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



    APPLICABILITY OF FEDERAL CRIMINAL LAWS TO THE INTERROGATION OF 
                               DETAINEES

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 20, 2007

                               __________

                           Serial No. 110-168

                               __________

         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








                            C O N T E N T S

                              ----------                              

                           DECEMBER 20, 2007

                                                                   Page

                           OPENING STATEMENTS

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     1
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     3
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Member, Committee on the Judiciary..     5
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Member, Committee on 
  the Judiciary..................................................     6
The Honorable Sheila Jackson Lee, a Representative in Congress 
  from the State of Texas, and Member, Committee on the Judiciary     7

                               WITNESSES

Professor Stephen A. Saltzburg, The George Washington University 
  Law School
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
Professor John Radsan, William Mitchell College of Law
  Oral Testimony.................................................    14
David B. Rivkin, Jr., Esquire, Baker & Hostetler
  Oral Testimony.................................................    16
  Prepared Statement.............................................    19
Ms. Elisa Massimino, Washington Director, Human Rights First
  Oral Testimony.................................................    21
  Prepared Statement.............................................    24

                                APPENDIX
               Material Submitted for the Hearing Record

Letter dated December 17, 2007, from the Honorable John Conyers, 
  Jr., to the Honorable Michael B. Mukasey, Attorney General of 
  the United States..............................................    66
Letter dated December 7, 2007, from the Honorable John Conyers, 
  Jr., the Honorable Robert C. Scott, the Honorable Jerrold 
  Nadler, and the Honorable William Delahunt to the Honorable 
  Michael B. Mukasey, Attorney General of the United States......    68
Letter dated December 13, 2007, from the Honorable Michael B. 
  Mukasey to the Honorable John Conyers, Jr., the Honorable 
  Robert C. Scott, the Honorable Jerrold Nadler, and the 
  Honorable William Delahunt, with enclosure.....................    70

 
    APPLICABILITY OF FEDERAL CRIMINAL LAWS TO THE INTERROGATION OF 
                               DETAINEES

                              ----------                              


                      THURSDAY, DECEMBER 20, 2007

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:10 a.m., in 
room 2141, Rayburn House Office Building, the Honorable John 
Conyers, Jr. (Chairman of the Subcommittee) presiding.
    Present: Representatives Conyers, Nadler, Scott, Jackson 
Lee, Cohen, and Smith.
    Staff Present: Sean McLaughlin, Minority Deputy Chief of 
Staff; and Allison Beach, Minority Counsel.
    Mr. Conyers. Good morning, the Committee will come to 
order. I welcome everyone for coming. The purpose of this 
hearing of course derives from the recent revelation of the 
destruction of the CIA videotapes, which involve hundreds of 
hours of audio and visual and we are concerned about the 
decision to destroy them and a number of questions have been 
raised that are ripe for congressional oversight.
    The enhanced interrogation techniques reportedly depicted 
on the tapes implicate various laws governing the proper use of 
interrogation techniques as we have come to understand them. 
And the destruction of the tapes and the issues surrounding the 
investigation of the matter raises obvious questions of 
obstruction of justice, as well as the ability of coequal 
branches of government to initiate their own inquiries.
    So I welcome our witnesses here, and I regret the absence 
of a representative from the Department of Justice despite 
repeated requests, including my letter of December 17. Attorney 
General Mukasey hasn't sent anyone here to testify. We have not 
even gotten a letter explaining why, although I am encouraged 
by reports in the press this morning that the Department may be 
yielding to the demands for a congressional oversight with 
reference to the House Intelligence Committee. We will look 
forward to a long overdue discussion with the head of the 
Department of Justice when we return in January.
    Now another reason for this gathering today is that this is 
the first public hearing and discussion on the issues connected 
with the government's interrogation of detainees since the 
incredible news of the CIA's destruction of videotapes. Up 
until now, the Senate Intelligence Committee has had a hearing, 
but it was secret. The Department of Justice tells us that they 
have an inquiry going on. That is secret. And so it is 
important that we try to get an understanding, not only between 
ourselves and our experts invited here today, but that the 
American people be given a little more understandable 
information about the very serious matters raised in connection 
with this subject matter.
    One of the most important responsibilities of the Judiciary 
Committee is its oversight capacity. That was demonstrated when 
we illustrated the firing of the U.S. attorneys, some nine of 
them, and the politicization that was involved in that. And so 
oversight is something we, all of the Members, are very zealous 
about maintaining.
    Now the purpose of this hearing is to explore the who, how, 
when, where, why of the destruction of the videotapes and, as 
importantly, what might have been shown on them. Now there are 
those that say, well, they are gone now, there is nothing that 
we can do. Well, I wish I knew that with any particular 
certainty. I don't know if there are any copies around. There 
are certainly people who do know what went on and are still 
around. There are those that seem to know what was on these 
tapes and that becomes another very important reason for our 
inquiry. And then to separate out all the various laws that 
govern such activity.
    You start from my point of view with the Geneva Conventions 
and the Convention Against Torture ratified in 1941, 1977, 
1984. These are international obligations that we urged other 
nations to join with us on. We were the leaders in this brave 
new examination of how we should treat those with whom we don't 
agree. And we urged others to sign and that required our 
country as well to prohibit and to criminalize acts of cruel 
and inhuman and degrading treatment. We criminalize those kinds 
of violations of treaty which of course are law in this 
country.
    The Administration originally claimed that these 
obligations didn't apply to detainees held or connected with 
the war on terror, but the United States Supreme Court objected 
to that position in the Hamdan case. This is the first time we 
have had a chance to hear and discuss the issues that are 
involved. We want to have it made clear that the Geneva 
Convention applies to the treatment even of people that may be 
or are connected in this anti-terrorist activity.
    Although the Administration convinced the previous Congress 
to enact laws to try to mitigate that decision, we will hear 
from experts today that torture is still cruel and inhumane and 
degrading, including waterboarding, and may well subject those 
interrogators and those above them who approved it to legal 
liability. That is an important reason why the destruction of 
the tapes may well have been an obstruction of justice.
    Like many others, I believe that the idea of appointing a 
special counsel to independently investigate and prosecute 
violations of Federal criminal laws regarding the interrogation 
of detainees and others is a prudent way for a variety of 
reasons. First, there is credible evidence, numerous Federal 
crimes; second, that the White House itself attempted to shield 
government officials from criminal prosecution; third, the 
Attorney General Mukasey has still not told us whether 
waterboarding and other forms of torture are outright illegal; 
and, fourth, the Department of Justice wrote the legal opinions 
authorizing torture.
    So tomorrow we will be hearing from a Federal court that 
has gone into this matter and we will be waiting for their 
results. So I congratulate those Members of the Committee that 
were able to be with us today. We thank them for their interest 
and cooperation. There is no way we can tell when we were going 
to get out of here. Things got better and we were able to 
officially close the proceedings on the floor yesterday. So I 
look forward to the Members of the Committee's inquiry about 
these important issues, and I am very grateful that the 
witnesses are here today.
    I would now like to recognize Lamar Smith, who is the 
senior Ranking Member of the minority from Texas who has worked 
with me this first year in a way that has surprised and pleased 
us all. We are grateful for his cooperation and insight into 
the objectives of the Judiciary Committee, and I am pleased to 
recognize him at this time.
    Mr. Smith. Thank you, Mr. Chairman. Mr. Chairman, you were 
complimentary of the Members who are able to be here today. 
Unfortunately, that compliment can only apply to me for a very 
short period of time because I am trying to get to the airport, 
but I appreciate your having the hearing and if I may, I will 
make my opening comments even if I have to leave shortly after 
that.
    Mr. Conyers. Thank you.
    Mr. Smith. Mr. Chairman, the Justice Department in 
conjunction with the CIA's Office of the Inspector General has 
already begun a preliminary inquiry into the circumstances 
surrounding the discarding of two videotapes of CIA 
interrogations of terrorists. I understand that all records and 
documentation that would facilitate the inquiry are in fact 
being preserved.
    What we do know is that members of both political parties 
had been fully briefed on the CIA's interrogation program and 
no objections were raised. According to The Washington Post in 
September 2002, four Members of Congress met in secret for a 
first look at a unique CIA program designed to bring vital 
information from reticent terrorism suspects in U.S. custody.
    For more than an hour the bipartisan group, which included 
current House Speaker Nancy Pelosi, was given a virtual tour of 
CIA's overseas detention sites and the harsh techniques 
interrogators had devised to try to make prisoners talk. Among 
the techniques described, said two officials present, was 
waterboarding. On that day, no objections were raised. The 
enhanced interrogation program would be treated as one of the 
Nation's top secrets for fear of warning al-Qaeda members about 
what they might expect.
    The Post continued, saying U.S. officials knowledgeable 
about the CIA's use of the technique say it was used on three 
individuals, the alleged master mind of the September 11, 2001 
terrorist attacks, a senior al-Qaeda member and Osama bin Laden 
associate captured in Pakistan in March 2002 and a third 
detainee who has not been publicly identified.
    According to CIA Director Hayden, the videotapes of the 
terrorist interrogations were discarded to both protect the 
identities of the interrogators and keep them out of the hands 
of terrorists who might use the information to develop 
effective counter strategies. But while we can't watch the 
videotapes, ABC News conducted a very telling interview with 
one of the former CIA officials, John Kiriakou, who was 
involved in one of the videotaped interrogations of terrorist 
Abu Zubaydah.
    When the terrorist Zubaydah, a logistics chief of al-Qaeda, 
was captured, he and two other men were caught in the act of 
building a bomb. A soldering gun that was used to make the bomb 
was still hot on the table along with building plans for a 
school. Zubaydah refused to offer any actual intelligence until 
he was waterboarded for between 30 and 35 seconds. According to 
Mr. Kiriakou, from that day on he answered every question. The 
threat information that he provided disrupted a number of 
attacks, perhaps dozens of attacks.
    When a former colleague of Kiriakou asked Zubaydah what he 
would do if he was released, he responded, I would kill every 
American and Jew I could get my hands on. Near the end of the 
ABC interview Mr. Kiriakou was asked what happens if we don't 
waterboard a person and we don't get that nugget of information 
and there is an attack on a movie theater or shopping mall or 
in midtown Manhattan, you know, at rush hour, then what would 
we do? I would have trouble forgiving myself.
    According to reports, Khalid Sheikh Mohammed, the 
mastermind behind the 9/11 attacks that killed 3,000 people, 
stayed quiet for months until he was waterboarded for just 90 
seconds. After that he revealed information that led to the 
capture of many other terrorists, including those who were 
plotting to derail trains, to use acetylene torches to bring 
down the Brooklyn Bridge, to bomb hotels and nightclubs, 
detonate U.S. gas stations, poison American water reservoirs, 
trigger radioactive dirty bomb attacks, incinerate residential 
high-rises by igniting apartments filled with natural gas and 
cultivating anthrax.
    There are clear laws governing CIA interrogation. 
Specifically, U.S. law prohibits persons in the custody or 
control of the U.S. Government, regardless of nationality or 
physical location, from being subjected to cruel, inhuman or 
degrading treatment or punishment. The Supreme Court has made 
it clear that such unconstitutional acts are only those that 
shock the conscience.
    What shocks the conscience depends entirely on the 
circumstances and purpose of the interrogation. For example, if 
someone were picked at random on the streets of New York and 
waterboarded, that would undoubtedly shock the conscience. But 
what if that person was one of the 9/11 terrorists or perhaps a 
known terrorist with information that could save hundreds or 
thousands of lives? Waterboarding a member of al-Qaeda or a 
known terrorist as a last resort to save the lives of thousands 
of people would not shock the conscience.
    Mr. Chairman, we should be careful not to unjustly 
persecute anyone, especially those whose efforts enable us and 
our families to sleep better at night.
    Thank you, Mr. Chairman, I yield back.
    Mr. Conyers. I thank the gentleman. I am glad that he made 
his opening statement.
    I am now pleased to call upon the Chairman of the 
Constitution Committee of the House Judiciary. His name is 
Jerry Nadler, senior member of the Judiciary Committee, and we 
recognize him now for his opening comments.
    Mr. Nadler. I thank you, Mr. Chairman. Mr. Chairman, I want 
to commend you for scheduling this timely hearing into some 
very disturbing reports. It is important that we investigate 
these allegations carefully, because it is true we may be 
facing the possibility of a dangerous and criminal abuse of 
power at the highest levels of our government.
    The matters at stake here are far from trivial. We have 
been investigating the abuse of prisoners in U.S. custody, as 
well as the practice of turning over individuals to other 
countries designated by our government in those countries that 
routinely engage in torture. We have also investigated the 
practice of holding individuals, many of whom our government 
now concedes are innocent of any wrongdoing, for years without 
any hearing or due process of any sort. We have also 
investigated widespread spying on Americans without any legal 
authorization.
    We have been told that the surveillance was not a violation 
of criminal law, but I know of no possible excuse other than 
those absurd ones told by the Administration that could justify 
that conclusion. At every turn we have run into concerted 
efforts to stonewall the public, the Congress and the courts. 
They have refused to testify, they have withheld vital 
information, they have flouted subpoenas.
    Today we examine perhaps the most disturbing of all 
allegations that our government destroyed tapes of 
interrogation which employed what it euphemistically called 
extreme interrogation techniques and what civilized people call 
torture. These tapes clearly spoke to many of the cases in 
question that the Congress, the public, and the 9/11 Commission 
have debated, including unlawfulness of the interrogation 
methods used, evidence for proceedings against those held as 
unlawful enemy combatants. The destruction of these tapes may 
have occurred in violation of a court order and while it was 
known that the matter was under investigation, they were 
concealed from the 9/11 Commission, the existence as well as 
the destruction of the tapes. They concealed it from the 9/11 
Commission, from the Intelligence Committee, and the Congress.
    These tapes may very well have been relevant in at least 
one criminal prosecution, and their destruction may ultimately 
result in the release of a convicted terrorist. These actions 
raise some very disturbing questions, the answers to which may 
determine whether we remain a Nation of law.
    Who ordered the destruction of the tapes and why? Who knew 
about the existence of the tapes and their destruction? What 
did the President and the Vice President know and when did they 
know it? Who in the White House was involved in the decisions 
leading up to the destruction of these tapes? What other 
evidence, if any, has been concealed or destroyed? Did the 
destruction of the tapes constitute a crime? And if so, who in 
the Administration is criminally liable? Did the acts recorded 
in the tapes constitute a crime or crimes? Were any of the 
decisions made by our government and Congress, including the 
decision to declare detainees not to be prisoners of war but to 
allow the President to define retroactively what constitutes 
illegal torture? Were any of these decisions made to protect 
people in this Administration from prosecution for criminal 
acts? These are very disturbing questions and ones to which we 
need answers.
    Mr. Chairman, in times of crisis it is always beneficial to 
remember the principles upon which this Nation was founded. It 
was John Adams who observed that, ``Power always thinks that it 
is doing God's service when it is violating all the laws.'' We 
are supposed to be a Nation of laws and we are a free and 
democratic Nation but, as we are often reminded, freedom isn't 
free. Today is the day when we must decide whether we are going 
to pursue the difficult questions that are necessary to pursue 
in order to protect our freedoms.
    I look forward to the testimony of our witness, and I thank 
our Chairman again for calling this important and timely 
hearing. I yield back the balance of my time.
    Mr. Conyers. Thank you very much. I would like to inquire 
if the Chair of the Crime Committee would like to make an 
opening statement.
    Mr. Scott. Just very briefly, Mr. Chairman.
    Mr. Conyers. The gentleman from Virginia is recognized for 
that purpose.
    Mr. Scott. Thank you, Mr. Chairman. I thank you for holding 
the hearing because I think it is important for us to know 
exactly what the laws are against torture. We have heard an 
interesting response from the Administration that goes along 
the lines of United States does not torture. If we did it, 
therefore that must not have been torture because we don't 
torture, and furthermore the torture worked. We need to know 
what the laws are and who may have violated the laws.
    What was on the tape? Were criminal laws documented? We 
have heard we can't tell whether or not a particular technique 
is torture until we have some more specifics. If we had it on 
tape, people could look at the tape and ascertain whether or 
not that was torture, but the tape, the evidence has been 
destroyed. Who was responsible for the destruction and what 
criminal laws could be implicated by the destruction itself?
    We have heard that four Members of Congress were briefed on 
this. Some have publicly contradicted some of the statements by 
the Administration. But even if there is no complaint, four 
Members of Congress can't change the criminal laws. So insofar 
as Administration officials have been publicly implicated, from 
writing legal memos justifying both what seems to be torture to 
most people and the destruction of the documents, many had 
knowledge of the tapes before the destruction, the tapes were 
not disclosed when required apparently to the 9/11 Commission, 
to Congress, and to the courts.
    Mr. Chairman, for those reasons I think it is essential 
that we have an independent counsel appointed, because so many 
Administration officials from top to bottom from the CIA, 
Department of Justice, and the White House have been implicated 
in this matter. So I join your call for an independent counsel. 
I yield back the balance of my time.
    Mr. Conyers. Thank you very much.
    I don't think I have to ask Sheila Jackson Lee if she wants 
to make a comment because she takes full advantage of the 
experience that she brings to the Judiciary Committee, and I'd 
be happy to recognize the gentlelady from Texas at this time.
    Ms. Jackson Lee. Good morning. Thank you, Mr. Chairman, and 
thank you for being the kind of responsive chairperson that is 
made aware or is aware, if you will, of some of the important 
challenges that this Nation faces. We do know that we live in a 
different world after 9/11 and we respect that difference. It 
is the obligation of this country to ensure the safety of all 
Americans. But I believe that the American people did not want 
us to extinguish the Constitution in the backdrop of protecting 
our security.
    Let me acknowledge the distinguished witnesses that we will 
listen to and offer a few thoughts about the importance of this 
hearing.
    The representation is that the CIA in 2005 destroyed at 
least two videotapes documenting the interrogation of two 
senior al-Qaeda operatives in the agency's custody. The CIA 
reportedly took this step in the midst of congressional and 
legal scrutiny pertaining to the CIA's detention program, a 
major challenge to the Constitution. It is also important to 
note that Congressman Peter Hoekstra, the Intelligence Chairman 
from 2004 to 2006, explained that he was never briefed or 
advised that the tapes existed or that they were going to be 
destroyed. Furthermore, it is also noted that Congresswoman 
Jane Harman, the Ranking Member of the Intelligence Committee, 
explained that she had told CIA officials several years ago 
that destroying any interrogation tapes would be a bad idea.
    I too want to protect the operatives and certainly don't 
want to put their families in jeopardy, but we cannot have a 
government that is out of control. Questions of obstruction of 
justice rage throughout this incident, and I believe it is 
important for this congressional Committee to chiefly have 
oversight as to whether or not the Constitution has been 
violated.
    It has been alleged, and I say alleged, that several then 
White House lawyers, Alberto Gonzales, David S. Addington, Don 
Bellinger, III, and Harriet Miers, allegedly had some 
involvement in counseling regarding the tapes in question.
    The destruction of the tapes has raised questions about 
both the possibility that the tapes documented unlawful conduct 
and that their destruction in and of itself was unlawful. It is 
sad to note that many institutions were forbidden from getting 
information regarding the tapes, including Congress, the 
Federal courts and the 9/11 Commission. This government has to 
be based upon truth and transparency and it certainly must be 
based upon security and the protection of America. But the 
United States does not make those practices violating the laws, 
violating the Constitution, violating the International 
Convention on Torture. It must not make that the norm and 
acceptable practices. Therefore, we must not draw to the 
practices of foreign dictators, but we must stand alone as a 
beacon of light, shining around the world, to ensure that the 
principles of democracy and freedom and equality and justice 
reign strong in this Nation.
    And so I am grateful for this hearing and look forward 
enthusiastically to the testimony of the witnesses. I join with 
my colleagues in calling on an independent prosecutor to ensure 
that justice reign strong. I look forward to the testimony, and 
I yield back my time and ask that my complete statement be 
submitted into the record.
    Mr. Conyers. Without objection, so ordered.
    We welcome from the Human Rights First, Lisa Massimino. We 
welcome Attorney David Rivkin of Baker & Hostetler. We are 
delighted to have with us Professor John Radsan, and we begin 
our testimony with Professor Steven Saltzburg, Wallace and 
Beverly Woodbury University Professor of Law at George 
Washington University.
    He has had extensive prosecutorial experience. He has been 
Associate Independent Counsel in the Iran-Contra investigation, 
was later Deputy Assistant Attorney General in the Criminal 
Division, and we are pleased that he has prepared a statement. 
And his statement, like every one here, will be entered into 
the record and you may make your presentation at this point. 
Professor, welcome this morning.

