN AND DEGRADING TREATMENT OF DETAINEES: 
     THE EFFECTIVENESS AND CONSEQUENCES OF `ENHANCED' INTERROGATION

                              ----------                              


                       THURSDAY, NOVEMBER 8, 2007

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:12 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Conyers, Nadler, Scott, Watt, 
Delahunt, Davis, Wasserman Schultz, Pence, and Franks.
    Staff present: Heather Sawyer, Majority Counsel; Perry 
Applebaum, Majority Staff Director and Chief Counsel; and 
Joseph Gibson, Minority Chief Counsel.
    Mr. Nadler. Good morning. This hearing of the Subcommittee 
on the Constitution, Civil Rights, and Civil Liberties will 
come to order.
    Today the Subcommittee will conduct an oversight hearing on 
torture and the cruel, inhuman and degrading treatment of 
detainees-- the effectiveness and consequences of enhanced 
interrogation. The Chair recognizes himself for 5 minutes for 
an opening statement.
    Since news of the mistreatment and possible torture of 
detainees in U.S. custody first surfaced, Congress has debated 
and legislated on the subject of the legal and moral limits on 
interrogation tactics. We have been told, one, it is not 
torture, it is only enhanced interrogation; two, none of our 
business; three, it is legal; four, even if it is not legal, 
the President can still order it and make it legal; five, we 
have to do it to save American lives.
    Today I hope that we can begin to get to the bottom of 
these difficult and important issues. A great deal of what has 
gone on--despite this Administration's penchant for secrecy--
has become public. Methods of interrogation so appalling they 
sound like--and in some cases are--techniques pioneered by the 
Spanish Inquisition.
    This conduct is unworthy of the United States and its 
people. It is unworthy of the United States government. It 
places every American, especially every American in uniform 
around the world, at great risk.
    Does betraying our values make us safer? Do we need to do 
these terrible things in order to survive in this dangerous 
world? That has been the message we have gotten subtly and not 
so subtly.
    I have been accused on more than one occasion of trying to 
make possible another 9/11 attack, an especially terrible slur 
given that thousands of my neighbors died in the World Trade 
Center on that day in my district.
    People in nations do terrible things in war, but civilized 
nations recognized long ago that there must be limits on their 
conduct even during military conflicts. The United States 
historically has been a leader in the effort to establish and 
enforce the laws of war and conventions against torture.
    Indeed, the United States Army Field Manual is an 
outstanding example of a modern military dedicated to observing 
international norms of conduct. It is a credit to our men and 
women in uniform that they continue to abide by these rules.
    It is unforgivable that some civilians here in Washington 
seem to think that they know better, and that they need to be 
more brutal than our military and professional interrogators 
are, and that they have permission to break our laws and to 
break treaties that we have signed, and to try to keep it 
secret, because the American people and the Congress cannot be 
trusted with knowing what these people know and cannot be 
trusted with judging what these people have done in our name.
    Today we will try to get at some of the facts and look 
behind some of the more outlandish and extravagant claims. We 
have a very distinguished panel with us, and I look forward to 
their testimony.
    I yield back the balance my time.
    I would now recognize our distinguished ranking minority 
Member, the gentleman from Arizona, Mr. Franks, for his opening 
statement.
    Mr. Franks. Well, I thank you, Mr. Chairman.
    Mr. Chairman, we are here today because of an article that 
appeared in the New York Times, but nowhere in that entire New 
York Times article does it state that the confidential legal 
advice in question authorizes torture. The article simply 
describes a memo that allows what the headline characterizes as 
severe interrogations.
    On the American side of the ledger, let me be very clear, 
Mr. Chairman: Torture is illegal. Torture is banned by various 
provisions of law, including the Uniform Code of Military 
Justice in 19 U.S.C. 893 and the 2005 Senate amendment 
prohibiting the cruel, inhuman or degrading treatment of anyone 
in U.S. custody.
    In fact, the terrorist detainees at Guantanamo Bay are 
treated so well in their confinement that they have gained an 
average of 15 pounds. They have been given the best medical and 
dental care and the utmost in religious accommodation, 
including Korans and the ability to pray 5 times a day, 
undisturbed, in the direction of Mecca.
    However, Mr. Chairman, terrorists make no such reciprocal 
accommodations, either for American warfighters or innocent 
American civilians. To state the obvious, terrorist acts can 
have severe consequences, as we saw when 3,000 American lives 
were suddenly, brutally, and violently taken on September 11. 
Clearly, severe interrogations in some circumstances may be 
necessary to prevent severe consequences that involve the 
violent death of thousands of innocent Americans.
    In fact, aggressive but legal controlled interrogations 
have worked well in the past and are working now to save 
thousands of innocent American lives. Khalid Sheikh Mohammed, 
the driving force behind the 9/11 attacks, stayed quiet for 
months after his capture.
    The interrogators eventually reportedly used some version 
of what is called waterboarding on him for just 90 seconds, at 
which point he began to reveal information that helped 
authorities arrest at least six major terrorists, including 
some who were in the process of plotting the bringing down of 
the Brooklyn Bridge, bombing a hotel, blowing up U.S. gas 
stations, poisoning American water reservoirs, detonating a 
radioactive dirty bomb, incinerating residential high-rise 
buildings by igniting apartments filled with natural gas, and 
carrying out large-scale anthrax attacks.
    Yet, the New York Times article seems to fault the Justice 
Department for ``preserving the broadest possible legal 
latitude for harsh tactics.''
    Mr. Chairman, if there was ever a time for harsh tactics, 
it should be when we are using them to defend against attacks 
by bloodthirsty terrorists who are trying to kill and maim 
thousands of innocent Americans, including our families and 
children.
    The New York Times article even concedes that the tactics 
it characterizes as severe interrogation simply include 
``interrogation methods used long in training our own American 
servicemen to withstand capture.'' We use these processes to 
train our own troops.
    Furthermore, these methods are used infrequently. As the 
Administration has made clear, of the fewer than 100 terrorists 
who have gone through the interrogation program, fewer than a 
third required any special method of questioning.
    The 2005 Senate amendment prohibits persons in the custody 
or control of the United States from being ``subjected to 
cruel, inhuman or degrading treatment or punishment,'' which it 
defines as covering those acts prohibited under the fifth 
amendment, the eighth amendment and the 14th amendment to the 
Constitution.
    The New York Times article itself points out that ``relying 
on the Supreme Court finding that only the conduct that shocks 
the conscience was unconstitutional, a Justice Department legal 
opinion found that, in some circumstances, not even 
waterboarding was necessarily cruel, inhuman or degrading. If, 
for example, a suspect was believed to possess crucial 
intelligence about a planned terrorist attack.''
    Now, we do not know whether or not the Department of 
Justice legal opinion actually used the example of 
waterboarding, but the general principle expressed by the 
Justice Department alluded to in the article is that the 
Supreme Court has found that--in some circumstances--certain 
interrogation methods are not necessarily cruel, inhuman or 
degrading, if, for example, a suspect was believed to possess 
crucial intelligence about a planned terrorist attack. In such 
circumstances, harsh interrogation techniques would not 
unconstitutionally shock the conscience.
    The conclusions of the legal memoranda of the Department of 
Justice, as reported by the New York Times, were supported by 
none other than Senator Charles Schumer, Judge Michael 
Mukasey's Democratic sponsor in the Senate.
    A Senate Judiciary Committee hearing on terror policy in 
June 8, 2004, is where Mr. Schumer of New York said the 
following at a Senate Judiciary Committee hearing. He said the 
following:
    [Beginning of audio clip.]
          Mr. Schumer. We ought to be reasonable about this. I 
        think there are probably very few people in this room 
        or in America who would say that torture should never, 
        ever be used, particularly if thousands of lives are at 
        stake.
          Take the hypothetical, if we knew that there was a 
        nuclear bomb hidden in an American city and we believe 
        that some kind of torture--fairly severe, maybe--would 
        give us a chance of finding that bomb before it went 
        off, my guess is most Americans and most senators, 
        maybe all, would say, ``Do what you have to do.''
          So it is easy to sit back in the armchair and say 
        that torture can never be used, but when you are in the 
        foxhole, it is a very different deal. And I respect--I 
        think we all respect--the fact that the President is in 
        the foxhole every day.
    [End of audio clip.]
    Mr. Franks. Mr. Chairman, if Mr. Schumer's comments were 
true then, then they are true now. All that has changed is the 
politics of the day.
    Now, let me re-emphasize: Torture is illegal. The 
Congressional Research Service has also supported the 
conclusions of the Justice Department in a report that stated 
the following.
    Mr. Chairman, could I ask indulgence for 1\1/2\ more 
minutes?
    ``The types of acts that fall within cruel, inhuman or 
degrading treatment or punishment may change over time. It may 
not always be clear. Courts have recognized that circumstances 
often determine whether conduct shocks the conscience and 
violates a person's due process right.''
    Mr. Chairman, it seems that the Administration, the senior 
Democrat from New York, and the Congressional Research Service 
all agreed on the relevant principles, and yet some on this 
Subcommittee are insisting that the Justice Department hand 
over its internal strategy discussions to Al Qaeda.
    The Wall Street Journal pointed out in a recent editorial, 
``The reason to keep these internal strategy discussions secret 
is so enemy combatants cannot use them as a resistance manual. 
If they know what is coming, they can psychologically prepare 
for it. We know al-Qaeda training often involves its own forms 
of resistance training, and publicly describing the rules 
offers our enemies a roadmap to resistance.''
    I look forward to hearing from our witnesses today, but I 
must say at the outset that I believe those who would challenge 
aspects of the current practices and procedures governing 
interrogation of terrorists have an obligation to state 
explicitly exactly what sorts of interrogation techniques they 
would allow. If they cannot do that, they will have done a 
disservice to those who toil daily on the front lines of 
freedom and have to face exceedingly difficult decisions 
regarding how to best protect this country.
    Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    And I now recognize the distinguished Chairman of the full 
Committee, the gentleman from Michigan.
    Mr. Conyers. Thank you, Chairman Nadler.
    This is an incredibly important hearing. I commend the 
Chairman for bringing us together and the witnesses that are 
here.
    And I want to point out how easy it is to slip off onto 
both sides of this issue, as illustrated by my friend from 
Arizona, Trent Franks. He points out the unquestionable 
illegality of it, and then cites the distinguished Senior 
Senator from New York, Mr. Chuck Schumer, who was a Member of 
this Committee before, as if his rationale makes it possible 
for us to have it both ways.
    And that is what this hearing is about, Mr. Chairman. Now, 
it is going to be critical for us to figure out whether this is 
illegal and violates treaties, laws, we repeated it or not. And 
if it is illegal, it is impermissible.
    Now, it is a wonderful notion for us to sit here and 
speculate, by using waterboarding, we will get somebody to tell 
the truth. That is precisely what has already been established, 
is that making a person think that they are facing imminent 
death is going to make them tell the truth. It means that you 
don't have much military experience when you really believe 
that is the case, because the military experts have already 
refuted that repeatedly.
    And it also sounds a little bit like the posturing of the 
nominated position for the attorney generalship, Michael 
Mukasey, himself, who isn't even sure what waterboarding is. He 
says he knows it when he sees it, but he has to do it on a 
case-by-case basis. That is what makes the discussion here in 
this Constitution Subcommittee absolutely critical.
    I ask unanimous consent, Mr. Chairman, to add into the 
record articles from The Nation magazine, Mother Jones for the 
record that deal with the debate around this important subject.
    Mr. Nadler. Without objection.
    [The information referred to follows:]

    
    
    
    
    
    
    Mr. Conyers. And I yield back the remainder of the time.
    Mr. Nadler. I thank the gentleman.
    In the interest of proceeding to our witnesses and mindful 
of our busy schedules, I would ask other Members to submit 
their statements for the record.
    I would also like to note the presence here of Mr. Delahunt 
of Massachusetts, who is a Member of the full Committee, but 
not the Subcommittee, but who is the Chairman of a Subcommittee 
on the Foreign Affairs Committee that has been dealing with 
this Subcommittee, along with this Subcommittee, and who, along 
with me, will be introducing later today a bill on the subject 
of torture.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing at any point.
    [The prepared statement of Mr. Cohen follows:]

 Prepared Statement of the Honorable Steve Cohen, a Representative in 
 Congress from the State of Tennessee, and Member, Subcommittee on the 
            Constitution, Civil Rights, and Civil Liberties

    The use of torture for any purpose is a violation of the most 
fundamental notions of human rights and an affront to human dignity. 
Waterboarding, physical assault, sexual abuse, extended sleep 
deprivation, hooding, and binding prisoners in awkward positions 
constitute torture from any civilized society's perspective. 
Additionally, it is well-established that torture is an ineffective 
means of obtaining information, as those being tortured will often say 
whatever their interrogators want to hear just to stop the torture. 
Nonetheless, the Bush administration insists that none of these 
techniques of ``enhanced interrogation'' constitute torture and that 
they are necessary to obtain information in the war on terrorism. 
Moreover, the Administration, through secret legal memoranda 
sanctioning these and other harsh techniques, continues to attempt to 
thwart Congress's clearly stated directive that the United States not 
engage in torture of detainees. It is for these reasons that I am a 
cosponsor of the Anti-Torture Act, which expands the McCain Amendment's 
requirement that Defense Department interrogators adhere to the 
interrogation methods of the Army Field Manual to include 
interrogations of all persons under U.S. custody or control.

