[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: ADMINISTRATION LAWYERS AND
ADMINISTRATION INTERROGATION RULES (PART I)
=======================================================================
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
__________
MAY 6, 2008
__________
Serial No. 110-97
__________
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
Sean McLaughlin, Minority Chief of Staff and General 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
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MAY 6, 2008
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 4
WITNESSES
Mr. David B. Rivkin, Jr., Partner, Baker Hostetler, LLP
Oral Testimony................................................. 10
Prepared Statement............................................. 12
Mr. David J. Luban, Professor of Law, Georgetown University Law
Center
Oral Testimony................................................. 15
Prepared Statement............................................. 16
Ms. Marjorie Cohn, Professor of Law, Thomas Jefferson School of
Law, President, National Lawyers Guild
Oral Testimony................................................. 64
Prepared Statement............................................. 66
Mr. Philippe Sands, Professor of Law, University College London,
Barrister, Matrix Chambers
Oral Testimony................................................. 83
Prepared Statement............................................. 85
APPENDIX
Material Submitted for the Hearing Record........................ 131
DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: ADMINISTRATION LAWYERS AND
ADMINISTRATION INTERROGATION RULES (PART I)
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TUESDAY, MAY 6, 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 9:56 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Conyers, Nadler, Davis, Wasserman
Schultz, Ellison, Scott, Watt, Cohen, Franks, Pence, Issa, and
King.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order. Without objection, the Chair is authorized to declare a
recess of the hearing.
Today's hearing will begin the Subcommittee's investigation
of the role of Administration lawyers in formulating the rules
for conducting interrogations. The Subcommittee has been
investigating this Administration's interrogation policies and
will continue to do so.
The Chair now recognizes himself for 5 minutes for an
opening statement. Today's hearing begins our inquiry into the
role of Administration in the formulation of our interrogation
policies.
We have a distinguished panel of witnesses. Although
shrouded in secret, even from Members of Congress who have the
requisite security clearances to review it, and who have the
constitutional responsibility to legislate and oversee it, the
legal opinions issued by Administration lawyers have brought
our Nation into international disrepute.
How we got this point, what is the legal basis for these
actions, and what are the asserted parameters of these
policies, these are the subjects of this first in a series of
hearings.
The more information that becomes public, often in the
press through leaks rather than through the congressional
Committees with the constitutional duty to oversee it, the more
disturbing it becomes.
Yet at a recent hearing and in subsequent meetings, we have
been told that we may not be privy even on a classified, non-
public basis, to those legal opinions. What possible
constitutional excuse there can be for saying that the non-
secrecy of legal opinions could jeopardize the national
security of the United States is beyond me.
This is totally unacceptable. So today we hear from experts
in the field who will discuss what is known, or what the
private investigations have been able to discern, and what the
law says about that information.
I do not believe that this Administration or any
Administration has some independent authority to craft secret
law and apply it. I do not believe that this Administration or
any Administration is free of the checks and balances in the
Constitution.
I believe that we must and will get to the bottom of what
has been done in our name, and what is being done. Torture is
abhorrent. Whether done by the Taliban or by the Bush
Administration, it is alien to our Nation's values, our history
and our laws.
Secrecy and stonewalling will not change that. I hope a
little sunlight will. I welcome our witnesses. I look forward
to their testimony.
I want to reiterate that this is the first in a series of
hearings and that we will in subsequent hearings receive
testimony from those individuals who played a central role in
the formulation and the implementation of these policies.
I yield back the balance of my time. I would now recognize
for an opening statement our distinguished Ranking minority
Member, the gentleman from Arizona.
Mr. Franks. Well, thank you, Mr. Chairman. Mr. Chairman,
the subject of detainee treatment was the subject of over 60
hearings, markups and briefings during the last Congress in the
House Armed Services Committee alone, of which I am a Member.
The subject of this hearing is a memorandum that has long
since been withdrawn. That memorandum regarded an interrogation
program on which Speaker Pelosi was fully briefed in 2002. And
at that briefing, no objections were made by Speaker Pelosi or
anyone else.
According to the Washington Post, in September 2002, four
Members of the Congress met for a first look at a unique CIA
program designed to wring 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
the CIA's overseas detention sites and the harsh techniques
interrogators had devised to try to make their prisoners talk.
Among the techniques described, said two officials present,
was waterboarding. On that day, no objections were raised.
Mr. Chairman, let me be clear as I have done so in the past
by saying that torture is already, and should be, illegal. I am
against torture.
Torture is banned by various provisions of the law,
including the 2005 Senate Amendment prohibiting the cruel,
inhuman or degrading treatment of anyone in U.S. custody.
But what of severe interrogations? Mr. Chairman, were we
not to engage in severe interrogations which could save
thousands or even millions of lives, we would have to ask
ourselves if we were facilitating the maiming and torture of
innocent Americans by letting terrorist suspects conceal their
evil plans.
Severe interrogations are rarely used. CIA Director Michael
Hayden has confirmed that despite the incessant hysteria by a
few, the waterboarding technique, for example, 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, he confirmed that
his agency waterboarded 9/11 mastermind Khalid Shiekh Mohammed,
Abu Zabeda and Abd al-Rahim al-Nashiri, and each for
approximately 1 minute.
But who are these people, Mr. Chairman? When the terrorist
Zabeda, a logistics chief of al-Qaida, was captured, he and two
other men were caught building a bomb. A soldering gun was used
to make the bomb was still hot on the table, along with the
building plans for a school.
John Kiriaku, a former CIA official involved Zabeda's
interrogation, said during a recent interview, ``These guys
hate us more than they love life. And so you are not going to
convince them that because you are a nice guy and they can
trust you, and that they have rapport with you that they are
going to confess and give you their operations.''
The interrogation of Zabeda was a great success, and it led
to the discovery of information that led to the capture of
terrorists, thwarted terrorist plans and saved innocent
American lives.
When a former colleague of Mr. Kiriaku asked Zabeda what he
would do if he was released, he responded, ``I would kill every
American and Jew I could get my hands on.''
The results of a total of 3 minutes of severe
interrogations of three of the worst of the worst terrorists
were of immeasurable benefit to the American people. CIA
Director Hayden said that Mohammed and Zabeda provided roughly
25 percent of the information that the CIA had on al-Qaida from
all human sources.
Now we just need to kind of back up and thought about that.
A full 25 percent of the human intelligence we have received on
al-Qaida from just 3 minutes worth of a rarely used
interrogation tactic.
Mr. Chairman, I just want to repeat again, as I previously
said, torture is banned under Federal law that prohibits the
cruel, inhuman or degrading treatment of anyone in U.S.
custody. The non-partisan Congressional Research Service has
concluded that ``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 School Professor Alan
Dershowitz agrees, as he wrote recently in the Wall Street
Journal, ``Attorney General Mukasey is absolutely correct that
the issue of waterboarding cannot be decided in the abstract. A
court must examine the nature of the governmental interest at
stake and then decide on a case by case basis. In several cases
involving actions at least as severe as waterboarding, the
courts have found no violations of due process.''
Much will be made today of a memorandum regarding severe
interrogations authored by John Yoo, a former lawyer at the
Office of Legal Counsel. But as Mr. Yoo himself said during a
recent interview, ``I didn't want the opinion to be vague so
that the people who actually have to carry out these things
don't have a clear line, because I think that that would be
very damaging and unfair to the people who are actually asked
to do these things.''
These things, Mr. Chairman, are efforts to save thousands
of innocent American lives. Now I expect Mr. Yoo's name will be
mentioned many times today, but the name of Senator Charles
Schumer probably not so many times.
But let us remind ourselves what Senator Schumer of New
York said at an extended Judiciary Committee hearing on terror
policy on June 8, 2004. And I wonder if they have the--can we
start again?
[Recording follows:]
Mr. Schumer. We ought to be reasonable about this. I think
there are probably very few people in this room or in America
who would say that torture should never, ever be used,
particularly if thousands of lives are at stake.
Take the hypothetical, if we knew that there was a nuclear
bomb hidden in an American city, and we believed that some kind
of torture, fairly severe, maybe, would give us a chance of
finding that bomb before it went off, my guess is most
Americans and most senators, maybe all, would say do what you
have to do.
So it is easy to sit back in the armchair and say that
torture can never be used. But when you are in the foxhole, it
is a very different deal. And I respect, I think we all respect
the fact that the President's in the foxhole every day.
[Recording ends.]
Mr. Franks. Mr. Chairman, I wish so much that this was all
just an academic discussion. But unfortunately, we now live in
a post-9/11 world with an enemy whose leader, Osama bin-Laden,
has said, ``It is our duty to gain nuclear weapons.''
Mr. Chairman, I am afraid that one such tragedy will
transform this debate in the worst kind of way. Two airplanes
hitting two buildings took 3,000 lives and cost this Nation $2
trillion.
If an atomic blast or some other weapon of mass destruction
should ever be unleashed on this Nation, it would change our
concept of freedom forever. And I just hope that we can
transcend the partisanship and maintain our focus on that
because there are still hours on the table left when we can
prevent such a tragedy, I believe, if we realize that there are
ways that we can combine human decency and a vigilant foreign
policy an interrogation technique process to protect this
country and the concept of freedom for future generations.
And I yield back.
Mr. Nadler. I thank the gentleman. I now yield for an
opening statement to the distinguished Chairman of the full
Committee, the gentleman from Michigan.
Mr. Conyers. Thank you, Mr. Chairman and Members of the
Committee. This is an important investigation and hearing, and
these are areas that, to my knowledge, we have not gone into
before.
And while I appreciate Trent Franks' statements, I will
note for the record that I have never heard anyone on the other
side quote Alan Dershowitz and Senator Schumer in the same
breath. And maybe that is a great sign that we are beginning to
work across the aisle.
I am going to be looking for somebody on your side to
quote, too. And this is a great way to start us off.
But what brings us hear today are a couple of
considerations. There are some memos--oh, and by the way, I am
glad that Speaker Nancy Pelosi was cited also, but I didn't see
what she saw, and that is why we are here, to try to make sure
that this Committee, the only Committee in the Congress that
has oversight over the Constitution and the Department of
Justice, presents a true and accurate picture of what has
happened. And that is what we are looking for today is the
truth.
There are three memos. One, August 1, 2002, John Yoo and
Jay Bybee at the Office of Legal Counsel to White House Counsel
Alberto Gonzales, where we examine what is considered by many
to be an extremely narrow definition of torture and an
assertion that during the war, the President can take any act
that he thinks necessary, reminding me of former President
Nixon's admonition that if the President does it, it must be
legal. And third, this memo was withdrawn by the Department of
Justice in 2004.
The second document that I hope will be discussed is dated
December 2, 2002, in which Secretary Rumsfeld approved
interrogation methods for Guantanamo Bay. Department of Defense
Counsel Jim Haynes recommended that he approve it. It included
a legal memo or contribution from Diane Beaver, a lawyer at
Guantanamo, but was something based perhaps as much on the
August 1, 2002 memo that I mentioned as well.
The third memo is dated March 14, 2003, again from John Yoo
at the Office of Legal Counsel to Jim Haynes at the Department
of Defense, and was very similar--well, it was similar, but
maybe even more extreme than the original August 2002 document.
It was withdrawn by Jack Goldsmith in December.
Now the questions that I hope will be discussed, what was
the role of senior government lawyers such as David Addington
and John Yoo in the creation and approval of these
interrogation practices? Second, what do the witnesses think
about the legal memos on interrogation that the department has
released? These memos have been widely criticized.
And by the way, did the lawyers who wrote them violate any
of their legal obligations or ethical obligations? And this is
quite a bit about lawyers.
I was reading this morning from Jack Goldsmith, himself a
former head of the Office of Legal Counsel. And he refers
constantly to the many lawyers that were involved in developing
the laws that we use to regulate ourselves against torture and
terrorism.
And I want people not to mistake the fact that I still
recommend to many of the brightest young people that I meet
that if they haven't chosen a course of professional activity,
become a lawyer. I don't want them to be dismayed by anything
that goes on this morning because I still feel that this is a
very noble profession, noting that all of the witnesses are
themselves members of various bars, as is almost everybody up
here with the Committee.
And so I too join warmly in welcoming our witnesses and
look forward to an interesting discussion.
That you, Chairman Nadler.
Mr. Nadler. Thank you. In the interest of proceeding to our
witnesses 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.
Mr. Issa. Mr. Chairman----
Mr. Nadler. [continuing]. 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 had the opportunity to
ask their questions. The Chair reserves the right to
accommodate a Member who is unavoidably late or only able to be
with us for a short time. Did someone----
Mr. Issa. Mr. Chairman, we would ask that regular order be
followed, although I think both of us are willing to abbreviate
our opening statements.
Mr. Nadler. [OFF MIKE]
Mr. Issa. We would ask for regular order of alternation, as
you have begun, but would agree to abbreviate in order to get
onto the witnesses. In other words, we are disagreeing with the
unanimous consent, Mr. Chairman.
Mr. Nadler. Well, the objection, first of all, is not
timely, since unanimous consent was already approved----
Mr. Issa. No, it was not approved. Mr. Chairman, it was not
approved. We sought recognition.
Mr. Nadler. [continuing]. Let me just say the following.
Oh, is that a vote? No, it can't be. Let me just say the
following. We have a panel of witnesses, we have a busy morning
before us, and the policy that I follow, or try to follow, is
to give the opening statement for the Chairman and the Ranking
Member, and if the Chairman and Ranking Members of the full
Committee are here, to give them that courtesy and to ask all
other Members to submit their statements for the record.
If Mr. Smith were here, I would call upon him for an
opening statement if he wanted to. But I don't want to start
getting into everybody giving opening statements because we
will never get to the----
Mr. Issa. I appreciate that, Mr. Chairman. But the rules of
the House, once you go beyond your opening statement, provide
for alternating to each Member there. And we did object to the
unanimous consent I think for good and reasonable cause. I
don't think anyone is planning on making this long----
Mr. Nadler. I am not aware of that. I will move that
opening statements be dispensed with at this point and that all
Members be permitted to insert opening statements into the----
Mr. Issa. Mr. Chairman, I object to that. It is not a
parliamentary allowed movement in that you have begun regular
order, you have alternated.
Mr. Nadler. [continuing]. I over----
Mr. Issa. I am asking for a recorded vote.
Mr. Nadler. A recorded vote. Let's think about what we are
having a vote on.
Mr. Issa. Perhaps you should check with the parliamentarian
for the rules of the House.
Mr. Nadler. We are getting them.
Mr. Issa. There are people in the audience who demand, Mr.
Chairman, there are people in the audience that demand the
right of the first amendment, free speech. We ask no less than
the rights within the House, consistent with the right of free
speech and equal access to the opinion that will be from the
day, in addition to those that will be from the witnesses.
Mr. Nadler. Parliamentarian informs us that it is subject
to a motion. So the motion is that further opening statements
be dispensed with, that Members have the opportunity to submit
it for the record. All in favor, say ``aye.''
[A chorus of ayes.]
Mr. Nadler. Opposed?
Mr. Issa. Hell no!
Mr. Nadler. The motion is carried.
Mr. Issa. On that I asked for a recorded vote.
Mr. Nadler. Recorded vote has been requested, the clerk
will call the roll. Do we have a clerk? We will have a clerk
call the roll in a moment.
The Clerk. Mr. Chairman,
Mr. Nadler. Aye.
The Clerk. Mr. Chairman votes aye.
Mr. Davis.
[No response.]
The Clerk. Ms. Wasserman Schultz.
[No response.]
The Clerk. Ms. Ellison
Mr. Ellison. Aye.
The Clerk. Mr. Ellison votes aye.
Mr. Conyers.
Mr. Conyers. Aye.
The Clerk. Mr. Conyers votes aye.
Mr. Scott.
Mr. Scott. Aye.
The Clerk. Mr. Scott votes aye.
Mr. Watt.
[No response.]
The Clerk. Mr. Cohen.
[No response.]
The Clerk. Mr. Franks. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks votes no.
Mr. Pence.
[No response.]
The Clerk. Mr. Issa.
Mr. Issa. No.
The Clerk. Mr. Issa votes no.
Mr. King.
Mr. King. No.
The Clerk. Mr. King votes no.
Mr. Jordan.
[No response.]
Okay, Mr. Chairman, I have four voting in the affirmative
and three in the negative.
Mr. Nadler. The motion is carried.
Mr. Issa. Mr. Chairman, a parliamentary inquiry. Is the
Chairman of the full Committee a seated Member of this
Committee or an ex-officio?
Mr. Nadler. He is a voting Member. And the Ranking Member
would have been a voting Member had he been here.
