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



 
   FROM THE DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: ADMINISTRATION 
        LAWYERS AND ADMINISTRATION INTERROGATION RULES (PART II)

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


                                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

                               __________

                             JUNE 18, 2008

                               __________

                           Serial No. 110-184

                               __________

         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

                              ----------                              

                             JUNE 18, 2008

                                                                   Page

                           OPENING STATEMENT

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     2
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. Daniel Levin, White & Case LLP
  Oral Testimony.................................................     6
  Prepared Statement.............................................     9
Mr. David B. Rivkin, Partner, Baker Hostetler
  Oral Testimony.................................................    11
  Prepared Statement.............................................    12
Colonel Lawrence B. Wilkerson, USA (Retired), Professor, College 
  of William and Mary
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     1


   FROM THE DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: ADMINISTRATION 
        LAWYERS AND ADMINISTRATION INTERROGATION RULES (PART II)

                              ----------                              


                        WEDNESDAY, JUNE 18, 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 2:11 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Davis, Wasserman Schultz, 
Ellison, Conyers, Scott, Watt, Franks, Issa and King.
    Staff Present: David Lachmann, Subcommittee Chief of Staff; 
Elliot Minchberg, Majority Counsel; Sam Sokol, Majority 
Counsel; Caroline Mays, Professional Staff Member; Paul B. 
Taylor, Minority Counsel; and Crystal Jezierski, Minority 
Counsel.
    Mr. Nadler. This hearing will come to order. Without 
objection, the Chair is authorized to declare recess of the 
hearing, which the Chair will endeavor to do only if there are 
votes on the floor.
    We now proceed to Members' opening statements. As has been 
the practice of the Subcommittee, I will recognize the Chairs 
and Ranking Members of the Subcommittees and full Committee to 
make opening statements. In the interest of proceeding to our 
witnesses, and mindful of our busy schedules, I would ask the 
other Members to submit their statements for the record. 
Without objection, all Members will have 5 legislative days to 
submit opening statements for inclusion into the record.
    [The prepared statement of Mr. Cohen follows:]
 Prepared Statement of the Honorable Steve Cohen, a Representative in 
 Congress from the State of Tennessee, and Member, Subcommittee on the 
            Constitution, Civil Rights, and Civil Liberties
    As a lawyer, I am keenly aware of the ethical and professional 
responsibilities that lawyers owe to our clients to advise them and to 
represent their interests zealously. I also know, however, that lawyers 
have a higher obligation to the rule of law, and that lawyers do not 
exist simply as the instruments of their clients' will. Based on some 
of the information that has been coming to light recently, it appears 
that Bush Administration lawyers played a significant role in crafting, 
justifying, and implementing interrogation techniques that may be 
illegal and, in so doing, these lawyers failed in meeting that 
obligation to the rule of law. Sadly, after a year and a half of 
serving on the House Judiciary Committee and participating in numerous 
oversight hearings, I cannot say that I am surprised by these latest 
revelations or by the apparent disrespect for the proper vetting of 
issues and the rule of law evinced by this Administration.

