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


 
                         JUSTICE DEPARTMENT'S  
                        OFFICE OF LEGAL COUNSEL 

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 14, 2008

                               __________

                           Serial No. 110-129

                               __________

         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
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

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

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel












































                            C O N T E N T S

                              ----------                              

                           FEBRUARY 14, 2008

                                                                   Page

                           OPENING STATEMENT

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     3

                               WITNESSES

Mr. Steven G. Bradbury, Principal Deputy Assistant Attorney 
  General, Office of Legal Counsel, U.S. Department of Justice
  Oral Testimony.................................................     5
  Prepared Statement.............................................     8



















                                APPENDIX

Material Submitted for the Hearing Record........................    33


                         JUSTICE DEPARTMENT'S 
                        OFFICE OF LEGAL COUNSEL

                              ----------                              


                      THURSDAY, FEBRUARY 14, 2008

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 12:07 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Davis, Ellison, Scott, 
Watt, Franks, and King.
    Staff Present: David Lachmann, Subcommittee Chief of Staff; 
Burt Wides, Majority Counsel; Heather Sawyer, Majority Counsel; 
Sam Sokol, Majority Counsel; Caroline Mays, Majority 
Professional Staff Member; Paul Taylor, Minority Counsel; 
Crystal Jezierski, Minority Counsel; and Jennifer Burba, 
Minority Staff Assistant.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order.
    Today's hearing will examine the work of the Office of 
Legal Counsel of the Department of Justice with respect to its 
involvement in the legal review of Administration policies 
relating to detention and interrogation.
    The Chair recognizes himself for 5 minutes for an opening 
statement.
    Today we consider a matter that goes to the heart of who we 
are as a Nation. No one will argue that we live in a dangerous 
world, that there are people who are organizing to attack our 
Nation, or that our Government must gather reliable 
intelligence to defend us. All that is obvious. What is at 
issue is the lengths to which some people acting on our behalf 
have gone, and what the Office of Legal Counsel has advised our 
Government what it may and may not legally do.
    The job of OLC is of critical importance to the rule of law 
in this country. As Newsweek described it, the OLC, `is the 
most important Government office you've never heard of.''
    Within the executive branch, including the Pentagon and 
CIA, the OLC acts as a kind of mini-Supreme Court. Its 
carefully worded opinions are regarded as binding precedent, 
final say on what the President and all his agencies can and 
cannot legally do. So when it comes to the question of the 
treatment, the use of waterboarding and other extreme forms of 
coercion for interrogation of people detained by the United 
States, OLC is really the place to start.
    Our witness today, Steven Bradbury, is the Principal Deputy 
Assistant Attorney General for OLC. He serves in that position, 
because his nomination as Assistant Attorney General has not 
yet been confirmed by the Senate.
    OLC and Mr. Bradbury have been in the middle of the 
controversy regarding the treatment of detainees. The now 
infamous Bybee Torture Memo was produced by Mr. Bybee's deputy, 
John Yoo. Its publication coming on top of the expose of 
prisoner abuse at Abu Ghraib, devastated America's standing 
around the world. It also led numerous prominent military 
lawyers to fear it would permit hostile forces to brutalize our 
soldiers and deny that what they were doing was torture.
    That OLC product was so flawed and so at odds with our law 
and our values that a subsequent head of OLC, Jack Goldsmith, 
rescinded it. More recently, the OLC's role in developing 
interrogation policy has again been in the spotlight. According 
to the New York Times, Mr. Bradbury wrote two secret but 
controversial opinions in 2005. Mr. Bradbury, as the acting 
head of OLC, reportedly issued an opinion authorizing the use, 
in combination, of certain harsh interrogation techniques, 
including head-slapping, simulated drowning, and exposure to 
frigid temperatures.
    While its details remain unknown, that is to say secret, 
Deputy Attorney General Comey has been reported to have 
objected to it so vigorously that he told colleagues they would 
all be ashamed when the world learned of it.
    More recently, several developments have focused the 
attention of this Subcommittee and of the Nation on the 
chilling practice of waterboarding. My own view of 
waterboarding is clear. It is torture, period; and as such, 
violates several of our laws. Waterboarding is often misnamed 
``simulated drowning.'' In fact, as was testified to by 
witnesses at a couple of prior hearings of this Subcommittee, 
it is actual drowning, with all the excruciating agony that 
entails, which is stopped short of death. That is why what is 
now euphemistically called ``waterboarding'' has for centuries 
been more bluntly known as the water torture, from the 
Inquisition to the U.S. prosecution in the last century of both 
enemy captors and Americans alike for practicing waterboarding. 
This has been the long-held view of our Nation, our legal 
system and of our military.
    Senator McCain, who is something of an expert on the 
subject, has been unsparing in his criticism of these 
practices. I have held several hearings where experts in 
interrogation have testified not only to the cruelty, but to 
the ineffectiveness of this practice.
    Waterboarding is also prohibited by the Army Field Manual 
on Interrogation. Just yesterday, the Senate passed a bill that 
would extend the Army Field Manual guidance, which outlaws 
waterboarding to the entire Intelligence Community 
incorporating a bill which I had introduced initially with Mr. 
Delahunt. As a civilized Nation there must be limits in our 
conduct, even during military conflicts. And our laws so 
dictate. President Bush has long said that America does not 
torture. I urge him to sign this legislation into law and thus 
affirm that commitment.
    The fact that this Administration tortures, despite its 
testimony that it doesn't, is no longer a closely held secret. 
Recently, CIA Director Hayden disclosed the three individuals 
who were subjected to waterboarding. He also disclosed that at 
least two videotapes of those sessions had been destroyed after 
several years of discussion among the CIA, Justice Department, 
and the White House.
    In addition to reportedly drafting several controversial 
memoranda on interrogation, Mr. Bradbury also has been a point 
man for the Bush administration, repeatedly explaining and 
defending its programs and legal positions before congressional 
Committees and participating in White House question-and-answer 
sessions with the press and the public.
    Opinions issued by OLC have offered the legal support for a 
number of the Administration's more controversial programs and 
actions, whose legality under statutes of the Constitution is 
strongly questioned by many scholars. In addition, Mr. Bradbury 
has been a frequent advocate for and defender of Administration 
policies before the Congress and press and the public. This 
raises the questions about the state of OLC today.
    Some observers, including former OLC officials who served 
in Administrations of both political parties, have questioned 
whether OLC in this Administration has operated with sufficient 
independence to present objective analysis of the controlling 
law, or has too readily created weak arguments to support what 
the President wants to do in regard to terrorism or other 
areas. I hope we can get to this important issue.
    I want to welcome our witness, I yield back the balance of 
my time.
    I would now recognize our distinguished Ranking minority 
Member, the gentleman from Arizona, Mr. Franks, for his opening 
statement.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, we are here today because of an article about 
interrogation techniques that appeared in the New York Times. 
The article describes a memo that allows what the headline 
characterizes as ``Severe Interrogations,'' as described by a 
few anonymous sources who are only briefed on the memo and who 
have apparently not actually seen it. The Times article 
concedes that the tactics it characterizes as ``severe 
interrogations'' simply include ``interrogation methods long 
used in training for our own American servicemen to withstand 
capture.''
    Severe interrogations are unpleasant, to be very sure, but, 
Mr. Chairman, they are sometimes necessary to prevent severe 
consequences that potentially involve the violent deaths of 
thousands of innocent American citizens. Severe interrogations 
are very infrequent. CIA Director Michael Hayden has confirmed 
that despite the incessant hysteria, the waterboarding 
technique has only been used on three high-level captured 
terrorists, the very worst of the worst of our terrorist 
enemies.
    Director Hayden suspended the practice of waterboarding by 
CIA agents in 2006. Before the suspension, Director Hayden 
confirmed that his agency waterboarded Khalid Sheikh Mohammed, 
Abu Zubayda, and Abd al-Rahim Nashiri, each for approximately 1 
minute. The results were of immeasurable benefit to the 
American people. CIA Director Hayden has said that Mohammed and 
Zubayda provided approximately 25 percent of the information 
the CIA had on al-Qaeda from human sources. That's 25 percent 
of the total information in human intelligence that we have 
received on al-Qaeda, derived from 3 minutes' worth of rarely 
used interrogation tactics.
    Curtailing this program would drastically reduce our 
ability to protect against horrific terrorist attacks. Even the 
New York Times article points out that such techniques have 
``helped our country disrupt terrorist plots and save innocent 
lives.''
    Torture, Mr. Chairman, by contrast is illegal, as it should 
be. Torture is banned by the Uniform Code of Military Justice 
in 19 U.S.C. 893 and the 2005 McCain amendment prohibiting the 
cruel, inhuman, or degrading treatment of anyone in U.S. 
custody, as understood in the 5th, 8th and 14th amendments.
    According to the New York Times, the Department of Justice 
issued a legal opinion that ``The standards imposed by Mr. 
McCain's Detainee Treatment Act would not force any change in 
the CIA's practices. Relying on a Supreme Court finding that 
only conduct that shocks the conscience was unconstitutional. 
The opinion found that in some circumstances, waterboarding was 
not cruel, inhuman or degrading if, for example, a suspect was 
believed to possess crucial intelligence about a planned 
terrorist attack, the officials familiar with the legal finding 
said.''
    Now, we do not know whether or not the confidential 
Department of Justice legal opinion actually used the example 
of waterboarding. But the general principle expressed by the 
Department of Justice, echoed by the Supreme Court's finding 
that circumstances inform our analysis of whether or not a 
tactic is cruel, inhuman or degrading, and whether a tactic 
constitutionally shocks the conscience.
    The nonpartisan Congressional Research Service confirms 
that this analysis, ``The types of acts that fall within cruel, 
inhuman or degrading treatment or punishment contained in the 
McCain amendment, may change over time, and may not always be 
clear. Courts have recognized that circumstances often 
determine whether conduct shocks the conscience and violates a 
person's due process rights.''
    Even ultra-liberal Harvard law professor Alan Dershowitz 
agrees as he wrote this recently in The Wall Street Journal. 
``Mukasey is absolutely correct,'' he says, ``as a matter of 
constitutional law, that the issue of waterboarding cannot be 
decided in the abstract. The Court must examine the nature of 
the governmental interest at stake and then decide on a case-
by-case basis. In several cases involving the actions at least 
as severe as waterboarding, courts have found no violations of 
due process.''
    As the Wall Street Journal pointed out in the recent 
editorial, Congress wants the Justice memos made public, but 
the reason to keep them secret is so that enemy combatants 
cannot use them as a resistance manual. If they know what is 
coming, they can psychologically prepare for it. We know al-
Qaeda training involves its own forms of resistance training, 
and publicly describing the rules offers our enemies a road map 
for resistance.
    Mr. Chairman, as I said in the last hearing, I believe 
those who would challenge aspects of the current practices and 
procedures governing the interrogation of terrorists have an 
absolute obligation to state explicitly what sorts of 
interrogation techniques they do find acceptable. Criticism 
without solution is useless and represents the opposite of 
leadership.
    And I look forward to hearing from our witnesses, Mr. 
Chairman, and yield back.
    Mr. Nadler. I thank the gentleman. I would comment that 
some of us have done precisely that. We have suggested that the 
practices that are permissible are those in the U.S. Army Field 
Manual.
    In the interest of proceeding to our witness, and mindful 
of our busy schedules, I would ask that other Members submit 
their statements for the record.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record.
    Without objection, the Chair will be authorized to declare 
recess of the hearing.
    As we ask questions of our witness, the Chair will 
recognize Members in the order of their seniority in the 
Subcommittee, alternating between majority and minority, 
provided that the Member is present when his or her turn 
arrives. Members who are not present when their turn begins 
will be recognized after the other Members have an opportunity 
to ask their questions. The Chair reserves the right to 
accommodate a Member who is unavoidably late or only able to be 
with us for a short time.
    Our witness today, Steven G. Bradbury, who currently serves 
as the Principal Deputy Assistant Attorney General for the 
Office of Legal Counsel. The Office of Legal Counsel assists 
the Attorney General in his function as legal advisor to the 
President and all the executive branch agencies.
    Before we begin, it is customary for the Committee to swear 
in its witnesses. If you would please stand and raise your 
right hand to take the oath.
    [Witness sworn.]
    Mr. Nadler. Let the record reflect the witness answered in 
the affirmative. You may be seated.
    Mr. Bradbury, you are recognized for your statement.