         TESTIMONY OF PROFESSOR STEPHEN A. SALTZBURG, 
          THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Saltzburg. Thank you, Mr. Chairman, Members of the 
Committee. I don't intend to read my testimony since you 
already have it, but I would like to highlight some points.
    First, there isn't any dispute about the destruction of the 
tapes and that it happened. Second, the rationale for 
destroying the tapes to protect the identity of the 
interrogators is almost as embarrassing as the destruction 
itself. There are four facts that demonstrate this. One, the 
tapes could have been modified to make the faces and voices 
unrecognizable. Second, one copy of each tape could have been 
maintained in a secure place. Third, the CIA keeps a record of 
who interrogates in an interrogation. So even with the tape 
gone there is a record. And fourth, the interrogators and 
others in the CIA know who did the interrogation.
    And so the explanation for destruction fails the straight 
face test. It is unnecessary to prevent the tapes from 
revealing the identities of the interrogators and the 
destruction doesn't protect their identities.
    And so the question is what does it tell us when an agency 
gives an excuse that plainly is frivolous? It says that there 
is another reason why these tapes were destroyed. And the only 
plausible explanation I believe is that the CIA wanted to 
assure that those tapes would never be seen by any judicial 
tribunal, not even a military commission, and they would never 
be seen by a Committee of Congress or any individuals in 
Congress.
    Over the last several years, when this House and the Senate 
considered the Detainee Treatment Act of 2005 and the Military 
Commission Act of 2006, Members have been asked their opinion 
about whether waterboarding is torture. They have been asked 
whether or not they support restrictions on CIA interrogation. 
And one of the problems is that terms like ``waterboarding'' 
are tossed around as though everybody seems to believe that 
they know what they are talking about.
    One of the things that we would love to know is whether 
what those tapes showed was that the actual implementation of 
waterboarding was quite a bit different than people assumed it 
would be. In fact it might have been quite a bit different from 
what the Members of Congress, the four Members who had a secret 
session, were told in an earlier year. I mean, if they showed 
nothing more than what was already known to Congress, there 
would be no need for them to be destroyed.
    The destruction of the tapes means that there will 
inevitably be disputes about what actually occurred during the 
interrogations. The tapes themselves would have been 
indisputable, but with them gone we have the ultimate coverup. 
The indisputable evidence no longer exists and memories will 
undoubtedly differ about what happened.
    Now despite the fact that the tapes have been destroyed the 
Department of Justice originally asked Congress to stay its 
hand, not to investigate, and I think that would be a major 
mistake. The Department seems to have changed its mind at least 
to some extent. It is vitally important for this Congress to 
recognize that it is part of the interrogation process, that it 
regulated to some extent interrogation when it enacted those 
two statutes in 2005 and 2006. This Congress decided not to 
restrict the CIA, at least not explicitly, and it decided not 
to confine the CIA to interrogation techniques that are 
contained in the Army Field Manual. And one of the issues that 
the Congress may well want to consider is should the CIA be 
restricted.
    This is not a Republican issue and it is not a Democratic 
issue. This is an issue about credibility of the United States. 
When United States officers act in a way that is regarded as 
torture around the world; when United States officers engage in 
practices which, if inflicted upon our own military, we would 
regard as reprehensible, we would regard as violations of the 
Geneva Conventions, we would regard as war crimes, and we would 
regard as things that should be prosecuted; then it is 
important for Congress to look and make its own judgment about 
whether or not what is going on is something that can be done 
in the name of the United States.
    There are a number of questions for Congress to ask and 
demand answers to. Some of these are: What specific reasons 
were actually advanced for the tapes' destruction in 2005 and 
are those reasons set forth in writing? If they are, who wrote 
those reasons? And were those reasons vetted inside and outside 
the agency? If so, what were the responses? Were they vetted by 
the Department of Justice? If so, what were its responses?
    Two other questions that should be asked are these: Are the 
frivolous explanations that are being offered in 2007 the same 
explanations that were actually given in 2005? And why was the 
destruction of these tapes kept secret for some period of time? 
The longer the time, the harder it is to reconstruct what 
actually happened. Congress already has a 2-year gap to worry 
about and it is important that Congress not wait any longer to 
do an investigation.
    Another issue for Congress to consider is whether there 
should be restrictions on destruction of other forms of 
evidence. Whether or not the CIA should be required to maintain 
certain records for an extended period of time or perhaps 
forever is a debatable question. I don't think the answer is 
clear, but I do think it is important that Congress should look 
to the practices of the agency and decide whether or not those 
practice are acceptable.
    Without meaning to be insulting, I think the fact is that 
Congress was effectively absent for 4 or 5 years from the 
debate about the war on terror after the attacks of 9/11. 
Congress watched as Guantanamo unfolded and Congress did 
nothing to restrain an Administration committed to creating a 
new detention regime and new system of justice if you think 
that term can accurately be used to describe Guantanamo.
    Congress finally awoke and exercised some oversight 
responsibility in 2005 and 2006, but that oversight 
responsibility largely rubber stamped everything that the 
Administration did. With the destruction of these tapes it is 
clear that Congress no longer can afford to be a rubber stamp. 
Congress must be a coequal, co-responsible branch of 
government, exercising the oversight function the framers of 
the Constitution so clearly intended.
    Congress can exercise this oversight role without 
interfering with or infringing upon the Department of Justice. 
The Intelligence Committees have the ability to consider 
classified information in very secure situations. This 
Committee can hold closed hearings as well as open hearings and 
therefore adjust the hearings to deal with the sensitivity of 
the information before it.
    As the Chairman noted back in the 1980's, I served as 
Associate Independent Counsel on Iran-Contra. I also then 
represented the Department of Justice in dealing with 
classified information in that case. It was important that 
Congress get to the bottom of Iran-Contra and it is important 
that Congress get to the bottom of the destruction of these 
tapes. There is no reason to believe the congressional 
investigation would jeopardize any future criminal 
prosecutions.
    What we learned is Congress has got to be careful about 
immunizing testimony, particularly public testimony. That is a 
lesson of Iran-Contra. But we also learned that Congress can 
proceed full bore if it proceeds carefully with its own 
investigation and criminal prosecutions can still ensue.
    There are a number of questions that Congress needs to ask, 
a number of answers that Congress needs to provide. The most 
important thing, I believe, is that Congress needs to exert 
itself to demonstrate that it can fulfill and is committed to 
fulfilling its constitutional role of oversight over all 
branches of the executive.
    Thank you.
    [The prepared statement of Mr. Saltzburg follows:]
               Prepared Statement of Stephen A. Saltzburg
    Chairman Conyers, Ranking Member Smith, Members of the Committee, 
it is always an honor and a privilege to appear before you. Today, it 
is also an opportunity, an opportunity to discuss with you the 
importance of Congress investigating without delay the destruction of 
interrogation tapes by the Central Intelligence Agency (C.I.A.).
    We know very little about the tapes that were admittedly destroyed 
in 2005, and even less about the decision-making process that led to 
their destruction. News reports indicate that lawyers in the White 
House and possibly in other parts of the Administration advised the 
C.I.A. not to destroy the tapes, and that despite this advice lawyers 
within the C.I.A. signed off on the legality of the destruction before 
it was approved by a high agency official.
    The only justification offered thus far for destroying the tapes--
i.e., to protect the identity of interrogators--is completely 
unpersuasive. Indeed, the explanation is almost as embarrassing as the 
destruction. Consider these facts:

        1.  The tapes could have been modified to make the faces and 
        voices of the interrogators unrecognizable.
        2.  One copy of the tapes could have been maintained in a 
        secure place with limited access.

        3.  The C.I.A. must keep a record of who interrogated whom for 
        various reasons, so that even with the tapes destroyed there is 
        a record of who the interrogators were.

        4.  The interrogators and others within the C.I.A. know who 
        conducted the interrogations, and as long as they are alive 
        there is the possibility that the identity of an interrogator 
        will be revealed.