    Mr. Nadler. The Chair now recognizes himself for 5 minutes 
for an opening statement.
    Today the Subcommittee continues its investigation into the 
Administration's interrogation policies, their source, the 
legal justification for those policies, and how they were 
carried out.
    The more we look at this question, the more disturbing the 
facts appear to be. The practices appear to have been more 
widespread and the legal justifications more flimsy than was 
initially reported. Evidence also appears to be mounting that 
officials at the highest levels of the Administration may have 
been directly involved to a far greater extent and far earlier 
in the process in ordering these techniques, which many 
characterize as torture, than had previously been represented 
to Congress and the American people.
    We need to get to the facts. The purpose of these hearings 
is to get those facts. Although one of the witnesses who would 
appear to have direct personal knowledge of these matters, 
Douglas Feith, withdrew from the hearing this morning, we have 
Colonel Wilkerson here, who will be able to provide important 
information and an important perspective on these events and 
the issues they raise from personal knowledge. Mr. Feith will 
appear before this Committee before too much more time has 
elapsed.
    I have endeavored to ensure that we get on the record 
testimony from people with actual knowledge of these matters 
and the perspective and expertise of military people who I 
believe were ill served by political appointees. This is not, 
as some have suggested, a witch hunt or a lynching, high- or 
low-tech. American people have a right to know what their 
Government has done in their name and what it is continuing to 
do. That is why we are here today. We all want America to be 
secure, but our national security and our Nation's values have 
not been well served by what I believe to have been dangerous, 
novel, and illegal policies. I look forward to the testimony of 
our witnesses.
    I yield back the balance of my time.
    Mr. Nadler. I now recognize our distinguished Ranking 
Minority Member, the gentleman from Arizona, Mr. Franks for his 
opening statement.
    Mr. Franks. Thank you, Mr. Chairman.
    Mr. Chairman, the subject of detainee treatment was 
actually the subject of over 60 hearings, markups, and 
briefings during the last Congress in the Armed Services 
Committee alone, of which I am a Member. And I just want to 
reiterate, like I try to every time, that torture is banned by 
various provisions by law, and I agree with that. Torture 
should be banned, including a 2005 Senate amendment prohibiting 
the cruel, inhumane, or degrading treatment of anyone in U.S. 
custody. Incidentally, if you break that law, if the person 
dies, that person that did it is subject to death penalty.
    Severe interrogations by contrast do not involve torture, 
and they are still legal. The fact is if waterboarding is 
torture, then we are torturing our own soldiers in the training 
process.
    Severe interrogation is rarely ever used. CIA Director 
Michael Hayden has confirmed that, despite the incessant 
hysteria in some quarters, the waterboarding technique has only 
been used on three high-level captured terrorists, the very 
worst of the worst. The CIA waterboarded 9/11 mastermind Khalid 
Sheikh Mohammed, Abu Zubaidah, and Abdul Rahim Nashiri for 
approximately 1 minute each. The result of a total of 3 minutes 
of the severe interrogations were of immeasurable benefits to 
the American people. CIA Director Hayden has said that Mohammed 
and Zubaidah provided roughly 25 percent of all of the 
information the CIA had on al Qaeda from human sources. A full 
25 percent of all of the human intelligence we received on al 
Qaeda derived from 3 minutes' worth of rarely used 
interrogation tactics.
    Mr. Chairman, I have done this before, but let's remind 
ourselves what Senator Schumer of New York said at a Judiciary 
Committee hearing on terror policy on June 8, 2004, and it 
should come up on the screen.
    [Video shown: Senator 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 is in the foxhole every day.'']
    Mr. Franks. Mr. Chairman, the fact is I don't know that I 
agree with everything that Mr. Schumer said. We are talking in 
this particular situation about not torture, but severe 
interrogations, and I would take issue with some of the things 
the Senator said. So I think it is very important to somehow 
separate these two kinds of activities.
    After the May 6, 2008, House Constitutional Subcommittee 
hearing, our august Chairman John Conyers, who I respect very 
much, stated, ``Radio silence was the response when today's 
witnesses were asked to identify a single example of a true 
ticking bomb scenario ever occurring.'' And I can only respond 
to that. Certainly we don't know what those ticking bomb 
scenarios--we have not been able to nail those down. But as 
Stewart Taylor said and wrote in the National Journal, ``The 
CIA had reason to believe that unlocking the secrets in Khalid 
Sheikh Mohammed's head might save hundreds of lives and perhaps 
many, many more in the unlikely but then conceivable event that 
al Qaeda was preparing a nuclear or biological attack on a 
major American city. This tough, smart, committed Jihadist was 
not about to betray his cohorts to his hated enemies if 
interrogators stuck to the kid glove interrogation rules 
demanded by human rights groups and, recently, by most 
congressional Democrats.''
    Mr. Chairman, I believe that Mr. Taylor is correct. Al 
Qaeda leader Osama bin Laden has said, ``It is our duty''--this 
is his quote: ``It is our duty to gain access to nuclear 
weapons.''
    For example, at a May 16 Subcommittee hearing, I asked the 
Democrat witness Marjorie Cohn, president of the National 
Lawyers Guild, how she would write a statute defining how 
terrorists should be treated when they refused to provide 
vital, lifesaving information voluntarily. I left it open to 
her. I said: Tell me what it should be. Let's listen to her 
reply.
    ``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.''
    Mr. Chairman, I am suggesting that it might be a little 
more difficult to get al Qaeda terrorists dedicated to the 
destruction of the Western world to like and trust us. I am 
afraid it is a little more complicated than that. I wish it 
weren't. But I would suggest that the statement was indeed 
dangerously naive. And I thank you and the Chairman of the full 
Committee for your indulgence, and I yield back.
    Mr. Nadler. I thank the gentleman.
    I now recognize for 5 minutes for an opening statement the 
Chairman of the full Committee, the Judiciary Committee, the 
gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman Nadler. And to my good 
friend Trent Franks, the Ranking Member of this Subcommittee, 
we have some excellent witnesses to continue the Committee's 
oversight responsibility.
    It is true you have been subjected, Mr. Franks, to almost 
60 hearings somewhere else, but that doesn't do us much good 
here in this Committee. We have got our own individual 
responsibilities. And I am glad you take exception with some of 
Senator Schumer's comments. I do, too. But what difference does 
it make? He is one of the 535 of us. I take exception on 
occasion with your statements; but I am not going to play them 
back and then tell you I don't agree with some of them. And 
Marjorie Cohn, a wonderfully gifted lawyer, I am sorry you 
thought that she was naive.
    But here is what we are trying to do. Here is what I think 
the focus of this very important Committee on the Judiciary is 
about. What we are trying to determine, how clear the legal 
advice intended for the Central Intelligence Agency made its 
way to military interrogators at Guantanamo Bay. Yesterday, and 
I don't have the voiceover of Senator Carl Levin, the Chairman 
of the Armed Services Committee, but he revealed comments by a 
particular CIA attorney at Guantanamo that, according to the 
Justice Department, whether something is torture is, 
``basically subject to perception.''
    This lawyer also stated that, ``If the detainee dies, you 
are doing it wrong.''
    These comments, I think, demonstrate some of the flaws in 
some of the legal opinions in this area, and I am hoping our 
witnesses' reaction to these statements will help bring 
clarification.
    Now, some of our research here has brought to my attention 
the Central Intelligence Agency's network of secret prisons, of 
their own use of beating and what is generally regarded as 
torture. This was not the role of a civilian intelligence 
service in a democratic society, but it seemed to have been 
clearly what the White House wanted the CIA to do. And so I 
have been talking with our friend from California, former 
legislator Tom Hayden, who has raised important questions 
regarding the rendition of subjects to foreign governments and 
the use of torture in foreign detention facilities in 
Afghanistan and in Iraq. And so I would welcome the views the 
distinguished colonel may have on any of these matters now and 
in the future.
    Some reports indicate that have come to my attention when 
questions were raised about the proper legal analysis of these 
interrogation methods, those asking the questions were not 
always given a fair hearing or were even pushed out of the way; 
and these matters brought to my attention raise grave concerns 
about the management of the Department of Justice. And I hope 
perhaps Mr. Levin or others can help us shed light on these 
important and sensitive issues.
    Mr. Issa. Would the Chairman yield for a question?
    Mr. Conyers. I have always yielded to you.
    Mr. Nadler. Without objection, the Chairman will have an 
additional minute.
    Mr. Issa. For a colloquy, thank you.
    Mr. Chairman, as you know, the Administration has now 
admitted that tapes which would allow us to know more in detail 
about these extreme interrogation techniques were destroyed, 
and destroyed by the orders of a relatively small group within 
the CIA. Does the Chairman intend to, through Committee or 
Subcommittee, hold hearings or pursue an investigation within 
our jurisdiction on that subject since, to a certain extent, we 
are arguing about whether or not you know torture when you see 
it, and we have been denied the ability to see it?
    Mr. Conyers. I am interested in that. I share your concern. 
The Intelligence Committee has a similar interest. And, as a 
matter of fact, you are on the Intelligence Committee.
    Mr. Issa. I am, Mr. Chairman. But I do think in this case 
the destruction of material that would have been probative as 
to whether or not torture occurred is well within the 
jurisdiction of this Committee. It is no longer a secret once 
you know they destroyed it.
    Mr. Conyers. Thank you very much. I think that is something 
that we should take under consideration.
    Mr. Issa. Thank you, Mr. Chairman. And thank you for the 
additional time.
    Mr. Nadler. Thank you.
    I want to welcome our distinguished panel of witnesses 
today, and I will introduce them.
    Daniel Levin is a partner at the firm of White & Case. He 
served with the National Security Council as the senior 
associate counsel to the President and legal adviser from 
February to October 2005. He had previously served at the 
National Security Council from 1988 to 1990. He has had a long 
career with the Department of Justice, serving as the Acting 
Assistant Attorney General in the Office of Legal Counsel from 
2004 to 2005. Prior to that, he served as counsel to the 
Attorney General and as Chief of Staff to Attorney General 
William Barr from 1991 to 1993. He is a graduate of Harvard 
College and University of Chicago Law School.
    David Rivkin is no stranger to the Committee. Mr. Rivkin is 
a partner with the law firm of Baker Hostetler. In the 
administration of the first President Bush, he was Associate 
Executive Director 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. He also 
served as the Special Assistant for Domestic Policy to then-
Vice President Dan Quayle. He holds a J.D. from Columbia School 
of Law, a BSFS and M.A. in Soviet Affairs from Georgetown 
University.
    Colonel Lawrence Wilkerson is the visiting Pamela C. 
Harriman Professor of Government and Public Policy at the 
College of William and Mary, and professorial lecturer in the 
university honors program at George Washington University. 
Colonel Wilkerson served as Chief of Staff to Secretary of 
State Colin Powell from 2002 to 2005, and prior to that he 
served for 31 years in the United States Army from 1966 to 
1997.
    We also expected to have with us today former Under 
Secretary of Defense Douglas Feith. Mr. Feith has important 
information about the approval of harsh interrogation policies 
for the U.S. military. He reportedly, along with Defense 
Department General Counsel Jim Haynes, recommended that 
Secretary Rumsfeld approve such techniques in November 2002. 
Mr. Feith has never explained that decision, and it is 
important to hear from him on this subject.
    Despite his prior commitment to testify, this morning Mr. 
Feith informed the Committee through his counsel that he would 
not appear today because he is not willing to appear alongside 
one of our other witnesses. Needless to say, it is an 
extraordinary disappointment for this witness not to come here 
and to go back on his promise to the Committee to appear today. 
Individuals often must appear before congressional Committees 
alongside witnesses that they disagree with. Such concerns are 
no reason to decline to appear when you have said you will. We 
will reschedule a hearing which Mr. Feith will appear so that 
we can elucidate his testimony on this issue.
    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.
    [Witnesses sworn.]
    Mr. Nadler. Without objection, your written statements will 
be made part of the record in their entirety.
    We would ask each of you to summarize your testimony in 5 
minutes. To help you keep time, there is a timing light at your 
table. When 1 minute remains, the light will switch from green 
to yellow, and then to red when the 5 minutes are up.
    I will now recognize first Mr. Levin.