  TESTIMONY OF STEVEN G. BRADBURY, PRINCIPAL DEPUTY ASSISTANT 
 ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF 
                            JUSTICE

    Mr. Bradbury. Thank you, Mr. Chairman, Chairman Nadler, 
Ranking Member Franks and Members of the Committee.
    Let me first extend my condolences to this body and to the 
family of Congressman Lantos for the loss of a great American 
and a great Member of this House.
    Mr. Chairman, I appreciate the opportunity to appear before 
you today to address the CIA's program of detention and 
interrogation of high-value terrorists.
    As this Committee knows, the Office of Legal Counsel 
exercises the authority of the Attorney General to render legal 
opinions for the executive branch. I've been privileged to 
serve as the Principal Deputy in OLC since April 2004, and I 
can assure the Committee that every opinion I sign for the 
Office represents my best objective judgment as to what the law 
requires, without regard for the political currents that often 
swirl around the questions presented to us.
    The CIA program was initiated not long after 9/11, when our 
knowledge of al-Qaeda was more limited and when the possibility 
of a follow-on attack was thought to be eminent. The program 
has always been very narrow in scope, reserved for a small 
number of hard-core al-Qaeda members believed to possess 
uniquely valuable intelligence.
    Fewer than 100 terrorists have been detained by the CIA as 
part of this program. The President and CIA Director Hayden 
have said that the program has been a critical source of 
intelligence to help prevent further mass terrorist attacks on 
the U.S. This program has involved the limited use of 
alternative interrogation methods judged to be necessary in 
certain cases because hardened al-Qaeda operatives are trained 
to resist the types of methods approved in the Army Field 
Manual which governs military interrogations. The CIA's 
interrogation methods were developed for use by highly trained 
professionals, subject to careful authorizations, conditions, 
limitations and safeguards. They have been reviewed on several 
occasions by the Justice Department over the past 5-plus years 
and determined on each occasion to be lawful under then-
applicable law.
    These alternative interrogation methods have been used with 
fewer than one-third of the terrorists who have ever been 
detained in the program. Certain of the methods have been used 
on far fewer still. In particular, as General Hayden has now 
disclosed, the procedure known as waterboarding was used on 
only three individuals and was never used after March 2003.
    While there is much we cannot say publicly about the CIA 
program, the program has been the subject of oversight by the 
Intelligence Committees of both Houses of Congress, and the 
classified details of the program have been briefed to Members 
of those Committees and other leaders in Congress.
    In 2002 when the CIA was establishing the program and first 
sought the legal advice of the Justice Department, the relevant 
Federal law applicable to the CIA program was the Federal anti-
torture statute which prohibits acts intended to inflict severe 
physical or mental pain or suffering, as defined in the 
statute.
    The Justice Department set forth its interpretation of the 
anti-torture statute in OLC's public December 2004 opinion 
where we affirm that torture is abhorrent to American values. 
All advice we have given since has been consistent with the 
December 2004 opinion.
    Since 2005, additional laws have become applicable to the 
program. Congress passed the Detainee Treatment Act in December 
2005 and the Military Commissions Act in October 2006. And in 
June 2006, the Supreme Court held for the first time, in Hamdan 
v. Rumsfeld, that Common Article 3 of the Geneva Conventions 
applies to our worldwide armed conflict with al-Qaeda.
    The CIA program is now operated in accordance with the 
President's executive order of July 20, 2007, which was issued 
pursuant to the Military Commissions Act. The President's 
executive order requires that the CIA program comply with a 
host of substantive and procedural requirements. The executive 
order reaffirms that the program must be operated in conformity 
with all applicable statutory standards, including the Federal 
prohibition on torture, Detainee Treatment Act, and the 
prohibitions on grave breaches of Common Article 3, which were 
added to the War Crimes Act by the 2006 Military Commissions 
Act.
    In addition, the executive order requires that all 
detainees in the program must be afforded adequate food and 
shelter and essential medical care. They must be protected from 
extremes in temperature and their treatment must be free of 
religious denigration or acts of humiliating personal abuse 
that rise to the level of an outrage upon personal dignity.
    The Director of the CIA must have procedures in place to 
ensure compliance with the executive order, and he must 
personally approve each individual plan of interrogation. After 
enactment of the Detainee Treatment Act, the CIA commenced a 
comprehensive policy and operational review of the program, 
which eventually resulted in a narrower set of proposed 
interrogation methods.
    As the Attorney General disclosed, the program as it is 
authorized today does not include waterboarding. And let me be 
clear, Mr. Chairman. There has been no determination by the 
Justice Department that the use of waterboarding under any 
circumstances would be lawful under current law. Many of the 
legal questions raised by the CIA program are difficult ones 
and ones over which reasonable minds may differ. But the 
dedicated professionals at the CIA are working with honor to 
protect the country in accordance with the law.
    Mr. Chairman, while differences between Congress and the 
Department in these turbulent times are inevitable and are 
consistent with the institutional tension embedded in our 
Constitution, it is important to remember that I, like Members 
of this Committee, have sworn an oath to protect and defend the 
Constitution of the United States. Each of the opinions I have 
rendered at the Office of Legal Counsel has been true to this 
oath. While difficult questions arise, every opinion I have 
issued has been consistent with my professional obligations as 
an attorney and with my obligation to protect and defend the 
Constitution.
    Thank you Mr. Chairman.
    Mr. Nadler. I thank you, Mr. Bradbury.
    [The prepared statement of Mr. Bradbury follows:]
                Prepared Statement of Steven G. Bradbury