    In sum, the explanation offered for the destruction of the tapes 
does not pass the straight-face test. It is flawed in two fundamental 
ways. First, the destruction was unnecessary to prevent the tapes from 
revealing the identities of interrogators. Second, the destruction does 
not prevent the disclosure of identities.
    When an agency's explanation for its actions is plainly frivolous, 
one must consider what the real explanation for that action must be and 
why the agency is desperate to conceal this explanation. In my 
judgment, the only plausible explanation for the destruction of the 
tapes is that they were destroyed to assure that they would never be 
viewed by any judicial tribunal, not even a military commission, or by 
a congressional oversight committee.
    Over the last several years, Congress has debated whether certain 
forms of interrogation constitute torture. But, the debate has been at 
a certain level of abstraction. Both this House and the Senate in 
various hearings have asked witnesses whether techniques like 
waterboarding constitute torture, but the testimony has assumed that 
members of Congress and witnesses share a common understanding of how 
techniques were and are actually employed. Videotapes of 
interrogations--particularly interrogations of ``high value'' 
detainees--would provide concrete details and permit members of 
Congress to see how techniques are employed against actual human 
beings.
    It is probable that during military commission trials and perhaps 
future proceedings in federal civilian courts, issues will arise as to 
whether confessions were coerced and whether they are reliable enough 
to be used as evidence. It will not be surprising if conflicting 
testimony arises as to what interrogators did, how long they did it, 
the frequency of their actions, and the physical and mental hardships 
inflicted upon detainees. A videotape of an interrogation of one 
detainee might provide circumstantial evidence as to how other 
detainees were interrogated, especially if they were interrogated by 
the same individuals or individuals trained by the same agency.
    Destruction of the videotapes assured that what might have been 
incontrovertible evidence of what occurred during interrogation 
sessions will never be available to any court, congressional committee, 
or government investigator. It is the ultimate cover-up. With the tapes 
destroyed, anyone seeking to determine with precision what occurred 
during an interrogation will be forced to depend on testimony from 
witnesses who have different perspectives and biases and whose 
recollections are virtually guaranteed to differ.
    Now that the tapes have been destroyed, the Attorney General has 
asked Congress not to investigate their destruction for some period of 
time and to defer to the Department of Justice's own investigation. I 
applaud the Department's immediate reaction to learning that the tapes 
were destroyed and its initiation of an investigation. But, I believe 
it would not only be a mistake for Congress to do nothing at this 
point; it would be an abdication of responsibility.
    The Administration persuaded Congress to address the treatment of 
detainees and interrogation methods in two major pieces of litigation: 
the Detainee Treatment Act of 2005, and the Military Commission Act of 
2006. This legislation restricted the interrogation methods that may be 
employed by the Department of Defense and its components, but did not 
restrict the methods used by the C.I.A. Moreover, Congress has provided 
that statements obtained from detainees through coercive methods may be 
admitted in military commission trials. Congress therefore has both 
declined to impose upon the C.I.A. the same interrogation restrictions 
it imposed upon DOD, and Congress has adopted evidence rules for 
military commission proceedings based upon its understanding of the 
types of interrogation actually conducted by United States officers.
    The destruction of the videotapes surely requires Congress to ask 
itself what it might have learned had its intelligence committees been 
aware of the tapes and been permitted to review them. For several years 
now, Congress has debated whether interrogation techniques constitute 
torture, how torture should be defined, and how it should be punished. 
Congress enacted legislation based upon assumptions. The videotapes 
might well have informed the debate by replacing assumptions with 
undisputed facts. So, Congress has an obligation to ask what it might 
have learned from those tapes, and there is no time to waste and no 
reason to wait to decide whether the legislation previously passed 
needs reconsideration.
    The Department of Justice investigation will focus on whether laws 
were broken when the tapes were destroyed, and perhaps that inquiry 
will lead to an inquiry into whether the tapes reveal criminal acts 
(which might well not be prosecuted as a result of the Military 
Commission Act of 2006). The inquiry by Congress ought to focus on 
other, equally important issues. These include, but are not limited to, 
the following:
    Who was alerted to the fact that the C.I.A. was considering 
destroying the tapes? When were they alerted? And what advice, if any, 
did the knowledgeable individuals give to the C.I.A.? The reason for 
asking these questions is to determine how decisions were made, which 
agencies were involved, and the quality of advice, both legal and 
practical, that was provided. I note that the New York Times reported 
last week that the Department of Justice has refused to indicate to 
Congress what role it might have played in the destruction of the 
tapes. This refusal is all the more reason for Congress to investigate 
and to investigate now. It is important for Congress to know which 
agencies were consulted before the tapes were destroyed and the nature 
and quality of any counsel provided by these agencies.
    What specific reasons were advanced for their destruction at the 
time the tapes were destroyed? Are those reasons set forth in writing, 
and if so, by whom? Were those reasons vetted inside and outside the 
agency, and if so, what were the responses? Since it is inconceivable 
that anyone could truly believe that the destruction was either 
necessary or sufficient to protect identities, the question that 
naturally arises is whether the explanation given in 2007 squares with 
the reasons set forth in 2005. If it should turn out that a deliberate 
decision was made to deny courts and Congress ``evidence,'' Congress 
might well decide that new legislation on record preservation is 
required.
    Why was the destruction kept secret for as long as it was? A delay 
between an action and review of that action means that memories will 
fade, and reconstruction of events will be more difficult. It will be 
hard enough for Congress to obtain accurate, complete answers 
concerning events that are now more then two years old, but it becomes 
more difficult with the passage of time.
    Should the restrictions on interrogation imposed on the Department 
of Defense be extended to the C.I.A.? This question has been debated 
over several years, but the destruction of the tapes is a reason to 
revisit it. I do not mean to suggest that the answer will suddenly be 
agreed upon by all. But, destruction of the tapes may suggest that 
there are reasons why the C.I.A. did not want them to be seen by a 
Congress that has considered imposing interrogation limits.
    Should there be prohibitions on destruction of videotaped 
interrogation sessions and possibly other evidence gathered in the 
``war on terror?'' Perhaps the answer is no, but the question is 
important and requires some careful thought--now, not tomorrow, and not 
next year. It is possible, despite the adverse public reaction to the 
disclosure of the destruction of the tapes, that C.I.A., the Department 
of Defense or some other federal agency will destroy additional 
material in months to come. Congress needs to know sooner rather than 
later the advice that was given to the C.I.A., the true rationale for 
its action, and whether destruction of additional evidence is planned 
or possible. Only with knowledge can Congress decide whether 
legislation is needed to protect and preserve evidence.
    Congress was effectively absent after the attacks of 9/11 for years 
while it gave almost complete deference to the Executive to detain and 
interrogate those deemed ``suspected terrorists.'' Congress watched as 
Guantanamo unfolded and did nothing to restrain an Administration 
committed to creating a new detention regime and system of justice if 
that term may be used to describe Guantanamo.
    Congress finally awoke and enacted two major statutes in 2005 and 
2006. These statutes ratified rather than restricted much of what the 
Administration had put in place. Congress therefore shares 
responsibility for the types of interrogation that United States 
officers may utilize and for the evidentiary use that may be made of 
the results. That responsibility should require Congress to find out 
what was lost when the videotapes were destroyed and to consider 
whether changes in United States law should be made with respect to 
interrogation and use of evidence in military commission proceedings. 
Congress also should consider whether, in its oversight of the 
Executive it is necessary to prevent destruction of evidence that might 
inform the oversight function. Congress might even consider whether new 
laws are needed to assure that Executive agencies do not inhibit 
congressional inquiry or reduce the reliability of judicial 
proceedings.
    Congress can exercise its oversight role without interfering with 
or damaging the investigation by the Department of Justice. Congress 
can utilize its intelligence committees to consider certain sensitive 
information in secure settings. It can hold closed hearings on matters 
that are less sensitive but cannot be publicly disclosed without risk 
of compromising important governmental interests. And Congress can hold 
public hearings on broad questions such as whether governmental 
agencies should be required to maintain certain types of evidence for 
specified periods of time and whether notice to Congress should be 
provided before certain types of evidence are destroyed.
    Back in the 1980's, I served as Associate Independent Counsel in 
the Iran-Contra investigation. Later, I served as Deputy Assistant 
Attorney General in the Criminal Division of the Department of Justice 
and was responsible for handling classified information on behalf of 
the United States as Independent Counsel Lawrence Walsh prosecuted Lt. 
Col. Oliver North, Admiral John Poindexter and others. Judge Walsh 
asked Congress to delay its inquiry into Iran-Contra while he 
investigated, and Congress acceded to his request by postponing for 
several months its public inquiry. We learned that Congress can damage 
the ability of a prosecutor to prosecute a case successfully if 
Congress grants immunity to witnesses and forces their testimony in 
public. But we also learned that Congress has a role to play in 
boosting public confidence that the rule of law is alive and well in 
America through its investigative function.
    There is no reason to believe that an investigation into the 
destruction of the tapes would require Congress to immunize witnesses 
or to conduct all of its proceedings in open session. As I have 
indicated, there exist a range of options for Congress to protect 
classified and sensitive information while satisfying itself that it is 
meeting its responsibilities as a co-equal branch of government. 
Assistant Attorney General Kenneth L. Wainstein and John L. Helgerson, 
the C.I.A.'s inspector general, have written to Congress and have 
claimed that ``[o]ur ability to obtain the most reliable and complete 
information would likely be jeopardized if the C.I.A. undertakes the 
steps necessary to respond to your requests in a comprehensive fashion 
at this time.'' There is reason for concern here. It would be an 
unnecessary drain on resources and distraction for the C.I.A. to 
respond to overlapping inquiries by this Committee, the House 
Intelligence Committee and other committees of the House and Senate. 
This is a time for the House and the Senate to exercise leadership and 
allocate the oversight responsibility so that the C.I.A. is not 
required to repeatedly answer the same questions. It is possible to 
have oversight that is tailored, efficient and respectful of national 
security concerns. It is that oversight that I encourage Congress to 
undertake.
    Earlier this year, in an article which I attach entitled A 
Different War: Ten Key Questions About the War on Terror, I wrote the 
following about the Detainee Treatment Act and the Military Commission 
Act: ``As a result, it may well be that the judiciary will find that 
its ability to serve as a check on executive power is weakened, and 
that Congress has given the President the virtual blank check to act 
that he previously did not have. If this is so, the above questions, 
which contend are vital, lead me, and may well lead many others, to 
wonder whether our cherished system of checks and balances now provides 
inadequate checks and too little balance. . . .'' Congress needs to 
exert itself to demonstrate that it is an adequate check on executive 
excess and arrogance.

    Mr. Conyers. Thank you so much.
    Might I inquire if Steve Cohen, the gentleman from 
Tennessee, had a comment that he'd like to make at this time?
    Mr. Cohen. Thank you, Mr. Chairman. The only thing I would 
like to say is how proud I am to serve in this Congress and on 
this Committee with you as Chair. It is the end of my first 
year in Congress and the first year on this Committee, which I 
chose as my Committee because of issues such as this. I think 
our Constitution and our laws are so important, and being on 
this Committee and you having this hearing is the reason why I 
am so proud to be a Member of this Congress. And I thank you 
for not allowing me to be the Rodney Dangerfield of the 
Committee. I thank you.
    Mr. Conyers. You are more than welcome. As a matter of 
fact, I should give you more time.
    But at any rate, moving to Professor John Radsan, we thank 
you, Professor Saltzburg, for your opening comments.
    Professor John Radsan, Associate Professor of Law at 
William Mitchell College of Law. A leading authority on 
national security issues with a unique combination of 
professional experience in both law enforcement and 
intelligence activities. He served as a Federal prosecutor at 
the Justice Department and later as Assistant General Counsel 
to the CIA from 2002 to 2004. We are very pleased you could 
join us today, and we yield the floor to you at this 
time.no prepared statement, submitted outline deg.

              TESTIMONY OF PROFESSOR JOHN RADSAN, 
                WILLIAM MITCHELL COLLEGE OF LAW

    Mr. Radsan. Thank you very much, Mr. Chairman. Thank you, 
Members of Congress. I apologize that I was not able to share 
with you my prepared remarks, long remarks. I am even amazed 
that I was able to get the one-page outline cleared by the 
Publication Review Board at the CIA. So I will even summarize 
my outline here.
    I am also sorry, Mr. Chairman, that the Committee was not 
able to have a representative from the Department of Justice at 
this hearing, as you noted. I think it is clear that as a 
former prosecutor, I am not speaking for the Department, I am 
not speaking for the agency. I think it is also clear that my 
stock does not rise with my colleagues from the Justice 
Department or the CIA by being here, but I welcome your 
invitation to speak to these very important issues.
    It is much easier for us as former officials to talk about 
the CIA detention and interrogation program since September 
6th, 2006. That is an important date because for the first time 
the President acknowledged what the American public knew what 
Members of Congress knew, that we had a secret detention and 
interrogation program. That became clear then the debate was 
going to be on the details of the program, the type of 
oversight that we would have.
    What I would like to do with my few minutes is to make some 
general observations about this program and then to go very 
specifically to your question about the destruction of the CIA 
tapes. I am fortunate that I was out of the agency during much 
of this relevant period, so I can comment in a way that 
Professor Saltzburg has as an informed observer of these 
events, and I share these observations with you all.
    I agree with the Committee's work that it will serve the 
American people to have more transparency, more openness on 
what kind of interrogation techniques the CIA is using, the 
Department of Defense is using and our law enforcement people 
are using. The Administration to counter says that if we are 
too explicit the terrorists, the bad guys, will train in 
counter interrogation, they will prepare themselves for 
whatever is in store. I am not saying that this is a frivolous 
argument but I believe strongly on balance that it makes more 
sense for the American public and for support overseas to be a 
bit more transparent, and more transparent than we are today 
after the Military Commissions Act, after the President's 
Executive order part of which is classified.
    Congress can be explicit if it doesn't like a technique 
such as waterboarding, it can ban it. If it doesn't like seep 
depravation, it can ban it. And I commend any work in that 
direction to be more open about what is on the table and what 
is off the table.
    I would also like us to be sympathetic though to the CIA, 
and we speak broadly about an agency, that this department 
learned the lessons of the Church Committee hearings, it 
learned the lessons of Iran-Contra. And there are two broad 
lessons, one to do anything that is aggressive or controversial 
there must be presidential authorization. And two, even if you 
have authorization it is not sufficient because the President 
cannot authorize us to break the law.
    What many of my colleagues believe is that they accomplish 
both those tasks. According to the press, we had a 
comprehensive finding by the President soon after 9/11 for very 
aggressive actions against al-Qaeda and other terrorists so 
that there was a presidential finding. Similarly we have 
reportings that there was a lot of lawyering from the Justice 
Department to the CIA on the specific techniques or a specific 
aspect of the program. You and I may disagree on the quality of 
that analysis, but if you are looking at it from the 
perspective of a CIA officer, who is not a lawyer, that person 
may shrug and say, what else could we have done? We had a 
presidential finding, we also had advice from the lawyers, we 
are trying to comply with the law. I agree with you that the 
destruction of the tapes is different and much more alarming 
for the reasons that you identified.
    It has become fashionable now for Democrats and Republicans 
to talk about a national security court, a FISA type court, to 
sort out these interrogation issues, what is allowed, what is 
not, to have oversight from an additional branch of government. 
I support those ideas. I also plug people from the Midwest that 
we had come up with some of these ideas even before it was 
fashionable for professors at Georgetown or Harvard. And if you 
look at a 2006 National Law Journal article written by yours 
truly, you will see that someone was thinking about this as a 
way to balance these legitimate interests of oversight and 
allowing the CIA to do what is necessary to protect us.
    What is the context in 2005? And I close my remarks on why 
this was important that the tapes were destroyed then, and I 
agree with Professor Saltzburg that we know that the tapes were 
destroyed. The question is why and why then? I don't agree with 
Professor Saltzburg when he implies that the CIA is a monolith, 
it has one brain or one soul. So far from what we can tell it 
was a decision by the head of the clandestine service, Jose 
Rodriguez, to destroy the tapes in November '05. What was going 
on in November of '05. This was after Abu Ghraib and the 
revelations that occurred in the spring of '04. That was a 
Department of Defense program, abuses related to their program, 
but it had an effect on the CIA's program.
    In this period we have had legal guidance from the Justice 
Department, the so-called torture memo of August 2002 that had 
been withdrawn. The Justice Department was starting to withdraw 
or back away from some of the more aggressive guidance that had 
been given the CIA. It is also very important that another part 
of check on the CIA is the media, and this is right around the 
time that Dana Priest in The Washington Post broke her story 
about secret prisons in Eastern Europe. She knew the countries, 
but in the back and forth with the CIA, The Washington Post 
chose not to identify the countries. The media reported that 
some of these interrogations that were on the tapes might have 
been in those secret facilities, so this would have been of 
concern to people running that very secret program.
    We also know at that time, as I am sure all the Members of 
Congress recall, that Senator McCain was gaining support for 
the McCain amendment that was going to restrict permissible 
interrogation. The McCain amendment was passed in December of 
2005, but it was cleared in November that the political lines 
were changing and that what would have been permissible early 
in our counterterrorism policies was no longer likely----
    Mr. Conyers. You can finish your thought, please.
    Mr. Radsan. From one other, and I will credit your staff 
members on this, another development you mentioned the Hamdan 
decision, that did have an effect on the CIA when Common 
Article 3 started to affect CIA policies. This is before the 
Military Commissions Act. If we go back to that period we will 
see that the Hamdan v. Rumsfeld case had been granted cert by 
the Supreme Court and that would have been another concern by 
Jose Rodriguez and others at the CIA.
    Thank you very much, Mr. Chair.
    Mr. Conyers. Thank you very much, Professor Radsan. We 
appreciate your views. And our next witness is Attorney David 
Rivkin, partner at Baker & Hostetler, Visiting Fellow at the 
Nixon Center, Contributing Editor at the National Review. Mr. 
Rivkin has extensive experience in a wide range of 
international and domestic policy issues. He served in a 
variety of legal and policy positions in at least two 
Administrations in the White House Counsel's Office, the Office 
of the Vice President and the Departments of Justice and 
Energy. He has also had an earlier career as a defense and 
foreign policy analyst focusing on Soviet affairs, arms 
control, naval strategy and NATO-related issues.
    We are delighted, sir, you can join us, and your statement 
will appear fully in the record as we proceed. Welcome.

