[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

                              ----------                              

                              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)

                              ----------                              


                          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.]


































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