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Nadler. I will begin by recognizing myself for 5 
minutes to question the witness.
    Mr. Bradbury, I understand that for many of the CIA's 
enhanced interrogation techniques, the test of their legality 
under current law is linked to the constitutional standards of 
whether it shocks the conscience, and that this may depend on 
the circumstances. But under the convention against torture and 
the implementing Federal torture statute, torture is absolutely 
barred; and that does not depend on the circumstances and that 
does not depend on whether it shocks the conscience.
    So let's put that aside and cut to the chase. The 
convention and the Federal torture statute defined torture to 
be ``an act specifically designed to inflict severe physical or 
mental pain or suffering.'' I fail to see how the agonizing 
pain of not being able to breathe as your lungs fill with water 
and oxygen is denied your body cannot be considered severe 
physical pain. And I fail to see how feeling that you are 
drowning and about to die cannot be considered severe mental 
pain and suffering.
    It is certainly specifically designed--waterboarding, that 
is--to inflict both severe mental and physical pain and 
suffering so that the prisoner will speak.
    Now, in your legal opinion, is waterboarding a violation of 
the Federal torture statute?
    Mr. Bradbury. Well, Mr. Chairman, as General Hayden has 
disclosed, our office has advised----
    Mr. Nadler. I'm not interested in your opinions before. 
Never mind former OLC opinions. I'm asking you the question 
now: Is waterboarding a violation of the Federal torture 
statute?
    Mr. Bradbury. I was about to answer the question, Mr. 
Chairman, this way. Our office has advised the CIA, when they 
were proposing to use waterboarding, that the use of the 
procedure, subject to strict limitations and safeguards 
applicable to the program, was not torture and did not violate 
the anti-torture statute. And I think that conclusion was 
reasonable. I agree with that conclusion.
    Mr. Nadler. Given the definition I just read, how can you 
possibly justify that?
    Mr. Bradbury. Well, first of all, I'm limited in what I can 
say about the technique itself, because----
    Mr. Nadler. We know what the technique is. It has been done 
for hundreds of years.
    Mr. Bradbury. Well, with respect, Mr. Chairman, your 
description is not an accurate description of the procedure 
that's used by the CIA, and I think there's----
    Mr. Nadler. My description was a description that was given 
to this Committee by ex-interrogation officers.
    Mr. Bradbury. Well, there's been a lot of discussion in the 
public about historical examples. For example, as the Chairman 
referenced, from the Spanish Inquisition; cases of torture from 
the Philippines and committed by the Japanese during World War 
II. Those cases of water torture have involved the forced 
consumption of mass amounts of water and often large amounts of 
water in the lungs. They have often involved the imposition of 
weight or pressure----
    Mr. Nadler. But your testimony is that that's not what 
we're talking about now.
    Mr. Bradbury. That is not what we are talking about.
    Mr. Nadler. Well, then let me go to the following. You have 
refused--according to the New York Times, you wrote several 
memos on interrogation techniques in 2005. The Times said that 
the opinion about using a whole bunch of very intense 
techniques on the prisoner, in combination, including 
waterboarding, so outraged Deputy Attorney General Comey that 
he told colleagues they would be ashamed if it ever came out.
    Now, that has peaked our curiosity. But the Attorney 
General said he could not give us those memos and others we 
have repeatedly asked for on this subject because they were 
very sensitive. When the Chairman of this Committee, Mr. 
Conyers, reminded him that we all have Top Secret clearance, 
the Attorney General simply repeated that he was unable to 
share them with us.
    Now we have been shown documents on the NSA warrant list 
wiretapping that are Code Word, which I'm sure is a higher 
classification than your legal opinion of interrogation. So can 
you tell us why you won't--I mean, you're telling us that the 
opinions we're making about waterboarding are wrong because we 
don't know what waterboarding really is. Therefore we can't 
form a judgment, you're telling us, on the legal basis; or on 
whether it is legal because we don't know what--literally, we 
don't know about what we're talking because you won't tell us.
    So can you tell us precisely what the legal authority is 
for withholding those documents from the Committee of proper 
subject matter jurisdiction other than the fact that they might 
be embarrassing to somebody?
    Mr. Bradbury. Well, Mr. Chairman, let me say I and the 
Department of Justice and the Attorney General fully recognize 
and respect the strong oversight interest this Committee has in 
the work of our office----
    Mr. Nadler. We've seen no evidence of that.
    Mr. Bradbury. Well, let me say that we do intend and we 
strive to respond to----
    Mr. Nadler. Let's break through all this. Will you commit 
to letting us see those memos? And, if not, why not?
    Mr. Bradbury. We will--we are giving that serious 
consideration, Mr. Chairman. We are giving that serious 
consideration.
    Mr. Nadler. Is there any legal basis for saying ``no'' to a 
committee of jurisdiction which falls squarely within our 
jurisdiction and where we all have clearance--security 
clearance?
    Mr. Bradbury. Well, these are matters that traditionally 
are subject to the extensive oversight of the Intelligence 
Committees.
    Mr. Nadler. And the Judiciary Committee.
    Mr. Bradbury. And the classified details of the program are 
very close hold----
    Mr. Nadler. Excuse me. I said we all had top security 
clearances. So given that fact, is there any legal 
justification for withholding those documents?
    Mr. Bradbury. Well, Mr. Chairman, as you and I have 
discussed these--this very question before, the interest is--
the interest that the President and the executive branch have 
in protecting the potential public disclosure of----
    Mr. Nadler. Wait, that's saying ``secret''. We all have top 
security clearance, so all you're saying is that it might be 
revealed. We have top security clearance.
    Mr. Bradbury. Well, I think there was some discussion 
previously, perhaps mentioned earlier in the opening 
statements, about public disclosure. That----
    Mr. Nadler. We're not talking right now about public 
disclosure, we're talking about disclosure to this Committee.
    Mr. Bradbury. I understand that. And my point today is we 
recognize your interest, we recognize the unique nature of this 
issue, the controversial nature of the issue. We do recognize 
the extraordinary----
    Mr. Nadler. But what is--you keep not answering my 
question. What is the legal basis for your assertion of your 
ability to have discretion about whether to give those 
documents to us?
    Mr. Bradbury. Mr. Chairman, I'm not asserting any legal 
basis.
    Mr. Nadler. If there is no legal basis, then you must give 
them to us.
    Mr. Bradbury. It's not a decision for me, but I am saying--
I am saying that the Attorney General, in close consultation 
with the President, are giving careful consideration----
    Mr. Nadler. Are you the head of the Office of Legal 
Counsel?
    Mr. Bradbury. Yes.
    Mr. Nadler. Isn't it your job as such to give the opinion 
to the Attorney General on these kinds of questions?
    Mr. Bradbury. We do most often, yes, advise the Attorney 
General and the President on matters that potentially involve 
executive privilege issues.
    Mr. Nadler. So have you advised the Attorney General that 
they have the legal right to withhold these documents from this 
Committee?
    Mr. Bradbury. I don't----
    Mr. Nadler. Or that they don't have the legal right?
    Mr. Bradbury. Mr. Chairman, the executive branch does have 
the legal right to protect the confidentiality of deliberations 
of the executive branch and sensitive documents----
    Mr. Nadler. The executive branch, you're saying, has the 
unlimited right, in its own discretion, to withhold any 
document because of confidentiality?
    Mr. Bradbury. I'm absolutely not saying that. The Congress 
has a very strong constitutionally based interest in getting 
information necessary for oversight----
    Mr. Nadler. Thank you very much.
    Mr. Bradbury. We recognize those interests.
    Mr. Nadler. But you won't commit to giving us those 
documents despite the fact that we have security clearance, so 
your recognition is totally hollow.
    Mr. Bradbury. I will commit to attempting fully to satisfy 
the Committee's interest in these matters, to the fullest 
extent possible, consistent with legitimate interests that the 
executive branch has. And let me just underscore, we are----
    Mr. Nadler. Okay. Let me just say, then, that within a few 
days after this Committee, we'd like an explanation in writing. 
Either--we'd either like to see those documents or an 
explanation in writing in why we can't see them, and what the 
legal basis of your right to withhold them is.