            TESTIMONY OF DAVID B. RIVKIN, ESQUIRE, 
                       BAKER & HOSTETLER

    Mr. Rivkin. Thank you very much. Thank you very much, 
Chairman Conyers and other distinguished Members of the 
Committee, for asking me to testify about this important set of 
issues, I am delighted to be here. Whatever circumstances 
surrounding the destruction of interrogation videotapes--and 
let me just say that there are certain explanations that are 
far less sinister than some have proffered and I agree in that 
respect with some of the points made by Professor Radsan--it is 
the law that governs interrogations that should be our foremost 
concern and it is in this area that I will make some remarks 
this morning.
    There is frequently a misperception that this law bans and 
absolutely prohibits all coercive stressful interrogation 
techniques. That is not the case.
    As you all know, the most direct set of statutory 
provisions governing interrogations is contained in the so-
called McCain amendment, and the first provision of the McCain 
amendment specifies that no person in the custody or effective 
control of the Department of Defense or detained at DOD 
facilities shall be subjected to an interrogation treatment or 
technique that is not authorized by the United States Army 
Field Manual, and let me add that this is a 2005 version of 
that manual and waterboarding is not authorized by that manual.
    Crucially, however, the McCain amendment does not limit 
other U.S. Government agencies with responsibility for 
interrogations, particularly the Central Intelligence Agency, 
with techniques listed in the manual. As to these other 
agencies, the McCain amendment simply provides that no person 
in the custody or control of the United States Government, 
regardless of their nationality or physical origin, will be 
subjected to ``cruel, inhuman or degrading treatment of 
punishment.'' And in deciding whether the treatment falls below 
the standard the McCain amendment defines as cruel and unusual, 
inhuman treatment a punishment to mean those acts prohibited a 
by 5th, 8th and 14th amendments of the Constitution. It is 
worth noting here--I am sure it does not come as any surprise 
to you--that the duality, the distinction between two sets of 
procedures governing the military and CIA interrogations that 
was adopted by Congress with after some back and forth 
supported by the White House came after extensive and informed 
debate and reflected in my view a joint belief by the two 
political branches that the two agencies, DOD and CIA, 
interrogated different sets of combatants with vastly different 
policy equities in place.
    I would say briefly that point was made by Ranking Member 
Smith that as far as the relevant constitutional standards in 
forming their definition of the term ``cruel, inhuman and 
degrading'' are concerned, the Supreme Court and lower courts 
have long recognized that these constitutional standards are 
inherently contextual. There is a case law, a number of cases 
like Sacramento v. Lewis.
    By the way, I should admit that none of those cases deal 
with interrogations. Those cases deal with far more mundane 
matters like high speed chases, denial of a right to counsel in 
Betts v. Brady; ex parte aspects of child custody proceedings 
in Miller v. The City of Philadelphia. But all of them present 
not an absolutely contextual, all facts and circumstances type 
analysis of what is it that the 5th, 8th and 14th amendments of 
the Constitution provides and what shocks our conscience and 
what not.
    To me it is really a matter of common sense and is not 
particularly surprising.
    Let me briefly make a couple of other points. I happen to 
think that while the legal parameters that govern our 
interrogations are not infinitely elastic, in fact are quite 
restrictive, they are not as inflexible as some would have you 
believe.
    The real questions are policy questions. Put differently, 
our legal box in my opinion is wider from the policy box. There 
may well be reasons to set interrogation standards tighter than 
the law requires, and we should not be debating only about the 
law. That to me is a real set of issues for your consideration.
    We need to ask ourselves a couple of questions. The first 
one is whether coercive interrogation techniques are actually 
useful. I heard many critics argue that while building rapport 
of captured enemy combatants invariably produces success, by 
contrast coercive efforts are inherently unreliable because 
they produce lies. I think it is overly simplistic. In fact, I 
would hope that our government takes nothing to al-Qaeda 
operatives or Taliban operatives or any other terrorist groups 
waging combat against the United States at face value, whether 
the fruit of milder or more coercive interrogation methods. 
Every bit of intelligence must be carefully vetted and cross-
checked regardless of the interrogation method used.
    Just as the context is important in deciding what shocks 
our conscience, what techniques work better is also inherently 
a contextual matter. There cannot be in my opinion any 
empirical data as to which are the best under all 
circumstances. In many cases, from what we hear, inducing 
detainees to speak at all is remarkably difficult. Coercive 
methods of some kind may be appropriate in such circumstances. 
Other detainees by contrast may speak freely, making coercive 
efforts less necessary. In my opinion, the best interrogation 
technique is whatever technique within the law produces the 
best results upon a specific detainee in a specific factual 
context.
    My second point is that I find it extremely unfortunate 
that so much of our discussion is focused on waterboarding. 
This is just one coercive interrogation technique and a very 
harsh one and frankly the one that gives me and some people 
some pause. But there are many other coercive techniques that 
are much milder, still beyond the narrow scope Army Field 
Manual. And that scope I want to emphasize is very narrow. I 
will give you one example. One of the toughest techniques 
authorized by the manual is called Mutt and Jeff, which is 
essentially another word for good cop, bad cop routine, but it 
is enormously circumscribed here. This is from the 2005 manual, 
page 17. The bad cop, in that situation the bad interrogator, 
may go as far as ``convey an unfeeling attitude'' while being 
``careful not to threaten or coerce the source'' in any way 
while the other individual adopts a more friendly tone. Let me 
suggest to you that for better or worse a far more aggressive 
version of a good cop and bad cop technique are practiced daily 
in the police stations in this country in the interrogation of 
suspected purse snatchers or bank robbers.
    I realize that discussion of coercion as used is difficult, 
it jars our 21st century sensibilities, it is a very difficult 
task for any democracy. But I personally cannot conceive of any 
practical possibility but in the foreseeable future, especially 
given the threats we face, we live in a world in which we can 
abandon the use of coercion in a public sphere across the 
board, over employing training routines of our military forces, 
interrogation of criminal suspects or engagement from unlawful 
enemy combatants.
    Let me be very emphatic, I am even less capable of 
envisioning of a moral practical reasons for adopting a legal 
regime that would advantage interrogationwise unlawful enemy 
combatants as compared with ordinary criminal suspects. Yet 
adopting across the board, as you heard a number of people 
suggest, including previous witnesses, the Army Field Manual 
procedures across the board to CIA interrogations to precisely 
accomplish this outcome would be interrogating detainees, high 
valued detainees less sternly--it has nothing to do with 
waterboarding--than bank robbers or purse snatchers. I think 
with all due respect it makes no sense.
    I thank you for your patience and look for to your 
questions.
    [The prepared statement of Mr. Rivkin follows:]
               Prepared Statement of David B. Rivkin, Jr.
    I want to thank Chairman Conyers, Ranking Member Smith, and the 
other Members of the Committee for inviting me to testify at this 
important hearing.
    Whatever the circumstances regarding the destruction of the 
interrogation videotapes, the law governing interrogations must be our 
foremost concern. It is on this law that I will focus my remarks this 
morning. It is frequently misunderstood to mean that all coercive or 
stressful interrogation techniques are unlawful. This is not the case.
    The most direct set of statutory proscriptions, governing 
interrogations, is contained in the so-called McCain Amendment. The 
first provision of the McCain Amendment specifies that no person in the 
custody or effective control of the Department of Defense (``DOD'') or 
detained in a DOD facility shall be subjected to any interrogation 
treatment or technique that is not authorized by and listed in the 
United States Army Field Manual on Intelligence Interrogation. P.L. 
109-148, Title X, Sec. 1002 (2005); P.L. 109-163, Title XIV, Sec. 1402 
(2006). I note that ``waterboarding'' is not authorized by the Manual.
    Crucially, however, the McCain Amendment does not limit other U.S. 
government entities with responsibility for interrogations, such as the 
Central Intelligence Agency (``CIA''), to the techniques listed in the 
Field Manual.
    As to these, the McCain Amendment simply provides that no person in 
the custody or control of the United States government, regardless of 
their nationality or physical location, shall be subjected to ``cruel, 
inhuman or degrading treatment or punishment.'' 42 U.S.C. Sec. 2200dd. 
In deciding whether treatment falls below this standard, the McCain 
Amendment defines ``cruel, unusual, and inhuman treatment or 
punishment'' to mean those acts prohibited by the Fifth, Eighth, and 
Fourteenth Amendments to the Constitution. It is worth noting that this 
distinction between the procedures governing military and CIA 
interrogations was adopted by Congress, with the White House's support, 
after an extensive and informed debate, which reflected a joint belief 
by the two political branches that the two agencies interrogated 
different types of enemy combatants, with vastly different policy 
equities in place.
    As far as the relevant constitutional standards informing the 
definition of the term ``cruel, unusual and inhuman treatment or 
punishment'' are concerned, the Supreme Court and lower courts have 
long recognized that these constitutional standards are inherently 
contextual. I point the Committee to the case of Sacramento v. Lewis, 
523 U.S. 833, 850-51 (1998). As Justice Souter noted, ``[r]ules of due 
process are not subject to mechanical application in unfamiliar 
territory. . . . [P]reserving the constitutional proportions of 
substantive due process demands an exact analysis of circumstances 
before any abuse of power is condemned as conscience-shocking.''
    Similarly, in Betts v. Brady, 316 U.S. 455, 462 (1942), the Court 
explained that ``due process of law'' denotes a right ``more fluid'' 
than others guaranteed by more specific provisions of the Bill of 
Rights. Claims of a denial of due process are, the Court explained, 
``to be tested by an appraisal of the totality of facts in a given 
case.''
    More recently, in Miller v. City of Philadelphia, 174 F.3d 368, 375 
(3d Cir. 1999), the Third Circuit explained that ``the exact degree of 
wrongfulness necessary to reach the 'conscience-shocking' level depends 
upon the circumstances of a particular case.''
    Simply put, that which is cruel, inhuman and degrading in one set 
of circumstances will not necessarily be so in another. This is common 
sense. The ``ticking bomb'' example may be overused, but it is directly 
on point here. The law recognizes that, whether an interrogation 
technique ``shocks the conscience'' depends, in the final analysis, on 
the kind of information that interrogators are trying to elicit and the 
circumstances in which they are doing so. The McCain Amendment is, of 
course, binding law. At the same time, its language should--and must--
be interpreted in a manner informed by the wisdom of these judicial 
pronouncements.
    I would like to make two further points.
    First, given that the legal parameters within which the United 
States government conducts interrogations of terrorist detainees are 
relatively flexible, the real question for the Committee is one of 
policy. In this regard, we must first ask ourselves whether coercive 
interrogation methods are actually useful. Some critics argue that, 
while building rapport with captured unlawful enemy combatants 
invariably produces success, by contrast, coercive methods are 
inherently unreliable, that they produce lies. This is overly 
simplistic. I hope our government takes nothing that al-Qaida 
operatives say at face value, whether the fruit of milder or more 
coercive interrogation methods. Every bit of the intelligence ``take'' 
must be carefully vetted and cross-checked, regardless of the 
interrogation method used.
    Which techniques work better is a contextual matter, and there is 
not--indeed, there cannot be--any empirical data as to which are the 
``best'' under all circumstances. In many cases, inducing detainees to 
speak at all is remarkably difficult. Coercive methods may be 
appropriate in such situations. Other detainees may speak freely, 
making coercive methods less necessary. The ``best'' interrogation 
technique is whichever technique, within the law, produces the best 
results upon a specific detainee in a specific factual context.
    Second, I find it unfortunate that so much of our discussion has 
focused on ``waterboarding.'' This is just one coercive interrogation 
technique. There are many other ``coercive techniques'' that are much 
milder, but still beyond the narrow scope of the Army Field Manual. And 
that scope is very narrow, indeed. In fact, the toughest technique 
authorized by the Manual is called the ``Mutt and Jeff.'' This is a 
good cop/bad cop routine in which one interrogator may go so far as to 
``convey an unfeeling attitude'' while being ``careful not to threaten 
or coerce the source,'' while the other adopts a more friendly tone.\1\ 
Let us remember that, for better or worse, more aggressive treatment is 
daily meted out in police interrogations of criminal suspects.
---------------------------------------------------------------------------
    \1\ Headquarters, Department of the Army, Field Manual 2-223 (FM 
34-52), Human Intelligence Collector Operations ch. 8, 17 (2005).
---------------------------------------------------------------------------
    I realize that discussion of coercion and its use jar our 21st 
Century sensibilities and it is an inherently difficult task for any 
idealistic democracy. However, I cannot conceive of any practical 
possibility that, in the foreseeable future, we would live in a world 
in which we can abandon the use of coercion in the public sphere across 
the board, whether employed in the training routines of our military 
forces, interrogation of criminal suspects, or engagement with captured 
unlawful enemy combatants. Frankly, I am even less capable of 
envisioning either moral or practical reasons for adopting a legal 
regime, which would advantage, interrogation-wise, unlawful enemy 
combatants as compared, for example, with ordinary criminal suspects. 
Yet, adopting the Army Field Manual procedures across the board would 
accomplish precisely this outcome.
    I thank the Committee for its patience and look forward to the 
members' questions.

    Mr. Conyers. Thank you, David Rivkin. Your testimony raises 
a number of questions that compare what we do in the private 
sector and what we do among governments.
    We now turn to the Washington Director of Human Rights 
First, Elisa Massimino, an expert on a range of international 
human rights issues, a national authority on U.S. compliance 
with human rights laws. Attorney Massimino has taught 
international human rights law at the University of Virginia 
and teaches human rights advocacy at Georgetown University. As 
a litigation associate at Hogan-Hartson, she was pro bono 
counsel in a number of human rights cases and joined Human 
Rights First as a staff attorney in 1991 and has directed its 
Washington office since 1997.
    Human Rights First and Physicians For Human Rights recently 
released a report entitled ``Leave No Marks, Enhanced 
Interrogation Techniques and the Risk of Criminality.'' It 
provides the first comprehensive analysis of ten techniques 
widely reported to have been authorized for use in the CIA's 
secret interrogation program, including sleep depravation, 
simulated drowning, stress positions, beating and induced 
hypothermia. We are delighted you could join us and we welcome 
you at this time.

TESTIMONY OF ELISA MASSIMINO, WASHINGTON DIRECTOR, HUMAN RIGHTS 
                             FIRST

    Ms. Massimino. Thank you, Mr. Chairman. And I have a longer 
statement as well prepared for the record, which I will try to 
summarize as quickly as I can. I want to thank you for your 
leadership and for the work of the Committee and its excellent 
staff in persistently staying on top of these important issues. 
As a human rights advocate based in the United States, it is 
very important for my own ability to do my work in pressing 
other governments to respect human rights, that my government 
do its best to play a leadership role in promoting those 
standards. We have heard a lot this week from Attorney General 
Mukasey and others about the need to modernize outdated 
surveillance laws to reflect 21st century technologies. But 
there is one area of our counterterrorism policy that is quite 
literally stuck in the dark ages, and that is our interrogation 
policy.
    When I left private practice to help open the Washington 
office of Human Rights First more than 16 years ago, I never 
imagined that in 2007, I would find myself in the middle of a 
debate with my own government about whether waterboarding, the 
21st Century euphemism for a form of torture that dates back to 
the time of witch-hunts and the Inquisition is illegal. But 
that is where we are today.
    On December 6 the CIA director, General Michael Hayden, 
acknowledged that the Agency destroyed videotapes of two senior 
al-Qaeda members being subjected to interrogation techniques 
that reportedly included waterboarding, stress positions, 
exposure to extreme cold and other interrogation methods that 
leave no marks. The tapes were destroyed in November 2005, 3 
years after the interrogations took place. At around that same 
time, Congress was scrutinizing the secret CIA detention 
program and Vice President Cheney was engaged in an aggressive 
lobbying campaign to carve out an exception for the CIA from 
the McCain amendment's prohibition on cruel, inhuman and 
degrading treatment.
    The New York Times reported yesterday that high level White 
House and CIA lawyers were involved in the discussion that led 
to the tapes' destruction. The CIA's decision to destroy the 
interrogation tapes indicates that at least some in the 
Administration understood what we know: that the acts depicted 
on those tapes were unlawful and would shock the conscience of 
any decent American who saw them.
    The Administration now appears willing to acknowledge the 
legitimate role of Congress in investigating these matters. And 
we welcome its decision late yesterday to permit CIA Acting 
General Counsel John Rizzo to testify about the decision to 
destroy the tapes. He and others have much to answer for, not 
only with respect to the destruction of the tapes, but also 
about who authorized the acts depicted on those tapes.
    Throughout the torture scandal, beginning with the 
revelations of abuses at Abu Ghraib, accountability for these 
policies has come only at the lowest level. I hope as Congress 
begins this investigation, it will break the pattern that it 
has held so far; punish the monkey and let the organ grinder 
go. I hope my testimony today, which derives heavily from the 
report that you mentioned, Mr. Chairman, will help shed some 
light on the legal standards governing interrogation which the 
Administration has sought for so long to distort, obscure and 
evade.
    You have asked me to address the applicability of Federal 
criminal law to the interrogation of detainees. I start from 
the premise that intelligence gathering is a necessary and 
perhaps the most important tool in disrupting terrorist 
networks. Effective interrogations designed to produce 
actionable intelligence are a legitimate part of that effort. 
Such interrogations can and must be conducted consistent with 
the laws and values of the United States. But that has not been 
the case. The Administration's approach to interrogations after 
9/11 was to assert broad executive power and seek to redefine 
the rules governing treatment of prisons.
    During his confirmation hearing, Attorney General Mukasey 
was asked whether he felt waterboarding, which creates in its 
victims the terrifying fear of imminent death by drowning, is 
illegal. He equivocated claiming that the answer would depend 
on a complex statutory analysis that he could not undertake 
without access to classified information. But a group of 
retired generals and admirals who served as the top uniformed 
lawyers in the Army, Navy and Marine Corps had a more 
straightforward answer to that question.
    As they said in a letter to the Senate Judiciary Committee, 
``The law has long been clear: waterboarding detainees amounts 
to illegal torture in all circumstances. To suggest otherwise 
or even to give credence to such a suggestion represents both 
an affront to the law and to the core values of our Nation.''
    Judge Mukasey seems have to missed the most fundamental 
point about U.S. interrogation policy after the Hamdan 
decision, a point that he should bear foremost in mind during 
his deliberations about the legality of waterboarding and other 
enhanced techniques that he is reportedly undertaking now. If 
the U.S. Government does not want American citizens or soldiers 
to be subjected to these techniques then it may not employ them 
itself. The Supreme Court ruled that Common Article 3 of the 
Geneva Convention governs U.S. treatment of al-Qaeda detainees, 
including all interrogations conducted anywhere by any U.S. 
agency.
    If the CIA is authorized to use a particular interrogation 
method under the executive order that the President issued in 
July, it means the United States Government considers that 
method to be compliant with Common Article 3. And if it is 
compliant with Common Article 3, then U.S. enemies can use it 
against captured Americans in any situation governed by Common 
Article 3. Some, including Admiral McConnell, Director of 
National Intelligence, have implied that the United States 
wants detainees to believe that they will be tortured by 
American captors. Yet it wants the rest of the world to believe 
just the opposite. We cannot have it both ways.
    Our biggest problem now is not that the enemy knows what to 
expect from us. It is that the rest of the world does not. 
Ambiguity about U.S. interrogation practices has not benefited 
U.S. security. Quite the opposite. This ambiguity combined with 
the Abu Ghraib scandal and the deaths of prisoners in U.S. 
custody has severely damaged U.S. efforts to defeat al-Qaeda. 
And for what? In the case of Abu Zubaida, tapes of whose 
interrogation were among those destroyed by the CIA, the FBI 
claims that the use of enhanced techniques rather than 
producing reliable intelligence, interrupted and corrupted the 
flow of intelligence they were getting from Zubaida. That 
assertion comports with mainstream military opinion.
    For example, in releasing the new U.S. Army Field Manual on 
interrogations last year, Lieutenant General John F. Kimmons, 
deputy chief of staff for Army Intelligence said that, ``No 
good intelligence is going to come from abusive practices. I 
think history tells us that. I think the empirical evidence of 
the last 5 years, hard years, tells us that.'' Likewise, 
General David Petraeus, commander of U.S. forces in Iraq, wrote 
earlier this year in an open letter to U.S. troops serving 
there, ``Some may argue that we would be more effective if we 
sanctioned torture or other expedient methods to obtain 
information from the enemy they would be wrong. Beyond the 
basic fact that such actions are illegal, history shows that 
they are also frequently neither useful nor necessary.''
    Moreover, military officers have said that any suggestion 
by the White House that such techniques can be used by the CIA 
will undermine the authority of military commanders in the 
field where troops face ticking time bombs every day in the 
form of improvised explosive devices, but are told by their 
commanding officers that such techniques are never acceptable.
    Mr. Conyers. Thank you.
    [The prepared statement of Ms. Massimino follows:]
                 Prepared Statement of Elisa Massimino