          TESTIMONY OF DANIEL LEVIN, WHITE & CASE LLP

    Mr. Levin. Thank you, Mr. Chairman. Thank you for inviting 
me to testify today. As you can tell, since leaving Government 
since 2005, I have avoided making any public statements on 
these matters; and, to be perfectly honest with you, I would 
rather keep that record intact. But I do believe that a public 
discussion and debate of the legal issues involved and the 
process by which legal opinions were issued and relied upon is 
important, and I will do my best to answer your questions 
within the limits of what the Justice Department has authorized 
me to talk about. I will avoid any substantive discussion in 
the opening remarks, but I would like to make briefly a couple 
of general points.
    First, in my view, the legal issues we are going to 
discuss, in addition to being very important, are also 
extremely difficult. Issues involving core Presidential powers 
and the interplay between the President and Congress are among 
the most difficult I have ever tried to analyze. And although 
there have been some significant decisions by the Supreme Court 
in recent years, and indeed in recent days, at the time many of 
these issues were being addressed following the events of 9/11, 
there was very little case law to guide the analysis.
    Arguments from the Framers' writings or historical practice 
are frequently murky at best. The stakes are high. You are 
often told that lives, and perhaps many, many lives, are at 
stake. And classification concerns often limit whom you can 
consult. And I will have a little more to say about that in a 
minute.
    In short, they are just plain hard questions. And I think 
the debate would benefit, frankly, if people on both sides 
acknowledged that fact and also perhaps showed a little more 
humility in stating their opinions. Lawyers who say the answers 
to these questions are either obviously yes or clearly no are 
either a lot smarter than I am or oversimplifying things.
    And I will start that process. I tried my very best to 
answer these questions correctly, but I will be the first to 
say that I may have gotten it wrong. And I will have more to 
say about the consequences of that if I did make mistakes at 
the end.
    Second, in discussing these legal issues, we need to be 
very precise about what question is being asked. To take an 
obvious example, if the question is, is a certain technique 
torture, you first need to define exactly what the technique 
is. And I expect we may get into this more, but many words that 
are used to describe techniques do not have precise 
definitions, and they may, in fact, cover a wide range of 
conduct.
    Just as a simple example, sleep deprivation can obviously 
vary significantly in duration. It can also vary significantly 
in how you keep the person awake. And those differences may 
very well affect the legal analysis. And the same is true of 
waterboarding, which is a term that is used to cover to a very 
wide range of conduct that may have significant differences in 
legal analysis.
    It is also important, frankly, to be precise about what you 
mean by torture. There is a definition under U.S. law where 
Congress has defined the term, although using words that I 
believe are very hard to apply. There is a different 
definition, or, more accurately, definitions, under 
international law, the Convention against Torture being perhaps 
the most prominent. The definitions under U.S. law and under 
the Convention differ in significant respects, particularly 
when it comes to the nonphysical forms of torture.
    There is also the colloquial use of the term, which I 
believe differs from all these definitions.
    And let me apologize for any disruption my daughter causes, 
but I wanted to bring her along.
    And there are the Geneva Conventions, which use different 
terms in addition to torture, but which certainly prohibit 
torture and much more.
    This emphasis on precision in the terms and the questions 
asked may sound overly lawyerly, and I suppose in some sense it 
is, but we are talking here about legal questions that were 
being analyzed by lawyers getting legal advice. And I think 
that raises one of the most important issues in this area. I 
think it is critical to remember that the legal analysis should 
begin and not end the discussion of whether to do something. If 
something is illegal, then obviously it is not an option; you 
simply can't do it. But if it is legal, then it is only that, 
an option. And there should be a policy discussion about 
whether it is a good idea.
    Philip Zelazo gave an interesting talk about this, and I 
agree with him that in this area in particular, too often the 
legal analysis replaces the policy analysis, and the question 
tended to become simply: Is it legal? And, if so, we will do 
it.
    I think it may have been understandable in the immediate 
aftermath of 9/11, but as time went on, it became increasingly 
clear that many of the steps we were taking, even if legal, had 
significant costs, and costs which might well outweigh any 
benefits we were receiving. And this is just my personal view, 
but I think that we in the Government were sometimes too slow 
to recognize and adjust our policies accordingly.
    Focusing on the legal analysis, I think there is a valuable 
process lesson to be learned from our experience in this area. 
The opinions I worked on benefited enormously from comments 
from other parts of the Justice Department and the Government. 
And, in particular, the opinion I wrote at the end of 2004 
benefited from detailed comments from lawyers at the State 
Department and the Criminal Division of Justice, although it 
certainly bears repeating that any mistakes in that opinion are 
entirely my responsibility.
    There is an incredible wealth of legal talent around the 
Government, and I believe it is a huge mistake not to take 
advantage of it. You won't always agree with what other lawyers 
have to say, but you almost always benefit from hearing it.
    I don't know why, but my understanding is that some of the 
earlier opinions were very tightly held and were not circulated 
for comments. I don't think that was justified by any 
legitimate concerns about classification or leaks. Rather, I 
think it was a mistake; the opinions would have benefited from 
broader review, and I think we paid some price for that not 
having taken place.
    I would like to make two final points. First, there has 
been reporting about certain steps I may have taken in working 
on opinions in this area, and some people have said some very 
flattering things; some have said not so flattering things as 
well. I am not authorized to discuss that matter, but I can say 
that while it is always nice to have nice things said about 
you, they are completely undeserved. And I don't say that out 
of any false sense of modesty, but the simple fact is I did 
nothing that thousands and thousands of members of our military 
had not done during training. I simply took the steps that I 
felt I needed to take in order to do the work that I was 
privileged to be assigned, and I deserve no particular credit 
for that.
    Finally, many people both at OLC and elsewhere in the 
Government contributed to the opinions I wrote. I will not name 
them because I do not want them dragged into the public 
discussion, but they know who they are, and I am eternally 
grateful to them. Anything useful in the opinions is almost 
certainly attributable to them.
    That said, I alone am responsible for any errors and any 
opinions issued while I was in charge of OLC. I did my best to 
answer the questions correctly, and I hope I succeeded. But to 
the extent there are errors in them, I am the person, and the 
only person, who is responsible for that. And in particular, if 
anyone in the Government acts on the basis of any legal advice 
I gave, and that advice turns out to be mistaken, I am the one 
who should be held accountable, not some agent or officer or 
soldier acting in good-faith reliance on that advice. When 
someone in the Government does the right thing by seeking legal 
advice, they should not be punished if the advice turned out to 
be mistaken. It is an incredible privilege to be asked to work 
on these issues as a lawyer for the Government. We who have 
been privileged to serve as Government lawyers are responsible 
for the advice we give, and I unconditionally and absolutely 
accept that responsibility.
    I would be happy to try to answer any questions you have, 
but if I could just add one point. As a witness sitting here in 
a hearing like this, I feel I have some obligation to say 
something about this. And I am very limited in what I think I 
can say; but if the Subcommittee has been informed that there 
was a total of 3 minutes of waterboarding, I would suggest the 
Subcommittee should go back and get that clarified because 
that, I don't believe, is an accurate statement.
    Mr. Nadler. I thank you very much for your testimony.
    [The prepared statement of Mr. Levin follows:]
                   Prepared Statement of Daniel Levin
Mr. Chairman and members of the Committee:

    Thank you for inviting me to testify today. Since leaving 
government in 2005, I have avoided making any public statements on 
these matters. But I do believe that a public discussion and debate of 
the legal issues involved--and of the process by which legal opinions 
were issued and relied upon--is important. And I will do my best to 
answer your questions within the limits of what the Justice Department 
has authorized me to talk about.
    I will avoid any substantive discussion of the issues in these 
opening remarks, but I would like to briefly make a couple of general 
points.
    First, the legal issues we are going to discuss--in addition to 
being very important--are, in my view, also extremely difficult. Issues 
involving core presidential powers and the interplay between the 
President and Congress are among the most difficult I have ever tried 
to analyze. Although there have been significant decisions by the 
Supreme Court in recent years--and days--at the time many of these 
issues were being addressed following the horrific events of September 
11, 2001, there was very little case law to guide the analysis. 
Arguments from the Framers' writings or historical practice are 
frequently murky at best. The stakes are high: you are often told that 
lives, and perhaps many lives, are at stake. And classification 
concerns often limit whom you can consult--a topic I'll address a 
little more in a moment. In short, they are just plain hard questions. 
And I think the debate would benefit if people on both sides 
acknowledged that fact and also perhaps showed a little more humility 
in stating their opinions. Lawyers who say the answers to some of these 
questions are obviously yes or clearly no are either a lot smarter than 
me or are oversimplifying things. And let me start that process--I 
tried my very best to answer these questions correctly, but I will be 
the first to say I may have gotten it wrong. And I'll have a little 
more to say about the consequences of that at the end of these remarks.
    Second, in discussing these legal issues we need to be very precise 
about what question is being asked. To take an obvious example, if the 
question is ``Is a certain technique torture,'' you first need to 
define exactly what the technique is. I expect we'll get into this 
some, but many words that are used to describe techniques do not have 
precise definitions and may cover a wide range of conduct. For example, 
sleep deprivation can vary significantly in duration. It can also vary 
significantly in how a person is kept awake. Those differences may well 
affect the legal analysis. The same is true for ``waterboarding''--it 
has been used to cover a very wide range of practices that may require 
differences in analysis.
    And it is also important to be precise about what you mean by 
``torture.'' There is a definition under U.S. law, where Congress has 
defined the term, although using words that I believe are very hard to 
apply--something I assume we will get to during the questioning. There 
is a different definition, or more accurately definitions, under 
international law--the Convention Against Torture being perhaps the 
most prominent. The definitions under U.S. law and under the Convention 
differ in significant respects when it comes to non-physical forms of 
torture. There is also the colloquial use of the term, which I believe 
differs from all of these definitions. And there are the Geneva 
Conventions, which use different terms but which certainly prohibit 
torture and much more.
    This emphasis on precision in the terms used and questions asked 
may sound overly lawyerly--and I suppose in some sense it is. But we 
are talking here about legal questions that were being analyzed by 
lawyers giving legal advice. And I think that raises one of the most 
important issues in this area.
    I think it is critical to remember that the legal analysis should 
begin, not end, the discussion of whether to do something. If something 
is illegal, than obviously it is not an option. However, if it is legal 
than it is only that--an option--and there should be a policy 
discussion about whether it is a good idea. Philip Zelikow gave an 
interesting talk about this and I agree with him that in this area in 
particular too often the legal analysis replaced the policy analysis. 
The question tended to become simply is it legal and if so we'll do it. 
I think that may have been understandable in the immediate aftermath of 
9/11. But as time went on it became increasingly clear that many of the 
steps we were taking--even if legal--had significant costs, costs which 
might well outweigh any benefits we were receiving. This is just my 
personal view, but I think we were too slow to recognize some of those 
costs and adjust some of our policies accordingly.
    Focusing on the legal analysis, I think there is a valuable process 
lesson to be learned from our experience in this area. The opinions I 
worked on benefitted enormously from comments from other parts of the 
Justice Department and the government. In particular, the opinion I 
wrote at the end of 2004 benefitted from detailed comments from lawyers 
at the State Department and the Criminal Division in Justice, although 
it bears repeating that any mistakes in that opinion are entirely my 
responsibility. There is an incredible wealth of legal talent around 
the government and I believe it is a mistake not to take advantage of 
it. You won't always agree with what other lawyers may have to say, but 
you almost always benefit from hearing it. I do not know why, but my 
understanding is that some of the earlier opinions were very tightly 
held and were not circulated for comments. I do not think that was 
justified by any legitimate concerns about classification or leaks. 
Rather, I think that was a mistake and that the opinions would have 
benefited from broader review.
    Let me make two final points.
    First, there has been reporting about certain steps I may have 
taken in working on opinions in this area. And some people have said 
some very flattering things about me. I am not authorized to discuss 
that matter. But I can say that while it is always nice to have such 
things said about you they are completely undeserved. I don't say that 
out of any sense of false modesty--the simple fact is that I did 
nothing that thousands and thousands of members of our military have 
not done during training. I simply took the steps I felt I needed to 
take in order to do the work I was privileged to be assigned and I 
deserve no special credit for that.
    Finally, many, many people both at OLC and elsewhere in the 
government contributed to the opinions I wrote. I will not name them 
because I don't want them dragged into the public discussion but they 
know who they are and I am eternally grateful to them. Anything useful 
in those opinions is almost certainly attributable to them. That said, 
I alone am responsible for any errors in any opinions issued while I 
was in charge of OLC. I did my best to answer questions correctly--and 
hope I succeeded--but to the extent there are any errors I am the 
person--and the only person--responsible for them. And in particular, 
if anyone in the government acted on the basis of any legal advice I 
gave, and that advice turns out to be mistaken, I am the one who should 
be held accountable, not some agent or officer or soldier acting in 
good faith reliance on that advice. When someone in the government does 
the right thing by seeking legal advice, they should not then be 
punished if the advice turns out to be mistaken. It is an incredible 
privilege to be asked to work on these issues as a lawyer for the U.S. 
Government. We who have been privileged to serve as government lawyers 
are responsible for the advice we give, and I unconditionally and 
absolutely accept that responsibility.
    I would be happy to try to answer any questions you may have.

    Mr. Nadler. I now recognize Mr. Rivkin for 5 minutes.