Mr. Issa. Okay. Mr. Chairman, I would ask only that staff
provide us with both of those parliamentary decisions, one that
the full Committee Chairman is in fact a voting, seated Member
of the Committee----
Mr. Nadler. That is not a parliamentary decision. That is
simply the Rules of the Committee, which you have. We will give
you a copy if you want.
Mr. Issa. I don't interpret them that way. But we will
check and get back at a later day, and I am reserving a point
of order as to the outcome of the vote relative to I do not
believe that the----
Mr. Nadler. The gentleman's reservation is noted. How we
will get to our witnesses. I want to welcome our distinguished
panel of witnesses today.
The first witness is David Rivkin, Jr., who is a partner
with the firm Baker Hostetler, where he is a member of the
firm's litigation, international and environmental groups. Mr.
Rivkin, from 1993 to December 1999 was a member of Hunton &
Williams law firm.
Prior to returning to private practice in 1993, Mr. Rivkin
was associate executive director and counsel of the President's
Council on Competitiveness at the White House. While there, he
was responsible for the review and analysis of legal issues
related to the regulatory review conducted by the council and
the development and implementation of the first President
Bush's deregulatory initiatives carried out during 1991-1992.
He simultaneously served as a special assistant for
domestic policy to then Vice President Dan Quayle. Mr. Rivkin
was associate general counsel to the U.S. Department of Energy
1990 to 1991. Mr. Rivkin served in the office of then Vice
President George Bush as legal advisor to the counsel to the
President and as deputy director of the Office of Policy
Development, U.S. Department of Justice.
Prior to embarking on a legal career, Mr. Rivkin served as
a defense and foreign policy analyst, focusing on Soviet
affairs, arms control, naval strategy and NATO related issues,
and worked as a defense consultant to numerous government
agencies and Washington think tanks.
He received his J.D. from Columbia University School of Law
in 1985, a BSFS from Georgetown University in 1980, and a M.A.
in Soviet affairs from Georgetown University in 1984.
David Luban joined the faculty of Georgetown University Law
Center in 1997, coming from the University of Maryland's
Institute for Philosophy and Public Policy and its school of
law. He received his B.A. from the University of Chicago and
Ph.D. in philosophy from Yale University, and taught philosophy
at Yale and Kent State University before moving to Maryland.
He has held visiting appointments in law at Harvard,
Stanford and Yale law schools and visiting appointments in
philosophy at Dartmouth College in the University of Melbourne.
In 1982, he was a visiting scholar at the Max Plank Institute
in Frankfurt and Hamburg.
In addition, Luban has been a fellow of the Woodrow Wilson
International Center for Scholars and held a Guggenheim
fellowship. He recently published ``Legal Ethics and Human
Dignity.'' He writes on legal ethics, legal theory,
international criminal law, just war theory and most recently,
U.S. torture policy.
Marjorie Cohn is a professor of law at Thomas Jefferson
School of Law, where she has taught since 1991. She currently
serves as the President of the National Lawyers Guild and is
the author of the recently published ``Cowboy Republic: Six
Ways the Bush Gang Has Defied the Law.''
She has been a criminal defense attorney at the trial and
appellate levels for many years and was staff counsel to the
California Agricultural Labor Relations Board. Professor Cohn
is the U.S. representative to the executive committee of the
Association of American Jurists. Professor Cohn received a B.A.
from Stanford University and her J.D. from Santa Clara
University School of Law.
Philippe Sands is a British lawyer. Since January 2001, he
has been professor of law at University College London, where
he also directs the Center for International Courts and
Tribunals. He has also taught in the United States as a
visiting professor of law, first at Boston College Law School
1987 to 1991, and then at New York University Law School in
1992 to 1993.
He has been a practicing member of the English bar and in
2003 was appointed by the Lord Chancellor as the Queen's
Counsel. He regularly appears as counsel before the highest
British courts, including the Court of Appeal and the House of
Lords.
Last month, Vanity Fair magazine published his article
``The Green Light'' on the role of the Administration's most
senior lawyers in developing new interrogation techniques for
Guantanamo. The article drew on more detailed material from his
book ``Torture Team,'' which has just been released this week.
Before we begin, it is customary for the Committee to swear
in its witnesses. If you would please stand and raise your
right hands to take the oath.
Do you swear or affirm, under penalty of perjury, that the
testimony you are about to give is true and correct to the best
of your knowledge, information and belief?
Let the record reflect that the witnesses answered in the
affirmative. Thank you, and you may be seated.
We will now hear from our--and now I will recognize the
first witness, Mr. Rivkin, for 5 minutes.
TESTIMONY OF DAVID B. RIVKIN, JR., PARTNER,
BAKER HOSTETLER, LLP
Mr. Rivkin. Thank you very much, Chairman Nadler, Chairman
Conyers, Ranking Member Franks, Members of the Committee. It is
a pleasure to appear before you and to make some brief remarks.
Lynching lawyers or punishing lawyers, while popular in
other spheres, including Shakespeare, has never appealed much
to the legal profession. But it appears that there are a lot of
folks willing to make an exception in this area with regard to
the lawyers who advise President Bush and his national security
team in the aftermath of 9/11.
They have been subject to criticism that, in my view,
borders on vilification by a lot of academics, lawyers and
pundits. Their legal competence and ethics have been questioned
and we even heard some suggestions that they should prosecuted
for war crimes.
Now I would submit to you, there is no doubt that many
legal positions taken by Administration attorneys laying our
fundamental legal architecture in this war that the
Administration has adopted outrage activists and legal
specialists.
It should be pointed out briefly that in a series of cases
beginning with Hamdi v. Rumsfeld, which is a 2004 Supreme Court
case, the Supreme Court has upheld most of the key tenets of
this legal architecture, namely that the United States is
engaged in a legally recognized armed conflict, that captured
enemy combatants are not ordinary criminal suspects. They can
be detained without criminal trial during hostilities and if
the time comes, they may be punished with a military rather
than a civilian justice system.
The court has, of course, also required that detainees be
given access to an administrative hearing to challenge their
classification as enemy combatants and reserve some rights for
themselves to be involved in this process, although the precise
parameters of that role are still being litigated.
Most controversial, of course, have been the Bush
Administration's insistence that the Geneva Convention has
limited, if any, application to al-Qaida and to--and the
Administration's authorization of aggressive interrogation
methods, including at least three cases of waterboarding, or
simulated drowning.
And in several legal memoranda that Chairman Conyers,
particularly the 2002 and 2003 opinions mentioned earlier
today, written by Mr. Yoo as deputy assistant attorney general
for the Office of Legal Counsel, considered whether such
methods can lawfully be used.
These memoranda, some of which remain classified, probably
not for long, explore the outer limits that are imposed on the
United States by statute, treaties and customary international
law.
The goal, clearly, was to find legal means to give United
States interrogators the maximum flexibility in interrogations
while defining the point at which lawful interrogations ended
and lawful torture begins.
Now I realize that a number of the Administration's
positions have attracted--I am repeating myself--considerable
criticisms. The questions that--and this is not surprising--the
questions that the Administration's lawyers sought to address,
particularly dealing with interrogation, uncomfortable ones
that did not sit well by 21st century sensibilities.
Many of the legal conclusions reached have struck people as
being excessively harsh. Some of those conclusions have been
watered down and retracted as a result of internal debate.
While I would not defend each and every aspect of the
Administration's post September 11 legal policies, I would
vigorously defend the merits of the whole exercise of asking
difficult legal questions and trying to work through them
without frankly not worrying about their reputations or
subsequent career.
To me, the fact that this exercise was undertaken attests
to the vigor and strength of our democracy, of the
Administration's commitment to the rule of law in the most
difficult circumstances.
In this regard, I would point out the--by democratic allies
have ever engaged in similar circumstances and that is probing
and searching legal exegeses.
So I would strongly defend the overarching legal framework
chosen by the Administration. I certainly disagree with the
proposition that the lawyers can be held accountable, even if
they were wrong, with regard to their decisions. I think they
acted in good faith. I think the overall legal analysis, while
people can disagree with it, does have merits.
To me, the effort to go after the lawyers borders, to put
it mildly, on madness. These lawyers were not in any chain of
command. They had no theoretical or practical ability to direct
actions of anyone who engaged in abusive conduct.
Moreover, if we go too far down this path, what we are
doing, with all due respect, is chilling the ability of any
future President to obtain candidly legal advice, which
unfortunately is in the post-September 11 environment, is
essential.
And let's be candid about it. A lot of people claim that
the lawyers involved just gleefully and improperly spoke truth
to power. I would close by telling you it is a lot safer in a
kind political environment and projected political environment
to say no to power, to say no to everything because the people
who said yes to power have been substantially penalized.
A lot of them have not been confirmed. A lot of them are
being threatened with prosecutions. Bar associations are
investigating. This is not a comfortable position to be in, and
that is not what we want to do as far as inculcating the
ability, again, on future Presidents and Administrations to get
candid legal advice.
Thank you.
[The prepared statement of Mr. Rivkin follows:]
Prepared Statement of David B. Rivkin, Jr.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. And thank you. I now recognize Mr. Luban for 5
minutes.
TESTIMONY OF DAVID J. LUBAN, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER
Mr. Luban. Mr. Chairman, honorable Committee Members, I
would like to thank you for inviting me to testimony here
today. I am a law professor who specializes in legal ethics,
and I expect that that is the reason that I was asked to come
and testify.
I want to start by recalling for you an episode from Jack
Goldsmith's memoirs. Mr. Goldsmith, as you know, headed Justice
Department's Office of Legal Counsel in 2003 and 2004. When he
joined the office, he reviewed the well-known memos written by
Mr. Yoo that Chairman Conyers referred to earlier.
In the memoirs, he described the August 1, 2002 memo, which
was written for civilian interrogators, in a very striking way.
He calls it a ``golden shield.'' And what he meant by ``golden
shield'' was that it reassured interrogators that the tactics
they were using were legal.
And Mr. Goldsmith found himself in the tough position of
withdrawing that golden shield memo and the other for military
interrogators, the other golden shield memo. He did not
withdraw them because he was politically at odds with Mr. Yoo.
He was on the same side as Mr. Yoo. He withdrew them because in
his words, they had, ``no foundation in prior OLC opinions or
in judicial decisions or in any--law.''
The golden shield turned out to be made of thin air.
Interrogators were mislead and detainees may have suffered
cruel and illegal treatment because of these memos. Now
specifically, what was it that was wrong with the golden
shield?
Well, first, it claimed that inflicting pain isn't illegal
unless the pain reaches the level or organ failure or death. It
claimed that enforcing laws against authorized interrogators is
unconstitutional, and it claimed that you can justify torture
as a form of self-defense.
It is easy to see that under these standards, practically
anything goes. The trouble was that none of this was actually
the law. The golden shield ignored Supreme Court precedents, it
misrepresented sources, and it pulled the organ failure
definition out of a Medicare statute.
Mr. Chairman and honorable committee Members, when a
government lawyer writes a golden shield, it has to meet the
gold standard. We should be confident that the lawyer is
describing the law as it really is, not the law according to
the lawyer's own pet theories, and not the law as the client
would like to be, no matter who the client is. Playing the law
straight is the lawyer's basic ethical obligation.
I propose two principles for a government lawyer who is
writing a legal opinion. First, the opinion should say the same
thing that it would even if the lawyer thought that the client
wanted just the opposite of what he knows that the client
actually wants. That guarantees that you aren't tailoring the
opinion to reach some predetermined result.
And second, the opinion should be able to stand the light
of day. Now obviously, before opinions are publicized, some
will have to have sensitive intelligence information about
sources or whatever redacted out. But there is absolutely no
reason for an opinion interpreting the Constitution or a
statute to be a state secret.
Now what I am proposing here is nothing novel. Playing the
law straight is traditional legal ethics. There is a common
misperception that lawyers are always supposed to spin the law
in their client's direction. That is simply untrue.
It is true that in a courtroom, lawyers are supposed to
argue the interpretation of the law that most favors their
client. The lawyer on the other side argues the opposite and
the judge who hears that strong case put strongly by both sides
can reach a better informed decision.
But matters are completely different when the lawyer is
giving a client advice about what the law means. Now there is
nobody arguing the other side and there is no judge to sort it
out.
That is why legal ethics rules require that a lawyer advise
or give an independent and candid opinion of what the law
really requires, even if it is not what the client wants to
hear. Lawyers sometimes have to say no to clients, and in its
prouder days, OLC lawyers have said no to Presidents of the
United States.
Government lawyers have an awesome responsibility. OLC
opinions bind the entire executive branch. No one elected its
lawyers to do secret re-writes of the law, and that is the
reason why those lawyers, more than others, have to be faithful
to the law. Otherwise, the executive branch is governed by
secret law written by activist lawyers instead of by Congress,
and its governed by a secret constitution, not the Constitution
that was written by the Framers.
Now I don't want to single out only Mr. Yoo's opinions. In
my written testimony, I explained that other government lawyers
have written opinions on detainee treatment that also fall far
short of the gold standard.
I believe this Committee can do a great service by hearing
testimony from the lawyers who wrote them and the military and
CIA officers who relied on them to sort out the damage that
these memos have done.
I thank you.
[The prepared statement of Mr. Luban follows:]
Prepared Statement of David Luban
Mr. Chairman and Honorable Committee members,
I'd like to thank you for inviting me to testify today. I am not
here as an insider with new information to give you. I am a law
professor who specializes in legal ethics. I've written textbooks and
other books on the subject. As a scholar of legal ethics, I have
closely studied the role that government lawyers played in approving
harsh interrogations. That is what I am here to testify about.
I want to start with a story. Jack Goldsmith headed the Justice
Department's Office of Legal Counsel in 2003 and 2004. Last year, he
published his memoirs of that period. At one point, he describes an OLC
memo on interrogation written before he joined the Office. He calls it
a ``golden shield'' for interrogators. What he meant by ``golden
shield'' was that interrogators relied on its assurance that the harsh
tactics they were using were legal. And Goldsmith found himself in the
tough position of withdrawing that Golden Shield as well as a second
OLC memo on interrogation.
Goldsmith did not withdraw them because he was a political opponent
of John Yoo, the lawyer who wrote them. He was on the same side. He
withdrew them because, in his words, they had ``no foundation in prior
OLC opinions, or in judicial decisions, or in any other source of
law.'' \1\ The ``golden shield'' turned out to be made of hot air.
Interrogators were misled, and detainees may have suffered cruel and
illegal treatment because of these memos.
---------------------------------------------------------------------------
\1\ Jack Goldsmith, The Terror Presidency: Law and Judgment Inside
the Bush Administration 149 (2007); the reference to the ``golden
shield'' is at page 162.
---------------------------------------------------------------------------
The Golden Shield found that inflicting physical pain isn't illegal
unless the pain reaches the level of organ failure or death; that
enforcing laws against authorized interrogators is unconstitutional;
and that self-defense can include cruelty to helpless detainees. It's
easy to see that under these standards, practically anything goes. The
trouble was that none of this is really the law. The memo ignored
inconvenient Supreme Court precedents, misrepresented sources, and
pulled the ``organ failure or death'' standard out of a Medicare
statute on emergency medical conditions.
Mr. Chairman and committee members, when a trusted government
lawyer writes a ``golden shield,'' it should meet the gold standard. We
should be confident that the lawyer has described the law as it really
is. Not the law according to the lawyer's pet theories, and not the law
as the client would like it to be, no matter who the client is. Lawyers
sometimes have to say ``no'' to clients, and in its prouder days OLC
lawyers have said no to presidents of the United States. Playing it
straight is the lawyer's most basic obligation.
I would propose two rules of thumb for a government lawyer writing
an opinion on what the law means. First, the opinion should say the
same thing it would even if you imagine your client wants the opposite
from what you know he wants. That guarantees that you are not tailoring
the opinion to reach some predetermined result. Second, the opinion
should be able to stand the light of day; otherwise, it's probably
wrong. Obviously, before being published, some opinions will have to
have sensitive intelligence information redacted out. But there is no
reason that an opinion about the meaning of the Constitution or the
interpretation of law should be a state secret.
There is a common misperception that lawyers are always supposed to
spin the law in favor of their clients. That's simply not true. It is
true that in a courtroom, lawyers are supposed to argue for the
interpretation of law that most favors their client. The lawyer on the
other side argues the opposite, and the judge who hears the strongest
case from both sides can reach a better decision.