    Mr. Conyers. We are indebted to all of you for your 
excellent evaluations and analysis. I am struck, Attorney 
Rivkin, by the fact that you refer to this good cop, bad cop 
thing, which seems to be common practice. The Chairman of the 
Crime Committee, Bobby Scott, has listened to police violence 
and brutality down through the years, long before he became 
Chairman of this part of Judiciary Committee. And I was 
thinking, you suggested that maybe some of these restrictions 
on people held at Abu Ghraib and other places may be under more 
coercion or may have more rights or less harshly treated than 
what happens in police stations in the common course around 
here. And that is very interesting to me because we have been 
working on that in a number of ways, prosecutorial abuse and 
police violence, which, by the way, is up as I recall.
    And so I hope we get a chance to go into that some more. 
Now, we have the question of whether a special prosecutor makes 
a good next step or whether we should create a FISA like court 
or whether we should try to engage in effective oversight. And 
Professor Saltzburg, do you have a feeling about what direction 
we might want to consider moving in when we come back for the 
last half of the 110th Congress.
    Mr. Saltzburg. I do. Maybe I ought to address that in just 
three specifics. I think Professor Radsan's suggestion, and he 
does deserve credit for talking early on about the idea of a 
new court, which basically might be an expansion of a FISA kind 
of court, I think it is certainly worth serious consideration. 
But it is a longer-term solution, I believe. Right now, we have 
facing you the question of what are we going to do about these 
tapes that were destroyed and what kind of an inquiry should 
take place. Ordinarily, I think the lessons of special 
prosecutors are not happy ones. And ordinarily I would say I 
have a strong presumption to let the Department of Justice 
investigate.
    The problem here, however, is that the Department itself 
has refused to answer questions about whether it was asked 
about destruction or whether it advised on destruction. And if, 
in fact, there is a possibility that it was asked and it did 
advise, and if it in fact authorized in any way the destruction 
of the tapes, it seems inappropriate to have it investigate 
itself. And I think this is a big issue. Now, The Washington 
Post yesterday, 2 days ago actually, had a story which 
indicated that--and Congressman Scott was talking about this, I 
have the article right here--that indicated when Judge Mukasey 
was the judge in the Padilla case, or Padilla, he has now said 
it both ways, he approved a material witness warrant, and some 
of the information that was obtained and used in the warrant 
was obtained in the interrogation of Abu Zubaida.
    Now, that means that Judge Mukasey himself has had a case 
which may, in fact, have been tainted in a way by that 
interrogation, or at least affected. ``Tainted'' may be the 
wrong word. That raises a question about whether he is the 
right person right now to be leading this investigation. One 
thing that the Committee is surely going to be aware of is that 
there is a movement in this country in major police 
departments, the District of Columbia being one, and the 
American Bar Association supports this, to require the 
videotaping of all interrogations. And the reason is so that we 
know exactly what happened. And if there is a challenge to the 
lawfulness of what happened we have incontrovertible evidence. 
If a police department destroyed a videotape of an 
interrogation in the District of Columbia, you can bet a judge 
would be saying why, I want to know why, and I am not sure I am 
going let a confession in where there is now only testimony and 
no tape.
    This Committee, I think, needs to exercise its oversight 
function to answer the questions that you raise, Mr. Chairman, 
and some of us have suggested, into why it was that those tapes 
actually were destroyed. Now, Professor Radsan may be right, 
there may be a whole lot of things that were going on. But most 
of those things end up being things which the CIA seems to have 
feared that if tapes ever saw the light of day that people 
would see things that they might find profoundly disturbing.
    As I said earlier, I don't know exactly what the CIA is 
doing in the secret interrogation facilities. I don't know 
whether there is one form of waterboarding only or whether or 
not the CIA has perfected it and advanced it. I suspect that 
videotapes would have told us a lot. I just can't resist the 
one comment about what goes on in police stations and what goes 
on in secret interrogation facilities. Since 1966, when 
somebody is interrogated in custody, he or she is given the 
Miranda warnings. They are told they have a right to remain 
silent, they are told they have a right to a lawyer. There is 
no good cop, bad cop until those people decide they don't want 
a lawyer and they are willing to talk, and then we have certain 
rules on top of it. We don't give Miranda warnings, and I don't 
think we should, to people who are detained for intelligence 
interrogations. But to compare the two and say we are tougher 
on people who are arrested and charged with crime in the United 
States than we are on terrorists is ridiculous. It ignores what 
goes on daily in every police station in the United States 
where police officers conform to the law.
    So basically, I think you make a good case given the 
peculiar circumstances that we face now that there should be a 
special prosecutor. I think that some consideration given to a 
court that has expertise in intelligence matters that would 
canvas more than just interrogation, including surveillance and 
the like, can make a lot of sense, but that this Committee and 
this Congress has an obligation to proceed to investigate and 
not wait for a new court.
    Mr. Conyers. Thank you. Professor Radsan.
    Mr. Radsan. Mr. Chairman, when I was a student, I didn't 
like when professors answered my questions with a double 
negative, but I am going to do that here. I am not opposed to a 
special prosecutor for the reasons that you have highlighted. 
The Justice Department was actively involved in giving guidance 
on the detention and interrogation program. We are going to 
find out whether the Justice Department was involved in any way 
in advising about the destruction of the tapes. We know that 
there is at least one case, the Padilla case, that may have bee 
influenced by something that went on in one of those 
interrogations. It is going to cloud some of the existing 
criminal cases that the Department of Justice has.
    I know that people were concerned about the attorney 
general's reticence about waterboarding. If I were in the 
Department and you asked me, I think it is a cleaner way to get 
to the bottom of what happened with the tapes. To alarm the 
Committee a bit more, it is only a few weeks ago that The New 
York Times reported that Director of the CIA, Michael Hayden, 
had set up an internal unit to inspect the Inspector General. 
That we didn't trust our internal affairs, we had another 
internal affairs.
    The reporting has been that this is a joint investigation 
into the tapes between the Justice Department and the inspector 
general. That complication, the complication between the 
inspector general, the general counsel, the inspector general 
and the director may be another reason suggesting that we 
should have a special prosecutor on the tapes.
    Mr. Conyers. Thank you very much. Attorney Rivkin.
    Mr. Rivkin. Thank you, Mr. Chairman. On the question of 
special counsel, these are in many respects the kind of 
institutional issues that I don't think that the two branches 
would ever see eye to eye across the board. But let me just 
point out a couple of things. And let me quote The Washington 
Post editorial from a couple of days ago. We do have a new 
attorney general, a man of exceptional property, I have not 
heard anybody challenge that, who has said very clearly that we 
have normal investigatory procedures by the career people in 
the Department involving career attorneys from both our 
national security division and public integrity section.
    In some sense, when somebody says that per se this is 
inadequate, we are impugning the integrity of people who spend 
their lives in the government who are not partisan who are 
looking presumably at the facts as they are. If at some point 
in time information comes to light that suggests there is real 
conflict here, I have no doubt that the attorney general would 
reach a decision to appoint a special counsel. Not an 
independent counsel. There are no more independent counsels. 
But a special counsel in accordance with the Department of 
Justice regulations. But the notion that it should just be done 
at the outset without going through a normal process, it seems 
to me somewhat unfair.
    Mr. Conyers. You don't see any existing conflict?
    Mr. Rivkin. Not on the facts--let us assume for example, 
and I hate to speculate, but these are speculations in the 
media--let us assume that, I know it is not an assumption that 
everybody in this room would share, that while the destruction 
of the tapes may have been foolhardy or their creation may not 
have been wise, because with all due respect to my colleague, 
the normal procedure in the FBI and the police department right 
now is not, repeat, not, to create videotapes.
    I think the decision to destroy them would have been 
foolhardy. Whatever it is worth, if it was up to me, I wouldn't 
have done it. But let us assume it is a policy question. You 
have a whole bunch of lawyers, including the White House 
counsel's office and the Justice Department who said our advice 
to you is not to do it. But because we are modest lawyers, we 
are not trying to play a policymaking role here because there 
is no legal bar, our advice as a prudential matter, don't do 
it, but always it is up to you.
    If it is that kind of situation, I don't see any conflict 
here. And I think nobody has suggested in any of the stories in 
the media so far that the attorney urged or encouraged them to 
destroy it. I mean, every single person, including some 
individuals who I am sure you would have policy difficulties, 
including David Addington and Harriet Miers have urged them 
reportedly not to destroy them.
    So where is the conflict for the lawyers involved. If it 
appears to be a problem I am sure that the attorney general 
would do that. But let me take 30 seconds and make the point, 
which I think, frankly, is far more important on how this 
investigation will proceed. I am not advocating rough 
techniques in police stations. All I am saying to you is this. 
That the particular parameters for the good cop, bad cop 
routine outlined in the Army Field Manual with all due respect 
are far more restrained than nonabusive lawful interrogation 
techniques. For example, you are not supposed to threaten 
somebody.
    Let us think about what it means. Then the police 
interrogators or investigators are going to interrogate a 
fellow by the name of Fastow, who was one of the key players in 
Enron, and tell him if he doesn't cooperate they are going to 
nail his wife and put her in prison. If it not a threat, if it 
is not a coercion, I don't know what coercion is. And that 
technique is available to you in the context of a normal 
criminal investigation. And yet, under the plain language of a 
manual, it doesn't appear to be available to an interrogator 
because you cannot use intimidation of any kind. We should hear 
at least an honest mature discussion why we cannot have a 
baseline across the board in public sphere as to what level of 
coercion is appropriate instead of only talking about it in 
this context. Because I cannot imagine why we should be 
treating Andy Fastow, who I am not holding any candle for, who 
undoubtedly is a bad guy and a criminal, why should we be 
treating him better than Abu Zubaida. That makes no sense to 
me.
    Mr. Conyers. We should also notify the producers of 
television cop shows that they ought to use a little bit more 
legal restraint in the course of their activities, because 
people get the idea that it is okay because you see it every 
night. Ms. Massimino, help us out here.
    Ms. Massimino. I have a couple of points I would like to 
make on this. One is Mr. Rivkin referred early on to the 
importance of the question of the legality of the underlying 
conduct even being more important than the tapes. And I think 
that is where the conflict arises, which leads to a requirement 
of having a special counsel here. Because we are talking about 
questions about whether or not techniques that are depicted on 
those videotapes are unlawful. That relates to the question of 
whether or not the destruction of the tapes would be the 
obstruction of investigation into criminal activity.
    So I think that is really for me the strongest argument for 
a special counsel. I do need to take issue with one thing that 
my friend to my right said. And that is that I wouldn't want 
this Committee to get the impression that what we are talking 
about here when we are discussing interrogation techniques is 
whether or not interrogators can yell at a prisoner or be mean.
    The enhanced techniques that we are talking about and that 
we outline in our report ``Leave No Marks,'' are serious forms 
of torture and cruel inhuman and degrading treatment. Long-time 
standing, another euphemism for stress positions that the 
United States has prosecuted as a war crime, waterboarding, 
forced hypothermia, forced nakedness, the use of dogs, these 
are techniques that have been reported to have been used under 
this enhanced interrogation program.
    We are not talking here about whether or not you can yell 
at a prisoner or make them uncomfortable.
    Mr. Conyers. Thank you so much. If you want to put your 
document into the record we will accept it at this point.
    Ms. Massimino. Thank you, sir, very much. I would like to 
do that.
    Mr. Conyers. I would like to now turn to the Chairman of 
the Constitution Subcommittee, Jerry Nadler.
    Mr. Nadler. Thank you Mr. Chairman. Let me start with 
Professor--well, either Professor Saltzburg or Professor 
Radsan. There is--we are talking about the destruction of tapes 
that the CIA has admitted being destroyed about the 
interrogation of two alleged terrorists, Abu Zubaida and I 
forget the name of the second fellow. But there is also 
evidence that other tapes were destroyed. A number of the 
interrogation tapes of Padilla, Jose Padilla, were released to 
his attorneys early this year, but the tapes of a crucial 
interrogation had, as one government lawyer explained, 
mysteriously disappeared, unquote.
    It disappeared even though the Federal judge presiding over 
Padilla's criminal case which was initiated by the Federal 
Government to avoid Supreme Court review of his prolonged 
military confinement, even though the judge in that case had 
ordered the government to preserve all interrogation tapes and 
tapes of more than a dozen other interrogations were never 
turned over, do you believe that the destruction of these tapes 
is part of a larger phenomena, not phenomena, of a larger 
situation in which the government is destroying evidence.
    Mr. Saltzburg. I don't want to believe that.
    Mr. Nadler. But does the evidence indicate that?
    Mr. Saltzburg. Every time--what we know about the CIA's 
destruction is that it was willful, that it was carefully 
thought out, that it was done after seeking some advice at 
least. We don't know all the advice, that is one of the 
questions. The Padilla tape is, in some ways, more disturbing, 
equally disturbing I guess, because we have a criminal 
prosecution where the government has the highest obligation to 
preserve evidence and a missing tape is a big deal.
    And the interrogation presumably took place during a time 
when Padilla was deemed to be a terrorist suspect. That is why 
he was originally detained. There appears to be some effort to 
prevent judges, and perhaps Congress, from actually seeing what 
goes on in some of these interrogations. That is the disturbing 
thing. You asked whether it is a pattern. I think that is one 
of the things that this Congress needs to look at. I don't 
think you know or have any idea how many interrogation tapes 
actually exist.
    There are rumors in the intelligence community, there are 
rumors that there are videotapes of interrogations conducted by 
foreign officials on detainees who were transferred to them by 
Americans who were present during the interrogations but 
weren't the interrogators. Now, if those tapes exist I would 
think that this Congress would want to have a look at them and 
want to be sure that they were not destroyed. But we don't know 
about what tapes exist, and then we don't know that they have 
been destroyed until there has been a disclosure after the 
fact, which is what happened both in the CIA situation and in 
the Padilla situation. It is surely disturbing.
    Mr. Nadler. Let me ask you a follow-up question, if I may. 
Your testimony suggests that there are other tapes that may 
exist that may indicate all kinds of perhaps misconduct, 
perhaps not misconduct in interrogation situations. Congress 
certainly has a right to see them. Now, if we were to subpoena, 
issue a subpoena for all interrogation tapes, would there be 
any legal, I am sure the Administration would find some excuse, 
but would there be any legitimate legal reason for the 
Administration to say no we refuse to supply them?
    Mr. Saltzburg. Let me answer that question in two parts. 
First of all, I have absolutely no doubt if you issued a 
subpoena it would not be obeyed. And the reason it would not be 
obeyed is there would be a claim of national security 
privilege. Second, is that claim valid against the United 
States Congress. The answer is no. If it were, then any claim 
of national security would prevent this Congress from ever 
seeing anything the government didn't want to produce.
    Mr. Nadler. So a claim of national security privilege is 
never valid against a subpoena from Congress?
    Mr. Saltzburg. The problem is enforcing it.
    Mr. Nadler. As a matter of law, you would say because 
Congress has--our rights under the national security law is 
never valid.
    Mr. Saltzburg. I believe this is one of those issues on 
which people who believe in absolute executive power will tell 
you the executive has the right to make the final decision on 
national security. Those of us who believe that no branch is 
absolute, believe that checks and balances require that, in 