    Mr. Nadler. We will now turn to our witnesses. As we ask 
questions of our witnesses, the Chair will recognize Members in 
the order of their seniority on the Subcommittee, alternating 
between majority and minority, provided the Member is present 
when his or her turn arrives. Members who are not present when 
their turn begins will be recognized after the other Members 
have had the opportunity to ask their questions.
    The Chair reserves the right to accommodate a Member who is 
unavoidably late or only able to be with us for a short time.
    Our first witness is Malcolm Nance. Mr. Nance is the 
founder and CEO of the International Anti-Terrorism Center of 
Excellence. He is a combat veteran who has served as a 
collections operator, analyst and interrogation in naval 
intelligence and a specialist in anti-terrorism and survival, 
evasion, resistance and escape, or SERE.
    Our second witness is Steve Kleinman. Mr. Kleinman has 
served in the U.S. Air Force on both active duty and in the 
Reserve. He has served as a human intelligence officer. He was 
an interrogator and case officer during Operation Just Cause, 
as the chief of a joint combined interrogation team during 
Operation Desert Storm, and served as a senior adviser on 
interrogation to the commander of a special operations task 
force during Operation Iraqi Freedom. He currently holds the 
rank of colonel, as the reserve senior intelligence officer at 
the Air Force Special Operations Command.
    Our third witness is Amrit Singh. Ms. Singh is a staff 
attorney at the ACLU's Immigrants Rights Project, which has 
litigated cases relating to the torture and abuse of prisoners 
held in U.S. custody abroad, the Government's use of diplomatic 
assurances to return individuals to countries known to employ 
torture, and the indefinite and mandatory detention of 
noncitizens.
    She is counsel in the case of ACLU v. Department of 
Defense, litigation under the Freedom of Information Act, for 
records concerning the treatment and detention of prisoners in 
Afghanistan, Iraq, Guantanamo Bay, and other locations abroad. 
She is a graduate of Cambridge University, Oxford University, 
and Yale Law School. The Subcommittee is grateful to her for 
agreeing to appear here today on very short notice.
    We also have an empty chair on the panel, and I want to 
explain for the record why the chair is empty. The Subcommittee 
had invited Stuart Couch, lieutenant colonel in the U.S. Marine 
Corps and an appellate judge of the Navy-Marine Corps Court of 
Criminal Appeals. A Marine Corps pilot and veteran prosecutor, 
he has special knowledge and expertise on the matters we are 
discussing here today.
    Colonel Couch was awarded the Defense Meritorious Service 
Medal for his work on Guantanamo prosecution. The citation, 
awarded by Secretary of Defense Donald Rumsfeld, described him 
as ``steady in faith, possessed by moral courage and relentless 
in the pursuit of excellence.''
    He was assigned to prosecute, and let me just say that he 
had agreed to come today, and we were expecting his presence. 
But more on that in a moment.
    Colonel Couch was assigned to prosecute Mohamedou Ould 
Slahi, an alleged senior al-Qaeda operative who was charged 
with helping to assemble the Hamburg cell, which included the 
hijacker who piloted United Flight 175 into the South Tower of 
the World Trade Center. It was a case of personal importance to 
Colonel Couch. His old Marine buddy, Michael ``Rocks'' 
Horrocks, had been the pilot or the co-pilot on Flight 175.
    Nine months later, Colonel Couch made what he calls the 
toughest decision of his military career when he refused to 
proceed with the Slahi prosecution because he concluded that 
Mr. Slahi's incriminating statements, the core of the 
Government's case, had been taken through torture and were, 
therefore, inadmissible under U.S. and international law.
    Mr. Slahi was subjected to threats, mock executions, and 
beatings. On one occasion, he was shackled and blindfolded and 
taken for a boat ride in the waters off Guantanamo. He assumed 
he was going to be killed.
    His interrogators fabricated an official memorandum that 
purported to show that his mother was being transferred to 
Guantanamo and that officials had concerns about her safety, as 
the only woman amid hundreds of male prisoners. These facts and 
more are recounted in an article that appeared in the Wall 
Street Journal on March 31 of this year.
    So where is this distinguished Marine hero? A Department of 
Defense--and I ask unanimous consent that it appear in the 
record at this point, without objection.
    [The information referred to follows:]

    
    
    
    
    
    
    
    
    
    
    Mr. Nadler. So where is this distinguished Marine hero? The 
Department of Defense ordered him, that is ordered in the 
military sense, not to testify at this hearing today.
    Although we have asked the Department of Defense numerous 
times to confirm this order and the reasons for it, we have yet 
to receive the courtesy of a written confirmation. The only 
confirmation the Committee has received is a letter yesterday 
from Colonel Couch at 6:15 p.m.
    The letter reads as follows: ``I regret to inform you that 
I have been advised by the Department of the Navy Office of 
Legislative Affairs that the Department of Defense has decided 
I cannot testify before the Subcommittee on the Constitution, 
Civil Rights and Civil Liberties oversight hearing scheduled 
for tomorrow. I have been advised that this decision was made 
by the Assistant Secretary of Defense for Legislative Affairs 
after consultation with the Department of Defense general 
counsel.''
    ``The directive not to testify was communicated to the 
Department of the Navy chief of legislative affairs, who 
advised me of it through official channels. Please be advised 
that I am willing to testify before the Subcommittee in the 
event I am allowed to do so by the Department of Defense.''
    I ask unanimous consent that Colonel Couch's letter appear 
in the record at this point, without objection.
    [The information referred to follows:]

    
    
    Mr. Nadler. So Colonel Couch's chair remains empty today. I 
find it outrageous that the Administration has again chosen to 
stonewall an investigation into some very serious charges and 
the outlandish claim that torture--or whatever you want to call 
it--is legitimate and in our national interests.
    Colonel Couch was invited to appear in his personal 
capacity and to discuss matters that he has already discussed 
at public speeches and that have already appeared in the Wall 
Street Journal. These are not state secrets.
    I am very tired of the secrecy and stonewalling by this 
Administration. It is disgraceful that the Administration would 
allow Colonel Couch to make after-dinner speeches about the 
subject matter, to talk at length to the press about the 
subject matter, but prohibited from testifying before a duly 
constituted Committee of the Congress.
    It is disgraceful that the Congress and the American people 
must rely on leaks, lawsuits and Freedom of Information Act 
requests to find out what our own Government is doing.
    The issues before this Subcommittee today could not be more 
serious. And, once again, when important questions need to be 
answered, we are told that no one has the right to question the 
Administration.
    I can assure everyone that we will continue our work, that 
Colonel Couch will eventually be able to take a seat at the 
witness table. Indeed, it may very well be that we will invite 
the people or subpoena the people who ordered him not to 
testify to come here and explain why they did so.
    I regret that this honorable American who has served his 
Nation with such distinction has been treated so disgracefully 
by this Administration.
    And now I want to turn to the witnesses who are with us 
today. Your written statements will be made part of the record 
in its entirety. I would ask that each of you now summarize 
your testimony in 5 minutes or less. To help you stay within 
that time, there is a timing light at your table. When 1 minute 
remains, the light will switch from green to yellow and then 
red when the 5 minutes are up.
    Mr. Franks. Mr. Chairman?
    Mr. Nadler. Before we begin, it is customary for the 
Committee to swear in its witnesses.
    If you could please stand and raise your right hand to take 
the oath.
    Do you swear or affirm under penalty of perjury that the 
testimony you are about to give is true and correct, to the 
best of your knowledge, information and belief?
    Thank you. You may be seated.
    Let the record reflect that the witnesses answered in the 
affirmative.
    You may be seated.
    I recognize the distinguished Ranking Member at his 
request.
    Mr. Franks. Mr. Chairman, I could have done this in my 
question time, and I apologize, but I just wanted to ask 
unanimous consent to place the Wall Street Journal article 
explaining why Colonel Couch is not here today.
    He was advised by William J. Haynes at the Pentagon that he 
is determined that, as a sitting judge and former prosecutor, 
it is improper for him to testify about matters still pending 
in the military court system, and that he was not to appear 
before the Committee today because he is a prosecutor in 
ongoing cases. And if that happened in civilian life, the same 
situation would occur.
    Mr. Nadler. Without objection, the article will be part of 
the record, although I will point out that it is interesting 
that that objection is made to his testimony here, but that 
objection is not made to his talking about the same matters to 
the Wall Street Journal or to after-dinner speeches and that a 
colonel, who was a senior prosecutor, should be judged 
completely able to know what he is allowed to say and what he 
is not allowed to say.
    [The information referred to follows:]

    
    
    
    
    Mr. Nadler. The first witness is Mr. Nance.

TESTIMONY OF MALCOLM W. NANCE, ANTI-TERRORISM/COUNTER-TERRORISM 
        INTELLIGENCE SPECIALIST, FORMER SERE INSTRUCTOR

    Mr. Nance. Mr. Chairman and Members of the Committee, it is 
an honor to be here before you today. My name is Malcolm 
Wrighton Nance. I am a former member of the U.S. military 
intelligence community, a retired U.S. Navy senior chief 
cryptologic technician, Arabic interpreter. I have served 
honorably for 20 years.
    While serving my Nation, I had the honor to be accepted for 
duty as an instructor at the U.S. Navy Survival, Evasion, 
Resistance and Escape School, SERE School, in North Island 
Naval Air Station California. I served in the capacity as an 
instructor and master training specialist in wartime prisoner 
of war, peacetime hostile government detainee, and terrorist 
hostage survival programs.
    At SERE, one of my most serious responsibilities was to 
employ, supervise or witness dramatic and highly kinetic 
coercive interrogation methods through hands-on, live 
demonstrations and a simulated captive environment, which 
inoculated our students to the experience of a high-intensity 
stress and duress.
    Some of these coercive physical techniques have been 
identified in the media as enhanced interrogation techniques. 
The most severe of those employed by SERE was waterboarding.
    Within the four SERE schools and the Joint Personnel 
Recovery community, the waterboard was rightly used as a 
demonstration tool that revealed to our students the techniques 
of brutal authoritarian enemies. SERE trained tens of thousands 
of servicemembers of its historical use by the Nazis, the 
Japanese, the North Koreans, Iraq, the Soviet Union, the Khmer 
Rouge, and the North Vietnamese.
    SERE emphasized that the enemies of democracy and rule of 
law often ignored human rights, defied the Geneva Conventions, 
and have subjected our men and women to grievous physical and 
psychological harm. We stressed that enduring these calumnies 
will allow our soldiers to return home with honor.
    The SERE community was designed over 50 years ago to show 
that, as a torture instrument, waterboarding is a terrifying, 
painful and humiliating tool that leaves no physical scars and 
which can be repeatedly used as an intimidation tool. 
Waterboarding has the ability to make the subject answer any 
question with a truth, a half-truth, or outright lie in order 
to stop the procedure. Subjects usually resort to all three, 
often in rapid sequence.
    Most media representations or recreations of the 
waterboarding are inaccurate, amateurish, and dangerous 
improvisations which do not capture the true intensity of the 
act. Contrary to popular opinion, it is not a simulation of 
drowning. It is drowning.
    In my case, the technique was so fast and professional that 
I didn't know what was happening until the water entered my 
nose and throat. It then pushes down into the trachea and 
starts to process a respiratory degradation. It is an 
overwhelming experience that induces horror, triggers a frantic 
survival instinct. As the event unfolded, I was fully conscious 
of what was happening: I was being tortured.
    Proponents claim that American waterboarding is acceptable 
because it is done rarely, professionally and only on truly 
deserving terrorists, like 9/11 planner Khalid Sheikh Mohammed. 
Media reporting revealed that tough interrogations were 
designed to show we had taken the gloves off and may also have 
led directly to prisoner abuse and murder in both Iraq and 
Afghanistan.
    The debate surrounding waterboarding has been lessons to a 
question of ``he said, she said'' politics, but I believe that 
some of it view it as now acceptable, and that is symptomatic 
of a greater problem. We must ask ourselves, has America 
unwittingly relinquished its place as guardian of human rights 
and the beacon of justice?
    Do we now agree that our unique form of justice, based on 
the concepts of fairness, honor, and the unwavering conviction 
that America is better than its enemies should no longer govern 
our intelligence agencies? This has now been clearly called 
into question.
    On the morning of September 11, at the green field next to 
the burning Pentagon, I was a witness to one of the greatest 
displays of heroism in our history. American men and women, 
both military and civilian, repeatedly and selflessly risked 
their lives to save those around them. At the same time, 
hundreds of American citizens gave their lives to save 
thousands in both Washington, D.C., and New York City. It was a 
painful day for all of us.
    But does the ultimate goal of protecting America require us 
to adopt policies that shift our mindset from righteous self-
defense to covert cruelty? Does protecting America at all costs 
mean sacrificing the Constitution, our laws, and the Bill of 
Rights in order to save it? I do not believe that.
    The attacks of September 11 were horrific, but they did not 
give us the right to destroy our moral fabric as a Nation or to 
reverse a course that for 200 years led the world toward 
democracy, prosperity and guaranteed the rights of billions to 
live in peace.
    We must return to using our moral compass in the fight 
against al-Qaeda. Had we done so initially, we would have 
greater success to stamp out terrorist activity and perhaps 
would have captured Osama bin Laden long ago.
    And the rest of my statement is in the record.
    [The prepared statement of Mr. Nance follows:]

                 Prepared Statement of Malcom W. Nance

    Chairman Conyers and members of the committee.
    My name is Malcolm Wrightson Nance. I am a former member of the US 
military intelligence community, a retired US Navy Senior Chief 
Cryptologic Technician, Arabic Interpreter. I have served honorably for 
20 years.
    While serving my nation, I had the honor to be accepted for duty as 
an instructor at the US Navy Survival, Evasion, Resistance and Escape 
(SERE) school in North Island Naval Air Station, California. I served 
in the capacity as an instructor and Master Training Specialist in the 
Wartime Prisoner-of-War, Peacetime Hostile Government Detainee and 
Terrorist Hostage survival programs.
    At SERE, one of my most serious responsibilities was to employ, 
supervise or witness dramatic and highly kinetic coercive interrogation 
methods, through hands-on, live demonstrations in a simulated captive 
environment which inoculated our student to the experience of high 
intensity stress and duress.
    Some of these coercive physical techniques have been identified in 
the media as Enhanced Interrogation Techniques. The most severe of 
those employed by SERE was waterboarding.
    Within the four SERE schools and Joint Personnel Recovery 
community, the waterboard was rightly used as a demonstration tool that 
revealed to our students the techniques of brutal authoritarian 
enemies.
    SERE trained tens of thousands of service members of its historical 
use by the Nazis, the Japanese, North Korea, Iraq, the Soviet Union, 
the Khmer Rouge and the North Vietnamese.
    SERE emphasized that enemies of democracy and rule of law often 
ignore human rights, defy the Geneva Convention and have subjected our 
men and women to grievous physical and psychological harm. We stress 
that enduring these calumnies will allow our soldiers to return home 
with honor.
    The SERE community was designed over 50 years ago to show that, as 
a torture instrument, waterboarding is a terrifying, painful and 
humiliating tool that leaves no physical scars and which can be 
repeatedly used as an intimidation tool.
    Waterboarding has the ability to make the subject answer any 
question with the truth, a half-truth or outright lie in order to stop 
the procedure. Subject usually resort to all three, often in rapid 
sequence. Most media representations or recreations of the 
waterboarding are inaccurate, amateurish and dangerous improvisations, 
which do not capture the true intensity of the act. Contrary to popular 
opinion, it is not a simulation of drowning--it is drowning.
    In my case, the technique was so fast and professional that I 
didn't know what was happening until the water entered my nose and 
throat. It then pushes down into the trachea and starts the process of 
respiratory degradation.
    It is an overwhelming experience that induces horror and triggers 
frantic survival instincts. As the event unfolded, I was fully 
conscious of what was happening--I was being tortured.
    Proponents claim that American waterboarding is acceptable because 
it is done rarely, professionally and only on truly deserving 
terrorists like 9/11 planner Khalid Sheik Mohammed. Media reporting 
revealed that tough interrogations were designed to show we had `taken 
the gloves off.'
    It also may have led directly to prisoner abuse and murder in both 
Iraq and Afghanistan.
    The debate surrounding waterboarding has been lessened to a 
question of he-said, she-said politics. But, I believe that as some 
view it as now acceptable, that it is symptomatic of a greater problem.
    We must ask ourselves, has America unwittingly relinquished its 
place as the guardian of human rights and the beacon of justice? Do we 
now agree that our unique form of justice, based on the concepts of 
fairness, honor, and the unwavering conviction that America is better 
than its enemies, should no longer govern our intelligence agencies?
    This has now been clearly called into question.
    On the morning of September 11, at the green field next to a 
burning Pentagon, I was a witness to one of the greatest displays of 
heroism in our history. American men and women, both military and 
civilian, repeatedly and selflessly risked their lives to save those 
around them. At the same time, hundreds of American citizens gave their 
lives to save thousands in both Washington DC and New York City. It was 
a painful day for all of us.
    But, does the ultimate goal of protecting America require us to 
adopt policies that shift our mindset from righteousness self defense 
to covert cruelty?
    Does protecting America `at all costs' mean sacrificing the 
Constitution, our laws and the Bill of Rights in order to save it? I do 
not believe that.
    The attacks of September 11 were horrific, but they did not give us 
the right to destroy our moral fabric as a nation or to reverse a 
course that for two hundred years led the world towards democracy, 
prosperity and guaranteed the rights of billions to live in peace.
    We must return to using our moral compass in the fight against Al 
Qaeda. Had we done so initially we would have had greater success to 
stanch out terrorist activity and perhaps would have captured Osama bin 
Laden long ago. Shocking the world by bragging about how professional 
our brutality was counter-productive to the fight. There are ways to 
get the information we need. Perhaps less-kenetic interrogation and 
indoctrination techniques could have brought more Al Qaeda members and 
active supporters to our side. That edge may be lost forever.
    More importantly, our citizens once believed in the justness of our 
cause. Now, we are divided. Many have abandoned their belief in the 
fight because they question the commitment to our own core values. 
Allied countries, critical to the war against Al Qaeda, may not supply 
us with the assistance we need to bring terrorists to justice. I 
believe that we must reject the use of the waterboard for prisoners and 
captives and cleanse this stain from our national honor.
                               __________