But matters are completely different when a lawyer is giving a
client advice about what the law means. Now there is nobody arguing the
other side, and no judge to sort it out. For that reason, legal ethics
rules require the lawyer-advisor to give an independent and candid
opinion of what the law really requires.\2\ The ABA emphasizes that ``a
lawyer should not be deterred from giving candid advice by the prospect
that the advice will be unpalatable to the client.'' \3\
---------------------------------------------------------------------------
\2\ ABA Model Rules of Professional Conduct, Rule 2.1 (Advisor):
``In representing a client, a lawyer shall exercise independent
professional judgment and render candid advice.''
\3\ ABA Model Rules of Professional Conduct, Rule 2.1, cmt. [1].
---------------------------------------------------------------------------
This is common sense. Otherwise, clients might go to their lawyers
to say, ``Give me an opinion that says I can do what I want''--and then
duck responsibility by saying, ``My lawyer told me it was legal.'' Then
we would have a perfect Teflon circle: the lawyer says ``I was just
doing what my client instructed'' and the client says ``I was just
doing what my lawyer approved.''
Government lawyers have an awesome responsibility. OLC opinions
bind the entire executive branch. They have the force of law inside
that branch. The idea that unelected lawyers are writing secret legal
opinions that spin the law makes a mockery of democratic government. It
means the executive branch is governed by a secret constitution--a
constitution written by activist lawyers instead of the constitution
written by the Framers.
Without getting too deeply into technicalities which, quite
frankly, only a lawyer could love, let me summarize in a bit more
detail just how spun the torture memos were.\4\ First of all, they
argue for a near-absolute version of executive power--a version that
says the Commander in Chief can override any law in the statute
book.\5\ The effect of this argument is that a crime is not a crime if
the Commander in Chief orders it. Mr. Yoo paints a picture of an
imperial commander in chief beyond the law that would have made the
Founding Fathers' jaws drop in astonishment.\6\ In making this
argument, Mr. Yoo simply ignored Supreme Court precedents reining in
the commander in chief.\7\ In the same way, arguing for a necessity
defense to the crime of torture, he ignored an inconvenient Supreme
Court case decided just fifteen months earlier--an opinion that cast
doubt on whether necessity defenses actually exist in federal law.\8\
And he ignored the Constitution itself: far from granting a
``commander-in-chief override'' of the laws, the Constitution requires
the President to ``take care that the laws are faithfully executed.''
---------------------------------------------------------------------------
\4\ Here I am referring to Mr. Yoo's August 1, 2002 memorandum,
which went out over Judge Bybee's name, as well as the March 14, 2003
memorandum to Mr. Haynes, which went out over Mr. Yoo's name. The
arguments I discuss appear in both memoranda.
\5\ The Levin Memorandum did not include this argument, but it also
did not withdraw it. And an earlier, published, OLC opinion--presumably
still in force--also makes the commander-in-chief override argument.
\6\ My own review of the founding era debates reveals deep concern
about possible presidential abuse of the standing army. David Luban, On
the Commander-in-Chief Power, 60 S. Cal. L. Rev. (forthcoming).
Recently, David J. Barron and Martin S. Lederman have exhaustively
surveyed historical evidence from the founding of the republic to the
present and found no trace of the commander-in-chief override idea
until after the Civil War, and very little political or legal precedent
for it since then (although the idea won some support within the
academy). David J. Barron & Martin S. Lederman, The Commander in Chief
at the Lowest Ebb--Framing the Problem, Doctrine, and Original
Understanding, 121 Harv. L. Rev. 689 (2008); Barron & Lederman, The
Commander in Chief at the Lowest Ebb--A Constitutional History, 121
Harv. L. Rev. 941 (2008). Their review of the original understanding
appears in the first of these article at pages 772-800.
\7\ Thus, his opinions do not mention the leading case Youngstown
Sheet & Tube v. Sawyer, 343 U.S. 579 (1952)(holding that the
President's commander-in-chief power did not permit him to seize steel
mills during the Korean War); nor do they mention one of the earliest
and clearest cases in which Congress constrained the president's
commander-in-chief power and the Supreme Court upheld it: Little v.
Barreme, 6 U.S. 170 (1804)(upholding damages against a naval officer
who, who during the undeclared ``quasi-war'' against France, had
followed President Adams's orders to seize ships sailing from French
ports, contrary to Congressional restrictions).
\8\ United States v. Oakland Cannabis Buyers' Coop, 532 U.S. 483,
490 (2001)(expressing doubt that a necessity defense exists in federal
criminal law absent a statute providing it).
---------------------------------------------------------------------------
Second, as I mentioned earlier, he wrenches language from a
Medicare statute to explain the legal definition of torture. The
Medicare statute lists severe pain as a possible symptom of a medical
emergency, and Mr. Yoo flips the statute and uses the language of
medical emergency to define severe pain. This was so bizarre that the
OLC itself disowned his definition a few months after it became public.
It is highly unusual for one OLC opinion to disown an earlier one, and
it shows just how far out of the mainstream Mr. Yoo had wandered. This
goes beyond the ethical limits for a legal advisor. In fact, even in
the courtroom there are limits to spinning the law: ethics rules forbid
advocates from making frivolous legal arguments, or failing to disclose
adverse legal authority.\9\
---------------------------------------------------------------------------
\9\ See ABA Model Rules of Professional Conduct, Rule 3.1 (``A
lawyer shall not bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis in law and fact for doing so
that is not frivolous, which includes a good faith argument for an
extension, modification or reversal of existing law.''); Rule 3.3(a)(2)
(``A lawyer shall not knowingly fail to disclose to the tribunal legal
authority in the controlling jurisdiction known to the lawyer to be
directly adverse to the position of the client and not disclosed by
opposing counsel.'')
---------------------------------------------------------------------------
But it would be a mistake to focus only on Mr. Yoo. Mr. Levin's
replacement memo also takes liberties with the law. In particular, when
the Levin Memo discusses the term ``severe physical suffering'' (which
is part of the statutory definition of torture), it states that the
suffering must be ``prolonged'' to be severe--and that requirement
simply isn't in the statute at all.\10\ Under that definition, of
course, waterboarding would not be torture because people break within
seconds or minutes. This is a perfect example of a legalistic
definition that looks inconspicuous but in reality narrows the
definition of torture dramatically. Notice that the quicker a technique
breaks the interrogation subject, the less prolonged his suffering will
be--so the harsher the tactic, the less likely it is to qualify as
``torture.'' It goes without saying that if Congress had written the
statute that way, OLC lawyers would be bound to respect it in their
opinion. But it should also go without saying that lawyers ought not to
rewrite a statute to include language that is not there.
---------------------------------------------------------------------------
\10\ The torture statute does require that severe mental suffering
must be prolonged. 18 U.S.C. Sec. 2340(2). But the very fact that
Congress included no parallel requirement in the same statute's
treatment of physical suffering shows, under ordinary interpretive
methods, that it should not be read in.
---------------------------------------------------------------------------
Rather than continuing to dissect the arguments of these memos and
others, I am attaching one of my publications that does so to this
written testimony. It is titled ``The Torture Lawyers of Washington,''
and it is a chapter in my book Legal Ethics and Human Dignity. My main
point is that the torture memos take enormous liberties with the law
and reach eccentric conclusions.
The authors may believe their conclusions represent the law as it
should be. But the job of a legal opinion is to advise the client on
the law as it is. If that dissuades the client from doing something the
client wants to do, so be it. In the words of the ABA, ``Almost without
exception, clients come to lawyers in order to determine their rights
and what is, in the complex of laws and regulations, deemed to be legal
and correct. Based upon experience, lawyers know that almost all
clients follow the advice given, and the law is upheld.'' \11\ The
lawyer's job is emphatically not to enable clients to defy law by
interpreting it oddly.
---------------------------------------------------------------------------
\11\ ABA Model Rules of Professional Conduct, Rule 1.6, cmt. [2].
---------------------------------------------------------------------------
ATTACHMENT
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. I thank you, and now I recognize Ms. Cohn for 5
minutes.
TESTIMONY OF MARJORIE COHN, PROFESSOR OF LAW,
THOMAS JEFFERSON SCHOOL OF LAW, PRESIDENT, NATIONAL LAWYERS
GUILD
Ms. Cohn. Thank you, Mr. Chairman. It is an honor and a
privilege to testify on this critical issue. What does torture
have in common with genocide, slavery, and wars of aggression?
They are all ``jus cogens''; that is Latin for ``higher law,''
or compelling law.
This means that no country can ever pass a law that allows
torture. There can be no immunity from criminal liability for
violation of a jus cogens prohibition.
The United States has always prohibited torture in our
Constitution, laws, executive statements, judicial decisions
and treaties. When the U.S. ratifies a treaty, it becomes part
of American law under the Supremacy Clause of the Constitution.
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment says, ``No exceptional
circumstances whatsoever, whether a state of war or a threat of
war, internal political instability or any other public
emergency may be invoked as a justification for torture.''
Whether someone is a POW or not, he must always be treated
humanely. There are no gaps in the Geneva Convention.
The U.S. War Crimes Act and 18 USC Sections 818 and 3231
punish torture, willfully causing great suffering or serious
injury to body and health, and inhuman, humiliating or
degrading treatment. The torture statute criminalizes the
commission, attempt or conspiracy to commit torture outside the
United States.
The Constitution gives Congress the power to make laws, and
the President the duty to enforce them. Yet President Bush,
relying on memos by lawyers, including John Yoo, announced the
Geneva Conventions did not apply to alleged Taliban and al-
Qaida members, but torture and inhumane treatment are never
allowed under our laws.
Justice Department lawyers wrote memos at the request of
Bush officials to insulate them from prosecution for torture.
In memos dated August 1, 2002 and March 14, 2003, John Yoo
wrote the DOJ would not enforce U.S. laws against torture,
assault, maiming and stalking in the detention and
interrogation of enemy combatants.
What does the maiming statute prohibit? It prohibits
someone with the intent to torture, maim or disfigure, to cut,
bite or slit the nose, ear or lip, or cut out or disable the
tongue or put out or destroy an eye, or cut off or disable a
limb, or any member of another person, or throw or pour upon
another person any scalding water, corrosive acid, or caustic
substance.
John Yoo said, ``Just because the statute says, that
doesn't mean you have to do it.'' That is a quote.
In a debate with Notre Dame Professor Doug Cassel, You said
there is no treaty that prohibits the President from torturing
someone by crushing the testicles of the person's child. It
depends on the President's motive, Yoo said, not withstanding
the absolutely prohibition on torture.
John Yoo twisted the law and redefined torture much more
narrowly than both the torture convention and the U.S. torture
statute. Under Yoo's definition, you have to nearly kill the
person to constitute torture.
Yoo wrote that self-defense or necessity could be defenses
to war crimes prosecutions, notwithstanding the torture
convention's absolute prohibition on torture in all
circumstances.
After the August 1, 2002 memo was made public, the DOJ knew
it was indefensible. It was withdrawn as of June 1, 2004, and a
new opinion, dated December 30, 2004, specifically rejected
Yoo's definition of torture and admitted that a defendant's
motives to protect national security won't shield him from
prosecution.
The rescission of the prior memo is an admission by the DOJ
that the legal reasoning in it was wrong. But for the 22 months
it was in effect, it sanctioned and caused the torture of
myriad prisoners. Moreover, as has been stated, the March 14,
2003 memo was later withdrawn by Jack Goldsmith.
Yoo and other DOJ lawyers were part of a common plan to
violate U.S. and international laws outlawing torture. It was
reasonably foreseeable their advice would result in great
physical or mental harm or death to many detainees. Indeed,
more than 100 have died, many from torture.
Yoo admitted recently that he knew interrogators would take
action based on what he advised. Dick Cheney, Condolezza Rice,
Donald Rumsfeld, Colin Powell, George Tenet and John Ashcroft
met in the White House and micromanaged the torture by
approving specific torture techniques such as waterboarding,
which, contrary to what the Republican Congressman said, I
believe it was Mr. Franks, constitutes torture. And that is
widely known. It has been a standard torture technique. It has
been considered torture since the Spanish Inquisition.
Bush admitted he knew and approved of the actions of this
Committee, this National Security Council principals committee.
They are all liable under the War Crimes Act and the torture
statute. Under the doctrine of command responsibility enshrined
in our law, commanders all the way up the chain of command to
the commander-in-chief are liable for war crimes if they knew
or should have known they would be committed by their
subordinates and they did nothing to stop or prevent it.
The Bush officials ordered the torture after seeking legal
cover from their lawyers. The President can no more order the
commission of torture than he can order the commission of
genocide, or establish a system of slavery, or wage a war of
aggression.
A select Committee of Congress should launch an immediate
and thorough investigation of the circumstances under which
torture was authorized and rationalized. The high officials of
our government and the lawyers who advise them should be
investigated and prosecuted by a special prosecutor independent
of the Justice Department for their role in misusing the rule
of law and legal analysis to justify torture and other crimes
in flagrant violation of our laws.
Thank you very much.
[The prepared statement of Ms. Cohn follows:]
Prepared Statement of Marjorie Cohn
What does torture have in common with genocide, slavery, and wars
of aggression? They are all jus cogens. Jus cogens is Latin for
``higher law'' or ``compelling law.'' This means that no country can
ever pass a law that allows torture. There can be no immunity from
criminal liability for violation of a jus cogens prohibition.
The United States has always prohibited the use of torture in our
Constitution, laws executive statements and judicial decisions. We have
ratified three treaties that all outlaw torture and cruel, inhuman or
degrading treatment or punishment. When the United States ratifies a
treaty, it becomes part of the Supreme Law of the Land under the
Supremacy Clause of the Constitution.
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, says, ``No exceptional circumstances
whatsoever, whether a state of war or a threat of war, internal
political instability or any other public emergency, may be invoked as
a justification for torture.''
Whether someone is a POW or not, he must always be treated
humanely; there are no gaps in the Geneva Conventions. He must be
protected against torture, mutilation, cruel treatment, and outrages
upon personal dignity, particularly humiliating and degrading treatment
under, Common Article 3. In Hamdan v. Rumsfeld, the Supreme Court
rejected the Bush administration's argument that Common Article 3
doesn't cover the prisoners at Guant namo. Justice Kennedy wrote that
violations of Common Article 3 are war crimes.
We have federal laws that criminalize torture.
The War Crimes Act punishes any grave breach of the Geneva
Conventions, as well as any violation of Common Article 3. That
includes torture, willfully causing great suffering or serious injury
to body or health, and inhuman, humiliating or degrading treatment.
The Torture Statute provides for life in prison, or even the death
penalty if the victim dies, for anyone who commits, attempts, or
conspires to commit torture outside the United States.
The U.S. Army Field Manual's provisions governing intelligence
interrogations prohibit the ``use of force, mental torture, threats,
insults, or exposure to unpleasant and inhumane treatment of any
kind.'' Brainwashing, mental torture, or any other form of mental
coercion, including the use of drugs, are also prohibited.
Military personnel who mistreat prisoners can be prosecuted by
court-martial under provisions of the Uniform Code of Military Justice.
These include conspiracy, cruelty and maltreatment, murder,
manslaughter, maiming, sodomy, and assault.
In Filartiga v. Pena-Irala, the Second Circuit declared the
prohibition against torture is universal, obligatory, specific and
definable. Since then, every U.S. circuit court has reaffirmed that
torture violates universal and customary international law. In the
Paquete Habana, the Supreme Court held that customary international law
is part of U.S. law.
The Constitution gives Congress the power to make the laws and the
President the duty to carry them out. Yet on February 7, 2002,
President Bush, relying on memos by lawyers including John Yoo,
announced that the Geneva Conventions did not apply to alleged Taliban
and Al Qaeda members. Bush said, however, ``As a matter of policy, the
United States Armed Forces shall continue to treat detainees humanely
and, to the extent appropriate and consistent with military necessity,
in a manner consistent with the principles of Geneva.'' But torture is
never allowed under our laws.
Lawyers in the Department of Justice's Office of Legal Counsel
wrote memos at the request of high-ranking government officials in
order to insulate them from future prosecution for subjecting detainees
to torture. In memos dated August 1, 2002 and March 18, 2003, former
Deputy Assistant Attorney General John Yoo (Jay Bybee, now a federal
judge, signed the 2002 memo), advised the Bush administration that the
Department of Justice would not enforce the U.S. criminal laws against
torture, assault, maiming and stalking, in the detention and
interrogation of enemy combatants.
The federal maiming statute makes it a crime for someone ``with the
intent to torture, maim, or disfigure'' to ``cut, bite, or slit the
nose, ear or lip, or cut out or disable the tongue, or put out or
destroy an eye, or cut off or disable a limb or any member of another
person.'' It further prohibits individuals from ``throwing or pouring
upon another person any scalding water, corrosive acid, or caustic
substance'' with like intent.