some fashion now, the executive is responsible to Congress and 
that, for example, the Intelligence Committee ought to be able 
to review tapes, again in a very secure manner, I am not 
suggesting that the subpoena ought to mean that Congress gets 
to see it and disclose it, but certainly Congress, in order to 
exercise its oversight role, is entitled to be exposed to some 
of the most important secrets we have. Otherwise you couldn't 
legislate, and actually you couldn't fund the things the 
executive wants to do.
    Mr. Nadler. We are certainly finding that to be the case 
with some of our other things like FISA. Professor Radsan, will 
you comment on the same questions?
    Mr. Radsan. The second question first. I agree with 
Professor Saltzburg. It would be a very interesting 
constitutional law question. I agree that the executive would 
not easily comply with the subpoena. If you went to the courts, 
I don't think the courts would take it. They would avoid the 
issue through the political question doctrine. They would leave 
it to the two branches to sort out. That is a prediction about 
constitutional law. You can ask the constitutional law 
professors to speculate. This would be a great hypothetical for 
next year's examination. On your first question about the 
tapes----
    Mr. Nadler. In that case, our only recourse would be the 
power of the purse, the CIA gets no money unless they give us 
the tapes? Would that be what we should do?
    Mr. Radsan. The branches have other ways to put pressure on 
each other. And if you go down that road, it will be a very 
interesting interaction between the two political branches. If 
there is a pattern of destroying tapes as you suggest, and I 
have no reason to believe that there is, the pattern may even 
be broader than we are talking about. It is not--if your theory 
is true it is not just the CIA for this reason. I don't know 
that the Padilla tapes were necessarily CIA tapes. They may 
have been Department of Defense tapes, Justice Department 
tapes. If there was a pattern, if your facts are right, then it 
would be a pattern that links up something that went on in that 
case and a known destruction in a CIA case. We do have another 
set of tapes though, tapes that were referred to in the filing 
that the Justice Department made in the Moussaoui case, and 
those tapes seem to be different from any other tapes.
    And as far as we know from the public record, those tapes 
have been intained. I have read that filing. My conclusion, and 
I am not confirming anything from the classified record, my 
conclusion by that affidavit is those tapes were tapes that 
were made by a foreign liaison service during those 
interrogations that the Justice Department was aware of. But 
you could ask for those tapes. The Intelligence Committee could 
ask for those tapes. We could confirm that those tapes still 
exist. That is what the reporting has been.
    Mr. Nadler. Thank you, Professor. Mr. Rivkin.
    Mr. Rivkin. Thank you, Congressman Nadler, let me just say 
a couple of things. It is hard to predict how the court would 
work here. But the broader the more open-ended your request is 
the more difficult, I think, for you to vindicate this, you are 
right. The more targeted, the more circumscribed the request 
is, the more limited to the Intelligence Committee, the greater 
is the chance that it will be both complied with in my opinion. 
I would be vindicated if you were prosecuted here. On the 
underlying issue, let me give you a slightly different 
perspective, and again as a lawyer, I do not like the 
destruction of any documents that exist, and if I were asked 
about it without the benefit of hindsight even I would have 
said no destroyed. But in some respects, these problems reflect 
the difficulty we have in applying the full blown criminal 
justice oversight paradigm that has developed, been honed in in 
decades of remarkable peace and prosperity to very difficult 
circumstances. Because to embellish the point made by Professor 
Radsan, do you not think, Congressman, that the vivid power of 
visual images is such if you think about all the damage done by 
Abu Ghraib tapes, and I am not saying that they didn't reveal 
bad conduct, is it not possible for the honorable men and women 
in the Intelligence Committee to wonder?
    Mr. Nadler. Excuse me, we are not talking about Congress 
reviewing this, not necessarily the public.
    Mr. Rivkin. No, no, I am not talking about that. But they 
would have been leaked.
    Mr. Nadler. Maybe they would and maybe they wouldn't have. 
I have limited time. I want to get in another question. Again 
to Professor Saltzburg, we have been asked in this entire 
question of the destroyed tapes, we have been asked by the 
Justice Department to delay our investigation lest it interfere 
with the Justice Department investigation or with the CIA 
investigation. Do you think it makes any sense at all for us to 
do that, especially in light of the question that perhaps we 
can't trust anybody. Certainly we can't trust the Justice 
Department. We had to call for a special prosecutor. But should 
this Committee, should Congress delay investigations waiting 
for the Justice Department?
    And if the answer is no, what is the justification or is 
there any justification in law for the Justice Department to 
simply refuse to supply the documents to Congress on the 
grounds that they are investigating it and supplying us with 
documents that might inhibit, in some way, their investigation.
    Mr. Saltzburg. My answer is no, that you shouldn't wait. 
One of the reasons is time is flying. You got more than 2 years 
that has already gone by. Memories will fade. People may die 
while you wait. Now, what is the justification. I don't think 
you should ask the Justice Department to produce its 
investigative file, what it is investigating. I think you ought 
to ask the Justice Department to produce any advice, copies of 
any documents it created with respect to the destruction in 
2005. And I think you ought to deal directly with the CIA.
    Every case is a little bit different in terms of whether 
you can interfere in some way with an investigation. I just 
don't see that here. Much of what happened is known. We already 
know the tapes were destroyed. That is not going to be new. We 
have some of the names of people who were consulted. What you 
don't know is exactly what they said. You don't know exactly 
what the rationale was. What we know is there is a lot of 
lawyering that was going on here. What the advice was we are 
not sure about. But I think you have got to get to the bottom 
of what happened.
    By the way, there are two things here. There is the 
criminal investigation whether people get prosecuted. I think 
unless you immunize witnesses and put them out for public 
testimony, the chances you will disrupt a legitimate 
investigation and ability to prosecute are very small. But 
there is the other part of this, of finding out what happened, 
even if it is just bad policy and not criminal, and figuring 
out what you are going to do about that. That is part of the 
oversight function. God forbid that this Congress will limit 
itself to deciding the only oversight is to look into criminal 
activity.
    Mr. Nadler. Thank you. One more question for Ms. Massimino, 
and this is slightly different. Starting in 2003, the 
Administration argued that the Geneva Convention did not apply 
to members of al-Qaeda. The Supreme Court decided to review a 
case which became known as Hamdan versus Rumsfeld. On November 
7, 2005, I think it granted cert. The tapes were destroyed that 
same month. What were the potential implications with respect 
to the tapes of the Supreme Court rejecting the 
Administration's position that the Geneva Convention did not 
apply, as indeed the Court ultimately did when it issued its 
ruling in Hamdan in June of 2006. In other words, could the 
destruction of the tapes be connected with the decision by the 
Supreme Court to accept that case?
    Ms. Massimino. Yes, I think so. I don't think we have to 
speculate too much about that because we know that when the 
case was decided it sent shock waves through the CIA and the 
enhanced interrogation program was put on hold immediately. 
There was already some pullback from it after the passage of 
the McCain amendment. But then in July of last year when the 
case came down, the reports are that that was a shocking 
development for the CIA.
    And they started to understand finally that not only was 
Congress withdrawing its political support for a program like 
this, but that the Administration was wrong in its argument 
that the Geneva Conventions did not apply. Remember, early on 
in the deliberations inside the White House about whether or 
not the Geneva Conventions applied, a key consideration leading 
to the conclusion that the Geneva Conventions did not apply was 
the fear that, well, if they did, we might find ourselves 
subjected to prosecution for war crimes.
    Mr. Nadler. Thank you, Professor Radsan. That will be it.
    Mr. Conyers. Thank you so much. The gentleman from 
Virginia, Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman. I have a series of 
questions. Let me just begin with whether or not torture is 
illegal? Is there any question that torturing people is 
illegal, Professor Radsan?
    Mr. Radsan. Torture is clearly illegal.
    Mr. Scott. Now, where in the criminal law can we find the 
prohibition against torture?
    Mr. Radsan. You will find it in other statutes. But we did 
not feel it necessary when we incorporated the convention 
against torture to pass a torture statute within the United 
States. A torture statute applies to anything outside of the 
United States. But any conduct that would be torture would be 
unconstitutional, would be illegal, I don't think there is any 
doubt about that. The doubt is on how we define these studies.
    Mr. Scott. Now, is the definition of torture so subjective 
that people can't understand what it is?
    Mr. Radsan. With respect, I think there are some clear 
examples of things that are not torture; providing National 
Geographic magazines. There are clear examples of things that 
are torture; electroshock, cutting off limbs.
    Mr. Scott. Do other countries have problems with the 
definition?
    Mr. Radsan. I think in the various courts they are going to 
have difficulties on what the line is, even if we all agree 
that waterboarding is torture.
    Mr. Scott. Does anybody outside of this Administration 
anywhere in the world think that waterboarding is not torture?
    Mr. Radsan. I take your point, and I am not aware of anyone 
that defends waterboarding outside of the United States.
    Mr. Scott. Outside of this Administration, because other 
Administrations have specifically found waterboarding to be 
torture.
    Mr. Radsan. And I am not here speaking for the Department 
or the Agency. I think it is fairly clear waterboarding is 
something prohibited by statutes.
    Mr. Scott. According to public reports, the Department of 
Defense and the CIA have referred 20 cases to the Department of 
Justice, including two deaths. There has only been one 
indictment. So if the--let me go to another point. If the tapes 
clearly depict torture, let us kind of think of who could be 
guilty of a criminal offense. Those who are actually doing the 
torture, any question that they would have liability under the 
criminal statutes?
    Mr. Radsan. If we agree that the conduct on those tapes 
crossed any line that person that did the conduct is guilty and 
anyone that aided and abetted, anyone that ordered would be 
drawn into that criminal conduct, that is for sure.
    Mr. Scott. What about others who watched while others did 
it?
    Mr. Radsan. Watching while others did it, that is 
difficult. But I think you would make an argument that it is 
aiding and abetting, or you would make an argument that it is 
part of a conspiracy to commit that criminal conduct.
    Mr. Scott. What about those who authorized it?
    Mr. Radsan. The same analysis. We would have to pursue the 
facts. But if this was part of a pattern and it had the intent 
to do something that was illegal and was known to be illegal, 
that is a problem, clearly.
    Mr. Rivkin. May I make a point, Congressman? It seems, with 
all due respect, to be somewhat anomalous to simultaneously 
scurry the Department of Justice for providing allegedly legal 
opinions that defined these types of techniques is not torture, 
and then simultaneously say that individuals are not lawyers 
who followed that advice. And let us assume that they stayed 
within the parameters of permissible procedures not due to any 
criminal conduct. You are certainly entitled to rely on the, in 
good faith on the advice proffered by the appropriate lawyers.
    Mr. Scott. Let us assume that we have concluded that the 
technique involved is clearly torture, can the Department of 
Justice by memo immunize everyone doing it? 
    Mr. Rivkin. That is a difficult question, but your 
hypothetical in a way contains the answer. If we determine. Who 
are we? It is the province of, in the first instance of 
executive, in the second instance of Judiciary, to pronounce 
what the law is. If duly constituted officers of the United 
States concluded that given conduct construing a given statute 
does not amount to violation of a statute that would go to 
great length to immunize individuals who rely on that conduct, 
which is why I personally don't think we have any evidence that 
it was an obstruction of justice.
    Mr. Scott. There are a lot of people who think the memo is 
absurd on its face to suggest that waterboarding is not torture 
and the Department of Justice can't immunize people from doing 
what everybody in the world knew was torture. Ms. Massimino.
    Ms. Massimino. I think that it is not correct to suggest 
that there was no fear of prosecution. There clearly was. That 
is why the memo was sought in the first place. And section 2340 
of 18 U.S. Code, which is the Federal anti-torture statute, was 
never thought to be vague or unclear until there was a desire 
to get around it. And a memo was drafted that construed it in 
such a way that drained those powerful words of all of their 
meaning.
    Mr. Saltzburg. Congressman, if I could add a point. 
Congress has sort of made this a bigger problem than it 
otherwise might have been in the Military Commissions Act when 
it put in that provision which essentially said that if you are 
charged with torture between 9/11 and 2005 when the Detainee 
Treatment Act was passed, you have the right to rely on advice 
of counsel as a defense. And I think that was clearly intended 
to say that people could be prosecuted, but then they can wave 
around that memo and say I relied on it. It doesn't mean they 
shouldn't be prosecuted. It just means that Congress has 
expanded their possibility of arguing advice of counsel as a 
defense.
    Mr. Scott. Well, let us talk about the independent counsel. 
If the Department of Justice, CIA and White House, if they 
define torture in such a way that people could I guess 
retroactively rely on it when the memo legally misstated the 
law, would that be a reason to have an independent counsel 
rather than having the Department of Justice try to defend the 
memo subsequently determined to be legally incorrect?
    Mr. Saltzburg. I don't believe, my own opinion, standing 
alone, that that would be enough with a new attorney general 
who was not responsible for the memo. Let us be clear, that 
2002 torture memo was probably one of the most embarrassing 
poorly written poorly reasoned documents I have ever seen. And 
I believe you are right, Congressman, no one with a straight 
face could defend that document as stating accurately the law. 
And I think that any attorney general who was independent would 
repudiate that document. I think this attorney general would 
repudiate that document today. But the other circumstances 
added to it, I think, do make a case for a special prosecutor.
    Mr. Rivkin. As I understand, with all due respect, the 
facts are as follows, that opinion was withdrawn long before 
this attorney general came in. But if you look carefully at how 
it was withdrawn, the language, my reading of it suggests that 
the breadth for it, and the reason we are repudiated, not the 
bottom line, and again, the speculation in the media is the two 
subsequent more narrow opinions written by the Department of 
Justice. The parameters have always permitted, Congressman, the 
memo change.
    If I may just say one thing. The thing I am troubled a bit 
is this notion that you can have the entire executive branch of 
United States Government, whose duty is execute the law, parse 
the law and conclude that they disagree, with all due respect, 
to my good friend, Ms. Massimino, and flesh out a statutory 
term in a given way. If that happens I don't know who else is 
supposed to come in unless the matter is somehow justiciable in 
an Article 3 court which is a different conclusion, I don't see 
anything in your powers frankly in Article 1 that gives 
Congress the right to interpret the law. It is a problem.
    Mr. Scott. Well, in all due respect, there is not a lot of 
interpretation that needs to be done. This Administration has 
suggested that waterboarding is not torture. They are having 
trouble trying to figure out when it is and when it isn't, and 
when you have it on tape the tape is destroyed. I don't know 
that you can change the law by legal memo. And you have the 
Department of Justice--is the Department of Justice involved in 
possibly authorizing some of this torture by virtue of their 
memos? Did they authorize the destruction of the tapes? Was the 
Department of Justice present--the Department of Justice 
investigating itself on who authorized it, who failed to 
disclose to the 9/11 Commission and to Congress and to the 
courts whether the existence of the tapes--well, let me ask 
another question. What is the statute of limitations on all of 
these crimes?
    Mr. Radsan. Congressman, I am not aware. I don't know that 
there is a statute. I will be corrected by my colleagues. But 
if I could take a minute to clarify my answer to a prior 
question. I think I am agreeing with you, but perhaps not in 
the way that you would like. We can look at conduct that 
occurred on the tape, and we may all look at that and agree 
that it crossed the line. That will be reason to be concerned 
and continue the investigation. But then there is a second 
step, and this is alluded to by Professor Saltzburg. We will 
have to figure out why that interrogator did this. And if that 