                              ATTACHMENT A

             Printed at Small Wars Journal 31 October, 2007

                       (www.smallwarsjournals.com

                 WATERBOARDING IS TORTURE . . . PERIOD

    I'd like to digress from my usual analysis of insurgent strategy 
and tactics to speak out on an issue of grave important to Small Wars 
Journal readers. We, as a nation, are having a crisis of honor.
    Last week the Attorney General nominee Judge Michael Mukasey 
refused to define waterboarding terror suspects as torture. On the same 
day MSNBC television pundit and former Republican Congressman Joe 
Scarborough quickly spoke out in its favor. On his morning television 
broadcast, he asserted, without any basis in fact, that the efficacy of 
the waterboard a viable tool to be sued on Al Qaeda suspects.
    Scarborough said, ``For those who don't know, waterboarding is what 
we did to Khalid Sheikh Mohammed, who is the Al Qaeda number two guy 
that planned 9/11. And he talked . . .'' He then speculated that ``If 
you ask Americans whether they think it's okay for us to waterboard in 
a controlled environment . . . 90% of Americans will say `yes.' '' 
Sensing that what he was saying sounded extreme, he then claimed he did 
not support torture but that waterboarding was debatable as a 
technique: ``You know, that's the debate. Is waterboarding torture? . . 
. I don't want the United States to engage in the type of torture that 
[Senator] John McCain had to endure.''
    In fact, waterboarding is just the type of torture then Lt. 
Commander John McCain had to endure at the hands of the North 
Vietnamese. As a former Master Instructor and Chief of Training at the 
US Navy Survival, Evasion, Resistance and Escape School (SERE) in San 
Diego, California I know the waterboard personally and intimately. SERE 
staff were required undergo the waterboard at its fullest. I was no 
exception. I have personally led, witnessed and supervised 
waterboarding of hundreds of people. It has been reported that both the 
Army and Navy SERE school's interrogation manuals were used to form the 
interrogation techniques used by the US army and the CIA for its terror 
suspects. What was not mentioned in most articles was that SERE was 
designed to show how an evil totalitarian, enemy would use torture at 
the slightest whim. If this is the case, then waterboarding is 
unquestionably being used as torture technique.
    The carnival-like he-said, she-said of the legality of Enhanced 
Interrogation Techniques has become a form of doublespeak worthy of 
Catch-22. Having been subjected to them all, I know these techniques, 
if in fact they are actually being used, are not dangerous when applied 
in training for short periods. However, when performed with even 
moderate intensity over an extended time on an unsuspecting prisoner--
it is torture, without doubt. Couple that with waterboarding and the 
entire medley not only ``shock the conscience'' as the statute 
forbids--it would terrify you. Most people can not stand to watch a 
high intensity kinetic interrogation. One has to overcome basic human 
decency to endure watching or causing the effects. The brutality would 
force you into a personal moral dilemma between humanity and hatred. It 
would leave you to question the meaning of what it is to be an 
American.
    We live at a time where Americans, completely uninformed by an 
incurious media and enthralled by vengeance-based fantasy television 
shows like ``24'', are actually cheering and encouraging such torture 
as justifiable revenge for the September 11 attacks. Having been a 
rescuer in one of those incidents and personally affected by both 
attacks, I am bewildered at how casually we have thrown off the mantle 
of world-leader in justice and honor. Who we have become? Because at 
this juncture, after Abu Ghraieb and other undignified exposed 
incidents of murder and torture, we appear to have become no better 
than our opponents.
    With regards to the waterboard, I want to set the record straight 
so the apologists can finally embrace the fact that they condone and 
encourage torture.

                       HISTORY'S LESSONS IGNORED

    Before arriving for my assignment at SERE, I traveled to Cambodia 
to visit the torture camps of the Khmer Rouge. The country had just 
opened for tourism and the effect of the genocide was still heavy in 
the air. I wanted to know how real torturers and terror camp guards 
would behave and learn how to resist them from survivors of such 
horrors. I had previously visited the Nazi death camps Dachau and 
Bergen-Belsen. I had met and interviewed survivors of Buchenwald, 
Auschwitz and Magdeburg when I visited Yad Vashem in Jerusalem. 
However, it was in the S-21 death camp known as Tuol Sleng, in downtown 
Phnom Penh, where I found a perfectly intact inclined waterboard. Next 
to it was the painting on how it was used. It was cruder than ours 
mainly because they used metal shackles to strap the victim down, and a 
tin flower pot sprinkler to regulate the water flow rate, but it was 
the same device I would be subjected to a few weeks later.
    On a Mekong River trip, I met a 60-year-old man, happy to be alive 
and a cheerful travel companion, who survived the genocide and torture 
. . . he spoke openly about it and gave me a valuable lesson: ``If you 
want to survive, you must learn that `walking through a low door means 
you have to be able to bow.''' He told his interrogators everything 
they wanted to know including the truth. They rarely stopped. In 
torture, he confessed to being a hermaphrodite, a CIA spy, a Buddhist 
Monk, a Catholic Bishop and the son of the king of Cambodia. He was 
actually just a school teacher whose crime was that he once spoke 
French. He remembered ``the Barrel'' version of waterboarding quite 
well. Head first until the water filled the lungs, then you talk.
    Once at SERE and tasked to rewrite the Navy SERE program for the 
first time since the Vietnam War, we incorporated interrogation and 
torture techniques from the Middle East, Latin America and South Asia 
into the curriculum. In the process, I studied hundreds of classified 
written reports, dozens of personal memoirs of American captives from 
the French-Indian Wars and the American Revolution to the Argentinean 
`Dirty War' and Bosnia. There were endless hours of videotaped 
debriefings from World War Two, Korea, Vietnam and Gulf War POWs and 
interrogators. I devoured the hundreds of pages of debriefs and video 
reports including those of then Commander John McCain, Colonel Nick 
Rowe, Lt. Dieter Dengler and Admiral James Stockdale, the former Senior 
Ranking Officer of the Hanoi Hilton. All of them had been tortured by 
the Vietnamese, Pathet Lao or Cambodians. The minutiae of North 
Vietnamese torture techniques was discussed with our staff advisor and 
former Hanoi Hilton POW Doug Hegdahl as well as discussions with 
Admiral Stockdale himself. The waterboard was clearly one of the tools 
dictators and totalitarian regimes preferred.

            THERE IS NO DEBATE EXCEPT FOR TORTURE APOLOGISTS

    1. Waterboarding is a torture technique. Period. There is no way to 
gloss over it or sugarcoat it. It has no justification outside of its 
limited role as a training demonstrator. Our service members have to 
learn that the will to survive requires them accept and understand that 
they may be subjected to torture, but that America is better than its 
enemies and it is one's duty to trust in your nation and God, endure 
the hardships and return home with honor.
    2. Waterboarding is not a simulation. Unless you have been strapped 
down to the board, have endured the agonizing feeling of the water 
overpowering your gag reflex, and then feel your throat open and allow 
pint after pint of water to involuntarily fill your lungs, you will not 
know the meaning of the word.
    Waterboarding is a controlled drowning that, in the American model, 
occurs under the watch of a doctor, a psychologist, an interrogator and 
a trained strap-in/strap-out team. It does not simulate drowning, as 
the lungs are actually filling with water. There is no way to simulate 
that. The victim is drowning. How much the victim is to drown depends 
on the desired result (in the form of answers to questions shouted into 
the victim's face) and the obstinacy of the subject. A team doctor 
watches the quantity of water that is ingested and for the 
physiological signs which show when the drowning effect goes from 
painful psychological experience, to horrific suffocating punishment to 
the final death spiral.
    Waterboarding is slow motion suffocation with enough time to 
contemplate the inevitability of black out and expiration--usually the 
person goes into hysterics on the board. For the uninitiated, it is 
horrifying to watch and if it goes wrong, it can lead straight to 
terminal hypoxia. When done right it is controlled death. Its lack of 
physical scarring allows the victim to recover and be threaten with its 
use again and again.
    Call it ``Chinese Water Torture,'' ``the Barrel,'' or ``the 
Waterfall,'' it is all the same. Whether the victim is allowed to 
comply or not is usually left up to the interrogator. Many waterboard 
team members, even in training, enjoy the sadistic power of making the 
victim suffer and often ask questions as an after thought. These people 
are dangerous and predictable and when left unshackled, unsupervised or 
undetected they bring us the murderous abuses seen at Abu Ghraieb, 
Baghram and Guantanamo. No doubt, to avoid human factors like fear and 
guilt someone has created a one-button version that probably looks like 
an MRI machine with high intensity waterjets.
    3. If you support the use of waterboarding on enemy captives, you 
support the use of that torture on any future American captives. The 
Small Wars Council had a spirited discussions about this earlier in the 
year, especially when former Marine Generals Krulak and Hoare rejected 
all arguments for torture.
    Evan Wallach wrote a brilliant history of the use of waterboarding 
as a war crime and the open acceptance of it by the administration in 
an article for Columbia Journal for Transnational Law. In it he 
describes how the ideological Justice Department lawyer, John Yoo 
validated the current dilemma we find ourselves in by asserting that 
the President had powers above and beyond the Constitution and the 
Congress:
    ``Congress doesn't have the power to tie the President's hands in 
regard to torture as an interrogation technique. . . . It's the core of 
the Commander-in-Chief function. They can't prevent the President from 
ordering torture.''
    That is an astounding assertion. It reflects a basic disregard for 
the law of the United States, the Constitution and basic moral decency.
    Another MSNBC commentator defended the administration and stated 
that waterboarding is ``not a new phenomenon'' and that it had ``been 
pinned on President Bush . . . but this has been part of interrogation 
for years and years and years.'' He is correct, but only partially. The 
Washington Post reported in 2006 that it was mainly America's enemies 
that used it as a principal interrogation method. After World War 2, 
Japanese waterboard team members were tried for war crimes. In Vietnam, 
service members were placed under investigation when a photo of a 
field-expedient waterboarding became publicly known.
    Torture in captivity simulation training reveals there are ways an 
enemy can inflict punishment which will render the subject wholly 
helpless and which will generally overcome his willpower. The torturer 
will trigger within the subject a survival instinct, in this case the 
ability to breathe, which makes the victim instantly pliable and ready 
to comply. It is purely and simply a tool by which to deprive a human 
being of his ability to resist through physical humiliation. The very 
concept of an American Torturer is an anathema to our values.
    I concur strongly with the opinions of professional interrogators 
like Colonel Stewart Herrington, and victims of torture like Senator 
John McCain. If you want consistent, accurate and reliable 
intelligence, be inquisitive, analytical, patient but most of all 
professional, amiable and compassionate.
    Who will complain about the new world-wide embrace of torture? 
America has justified it legally at the highest levels of government. 
Even worse, the administration has selectively leaked supposed 
successes of the water board such as the alleged Khalid Sheik Mohammed 
confessions. However, in the same breath the CIA sources for the 
Washington Post noted that in Mohammed's case they got information but 
``not all of it reliable.'' Of course, when you waterboard you get all 
the magic answers you want--because remember, the subject will talk. 
They all talk! Anyone strapped down will say anything, absolutely 
anything to get the torture to stop. Torture. Does. Not. Work.
    According to the President, this is not a torture, so future 
torturers in other countries now have an American legal basis to 
perform the acts. Every hostile intelligence agency and terrorist in 
the world will consider it a viable tool, which can be used with 
impunity. It has been turned into perfectly acceptable behavior for 
information finding.
    A torture victim can be made to say anything by an evil nation that 
does not abide by humanity, morality, treaties or rule of law. Today we 
are on the verge of becoming that nation. Is it possible that September 
11 hurt us so much that we have decided to gladly adopt the tools of 
KGB, the Khmer Rouge, the Nazi Gestapo, the North Vietnamese, the North 
Koreans and the Burmese Junta?
    What next if the waterboarding on a critical the captive doesn't 
work and you have a timetable to stop the ``ticking bomb'' scenario? 
Electric shock to the genitals? Taking a pregnant woman and 
electrocuting the fetus inside her? Executing a captive's children in 
front of him? Dropping live people from an airplane over the ocean? It 
has all been done by governments seeking information. All claimed the 
same need to stop the ticking bomb. It is not a far leap from torture 
to murder, especially if the subject is defiant. Are we willing to 
trade our nation's soul for tactical intelligence?