    Mr. Bradbury. Okay.
    Mr. Nadler. Thank you.
    I now recognize the distinguished Ranking Minority Member 
for 5 minutes.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Let me just first offer a little illustration that I hope 
gives some idea as to why some of us separate waterboarding 
from torture, and why we do believe that circumstances in 
certain situations do change whether or not something shocks 
the conscience--and by way of just an illustration I hope that 
is relevant to most people.
    If a neighbor is invited over for dinner and insults the 
hostess on the dessert, and the husband of the home takes a 
baseball bat and beats his skull in for such an insult, I think 
that the courts would look negatively upon that. However, if a 
criminal breaks in at night and is attempting to rape his 4-
year-old daughter and he does the same thing, it changes the 
way the courts look at the same situation.
    So I want to put to rest the idea that there aren't effects 
on the circumstances, given the nature of any act. That's very 
fundamental and I'm astonished that we don't understand that.
    Another thing I'm a little confused about, Mr. Chairman, in 
all deference to the leadership of this Subcommittee and the 
larger Committee, the Judiciary Committee itself, we've spent 
time trying to deal with waterboarding issues, with issues 
related to FISA, with issues related to habeas corpus and 
Guantanamo. In all three of those areas we spent considerable 
time, and those things asserted by the majority would have 
great favorable effect on terrorists and very little effect on 
protecting American citizens.
    And I'm astonished that, given the fact that our first 
purpose in the Federal Government is to protect our citizens, 
that we spend so much time doing what we can to make sure that 
we're protecting terrorists and not our own--not the citizens, 
which is our primary cause.
    With that said, I want to ask Mr. Bradbury a question. 
Incidentally, sir, I think you've done a good job today.
    General Hayden testified last week that in the past, the 
U.S. military has used waterboarding against America's soldiers 
during the SERE training program. SERE, that's Survival Escape 
Resistance and Evasion is the acronym. If waterboarding really 
is torture, then doesn't that mean that the U.S. military 
routinely tortures soldiers during their training? Would that 
be lawful? Do you think that those who support a criminal 
investigation of CIA officers for their interrogation of 
terrorists also would support an investigation of the military 
officers who waterboarded our soldiers during training 
exercises?
    Mr. Bradbury. Well, Mr. Franks, as General Hayden did say, 
the CIA's use of the waterboarding procedure was adapted from 
the SERE training program used by the Navy and other 
departments of the military, in which many, many members of the 
military have been trained using that procedure.
    And I agree with Chairman Nadler that, as distinct from the 
cruel, inhuman or degrading treatment shocks the conscience 
standard under the Detainee Treatment Act, the torture statute 
is an absolute standard statute. It is a bright line rule and 
whenever its done in color of law, that's when it's done for 
Government purposes on behalf of the Government. If it is 
torture when done for one purpose. The same act would be 
torture when done for another purpose. So I believe it would be 
correct that those training personnel engaged in the use of 
that procedure, which I think was used until very recently, 
would be guilty of torture.
    Mr. Franks. Well, again, I would just assert that I too 
truly believe that torture in our statute and in the practice 
of this country is illegal and should remain illegal.
    I've heard a lot of reports in the press that waterboarding 
was developed in the Spanish Inquisition and that the United 
States repeatedly prosecuted it. Is that true? Do you believe 
that these past historical practices bear any resemblance to 
the waterboarding as done by the CIA?
    Mr. Bradbury. To my knowledge, they bear no resemblance to 
what the CIA did in 2002 and 2003. The only thing in common is, 
I think, the use of water. The historical examples that have 
been referenced in public debate have all involved a course of 
conduct that everyone would agree constituted egregious cases 
of torture.
    And with respect to the particular use of water in those 
cases, as I've indicated, in most of those cases they involved 
the forced consumption of large amounts of water, to such 
extent that--beyond the capacity in many cases of the victim's 
stomach, so that the stomach would be distended. And then in 
many cases weight or pressure, including in the case of the 
Japanese, people standing on or jumping on the stomach of the 
victim, blood would come out of the mouth. And in the case of 
the Spanish Inquisition, there truly would be agony and, in 
many cases, death.
    And so some of these historical examples I think have been 
used in a way that's not, I think, an accurate portrayal of 
what--of the careful procedures that the CIA was authorized to 
use with strict time limits, safeguards, restrictions, and not 
involving the same kind of water torture that was involved in 
most of those cases.
    Mr. Franks. Mr. Bradbury, my time is almost up, but 
you've--is it your testimony that waterboarding is indeed not 
torture and, if so, what briefly would you offer as the 
difference?
    Mr. Bradbury. Well, let me say--first of all, let me make 
it very clear, as I tried to do in my testimony, there are a 
lot of laws that apply here beyond the torture statute, and 
waterboarding has not been used by the CIA since March of 2003. 
There has been no determination by the Justice Department that 
its use today would satisfy those recently enacted laws, in 
particular the Military Commissions Act, which has defined new 
war crimes for violations of Common Article 3, which would make 
it much more difficult to conclude that the practices were 
lawful today.
    But under, strictly speaking, just under the anti-torture 
statute, as we've said in our December 2004 opinion, there are 
three basic concepts: severe physical pain, severe physical 
suffering, and severe mental pain or suffering, which is 
specifically defined in the statute.
    And if something subject to strict safeguards, limitations 
and conditions does not involve severe physical pain or severe 
physical suffering--and severe physical suffering, we said in 
our December 2004 opinion, has to take account both the 
intensity of the discomfort or distress involved and the 
duration. Something can be quite distressing or uncomfortable, 
even frightening, but if it doesn't involve severe or physical 
pain and it doesn't last very long, it may not constitute 
severe physical suffering. That would be--that would be the 
analysis.
    Under the mental side, Congress was very careful in the 
torture statute to have a very precise definition of severe 
mental pain or suffering. It requires predicate conditions be 
met. And then, moreover, as we said in our opinion in December 
2004, reading many cases, court cases under the Torture Victims 
Protect Act, it requires an intent to cause prolonged mental 
harm. Now that's a mental disorder that is extended or 
continuing over time. And if you've got a body of experience 
with a particular procedure that's been carefully monitored 
that indicates that you would not expect that there would be 
prolonged mental harm from a procedure, you could conclude that 
it is not torture under the precise terms of that statute.
    Mr. Franks. Thank you.
    Mr. Bradbury. The last thing on the torture statute I'd 
like to say, though, Mr. Chairman, is that the Attorney General 
has made it clear that if he's essentially taken--he's taking 
ownership of this issue in the sense that if there were any 
proposal to use this technique again, the question would have 
to go to the Attorney General, and he would personally have to 
determine that it satisfies all the legal standards, including 
the torture statute. By the way, he is not simply going to rely 
on past opinions that may have addressed it years ago; he would 
make an independent and new judgment today as to whether he 
agrees with that conclusion.
    Mr. Franks. Mr. Chairman, thank you. I just wanted to ask 
you to pass something to the Chairman. If indeed we've had 
testimony in this Committee that waterboarding is being used to 
train our soldiers, why aren't we investigating that? Why are 
we more concerned about the terrorists than we are our own 
soldiers?
    Mr. Nadler. Well, first of all, it is not necessary. One of 
the problems with waterboarding people that you may think are 
terrorists may not be. There's the question--there is always 
the question of----
    Mr. Franks. Well, we know that is happening to our 
soldiers; why are we not investigating that?
    Mr. Nadler. It is training in case they're tortured. That's 
what it is there for.
    Mr. Franks. That's my point.
    Mr. Nadler. In case they are tortured, because we assume 
that enemy nations might torture people. We assume that we 
won't torture people. We don't assume the enemy is going to 