Yoo said in an interview in Esquire that ``just because the statute
says--that doesn't mean you have to do it.'' In a debate with Notre
Dame Professor Doug Cassell, Yoo said there is no treaty that prohibits
the President from torturing someone by crushing the testicles of the
person's child. In Yoo's view, it depends on the President's motive,
notwithstanding the absolute prohibition against torture in all
circumstances.
The Torture Convention defines torture as the intentional
infliction of severe physical or mental pain or suffering. The U.S.
attached an ``understanding'' to its ratification of the Torture
Convention, which added the requirement that the torturer
``specifically'' intend to inflict the severe physical or mental pain
or suffering. This is a distinction without a difference for three
reasons. First, under well-established principles of criminal law, a
person specifically intends to cause a result when he either
consciously desires that result or when he knows the result is
practically certain to follow. Second, unlike a ``reservation'' to a
treaty provision, an ``understanding'' cannot change an international
legal obligation. Third, under the Vienna Convention on the Law of
Treaties, an ``understanding'' that violates the object and purpose of
a treaty is void. The claim that treatment of prisoners which would
amount to torture under the Torture Convention does not constitute
torture under the U.S. ``understanding'' violates the object and
purpose of the Convention, which is to ensure that ``no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment.'' The U.S. ``understanding'' that adds the specific intent
requirement is embodied in the U.S. Torture Statute.
Nevertheless, Yoo twisted the law and redefined torture much more
narrowly than the definitions in the Convention Against Torture and the
Torture Statute. Under Yoo's definition, the victim must experience
intense pain or suffering equivalent to pain associated with serious
physical injury so severe that death, organ failure or permanent damage
resulting in loss of significant body functions will likely result.
Yoo wrote that self-defense or necessity could be used as a defense
to war crimes prosecutions for torture, notwithstanding the Torture
Convention's absolute prohibition against torture in all circumstances.
There can be no justification for torture.
After the exposure of the atrocities at Abu Ghraib and the
publication of the August 1, 2002 memo, the Department of Justice knew
the memo could not be legally defended. That memo was withdrawn as of
June 1, 2004. A new opinion, authored by Daniel Levin, Acting Assistant
Attorney General Office of Legal Counsel, is dated December 30, 2004.
It specifically rejects Yoo's definition of torture, and admits that a
defendant's motives to protect national security will not shield him
from a torture prosecution. The rescission of the August 2002 memo
constitutes an admission by the Justice Department that the legal
reasoning in that memo was wrong. But for 22 months, the it was in
effect, which sanctioned and led to the torture of prisoners in U.S.
custody.
John Yoo admitted the coercive interrogation ``policies were part
of a common, unifying approach to the war on terrorism.'' Yoo and other
Department of Justice lawyers, including Jay Bybee , David Addington,
William Haynes and Alberto Gonzalez, were part of a common plan to
violate U.S. and international laws outlawing torture. It was
reasonably foreseeable that the advice they gave would result in great
physical or mental harm or death to many detainees. Indeed, more than
100 have died, many from torture.
ABC News reported last month that the National Security Council
Principals Committee consisting of Dick Cheney, Condoleezza Rice,
Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in
the White House and micromanaged the torture of terrorism suspects by
approving specific torture techniques such as waterboarding. Bush
admitted, ``yes, I'm aware our national security team met on this
issue. And I approved.''
These top U.S. officials are liable for war crimes under the U.S.
War Crimes Act and torture under the Torture Statute. They ordered the
torture that was carried out by the interrogators. Under the doctrine
of command responsibility, used at Nuremberg and enshrined in the Army
Field Manual, commanders, all the way up the chain of command to the
commander in chief, can be liable for war crimes if they knew or should
have known their subordinates would commit them, and they did nothing
to stop or prevent it. The Bush officials ordered the torture after
seeking legal cover from their lawyers.
But Yoo and the other Justice Department lawyers who wrote the
enabling memos are also liable for the same offenses. They were an
integral part of a criminal conspiracy to violate our criminal laws.
Yoo admitted in an Esquire interview last month that he knew
interrogators would take action based on what he advised.
The President can no more order the commission of torture than he
can order the commission of genocide, or establish a system of slavery,
or wage a war of aggression.
A Select Committee of Congress should launch an immediate and
thorough investigation of the circumstances under which torture was
authorized and rationalized. The high officials of our government and
their lawyers who advised them should be investigated and prosecuted by
a Special Prosecutor, independent of the Justice Department, for their
crimes. John Yoo, Jay Byee, and David Addington should be subjected to
particular scrutiny because of the seriousness of their roles in
misusing the rule of law and legal analysis to justify torture and
other crimes in flagrant violation of domestic and international law.
ATTACHMENT
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. Thank you, and now the Chair recognizes Mr.
Sands for 5 minutes.
TESTIMONY OF PHILIPPE SANDS, PROFESSOR OF LAW, UNIVERSITY
COLLEGE LONDON, BARRISTER, MATRIX CHAMBERS
Mr. Sands. Mr. Chairman, honorable Members of the
Committee, it is my privilege an honor to appear before this
Committee to address your questions on the subject of
Administration lawyers and interrogation rules.
As professor of law at University College of London and as
a practicing member of the English bar, it may be said that I
appear before you as an outsider. I hope that you will bear in
mind that I am from a country that is both a friend and an ally
of the United States, and one that shares this country's
abiding respect for the rule of law.
I am also from a country which was on the front line of
terror in the 1970's and the 1980's, a period I personally
remember.
I have come to know America very well over more than two
decades since I was first a visiting scholar at Harvard Law
School and then taught over more than 15 years at Boston
College Law School and then New York University Law School. I
am married to an American, I am deeply proud of the fact that
my three children share British and American nationality.
Last month I published an article in Vanity Fair magazine,
``The Green Light,'' a copy of which is attached to my
statement. It contains material drawn from my new book,
``Torture Team,'' that is published this month by Palgrave
Macmillan. The article, and in more detail, the book, tell an
unhappy story--the circumstances in which the United States
military, not the CIA, was allowed by the hand of Secretary of
Defense Donald Rumsfeld to abandon President Lincoln's famous
disposition of 1863 that ``military necessity does not admit of
cruelty.''
On the 2nd of December 2002, Secretary Rumsfeld authorized
the use of new and aggressive techniques of interrogation on
detainee 063. It is by now a famous memorandum, the one in
which he wrote, ``I stand for 8 to 10 hours a day, why is
standing limited for 4 hours?''
Approval was recommended by Mr. Rumsfeld's general counsel,
William J. Haynes, II. The memo became public in June 2004 as
the Administration argued that the appalling pictures of abuse
at Abu Ghraib were unconnected to Administration policy.
My book tells the story of that memo, the circumstances in
which it came to be written, the circumstances in which is came
to be rescinded. To write the book, I journeyed around America.
I met with as many of the people who were directly involved as
I possibly could. And I met with a very great number.
I was treated with respect and with hospitality for which I
remain very grateful. Over hundreds of hours I conversed or
debated with many of those most deeply involved in that memo's
life.
They included, for example, the combatants' commander and
his lawyer at Guantanamo, Major General Dunleavey and
Lieutenant Colonel Beaver; The commander of United States
Southern Command in Miami, General Hill; the Chairman of the
Joint Chiefs of Staff, General Myers; the Undersecretary of
Defense Mr. Feith; the General Counsel of the Navy Mr. Mora;
and the Deputy Assistant Attorney General at DOJ Mr. Yoo.
And I met twice with Mr. Rumfeld's general counsel at the
Department of Defense, Mr. Haynes, who along with Mr.
Addington, took a central role on the key issues.
From these and many other exchanges, I pieced together what
I believe to be a far truer account than which has been
presented by the Administration. I met men and women of
integrity and decency and professionalism, obviously doing the
very best they could in difficult circumstances. Sadly, not
everyone I met fell into that category.
From these conversations, it became clear to me that the
Administration has spun a narrative that is false. It claims
that the impetus for the new interrogation techniques came from
the bottom up. That is not true. The abuse was a result of
pressures and actions driven from the very highest levels of
the Administration.
The Administration claims that it simply followed the law.
My investigation indicated that driven by ideology, the
Administration consciously sought legal advice to set aside
international constraints on detainee interrogations.
The Administration relied on a small number of political
appointees, lawyers with no real background in military law,
with extreme views on executive power and, frankly, with an
abiding contempt for international rules like the Geneva
Convention.
These are rules that the United States has done more than
any country to promote and put in place. As a result of these
actions by the Administration, war crimes were committed. I
have no doubt than Common Article III of the Geneva Conventions
was violated, alongside with various provisions of the 1984
Convention prohibiting torture.
The specter of war crimes was raised by the United States
Supreme Court by Justice Anthony Kennedy in the 2006 judgment
in the case of Hamdan v. Rumsfeld, a case on which I noted Mr.
Rivkin was conspicuously silent. That judgment corrected the
illegality of President Bush's determination that none of the
detainees at Guantanamo had any rights under Geneva.
Mr. Chairman, honorable Members of the Committee, the story
I uncovered is an unhappy one. It points to the early and
direct involvement of those at the highest levels of
government, often through their lawyers, the individual on whom
I largely focused.
In June 2004, after the scandal of Abu Ghraib broke, and
the first of August 2002 Bybee/Yoo torture memo became public,
Mr. Gonzales and Mr. Haynes appeared before the media to claim
that the Bush Administration had not authorized such abuse.
Contrary to the impression given by the Administration,
repeated by Mr. Haynes when he appeared before the Senate
Committee on the Judiciary in July 2006, his involvement and
that of Secretary Rumsfeld began well before that stated in the
official version.
Mr. Haynes had visited Guantanamo together with Mr.
Gonzales and Mr. Addington, discussed interrogations, perhaps
even viewed an interrogation or more, and then recommended that
the U.S. military should abandon its tradition of restraint.
My conclusion on the basis of large numbers of interviews
and documents is that this is not only a story of crime, it is
also a story of cover-up to protect the most senior members of
the Administration from the consequences of the illegality that
has stained this country's reputation.
Mr. Chairman, no country has done more to promote the
international rule of law than the United States. Uncovering
the truth is a first step in restoring this country's necessary
global leadership role, in undoing the damage caused, and in
providing a secure and effective basis for responding to the
very real threat of international terrorism.
I can put it no better, sir, than George Kennan, the great
American diplomat. In 1947, he wrote an anonymous telex that
issued this warning in relation to a perceived Soviet threat.
``We must have courage and self-confidence to cling to our own
methods and conceptions of human society. The greatest danger
that can befall us is that we shall allow ourselves to become
like those with whom we are coping.''
I thank you, sir, Members of the Committee, for allowing me
the opportunity to make this brief introductory statement.
[The prepared statement of Mr. Sands follows:]
Prepared Statement of Philippe Sands
Mr. Chairman, Honourable Members of the Committee, it is my
privilege and honour to appear before this Committee to address your
questions on the subject of Administration Lawyers and Administration
Interrogation Rules. As Professor of Law at the University of London,
and as a practising member of the English Bar, it may be said that I
appear before you as an outsider. I hope you will bear in mind that I
am from a country that is friend and ally, one that shares this
country's abiding respect for the rule of law. I have come to know
America well over more than two decades, since I was a visiting scholar
at Harvard Law School in the early 1980's, and then teaching at Boston
College Law School and New York University Law School. I am married to
an American. I am proud of the fact that my three children share
American and British nationality.
Last month I published an article in Vanity Fair, The Green Light,
a copy of which is attached. It contains material drawn from my new
book--Torture Team--that is published this month by Palgrave Macmillan.
The article and--in more detail--the book tell an unhappy story: the
circumstances in which the United States military was allowed, by the
hand of Secretary of Defense Donald Rumsfeld, to abandon President
Lincoln's famous disposition of 1863, that ``military necessity does
not admit of cruelty''. On December 2nd, 2002, Secretary Rumsfeld
authorised the use of new and aggressive techniques of interrogation on
Detainee 063. It is by now a famous memo, the one in which he wrote:
``I stand for 8-10 hours a day. Why is standing limited to 4 hours?''
Approval was recommended by his General Counsel, William J Haynes II.
The memo became public in June 2004, as the Administration argued that
the horrible pictures of abuse at Abu Ghraib were unconnected to
Administration policy.
My book tells the story of that memo. The circumstances in which it
came to be written, and then rescinded. To write the book I journeyed
around America, meeting with as many of the people who were directly
involved as possible. I met with a great number, and was treated with a
respect and hospitality for which I remain very grateful. Over hundreds
of hours I conversed or debated with many of those most deeply
involved. They included: the combatant commander and his lawyer at
Guantanamo (Major General Dunlavey and Lieutenant Colonel Beaver); the
Commander of US Southern Command (General Hill); the Chairman of the
Joint Chiefs of Staff (General Myers); the Undersecretary of Defense
(Mr Feith); the General Counsel of the Navy (Mr Mora); and the Deputy
Assistant Attorney General at DoJ (Mr Yoo). I met twice with Mr
Rumsfeld's General Counsel at DoD (Mr Haynes), who along with Mr
Addington took a central role on the key decisions. From these and many
other exchanges I pieced together what I believe to be a truer account
than that which has been presented by the Administration. I met men and
women of integrity and decency and professionalism, obviously doing the
best they could in difficult circumstances. Not everyone, however, fell
into that category.
From these conversations it became clear to me that the
Administration has spun a narrative that is false, claiming that the
impetus for the new interrogation techniques came from the bottom-up.
That is not true: the abuse was a result of pressures and actions
driven from the highest levels of government. The Administration claims
that it simply followed the law. My investigation indicated that--
driven by ideology--the Administration consciously sought legal advice
to set aside international constraints on detainee interrogations. The
Administration relied on a small number of political appointees,
lawyers with no real background in military law, with extreme views on
executive power, and with an abiding contempt for international rules
like the Geneva Conventions. These are rules that the United States has
done more to promote and put in place than maybe any other country. As
result, under international law war crimes were committed: I have no
doubt that Common Article 3 of the Geneva Conventions was violated,
alongside provisions of the 1984 Convention prohibiting Torture. The
spectre of war crimes was raised by US Supreme Court Justice Anthony
Kennedy, in the 2006 judgment in Hamdan v Rumsfeld. That judgment
corrected the illegality of President Bush's determination that none of
the detainees at Guantanamo had any rights under Geneva.
Mr Chairman, Honourable Members of the Committee, the story I
uncovered is an unhappy one. It points to the early and direct
involvement of those at the highest levels of government, often through
their lawyers, the individuals on whom I largely focused. In June 2004,
after the scandal of Abu Ghraib broke, and the August 1, 2002 Bybee
Torture Memo became public, Mr Gonzalez and Mr Haynes appeared before
the media to claim that the Bush Administration had not authorized such
abuse. Contrary to the impression given by the Administration, repeated
by Mr Haynes when he appeared before the Senate Judiciary Committee in
July 2006, his involvement (and that of Secretary Rumsfeld) began well
before that stated in the official version. Mr. Haynes had visited
Guantanamo, together with Mr Gonzales and Mr Addington, discussed
interrogations, and then recommended that the U.S. military abandon its
tradition of restraint. My conclusion, on the basis of interviews and
documents, is that this is a story not only of crime but also of cover-
up, to protect the most senior members of the Administration from the
consequences of the illegality that has stained America's reputation.
Mr Chairman, no country has done more to promote the international
rule of law than the United States. Uncovering the truth is a first
step in restoring this country's necessary, leadership role; in undoing
the damage caused; and providing a secure and effective basis for
responding to the very real threat of terrorism. I can put it no better
than George Kennan, the great American diplomat. In 1947 he wrote a
telex that issued this warning in relation to a perceived Soviet
threat: ``[W]e must have courage and self-confidence to cling to our
own methods and conceptions of human society. [T]he greatest danger
that can befall us . . . is that we shall allow ourselves to become
like those with whom we are coping.''
I thank you for allowing me the opportunity to make this brief
introductory statement.
ATTACHMENT
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. I thank you and I thank the other witnesses.
The Chair will now recognize himself for 5 minutes for the
purpose of questioning the witnesses.
Professor Luban, you have written that the lawyers advising
the Bush Administration on the legality of U.S. interrogation
policies, including Alberto Gonzales, David Addington, Jay
Bybee and John Yoo, showed a ``willingness to bend or break the
law to make their client's wishes come true.''
Can you give a couple of concrete examples of ways that the
law was bent or broken by their advice?
Mr. Luban. Yes. A couple of examples would be this: Mr.
Yoo's two memos, the March 14, 2003 and August 1, 2002, both
make an extraordinary claim of executive power, which is that
the President, acting as Commander-in-Chief, can simply
override any statute in the book, including the statute on
torture.