                  IS THERE A PLACE FOR THE WATERBOARD?

    Yes. The waterboard must go back to the realm of SERE training our 
operators, soldiers, sailors, airmen and Marines. We must now double 
our efforts to prepare for its inevitable and uncontrolled use of by 
our future enemies.
    Until recently, only a few countries considered it effective. Now 
American use of the waterboard as an interrogation tool has assuredly 
guaranteed that our service members and agents who are captured or 
detained by future enemies will be subject to it as part of the most 
routine interrogations. Forget threats, poor food, the occasional face 
slap and sexual assaults. This was not a dignified `taking off the 
gloves'; this was descending to the level of our opposition in an 
equally brutish and ugly way. Waterboarding will be one our future 
enemy's go-to techniques because we took the gloves off to brutal 
interrogation. Now our enemies will take the gloves off and thank us 
for it.
    There may never again be a chance that Americans will benefit from 
the shield of outrage and public opinion when our future enemy uses of 
torture. Brutal interrogation, flash murder and extreme humiliation of 
American citizens, agents and members of the armed forces may now be 
guaranteed because we have mindlessly, but happily, broken the seal on 
the Pandora's box of indignity, cruelty and hatred in the name of 
protecting America. To defeat Bin Laden many in this administration 
have openly embraced the methods of by Hitler, Pinochet, Pol Pot, 
Galtieri and Saddam Hussein.

                  NOT A FAIR TRADE FOR AMERICA'S HONOR

    I have stated publicly and repeatedly that I would personally cut 
Bin Laden's heart out with a plastic MRE spoon if we per chance meet on 
the battlefield. Yet, once captive I believe that the better angels of 
our nature and our nation's core values would eventually convince any 
terrorist that they indeed have erred in their murderous ways. Once 
convicted in a fair, public tribunal, they would have the rest of their 
lives, however short the law makes it, to come to terms with their God 
and their acts.
    This is not enough for our President. He apparently secretly 
ordered the core American values of fairness and justice to be thrown 
away in the name of security from terrorists. He somehow determined 
that the honor the military, the CIA and the nation itself was an 
acceptable trade for the superficial knowledge of the machinations of 
approximately 2,000 terrorists, most of whom are being decimated in 
Iraq or martyring themselves in Afghanistan. It is a short sighted and 
politically motivated trade that is simply disgraceful. There is no 
honor here.
    It is outrageous that American officials, including the Attorney 
General and a legion of minions of lower rank have not only embraced 
this torture but have actually justified it, redefined it to a 
misdemeanor, brought it down to the level of a college prank and then 
bragged about it. The echo chamber that is the American media now views 
torture as a heroic and macho.
    Torture advocates hide behind the argument that an open discussion 
about specific American interrogation techniques will aid the enemy. 
Yet, convicted Al Qaeda members and innocent captives who were released 
to their host nations have already debriefed the world through hundreds 
of interviews, movies and documentaries on exactly what methods they 
were subjected to and how they endured. In essence, our own missteps 
have created a cadre of highly experienced lecturers for Al Qaeda's own 
virtual SERE school for terrorists.
    Congressional leaders from both sides of the aisle need to stand up 
for American values and clearly specify that coercive interrogation 
using the waterboard is torture and, except for limited examples of 
training our service members and intelligence officers, it should be 
stopped completely and finally --oh, and this time without a 
Presidential signing statement reinterpreting the law.

    Mr. Nadler. I thank the witness.
    Colonel Kleinman, you are recognized for 5 minutes.

TESTIMONY OF STEVEN KLEINMAN, COLONEL, USAFR, INTELLIGENCE AND 
   NATIONAL SECURITY SPECIALIST, SENIOR INTELLIGENCE OFFICER/
                     MILITARY INTERROGATOR

    Mr. Kleinman. Mr. Chairman, Members of the Committee, I 
would like to begin by expressing my thanks for this unique 
opportunity and privilege to testify before you.
    American policy on the interrogation of detainees is an 
exceptionally complex issue that cannot be adequately addressed 
absent a clear understanding of the vital elements involved.
    The challenge before us and the panel is then to 
respectfully offer for your consideration the sum total of our 
insights, concerns and recommendations that are informed by our 
collective professional experience. And at the end of the day, 
if we can advance a more thoughtful and objective examination 
of this matter, then our time shall have been worth it.
    It has been most unfortunate that the public debate about 
interrogation in general, and torture in specifics, has too 
often reflected emotion and unfounded presuppositions, rather 
than experience and rigorous study. Perhaps the most notable 
example of this has been the so-called ticking bomb scenario.
    As the parties argue the legal and moral implications of 
using coercive methods to extract information that, according 
to this scenario, would save thousands of lives, there has been 
erroneous presupposition that both sides seem far too willing 
to accept, and that is that coercive is ultimately an effective 
means of obtaining reliable intelligence information. This 
conclusion is, in my professional opinion, unequivocally false.
    Many Americans understandably are angry and seek revenge 
after the vicious attacks on 9/11, and they have therefore 
fallen prey to the presupposition that excessive physical, 
emotional, and psychological pressures are necessary to compel 
terrorists or insurgents to answer an interrogator's question.
    Further, this form of interrogation has been viewed as an 
appropriate form of punishment that the detainees deserve for 
their malicious acts. Such beliefs are equally untrue.
    I believe it might be useful if I were to present a brief 
summation of what over 20 years of operational experience has 
taught me about the arcane discipline of interrogation.
    Interrogation is the systematic questioning of a detained 
individual who is thought to possess information of 
intelligence value. In instances where that individual resists 
questioning, the interrogator will seek to shape the nature of 
the relationship through the use of various principles of 
persuasion, many of which are little more than those highly 
adapted forms of those that we see in advertising campaigns on 
a daily basis.
    By carefully managing the competitive exchange of 
information in the often contentious relationship with a 
source, the interrogator seeks to obtain an operational 
constructive level of cooperation or accord, which often 
manifests itself and primarily manifests itself in the form of 
the source's willingness to answer useful questions.
    While most interrogations bear absolutely no resemblance to 
that depicted on TV or in the movies, interrogation does, in 
fact, have many of the same qualities of virtual reality. 
Within this self-contained scenario, the interrogator plays a 
multifaceted role informed by fluency and interpersonal 
communications, human behavior, culture, linguistics, history, 
politics, negotiation theory and technology.
    And by skillfully blending this broad-based knowledge into 
a viable strategy, the interrogator seeks to gain access to the 
source's accurate and comprehensive memory of personality, 
places, plans and pursuit. Just as signals intelligence seeks 
to capture electronic emanations or imagery intelligence tries 
to capture photographic evidence, interrogation seeks to 
virtually capture the accurate and reliable memory a source 
might have on specific facts.
    So a key challenge that is often overlooked in 
interrogation is the fragility of human memory. The literature 
on eyewitness testimony testifies to that fact.
    My colleagues in behavioral sciences have cautioned me that 
a number of factors, including the excessive stress, 
insufficient sleep, and other environmental influences can 
result in substantial memory deficits. These are manifested not 
just in memory gaps, but in unattended fabrication.
    But this suggests that, after exposure to psychological, 
emotional, and physical stress, the source is more likely to 
report a combination of real and imagined facts, believing 
sincerely that both are true, but ultimately being sincerely 
wrong on many counts. From an intelligence perspective, this is 
exceptionally problematic.
    As an interrogator, I am also acutely interested in the 
efficacy of any strategy employed to secure a detainee's 
cooperation, for obtaining the cooperation is key to exploring 
the full range of their knowledge ability. I cannot force a 
source to tell me what he knows, but I can foster a 
relationship where that source, to various degrees, is ready 
and willing to do so.
    I do so through a decision--or perhaps more accurately a 
series of decisions--that his interests will be best served by 
providing accurate and comprehensive answers to my questions. I 
have not broken him; that is an ill-defined and illusory term 
that does not at all describe what happens when an interrogator 
gains a source's cooperation.
    Rather than effective interrogation unfolding as a string, 
rather, an interrogation does unfold as a string of 
breakthroughs through negotiations, and an understanding of 
conflicting perspectives and ultimately by earning their trust. 
And it may surprise many of the Members to find that trust, 
along with technical competence and enlightened cultural 
finesse, has proven to be the most effective means of getting 
reliable information.
    Coercion, in contrast, has been decidedly ineffective. It 
has been used as a result of our exposure to the communist 
interrogation model that unfolded after World War II and 
essentially scared the intelligence community. We performed 
diligent studies to understand how that model works, which was 
then transformed into a program of training with fear, but 
unfortunately that migrated into the repertoire of our 
terrorists.
    I have the rest of my testimony as submitted as written 
form. Thank you.
    [The prepared statement of Mr. Kleinman follows:]

                Prepared Statement of Steven M. Kleinman











    Mr. Nadler. Thank you.
    Ms. Singh, you are recognized for 5 minutes.

         TESTIMONY OF AMRIT SINGH, STAFF ATTORNEY, ACLU

    Ms. Singh. Mr. Chairman and Members of the Subcommittee, it 
is an honor to be here today.
    My name is Amrit Singh. I am a staff attorney at the ACLU, 
the American Civil Liberties Union, and I am counsel to 
plaintiffs in the lawsuit ACLU v. Department of Defense, a 
Freedom of Information Act lawsuit challenging the withholding 
of documents by the Federal Government relating to the torture 
and abuse of prisoners held in United States custody abroad.
    While we continue to litigate the improper withholding of 
information, the FOIA lawsuit has forced the Government to 
publicly disclose more than 100,000 pages of its documents 
relating to the treatment of prisoners held in United States 
custody abroad, and I have personally reviewed all of these 
documents.
    Some of the key documents obtained through that litigation 
are collected in a book, ``Administration of Torture,'' which 
is available to the Committee.
    Three key sets of facts emerge from the FOIA documents that 
are collected and described in the book, ``Administration of 
Torture.'' First, Government documents demonstrate that an 
official interrogation policy that deviates from longstanding 
legal prohibitions on torture and cruel, inhuman and degrading 
treatment opens the door to widespread abuse and torture.
    This fact is evident from a comparison of the Abu Ghraib 
photographs leaked to the press in April of 2004 and the 
interrogation directives issued by Secretary Rumsfeld for use 
in Guantanamo Bay in December 2002. When the photographs were 
published, senior Administration officials insisted that the 
conduct depicted therein was that of rogue soldiers and that 
the abuse of prisoners was not a matter of policy.
    However, many of the Abu Ghraib photographs show the same 
kind of abusive methods--such as stress positions, the removal 
of clothing, and the exploitation of individual phobias, such 
as the fear of dogs--that Defense Secretary Donald Rumsfeld had 
earlier authorized for use on prisoners at Guantanamo Bay.
    Several other Abu Ghraib photographs depicted prisoners 
wearing women's underwear on their head and being dragged 
across the floor on a leash. Those were the same methods that 
interrogators had applied on Guantanamo prisoner Mohamed al-
Kahtani in the fall of 2002.
    Government documents similarly show that techniques such as 
stress positions, prolonged isolation, sleep and light 
deprivation, forced nudity, and intimidation with military 
dogs, all of which were authorized for use at Guantanamo Bay by 
Secretary Rumsfeld--also came to be used by interrogators in 
Afghanistan.
    While much of the widespread abuse described in Government 
documents reflect direct applications of authorized 
interrogation methods, some of this abuse is also attributable 
to force drift, a phenomenon described by former Navy General 
Counsel Alberto Mora, as a tendency for the escalation of force 
used to extract information once an initial barrier against the 
use of improper force has been breached.
    By issuing directives that violated laws requiring humane 
prisoner treatment and declaring that the gloves were off, 
senior officials in the chain of command in effect gave 
interrogators license to apply still more abusive variations of 
authorized enhanced interrogation methods.
    And autopsy reports received through the FOIA litigation 
confirm that force drift, in fact, did take place. The autopsy 
reports show that prisoners held in United States custody 
abroad in Iraq and Afghanistan were suffocated and beaten to 
death and subjected to torture under any definition of that 
term.
    Second, clinical descriptions of enhanced interrogation 
methods conceal the severity of the mental and physical damage 
caused by these methods. For example, in one Government 
document, an FBI agent describes the devastating consequences 
of interrogations in which military personnel employed 
``environmental manipulation'' techniques. Environmental 
manipulation refers to exposure to extreme temperatures.
    And the FBI agent observes, ``On a couple of occasions, I 
entered interview rooms to find a detainee chained hand and 
foot in a fetal position to the floor, with no chair, food or 
water. Most times they had urinated and defecated on themselves 
and had been left there for 18 to 24 hours or more. On one 
occasion, the air conditioning had been turned so far down and 
the temperature was so cold in the room that the barefooted 
detainee was shaking with cold. On another occasion, the air 
conditioning had been turned off, making the temperature in the 
unventilated room probably well over 100 degrees. The detainee 
was almost unconscious on the floor, with a pile of hair lying 
next to him. He had apparently literally been pulling his own 
hair out throughout the night.''
    Lawyers for Majid Khan, a Guantanamo detainee, have been 
barred from discussing the enhanced interrogation techniques 
applied on him and the torture that was he subjected to. At a 
minimum, Congress should seek a classified briefing with those 
lawyers to find out precisely what those enhanced interrogation 
methods entailed.
    And finally, seasoned FBI officials documented the position 
that enhanced interrogation methods are not only illegal, but 
they are also ineffective. In fact, FBI officials repeatedly 
told Defense Department officials that rapport-building methods 
were far more effective at producing reliable intelligence.
    In sum, the dangers associated with employing such methods 
are plainly evident from the Government's own documents. I 
therefore urge you to ensure that all Federal agencies and 
their personnel comply with longstanding legal prohibitions on 
torture and cruel, inhuman and degrading treatment, and to 
enact legislation that would extend the application of the 
United States Army Field Manual to agencies other than the 
Defense Department, including the CIA.
    Thank you.
    [The prepared statement of Ms. Singh follows:]