interrogator reasonably relied on advice, and that advice, as 
we can tell, would have been issued in a classified channel, 
that interrogator more likely than not was not a lawyer. If 
that interrogator reasonably relied on advice, even though it 
went past the line, whether it is waterboarding or any other 
conduct, that prosecution is going to be very difficult. And 
that is a situation that many of these officers find themselves 
in. I agree with you.
    Mr. Scott. And I agree with you. If you have a legal memo 
that says what everybody believes is illegal and you can 
proclaim it to be legal and someone reasonably believes the 
memo, then you have a mens rea problem in a criminal 
prosecution. However, if the memo is just clearly ridiculous 
you can't just change the law by memo. I yield back.
    Mr. Conyers. The Chair is pleased to recognize the 
gentlelady from Texas, Sheila Jackson Lee.
    Ms. Jackson Lee. Again, let me thank the witnesses for this 
instructive testimony. And if I might, let me lay the 
groundwork for my line of questioning with a citation from the 
article from The New York Times. And I recognize that any 
information exposed in public is questioned--is subject to 
questioning. But let me lay this groundwork so that I can 
pursue a line of questioning.
    Mr. Bennett, who is a lawyer for Mr. Rodriguez insisted 
that his client had done nothing wrong and suggested that Mr. 
Rodriguez had been authorized to order the destruction of the 
tapes. He had a green light to destroy them. To me, that is a 
billboard of obstruction of justice. There is a reference or a 
suggestion that the destruction came about to protect the 
identity of the CIA agents. And might I have a PS and say it is 
our obligation to protect our operatives who are around the 
world.
    And let me pointedly say to the CIA, take that duty 
extremely seriously and hold them in high esteem for the role 
they play in national security. I don't think that we should 
argue with that premise. However, another comment in the 
article dated the 19th, I believe, indicates until their 
destruction, the tapes were stored in a safe in the CIA station 
in the country where the interrogation took place. Current and 
former officials said, according to one former senior 
intelligence official the tapes were never sent back to the CIA 
headquarters, which I would imagine might have an underground, 
if you will, secure, safe or other chamber, despite what the 
official described as a concern by keeping such highly 
classified material overseas, lays the groundwork if you will 
whether there is sufficient truth to document that, that there 
is question as to how much security the CIA was giving to these 
tapes as a basis upon which they use to destroy them.
    I would like to also take note of the fact that, if I might 
also put into the record, the comments of Senator McCain as he 
was trying to make the argument on how torture demeans and 
debases those of us who represent a certain degree of values. 
And so just if I might just quickly indicate his words when he 
was asked, where did the brave men I was privileged to serve 
with in Vietnam draw the strength to resist to the best of 
their ability the cruelties inflicted on them by our enemies? 
They drew their strength from our faith in each other, from our 
faith in God and from our faith in our country. Our enemies 
didn't adhere to the Geneva Convention.
    Many of my comrades were subjected to the very cruel and 
very inhuman and degrading treatment and a few of them were 
unto their death. The enemies we fight today hold such liberal 
notions in contempt as they hold in contempt the international 
conventions that enshrine them. But we are better than them and 
we are stronger in our faith. Another comment indicates that 
one might question the kind of testimony one would get from 
someone subjected to torture and whether or not that can 
actually or that testimony or that, if you will, information 
can truly be counted as, if you will, accurate.
    So let me, if I can, both professors raise these questions 
on this whole issue of the obstruction of justice which pushes 
more urgently forward the need for a special prosecutor, slash, 
independent counsel terminology interchange even though the 
statute has expired in light of where we are today. As has been 
in the press and as stated by the testimony today, the CIA 
interrogation tapes were destroyed around the same time that 
conspicuous congressional oversight scrutiny was increasing. 
The photos from Abu Ghraib were uncovered, the DOJ began to 
withdraw memos rationalizing exceptions to the Geneva 
Convention and the McCain amendment against torture was gaining 
momentum. Some of Mr. McCain's comments were in the public 
domain.
    Does this not raise very serious issues of obstruction of 
justice or of violating or undermining congressional 
prerogatives and isn't this the best argument for the need for 
an immediate appointment of a special prosecutor that is, 
indeed, independent from the White House and the DOJ 
investigation. And my question goes to the point of the DOJ 
asking the House Intelligence Committee and others to delay 
their investigation while they are moving forward. I believe 
there is such a fracture in the constitutional protection that 
it is urgent that we move forward now. Would you two professors 
comment on that?
    Mr. Saltzburg. One of the anomalies in the law, is at least 
as I understand it, is that it is not obstruction of justice in 
the criminal sense for the executive to destroy evidence so 
that Congress won't see it. It is obstruction of justice to 
interfere with a judicial proceeding under the statute and 
destroy evidence with that in mind. It would not surprise me 
when all is said and done if lawyers advising Mr. Rodriguez 
concluded that there was no judicial proceeding in which a 
request was pending for this particular evidence, and 
therefore, they could destroy the tapes without being guilty. 
He could order them destroyed or approve them destroyed without 
committing obstruction of justice. The executive, unfortunately 
I think, feels that it is quite free to deny Congress evidence 
when Congress requests it.
    And even to destroy evidence that Congress might want to 
see. And basically, in the noncriminal sense, it is a classic 
obstruction of justice. It is obstruction of oversight. It is 
infringing upon the legitimate oversight function of Congress. 
But there is very little that Congress has done about that in 
the past. And that is one of the issues, I think, Congress 
probably needs to address.
    Ms. Jackson Lee. Can I just pursue that with you. Do we not 
have a basic legitimacy in pursuing that because of the 
independent branches of government. Are you suggesting we write 
law, are you suggesting that we take advantage of our oversight 
responsibility? What is the tool that you are suggesting we 
use?
    Mr. Saltzburg. I think that--all I suggested earlier was 
something that needs careful examination and more careful than 
I could do in the limited time we had available. And that is 
whether Congress should, in fact, legislate to require certain 
records to be preserved and maintained--for its inspection over 
time.
    Ms. Jackson Lee. Professor Radsan.
    Mr. Radsan. Ms. Jackson, we thank you very much. I agree 
with you that these facts, as they have unfolded, are very 
disturbing. I did cases for 6 years. I am going to speak about 
how I did cases. But I think many prosecutors pursue it in the 
same way, is they are going to gather the facts. They are not 
going to try to pigeonhole it necessarily into a particular 
statute. There are difficulties in the various obstruction of 
justice statutes with those elements.
    But if there has been wrongdoing intent, then there are 
statutes in the Federal Code that can cover the wrongdoing. One 
friend of all Federal prosecutors is 18 U.S.C. 1001, the false 
statute that makes it a crime to make a false statement or a 
material omission to Congress, to the Judiciary or, and the 
case law will bear this out, even intrabranch. So that if there 
were false statements made related to these tapes by Mr. 
Rodriguez to a lawyer, Mr. Rodriguez to a supervisor, then the 
joint investigation or any special investigation should and 
will pursue that. And the false statement statute is available. 
It is a very broad statute that Federal prosecutors have.
    Ms. Jackson Lee. Do you have any--do you care to comment on 
the fact that we should be denied our rights to investigate 
simply because the Department of Justice is proceeding as well.
    Mr. Radsan. It is a difficult issue. But I agree that we 
need vigorous oversight. Where I think Professor Saltzburg and 
I agreed, and maybe this was whispering, is that it becomes 
especially difficult if and when anybody of congress is issuing 
immunity. I haven't heard anything. No one has mentioned that 
today. We learned that from Iran contra, the complications, 
even with very scrupulous prosecutors when you have immunized 
testimony. That is the concern that the Department has. But we 
are not at that stage yet, so I don't see any reason for 
Congress to delay its inquiry. I think we need vigorous 
oversight. And I agree that these ideas that you should delay, 
as far as I understand, I don't have all their reasoning, that 
they seem to be weak to me.
    Ms. Jackson Lee. I am sorry, were you--I saw somebody----
    Mr. Rivkin. If I may briefly shed a different light on 
this. If a delay is finite in time and if you are sure that 
given the commencement of internal investigations, all the 
documents are being kept, and also very importantly, 
individuals involved are not communicating with each other 
because that would be viewed as obstruction, I see absolutely 
no good reason not to give the Justice Department a certain 
amount of time to get to the bottom of it. Because let me just 
suggest this: Quite aside from the immunity issue, if you were 
to invite to testify one of the people involved and he came, he 
or she came and prepared for testimony, and other individuals 
involved in this same matter or had an opportunity to listen to 
what his or her story is, any prosecutor will tell you that it 
is a horrible thing. What you do is you slowly build the case, 
you go to the junior people, then you go up the food chain.
    Ms. Jackson Lee. Mr. Rivkin, I have a short period of time 
and I have another question here, and I appreciate it. I think 
your premise is based upon Congress having confidence in the 
present Department of Justice and others, and certainly we 
don't malign all, but we have had difficulties in documents 
being preserved in the past.
    Let me just quickly raise this question, and I would like 
Ms. Massimino and the others to answer it. I have Mr. Rivkin as 
pointedly, but I will get to him last. Based upon--Mr. Rivkin, 
you testified that evidence exists, that coercive and severe 
interrogation techniques can work. But I ask you, are potential 
results, as I mentioned in my comments, a legal justification 
with potential or merely ex post facto rationalization and an 
excuse for violating Federal laws international conventions and 
American values. And moreover, if these severe and coercive 
techniques do indeed yield an otherwise unattainable 
information regarding imminent threats, then why was Congress 
not briefed? Why were these tapes destroyed and why are our 
efforts being hampered in the ongoing investigations that we 
have?
    So I guess, in essence, the question is why would the Bush 
administration have something to hide if these techniques work 
and are lawful and they can show that they prove results and 
there is a basis of constitutionality and complies with the 
national conventions. It seems that there is a fracture in the 
utilization of these techniques because now we have to 
investigate why we were never told about the destruction of 
tapes. Why don't I start with you, Ms. Massimino.
    Ms. Massimino. Thank you.
    Well, this Committee, actually, I think, as recently as 
last week, held an excellent hearing on the question of the 
efficacy of the use of torture and other cruel, inhumane and 
degrading treatment, which I think was quite enlightening for 
many people.
    There is, as I mentioned in my own testimony, but there is 
also a growing body of expertise that calls into serious 
question claims that these kinds of enhanced techniques produce 
actionable intelligence.
    That is not the same thing as saying that they never result 
in a detainee divulging true information. This is another point 
to which Senator McCain spoke very eloquently about his own 
experiences under torture in which he, when asked for the names 
of men in his unit, gave the starting line-up of the Green Bay 
Packers.
    But experienced interrogators have repeatedly said and 
military commanders have agreed, from General Petraeus on down, 
that these techniques are not only immoral and illegal but 
unnecessary and counterproductive.
    You know, there is, I suppose, one sense in which the 
coercive and abusive techniques used, not just by military but 
by the CIA, at Abu Ghraib and elsewhere worked, and that is as 
a recruitment tool for al-Qaeda. We have to look at the broader 
question here and the cost of a policy of official cruelty, 
which undermines not only our moral authority but our security.
    This is what I have heard repeatedly from a number of 
retired flag and general officers who I have had the privilege 
of working with over the last several years. They are emphatic 
and uniform on this point, that these are not only rules based 
on experience in the Field Manual, decades of experience, 
including recent experience--the manual was revised last year--
but they reflect values that all U.S. agencies should comply 
with.
    Ms. Jackson Lee. Professor Radsan and Saltzburg?
    Mr. Radsan. Ms. Jackson Lee, let me take your question as 
an opportunity to be critical of the three branches of 
Government and the American people on this issue. I am going to 
make many friends today.
    I think that we need a national dialogue on what sort of 
techniques we are comfortable with--it needs to be open--
techniques that go beyond what might be permitted in the 
criminal justice system, but techniques below what is defined 
reasonably as torture. Even if we resolve the issue of 
waterboarding, we have many other issues that we need to 
resolve and we have not resolved, even with this Executive 
order from the President, after the Military Commissions Act.
    For example, sleep deprivation, is this something that is 
acceptable or not? Another example, bombarding somebody with 
music. I don't care for Nirvana; maybe you like Nirvana. But we 
have to figure out, if we play this all day at a loud volume, 
does this cross this line? These are very serious issues.
    Where I differ with the Administration is I think it makes 
more sense for us to be open, as a people, as members of our 
Government: This is the line; this is what we are going to do 
and what we are not going to do.
    Because what happens is, if we have someone in a site, a 
secret site, and that person might have had information and we 
have an attack, there will be other kinds of recriminations--
recriminations that come out of shows like ``24.'' Why didn't 
we send Jack Bauer in there to get the information?
    This is a difficult place for elected Members of Congress 
and for our elected President to figure out what is the line, 
what will we defend and what will we not defend.
    Ms. Jackson Lee. Professor Saltzburg?
    Mr. Saltzburg. I think I agree with every word that was 
said by my two colleagues here. My experience is the same. I 
think that when you talk to military leaders, they tell you 
that harsh interrogation techniques and torture do not produce 
actionable intelligence. They are counterproductive, for the 
most part. They are not saying you never get anything.
    But, you know, one of the things I just didn't want to 
leave unsaid, you might think, from what we have heard today, 
that the Army Field Manual was drafted by a Scout troop, you 
know, which had no experience fighting wars. The military 
drafted that, and they take enormous pride in it. They think 
that they are leading the world, that other militaries will 
look at that Field Manual and say, ``The United States is proud 
that these are our techniques.''
    I mean, when we look at Europe and other countries, they 
don't look at us and say, ``Why are you soft on the people you 
are detaining?'' They look with pride at what we have done. And 
we have squandered, we have squandered our image in the world 
in so many ways. But, boy, one of the things we have done right 
is that Army Field Manual.
    And I don't know anybody in the Department of Defense, in 
the military side of it who is embarrassed by it. They are 
pleased that they did it and proud that they did it. And the 
only people who seem to attack it are the civilians who are 
supposed to be leading this country and leading the world. And 
they got it backwards, and they got it wrong.
    Mr. Conyers. Gentlelady's time has expired.
    Gentleman from Tennessee, Steve Cohen.
    Mr. Cohen. Thank you, Mr. Chairman.
    I am not sure who to ask this to, maybe Mr. Rivkin. Why do 
you think they made the tapes to start with? I mean, generally 
police and law enforcement folks do interrogation; sometimes 
they audiotape them. They don't generally videotape them. Why 
do they videotape them anyway?
    Mr. Rivkin. My total speculation would be, Congressman, 
precisely because they felt, especially at the time it took 
place, in the post-September 11 atmosphere, we have to get at 
the facts. And, quite frankly, in this situation where I think 
there is plenty of evidence that the Intelligence Committees 
were briefed about this these techniques, they wanted to get as 
much intelligence mileage out of it. And I suppose facial 
expressions, gestures can yield additional insight into whether 
or not somebody--you know, if you look at Bill O'Reilly these 
days, he puts on experts almost every day----
    Mr. Conyers. Who?
    Mr. Rivkin. Fox's Bill O'Reilly.
    Mr. Cohen. Never heard of him. [Laughter.]
    Mr. Rivkin. Well, there are people who make careers out of 
interpreting people's gestures. If you tilt your head this way, 
you are telling the truth. If you lower your eyes, you are 
lying. So there is probably an additional element of 
intelligence value that could be squeezed from videotaping----
    Mr. Cohen. I think they want you to turn your mike on.
    Mr. Rivkin. No, what I was saying is it was probably 
entirely innocuous that he wanted to gain additional 