Now a lawyer is supposed to present adverse legal authority
as well as legal authority that supports the view. And here
there are leading Supreme Court precedents that just say the
opposite, the famous Youngstown case.
But there was an 1804 case called Little v. Barreme from
the quasi war with France in which Congress had restricted what
the navy could do. President Adams ordered a captain to violate
that restriction, and the Supreme Court said that the
President's order was not a shield against liability.
Those cases aren't even mentioned. That is the kind of
thing that is a violation of the craft value that lawyers have.
Second would be this drawing of the definition of torture
from a Medicare statute. The Medicare statute says, quite
common sensically, that severe pain can be the symptom of a
medical emergency. Mr. Yoo turns this around and says that
unless the pain is organ failure or death, or a level
associated with organ failure or death, it is not severe.
When Mr. Levin withdrew that opinion and replaced it with
another, he said, quite plausibly, that Medicare statute wasn't
trying to define severe pain. And if you took that literally,
then you would think that, for example, if a dentist's drill
hits a root and you jump out of the chair, well you know that
is not organ failure or death, so that is not severe pain. And
that simply violates common sense.
Mr. Nadler. Thank you. And in your article, ``Liberalism,
Torture and the Ticking Time Bomb,'' you say that it would be a
dramatic mistake to suppose that the Justice Department has
abandoned its views merely because it has disowned the Bybee
memo.
Can you briefly explain what you mean? I mean, why you
think it is clear that the Justice Department has not abandoned
its views?
Mr. Luban. Yes, for a couple of reasons. After the Bybee
memo was withdrawn, then the Levin memo was substituted, the
Levin memo says in a footnote that all of the techniques that
had been approved under the Bybee memo are still approved.
As for the commander-in-chief override argument, the Levin
memo doesn't disown it. It says, well, there is no need for us
to discuss it.
As for the criminal defenses in the Bybee memo, it doesn't
reject those criminal defenses, it just says, well, since we
don't torture, there is no need to discuss those.
And finally, one place that it completely stretches the law
is in its definition of what severe physical suffering is. It
states that severe physical suffering has to be prolonged.
Now if you look at the statute, that isn't in there at all.
It was mentioned by Congressman Franks, I believe, that
everybody who has been waterboarded broke in less than a
minute, and it looks as though that language would say, well,
therefore waterboarding can't be severe physical suffering
because it wasn't prolonged.
Mr. Nadler. Thank you. Mr. Cohn, does the Military
Commissions Act give officials of the Bush Administration
immunity from prosecution under the War Crimes Act?
Ms. Cohn. No. While we would argue that it tends to
immunize those complicit in torture from criminal or civil
liability is not permitted under the doctrine of jus cogens,
the military can be protected----
Mr. Nadler. Under the doctrine of what?
Ms. Cohn. Jus cogens, Latin for ``the highest compelling
law,'' like slavery, genocide and wars of aggression. But no,
the Military Commissions Act does not provide immunity from
prosecution. What the provision does is to provide that good
faith reliance on the advice of counsel would be a defense to
war crimes prosecutions.
But it could be proved that they were not acting in good
faith reliance on the advice of counsel for several reasons.
Number one, the advice was inherently and flagrantly not a good
faith interpretation of the law.
Number two, they all knew that, and that is why they
performed this so-called analysis in secret, avoiding all the
normal processes that they usually use to arrive at these
decisions.
And number three, they lied about the matter, both to the
people within the Administration and the public, making
numerous false exculpatory statements which can be considered
evidence of guilt.
So the Administration's effort to avoid accountability
under the Military Commissions Act is further evidence of their
guilt and can be used as an----
Mr. Nadler. Fine. Now one more question before my time runs
out. In the attachment to your testimony, you outline the case
for criminal prosecution for the lawyers involved in the
formulation of the interrogation policies at issue. From what
U.S. laws and precedent do you draw your conclusions?
In other words, under American law, how could
Administration lawyers face criminal liability for their
counsel?
Ms. Cohn. We have statutes that prohibit conspiracy. For
example, the torture statute, which is a U.S. law, prohibits
the conspiracy to commit torture, and it would be, I think, not
difficult to show that these lawyers were part of a conspiracy,
a common plan.
In fact, John Yoo said, we had a common strategy here. They
got together on it. So I think that it clearly could come under
conspiracy laws that they would be part of a criminal
conspiracy to violate U.S. laws against torture.
Mr. Nadler. Thank you. Just one further question. How long
is the statute of limitations on these crimes?
Ms. Cohn. The statute of limitations under jus cogens
prohibition is never. There is no statute of limitations at all
for violation of a jus cogens norm.
Mr. Nadler. Thank you. My time is expired. I will now
recognize for 5 minutes the distinguished Ranking Member of the
Subcommittee, the gentleman from Arizona.
Mr. Franks. Well, thank you, Mr. Chairman. Professor Cohn--
forgive me, Mr. Luban, I was kind of moved by your comments
relating to activist lawyers, because I happen to agree with
you that lawyers shouldn't spin the law to reach a
predetermined conclusion that their definition of a statute
should be the same whether or not they were giving this to an
opponent or to a client.
And I agree with that. In fact, with all due respect here,
we have been hoping on the Republican side that we could get
our Democrat friends to apply those standards to judges,
because we think that is very, very important that the law
should stand as it is written, not how interpreted in some way
to twist it.
So I thought I would throw that out, and I will ask you
something a little bit more of a contentious nature. You
criticized how the term ``severe pain''----[Laughter.]
Mr. Franks. You know how ``severe pain'' was defined in the
Federal Anti-Torture Statute. Pretend that we are clients here
of yours and that we are asking you for the bottom line here.
How would you define that term, ``severe pain,'' as written in
the Federal Anti-Torture Statute?
Mr. Luban. The main point that I would make is that severe
pain is not a technical legal term of art. It is a common sense
term. As you might well imagine there is not a huge and rich
jurisprudence on the boundaries of torture.
Mr. Franks. But you couldn't give us a definition of your
own in that regard?
Mr. Luban. I think that at least one of the things that I
would say is that it is the kind of pain that all of us would
recognize as severe. For example, the dentist's drill, a broken
bone, pain of that level.
The pain--if we are talking about waterboarding, I think we
are talking not about pain so much as suffering, the feeling of
pint after pint of water pouring down your throat.
You can only define these things by example and by
appealing to subjective experience. And I would like to say
that when Mr. Yoo says I was trying to get specific, I don't
see anything more specific and less vague about saying the pain
associated with organ failure or death.
If you ask me, well, what is that? I would say, well, I
actually don't know. Haven't been there.
Mr. Franks. Well, that is why we were trying to ask you to
define it. Ms. Cohn, just to respond related to waterboarding
being torture, first of all, I want to point out that the
waterboarding that the three terrorists that were in my
testimony was done under very, very controlled circumstances
for a very short period of time.
But as you know, our soldiers are as a matter of a
training, some of our special forces and other soldiers are
waterboarded to train them. Now if indeed that is torture, do
you not think that we shouldn't be doing that? I mean, to
torture our own soldiers. So that is why I make the distinction
between waterboarding and torture.
The question I have for you is, if you were writing a
statute on severe interrogations, or interrogations of any kind
that would involve terrorists who may have information that
would save innocent American lives and refuse to give that
information, what kinds of techniques would you think should
be--what would you recommend to the government to use? What
kind of techniques, if they were unwilling to voluntarily give
information and if the information were critical to saving
American lives, what could we do? What is the severest thing
that we could do to get that information?
Ms. Cohn. Thank you, Mr. Franks, for that question. First
of all, no, I don't think we should be torturing our own
soldiers, or anyone else for that matter. Torture is illegal
when practiced against anyone.
What kind of statute would I write? I would write a statute
that says that when you are interrogating a prisoner and you
want to get information from him, you treat him with kindness,
compassion and empathy. You gain his trust, you get him to like
and trust you and then he will turn over information to you.
Torture does not work. And for example, Khalid Sheikh
Mohammed and Abu Zabeda were tortured so severely that they
confessed to al-Qaida targeting just about every building in
the world.
Their information is virtually useless because of the
torture. People will say anything to get the torture to stop.
And we lost rich sources of intelligence because of that.
And contrary to what you said, there are reports that say
that Abu Zabeda did not lead the Americans to Khalid Sheikh
Mohammed, that someone was responding to a $25 million reward
and walked in.
And also, do you believe that when the Administration says
its waterboarding only lasts----
Mr. Franks. Mr. Chairman, Ms. Cohn, my time is about gone
here.
Ms. Cohn. I don't believe that.
Mr. Franks. I appreciate your comments here. I just have to
say that to think that terrorists committed to the destruction
of the western world, if you be nice to them, we will respond
favorably. I think that is naive and I think al-Qaida would
love for you to write that statute. And I say that not
disrespectfully toward you.
Mr. Rivkin, do you have any closing comments on either of
these testimony?
Mr. Rivkin. Very briefly. I certainly do not agree with
Professor Cohn. I think that it is a moral cop-out to argue
that coercive techniques do not work because if they don't
work, there will be nothing to debate.
Coercive techniques do work. There is plenty of evidence to
that effect. It doesn't mean that anything goes, but what we
need to have as a society is a serious dialogue along the lines
of the question that you just asked, Congressman Franks, what
is severe?
And let me tell you, I have debated this issue ad nauseum
more than I care to. And most of the critics do not want to go
down the path of defining what is severe.
And let's stipulate that maybe John Yoo's definition is a
little narrow, but nobody wants to come up with any, any
techniques. And what is particularly appalling to me is, if you
at least somebody who wants to abolish all forms of coercion in
the public sphere, be it in boot camp for juvenile offender, be
it in a police station, there is plenty of psychological
coercion going on.
Hopefully not physical, but plenty of psychological
coercion going on in treatment of our own soldiers. But nobody
cares about it. What the critics mostly want is to create only
one portion of the public sphere that is coercion free, that is
interrogating captured al-Qaida and Taliban detainees.
And that to me makes absolutely no moral or legal sense.
And by the way, the point that Professor Luban made about the
appellation protracted being used with regard to mental
suffering and not physical, with all due respect, there are
plenty of cases that stand for the proposition that that does
not necessarily prevent the executive from construing the
statute in a way that has a temporal element with regard to the
physical pain and suffering. Does any normal person disagree
that there is at least, in some circumstances, a temporal
element?
That for example, the definition of severe pain and
suffering that, for example, a stress position of 10 minutes is
not mildly annoying. For 10 hours, it would be very painful.
For 24 hours, it would be tortuous.
So of course there is that. So the notions it will proudly
proclaim in the Congress, put the word ``protracted'' here.
Okay, actually, the Latin term for that is expresso unius
exclusio alterius. There is plenty of case law that says that
doesn't necessarily mean that you cannot construe it this way.
Mr. Nadler. Thank you. The gentlemen's time has expired. I
will now recognize for 5 minutes the distinguished Committee
Chairman, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. I want to commend the
witnesses. This is an excellent examination of torture, the
documents controlling them, how they were created, and who
wrote them. Namely, we now know, lawyers.
So this is a good way to begin to get to the truth. And I
think that we need to look at a number of other witnesses, some
who have already agreed to come to our next hearing, some who
will need more prodding through the legislative, coercive
process, non-violent, of course.
But I didn't think I would ask you a question, Attorney
Rivkin, but do you have a definition of pain that you would
like to leave with us? Because we are trying to find out.
I am going to be working on that, and I would like to keep
your admonitions in mind.
Mr. Rivkin. Chairman Conyers, I appreciate the question.
Actually, I would like to reflect on it and maybe submit
something in writing, because these are not easy decisions.
And I also would like to point out that hopefully, just
because something is legal does not mean that you do it as a
matter of policy. One of my problems is people commingle the
legal box and the policy box.
The legal box can be yay-wide, doesn't mean that the policy
box has to follow.
Mr. Conyers. Well, let's continue to work on this together.
You are a frequent witness anyway.
Mr. Rivkin. Thank you.
Mr. Conyers. Philippe Sands, we welcome you again here from
overseas. What do you make of this, I think, very commendable
beginning of the inquiry that has gone on about this. Marjorie
Cohn has given us a to-do list for the Committee, which we
appreciate.
And I think that is a good start. And I would like to ask
you and any other of the witnesses, other things that they
pursue and means of inquiry that we might engage in.
Mr. Sands. Thank you very much for that question.
Mr. Nadler. Sir, would you turn on your mic, please?
Mr. Sands. Thank you very much for that question, sir. I
think the country, if I may say, finds itself at an important
moment, because I think it is in everyone's interest that on
this issue there is a degree of uniting and moving on,
particularly in relation to the military interrogations that
have, to the best of my knowledge, come to an end in terms of
their abusive characteristics, although there is the issue of
the CIA stuff.
Nevertheless, looking back to history is important as part
of that process of moving on. And the Military Commissions Act
of 2006 in that regard is extremely unhelpful, because whatever
it purports to do in relation to immunization of lawyers or
anyone else involved, it does sort of freeze the process of
investigation.
It seems to me that to enable the United States to move on,
and its allies with it, it would be extremely useful to throw
the spotlight onto what actually happened during 2002.
I note from the exchange of letters, sir, between you and
the Office of the Vice President that Mr. Addington indicates
that he may be willing to come to address certain matters. One
of the matters that he addresses, or says that he would
possibly be willing to come, is to seek material information on
``personal knowledge of key historical facts.''
Those have not yet emerged in a forum such as this. Mr.
Addington, in the story I looked at, appears throughout the
story. He was deeply involved in the decision to get rid of
Geneva. He was deeply involved in the decision to move to
aggressive interrogation, including through the DOJ memos.
He visited Guantanamo at the end of September 2002 and met
with Major General Dunleavey and Lieutenant Colonel Beaver. And
the accounts that I received from them on the record, as I
describe in the book, is that he was, in effect, the leader of
the pack, and he was the person who was driving through the
policy.
And I think questions and issues that go to that role may
be extremely important. He was closely assisted by his friend
and confidante, Mr. Haynes.
When the request that essentially had been imposed from the
top, but then made its way back up to the Pentagon via General
Hill in SOUTHCOM, made its way to General Myers, I describe in
the book how General Myers' lawyer, Jane Dalton, who I think
you might also profitably talk to, described to Alberto Mora
how the assessment that they would have liked to have made in
Joint Chiefs never happened because Jim Haynes intervened to
short-circuit the process.
I think it would be useful, sir, to focus on the facts. And
with great respect, I don't think there is a great deal of
utility to teasing out the issues of what actually constitutes
severe mental pain and suffering.
There is a huge jurisprudence in American law. I am not
expert on that. I do know about the jurisprudence in
international law.
And one thing that one learns is you treat each case on its
own merits. You can't come up with abstract definitions. And
that has got to be the right approach.
Mr. Conyers. We haven't even hardly touched upon, in
conclusion, the whole notion of the hostility toward
international law and working as a family of nations at the
global level to try to turn back some of the violence that
characterizes the 20th and 21st centuries.
And so this has been enormously helpful for me and we would
invite all of our witnesses to stay in touch with us, feel free
to communicate back and forth, so that we can really leave a
serious record, not a partisan ranting type thing, but
something that can be examined not only in the near future for
all time.
We are setting some benchmarks here, where which way the
most powerful Nation in the world will treat these kinds of
violations of human dignity that have created so much unrest,
so much desperation, and in the end, so much violence in the
world.
And I thank you all very much.
Mr. Nadler. I thank the gentleman. The Chair now recognizes
for 5 minutes the gentleman from Indiana.
Mr. Pence. Thank you, Mr. Chairman. And I want to thank all
of our witnesses for your testimony.
Mr. Rivkin, a quick question for you, and then I wanted to
ask Mr. Sands a question. The Wall Street Journal pointed out
in a recent editorial the Democrat majority in Congress ``wants
the U.S. interrogation policies made public, but the reason to
keep them secret is so enemy combatants can't use them as a
resistance manual.''
They went on to write, ``If they know what is coming, they
can psychologically prepare for it. We know al-Qaida training
often involves its own forms of resistance training, and
publicly describing the rules offers our enemies a road map for
resistance.''
Mr. Rivkin, why would we want to risk offering our enemies
a road map for resistance? Can you think of any good reason?
Are you concerned about that?
Mr. Rivkin. It is of some concern, Congressman Pence. In
fact, it is an excellent point. There is a degree of irony here
that there may be lesser forms of coercion that if unexpected,
particularly psychological coercion may be quite efficacious,
sort of vitiating, or at least minimizing the pressure to use
the more difficult things.