                   Prepared Statement of Amrit Singh

















    Mr. Nadler. Thank you very much, Ms. Singh.
    Now, since Colonel Couch could not be with us, in lieu of 
his direct testimony, I will read into the record paraphrases 
of his testimony that he told the Wall Street Journal. And I 
will limit it to the customary 5 minutes for his testimony.
    ``When the Pentagon needed someone to prosecute a 
Guantanamo Bay prisoner linked to 9/11, it turned to Lieutenant 
Colonel V. Stuart Couch. A Marine Corps pilot and veteran 
prosecutor, Colonel Couch brought a personal connection to the 
job: His old Marine buddy was a co-pilot on United 175, the 
second plane to strike the World Trade Center on September 11, 
2001.''
    ``But, 9 months later, in what he calls the toughest 
decision of his military career, Colonel Couch refused to 
proceed with the prosecution of Mr. Slahi. The reason: He 
concluded that Mr. Slahi's incriminating statements, the core 
of the Government's case, had been taken through torture, 
rendering them inadmissible under U.S. and international law.
    ``Colonel Couch had his own misgivings. On his first visit 
to Guantanamo in October 2003, he recalls preparing to watch an 
interrogation of a detainee when he was distracted by heavy 
metal music. Accompanied by an escort, he saw a prisoner 
shackled to a cell floor, rocking back and forth, mumbling as 
strobe lights flashed. Two men in civilian dress shut the cell 
door and told Colonel Couch to move along.
    `` `Did you see that?' he asked his escort. The escort 
replied, `Yeah, it's approved.' Col. Couch says the treatment 
resembled the abuse he had been trained to resist if captured; 
he never expected Americans would be the ones employing it.
    ``The incident started keeping me up at night. I couldn't 
stop thinking about it.
    ``Colonel Couch says he and his case investigator, an agent 
detailed from the Naval Criminal Investigative Service, began 
an `under the table' effort to find out what made Mr. Slahi 
`break' after he'd suddenly begun to testify to all kinds of 
things after an extended period of not speaking. Colonel Couch 
says he was suspicious about the sudden change and felt he 
needed to know all the circumstances before bringing the case 
to trial.
    `` `It was like Hansel and Gretel, following bread crumbs, 
Colonel Couch says. The agent spoke to intelligence officers 
and others with more direct knowledge, pursued documents with 
details of the interrogations, and passed his findings on to 
the prosecutor. What emerged, Col. Couch believed, was torture.
    ``Initially, Mr. Slahi said he was pleased to be taken to 
Guantanamo. `I thought, this is America, not Jordan, and they 
are not going to beat you,' he told his detention hearing. But 
after Mr. Binalshibh named him as a top al-Qaeda member, `my 
life changed dramatically,' Mr. Slahi said.
    ``Initially, Mr. Slahi denied having al-Qaeda connections, 
frustrating his interrogators. On May 22, 2003, an FBI 
interrogator said, `This was our last session; he told me that 
I was not going to enjoy the time to come.'
    ``In the following weeks, Mr. Slahi said, he was placed in 
isolation, subjected to extreme temperatures, beaten and 
sexually humiliated. The detention board transcript states that 
at this point, `the recording equipment began to malfunction.' 
It summarizes Mr. Slahi's missing testimony as discussing `how 
he was tortured while here at Gitmo by several individuals.'
    ``Mr. Slahi was put under more intense interrogation. On 
July 17, 2003, a masked interrogator told Mr. Slahi he had 
dreamed of watching detainees dig a grave, according to a 2005 
Pentagon report into detainee abuse at Guantanamo. The 
interrogator said he saw `a plain, pine casket with Mr. Slahi's 
identification number painted in orange lowered into the 
ground.' Three days later, the interrogator told Mr. Slahi 
`that his family was incarcerated,' the report said.
    ``On Aug. 2, an interrogation chief visited the prisoner 
posing as a White House representative named `Navy Captain 
Collins,' the report said. He gave the prisoner a forged 
memorandum indicating that Mr. Slahi's mother was being shipped 
to Guantanamo and that officials had concerns about her safety, 
as the only woman amid hundreds of male prisoners, according a 
person familiar with the matter.
    ``In his detention-board testimony, Mr. Slahi provided 
further details, as did other people familiar with the matter. 
Two men took a shackled, blindfolded Mr. Slahi to a boat for a 
journey into the waters of Guantanamo Bay. The hour-long trip 
apparently led Mr. Slahi to think he was going to be killed 
and, in fear, he urinated in his pants.
    ``After making land, `two Arab guys' took him away, beat 
him, and turned him over to a doctor who was not a regular 
doctor but part of the team,' Mr. Slahi said. The doctor `was 
cursing me and telling me very bad things. He gave me a lot of 
medication to make me sleep,' Mr. Slahi said. After two or 3 
weeks, Mr. Slahi said, he broke, `because they said to me, 
either I am going to talk or they will continue to do this.' ''
    And that is some of what Colonel Couch would have testified 
to, but unfortunately he couldn't be here now.
    We have a vote on. And before we begin, I think it is a 
good time to recess the hearing now so the Members can go vote.
    We will do the first 5 minutes of questioning. We can still 
do that and get in the vote.
    And I will recognize, at his request, the Ranking Member, 
Mr. Franks, for 5 minutes.
    Mr. Franks. Well, thank you, Mr. Chairman. I do appreciate 
the courtesy.
    Mr. Chairman, I guess the first thing that I want to try to 
say here is to remind everyone that torture, under the laws of 
the United States, is illegal and should be illegal. And even 
Mr. Schumer's comments, when the word torture was used, those 
were his words, not mine.
    I do not support, nor will I ever support, torture by the 
United States. I think it is very important that we define 
those terms, and I commend the Chairman for the efforts here to 
define those terms specifically and in practice, because it is 
important that we know that.
    The reason that I have made statements supporting severe 
interrogations is because I truly seek only to protect the 
innocent in this country from being tortured, from being 
killed. And it is too bad that we live in a world with the kind 
of evil that kneels someone down before a television camera and 
cuts their head off with a hacksaw while the victims scream for 
mercy.
    It is a tragedy that beggars description, and I wish it did 
not exist. Unfortunately, it does. And sometimes we have to 
take measures to protect the innocent that we do not like, and 
I find myself in that untenable position.
    I would ask the Committee here for a little bit of 
diplomatic immunity, because I have to deal with a subject here 
that is rather difficult for me to bring up, but I find it 
unfortunate that sometimes the tenor of this Committee hearing, 
in this particular situation, is to somehow couch the 
Administration and Republicans, in general, as being for 
torture and the other side being, somehow that they are trying 
to protect us, constitutionally and otherwise.
    And yet, Mr. Chairman, this is the Constitution Committee. 
This is the Committee dedicated to protecting the 
constitutional rights of Americans. And not once during this 
term have we even considered the personhood and protection of 
unborn children.
    And yet last Congress, we had a bill before the Congress 
that said that, if torturous techniques were used to abort a 
child, that the mother would be offered anesthetic for the 
child. And most of the Members of this Committee that voted on 
that voted against it, against allowing anesthetic for 
procedures that, if done to an animal, would be illegal.
    So in the context of this Committee hearing and this 
particular subject, it is kind of outrageous to me to see that 
somehow Republicans have suggested that we are for torture, 
because we are not. I wish the evil of jihadist terrorism did 
not exist in the world, and I would do anything to change that.
    But, unfortunately, we face a reality where it is an evil 
ideology dedicated to the destruction of the innocent and our 
way of life. And sometimes we have to do what is necessary 
within the bounds of human conduct to do what is necessary to 
stop them from torturing our citizens.
    Mr. Conyers. Would the gentleman yield?
    Mr. Franks. Yes, sir, I would.
    Mr. Conyers. You just compromised your statement just then 
by saying, first, you are unequivocally against torture and 
then sometimes you have to do what you have to do.
    Mr. Franks. I said within the bounds of human conscience, 
which I believe excludes torture, Mr. Chairman. And reclaim the 
time.
    So the bottom line here is that I am sorry that sometimes 
we have deal with such difficult subjects, and I am going to go 
ahead and refer to one of my questions here. I think I have 
said what I needed to say.
    Colonel Kleinman, do you agree or disagree with this 
statement, that in the event we were ever confronted with 
having to interrogate a detainee with knowledge of an imminent 
threat to millions of Americans then the decision to depart 
from standard international practices must be made by the 
President? Do you agree or disagree with that, sir?
    Mr. Kleinman. If I were to be an adviser on how that 
question would be most effectively answered, as an operational 
adviser, I would say it would be unnecessary to conduct our 
affairs in a way that is outside the boundaries.
    From a purely operational perspective, the sum total of my 
experience strongly suggests--I would submit even proves--that 
the legal and moral concerns are almost immaterial, because 
what we need to do operationally to be effective is well within 
the boundaries.
    Mr. Franks. I appreciate the perspective. I just wanted to 
point out to the Committee, Mr. Chairman, that that was the 
statement made by Hillary Clinton to say how she would handle 
it if she were President.
    And I am just suggesting here that the situation, to draw 
lines between one party being for torture and another being 
against it, are unfair distinctions. We are all trying 
desperately to protect the innocent in this country, I hope, 
and to protect the hope of human freedom in the world. And, 
unfortunately, stopping jihadist terrorism must be part of it, 
and severe interrogations may be part of doing that.
    And we need to reject torture and do what is necessary 
within the bounds of human conscience to stop jihadist 
terrorism from torturing our citizens.
    And I yield.
    Mr. Nadler. I thank the gentleman. I would simply point out 
before we recess that nobody has said anything about the 
Republican Party with respect to torture. We have raised 
questions about some of the practices of the current 
Administration.
    It doesn't mean that every Republican would do the same 
thing that some of the people in this Administration have done, 
but we are duty-bound to examine the practices of whoever the 
current Administration is, because that is our job as an 
oversight Committee.
    Mr. Davis. Will the Chair yield for one question or one 
brief comment?
    Mr. Nadler. Yes.
    Mr. Davis. Is Senator McCain a Republican?
    Mr. Nadler. I believe Senator McCain is a Republican, and 
he has certainly taken some interesting positions.
    We will now recess. We have 4 minutes and 28 seconds left 
on the vote. That should be enough to get us there. The 
Committee will recess, pending the vote.
    I urge the Members to return as soon as the vote is over so 
we can complete the questioning. Thank you. The Committee is in 
recess.
    [Recess.]
    Mr. Nadler. The hearing will be called back to order, and I 
thank the witnesses for indulging our having to go vote.
    The Chair will recognize himself for 5 minutes of 
questioning first.
    Mr. Nance, waterboarding has often been described in this 
debate as simulated drowning, which makes it sounds like it 
isn't particularly severe and doesn't have long-term effects. 
In your testimony, you said it is actual drowning.
    Do you agree with the characterization? I mean, how would 
you characterize waterboarding, as actual drowning, as 
simulated drowning, as very severe, as torture, in the grey 
area? Talk about it.
    Mr. Nance. Well, I characterize it--waterboarding is 
misnamed. It should not be called waterboarding. That is just 
the device that we use, and that torturers have used throughout 
history. It should be called the drowning torture and has been 
called the drowning torture in the past.
    Waterboarding is a process in which we introduce quantities 
of water into the sinul passage, into the throat, down into the 
esophagus, past the trachea, and then, with enough response by 
you choking, we will overcome your gag reflex and water over 
very large quantities.
    If I could just say, I heard that earlier that Khalid 
Sheikh Mohammed was waterboarded for 90 seconds. I estimate, by 
our standards, which is very rigid--we have very rigid control 
standards about how it is done. I won't get into that, because 
it is classified. That is approximately nine cups or 79 ounces 
of water, 1.2 gallons.
    Mr. Nadler. And how much of that would go into him, as 
opposed to splashing off his face?
    Mr. Nance. Thirty percent to forty percent, but that 
depends on whether they give him an opportunity to ask any 
questions. And I would think on Khalid Sheikh Mohammed they 
probably wouldn't.
    That is going into the system, and it is degrading his 
respiratory system. And that is why we have very strict 
controls and medical controls to ensure that the person doesn't 
go into respiratory arrest.
    Mr. Nadler. When you say you have very strict controls, are 
you talking about when you are training or when they are 
actually doing this to somebody?
    Mr. Nance. I am sorry, I can only speak to the training.
    Mr. Nadler. Okay.
    Mr. Nance. I understand, but I don't have it for fact, 
because it is probably a classified special access program. And 
at some future point, I am sure you will learn. But I 
understand that the controls that are being used are our 
controls from the SERE community, which means they are very 
rigid, which means a medical team and a medical doctor who is 
watching, who is actually controlling the rate of the process.
    Mr. Nadler. But this is actual water going into the 
person's lungs?
    Mr. Nance. Oh, yes. Oh, yes, sir.
    Mr. Nadler. And, now, if this is done for, let us say, 90 
seconds, the example used by my colleague, Mr. Franks, and I 
think you mentioned for Khalid Sheikh Mohammed, is that severe? 
Is that torture? Is that 90 seconds isn't much? I mean, how bad 
is 90 seconds?
    Mr. Nance. Well, I think I have to couch that with the 
concept that, when we do it in simulated training, it is what 
we call stress inoculation. And the person knows that this is a 
training environment and they are being exposed to what a 
totalitarian nation would do.
    When Khalid Sheikh Mohammed or some unwitting individual, 
whether it be an innocent person or an extremely guilty person, 
or whatever you have, that person has no idea what is about to 
happen to them.
    Mr. Nadler. So it is worse?
    Mr. Nance. Oh, it is far worse.
    Mr. Nadler. Thank you.
    Now, let me ask you another question. We have been told 
repeatedly, and the Administration has said repeatedly, it 
cannot--what we do isn't torture, but we can't tell you what we 
do because that is classified, and it is classified because we 
cannot tell the enemy, al-Qaeda, et cetera, what interrogation 
techniques they will be exposed to, because they might train 
their people, and so exactly what interrogation techniques we 
will use must remain classified.
    Now, we have released hundreds of people that have been 
previously detained or imprisoned. Do you believe, is there any 
reason to believe, that they haven't already shared the exact 
details of how they were interrogated or treated? In other 
words, is there any reason to believe that this isn't already 
known, what we do, that what we do isn't already known to al-
Qaeda because of the people who have been released and have 
gone through this?
    Mr. Nance. That is an excellent question, because I live 
between the United States and in the United Arab Emirates. I 
speak Arabic, and I watch local programming. Al Jazeera Arabic, 
and Al Arabiya, and other programs that come from the Middle 
East, including our own Al Hurra TV out of Iraq, have 
constantly playing interviews, recreations of prisoner who have 
been released from Guantanamo Bay, who have been released from 
Camp Bucca, released from Abu Ghraib.
    Mr. Nadler. So they are saying, ``This is what the 
Americans do''?
    Mr. Nance. In great detail. As a matter of fact, I learned 
a few details that were, I thought at that time, classified 
from our procedures from SERE by watching Al Jazeera program on 
a prisoner talk about the exact techniques he was subjected to.
    Mr. Nadler. So you believe that when the Administration 
says they cannot tell us in open testimony or they cannot 
discuss the techniques that we use, lest it be known to al-