                 TESTIMONY OF DAVID B. RIVKIN, 
                    PARTNER, BAKER HOSTETLER

    Mr. Rivkin. Chairman Nadler, Chairman Conyers, Ranking 
Member Franks, Members of the Subcommittee, it is my pleasure 
to appear before you again to continue the dialogue about these 
very important issues.
    I realize, of course, both from these hearings and other 
settings, but a number of Administration's legal positions have 
become publicly known have drawn considerable criticisms, and 
that is not surprising, to state the obvious. The question that 
Administration lawyers have sought to address, particularly 
issues dealing with procedures for interrogating captured enemy 
combatants, are uncomfortable ones. They certainly don't sit 
well with us or most people who have 21st century 
sensibilities. Many of the legal conclusions that have been 
reached strike people, many people, as being excessively harsh. 
I should point out, of course, that some of these conclusions 
have been watered down, and as a result of internal debates and 
various pressures have been brought to bear upon the 
Administration.
    But the important thing I want to emphasize, at least 
speaking for myself, is while I would not defend each and every 
aspect of the Administration's post-September 11 wartime 
policies, and with all due regard, and I agree entirely with my 
good friend Dan Levin, I would in general vigorously defend the 
overall exercise of asking difficult questions and trying to 
work through them. And I think it would be regrettable if the 
very exercise of asking these questions gets stigmatized.
    I am not surprised by evidence of vigorous internal 
debates. I have had the privilege of working approximately 9 
years in the Government, and dealt with issues, frankly 
speaking, that were a lot less contentious and less momentous 
than the ones that have arisen since 9/11. And I can tell you, 
on these issues you always had vigorous debate. And I think 
that, at least in my view, and based upon everything I have 
heard and seen and read, the people involved on all sides of 
those debates are people in all good faith, they are all 
patriots. I certainly would not want to impugn the integrity of 
either side and suggest that there were villains or angels in 
the debate.
    To me, the fact that this debate was undertaken at all and 
was done in such a thorough fashion with lots of ebbs and flows 
over a period of years attests to the vigor and strength of our 
democracy and the Administration's commitment to a rule of law 
even under the most serious of circumstances. I know I have 
made this point before, but I want to make it again. I don't 
know many examples of even the most democratic of our allies 
who have ever engaged in such a probing and searching legal 
exercise in wartime. And I certainly strongly defend the 
overarching legal framework chosen by the Administration of 
which the interrogation procedures are but a subset. In fact, I 
believe that many criticisms that seem to dwell on the 
interrogation-related issues really amount to the rejection of 
a legal framework rooted in laws of war that the Administration 
has chosen.
    And I think that behind the inquiry the Administration has 
undertaken lies a very stark fact. In this war on terror, the 
Administration, the U.S., has an obligation not only to defeat 
enemy forces; it must anticipate and prevent deliberate attacks 
on its civilian populations, which is al Qaeda's preferred 
target. And I think we all agree that obtaining intelligence is 
both vital and difficult in this war.
    I think despite some arguments to the contrary, there is 
ample evidence that the conventional interrogation techniques 
have not produced desired results in part--some of the reasons 
that Ranking Member Franks used--in part because of an 
inability of our interrogators to use sufficient pressure 
points being sufficiently in tune to some of the cultural and 
other traditions of the people involved. But I don't think 
anybody can seriously argue that harsh interrogation was used 
as a matter of carelessness or designed to have shortcuts.
    I think that the conventional interrogation techniques have 
not worked. I know this is a matter that is being contested. It 
certainly was contested in the last hearing I attended as to 
whether or not the harsh techniques have produced good answers. 
But I think it is a copout, because if it didn't, there would 
be really nothing to debate.
    Let me stop here and say I look forward to your questions. 
Thank you.
    Mr. Nadler. I thank you.
    [The prepared statement of Mr. Rivkin follows:]
               Prepared Statement of David B. Rivkin, Jr.
    Lynching lawyers, as Shakespeare once suggested, has never appealed 
much to the legal profession itself--literally or figuratively. But an 
exception apparently will be made for a group of attorneys who advised 
President Bush and his national security staff in the aftermath of 9/
11. They've been subject to an increasingly determined campaign of 
public obloquy by law professors, activist lawyers and pundits.
    Their legal competence and ethics have been questioned. Suggestions 
have even been made that they can and should be held criminally 
responsible for ``war crimes,'' because their legal advice supposedly 
led to detainee abuses at Abu Ghraib and elsewhere.
    The targets of this witch hunt include some of the country's finest 
legal minds--such as law Prof. John Yoo of the University of California 
at Berkeley, Judge Jay Bybee of the Ninth Circuit Court of Appeals, and 
William J. (Jim) Haynes II, former Pentagon general counsel. Others 
frequently mentioned include former White House Counsel Harriet Miers, 
former Attorney General Alberto Gonzales, and former Undersecretary of 
Defense Douglas Feith.
    Many positions taken by these attorneys, laying the fundamental 
legal architecture of the war on terror, outrage international 
activists and legal specialists. Nevertheless, in a series of cases 
beginning with Hamdi v. Rumsfeld (2004), the U.S. Supreme Court has 
upheld many of their key positions: that the country is engaged in an 
armed conflict; that captured enemy combatants can be detained without 
criminal trial during these hostilities; and that (when the time comes) 
they may be punished through the military, rather than the civilian, 
justice system.
    The Court has also required that detainees be given an 
administrative hearing to challenge their enemy-combatant 
classification, ruled that Congress (not the president alone) must 
establish any military commission system, and made clear that it will 
in the future exercise some level of judicial scrutiny over the 
treatment of detainees held at Guantanamo Bay--although the extent of 
this role is still being litigated. Overall, the administration has won 
the critical points necessary to continue the war against al Qaeda.
    Most controversial, of course, was the Bush administration's 
insistence that the Geneva Conventions have limited, if any, 
application to al Qaeda and its allies (who themselves reject the 
``Western'' concepts behind those treaties); and the administration's 
authorization of aggressive interrogation methods, including, in at 
least three cases, waterboarding or simulated drowning.
    Several legal memoranda, particularly 2002 and 2003 opinions 
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, explore the limits 
imposed on the United States by statute, treaties, and customary 
international law. The goal clearly was to find a legal means to give 
U.S. interrogators the maximum flexibility, while defining the point at 
which lawful interrogation ended and unlawful torture began.
    I realize that a number of the Administration's legal positions, as 
they become publicly known, whether as a result of leaks to the media 
or the declassification of the relevant legal documents, have attracted 
considerable criticism. The questions that the Administration's lawyers 
have sought to address, particularly those dealing with the 
interrogation of captured enemy combatants, are uncomfortable ones that 
do not sit well with our 21st Century sensibilities. Many of the legal 
conclusions reached have struck critics as being excessively harsh. 
Some have since been watered down as a result of internal debates and 
political and public pressure brought to bear upon the Administration.
    Though I would not defend each and every aspect of the 
Administration's post-September 11 wartime policies, I would vigorously 
defend the overall exercise of asking difficult legal questions and 
trying to work through them. To me, the fact that this exercise was 
undertaken so thoroughly attests to the vigor and strength of our 
democracy and of the Administration's commitment to the rule of law, 
even in the most serious of circumstances. In this regard, I point out 
that few of our democratic allies have ever engaged in so probing and 
searching a legal exegesis in wartime. I also strongly defend the 
overarching legal framework chosen by the Administration. I believe 
that it is the critics' rejection of this overall legal framework that 
underlies most of their criticisms of the Administration's specific 
legal decisions.
    Behind this inquiry is a stark fact. In this war on terror, the 
U.S. must not only attack and defeat enemy forces. It must also 
anticipate and prevent their deliberate attacks on its civilian 
population--al Qaeda's preferred target. International law gives the 
civilian population an indisputable right to that protection.
    Lawyers can and do disagree over the administration's conclusions. 
However, it's now being claimed that the administration's legal 
advisers can be held responsible for detainee abuses.
    This is madness. The lawyers were not in any chain of command, and 
had no theoretical or practical authority to direct the actions of 
anyone who engaged in abusive conduct. Those who mouth this argument 
are engaged in a kind of free association which, if applied across the 
board, would make legal counsel infinitely culpable.
    In truth, the critics' fundamental complaint is that the Bush 
administration's lawyers measured international law against the U.S. 
Constitution and domestic statutes. They interpreted the Geneva 
Conventions, the U.N. Convention forbidding torture, and customary 
international law, in ways that were often at odds with the prevailing 
view of international law professors and various activist groups. In 
doing so, however, they did no more than assert the right of this 
nation--as is the right of any sovereign nation--to interpret its own 
international obligations. But that right is exactly what is denied by 
many international lawyers inside and outside the academy.
    To the extent that international law can be made, it is made 
through actual state practice--whether in the form of custom, or in the 
manner states implement treaty obligations. In the areas relevant to 
the war on terror, there is precious little state practice against the 
U.S. position, but a very great deal of academic orthodoxy.
    For more than 40 years, as part of the post World War II 
decolonization process, a legal orthodoxy has arisen that supports 
limiting the ability of nations to use robust armed force against 
irregular or guerilla fighters. It has also attempted to privilege such 
guerillas with the rights traditionally reserved to sovereign states. 
The U.S. has always been skeptical of these notions, and at critical 
points has flatly refused to be bound by these new rules. Most 
especially, it refused to join the 1977 Protocol I Additional to the 
Geneva Conventions, involving the treatment of guerillas, from which 
many of the ``norms'' the U.S. has supposedly violated, are drawn.
    The Bush administration acted on this skepticism--insisting on the 
right of a sovereign nation to determine for itself what international 
law means. This is at bottom the sin for which its legal advisers will 
never be forgiven. To the extent they can be punished--or at least 
harassed--perhaps their successors in government office will be 
deterred from again challenging the prevailing view, even at the cost 
of the national interest.
    That is why these administration attorneys have become the 
particular subjects of attack.
    I look forward to your questions.