obey the law, so it may prudent to train our people for 
torture.
    In addition to which, I would point out that at least with 
respect to the mental element, infliction of severe mental 
distress, when they are tortured they know they are not going 
to die. When someone is being drowned, the mental aspect is he 
doesn't know you're going to stop. If someone is being trained, 
he knows you're not going to actually drown him. May be severe 
physical, but it is certainly not a severe mental aspect. When 
we are torturing somebody else or someone else is torturing one 
of our soldiers, they don't know that they are going to be 
treated kindly.
    Mr. Franks. But if it is indeed, Mr. Chairman--if it is 
indeed torture shouldn't we be
    Mr. Nadler. Well, is the gentleman asking me to investigate 
the military?
    Mr. Franks. I'm asking you to understand the points here.
    Mr. Davis. Mr. Chairman, can I ask for regular order? Mr. 
Franks has exceeded his time.
    Mr. Franks. Thank you.
    Mr. Nadler. Mr. Franks has exceeded his time.
    I would also point out that one thing is very interesting 
from Mr. Bradbury's testimony, which really puts a very 
different light on a lot of things and makes it very necessary 
to get those documents, is that essentially what he said is 
that everything we have thought we knew about waterboarding 
from past cases--what the Japanese did, the Inquisition did, 
the newspapers have reported--that's not what we're talking 
about. We are talking about something else which may be 
different. If that's the case, we have to know about it.
    I now recognize the gentleman from Alabama for 5 minutes.
    Mr. Davis. Thank you, Mr. Chairman.
    Mr. Bradbury, I have a number of questions I want to ask 
you, but I want to pick up on your last line with the Ranking 
Member. You reiterated to him, and I think you stated in your 
testimony today, that you do not consider waterboarding to be 
torture as the term is precisely defined.
    Your boss, the Attorney General, was asked a series of 
questions before the Senate Judiciary Committee and he stated 
that he would consider waterboarding to be torture if it was 
done to him. Is the Attorney General being hypersensitive?
    Mr. Bradbury. Well, I think he was describing how he would 
personally react to what I think everybody would recognize 
would be a very distressing and frightening procedure.
    Mr. Davis. Let me pick up on that observation that it is a 
very distressing and frightening procedure. If individuals were 
subject to distressing, frightening procedures, is it 
conceivable that they might respond by lying?
    Mr. Bradbury. Well, I'm not an expert on that.
    Mr. Davis. Well, let me ask you just to rely on your common 
sense. If someone--and I recognize we've quibbled today about 
the definition of waterboarding, let's see if we can agree on 
some common sense concepts.
    Could waterboarding cause someone to feel distressed? If 
you would give me a simple answer.
    Mr. Bradbury. I think so, yes.
    Mr. Davis. Could waterboarding cause someone to feel 
extremely frightened?
    Mr. Bradbury. I think so.
    Mr. Davis. And if someone were feeling distressed or 
extremely frightened, would that human being be capable of 
telling a lie?
    Mr. Bradbury. I suppose so.
    Mr. Davis. John McCain, who is an authentic American hero 
and is about to become a nominee of the party that I suspect 
you belong to, was subject to torture in Vietnam, was he not?
    Mr. Bradbury. Yes, sir.
    Mr. Davis. And in response to that torture, he signed a 
confession of being a war criminal. That was a false confession 
on his part, wasn't it?
    Mr. Bradbury. Yes, sir.
    Mr. Davis. It was an inaccurate, untruthful statement, was 
it not?
    Mr. Bradbury. Yes, it was.
    Mr. Davis. And it was in response to the extreme distress 
and anxiety that he was experiencing, was it not?
    Mr. Bradbury. I believe he had bones broken and he----
    Mr. Davis. If you could answer my question.
    Mr. Bradbury. Yes. Yes, it was.
    Mr. Davis. That's the concern, Mr. Bradbury, that I think a 
number of us have.
    I strongly disagree with the Ranking Member, a very able 
Member of this Committee, but I strongly disagree with his 
characterization that those of us who take issue with his 
position and yours are somehow trying to pass laws that favor 
terrorists. Some of us are concerned about the inherent 
unreliability of some of these practices.
    You were absolutely correct when you say that someone who 
is experiencing waterboarding can feel or experience anxiety, 
distress, and you're absolutely correct to say that people in 
those conditions can lie. And if people can lie, they are not 
giving us the inherent information we need. Now let's test that 
for a moment.
    Page 3 of your written statement, you state that these 
alternative interrogation methods have been used with fewer 
than one-third of the terrorists who have been detained in this 
program. Approximately how many people is that, Mr. Bradbury, 
about 30 or so?
    Mr. Bradbury. I don't think the exact number has been 
publicly----
    Mr. Davis. Just give me a ball park, if you would. This was 
your word choice.
    Mr. Bradbury. I actually am not authorized to be more 
precise.
    Mr. Davis. Well, but this is your word choice. They have 
been used with fewer than one-third of the terrorists who have 
been detained. Approximately how many have been detained?
    Mr. Bradbury. Fewer than 100.
    Mr. Davis. All right. Fewer than 100, a third of those. 
Have any of those individuals, to your knowledge, lied in 
response to the interrogation techniques?
    Mr. Bradbury. I don't know.
    Mr. Davis. Is it conceivable that some of them might have 
lied?
    Mr. Bradbury. I don't know.
    Mr. Davis. My point again. Mr. Bradbury, you're right, you 
don't know, you can't know.
    How many prosecutions have been brought based on what those 
30 or so individuals have said?
    Mr. Bradbury. Mr. Davis----
    Mr. Davis. That's a simple question. How many prosecutions 
have been brought? Have there been any?
    Mr. Bradbury. No.
    Mr. Davis. No prosecutions have been brought. You don't 
know if any of them have given untrue or false information. You 
know, I am an SCC guy, so I like football. That sounds to me 
like a completion rate that could be pretty low for all we 
know.
    Mr. Bradbury. May I--may I respond?
    Mr. Davis. Yes.
    Mr. Bradbury. The purpose of this program is not to obtain 
evidence to use in criminal prosecutions. The purpose of the 
program is to obtain intelligence that may be used to----
    Mr. Davis. No, Mr. Bradbury. We have to test whether or not 
you are doing that. We have to test--if I could finish my 
sentence, sir, we have to test whether or not the program is 
reliable. I assume you don't mean to fashion a program that's 
unreliable.
    Mr. Bradbury. I----
    Mr. Davis. I assume you don't mean to fashion a program 
that doesn't yield results.
    Mr. Bradbury. I don't fashion the program. We don't 
fashion----
    Mr. Davis. You don't mean to condone or sanction a program 
that doesn't yield results, do you?
    Mr. Bradbury. I just give my legal opinion----
    Mr. Davis. Let me make my point, Mr. Bradbury, since you're 
not addressing my point. It is a very simple one. We can't 
measure the accuracy of this program by saying we've gone out 
and brought hard-and-fast cases based on it. You cannot tell me 
whether any of these individuals, or all of these individuals, 
have lied. You've conceded to me that someone facing extreme 
anxiety and pressure could yield false information.
    I add all of that up and come to one simple conclusion: We 
can't tell if this program is working. You won't give us the 
information to let us know that. And for some of us, that's not 
enough for this program to pass muster. And we take that 
position--not in the name of protecting terrorists, with all 
due respect to Mr. Franks--we take that position because we 
want to get the real terrorists, and we don't know if you were 
succeeding in doing that or if you were unearthing a bunch of 
lies.
    And I yield back the balance of my time.
    Mr. Bradbury. If I might, I rely--I can only rely on what 
General Hayden has said. General Hayden has said that this 
program has produced thousands and thousands of intelligence 
reports that have been extremely valuable in heading----
    Mr. Davis. That's an inherently subjective conclusion, Mr. 
Bradbury, that cannot be quantified in any way. It in no way 
resolves the concerns.
    Mr. Bradbury. I believe he thinks it can be quantified and 
has been.
    Mr. Davis. Will he share that information with this 
Committee?
    Mr. Bradbury. I know he has shared it with the House 
Intelligence Committee.
    Mr. Davis. Well, Mr. Chairman, I would end by requesting 
that if the individual you mentioned, General Hayden, the 
Intelligence Director, has quantifiable information about the 
accuracy of this program, we would ask that be disclosed and 
shared with this Committee.
    Mr. Nadler. The time of the gentleman is expired but I 
would second that as Chair of this Subcommittee. This is 
squarely within the jurisdiction of the Judiciary Committee as 
well, and we would ask this be shared with us.