Qaeda, that it is already known to al-Qaeda?
    Mr. Nance. I believe it is known to al-Qaeda, but I believe 
also----
    Mr. Nadler. Did you say known or unknown?
    Mr. Nance. I believe it is known to al-Qaeda, but I also 
believe that there is no need in having to completely confirm 
everything. I believe there is a little validity to that, but 
right now the only people that appear to be in the dark is the 
American people.
    Mr. Nadler. Thank you.
    Colonel Kleinman, I am sure you are familiar with the Army 
Field Manual.
    Mr. Kleinman. Yes, sir, I am very much so.
    Mr. Nadler. Okay, let me ask you a question, and I need you 
to set aside for a minute any moral or legal concerns and also 
any other limits that might be imposed by the Army Field 
Manual.
    If you were in a position where you knew with absolute 
certainty that no one would ever know what you had done, and 
you knew that the intelligence you needed to get was of urgent 
value, is there anything that you would, could or should do 
that would go beyond what is permitted in the Army Field 
Manual?
    Mr. Kleinman. Absolutely not, sir. Absolutely not. The 
wonderful point we are in--and I would like to try to expand on 
that, if I may--moral, legal and operational confluence all 
ends in one very narrow circle. And that is, what we need to do 
to adhere to legal concerns, what we need to do as a Nation 
that would be morally correct, and what I would need to do as 
an operator all falls in that same circle.
    There is not an approach, there is not a strategy, there is 
not a treatment that would even come close to violating Geneva 
Convention guidelines, or the Constitution of the United 
States, and certainly not the field manual on interrogation. We 
talk about rapport, but rapport is a very inexact term. There 
is a lot more to it.
    But, fundamentally, to answer your question directly, I 
would not need to do anything that would be prohibited by the 
field manual and still be very, very effective.
    Mr. Nadler. So would you support extending the Army Field 
Manual standards on interrogations, which the law now limits 
the Defense Department to--the law now says that the Defense 
Department cannot do anything in interrogations beyond the Army 
Field Manual. Would you think it a good idea, would you support 
extending this to all Government agencies, including the CIA?
    Mr. Kleinman. I believe, sir, that that would be a good 
first step, but only a first step.
    Mr. Nadler. Why would it not be adequate? What further 
should be done?
    Mr. Kleinman. The Army Field Manual reflects a lack of 
science when it comes to interrogation. It doesn't reflect 
cutting-edge understanding of human behavior. It doesn't 
understand the unique cultural nuance of interrogation. It is 
really a very simplified form.
    What we understand and what we are capable of doing, in 
terms of interrogation effectively--that, again, would be well 
within the spirit and the letter of any overriding regulation--
far exceeds what is in the field manual. Having looked at the 
archives, really, the field manual is a summation of after-
action reports put together of tactical interrogations in World 
War II, with no further embellishment, no advancement in the 
last 60 years.
    So when I say first step, it would be excellent because it 
sets a standard that we can all abide by and still be 
operationally effective, but the second step is to direct that 
the intelligence community, writ large, take further steps to 
professionalize this discipline, to identify what it is that we 
don't know, what works well. We don't even have a standard for 
what is effective.
    Mr. Nadler. Okay. I thank you.
    I will now recognize the distinguished Chairman of the full 
Committee, Mr. Conyers, for 5 minutes.
    Mr. Conyers. Thank you very much.
    I would like to ask each of you--who have made, by the way, 
excellent explanations of the phenomenon that we are dealing 
with--can we get on the record, is there anything that could be 
construed as effective in waterboarding or coercive 
interrogation or torture, in trying to elicit intelligence 
information? What kind of reliability does your experience and 
the record show in that regard?
    Mr. Nance. I can only, again, speak to the types of 
training environments that we have. Anything else I discussed 
would be of a classified nature.
    However, with that experience, it is clear that, in a 
coercive environment, the purpose of a resistor--and we have 
trained thousands of them--the purpose of a resistor is to stop 
the coercion, is to stop the pain of the interrogation.
    That person will do anything once pushed past their limit 
to resist, and that means, when pain is applied, they will open 
their mouths. What comes out, we have always trained is 
completely and totally unreliable. You have to have a very 
large data set to cross-correlate all of that information. It 
may be a truth, a half-truth, or a complete lie and, again, or 
a combination of all of the above.
    Mr. Conyers. Ms. Singh, do you have an impression about a 
response for my question?
    Ms. Singh. Certainly. The documents the ACLU has received 
under the Freedom of Information Act demonstrate that FBI 
officials who were stationed at Guantanamo Bay, who were 
closely involved in observing the use of ``SERE'' methods and 
other harsh interrogation methods as offensive techniques, 
these FBI officials were of the opinion that those methods were 
not producing reliable intelligence.
    And that appears again and again in the documents. In fact, 
the FBI was so concerned about the harsh methods that the 
Defense Department was employing on Guantanamo prisoners that 
it decided to record its objections on paper.
    There is a May 2003 electronic communication that the FBI 
specifically put on the record in order to demonstrate that it 
specifically objected to Defense Department methods, not only 
because they were illegal, but also because they were 
ineffective.
    Mr. Conyers. Thank you so much.
    Colonel Kleinman, how do you weigh in on this question?
    Mr. Kleinman. It is an excellent question, sir, and let me 
characterize it this way. There is two objectives that one can 
achieve in an interrogation. One is to win compliance; the 
other is to win cooperation.
    Compliance is forcing somebody do something that they would 
not normally want to do and, in some cases, it means against 
their own interests--the North Koreans, the North Vietnamese, 
for instance, having a POW admit to dropping chemical weapons 
on civilian populations, which we knew were not true, but 
through torture was forced to do that.
    That is misinformation. That is the antithesis of what we 
seek as intelligence officers. We want information of 
intelligence value.
    The second objective is winning their cooperation to 
various degrees, where they are able to provide reliable 
information, where I am able to explore the full range of their 
knowledgeability, not just exploring areas that I suspect they 
know about, but my experience has often found that a source 
knows far more than we could have possibly suspected and, 
without his cooperation, I can't come close to getting there.
    Mr. Conyers. Do we have any information, witnesses, that we 
outsource torture to private contractors? Here we are in Iraq 
with more private military, more private people working with 
the army of occupation than there is Army. And so I am trying 
to find out, to what extent is that condoned by these private 
contractors?
    Mr. Kleinman. Well, sir, I think that addresses the larger 
issue about interrogation. Interrogation has been kind of, so 
to speak, the bastard stepchild of human intelligence. Having 
been a human intelligence officer for years doing the full 
spectrum, we often didn't look, as interrogators, as truly 
HUMINTers. I had a colonel----
    Mr. Conyers. What did you call--what was the term that you 
used?
    Mr. Kleinman. I am sorry, human intelligence, HUMINTer, a 
human intelligence officer.
    Mr. Conyers. Okay.
    Mr. Kleinman. Forgive me for the vernacular there.
    Mr. Conyers. All right.
    Mr. Kleinman. I had a colonel when I was on active duty, 
and I was still a captain, who once told me that interrogation 
would be irrelevant in the 21st century because we would be 
able to satisfy our intelligence needs through technology or 
the nature of combat would be so violent there would be nobody 
to interrogate.
    We know now that not to be true, but we still have 18-, 19-
, 20-year-olds talking to people who have advanced degrees, who 
are comfortable moving through multiple cultures, speak various 
languages, and understand American culture far better than we 
understand them. I am 50 years old. I have studied 
interrogation for over 25 years, and there is still more I 
could learn about it.
    Mr. Conyers. Just let me close with this, Mr. Chairman, if 
I can, because Naomi Klein in The Nation has raised the 
question that the admission that the embrace of torture by U.S. 
officials long predates the Bush administration and has, in 
fact, been integral to U.S. foreign policy since the Vietnam 
War.
    Do you have any opinion on that, Ms. Singh?
    Ms. Singh. I am not in a position to comment on the basis 
of the documentary record that the ACLU has obtained through 
the FOIA on that particular issue.
    Mr. Conyers. Well, these are publications--I have got a bit 
of literature here that shows--you know, we go back to water 
torture in the early--it goes back thousands and thousands of 
years, but nobody talks about what was being done with it, for 
example, just since World War II, in all the military 
excursions and expeditions we have been on.
    What do you think, Colonel and Mr. Nance?
    Mr. Kleinman. Here is the heart of the problem we have with 
interrogation, is our lack of progress, our lack of bringing 
up--I call it the acme of skill within human intelligence. That 
means we need to--it is one of the most important, most 
difficult activities that an operations officer can undertake, 
to leave it to people with limited life experience, to leave it 
to contractors, to dumb it down, so to speak--is going to be 
wholly ineffective.
    Mr. Conyers. Mr. Nance, did you want to comment before the 
Chairman closes this down?
    Mr. Nance. Yes. I think that, as a whole, I believe that 
until recently we have seen an only what I would call 
uncontrolled field expedient interrogations, which may have 
been done in Latin America and other environments.
    Mr. Nadler. Meaning that someone local decided to do 
something that wasn't approved or ordered from higher up?
    Mr. Nance. Yes, sir. And I am sure the colonel can speak 
more to the experiences of the human intelligence field as it 
is done at the company, battalion and division level.
    However, we can't say that it wasn't done, as we saw in the 
Washington Post article, which showed that field expedient 
interrogation being carried out in Vietnam. These are things 
that require discipline within the ranks, which require very 
experienced and honorable NCO corps and officer corps, which 
listens to their NCO corps.
    Those things will happen on the battlefield. However, what 
we are seeing now is a systematic process. And I don't believe 
that that is the way that the system is supposed to work.
    Mr. Conyers. Thank you so much.
    Mr. Delahunt. Would the gentleman yield, Mr. Conyers?
    Mr. Conyers. Of course. Absolutely.
    Mr. Delahunt. And in response to your question about the 
use of outsourcing torture, I am forgetful as to whether you 
were present at the hearing that we conducted together, both 
myself and Mr. Nadler, as joint Committees.
    Mr. Conyers. I was only there for part of it.
    Mr. Delahunt. Well, I think I am not misstating to say 
that, in the case of Maher Arar, a Canadian, he was detained 
and sent by our Government, over his objections and without 
informing Canadian authorities, to Syria, with a noted record 
of torture, particularly in areas of interrogation.
    Mr. Nadler. The gentleman's time is expired. We are going 
to have to recess the Committee to take a vote. I ask the 
Members of the Committee to come back as soon as this one vote 
is completed.
    I thank the witnesses for their indulgence.
    The hearing is in recess.
    [Recess.]
    Mr. Nadler. I, again, thank the witnesses for indulging our 
voting. The hearing will resume.
    And the Chair recognizes the gentleman from Georgia for 5 
minutes.
    Mr. Davis. The gentleman from Alabama will respond to the 
inquiry.
    Mr. Nadler. Alabama, I am sorry. Please do that.
    Mr. Davis. I will wait for Mr. Nance to get off the phone, 
because I had a question for Mr. Nance. He is trying to worry 
about his flight, so that doesn't come out of my time.
    Let me, because we do have a series of votes going on, and 
the Chair wants to make sure that all of us who are here to get 
a chance to ask questions, let me briefly begin, Mr. Nance, 
with you and just tick off a few factual points.
    You testified in some detail about the graphic nature of 
what is called waterboarding and about the very invasive nature 
of it in a controlled setting. If waterboarding is done the 
wrong way, could it kill somebody?
    Mr. Nance. Yes, sir. It could quite easily kill someone.
    Mr. Davis. If waterboarding was done the wrong way--
meaning, if it were misadministered--could it cause someone to 
have a seizure?
    Mr. Nance. That is possible, sir. It could force them to go 
into respiratory arrest. That could----
    Mr. Davis. Also cause brain damage, if it is done the wrong 
way?
    Mr. Nance. Yes, sir, of course.
    Mr. Davis. And I make that point because, obviously, if 
waterboarding happens in the adrenaline-pumped setting of a 
real interrogation, if waterboarding happened in the context of 
an environment where there really was an effort to extract 
information, as opposed to a simulated practice technique, it 
strikes me that there is a significant, quantifiable risk that 
it could cause a loss of human life, which, frankly, does 
distinguish it from a variety of other coercive techniques. 
That point needs to be made.
    I want to make another observation and get the panel's 
response to it. In my experience--and I have spent some time as 
a Federal prosecutor--I have spent some time as a criminal 
defense lawyer. And while I certainly have not dealt with these 
kinds of legal standards around interrogation in the context of 
terrorist events, I certainly have dealt with the 
constitutional standards that exist with respect to the fourth 
amendment, fifth amendment, sixth amendment, eighth amendment.
    Earlier, the Ranking Member was making some observations 
and the Chair was making observations about the importance of 
having a codified legal standard that defines what torture is. 
Let me talk about why it is significant to have that and why I 
think the Administration made a major error in resisting it.
    In my experience, wherever the legal standard sits, day in, 
day out, conduct by law enforcement officers often falls short 
of that. If you have a pristine legal standard, there are day 
in, day out abuses. So it stands to reason, if you lower the 
legal standard or make the legal standard more imprecise, that 
you will also have a lowering of the bar of conduct.
    Ms. Singh, you are nodding your head. I take it you agree 
with that?
    Ms. Singh. Absolutely. Documents that we reference in our 
book and the FOIA documents confirm that Navy General Counsel 
Alberto Mora referred to this phenomenon as force drift. And 
once there is no longer a bright line rule, that gives 
personnel the impression that they have a license to do 
anything.
    And, in fact, we have one document that is also included, 
mentioned in my written testimony. It describes the homicide 
death of an Iraqi general in Iraq. The Iraqi general was 
asphyxiated to death. The autopsy report classifies the death 
as a homicide death, and the military interrogator who was 
reprimanded for the death defended the use of asphyxiation as a 
SERE method, as a close confinement method, and said it can be 
very effective.
    And this is a perfect example of how, once you deviate from 
long-established prohibitions on torture and cruel, inhuman and 
degrading treatment, it can open the door to extreme versions 
of torture.
    Mr. Davis. So an Administration that is resistant to 
defining torture is implicitly encouraging some level of abuse, 
isn't it?
    Ms. Singh. Certainly.
    Mr. Davis. The last observation I want to make, given the 
time constraint--this is a point that needs to be made, also--I 
certainly understand the observation I suspect Mr. Frank might 
make that al-Qaida doesn't play by any sort of rules anyway, so 
having a rule standard that applies to them may be 
inapplicable.
    But I suspect that someday, somewhere America, or more 
likely one of our allies, such as Israel, will find itself in 
competition with a conventional military, whether it is the 
Iranian Revolutionary Guard or--in Israel's case--perhaps the 
Syrian military or some paramilitary entity like Hezbollah.
    So I want the panel to comment on this last proposition. If 
the United States has set a pattern of torture-like conduct or 