But if you lay it out in advance, of course they are going
to train for it. And again, the whole essence of the people we
are dealing with is precisely because they are unlawful
combatants, they view interrogations as a continuation of the
fight, and happy the way it is with lawful combatants and
conscript soldiers who are quite happy to be away from combat
and sitting in a prisoner of war camp enjoying life.
So there is a huge problem. And I think the critics have to
acknowledge that we as a society can come up with any result as
long as the debate is honest, as long as we don't propagate
myths that coercive techniques don't work, or there is no cost
to disclosure of sensitive information along the lines.
Again, the American people may decide in the end more or
less along the lines of what my good friend Professor Sands
says, which is zero coercion. But let's decide it in a way that
is accountable so we can revisit this decision if unfortunately
bad things happen down the road, instead of doing it in a way
that is not transparent.
Mr. Pence. Professor Sands, I appreciated your testimony
very much. Whether I agree with your conclusions or not, I
appreciate your yeoman's work.
David Rivkin and Lee Casey have written recently, ``Some,
of course, have suggested that relationship building
interrogation techniques are preferable, and even more reliable
I the long run than stress methods.
They raise the question, though, what about the hard cases,
like Khalid Sheikh Mohammed, who was a mastermind of the
September 11 attacks in this country? How would you respond to
the observation that Khalid Sheikh Mohammed probably is not
susceptible to relationship building methods.
And I can tell by your grin, you acknowledge the somewhat
absurd thought that you could move people who have masterminded
the death of more than 3,000 Americans by Oprah Winfrey
methods. But if you could respond to that question, I mean, how
would you have solved, how do you think the United States
should seek to gain information from a mastermind like Khalid
Sheikh Mohammed if he refuses to answer questions voluntarily
when additional American lives could be on the line with
information that he is refusing to provide?
Mr. Sands. Thank you, sir. I very much appreciate that
question. That question seems to go to heart of many of the
issues that we are discussing. I am not sure how thrilled Oprah
Winfrey would be to the characterization of her methods in that
particular way.
I think I have got to say by way of outset, I come from a
country which spent 15 years involved in facing terrorism on
the streets. I grew up in a country where my mother wouldn't
let me go shopping on Oxford Street because bombs were going
off at times on a weekly basis.
And that experience has had a very profound effect on how
the United Kingdom addresses precisely the question that you
have addressed. And the thinking in the British military, and
the thinking across the board politically, it is really not a
left-right issue.
It is a broad consensus in the United Kingdom is that
coercion doesn't work. That the experience of the United
Kingdom, which moved in the early 1970's to use techniques that
were very similar to those that were used on Detainee 063,
hooding, stress positions, humiliation, and so on and so forth,
didn't work.
The view is taken in the United Kingdom that it extended
the conflict with the IRA probably by between 15 and 20 years.
Because what it did was that it outraged the community that was
associated with those who were subject to these particular
techniques, and it created a breeding ground, a recruiting
ground which made it impossible for the British government, if
you like, to persuade those who were associated with the IRA,
but had not crossed the line into use of violence, to think
another way.
And so in answering your question, I am profoundly
influenced by that experience. And one of the great regrets
that I have is that the Administration never seemed to turn for
advice to its closest allies and ask them what was your
experience when you faced a similar situation?
And the answer they would have got from whatever government
it was, Conservative, Labour, is don't go down the route, one,
of using coercion, and two, don't call it a war on terror.
Why? Because by calling it a war on terror, you transform
criminals into warriors, and you create a context in which they
are able to recruit in their struggle. And if you noticed,
neither Prime Minister Blair nor Prime Minister Brown, nor,
indeed, the Conservative leader of the opposition, ever uses
the phrase ``war on terror'' because of the experience with the
IRA.
Now in relation specifically to your question, there are
hard cases. I did smile because, frankly, the image that weeks
and weeks of rapport building with KSM is somehow going to
produce results is counterintuitive.
But the reality is, we don't know. And I spoke in my
investigation to a lot of interrogators, military, FBI who
basically said coercion doesn't work. You get information that
they want to give you that they think is going to stop the pain
from happening.
And I listened just yesterday to a remarkable tape that I
recommend to all of the Members of the Committee to listen to
of Senator McCain, a man who has first-hand experience of this
situation.
A brave man describing in a 1997 interview with Dan Rather
how he broke and owned up and signed a confession to having
personally targeted men and women, children in North Vietnam
because he was facing such conditions that he could no longer
cope.
And that, I think, is the reality. I firmly come to the
view that coercion doesn't work, and it has such a negative
backlash in terms of the consequences that the better price to
pay is not to go down that route at all.
Mr. Pence. Mr. Chairman, with your indulgence, could I have
Mr. Rivkin respond to that as well? He was trying to cut in.
Mr. Rivkin. Thank you. Very briefly. I don't doubt
Professor Sands' sincerity, but a couple of points. First of
all, I personally spent a fair amount of time with various
British colleagues who take a different interpretation of what
happened in the past.
And just like we have debates about Vietnam, they disagree.
A more cynical interpretation is that the British efforts in
1971 and 1972 squeezed out the names of approximately 700 IRA
operatives and were used as the body of knowledge to follow up,
number one.
Number two, an interesting point to point out, and I hope
Professor Sands would correct me if I am wrong, none of the
British lawyers, to the best of my knowledge, will prosecuted
in connection with aggressive interrogation, and let's be
frank, their assassination policy by SAS against senior IRA
operatives.
And the third point, with all due respect, IRA was a
serious threat, but IRA is not an existentialist threat like
al-Qaida. And the way you adopt coercion in the context of a
non-existentialist threat is very different that you do it in
the context of an existentialist threat.
I don't see us settling down with al-Qaida the way you
resolve things with IRA.
Mr. Nadler. The gentleman's time has long since expired.
The gentleman from Alabama is recognized for 5 minutes.
Mr. Davis. Thank you, Mr. Chairman. Mr. Rivkin, let me
begin with you. I had a chance to read the op-ed piece that you
wrote in the Journal last week, and some of your positions are
interesting in that they are extremely provocative. So I want
to pose a couple of questions to you.
You just mentioned the Vietnam War. Did the United States
military apply the Geneva Conventions to captured Vietcong
operatives?
Mr. Rivkin. It is a complicated question, Congressman
Davis. Basically, the position of the United States government
was that the Vietcong was not legally entitled to Geneva
protections. We extended it as a matter of policy grace,
largely, as I understand it, I am too young, of course, to have
personal knowledge, but people I talk to, largely because the
Vietcong threatened American prisoners who, God knows, were not
treated particularly well but could have been treated a lot
worse.
Mr. Davis. Well, let me take up that particular logic and
apply it to another scenario. Let's say that Hezbollah, a known
terrorist organization, were to capture an Israeli soldier and
to take that individual into custody and to subject that
individual to sleep depravation, physical abuse, physical
degradation, any number of things that might strike some
people, most especially including that Israeli soldier
experiencing the pain, as torture.
Should that Israeli soldier and his government be able to
invoke the Geneva convention against Hezbollah?
Mr. Rivkin. There are two answers to that, Congressman
Davis. The legal answer is this. If you are a lawful combatant,
the fact that the people who have captured you are unlawful
combatants and themselves upon capture would not be entitled to
the gold standard of the Geneva Convention does not mean that
you are not. So this is a non-reciprocity situation.
Mr. Davis. Do you think Hezbollah would adopt that
interpretation, or do you think al-Qaida would adopt that
interpretation.
Mr. Rivkin. No, I understand the question.
Mr. Davis. [OFF MIKE]
Mr. Rivkin. The practical answer is easy. And I don't mean
to sound glib, but let me suggest this. Given the absolutely
atrocious, medieval level of barbarism that is routinely
inflicted by unlawful combatants by Taliban, al-Qaida,
Hezbollah, where we are talking about not just torturing people
but dismembering people and killing them.
There are plenty of examples of them in Iraq. If I were
captured and my choice was being accorded the treatment that
they generally accord to westerners versus being treated as
somebody in Guantanamo, I would settle for Guantanamo in----
Mr. Davis. Well, of course, that wasn't the question I
asked you. Let me perhaps come at the question a little bit
differently.
Does the Israeli government apply the Geneva Convention to
captured Hezbollah operatives, or captured Hamas operatives?
Mr. Rivkin. Israeli government's position, as I understand
it, is fairly complex. They believe that a state of armed
conflict exists. They generally apply Geneva Conventions. They
signed the Protocol One addition, which we have not signed. But
it is fairly----
Mr. Davis. Is torture legal or illegal in Israel?
Mr. Rivkin. Excuse me?
Mr. Davis. Is torture legal or illegal in Israel?
Mr. Rivkin. Torture in Israel is illegal. However,
Israelis, in appropriate circumstances, do use stress
techniques. Their court has been quite involved on this issue.
Mr. Davis. Well, now, let me stop you at this point,
because you are doing what witnesses like to do, which is
talking fast enough that the questioner can't get a question
out if the time runs out. So let me slow you down.
Because you have just said some very interesting things. I
want to make sure everyone hears them. Israel, a democracy like
ours, that is under daily siege from the most vicious
murderers, assailants imaginable, which faces an existential
threat to its existence, they are very small, 10 miles at the
smallest point, makes torture illegal, applies the Geneva
Convention, and they apply it to armies or quasi-armies with a
history of being willing to kill women and children.
It would seem to me that those aren't incidental points to
be talked over and talked around. Those are very significant
moral propositions.
Mr. Sands, would you like to comment on that? Do you see
the point that I am making?
Mr. Sands. Well, I do, sir, very much see your point, and
it is a point that is also made in relation to the United
Kingdom. We have had, sadly, terrorist attacks on our
territory. One of the bombs in July 7th went away 100 yards
from the law school that teach at.
And I have followed the Israeli situation very carefully.
The Israeli Supreme Court, and I think Mr. Rivkin was about to
refer to it, gave a very famous judgment in which it said in
relation to torture, firstly, it is the lot of a democracy to
fight with one arm tied behind its back, but the democracy is
still stronger, because that is who we are.
Secondly, it rejected the ticking time bomb theory. This is
the theory that everyone raises, and yet ask anyone to find a
single example in which the ticking time bomb theory, situation
has arisen, and no one can identify one.
And with great respect, the way the Supreme Court of Israel
dealt with it is the right way. Never means never. If a ticking
time bomb scenario comes up, which we say is completely
hypothetical, we will deal with it when it arises.
Mr. Davis. Mr. Rivkin, if the Chair will indulge me just
one last hypothetical to you. Should the President of the
United States issue a pardon to members of the executive branch
who may be accused in the future of having violated statutes
related to torture?
Mr. Rivkin. In the current circumstances?
Mr. Davis. It is a hypothetical. Should the President of
the United States issue a pardon before he leaves office to
members of his executive who may be accused in the future of
having violated statutes relating to torture?
Mr. Rivkin. I have not considered this question carefully,
but I would imagine there would be some reasons to do so. I
frankly think as useful as the exploration of those issues is,
it can go too far and it can certainly handicap our----
Mr. Davis. Mr. Rivkin, would you seriously suggest that a
President issue a blanket pardon to members of his
Administration? Because this is the standard for a pardon
typically. Under precedent, that someone be convicted of a
crime or have acknowledged culpability for a crime.
Has any member of the Bush Administration been convicted of
a crime related to torture?
Mr. Rivkin. No, but----
Mr. Davis. Have any of them acknowledged responsibility for
this crime?
Mr. Rivkin. You asked me a hypothetical question. And all I
am saying is I have not studied this question in detail. I said
there may be some reasons to consider doing it. Let me remind
you that the blanket pardon----
Mr. Davis. I would suggest to you that it would be
extraordinary.
Mr. Rivkin. [continuing]. Would not be unprecedented.
President Carter, for example, issued a blanket pardon to the
Vietnam war related, I will say people who got in trouble in
relation to the Vietnam war.
But I am not advocating for it. You asked me a
hypothetical. The easiest answer is to say that I don't answer
hypotheticals. I am trying to be forthcoming. I said it is
something to consider. I did not say that it is something to
do.
But my only--10-second point is this. If you look at
Israel, they did make a choice in a transparent fashion as
accountable democratic body polity. They do use drastic means
of interrogation. I don't think that--in certain circumstances.
I don't think that--that is at least my sense from talking to a
lot of Israelis.
But yes, they have made a decision to take high risks, and
that certainly is to consider.
Mr. Nadler. Time of the gentleman has expired. The Chair
now recognizes for 5 minutes the gentleman from California.
Mr. Issa. Thank you, Mr. Chairman. And I will try to pick
up what I would have put in an opening statement in my
questioning.
Mr. Rivkin, since you have had time to think about that
earlier question and to give it due consideration, since Jane
Harmon and Nancy Pelosi were knowing accomplices to this, they
were well aware and had virtual tours of the site and were
intimately familiar with waterboarding and all the other
techniques, would they be appropriate for that blanket pardon?
Mr. Rivkin. If----
Mr. Issa. Since they seem to be repentant by now denying
that it is their responsibility, but rather the responsibility
of the Administration.
Mr. Rivkin. I understand, Congressman. It is actually the
point you make in your question is a correct one. If we are
going to use broad conspiracy counts to bring people in who
were not in an operational chain of command, a Member of
Congress exercising his oversight power sort of acquiescing and
blessing something may have things to be concerned about.
But as I said, look, there is a difficult issue here. I
don't mean to be glib, it is a serious problem. Investigation,
exploration is a good thing. But it can degenerate into a witch
hunt. It can degenerate into an effort to smear the reputations
of the people involved.
And again, I posed the same point I made earlier, which is,
how is the future President going to get candid legal advice
when everybody who worked for the previous President, or the
previous two Presidents having their career ruined, being
vilified, portrayed as war criminals, even if prosecutions
don't mature, and have a bunch bar associations going after
them and have students breaking down their doors when they try
to teach.
That is not a good thing. It is not a good thing at all.
Mr. Issa. I agree, and Ms. Cohn, I will switch to you for a
second, because I think we may gain--I may gain some insight in
this.
You may not be aware of this, but I have actually supported
the ban on torture, and I happen to be much more in the McCain
camp on this. So don't consider me a friend just because I say
that, but I do want to----
Ms. Cohn. You also come from my part of the country as
well.
Mr. Issa. Yes. I do want to get this right. And although I
opened very clearly with the idea that we have got to move on,
truly move on from a bipartisan decision that was made that is
now public, that in fact is no longer done, to the question of
what do we go going forward?
And as one Member of Congress on this side of the aisle,
probably not, quotable by my friend and colleague, but perhaps,
I think we are better than that. I think we can win this fight
with one arm tied behind our back, as we have I World War II
and other wars.
But having said that, I want to go through a line of
questioning to see if perhaps I can get yes's on this. Do you
think it is fair to lie to prisoners that we take on the
battlefield, whether they be illegal combatants or just
prisoners?
Ms. Cohn. To lie to them?
Mr. Issa. To lie to them. To tell them things that would
cause them to spill the beans because we have lied to them, we
have been disingenuous in what we tell them reality is. For
example, the colleague that was taken with you, we have already
killed him.
Ms. Cohn. Well, I think it would depend because, for
example, if you lied to someone and say we are going to kill
your wife, even though you don't really intend to, we are going
to kill your wife if you don't give us this information, then
that is severe psychological coercion, and I would be opposed
to that. And I don't think that that line----
Mr. Issa. And I appreciate that. Maybe I will alter it a
little bit. Mr. Rivkin, do you watch ``Law and Order,'' any of
the 35 different versions?
Mr. Rivkin. I confess, I do not--science fiction.
Mr. Issa. Okay. Well, for everyone else in the world, do
you think that has watched it, do you think that in fact
deceiving people, including by saying your partner just got a
confession out of the other person taken on the battlefield. Do
you think that is okay?
Mr. Rivkin. It is okay. There is a small range of deceptive
statements relative----
Mr. Issa. And of course, you know that the Supreme Court
has held that is okay, even in law cases that we deal with.
Mr. Nadler. Would the gentlemen yield for a second?
Mr. Issa. Of course, Mr. Chairman.
Mr. Nadler. Thank you. I just want to pursue the one
question. The Supreme Court has indeed ruled that deceiving a
questioner saying your colleague has spilled the beans, you
might as well tell us the rest, is okay. But is that the same
law as threatening, I am going to kill your wife?
Mr. Issa. Well, and I wasn't responding to Ms. Cohn,
because I think it is important that we stay to the basic
concept that we do get confessions out of prisoners in the
United States and in other places by techniques other than
physical contact or threat of torture.