    I now recognize the distinguished gentleman from Iowa, Mr. 
King, for 5 minutes.
    Mr. King. Thank you, Mr. Chairman.
    I point out that in the introduction of our witness Mr. 
Bradbury, it was addressed that he is waiting confirmation by 
the United States Senate. I believe there are dozens, in fact 
perhaps hundreds, of the President's appointees awaiting 
confirmation, and yet the unconfirmed representative of our 
Federal Government is being pushed to divulge what we know are 
State secrets here in a public meeting. And I don't take issue 
with the security clearance.
    Mr. Nadler. We have asked that he provide this stuff that's 
confidential, in confidentiality to this Committee, all of 
whose Members are cleared to Top Secret information we have not 
asked.
    Mr. King. Reclaiming my time.
    Mr. Nadler. I will give you the time back in a second. And 
we will take that off the time you are here.
    I want to correct the record. Nobody has asked, nobody in 
this Committee has asked that secret information be disclosed 
publicly.
    Mr. King. Our definition--thank you, Mr. Chairman, I 
recognize your point. I think we disagree on what secret 
information is, and some of that--the State secret has been a 
subject of debate before this Committee. That would be one. And 
how many have been interrogated under this fashion? The 
question that was just asked and the answer Mr. Bradbury gave 
reluctantly was less than 100.
    But I think also some statements that have been made here 
need to be clarified. One is the statement that we know what 
waterboarding is. I don't think there is a consensus on this 
Committee as to what waterboarding is. I think we understand 
from the testimony what some of the historical examples of or 
ancient versions of waterboarding are. But I go back to a 
statement made earlier by the Chairman, that as your lungs fill 
with water--and I would ask Mr. Bradbury, are you knowledgeable 
about any activity that would include a modern version of 
waterboarding in which the subject's lungs would fill with 
water, literally?
    Mr. Bradbury. No I'm not.
    Mr. King. And I am not either. So I just point that out to 
illustrate that we don't have a consensus on what we see as 
waterboarding. You did illustrate how it was used by the 
Japanese in World War II.
    I want to go back to--I want to stress--I want to make 
another point, is that while we are here having this hearing, 
talking about State secrets and the risk of divulging 
information to the terrorists who are pledged to kill us, we 
have a debate going on on the floor of the House of 
Representatives right now; at least it is a tactical 
negotiation going on right now on the eve of the expiration of 
our FISA law.
    And I want to point out to this Committee that the national 
security secrets that are subject here and the national 
security secrets that are the subject of the FISA debate put 
Americans at risk. And the sunset of the FISA law is an 
important piece of this that ties this all together, and 
politics are getting in the way of the policy.
    But I'm interested in one piece of the subject, and you 
went into the details of it to some degree. If your lungs don't 
fill with water and the fear definition that you gave, how does 
one define how this is torture under that definition if there 
isn't a physical pain that's involved and if the lungs aren't 
filling with water?
    Could you go back to that fear factor, the mental pain 
factor, and the fear definition that you gave Mr. Bradbury?
    Mr. Bradbury. Yes, Mr. King, briefly. There is a specific 
definition in the anti-torture statute of severe mental pain or 
suffering, and it requires certain conditions, certain 
prerequisites or factors be present, and that those factors 
cause prolonged mental harm.
    And one of the factors, the one that raises most questions 
with respect to this particular procedure, is the question of 
whether it involves a threat of imminent death. And what's 
pointed to there is the physiological sensation that's created, 
physiological or mental sensation, almost like a gag urge of 
drowning.
    The question is whether that's a threat of imminent death. 
And as I would understand it, as I think the Chairman may have 
suggested, it's a reaction that even if you're involved in 
training, as I understand it, the subject would have. So 
whether or not you know that it's not really involving 
drowning, you have this physiological reaction, and that's the 
acute nature of it.
    And if that is a threat of imminent death, then you need to 
ask: Is it the kind that would be expected to cause prolonged 
mental harm; that is an ongoing, persistent mental disorder as 
a result of that? That's what the cases have focused on with 
respect to the Torture Victims Protection Act and that would 
be--the analysis would turn on that.
    Mr. King. Thank you, just a short----
    Mr. Bradbury. I'm sorry, may I point out, though, I don't 
want the Committee to lose sight. There are new statutes on the 
books, and one of them is a new statute, the cruel and inhuman 
treatment war crime, added by the Military Commissions Act in 
fall 2006. That's a crime that took this definition from the 
torture statute and changed it.
    Mr. Nadler. It----
    Mr. Bradbury. And it eliminated the prolonged mental harm 
requirement and made it serious, but nontransitory, mental harm 
which need not be prolonged. That's a new statute. It became 
effective in the fall of 2006. The Department has not analyzed 
this procedure under that statute. And as I think you can tell 
from the change in the language, that statute would present a 
more difficult question, significantly more difficult question 
with respect to this.
    Mr. King. That language sounds vague.
    Are you aware of any version of waterboarding that's 
currently practiced where there has been a result of death?
    Mr. Bradbury. I am not.
    Mr. King. That's my point. Thank you, Mr. Chairman. I yield 
back.
    Mr. Nadler. I thank the gentleman. The gentleman's time has 
expired. I now recognize for 5 minutes the gentleman from 
Minnesota.
    Mr. Ellison. General Mukasey testified in a Senate 
Judiciary Committee that he would not order an investigation of 
waterboarding depicted on the destroyed tapes, because the OLC 
had issued opinions regarding torture that were presumably 
relied upon by those administering the technique.
    He gave two reasons. It would not be appropriate for the 
Justice Department to be investigating itself was one reason. 
The other reason is it would not be fair to prosecute persons 
who relied on OLC opinions.
    As to the first reason, this is precisely the conflict 
situation for which the special counsel regulations of the 
Department call for pointing to someone outside of the 
Department to conduct important investigations.
    But I want to focus on the second reason, which has certain 
implications I would like you to focus on. At a minimum, we 
need to investigate whether their actions exceeded the legal 
advice that OLC gave them, or whether they would have known on 
their own that waterboarding could not be legal.
    But there is much more basic concern. If an OLC opinion, 
once written, had relied upon and relied upon, will prevent an 
investigation of executive branch felony or constitutional 
violations, we face a very dangerous situation. The President 
or other officials can violate the rights of millions of 
Americans and simply show that they ``relied on an OLC 
opinion,'' no matter how far out and baseless the opinion is. 
And if the victims try to bring a lawsuit, you will use the 
State secrets option to have the case thrown out of court 
before it even starts, so perpetuators will not even be 
investigated.
    Isn't that a recipe for unchecked executive power?
    Mr. Bradbury. Well, Congressman, no. I don't--I don't 
believe it is. And it may not be accepted at this point by this 
Committee, but I believe that the opinions we are talking about 
are reasonable and were appropriately relied on by the agency.
    I understand this Committee is not in a position now----
    Mr. Ellison. Excuse me. Mr. Bradbury, excuse me, I have got 
to reclaim my time. How do you know that they were relied upon 
as you set forth those opinions?
    Mr. Bradbury. That's my understanding.
    Mr. Ellison. What is your understanding based on?
    Mr. Bradbury. Based on my interactions.
    Mr. Ellison. Is it based on you attending the application 
of these techniques of these enhanced interrogation techniques?
    Mr. Bradbury. No, sir.
    Mr. Ellison. Were you ever present for an incident of 
waterboarding?
    Mr. Bradbury. No.
    Mr. Ellison. Now, you said earlier that----
    Mr. Bradbury. I'm sorry, may I respond?
    Mr. Ellison. No, I reclaim my time, sir. I'm sorry.
    Now, you indicated earlier that the waterboarding that 
we've been talking about, applied by people who you give legal 
advice to, is nothing like what happened to American soldiers 
at the hands of the Japanese or in the Spanish Inquisition. 
You've made that point clear.
    Can you tell us exactly what it is like? Can you describe 
exactly what--how this technique is applied, based upon the 
advice that you have given?