conduct that is clearly, obviously torture, does it not create 
an incentive for an Iranian Revolutionary Guard or some other 
military around the world to engage in the same kind of conduct 
with respect to an American soldier or an Israeli soldier?
    Mr. Nance. I would like to address that. I don't think that 
it creates an incentive, sir. I think it creates a guarantee. I 
believe that we have given them and will give them a legal 
standard to employ enhanced interrogation techniques, not 
torture, to American servicemembers, should they be captured in 
the future.
    You can only do so much preparation of members of the Armed 
Forces, but they have to believe that there is something out 
there which is going to protect them. And I think it would be 
quite devastating if they were to find that our own definitions 
would be applied to them in captivity by other nations.
    Mr. Davis. Mr. Kleinman, do you and Ms. Singh agree with 
that, briefly?
    Mr. Kleinman. Yes, sir, I concur with Mr. Nance's 
observation. I think I would characterize it this way, that if 
we lower the standard and the manner in which we handle, we 
treat detainees, then we create circumstances where others can 
do that to our servicemen and women with impunity.
    Mr. Davis. Or to our allies' servicemen and women.
    Mr. Kleinman. Or to our allies, yes, sir. That is an 
important distinction, as well.
    Mr. Davis. Ms. Singh, do you concur?
    Ms. Singh. I would concur.
    Mr. Nadler. The gentleman's time is expired.
    The gentleman from Virginia is recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Nance, does anybody in the world outside of the United 
States think that waterboarding is not torture?
    Mr. Nance. Not as far as I know, sir.
    Mr. Scott. Now, the definition of torture as it is said in 
press conference with this Administration is somewhat circular. 
We do not torture. If we did it, therefore what we did was not 
torture.
    How does what you understand the Administration definition 
to be differ from the definition in the Geneva Convention?
    Mr. Nance. I can't speak to the definition of torture in 
the Geneva Convention. Geneva Convention Article 17 states that 
a prisoner can only be asked certain questions and cannot be 
done in a coercive environment.
    Mr. Scott. Colonel Kleinman, can you answer the question, 
how the articulated definition of torture differs from what the 
Geneva Convention directs?
    Mr. Kleinman. Yes, sir. I believe I can. Let me answer that 
from an operator's perspective. It doesn't enjoy the distance 
or the legal nuance.
    The question of determining what is torture, some people 
think that is the application of severe pain, as opposed to 
moderate or light pain, is an exceedingly imprecise calculation 
that is beyond the ability of any interrogator. So I have 
defaulted to the idea that the application of any force, 
whether it be psychological, physical or emotional, is beyond 
the standard of the Geneva Convention.
    Mr. Scott. Is a detectable physical injury a necessary 
element of torture?
    Mr. Kleinman. Absolutely not.
    Mr. Scott. Now, advocates have suggested there is a 
possibility that someday we might have a situation where 
torture might get information that would save some lives. Are 
you aware of any situation where that is actually occurred, 
Colonel?
    Mr. Kleinman. No, sir, I am not.
    Mr. Scott. The gentleman from Alabama mentioned the effect 
that being known as a Nation that tortures would have on our 
own troops. If we are known as a Nation that tortures people, 
would that increase or decrease the chance that we would be a 
target of terrorism?
    Mr. Kleinman. I believe that would increase our status or 
the size of the target, writ large, on this Nation.
    Mr. Scott. Torture is a crime. Who is subject to the 
criminal penalties in torture? Is it just the person that does 
the torture? Or can the officers that order it also be subject 
to criminal prosecution?
    Mr. Kleinman. The answer to that--the correct answer is 
that the officers in the chain of command who ordered that are 
the primary responsible party, but anybody who is party to it, 
condones it, supports it, enables it, or affects it is also 
guilty.
    Mr. Scott. How far up the chain of command can you go?
    Mr. Kleinman. That would be a legal nuance that I think I 
would rather defer to somebody better prepared to answer that. 
But I know, as a colonel of the United States Air Force, I 
would take responsibility for anybody under my command that 
conducted themselves in that manner.
    Mr. Scott. Ms. Singh, is there anything that happened at 
Abu Ghraib prison that would be considered torture by this 
Administration's definition?
    Ms. Singh. I would say that, under definitions enacted in 
the Detainee Treatment Act and the Military Commissions Act, 
what happened at Abu Ghraib amounted to torture. It amounted to 
the application of combinations of enhanced interrogation 
methods, such as stress positions, intimidation with military 
working dogs, prolonged isolation, removal of clothing.
    And Navy General Counsel Alberto Mora has specifically 
commented on how not only the combination of these techniques, 
but also these individual techniques themselves can amount to 
torture.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Nadler. I now recognize the gentleman from North 
Carolina for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman. I don't think I will 
take 5 minutes. I just actually have one question.
    Is the term ``torture,'' is there some worldwide definition 
of it? I noticed Mr. Nance said that the Geneva Convention 
doesn't really define it. I am trying to figure out whether 
there is somewhere I can go and look at an articulated, written 
definition of torture or whether, as the Administration would 
have us believe--and perhaps Mr. Frank, based on what I was 
hearing him say--is kind of like pornography. You can't define 
it, but you know it when you see it, and therefore it is in the 
eye of the beholder.
    I guess that is what I am trying to get my arms around. Can 
the three of you kind of respond to that? And that is really 
the only question I have, because as long as it is not defined, 
it is subject to the perception of the beholder, I don't know 
how we get beyond the point that we are at now with the 
Administration.
    Ms. Singh. Well, as to the first part of your question, the 
Convention Against Torture, which was signed and ratified by 
the United States and then implemented into domestic 
legislation, was defined--the implementing legislation defines 
torture as severe mental or physical pain or suffering.
    So it does not--the statute that implements the Convention 
Against Torture does not specifically list particular acts that 
amount to torture, but I believe that that standard certainly 
is instructive for informing the Committee as to what kinds of 
methods could cause severe physical or mental pain and 
suffering.
    And as to whether torture is identified as torture in the 
eye of the beholder, I think there may be some truth to that, 
but certainly the logical implication would be that you must 
then have the information that the beholder has, at a minimum, 
in addition to the information that the person who is being 
tortured has about what it feels like to be tortured. And I 
believe that the Committee has heard testimony to that effect.
    Mr. Kleinman. I think, sir, let me put it this way. Having 
seen coercive techniques being used, having stopped them, 
having been present, I am quite sure--and I think Mr. Nance 
would agree with me--if a law were enacted that required 5 
members of the executive branch and 5 members of the 
legislative branch, appointed or elected, to be present during 
any time we use torture or severe interrogation or enhanced 
interrogation, what term you want to use, and they had to watch 
that, be present and experience it, even vicariously, I think 
any discussion about the use of those methods would cease 
immediately.
    Mr. Nance. I would like to make one comment which----
    Mr. Watt. That, I take it, would be kind of a collective 
``you know it if you see it.''
    Mr. Kleinman. Yes, sir, absolutely.
    Mr. Watt. Okay, that is fine.
    Mr. Nance. I can't speak to the definition with the level 
of preciseness that you might have asked the question. However, 
knowing who I am and knowing what we as members of the Armed 
Forces and the people who serve this country know, I believe 
that we do have a pretty precise moral compass within us.
    And I believe that simple things--and we are not talking 
about the proverbial withholding of Twinkies or your coffee in 
the morning. We are talking about acts and calumnies and things 
which are inflicted upon a human being which, even if they are 
our enemy, would overcome our sense of righteousness or justice 
and would force us to look away for that moment. I believe, 
once you get to that point, you are at torture.
    I have seen it. I have lived in the Middle East, operated 
in the Middle East my whole life, and served this Nation well 
in that regard. And I have met people who have been tortured, 
and I know it when I see it. And my moral compass is quite 
straight on that point.
    Mr. Watt. Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    And we have with us the gentleman from Massachusetts, who 
is a Member of the full Committee, not of the Subcommittee, who 
co-chaired a hearing with this Subcommittee and was asked for 
the courtesy of asking questions. And without objection----
    Mr. Franks. Mr. Chairman, I am afraid I have to--at the 
request of the Ranking Member, I respectfully object to the 
participation of a non-Subcommittee Member. House rules provide 
for the participation in hearings only by Members of that 
Committee or Subcommittee.
    Mr. Nadler. He is a Member of the Committee.
    Mr. Franks. He is not a Member of the Subcommittee, Mr. 
Chairman. House Rule 11 states that each Committee shall apply 
the 5-minute rule during the questioning of witnesses in a 
hearing until such time as each Member of the Committee who 
desires has had an opportunity to question each witness.
    Mr. Nadler. Very well. The Committee will now go into its 
second round of questioning. And if Mr. Delahunt will tell me, 
I will ask the questions for him.
    The Chair recognizes himself for 5 minutes.
    Mr. Delahunt. I would ask the Chair of the Committee--and I 
understand the predicament that the Ranking Member finds 
himself in. And I know him to be a man of integrity and a fair 
man. I think that the practice by the minority in this case is 
not conducive to healthy discourse on this and other issues.
    But I would ask the Chair, if the Chair would pose to Mr. 
Nance, who indicated that he had observed----
    Mr. Nadler. The Chair recognizes himself for 5 minutes.
    My question is to Colonel Kleinman and Mr. Nance, two 
questions, one at a time. If intelligence professionals such as 
the two of you recognize that torture or enhanced interrogation 
techniques, whatever you want to call it, are ineffective, why 
are we doing it?
    Why does the Administration want to--forgetting the 
question of whether it is torture or enhanced interrogation 
techniques, if these techniques, beyond the Army Field Manual, 
are not necessary and ineffective, why does the Administration 
want to do this?
    Mr. Kleinman. Sir, the comments made earlier by Congressman 
Franks, his concern resonates with me, and I am sure with Mr. 
Nance. His concern for the safety and security of the American 
people is foremost on his mind.
    But I would respectfully submit that the method to do it, 
the method to collect the information, the intelligence we need 
to protect the American people needs to be pursued in a 
completely different fashion. It is very unfortunate that 
individuals, even at the highest levels of this Government--
about interrogation from a television show such as ``24'' or a 
detective series, or something they have seen on TV.
    Mr. Nadler. So are you saying, basically, that people in 
the upper reaches of Government are simply overruling the 
intelligence professionals because they think--although they 
may be wrong, they think it is an effective way to do it? Is 
that what your testimony is?
    Mr. Kleinman. Yes, sir. In my experience with talking to 
people who are experienced interrogators, with very, very few 
exceptions, they believe that heavy pressure, coercion, 
enhanced techniques, so forth, are ineffective.
    Mr. Nadler. Well, and, again, my question is, that being 
the case, if the interrogators, professionals being that this 
is ineffective, why are we doing it? And your answer is 
basically that the people in high reaches of Government, who 
are not personally familiar with this, have a belief from other 
sources that it is effective and give instructions in 
accordance with that belief?
    Mr. Kleinman. That would be my take on that, sir. Yes, sir.
    Mr. Nadler. Thank you.
    Mr. Nance?
    Mr. Nance. I agree with that assessment in its entirety, 
sir. What we have is we have senior decision-makers who are not 
looking at the body of evidence, who are not looking at the 
corporate memory and information that is held within, certainly 
on the colonel's side, the human intelligence side.
    And technically they are doing a form of what we call 
joking amongst the chiefs ``Tom Clancy procedures.'' They have 
chosen their procedures from popular media, and they have 
thought that it works in the book; therefore, it must work in 
real life.
    Mr. Nadler. And issued instructions accordingly?
    Mr. Nance. Aye.
    Mr. Nadler. Thank you.
    And let me ask you one further question, both of you. The 
various techniques we have been talking about, the various 
techniques that you know to be used or that you have heard are 
being used--from waterboarding on down--what we are told is 
enhanced interrogation techniques. Are some of these techniques 
torture?
    I think both of you have said that waterboarding is 
torture. Is that correct?
    Mr. Nance. Yes, sir. I think torture, again, in this 
instance, depending on the technique, it is a question of 
intent, duration and effect, once you have executed that 
procedure on that person.
    If you take a cup of coffee and you accidentally spill it 
on yourself, it is an accident. If you take a cup of coffee and 
you pour it into the eyes or nostrils or hand of a person who 
is your prisoner, that is torture.
    So, therefore, something as simple as what we would call a 
stress position, which is a person posing in one way, once it 
makes that lactic acid buildup in your thigh muscles, you can 
make any man scream. Do that repeatedly and repeatedly and 
repeatedly, and you have taken a simple pose and turned it into 
a torture.
    Mr. Nadler. And these are things that the United States at 
present does or has done in recent years and has been labeled 
not to be torture?
    Mr. Nance. I am not privy to whether those actual 
techniques are used in the special actions programs.
    Mr. Nadler. Colonel Kleinman?
    Mr. Kleinman. Sir, I would characterize torture as an 
activity that causes somebody to act against their interests 
based on physical, psychological or emotional pressure rather 
than a thoughtful decision making dynamic.
    And have I seen what I would describe as torture? Yes, sir. 
Have I stopped it? Yes, sir.
    We have the Zimbardo potential out there. Even in this 
room, you would be surprised. There is a small percentage of 
people who, given absolute power, will do the most horrific 
things. That is why we do need standards and why we do need 
legislation to codify it.
    Mr. Nadler. Which leads to my final question. One of my 
colleagues asked about torture standards and concerns about 
torture or what is torture, being in the eyes of the beholder. 
But the Army Field Manual does prohibit specific acts. It 
prohibits waterboarding. It prohibits hypothermia and 
overheating. It prohibits mock executions, among other things.
    So your testimony is that the Army Field Manual--well, we 
know the Army Field Manual makes certain standards clear. And 
it is your testimony, both you and Mr. Nance, that our 
standards ought to be clear and that torture is not in the eyes 
of the beholder, that we are to either use the Army Field 
Manual or some other, more strict--I think you said it should 
be an updated version?
    Mr. Kleinman. Yes, sir. The reason it says that is because 
it is an intelligence manual. It is teaching interrogators how 
to collect reliable intelligence, not how to win compliance or 
force people to do things, such as make propaganda.
    It doesn't wish to address anybody's moral compass or even 
an in-depth legal tome about it. It is just simply, 
operationally, is it effective or not? And torture is not an 
effective way of getting intelligence. That is why it is 
outlawed.
    Mr. Nadler. Okay. Thank you. My time is expired. I am going 
to recognize the distinguished Ranking Member for 5 minutes.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, we are dealing with a very difficult subject 
for all of us today, certainly for me.
    And I want all of the panelists to know that I have the 
deepest respect for their motivations here. Regardless of any 