    Mr. Nadler. The Chair now recognizes Colonel Wilkerson for 
5 minutes.

  TESTIMONY OF COLONEL LAWRENCE B. WILKERSON, USA (RETIRED), 
             PROFESSOR, COLLEGE OF WILLIAM AND MARY

    Colonel Wilkerson. Thank you, Chairman Nadler, Ranking 
Member Franks, Members of the Subcommittee. Thank you for the 
opportunity to be here to talk on these important matters 
today.
    From the outset, let me say I am not a lawyer; I am a 
soldier and a citizen and an academic specializing in national 
security affairs, and particularly in national security 
decisionmaking since Harry Truman saw fit to sign the 1947 
National Security Act. As I was also serving after my 31 years 
in the military at the State Department, I was a sometime 
diplomat, I guess, although sometimes I think I actually did 
more diplomacy as a member of the Department of Defense than I 
did at the State Department.
    As I was serving in the latter capacity at the State 
Department as Chief of Staff, in April 2004, Colin Powell came 
through the door that adjoined our offices, and I knew by the 
look on his face that he had a serious matter, and I had better 
just be quiet and listen to him. And he indeed began to speak, 
and he said something like this:
    There is going to be a news story about prisoner abuse at a 
facility in Iraq. There will be very damaging photographs, some 
of which will be published. I have put Will Taft--William H. 
Taft, IV, himself a former Deputy Secretary of Defense, was 
Powell's legal adviser. I put Will Taft on the legal aspects of 
this, and I want you to work the other aspects, how we got to 
where we are, who did what to whom, a time line, if you will, 
and any other relevant facts that you come up with. I want you 
to work very closely with Will, and quickly.
    From that moment until sometime in the early fall, I 
labored to put together a dossier really of classified, 
sensitive, and open-source information that would help me and 
the Secretary of State understand how Abu Ghraib happened. Now, 
let me tell you that this was a particularly important thing, I 
think, for both Secretary Powell and myself, because, as you 
know, we both were/are soldiers. We are both veterans of the 
conflict in Vietnam. We are both students of military history. 
We both know how soldiers go astray in the heat of battle with 
buddies falling all around them, particularly in wars and 
conflicts that seem to have no end, no light at the end of the 
tunnel for the soldier or the marine.
    In Vietnam, as a first lieutenant and a captain of 
infantry, on several occasions I had to restrain my soldiers, 
even one or two of my officers. When higher authorities took 
such actions as declaring free-fire zones--that is a zone in 
which you can engage and kill anything--oftentimes it would be 
difficult to decide what to do. For example, if you encountered 
a 12-year-old girl walking down the lane in the jungle, as I 
did once, you are going to break the rules; you are not going 
to shoot her.
    In all cases, I always had to set the example. I had to 
personally either break the rules, as I just demonstrated in 
the free-fire zone, or, more often, follow the rules. I had to 
follow the rules also that had been ingrained by my parents, by 
my schools, by my church, and by the United States Army in 
classes about the Geneva Convention and what we call the law of 
land warfare.
    I had been taught, and I firmly believed when I took the 
oath of an officer, to support and defend the Constitution, 
that American soldiers were different, and that much of their 
fighting strength and spirit came from that difference, and 
that much of that difference was wrapped up in our humaneness 
and our respect for the rights of all. So, Mr. Chairman, when I 
saw the first photographs from the prison at Abu Ghraib, I had 
two immediate reactions. First, I knew such things could 
happen. Second, I knew such things were wrong, and I knew that 
they represented a failure of leadership. What I didn't know 
was at what level that leadership failed. So I set out to find 
the answer, and I think I did.
    Secretary Powell and I also knew what extreme danger to 
America's real power in the world could be done by such a 
failure. America, as you well know, is an idea as much as it is 
concrete buildings, sweeping prairies, stock markets, and land 
from one ocean to another. Infect that idea, corrode that idea, 
tarnish that idea, and you don't just diminish perceived power, 
you diminish our real power. You, in fact, do the terrorists' 
job for them.
    So we knew that this was a serious issue, perhaps one of 
the most serious issues our Nation would face in the opening 
days of this new century. We hoped--as Secretary Powell said 
over and over again as he went out the C Street entrance with 
foreign minister after foreign minister, and the first 
questions asked him were not about the foreign minister's 
country, but about torture and abuse--we hoped that, as 
Secretary Powell said, we would air our dirty laundry, so to 
speak; the world would see a democracy work; there would be 
accountability.
    In my prepared statement, which you have and I ask that you 
make a part of the record, I have summarized what I found about 
that failure of leadership and other items that might be of 
interest to you, and I would be pleased to answer any questions 
about that statement. Thank you.
    Mr. Nadler. Thank you very much.
    [The prepared statement of Colonel Wilkerson follows:]
             Prepared Statement of Lawrence B. Wilkerson\1\
---------------------------------------------------------------------------
    \1\ Col. Lawrence B. Wilkerson, USA (ret.), is the Visiting Pamela 
C. Harriman Professor of Government and Public Policy at the College of 
William and Mary and Professorial Lecturer in the University Honors 
Program at the George Washington University. Col. Wilkerson served as 
Chief of Staff to Secretary of State Colin Powell from 2002-2005. In 
addition, he served 31 years in the U.S. Army, from 1966 to 1997.
---------------------------------------------------------------------------
    Chairman Nadler, Ranking Minority Member Franks, members of the 
subcommittee, thank you for giving me the opportunity to testify with 
regard to what I know and strongly suspect about administration 
principals, lawyers, interrogation rules, and the abuse of detainees by 
U.S. personnel in the so-called Global War on Terror (GWOT), 
particularly during the period 2002-2005.
    From the outset, let me say that I am not a lawyer nor do I make 
any pretense to interpret the law as a lawyer might. I am a soldier and 
a citizen, an academic specializing in national security affairs--
particularly national security decision-making, and a four-year 
diplomat with the U.S. Department of State, having served on its policy 
planning staff and as its chief of staff.
    As I was serving in that latter capacity, in April 2004, Secretary 
of State Colin Powell came through the adjoining door to our offices on 
the 7th floor of the Harry S Truman building and startled me with words 
to the effect of:
    There is going to be a news story about prisoner abuse at a 
facility in Iraq. There will be very damaging photographs, some of 
which will be published. I've put Will Taft [Legal Advisor to the 
Secretary of State] on the legal aspects of this and I want you to work 
the other aspects--how we got to where we are, who did what to whom, a 
timeline--a chronology--and any other relevant facts you come up with. 
It's important you do this as quickly as possible and that you work 
closely with Will.
    From that moment to some time in the early fall, I labored to put 
together a dossier of classified, sensitive, and open source 
information that would help me and the Secretary understand how Abu 
Ghraib happened.
    Almost immediately, I opened a channel to Admiral Church in the 
Pentagon because the Secretary alerted me to an effort by his fellow 
cabinet official, Donald Rumsfeld, also to get to the bottom of this 
issue and Admiral Church had been appointed to head that effort. I must 
say that after that initial telephone conversation with the Admiral and 
an agreement to exchange any information that we each developed, I 
never heard from him or any of his people again. I did ensure that 
whatever relevant documents I found at the State Department were sent 
to the Defense Department, and Will Taft did the same. I never received 
a single document in return. The Defense Department documents I did 
manage to get my hands on I had to scrounge.
    I also discovered--as I had many other times in my then 34-year 
career in government--that open source material afforded me a more 
complete picture of what had happened than classified material. I 
learned that people such as Jane Mayer at The New Yorker Magazine, Tim 
Golden at the New York Times, and a host of others had done yeoman 
service for the American people through some of the best investigative 
journalism I have encountered. It was through Mr. Golden's research and 
writings, for example, that I learned that one of the first prison 
homicides had occurred--and its investigation slowed and obscured at 
numerous intervals and levels of command of the U.S. Army--in 
Afghanistan as early as December 2002. That homicide has been 
thoroughly examined in an award-winning documentary by Alex Gibney, 
entitled ``Taxi to the Dark Side.''
    Mr. Chairman, let me back up for a moment and tell you why this was 
a particularly important effort for me and I believe for Secretary 
Powell as well. Clearly, we were--we are--both soldiers. Moreover, we 
are both veterans of the war in Vietnam and we are both students of 
military history. We both know how soldiers go astray in the heat of 
battle, with buddies being killed and wounded all around--particularly 
in wars that seem to have no end, no light at the end of the tunnel.
    In Vietnam, as a first lieutenant and a captain of Infantry, on 
several occasions I had to restrain my soldiers, even one or two of my 
officers. When higher authorities took such actions as declaring free 
fire zones--meaning that anything that moved in that zone could be 
killed--and you came upon a 12-year old girl on a jungle path in that 
zone, it was clear you were not going to follow orders. But some 
situations were not so black and white and you had to be always on 
guard against your soldiers slipping over the edge. As their leader, it 
was incumbent upon me to set the example--and that meant sometimes 
reprimanding or punishing a soldier who broke the rules. In all cases, 
it meant that I personally followed the rules and not just by 
``breaking'' the so-called rules of engagement, as in the designated 
free fire zone, but by following the rules that had been ingrained in 
me by my parents, by my schools, by my church, and by the U.S. Army in 
classes about the Geneva Conventions and what we called the law of land 
warfare. I had been taught and I firmly believed when I took the oath 
of an officer and swore to support and defend the Constitution, that 
American soldiers were different and that much of their fighting 
strength and spirit came from that difference and that much of that 
difference was wrapped up in our humaneness and our respect for the 
rights of all.
    So, Mr. Chairman, when I saw the first photographs from the prison 
at Abu Ghraib, I had two immediate reactions. First, I knew such things 
could happen. Second, I knew such things were wrong and I knew that 
leadership had failed. What I did not know, was on what level that 
leadership had failed. So I set out to find the answer.
    In the months that followed, right up to the election in November 
2004, I collected documents like a pack rat. I had several stacks in 
the corner of my office almost five-feet tall, and I had classified 
documents crammed into my safe. I also listened to every one who would 
talk to me, from throughout the government and elsewhere.
    I had an open door policy at State. I was in my office by 5:30 or 
6AM every morning and rarely left before 8 or 9PM in the evening. I was 
there on weekends. Under secretaries, assistant secretaries, 
ambassadors, office directors, members of the policy planning staff, 
foreign service officers, civil service officers, military men and 
women, Iraqis, Afghans, and a host of others flocked to my office to 
tell me their complaints or give me their counsel. I had built up quite 
an extensive network. The Secretary had asked me to guard his rear and 
his flanks and I knew that such a network was one of the best ways to 
do that.
    As you may surmise, Mr. Chairman, people were attracted to my 
office also because of their knowledge that when they spoke with me, 
their concerns had a reasonable chance of reaching the Secretary.
    Moreover, when I left government in January 2005, I became 
immediately involved in lecturing to the nation's war colleges and 
listening to the military men and women at those institutions, and to 
the interagency personnel who were scattered amongst them.
    I also continued my extensive research. I joined an effort of some 
25-30 flag officers and similar rank civilians who were linked with the 
Human Rights First organization. On 7-8 December 2005, at the Ritz 
Carlton in Crystal City, we met for the first time and I'll never 
forget what one flag officer said to me. He said he could not believe 
that in his lifetime--no, he corrected himself, in his country's 
history--that anyone would be discussing the topic we were to discuss, 
torture and abuse encouraged at the highest levels of the U.S. 
Government.
    We talked about the so-called Bybee memo. We were astonished that 
what appeared to be a legalistic argument not unlike the debate as to 
how many angels can sit on the head of a pin, pertained to one of the 
most serious matters imaginable--torture of another human being.
    The Bybee memo had been furnished in a four-inch binder distributed 
to each of us at that first meeting. As I flipped through my binder to 
find the documents enclosed, I was stunned.
    In that binder were:

        1)  Memorandum for Alberto R. Gonzales, Counsel to the 
        President, from: Jay S. Bybee, Assistant Attorney General, Re: 
        Legal Standards Applicable Under 18 U.S.C. 2340-2340A (Aug 1, 
        2002);

        2)  Secretary of Defense Rumsfeld Memo Re: Guantanamo 
        Interrogation Policy, Dec 2, 2002;

        3)  Declaration of Vice Admiral Lowell E. Jacoby, USN, Director 
        of the Defense Intelligence Agency, Jan 9, 2003 (Rumsfeld vs. 
        Padilla J.A. 55-63);

        4)  Secretary of Defense Rumsfeld Memo Re: Guantanamo 
        Interrogation Policy, April 16, 2003;

        5)  LTG Ricardo Sanchez Memo Re: CJTF-7 Interrogation and 
        Counter-Resistance Policy, Sept 14, 2003;

        6)  Guantanamo Bay: Approved Interrogation Techniques--from 
        White House briefing, June 22, 2004;

        7)  Memorandum for Deputy Attorney General James B. Coney, from 
        Daniel Levin, Acting Assistant Attorney General, Re: Legal 
        Standards Applicable Under U.S.C. 18 2340-2340A (Dec 30, 2004) 
        [superseded the Aug 1, 2002 memo];

        8)  Pentagon Detention Policy, Nov 3, 2005.