intelligence insight, because looking at people's facial 
expressions, the ones you are interrogating, their gestures, 
would tell you more about the credibility of their statements.
    I am saying, in popular culture, there are lots of people 
who put in their shows experts who analyze politicians, 
depending on how they look on camera, what is the sincerity of 
statements. So that would be my interpretation.
    Mr. Cohen. Does anybody else have an opinion on this?
    Ms. Massimino. Yes. If we can express our opinions, this is 
one of the things that hopefully you will find out in your 
investigations. But I think the Administration has, for some 
years, dismissed the claims, until it was faced with the 
photographs of Abu Ghraib, claims of abuse by detainees by 
arguing that those complaints are part of al-Qaeda's strategy. 
And it very well may be true that complaining about abuse is 
part of the al-Qaeda manual of what to do when you get 
captured.
    One of the ways that the Administration could prove that 
point is by videotaping. This is why videotaping has become so 
popular, I think, in domestic law enforcement agencies, is to 
be able to defend against erroneous claims of abuse by people 
who have been interrogated.
    One of your colleagues here in the House, Congressman Rush 
Holt of New Jersey, has for several years proposed legislation 
that we have supported that would have required the videotaping 
of interrogations for the purpose of inhibiting abuse and 
protecting against erroneous claims of abuse. And perhaps that 
is something the Committee ought to examine coming out of this 
incident.
    Mr. Cohen. Thank you.
    Professor?
    Mr. Radsan. Thank you, Congressman Cohen.
    General Hayden, in his letter to CIA employees, offered an 
explanation of why they kept tapes of these two interrogations 
that went over many hours. One was to monitor the compliance 
with the program by the interrogators, to make sure that they 
were following the law. I am not saying whether that is right 
or wrong; this is his offered explanation.
    The second is the point that Mr. Rivkin made, that they 
wanted to have a record, a complete record for intelligence 
value to figure out whether the information was good, whether 
the person was being deceptive, the person that was being 
interrogated.
    But I think, as your question suggests, there are benefits 
and there are burdens to having a very complete record--and a 
video is going to be more graphic than a transcript or an 
audio--benefits and burdens that may come back to hurt you.
    And maybe I can give the third point by passing a question 
to Professor Saltzburg. It is the same issue or a similar issue 
of why does the FBI not record its interviews with witnesses? 
Why does the FBI not videotape? Because they have determined, 
on that balance of burden and benefit, that is better for them 
to have the only record. They do it through an FBI 302, a 
report of the interview.
    There are States that have gone the other way on their law 
enforcement and said, ``We want these things videotaped because 
we don't necessarily trust the record.'' But I think the FBI, 
in its case, says, well, they would rather have FBI agents 
testifying about what actually happened, and you could draw the 
analogy to the CIA.
    Mr. Cohen. And you were going to pass the question to 
Professor Saltzburg. And based on your vitae, I think you 
probably have a good question.
    Mr. Saltzburg. I think the question was, isn't this why the 
FBI does what it does, and I think it is.
    But there is another reason why they might have videotaped, 
very closely related to what was stated to the CIA employees, 
and that is you will remember that the FBI was telling the CIA 
not to do what it was doing, that these techniques don't work 
and that they are harsh and unnecessary. And one of the reasons 
for making the tapes is I think the CIA probably wanted to show 
that it works. They had a record. Their view is they got a lot 
of intelligence, and if anybody doubts it, they can show you 
exactly what they did and that it worked, in their view.
    The problem is when it came time to show these tapes, they 
may have looked back and said, ``Uh-oh, even if it worked, we 
don't want people to see what we did.''
    Mr. Cohen. Does anybody on the panel believe that the tapes 
were destroyed to preserve the anonymity of CIA operatives? 
Does anybody buy that at all?
    Mr. Rivkin?
    Mr. Rivkin. I would only buy it in the context with the 
following observation, which I made several times today. It is 
not that you, as Congress, would reveal this information, but 
in a time where everything leaks--and that is not an 
overstatement--having those tapes posted on the Internet, being 
leaked the same way the Abu Ghraib tapes were, in a situation 
where individuals doing the interrogation were shown--these 
individuals are overseas. It would either destroy their careers 
or would may well put their lives in jeopardy.
    Mr. Cohen. But wasn't it possible to easily block out their 
face or their identity and still have the tape but to secure 
the anonymity of the CIA operative?
    Mr. Rivkin. Well, again, this assumes that one can 
guarantee that an unredacted tape would not be leaked or, even 
if somehow the identify was obscured, that it could not be 
restored. And that is a big assumption, given what else has 
happened with the most secret of programs that this Government 
has employed in the last several years.
    Mr. Cohen. Thank you, sir.
    Professor?
    Mr. Radsan. With respect, I disagree with Mr. Rivkin. It 
doesn't make sense to me that the tapes needed to be destroyed 
to protect identities. You have alluded to one possibility of 
redacting, but the other basic possibility--there was no 
indication that they wanted to share this with anybody. If they 
were worried about a leak--and the CIA protects a lot of 
classified information--if you had tapes at an overseas 
location, then have the tape moved back to headquarters, as Ms. 
Jackson Lee said, put it in a safe in the Director's office. If 
a tape is not safe in the Central Intelligence Agency, in the 
office of the Director of the Central Intelligence Agency, we 
are in trouble.
    A historical note is you remember with the Bay of Pigs, 
there was a very controversial Inspector General investigation 
that was done internally. The Director of Central Intelligence 
at that time didn't want this leaking and didn't want it well-
known. The Director of Central Intelligence said, ``We will 
take back the copies of the report. I will keep one. I will put 
it in the safe.'' And it was safe for a long period of time.
    Mr. Cohen. From Ranking Member Smith's testimony, assuming 
it be entirely accurate--and I have no reason to believe 
otherwise--waterboarding apparently is a very successful or 
effective tool at ferreting out information.
    And is there any other techniques that you all know of that 
might be just as effective but within the law?
    Mr. Rivkin. I personally have serious problems with 
waterboarding. I think it is a very difficult thing to justify.
    The thing that concerns me, Congressman--and I think it is 
an excellent question--is the critics are painting everything 
with a broad brush. If we were to adopt the procedures in the 
Army Field Manual, no coercive technique of any kind--including 
sleep deprivation, even in modest amounts; temperature 
manipulation, even in modest amounts--would be tolerated. That 
would take us way beyond.
    Look, everybody agrees, I don't know anybody who holds a 
candle for torture or even for cruel, inhumane and degrading 
treatment. We are talking about things way below that level. 
And if we are going to do that, I agree with one fundamental 
respect, let's have an honest debate as a society, as a 
country, to say we are not going to sully our hands with any 
kind of coercive techniques. And let's also explain to the 
American people why it is okay to do it to our own personnel in 
the course of training, why it is okay to have coercion in 
penitentiaries and police stations, different doses, but here 
there would be one coercion-free corner in the entire public 
sphere for interrogating combatants.
    If you can make the case where American people buy into it, 
that is fine. What worries me is the case is not being made and 
is being done through indirection.
    Mr. Cohen. Yes, sir.
    Professor?
    Mr. Radsan. Congressman, I agree that we should have a 
special program for the CIA, that we may need some enhanced 
techniques. Where we are going to disagree or where the 
discussion goes are what sort of techniques will we allow. And 
I am fortunate to be in the middle, I am right down the middle 
there with the Chairman.
    I think where the discussion will get very interesting for 
enhanced techniques that we allow the CIA to use is not on 
waterboarding. I think most of us will agree we are going to 
take waterboarding off the table. But what about sleep 
deprivation? Menachem Begin, who was the leader of Israel, was 
tortured himself, and he said that, of all the techniques, the 
most defective was depriving him of sleep. He said that the 
quest for sleep is far greater than the need for food or water.
    And we would figure out--this is something you can't do in 
the criminal justice system. You can't keep somebody up for a 
day or 2 to try to find out whether they robbed the bank. But 
perhaps for this interrogation and detention program that we 
allow the CIA, perhaps this is something that is going to be 
acceptable.
    I haven't made up my mind, but I would like to hear the 
debate. And the effects of sleep deprivation we know are 
different from the effects of some of these other techniques.
    Mr. Cohen. Professor, let me ask you this. You suggested in 
your testimony maybe some type of FISA court to determine what 
might be proper techniques. Are you satisfied with the FISA 
court's jurisdiction and their powers, that they are sufficient 
to protect the American public? Because they have a very 
limited scope.
    Mr. Radsan. They have limited scope, but we don't have any 
evidence that any information is leaked from the FISA court, 
that it does provide some sort of review. It is close, and we 
don't have people advocating on behalf of the person that might 
be surveilled. We may need to adjust the statute, I think we 
probably would, to set up some FISA-type court for 
interrogation.
    And where I would go--and I have laid this out in 
articles--is I might put an annual cap on how many people can 
into the program. I might have an ombudsman in the special 
court, not a defense lawyer, to protect the classified 
information, but to have some more of a check to figure out 
whether this is someone who deserves to be in the program or 
not.
    And perhaps with a FISA-type court, we could have the court 
reviewing what sort of techniques are permissible or not. It is 
not full oversight, but it is something better than complete 
black sites, which I am opposed to.
    Mr. Cohen. And I appreciate what you suggested, because I 
have thought we do have to have certain techniques to be able 
to ferret out information and protect our people. At the same 
time, we have to respect our laws. And one of the major 
conflicts is, if we permit something, the other countries may 
use it against our own folks. And certainly Senator McCain, who 
was a prisoner of war, could have been subjected to, and 
probably was, different techniques. We want to protect our 
folks.
    If we have a court that decides these things--and a FISA 
court would be not so publicized and not so public. And I am 
not saying that al-Qaeda or Iraq or whoever is going to say, 
``Oh, America lets this happen, so we will; if they don't, we 
won't.'' How can we say that, if we have these courts, that 
some other country won't have a court, and how can we have 
faith in their courts to have rules that protect our folks?
    Mr. Radsan. Congressman, I recognize that I am trying to 
have it both way ways, that I want to have a very limited 
program to allow some techniques that are not permitted in the 
criminal justice system, that I would not permit to the 
Department of Defense. And I would hope, by containing it and 
having additional oversight through this special court, that we 
could prevent those arguments from being made that you 
suggested, that if one of our service people falls into the 
hands of the enemy, that we don't want the argument that this 
technique, whether it is sleep deprivation or some enhanced 
technique, is permissible.
    I am trying to cabin this off to say that we may need 
aggressive techniques on someone like Khalid Sheikh Mohammed, 
the presumed mastermind of 9/11. We may need them on Abu 
Zubaydah. But we don't want this to spread to Guantanamo, to 
Abu Ghraib. I am trying to carve out an exception and maintain 
it within the rule of law. It is difficult, but I don't know of 
a better solution.
    Mr. Rivkin. You guys forget one point. There is legal 
basis----
    Mr. Conyers. Could we let Ms. Massimino have the last word, 
Mr. Cohen?
    Mr. Cohen. Yes, sir.
    Ms. Massimino. Thank you, Mr. Chairman.
    Mr. Conyers. Before we do that, I didn't want to cut off 
Mr. Rivkin.
    Mr. Rivkin. Thank you, Mr. Chairman, for your indulgence.
    There is a very simple legal basis to have your cake and 
eat it too, which is when you deal with lawful enemy combatants 
who, upon capture, become POWs, you cannot use any coercive 
techniques whatsoever. When you deal with unlawful enemy 
combatants, the entitlement is a great deal less, entitled to 
humane treatment. You cannot torture them, but you certainly 
can use stress techniques that fall below that level.
    Ms. Massimino. Thank you. I just want to correct one 
impression about sleep deprivation and what Menachem Begin said 
about it, and that was that he would have said anything in 
order to get an hour of sleep--not that he would have told the 
truth, but he would have said anything. And that is the problem 
with a lot of these techniques.
    I also want to say I am not an interrogations expert, but I 
would commend to you, Mr. Cohen, the letter from 35 retired 
flag and general officers, including six four-star officers of 
each of the four branches of service. And these are not flower 
children. They are combat-hardened men, all men who have 
overseen troops who have had to face very dangerous enemies.
    And they say in their letter, ``The Field Manual is the 
product of decades of practical experience and was updated last 
year to reflect lessons learned from the current conflict. 
Interrogation methods authorized by the Field Manual have 
proven effective in eliciting vital intelligence from dangerous 
enemy prisoners. Some have argued that the Field Manual rules 
are too simplistic for civilian interrogators. We reject that 
argument. Interrogation methods authorized in the Field Manual 
are sophisticated and flexible. And the principles reflected in 
the Field Manual are values that no U.S. agencies should 
violate.''
    This idea that we can somehow cabin it, a little bit of 
torture or something less than torture, only in certain 
circumstances, only by certain people, is a fantasy. That is 
exactly what the Administration tried to do. I don't believe 
that the Administration set out to have Abu Ghraib happen or to 
have there be widespread abuse of prisoners: 100 deaths in 
custody, 34 homicides, eight people literally tortured to 
death. I do not believe that that was the intent of this 
Administration. But it happened because there was a simplistic 
belief that you could do a little bit here, a little bit there 
and not, as Senator McCain pointed out, change who we are as a 
Nation.
    That is where we are right now. This is not a theoretical 
debate that we are having. We are in that hole right now, and 
whether we stay there or climb out is largely up to you all.
    Thank you.
    Mr. Cohen. I would like to thank the panel.
    And I would also like to suggest to the Chair and Members 
of the Committee--and I respect the Members of the Committee, 
and serving with them, just as with the Chairman, has been a 
great honor this year. This Committee, particularly on my side 
of the aisle, has some outstanding Americans who believe in the 
Constitution, and so it is so special to serve here.
    I think we have learned a couple of things today. First of 
all, sleep deprivation is a very effective tool. And the Senate 
should have gone ahead and let the Republicans filibuster. 
Maybe they would have said some things that they shouldn't that 
we should have heard over the last year. And they should think 
about that for next year.
    And the second thing is, Mr. Chairman, as I look at the 
Department of Justice again having an empty seat, I think back 
upon this year when this Committee saw officials from the 
Department of Justice, particularly Ms. Miers, not show up 
before this panel and not bring information.
    And I hope at the beginning of the next year we will bring 
our contempt citation to the floor and show this Administration 
that this Committee and this Congress is not going to take it 
any longer and that we are going to be an independent branch, 
in the tradition of John Yarmuth and the freshman, and believe 
Article 1 and assert our power, as the American people have 
invested in this and as we took an oath to uphold it.
    Thank you, Mr. Chairman.
    Mr. Conyers. And I think the witnesses and all the Members 
and those who have joined us today.
    This is an excellent beginning, and we look forward to 
examining the record so that we can move forward to continued 
hearings.
    Thank you very much.
    The Committee is adjourned.
    [Whereupon, at 12:32 p.m., the Committee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Letter dated December 17, 2007, from the Honorable John Conyers, Jr., 
  to the Honorable Michael B. Mukasey, Attorney General of the United 
                                 States




 Letter dated December 7, 2007, from the Honorable John Conyers, Jr., 
 the Honorable Robert C. Scott, the Honorable Jerrold Nadler, and the 
    Honorable William Delahunt to the Honorable Michael B. Mukasey, 
                 Attorney General of the United States




 Letter dated December 13, 2007, from the Honorable Michael B. Mukasey 
to the Honorable John Conyers, Jr., the Honorable Robert C. Scott, the 
  Honorable Jerrold Nadler, and the Honorable William Delahunt, with 
                               enclosure



                              Enclosure




                                 
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