    Mr. Bradbury. No, Mr. Ellison, I'm really not----
    Mr. Ellison. Have you seen video tape?
    Mr. Bradbury. That--no, I've not.
    Mr. Ellison. And so you haven't been there and you haven't 
seen videotape. So how in the world do you know that the advice 
you've been giving has been properly relied on? Somebody told 
you?
    Mr. Bradbury. I have reason to believe.
    Mr. Ellison. Which is what?
    Mr. Bradbury. In my interactions with the people that we 
work with.
    Mr. Ellison. Okay, your interactions. Are you talking about 
statements that were made to you, and that's what you're 
relying on?
    Mr. Bradbury. Talking about statements between clients and 
lawyers.
    Mr. Ellison. I know. I'm not asking you about what your 
client said or what you said back. I'm saying how do you know 
that the advice that you were given was properly relied on, how 
do you know that? How do you know that the limits were not 
exceeded?
    Mr. Bradbury. I believe that----
    Mr. Ellison. Because somebody told you, right?
    Mr. Bradbury. I believe that that's----
    Mr. Ellison. Because somebody said so, right?
    Mr. Bradbury. I don't have--I believe that that is the 
case.
    Mr. Ellison. Okay, so----
    Mr. Bradbury. May I make----
    Mr. Ellison. No, no, you can't, because I only have 5 
minutes. If I had more time you could talk all you want.
    Mr. Bradbury. I would like to respond to----
    Mr. Ellison. No, I am going to ask you to answer my 
questions. That's the way this hearing goes.
    So let me ask you this. I think the point was made before 
that it's somehow torture for the American military to use 
waterboarding as a training exercise, you agreed that it would 
in fact be torture if it were done and a violation of law. 
That's what you said, right?
    Mr. Bradbury. If something is torture for one purpose but 
it's done by the Government for another purpose, the same 
procedure would be torture in the other context.
    Mr. Ellison. Sure. So when a police officer goes and sells 
drugs as an undercover agent, do you think they should be 
prosecuted for controlled substance violations? I would guess 
you would say no to that, right?
    Mr. Bradbury. May I?
    Mr. Ellison. No. I mean, sting operations, if somebody--if 
a police officer is told there's a child pornographer----
    Mr. Bradbury. Mr. Chairman, may I respond?
    Mr. Ellison. Respond to the question. You have to be 
responsive.
    Mr. Bradbury. May I? May I respond?
    Mr. Ellison. If you're responsive.
    Mr. Bradbury. There are lines of cases addressing exactly 
that circumstance that say generally worded statutes that 
simply say any person are not reasonably read to cover the 
police officer in circumstances that you've suggested, because 
it would be an absurd result and it would not allow the 
Government to undertake an essential function. In this case 
we're dealing with a statute that says under Color of Law it is 
specifically addressed to Government activity. So that line of 
cases would not apply to this statute.
    Mr. Ellison. Right. And I'm sure you'll provide the 
citations for the cases.
    Mr. Bradbury. If you would like.
    Mr. Ellison. I would like.
    Mr. Bradbury. I'm happy to.
    Mr. Ellison. You mean at some later point?
    Mr. Bradbury. Well, I don't have the names of the cases on 
me.
    Mr. Ellison. So for example, you're saying there's a case, 
so trust me?
    Mr. Bradbury. Sure, there are Third Circuit cases and 
Second Circuit cases.
    Mr. Ellison. But you don't know the cases and so you can 
get them to me later.
    Mr. Bradbury. I'm happy to do that.
    [The information referred to is available on page 46.]
    Mr. Ellison. As a person who has practiced law for 16 
years, if I told a judge, hey, there's a case, Judge, it 
wouldn't pass muster. Not that I'm a judge here, but you're 
citing caselaw, so I expect you to at least know the name of 
the case.
    Mr. Bradbury. I'm not making a legal argument.
    Mr. Ellison. All right. Now, let me just ask you this 
question. Are we done? Okay, I'm done.
    Mr. Nadler. The time of the gentleman has expired. The 
gentleman from Virginia is recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Bradbury, in your 
statement you said that the CIA program is very narrow in scope 
and is reserved for a small number of most hardened terrorists 
believed to possess uniquely valuable intelligence, 
intelligence that could directly save lives. Later on you say 
fewer than 100 terrorists have been detained by the CIA as part 
of this program. It's been one of the most valuable sources of 
intelligence.
    If you're using what everybody else in the world would 
consider torture, is it okay if you're not doing it to too many 
people and you're getting good information?
    Mr. Bradbury. No. If it's torture it's not okay. We 
recognize, and this is what we said in our December 2004 
opinion, torture is abhorrent. And I think the President has 
made it clear that it's not condoned or tolerated.
    Mr. Scott. That's 2004. What about 2005?
    Mr. Bradbury. I'm sorry, in 2005?
    Mr. Scott. The 2005 memo.
    Mr. Bradbury. Our memos have consistently applied the 
principles from the December 2004 opinion.
    Mr. Scott. And so if it's--is there any international 
precedence outside of this Administration that suggests that 
waterboarding is not torture? Anybody else in the world ever 
consider waterboarding not torture except this Administration?
    Mr. Bradbury. I am not aware of precedents that address the 
precise procedures used by the CIA. I'm simply not aware of 
precedents on point. And that's often what makes, frankly what 
makes our job difficult. And I recognize that----
    Mr. Scott. Well, you had the stuff on tape. You've heard 
the, I'm sure you've heard the joke about the guy who was 
testifying in his murder trial and the prosecutor asking him to 
tell the truth and the guy said yes and the prosecutor said, do 
you know the penalty for perjury, and the defendant said yes, 
it's a whole lot less than the penalty for murder.
    Now, my question is, is the penalty for destroying the CIA 
tapes less or more than the penalty that could have been 
imposed had the contents of the tape been seen?
    Mr. Bradbury. I don't know the answer. I'm not in a 
position to answer that. Of course that matter is being handled 
by John Durham, the acting U.S. attorney in the Eastern 
District of Virginia.
    Mr. Scott. Was your office involved in the discussion as to 
whether or not the CIA tapes should have been destroyed?
    Mr. Bradbury. I was not, and to my knowledge I don't know 
of anybody who was.
    Mr. Scott. You do not know----
    Mr. Bradbury. I don't know of anybody in our office who 
was.
    Mr. Scott. Well, who was involved in the discussion?
    Mr. Bradbury. I don't know. I don't have personal knowledge 
of that.
    Mr. Scott. Well, give us some leads. Who do you think was 
involved?
    Mr. Bradbury. I'm not in a position, Mr. Scott, to do that. 
I only know what I've read in the paper about the----
    Mr. Scott. And so if we're trying to find out who was 
involved in the discussion of the destruction of the CIA tapes, 
who should we look to?
    Mr. Bradbury. I would look to the outcome of Mr. Durham's 
investigation.
    Mr. Scott. Well, I mean, help us out a little bit. You're 
right here. Who would be involved in that discussion, in your 
opinion?
    Mr. Bradbury. Well, I believe communications between the 
Department and--I know Chairman Reyes on the Intel Committee 
had been handled by the deputy, the acting deputy attorney 
general, and so I would refer you to his office.
    Mr. Scott. Okay. You've indicated that you want to be 
clear. Let me be clear, though. There has been no determination 
by the Justice Department. The use of waterboarding under any 
circumstances would be lawful under current law.
    Mr. Bradbury. That's correct.
    Mr. Scott. Has there been any determination that it is 
unlawful under current law?
    Mr. Bradbury. No, sir, because the Department, as I've 
tried to indicate, has not had occasion to address the question 
since the enactment of these new laws.
    Mr. Scott. And we don't have the CIA tapes to know what 
we're talking about, so everything is kind of vague. In the 
2007 Executive order in your statement says, the Executive 
order makes clear to the world that the CIA program must and 
will be operated in complete conformity with all applicable 
statutory standards, including Federal prohibition against 
torture, the prohibition on cruel inhumane or degrading 
treatment contained in the Detainee Treatment Act and the 
prohibitions on grave breaches of Common Article 3 in the 
Geneva Conventions as defined in the amended War Crimes Act. 
Did that part of the Executive order change anything?
    Mr. Bradbury. Yes, in the sense that that Executive order--
that part of the Executive order simply affirms that those 
statutes must be complied with.
    Mr. Scott. Did that part of the----
    Mr. Bradbury. That doesn't--I'm sorry?
    Mr. Scott. Did that part of the Executive order change 
anything?
    Mr. Bradbury. No, not in the sense that those statutes on 
their own terms do apply. In other words, recognize that those 