We do often say, for example, and I will pick you up on
this, Mr. Chairman, domestically, and I think the audience of
all of us think domestically to say that if you don't
cooperate, we are going to take every one in your family and we
are going to arrest them, and they are going to serve as
accomplices to your crime is in fact something that can be done
in this country.
The threat of, in fact, widening the net to people beyond
that, I think just, for all of you, those kinds of techniques
are many of the alternatives, so we do have other tools besides
the ones we are concentrating on today.
And my time is expiring, so I would appreciate it if I----
Mr. Rivkin. Just 10 seconds. This is actually my favorite
hypothetical, because the critics do not want any form of
coercion, psychological coercion.
My favorite example is what prosecutors of Enron did to
Andy Fastow. They threatened him, (a) to prosecute his wife
harshly, (b) make sure that he and his wife would serve time
concurrently, in which case their child would have to go into
foster care.
Does anybody think that that is not a horrible
psychological threat to make? They meant it, it broke him, and
I am not holding a candle for him. I never represented him or
anybody from Enron.
But this permeates--custodial interrogation frequently is
permeated by horrible pressure, and that is okay. If it is okay
for Andy Fastow, how it cannot be okay with Abu Zabeda or----
Mr. Issa. And if we just let the others follow up because
this is one where we know it has been held constitutional
within some of these guidelines we are talking about. I would
like to see how they view that for prisoners from the
battlefield. Mr. Luban.
Mr. Luban. I agree with what the other witnesses have said.
Lies that amount to death threats or threats of torture against
the person or against their family, those are not permissible.
Other kinds of lies are permissible.
I think that interrogation is a game in which you are
trying to get information from somebody who doesn't want to
give it. By definition, it is adversarial. Tricking it out of a
person, it may not be something that in everyday life we would
think is moral, but in that setting, that is moral. The
difference is between tricking it out of them and coercing it
out of them.
Mr. Issa. Mr. Sands, I guess we will close with you because
you haven't answered, and because these are techniques of
course widely used in Britain.
Mr. Sands. They are, but I think I am right in saying that
the U.S. field manual permits this as a technique. And of
course the U.S. field manual, which governs military
interrogations, is an extremely sensible document. It has broad
support across the spectrum politically.
It has been followed in many other countries around he
world. It does not exclude those types of questioning
techniques subject to the limitations in terms of family
members and related issues.
And it is, of course, the basis for a vote, I believe, in
both this House and the other House in relation to new
legislation which, very sadly, I have to say, the President
vetoed just a month and a half ago.
And I think it is important to point out, sir, that
decisions that are taken by the President such as vetoing
legislation which would prohibit the use of waterboarding is
watched around the rest of the world. And it was the subject of
intense media attention in the United Kingdom.
And I can go further than that. I wear two hats. I am an
academic, but I am also a practicing lawyer. The area of work
that I do is advising foreign governments.
And I have been in a room with a president of a foreign
government who, when addressing these issues and discussing
them, has whipped out a copy of John Yoo's legal advice and
said to me, face to face, look, the United States allows this
sort of stuff, so why not do it?
I have had a foreign minister say the same thing to me. It
has a big consequence. And so I think you have put your finger
on it. I think the United States has a terrific leadership
role. It can do better than that.
It leads the world on these issues, and it needs to find a
way to come back to that leadership role.
Mr. Issa. Hopefully, as an academic, you suggested that
that head of state that he not believe a lawyer. Thank you.
Mr. Nadler. The time of the gentleman has expired. The
gentleman from Minnesota is recognized for 5 minutes.
Mr. Ellison. Professor Sands, does torture work?
Mr. Sands. That is a very general question.
Mr. Ellsion. Of course it is.
Mr. Sands. I have spoken--I have never personally engaged
in torture, so I have got no firsthand experience of knowing
whether or not it does work.
What I have just engaged in is a year and a half of
examining the aggressive interrogation of one man at
Guantanamo. I obtained professional medical advice, coming back
to this question of was he tortured or not, and the conclusion,
which is set out in the book, is that if you asked 12 clinical
psychiatrists whether this man was tortured, all 12 would say
he was because of the severe mental pain and suffering that he
suffered over a 54-day period.
I know to the best of my abilities to find out that in the
case of what happened to that man, who was potentially thought
to be the 20th hijacker and therefore a serious individual, it
produced nothing meaningful.
Mr. Ellison. Here is my question. If you say that--let's
just assume for just the briefest moment in time that some
things a person who is tortured says, some things they say are
true and some things they say are said simply to stop the pain.
How do you determine which are true and which are just
statements to just--that are false, but just to give the
torturer some answer to make him stop?
Mr. Sands. You can't. There is no way to do that. And the
experience with Khalid Sheikh Mohammed, of course, who has
owned up to everything under the sun, establishes the absurdity
of going down that route.
It is simply impossible to know which of the multitude of
things that man has now confessed to having done is or is not
true, and there is no way to find it out. And the difficulty,
of course, is that the disinformation then leads the
interrogator and the state that is supporting the interrogation
to perhaps exclude other avenues of investigation to determine
the true facts.
So it is not an approach for that reason also that is
useful. I think it is clear that it doesn't work. The British
view is it doesn't work. You must never do it, and never means
never.
Mr. Ellison. Now Mr. Rivkin, I guess if I asked you that
question, you probably would say sometimes it does work, right?
And so, sir, again, I guess my question to you is, if we assume
for a moment that a person who is subject to physical torture
will say some things that are true, and will say some other
things that are not true.
For example, if the torturer asks him, name everybody who
you were with, the person won't just start giving names,
particularly if the torturer doesn't like the answer that the
victim of the torturer is giving, how do you know which is the
right stuff and which is the wrong?
Mr. Rivkin. I understand. And again, it is a----
Mr. Ellison. But I guess I know you understand, but I need
you to answer my question. How do you determine which is right
and which is wrong?
Mr. Rivkin. My answer would be this. In most situations, we
have an opportunity to go back and cross-examine, if a person
being interrogated says the safe house is in this building on
this street, and you go and it is not there, you can go back--
--
Mr. Ellison. Cross-examine like a court proceeding? You
mean like check it against other facts----
Mr. Rivkin. Well, no, no. You could go back to the same
person. Look, there are people who will tell you that you can
learn as much from a person lying as a person telling you the
truth as long as you understand the context.
The worst situation for you an interrogator is, you are not
getting anything. No information at all.
Mr. Ellison. Now wait a minute. Now Mr. Rivkin, let's just
say you get an answer and that answer is false. The torturer
believes that you know, and let's just say that the torture
victim does not know, but the torture victim gives the torturer
an answer because this guy is going to keep shocking me or
beating me or drowning me until I tell him something.
So you tell him something, so he names the kids who are on
his baseball team, or soccer team. Don't you now have to go and
use investigative time and resources to either verify or reject
that false information?
Mr. Rivkin. That is correct.
Mr. Ellison. Does that take time?
Mr. Rivkin. It does take time.
Mr. Ellison. Does it take money?
Mr. Rivkin. And as always in life, you can have false
leads. But I repeat, from everything I have heard----
Mr. Ellison. Can you give me an example of a true ticking
time bomb situation, a specific example in which there was a
time and a place and a person who was believed to have
information about some explosion or something, where in fact
this particular case saved somebody's life even. Can you give
us an example of that?
Mr. Rivkin. Well, yes. While I am at a disadvantage because
I personally do not have--being legalistic--I personally don't
have complete proof. But I would point out there is an
excellent article in the last issue of the National Journal by
Stewart Taylor, who is widely regarded as a very objective and
non-partisan commentator.
Mr. Ellison. What is the name of the case that you are
referring to.
Mr. Rivkin. He argues that Khalid Sheikh Mohammed in the
circumstances so close post-September 11 was as close as you
can get to a ticking time bomb, because here was the man who we
believe to have some information----
Mr. Ellison. Wait a minute, Mr. Rivkin. I am not asking
close as you can get, I am asking there----
Mr. Rivkin. Well, but he was----
Mr. Ellison. [continuing]. The ticking--I am talking about
if you don't--we have to torture you because within 3 hours the
bomb is going to go off and we have to torture you to stop that
bomb from going off. Do we have a situation like that? I will
even give you 4 hours.
Mr. Rivkin. Well, with all due respect, that is very
generous of you, Congressman--3 or 4 hours does not----
Mr. Ellison. Five.
Mr. Rivkin. It is like arguing what severe is. The view of
the Administration, as I understand had, was somebody like KSM
who has information about impending attacks, could have been
matter of days or weeks. It does not make it any less----
Mr. Ellison. Okay, Mr. Rivkin, thank you. Mr. Chairman, I
would just ask the other panelists if they know of a ticking
time bomb case? Mr. Sands, Ms. Cohn, Mr. Luban, do you know of
a ticking time bomb, the real case?
Ms. Cohn. I know of one. It is on the show ``24.''
[Laughter.]
Mr. Ellison. It is fictional.
Ms. Cohn. And that is the only one I know of.
Mr. Ellison. Mr. Sands?
Mr. Sands. I know of none other. And I have never seen the
show ``24,'' so I don't even know of that one.
Mr. Ellison. Mr. Luban?
Mr. Luban. Yes, I have been trying to chase down true
ticking time bomb cases for a couple of years. There have been
a couple that have been alleged to be ticking time bomb cases.
They turned out not to be true.
If I could take a second to describe one, I think the
poster child was the bomb maker, al-Qaida bomb maker in the
Philippines, his name was Morad, who was captured because the
bomb went off.
The Philippine police tortured him brutally, and he
revealed in the end that there was a plot to blow up American
Airliners and to assassinate the Pope. Now that looks like the
ticking time bomb case, except for two things.
First, the torture was not the thing that broke him. What
broke him was the threat that he was going to be turned over to
the Israelis, who apparently, according to one journalist, he
feared even more than he hated.
And secondly, all the information was already on his
laptop, which the Philippine police had, except that when you
take torture as your ``A'' option, you don't look at the ``B''
options.
And so the idea that a ticking time bomb case is one where
only torture produces the information, that is crucial. And
torture oriented interrogation organizations, police forces
begin to gravitate toward torture and they leave aside all the
non-torture methods. All of that information was on Morad's
computer.
Mr. Nadler. The time of the gentleman has expired. The
Chair now recognizes for 5 minutes the gentleman from Iowa.
Mr. King. Thank you, Mr. Chairman. I would like to thank
all the witnesses for your testimony. And there has been a lot
of information poured forth from this panel.
It has answered some questions and it has created some
curiosity on my part. And as I listen, I would lift out of some
of the testimony Lieutenant Calley in the My Lai Massacre was
raised, and the Abu Ghraib prison issues were raised.
And I would draw those two comparisons as the critics of
American conduct in Southeast Asia invariably focused on Abu
Ghraib. That is the lens through which they would like to have
history review the Vietnam conflict.
The critics of the military operations that liberated Iraq
from Saddam's reign of terror would like to have had us view
that experience through the lens of focusing on the Abu Ghraib
prison incidents, rather than the broader picture and a broader
view.
I will submit that the American soldiers and the American
military and our American intelligence security personnel have
conducted themselves, by and large, extraordinarily honorably
throughout history. And I think it is a disservice to focus on
the exceptions as narrow as they in fact are in the breadth of
the history of this country.
And so this question emerges in my mind, and I ask, I
think, first from Mr. Sands, who may be more objective about
this because of his country of nationality and origin. But is
there an example throughout the history of the United States of
America, and I will take us back 1776, where the United States
has been in a conflict against an enemy, militarily, cultural
or just an enemy, where our enemy took a more moral posture
toward our soldiers and our combatants and maybe our spies and
intelligence people than we have ourselves?
The posture of the United States vis-`-vis our enemies, are
we viewed--is there is a historical exception where on balance,
for the conflict that you might choose, that the enemy has
taken a stand superior in moral authority than the United
States?
Mr. Sands. Sir, I am afraid I am not an expert on military
history, and I am therefore not able to answer that question
beyond a number of general observations.
Firstly, I would agree with your observation that the
United States has been a global leader in relation to these
issues, both historically and also in relation to more recent
conflicts, and also in relation to the vast majority of
practice in relation to current conflicts.
I have had the opportunity to meet a very large number of
serving members of the United States military who have been
involved in Afghanistan, who have been involved in Iraq, and
who are involved in other parts of the world. And I leave with
an enormously positive impression of the role that they have
played.
The story that I have told is not a story about things
going wrong in relation to the military. It is a story in
relation to political appointees, and I----
Mr. King. Mr. Sands, in the interest of time, I want to
concede your point that you are about to make and acknowledge
that the breadth of this is not a broad criticism, it is very
narrow. We agree.
Mr. Sands. I believe it is narrow, but its narrowness does
not diminish its importance because of the recent----
Mr. King. And I will concede that point to you, and I know
it is what we are examining here. And I thank you for your
response.
And I turn to Ms. Cohn, and you are advocating for the
gaining the trust of the person who would be questioned and as
one who is every day involved in this business of folks gaining
my trust, we are very resistant to that tactic here in
Congress.
Because there are confidences that we must maintain, or our
leverage and influence is significantly diminished. And I would
ask if you could point out a case where there has been a
successful interrogation of enemy personnel by gaining trust
that has saved lives in the fashion that has been illustrated
in the equivalency of lives and intelligence that might be
comparable to that of Ranking Member Trent Franks as he talked
about the three incidents of waterboarding.
Can you eclipse that in your historical knowledge of
gaining trust of the enemy?
Ms. Cohn. Thank you for that question, Mr. King. It is my
understanding that when Saddam Hussein was in custody after the
United States came in and took over that country, that he was
treated with kindness and in fact, he provided a very rich
source of information for the people who were interrogating
him.
So that would be example that comes to mind. But I want to
say one other thing----
Mr. King. Is that quantified?
Ms. Cohn. Pardon me?
Mr. King. Is that quantified? I mean, I understand that,
too. But have we quantified the intelligence gains from Saddam
in a fashion that measures up against the intelligence gains
that referenced by Mr. Franks in his opening statement?
Ms. Cohn. Well, the problem is that the intelligence gains
that were referenced by Mr. Franks in his opening statements
are also not verifiable because of top secrecy and, quite
frankly, given the number of misrepresentations coming from the
high levels of the Bush Administration, I don't have great
confidence in the statements that come from that
Administration.
But I want to say one other thing. And that is that I agree
with you that our soldiers have been admirable, our troops in
this conflict. And we are not talking about our troops, we are
talking about interrogators, many of whom are mercenaries who
are following policies that come from the top of the highest
levels of this government, and we are not talking just about an
isolated case of Abu Ghraib.
We are talking about torture and cruel, inhuman or
degrading treatment and punishment that has come at Guantanamo,
in Iraq, in Afghanistan and in the CIA--this is not just an
isolated incident.
Mr. King. Thank you, Ms. Cohn. I would like to slip in one
question in conclusion here, if I might. And it focuses back on
the statement made by Mr. Sands.
And as you illustrated, the IRA and the--by the way, I want
to say, I agree with you and we shouldn't call it a war on
terror. I think that is a misnomer.
But you made the statement that the IRA, the Irish
Republican Army, that conflict was extended by 15 to 20 years
because of the, I believe it was humiliation that was imposed
upon some of them that extended it because of the outrage.
And now I would make the point to you that wallowing in
self-guilt as a Nation and bringing hearings before this
Congress and pumping this into the media constantly when we
have identified that these are narrow, very narrow exceptional
circumstances.
And our knowledge on it isn't complete, that it extends the
outrage, and this panel and this testimony and those things
that supplement it across this media also extend the outrage
and may well be extending this global war against these people
whom we won't call terrorists, we will call them Islamic
Jihadists. Mr. Sands?
Mr. Sands. I would very much like to respond to that, sir.
I would be very happy to share with the Committee, it is not my
area of expertise, but I do have access to some of the
information of the views of the British military and the
British political circles as to the consequences of using the
so-called five techniques on the IRA.
And in fact, the situation I can segueway into your
question, sir, but----
Mr. King. I want to know if your testimony extends the
outrage.
Mr. Sands. But Mr. Rivkin said he didn't believe that any
of the lawyers involved in the U.K. techniques would ever hold
up before a court. But the United Kingdom was, and what enabled
the United Kingdom to move on in that relationship and to get
closure on that terrible period were judgments of the European
Commission on Human Rights and the European Court on Human
Rights.
And my hope, sir, would be that either this Committee or
some other Committee is able to bring closure to this issue by
accepting that errors were made and allowing the country to
move on.
Because the consequence of not going down that route is
that there will be investigations and possibly prosecutions
abroad after the failure of the United States to have acted. So
it is about finding closure and moving on.