disagreement I have with you, I think that each Member of this 
panel has shown, at least in my mind, that their intent is 
sincere and they want to do the right thing.
    Having said that, Colonel Kleinman, you had mentioned a 
moment ago--and I tried to make a note of it, and I failed, but 
you mentioned about the definition related to torture being 
physical, psychological, emotional. Can you say that again?
    Mr. Kleinman. Yes, sir. I described torture as an activity 
that applies psychological, physical or emotional pressure to 
cause somebody to do something against their will.
    Mr. Franks. Boy.
    And, Mr. Nance, you defined it--you said it is depending on 
the intent, duration and effect of the activity?
    Mr. Nance. Yes, sir, using the techniques that we were 
discussing.
    Mr. Franks. Okay, that is an important caveat, because, 
when a judge throws a journalist in jail to get them to, say, 
give a source, the intent is to get that person to talk. The 
duration may be a long time, and the effect may be that it gets 
him to talk. And you can't possibly say that that is torture. 
It may be unfriendly, but it is not torture.
    And the physical, psychological and emotional pressure, 
these guys do that to me all the time? I have to sit here. That 
is physical. And the psychological pressure--the Chairman is 
pretty good to me most of the time, but there is emotional 
pressure on all of us.
    And I think therein lies the challenge, to define torture. 
And I want to define it; I absolutely believe that our laws 
against torture are well-placed. I emphasize, again, that 
torture is illegal; that if one of our people tortures someone, 
that they are subject to felony; and that if that person dies 
as a result of that torture, that they are subject to the death 
penalty. I have supported those things.
    And, ironically, the death penalty sometimes gets tangled 
up in this. We have the death penalty in this country not 
because we want to get revenge on bad guys, but because we want 
to keep them from doing it to other innocent people. And so I 
guess I am struggling here.
    But I think that, Colonel Kleinman, you probably make the 
strongest case here, and I think it really goes to the heart of 
everything that we are doing here. And I think you are wrong, 
sir, but I am going to try to give you the benefit of the doubt 
related to--I still believe you are wrong in that, you know, 
that severe interrogations don't result, at times, in gaining 
critically important information.
    I know all the time when we are having even friendly 
discussions with a prisoner that he lies to us at times. The 
interrogator has to take the information and analyze it and 
create references to other known pieces of information to 
ascertain whether or not that there is any reliability there, 
whether it is information that is received under severe 
interrogation or just a friendly cup of coffee, you know?
    So I know that is difficult, but I will say to you that 
Khalid Sheikh Mohammed--I used the example--when the 
interrogators used severe interrogation, he began to reveal 
information after being quiet for months that helped 
authorities--and just to repeat myself--arrest at least six 
major terrorists, including some who were in the process of 
plotting to bringing down of the Brooklyn Bridge, bombing a 
hotel, blowing up U.S. gas stations, poisoning American water 
reservoirs, detonating a radioactive dirty bomb, incinerating 
residential high-rise buildings by igniting apartments filled 
with natural gas, and carrying out large-scale anthrax attacks.
    These were all in the process of being plotted and planned 
to carry out. And we were able to learn that from this 
information that we gained from this evil terrorist.
    And if I were absolutely convinced that we could gain 
nothing to defend the innocents here, I would be on your side. 
But I am not convinced of that, and I don't think the evidence 
supports that.
    So I am going to switch over here, what I have done 
earlier, instead of Senator Schumer, I am going to involve one 
of my heroes, Alan Dershowitz. Now, I say that, he is a fine 
man, but he certainly is confused in many cases, in my opinion. 
But he does have some questions that he asked.
    He is with Harvard Law School, and he wrote these questions 
in the Wall Street Journal yesterday. And here is what he wrote 
about those who would oppose confirming Judge Mukasey because 
of his unwillingness to support an absolute prohibition on 
waterboarding.
    He said, ``Such people should be asked the direct 
question,'' and this is the question I ask you. And I hope each 
one of you--there are three of them. I hope you will kind of 
make a note and give us your response. ``Would you authorize 
the use of waterboarding''--and these are his questions--``or 
other nonlethal forms of torture if you believed that it was 
the only possible way of saving the lives of hundreds of 
Americans in a situation?'' That is one question.
    He also asked, ``Would you want your President to authorize 
extraordinary means of interrogation in such a situation? And 
if so, what means can we use?''
    And finally, Professor Dershowitz asked, ``If not, would 
you be prepared''--and this is a hard one for any of us, and I 
am not trying to trap you here, but if you are not--``would you 
be prepared to accept responsibility for the preventable deaths 
of hundreds of Americans?'' And that is the challenge that I am 
having here.
    So, Colonel Kleinman, I picked on you a lot here, so please 
go, sir.
    Mr. Kleinman. No, sir, you are asking very penetrating 
questions, and I appreciate it. And if I can't answer them to 
your satisfaction, then I have made an error.
    I think Mr. Dershowitz's questions have done nothing more 
than cloud the issue further, and it reflects his lack of 
understanding of the intelligence process behind it. Number 
one, there is a lot of ``ifs,'' there is a lot of ``whens.''
    Human intelligence, if you look back, for instance, in the 
Vietnam War, we had Vietcong who were alleged Vietcong. How 
were they alleged Vietcong? Because another rice farmer pointed 
them out, who happened to be a competitor in the rice market.
    There are cases, if they knew where a nuclear device was or 
if we could get the information and save thousands of lives and 
so forth, interrogation, like intelligence writ large, is a 
very imprecise process.
    Going back to Khalid Sheikh Mohammed, what is reported in 
the papers, the things that you have enumerated, but also 
allegedly that he personally killed, tragically, the journalist 
Daniel Pearl, which evidence suggests that he was nowhere near 
the area at the time.
    So one as an intelligence officer has to ask, well, if he 
gave me these 5 bits of information, which are consistent with 
what we want to be true, and he has given us two or three that 
we can prove that are not true, again, as an intelligence 
officer, I have to wonder about the validity of the whole take. 
I can't cherry pick. That is the challenge we have.
    Mr. Franks. Colonel, don't you have that situation all the 
time? When you have someone in a prison, say, and you just come 
in and say, ``Here, have a cup of coffee, let's talk,'' he is 
still physically and psychologically and emotionally pressured, 
because he is in prison. It is not a fun place.
    And he is having to be interviewed here. And if he has no 
fear of any danger to him, there is still all these elements. 
And you can't know whether he is telling you the truth then or 
not, either. You can't be sure that that is reliable. So do we 
do away with all interrogations completely?
    Mr. Kleinman. No, sir, not at all. And my statement--the 
question about how we define torture literally in a sound bite, 
I am unable to address that to my satisfaction, let alone 
yours.
    But in terms of using coercive methods--let us say the 
waterboarding. As an interrogator, part of what I am asked to 
do is ask questions. I am evaluating not just the answers I am 
getting, but how they are being asked. I am looking for a 
baseline of that individual, their behaviors.
    If suddenly they exhibit these stereodipities, these 
grooming behaviors, when I asked about activities in one town, 
but yet the rest of the time they are sitting with their hands 
folded in front of me, that doesn't indicate that they are 
deceiving, but you look for these clusters, these groupings of 
behaviors.
    That makes me happen to think, when I get this area, it is 
sensitive, and he feels stressed, and that stress is 
manifested, in his case, in certain ways. If his hands are 
tied, if he is shivering, I don't know if he is shivering 
because I am talking about something that is sensitive or 
because it is 45 degrees in his cell.
    It takes away a lot of my tools, a lot of my strategies as 
an interrogator when I use those coercive means. And, plus, 
again, as an interrogator, I am an intelligence interrogator. I 
don't want to make them talk, because the question we have to 
keep asking ourselves, talk about what?
    I want them to tell me not truth, in the sense of what I 
believe is true, but what is really true. What is causing the 
insurgency? Why did they attack on 9/11? What other attacks may 
be coming?
    And a recruitment model, which really informs my approach, 
I have seen it is far more successful. I was sharing with my 
colleague on my left an example where I had an Iraqi general 
who, through developing a very profound rapport, answered all 
the questions I had in the areas that I thought he knew about.
    As I put my papers together in the evening, he said--I 
asked, as a good interrogator, ``Is there anything else that 
you know that I haven't asked about?'' And he asked, ``Do you 
want know where the scud missiles are?'' At that point, it was 
highly critical item, but we, based on his background, would 
never suspect that he would know it.
    Had I used coercion, had I threatened him, he would see, 
``Oh, the session is finally over?'' ``Do you know anything 
more?'' ``Absolutely not.'' Instead, we had that, and I was 
able to go further.
    Mr. Franks. I understand. I am almost yellow here, Mr. 
Chairman. I will just leave a closing thought here.
    I recognize so much of what you are saying is absolutely 
true, Colonel. I just would suggest that sometimes, you know, 
in the case of Khalid Sheikh Mohammed, he was silent. And yet 
we were able to find information that probably saved an awfully 
large number of lives.
    And I know there are circumstances where it may work and 
circumstances where it isn't, but I hate to tie the hands of 
those people who are doing the very best to protect the people 
on this Committee and the people out there that we love from 
having the tools necessary in a crisis situation, within the 
bounds of human conscience, to pursue.
    And with that, I yield back.
    Mr. Nadler. Thank you. The gentleman's time has long since 
expired.
    I am going to ask--that is all right--I am going to ask two 
questions. And if he wishes, I will give the gentleman equal 
time again.
    Following up on Khalid Sheikh Mohammed, during his 
detention, Khalid Sheikh Mohammed provided information on the 
September 11 attacks and on the structure and operations of al-
Qaida. He also confessed to 31 other criminal plots, including 
involvement in killing Wall Street Journal reporter Daniel 
Pearl--and you observed that we have reason to believe he was 
nowhere near where that happened--and alleged plans to 
assassinate President Clinton, President Carter and Pope John 
Paul II.
    Questions and concerns have been raised about the 
reliability of the majority of these claims. According to 
former CIA analyst Bruce Riedel, ``It is difficult to give 
credence to any particular area of this larger charge sheet 
that he confessed to, considering the situation he found 
himself in. Khalid Sheikh Mohammed has no prospect of ever seen 
freedom again, so his only gratification in life is to portray 
himself as the James Bond of jihadism.''
    Could you comment on that? Would you believe, given what 
you know and what he has confessed to, that the information we 
received from Khalid Sheikh Mohammed is wholly reliable, 
partially reliable, or we just don't know?
    Mr. Nance. It is interesting. I have been doing an 
operational study of the organization of al-Qaida internally 
since November 2000. The book is still unwritten. And I have 
taken a look at some of the things that were said by Khalid 
Sheikh Mohammed.
    And speaking from the perspective of SERE, what I would see 
is that I have a person who has learned how to resist. He went 
through the initial process, and it appears that he decided to 
use what information he had, or thought of, or heard about, or 
fantasized in his cell to lessen the intensity of the 
operation----
    Mr. Nadler. And that makes his information reliable or 
unreliable or what?
    Mr. Nance. It makes--well, I am certain that some of the--I 
am not certain. I can't say with absolute certainty. I should 
caveat that.
    Mr. Nadler. You assume.
    Mr. Nance. That some of the information that he has was 
time expiration. And he may have given up people who he felt 
that were absolutely of no use to him or the strategic 
objectives of the organization. Therefore, for the purposes of 
the interrogators, it would appear to be a gold mine. But for 
him and the al-Qaida organization, it was trash, which would 
allow them to carry out their future operations.
    Mr. Nadler. So in other words, your conclusion, based on 
what you know, is that we probably didn't get much useful 
information from him?
    Mr. Nance. I don't know, sir. I don't have all the 
information. The true treasures may be classified at this 
point.
    Mr. Nadler. Okay. One further question, Mr. Nance. You 
testified earlier that you observed numerous interviews of 
former prisoners who claimed that they were tortured by the 
United States, and you observed these interviews in Arabic on 
Middle Eastern television, on Al Jazeera, I think you said.
    Mr. Nance. Yes.
    Mr. Nadler. Do you have any knowledge whether those 
broadcasts of former prisoners on Al Jazeera, talking about 
their experience being tortured by the United States, has that 
has a toll on public opinion of the United States in the 
region? Has it increased anti-American feelings? Has it 
increased--that it hurts not just our image, but more 
importantly the ability to recruit terrorists against us and so 
forth?
    Mr. Nance. It is an excellent question. I have worked in 
the Middle East off and on for 26 years, and I have never met 
the intensity of the hatred of the policies and actions that 
these people believe that we do out of pure malice. And I sit 
there and I try with my heart to convince them that we are a 
people of good people and that this is not what we do, this is 
not who we are.
    Mr. Nadler. And the policies that they believe we are doing 
out of pure malice are what, the invasion of Iraq, torture? I 
mean, what are you referring to?
    Mr. Nance. The first thing that will always come up in Abu 
Ghraib.
    Mr. Nadler. So torture.
    Mr. Nance. And then Guantanamo Bay, and invariably go on to 
the invasion of Iraq, and then they will shift over to the 
Israeli bombing of Qana in southern Lebanon. And then they will 
come up with their 9/11 conspiracy theory.
    Mr. Nadler. But first it is Abu Ghraib, then it is torture, 
Guantanamo, then it is Iraq? And then----
    Mr. Nance. Yes, sir. We have wholly failed in our ability 
to influence them via information operations or through 
positive media portrayals of us, to the point where we are 
going to have decades of very hard work.
    Mr. Nadler. And these are ordinary people? These are 
intellectual elites? I mean, what are you talking about, 
opinion leaders?
    Mr. Nance. Oh, you would be quite surprised the number of 
even emirates, our allies, who will not say this in public, but 
when you get them around the shisha pipe, and you have a small 
chat with them and their families, all of these questions that 
I would get on the streets of Iraq, or the streets of Cairo, or 
the streets of Jordan I get from some of our allies.
    Mr. Nadler. And what do they--do they really think it is 
out of pure malice, we just like hurting people? I mean, why do 
they think we are doing these, from their point of view, 
terrible things?
    Mr. Nance. Well, I would have to start a history of the 
Middle East course here to answer that question.
    Mr. Nadler. Okay, never mind.
    Thank you very much.
    I want to thank the witnesses. On behalf of the 
Subcommittee, I want to thank our witnesses for appearing here 
today and for your testimony on this very important question.
    Without objection, all Members have 5 legislative days to 
submit to the Chair additional written questions for the 
witnesses, which we will forward and ask the witnesses to 
respond to as promptly as you can, so that your answers may be 
made part of the record.
    Without objection, all Members will have 5 legislative days 
to revise and extend their remarks and to submit any additional 
material for inclusion in the record.
    And with that, and the thanks of the Chair, this hearing is 
adjourned.
    [Whereupon, at 12:52 p.m., the Subcommittee was adjourned.]