statutes must be satisfied. But I think the one thing the 
Executive order does do is----
    Mr. Scott. I'm just talking about that part of the 
Executive order that says you're going to comply with the law.
    Mr. Bradbury. We have to comply with the law. The program 
has to comply with the law.
    Mr. Scott. So those words didn't add anything. Could we be 
concerned about the word ``grave,'' prohibitions on grave 
breaches of Common Article 3?
    Mr. Bradbury. That's the term, Congressman, that's used in 
the Military Commissions Act, which define those new War Crimes 
Act offenses. That's the term that is used in the statute. 
That's all that is referring to. Those are those serious 
violations of Common Article 3 that merit criminal penalties.
    Mr. Scott. So breaches of Common Article 3 that are not 
grave are not illegal under the War Crimes Act; they're 
improper apparently, but not illegal under the War Crimes Act?
    Mr. Bradbury. That's correct. They would be a violation of 
our treaty obligations. And other aspects of the President's 
Executive order address those other aspects of Common Article 
3. The purpose of the Executive order is to define requirements 
to ensure compliance with our treaty obligations under Common 
Article 3.
    Mr. Scott. My time has just about expired, Mr. Chairman. I 
yield back.
    Mr. Nadler. I thank the gentleman. I now recognize the 
gentleman from North Carolina for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman. Mr. Bradbury, on page 2 
of your written testimony you say that fewer than 100 
terrorists have been detained by the CIA as part of the program 
since its inception in 2002. Those are the people who were at 
Guantanamo?
    Mr. Bradbury. I believe the 14, maybe 15 high value 
detainees at Guantanamo who were transferred there from CIA 
custody are among those who have ever been detained by the CIA. 
But the CIA has held others. So that's not the sum total of the 
terrorists who have ever been detained in this program by the 
CIA. Those were the ones who were--I believe, as the President 
said in September of 2006, when the 14 HVDs were moved to Gitmo 
at that time, that that emptied the overseas facilities of the 
CIA. At that time there were no----
    Mr. Watt. What's the totality of the number of people that 
was held at Guantanamo?
    Mr. Bradbury. Over time or today?
    Mr. Watt. Over time and today.
    Mr. Bradbury. I believe over time it may have--I may not 
have the accurate number. It may be somewhere around 700, 750. 
And today I believe it's about 350.
    Mr. Watt. And if I were trying to determine the disposition 
of one or more of those 350 people who are still there--well, 
first of all, what is the maximum duration that they have been 
held there?
    Mr. Bradbury. I believe the first detainees came into Gitmo 
around January or February of 2002, I believe.
    Mr. Watt. So we've got some people there who have been 
there since 2002?
    Mr. Bradbury. I believe so.
    Mr. Watt. And they're still there. And have they been 
formally charged with anything?
    Mr. Bradbury. Some of them have been. A small number have 
been formally charged. That number is growing as we move 
forward with military commission procedures. All of them have 
had the combatant status review tribunal determinations that 
they are enemy combatants. They go through that process, which 
is then subject to appeal to the D.C. Circuit under the 
Detainee Treatment Act.
    Mr. Watt. And if I were trying to find out the status of 
one or more of those 350 people, who would I be contacting?
    Mr. Bradbury. I would suggest that you contact Gordon 
England, the Deputy Secretary of Defense, directly.
    Mr. Watt. And would he be in a position to determine who's 
there and what their disposition is; is that the information 
that would be made available to a Member of Congress?
    Mr. Bradbury. I don't know for sure, but I believe yes, 
sir. I believe he'll be able to provide that information.
    Mr. Watt. Okay. And he's at the Department of Defense?
    Mr. Bradbury. He's the Deputy Secretary of Defense, Mr. 
England.
    Mr. Watt. Okay. The whole legal regimen you say has changed 
now; new statutes. I'm wondering whether the President still 
has, in your opinion, the authority to under Article 2 to 
disregard the new legal framework, regardless of what--let's 
suppose you all issued an opinion that said under the new 
framework waterboarding was illegal.
    Mr. Bradbury. Correct.
    Mr. Watt. Could the President disregard that under Article 
2?
    Mr. Bradbury. I don't believe the President would ever----
    Mr. Watt. I didn't ask you whether he would do it. I said 
could he do it?
    Mr. Bradbury. May I make a couple of points?
    Mr. Watt. If you will answer my question first, you could 
make as many points as you would like. I would like to know 
first whether in your legal opinion the President has the 
authority under Article 2 to disregard an opinion that your 
office has issued?
    Mr. Bradbury. I don't believe he would disregard----
    Mr. Watt. I didn't ask you that, Mr. Bradbury. I asked you 
whether he would have the authority to do it. I didn't ask you 
whether he would do it or not.
    Mr. Bradbury. Well, he----
    Mr. Watt. I give my President the same presumptions that 
you do, that he would not.
    Mr. Bradbury. He would not.
    Mr. Watt. But would he have the authority to do it under 
Article 2? That's the question I'm trying to----
    Mr. Bradbury. Could I get to that in a second?
    Mr. Watt. What about answering that first and then getting 
to the explanation?
    Mr. Bradbury. This Congress has constitutional authority to 
enact these provisions, these War Crimes Act offenses. And so I 
believe they're constitutional. The Congress has authority to 
define offenses against the law of nations. It's constitutional 
authority that Congress has. There's no question about the 
constitutionality of the statutes. Moreover, traditionally and 
by statute the Attorney General is the chief law enforcement 
officer for the United States who gives opinions for the 
executive branch on what the law requires. And in all cases the 
President will look to those opinions; will not disregard them.
    Now, in theory, Congressman, the President stands at the 
top of the executive branch. So in theory all of the authority 
of executive branch officers, including the Attorney General, 
is subject to the ultimate authority of the President. That 
said, it's not--it is quite hypothetical, and I believe 
unsustainable, for the President to disregard an opinion of the 
Attorney General, particularly a considered formal opinion of 
the Attorney General.
    Mr. Watt. My question you still haven't answered even after 
all of that. Does the President have the authority to disregard 
the opinion under Article 2?
    Mr. Bradbury. Well, the President is sworn to----
    Mr. Watt. I understand----
    Mr. Nadler. The time of the gentleman has expired. I 
believe, Mr. Bradbury, your answer is yes, he has that 
authority?
    Mr. Bradbury. Well, Mr. Chairman, you are putting words in 
my mouth.
    Mr. Nadler. Yes, I am. I think you've said he has that 
authority, but it would be very rare for him to exercise it.
    Mr. Watt. Well, the question is does he have the authority, 
and if he does--I mean, I would love to have gotten, if you 
hadn't ropey doped my whole 5 minutes here, to the next 
question, which is are there any limits to that authority?
    Mr. Bradbury. Yes, there are.
    Mr. Nadler. Answer that question briefly.
    Mr. Bradbury. General Hayden has very clearly said, and 
this is a practical limit that matters under our system of 
Government, he will not order his people and his people will 
not do anything that the Attorney General has determined is 
inconsistent with a statute that applies.
    Mr. Watt. So if the President of the United States issues 
the order to General Hayden, he's not going to--he's going to 
listen to the Attorney General rather than to the President of 
the United States, that's what you're saying?
    Mr. Bradbury. That's what General Hayden has said.
    Mr. Nadler. The time of the gentleman has expired. All time 
has expired.
    Mr. Bradbury, our Members may have additional questions 
after this hearing. We've had some difficulty getting responses 
to our questions from the Justice Department and timely 
responses when we get them at all. Will you commit to providing 
a written response to our written questions within 30 days of 
receipt of the questions?
    Mr. Bradbury. Yes. I will do it as soon as possible and I 
will make every effort to do it within 30 days.
    Mr. Nadler. Thank you. Without objection, all Members will 
have 5 legislative days to submit to the Chair additional 
written questions for the witness, which we will forward and 
ask the witness to respond as promptly as you can so that your 
answer may be made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    I will note for the edification of the Members there are 7 
minutes left on the vote on the motion to adjourn on the floor. 
With that, this hearing is adjourned.
    [Whereupon, at 1:25 p.m., the Subcommittee was adjourned.]
















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