Mr. King. I would ask unanimous consent to allow Mr. Rivkin
to answer that question.
Mr. Rivkin. Very briefly--thank you, very briefly. I want
the record to show that none of the senior British officials
were prosecuted in connection with any of the activities,
including assassination, which if the laws of war did not apply
would be legal killings of IRA operatives.
So there are different--even if you assume the importance
of bringing closure to that, there is a right way of bringing
closure, there is a wrong way of bringing closure. And criminal
investigations are prosecutions for the next two decades ain't
the right way to bring closure.
And that is what Britain has done. That is not what Israel
has done.
Mr. Luban. Mr. Chairman, may I add one comment to this?
That is that the government of the United Kingdom at that time
made a clean breast of the five techniques and publicly
acknowledged that it had been using the five techniques.
Mr. Sands. Very briefly sir, it is not accurate to say that
no individuals faced individual sanction or responsibility. And
I will be pleased to provide the Committee with detailed
information as to what has happened in the United Kingdom.
Mr. King. I yield back.
Mr. Nadler. Thank you. The Chair now recognizes for 5
minutes the gentleman from Virginia.
Mr. Scott. Thank you, Mr. Chairman. I thank our witnesses
for their testimony.
Ms. Cohn, you mentioned jus cogens and indicated there is
no statute of limitations for prosecution.
Ms. Cohn. Correct.
Mr. Scott. Is there anywhere in the United States criminal
code where we can find a basis for prosecution of that concept
generally?
Ms. Cohn. Yes. Several Supreme Court decisions have
referred to jus cogens and customary international law, and it
is part of U.S. law, just the same way as treaties are once we
ratify them.
Mr. Scott. Thank you. We have all agreed that torture is
illegal. Is there any basis for retroactive immunity if you get
good, life-saving information?
Ms. Cohn. No. There is no justification for torture under
the Geneva Conventions, under the Torture Convention and under
the International Covenant on Civil and Political Rights, all
three of which are treaties the United States has ratified, and
therefore part of U.S. law under the supremacy clause of the
Constitution.
Mr. Scott. And the fact that you got good information does
not retroactively immunize you for the torture?
Ms. Cohn. No, it doesn't. No exceptional circumstances
whatsoever will ever allow torture under those three treaties.
Mr. Scott. And one of the problems with this is that you
don't even know if you are going to get good information when
you decide to torture, that you start torturing and you may or
may not--you may find it didn't work or you may find the person
didn't even have information.
How many people--if we were to allow torture in the cases
where you can get good information, how would you know that you
are going to get good information when you decide to torture?
Ms. Cohn. There is no way or knowing, Mr. Scott. That is
the problem.
Mr. Scott. Mr. Sands, you have talked about this generally.
Could you just specifically say the effect of allowing torture,
what effect that would have on United States troops?
Mr. Sands. Well, firstly, I think that there is
considerable evidence that the use of abusive interrogation
techniques has undermined morale. I have even in the past few
days from the publication of the article in Vanity Fair and the
book coming out received rather amazing e-mails from military,
very upper-echelon individuals who are, shall we say, feeling
very positive about the way in which steps are going to draw a
line under this historical moment.
But more significantly, and I think one need only reverse
the situation. If President Bush vetoes legislation that this
House has passed and that the Senate has passed, which outlaws
these techniques of interrogation because he wants to leave
them open to possible use in the future, imagine what that does
to someone who is holding American troops or American nationals
and also wishes to use the same techniques.
It simply creates a basis for exposing American nationals
or American troops to abusive techniques of interrogation that
are not permitted. And so it creates, I think, an additional
risk for American troops in the field and for American
nationals, business community, NGOs, individuals traveling
around the world doing their honest business.
And that is the fundamental problem with what has happened.
It has created a fundamental risk for the good men and women of
the United States, in particular in the military. And that is
what makes this so pernicious.
Mr. Scott. Thank you. Ms. Cohn, does anybody outside of
this Administration think that waterboarding is not torture?
Ms. Cohn. This Administration? Well, at Michael Mukasey's
confirmation hearing to be attorney general, retired navy Rear
Admiral--he is retired--navy Rear Admiral John Hutson testified
that aside from the rack and thumbscrews, waterboarding is
perhaps the most iconic form of torture going back to the
Spanish Inquisition.
The United States pushed for an got prosecutions of
Japanese leaders after World War II for waterboarding. It is
called the water torture, the water cure.
There is really no good argument that in fact waterboarding
is not torture, and that is why I was so puzzled that Michael
Mukasey refused to say that waterboarding was torture. I think
the reason for that was two-fold.
First of all, he would have been calling his bosses
criminals because they admitted engaging in waterboarding. And
if waterboarding is torture and torture is a war crime, they
could be liable under the War Crimes Act.
And secondly, under the Military Commissions Act, evidence
obtained by torture is inadmissible, but evidence obtained by
coercion is admission if it took place before December 30,
2005.
And so Michael Mukasey knew that information presumably was
obtained by waterboarding, and if that was torture, then that
could not be used in some of these military commissions trials.
Those are the only two reasons I can think of that Michael
Mukasey would refuse to say what everyone else knows, and that
is that waterboarding is torture.
Mr. Scott. Well, can this Administration change the law by
memo?
Ms. Cohn. Can they change the law? It is either torture or
it is not torture, and waterboarding, if you were almost
drowning, and some people actually do drown, and so then we are
talking about homicide, we are talking about murder.
I mean, there is torture leading to murder, but if you are
pouring water down someone's nose and mouth until they almost
drown, there are just no two explanations for that. There is no
good argument that that is not torture.
And so if the U.S. passed a law saying waterboarding is not
torture, it would be like saying the sun doesn't rise in the
east and set in the west. It just would not make sense.
Mr. Scott. Thank you.
Mr. Nadler. I thank the gentleman. I now recognize the
gentleman from North Carolina for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman. I just have one
question, but before I ask the question, I just want to express
how proud I feel that this hearing is being held and the manner
in which it is being held. And I associate myself with the
Chairman's statement that we have a high responsibility here.
And I would have to say when I came in, I had this fear
that it was going to deteriorate into a partisan tit or tat,
and there has been some of that, as there always is in these
hearings.
But by and large, it has just been a very informative, and
I think a very important hearing to start a process that I
think is very important. And I want to commend the Chair and
the Chair of the full Committee and others who have conducted
it at that level.
Now, the question and I am going to ask this question to
Mr. Rivkin and Professor Luban because I think they are the
only two that have not answered it, but I want to express what
I think I heard from Professor Sands and Professor Cohn already
in response.
And if I misheard them, I hope they will correct what I
think I heard. I think I heard Professor Cohn say that we ought
to be seriously contemplating as a next step pursuing the
possibility of a special prosecutor to pursue this and pushing
this further in that way.
I think I heard Professor Sands say that he thinks that a
more productive course would be to document more or less for
history and for future purposes what has occurred so that we
make sure that we have some rules of the road going forward,
but not focus so much on pursuing those who may have engaged
in--now I may be misstating that, and I hope you will correct
me if I am.
Mr. Rivkin, I don't think you have expressed an opinion on
this, so what I think is--my question generally is, where do
you think this Committee should take this, if anywhere, beyond
today?
Should we just let bygones by bygones and go on and keep
trucking down the road? Or what do you think we should be doing
next in this process?
Mr. Rivkin. I appreciate the question, Congressman. You are
obviously seized of this issue, and you were doing it, how to
bring it to a responsible conclusion.
I guess it depends on what is your narrative as to what has
transpired. My narrative is entirely different. I think that--
--
Mr. Watt. Well, I appreciate you giving me your narrative.
I think I know your narrative. But I am more interested in
where you think we should go from here rather than a
restatement of your narrative.
Mr. Rivkin. Well, I guess, I am--forgive me. I guess I am
with Professor Sands, which is document the history as fairly
and as objectively as you can. I think doing anything beyond
that would be a gross disservice.
Even if you think the laws were broken, prosecutorial
discretion implies exercising law enforcement function wisely.
In a time where people in good faith, not for any other reason,
on both sides of the aisle----
Mr. Watt. Well, we are not prosecutors, we are a Committee
of Congress, so----
Mr. Rivkin. Well, but you can--judgment of you are right--
you have a right to reflect as representatives of the people
and your own personal capacity, of course, you have a right to
express an opinion.
And all I am saying is that to the extent the Congress
sometimes recommends prosecutions, sometimes it doesn't. I know
technically law enforcement belongs to the executive branch. I
think it would be madness to prosecute anybody, given the facts
involved.
Mr. Watt. I want to come back to you if I have time. But I
want to make sure that Professor Sands seemed to be a little
discomforted by the way I characterized what he said, and then
I want to get Professor Luban's opinion. But I want to give
Professor Sands a chance to get a level of comfort if I didn't
correctly state what he was saying.
Mr. Sands. Sir, not discomforted at all, but if there was
an inaccuracy in what I conveyed, then the inaccuracy would be
my responsibility and I am sure not yours.
My position is as follows. There are facts which need to be
explored. And it seems to me, and I say this with great
deference, that that is one thing this Committee can usefully
do.
You are going to have some of these lawyers appear before
you. You will have an opportunity to put to them specific
factual issues that have not previously been tested and
examined. And that is a vitally important function.
With regards to other aspects, I think one has to accept
the following situation. The Torture Convention and the Geneva
Convention were violated. Crimes I think on the basis of the
material I have seen, were committed.
Under the Torture Convention of 1984, the United States has
an obligation to investigate and, if appropriate, to prosecute
or to extradite to a country where the individual would be
prosecuted.
The position as follows is that, and I set out in the book,
there are likely to be investigations outside this jurisdiction
in relation to what has happened. Foreign countries, friendly
allies of the United States, will have prosecutors, and I
described two of them in the book that I met with
confidentially, who have asked me for all of my materials.
I think that the reason they are able to do that, and they
told me the reason they are able to do that, is that nothing
has happened in the United States. And my point, and I probably
did not put it as clearly as I could have, is that it is first
and foremost for the United States to investigate these
matters.
It could do so to begin with within this Committee, whether
it is by special prosecutor or other means. That is a matter
for others to decide. But if the United States doesn't address
it, other countries will.
Ms. Cohn. Mr. Watt, may I clarify----
Mr. Watt. Mr. Chairman, the----
Mr. Nadler. Without objection----
Mr. Watt. The one witness we have not heard from on this is
Professor Luban.
Mr. Nadler. And without objection----
Mr. Watt. I would at least like to get his response.
Mr. Nadler. Professor Luban.
Mr. Luban. I will put my mike on and then I will be brief.
I think that it is much more important for this Committee to
find out what happened to publicize the memos that are still
secret than--I think prosecutions are much further down the
road. I don't think that it would be madness, but I think as
somebody who believes strongly that people are innocent until
they are proven guilty, that it is really premature to be
talking about this.
I would like to find out whether there were ethics
violations committed, and there is no right against self-
incrimination for ethics violations.
I think that getting the full story out is the most
important job of this Committee. And if I could say one other
thing, I don't think that there is any worry about revealing
secret interrogation techniques because the interrogation
techniques have been known for over 3 years. And al-Qaida reads
newspapers.
And the idea that this would humiliate the United States
and make things worse I think is wrong. It would show that the
United States rights its own ship when the ship is listing.
Mr. Nadler. Ms. Cohn, you wanted to answer that, too.
Ms. Cohn. Yes. I just wanted to follow up on what Professor
Sands was saying about other countries prosecuting our leaders,
because that may be kind of a foreign concept to people.
What I believe Professor Sands is talking about is the
concept of universal jurisdiction, which is well established in
U.S. law as well as the laws of most other countries. And
universal jurisdiction says that if a country such as the
United States is unwilling or unable to prosecute its own
nationals for these heinous crimes, they are crimes that are so
heinous that they are crimes against all of humanity, and any
country can prosecute and punish them.
And Israel used the doctrine of universal jurisdiction to
convict, to try, convict and execute Adolf Eichmann for his
crimes during the holocaust, even though they had no direct
relationship with Israel. So this is--an there have been
investigations.
My organization, the National Lawyers Guild, together with
other organizations, have talked to prosecutors in other
countries to try to encourage them to do these investigations
because they are not being done in this country.
Mr. Nadler. Thank you. The gentleman's time is now truly
expired.
Mr. Watt. Thank you, Mr. Chairman.
Mr. Nadler. The gentleman from Tennessee is recognized for
5 minutes.
Mr. Cohen. Thank you, Mr. Chairman, and Chairman Conyers,
for holding this hearing.
Professor Sands, you wrote in your book about a gentleman
by the name of Spike, aka Marion Bowman. What basis did he have
to believe that people at the FBI felt that the interrogation
techniques being used by our government were illegal?
Mr. Sands. I had, as I describe in the book, two meetings
with Mr. Bowman, whose given birth name was Marion. As he
explained to me in our first meeting, that was a name that, as
a gentleman, has got him into some difficulties, so he changed
it unilaterally to Spike.
He described to me memoranda that he received and
communications that came directly from Guantanamo, for he was
not himself at Guantanamo, but I think he was an associate
general counsel for the FBI counterterrorism division.
He began to receive in late October and early November
information from Guantanamo that there was a move toward
aggressive interrogation at the push of the Pentagon. It is
important to recall down at Guantanamo, you had not only
military interrogators, you also had FBI interrogators, and the
CIA were also present.
And there was a tremendous tension going on down at
Guantanamo as to what was right and what was wrong. And it
would be very wrong to portray a situation, it was all one side
in favor of aggressive interrogation.
That is not the case. There were a lot of people who were
very strongly opposed to it. They communicated their concerns
to Mr. Bowman, and Mr. Bowman then took steps, as I describe in
the book, to raise the issue directly with the Office of the
General Counsel in the Department of Defense.
Now that is one issue that factually this Committee, I
think, would profitably use its powers to get to the bottom of.
Because one of the things that I was as I describe in the book
is that Mr. Bowman spoke to Mr. Haynes, and from Mr. Haynes he
got a brush-off about these issues.
Now if my account is accurate, and I believe that it is,
Mr. Haynes would, by the time he received Mr. Bowman's account
and expressions of concern, have already have been deeply
involved in this story.
And I think that is one area that this Committee would, I
respectfully suggest, very carefully look at. What, precisely,
was Mr. Haynes' role in the decision on Geneva? When did he
first become aware of the fact that Mr. Al-Qahtani was being
held down at Guantanamo? What did he do when he got that
information, and what conversations did he have with Mr.
Rumsfeld about it?
What meetings did he have and conversations with Mr. Yoo
about the memo of the first of August, 2002? Now this is an
absolutely central point, and I apologize for belaboring it.
The Administration has stood up and has said time after
time the August 1, 2002 memo of Yoo and Bybee had nothing to do
with Administration policies and decisions. That is plain
wrong.
Mr. Haynes went down to Guantanamo at the end of September
2002, he had knowledge of the contents of the opinion written
by Mr. Yoo. And to all intents and purposes, the legal advice
that he claims to have relied on from the staff judge advocate
at Guantanamo was irrelevant because he already knew he had
Department of Justice sign-off.
And frankly, that is what makes, to my mind, the story that
I uncovered the most unhappy story, it is that in the face of
sign-off by Department of Justice of the techniques that were
used on detainee 063, when Mr. Haynes appeared before the
Senate in July 2006, he pointed to Major General Dunleavey and
Lieutenant Colonel Beaver essentially as being responsible for
what had happened.
Those two people have suffered considerable unhappiness as
a result of that. They have been prosecuted, they have been
singled out. Neither was given any warning that their memoranda
were going to be made public.
Diane Beaver's legal advice, which of course normally ought
to have been kept confidential, as all legal advice usually is,
was released without her being given any proper warning. Her
name was left on the legal advice.
It could have been blacked out. There was no need to reveal
publicly that a person who had served honorably in the U.S.
military for many years should be outed in this way.
And these are the kinds of facts that as you will see I
feel rather passionately this Committee can usefully
investigate as a way of setting the account straight and
ensuring that those who truly took the decisions are
responsible, and that honorable individuals associated with the
U.S. military are not tarred with the responsibility which they
should not have.
Mr. Cohen. As my time has expired, further Congressman
asketh not. Thank you. I yield back.
Mr. Nadler. [continuing]. The responsibility gentleman. All
questioning having been concluded, without objection, all
Members will have 5 legislative days to submit to the Chair
additional written questions for the witnesses, which we will
forward and ask the witnesses to respond as promptly at you can
so that their answers may be made part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion into the
record. The Chair wants to take this opportunity particularly
to thank the witnesses.
And with that, this hearing is adjourned.
[Whereupon, at 12:17 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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