    There was much more as well; the four-inch binder was in fact 
bulging.
    The one memorandum I did not find, that I had had when I was at 
State, was the President's memorandum of February 7, 2002, ``Humane 
Treatment of al Qaeda and Taliban Detainees.'' I would get that memo in 
my hands once again a few days later from one of the producers of CNN's 
Sixty Minutes, who faxed it to me. It had been declassified of course.
    This meeting in Crystal City coincided with Senator McCain's 
efforts in the Senate to secure passage of the Detainee Treatment Act 
and so we fed our thoughts into the Senator's staff and his staff fed 
their thoughts into our meeting.
    After that meeting, I did not relax my efforts to discover more. I 
met Joseph Margulies who had written the book, Guantanamo and the Abuse 
of Presidential Power, and I marveled at his ability to piece together 
essentially the same conclusions that I had come to preliminarily as I 
left the State Department in early 2005. Judging from his footnotes, 
he, too, had apparently been able to get his hands on many documents. 
The one additional piece of the puzzle I gained from reading his book 
and talking with him was about the SERE \2\ techniques that formed a 
basis for some of the harsh interrogation methods that were used in 
Afghanistan, in Iraq, and at Guantanamo Bay. I had harbored some 
suspicions to that effect but did not have access to some of the 
documents and research that Margulies did and, indeed, that he was to 
expand.
---------------------------------------------------------------------------
    \2\ Survival, Evasion, Resistance and Escape--referring to the type 
of training afforded in all the Armed Services and in special schools 
such as Ranger School in the US Army aimed at giving the trainee a very 
brief idea and feeling of what it is like to be a prisoner of war, 
among other things.
---------------------------------------------------------------------------
    As a professor of government and public policy on two campuses, I 
made a National Security Council (NSC) Exercise a part of my 
curriculum. The decision before the mock NSC was ``How to manage and 
treat those personnel detained in the Global War on Terror.'' Law 
students from the George Washington University Law School and from the 
College of William and Mary School of Law acted in the capacities of 
Attorney General, counselors to the President and Vice President, Legal 
Advisor to the Secretary of State, and OSD General Counsel. From these 
exercises, I gained additional insights into the receptivity of the 
American people to harsh interrogation, as well as into the human 
dynamics of such decision-making.
    One of the thoughts that resonated with the students was expressed 
eloquently by Senator John McCain when he remarked that, when questions 
arise about breaking the rules, it isn't about the enemy, it's about 
us. Whether our enemy is German SS troops in the snows of the Battle of 
the Bulge in 1944-45, north Korean soldiers at the Chosin Reservoir, or 
north Vietnamese troops in the Parrot's Beak, it is not about how they 
treat us in war. It is about how we treat them. It is about us, as 
Americans.
    When you break the rules, you damage America's power. You not only 
put your own potential prisoners of war in jeopardy, you actually 
damage American prestige and that diminishes our real power in the 
world.
    A month or so after some of the Abu Ghraib photos had actually been 
revealed, the door to my office at the State Department was slightly 
open and I could hear Secretary Powell on the telephone with Secretary 
Rumsfeld. His voice was louder than usual. He was remonstrating with 
his fellow cabinet member. He was asking him if he understood what 
GITMO was doing to America's reputation in the world, to our standing 
in the eyes of our friends and allies. I've no idea what Secretary 
Rumsfeld's response was but I know I had rarely heard Powell raise his 
voice to that degree. Of course, the photos from Abu Ghraib had served 
to confirm in the eyes of many of our friends and allies, as well as 
our enemies, that what they had suspected all along about the Cuban 
prison, was true.
    As I said before, Powell is a soldier. Soldiers hurt when soldiers 
break the rules. But what I discovered in my efforts for Powell and 
confirmed even more in my subsequent efforts on my own, was that 
soldiers were not entirely responsible for what happened to America's 
power and prestige in the world because soldiers were not alone 
responsible for what happened at GITMO, at Bagram and elsewhere in 
Afghanistan, and at Abu Ghraib and elsewhere in Iraq.
    Mr. Chairman, I earlier posed the question: At what level did 
American leadership fail?
    I believe it failed at the highest levels of the Pentagon, in the 
Vice President's office, and perhaps even in the Oval Office, though 
the Memorandum of February 7, 2002, which I cited earlier, tends to 
make me think the President may have been ignorant of the worst parts 
of the failure.
    As I compiled my dossier for Secretary Powell, as I did further 
research, and as my views grew firmer and firmer, I needed frequently 
to reread that memo. I needed to balance, in my own mind, the 
overwhelming evidence that my own government had sanctioned abuse and 
torture which, at its worst, had led to the murder of 25 detainees in a 
total of at least a 100 detainee deaths. Death, Mr. Chairman, seems to 
me to be the ultimate torture, indisputable and final. We had murdered 
25 or more people in detention; that was the clear low point of the 
evidence.
    The President's February 2002 memo seemed to me, a student of 
national security decision-making from the passage of the 1947 National 
Security Act to the present, to constitute the same sort of compromise 
that I had discovered so often in that more than a half century of 
decision-making.
    President Bush, it seemed to me, had tried to walk down the middle 
of the road when confronted with the challenge of reconciling the needs 
of our security with the needs of our democratic republic--he had tried 
to safeguard our soul without losing our security, as diplomatic 
historian Michael Hogan phrases it. The President's February 2002 memo 
expressed such a compromise--the same compromise that from time to time 
presidents such as Eisenhower, Johnson, Nixon, Reagan, and others had 
had to make also.
    But it seemed to me that beneath the compromise that President 
George W. Bush had made in his February 2002 memo, others had moved out 
smartly to deviate.
    They had a model to match that deviation against, in my view--
though I cannot substantiate this.
    After all my research, I believe the President did more than sign 
that February 2002 memo. I believe that like several presidents before 
him during the Cold War, he signed a highly-classified Finding.
    That Finding directed, most likely, the head of the CIA, Mr. Tenet, 
to establish a very small, highly-qualified group of interrogators at 
the CIA who would, if the need arose, interrogate high value targets. 
They would use a number of methods, including waterboarding--which has 
been considered torture since at least the Spanish Inquisition--to 
interrogate these high value targets, when and if the President 
approved.
    I emphasize that this was likely a very highly-compartmented 
program with minimum knowledge of it in the bureaucracy. I believe that 
this program is what the recent revelations by ABC TV's investigative 
team were about, though ABC TV had no way of knowing the particulars. 
You will recall that their revelations included transcripts, 
apparently, of principals' meetings wherein the participants discussed 
harsh interrogation methods, participants including Dr. Rice, then 
National Security Advisor, Attorney General Ashcroft, and Secretaries 
Powell and Rumsfeld and, by the President's own subsequent statement, 
the President himself.
    I believe this is clear evidence that my speculation about a 
presidential Finding is on the mark.
    But that would have been a highly-controlled, extremely selective 
program, however some might find it reprehensible. How did what was 
done there, in that program, migrate out to the Armed Forces and become 
so widespread?
    After the tragic events of September 11, 2001, Secretary Rumsfeld 
and certain of his subordinates wanted the war that was coming to be a 
broad, global one, not just against al-Qa'ida. Read Mr. Feith's book, 
War and Decision, and he will tell you in that book how seriously he 
and Mr. Rumsfeld wanted to broaden the war. He will also tell you that 
he and Mr. Rumsfeld believed the fight was not simply against al-Qa'ida 
but against every terrorist who might raise his head, from the criminal 
thugs in the Philippines called Abu Sayyaf, to the al Qa'ida 
derivatives in Southeast Asia known as Jemaah Islamiyah. From the tone 
in the book, one gets the impression that Mr. Feith would have dearly 
loved to throw Hamas and Hezbollah into the mix as well.
    To get into the fight all across the globe meant first and foremost 
disbursing Special Operations Forces (SOF) as widely as possible in 
areas of medium to high threat. It also meant--and this was utterly 
crucial--actionable intelligence. Otherwise those SOF would be spinning 
their wheels, unable to take direct action against or capture any 
terrorists at all.
    As a military man for 31 years, I know how most people in the 
Defense Department viewed the CIA. I was special assistant to Chairman 
of the Joint Chiefs of Staff, General Colin Powell, in the first Gulf 
War. I know how he and General Norman Schwarzkopf railed at the CIA.
    I have to believe that Secretary Rumsfeld felt similarly. All the 
evidence indicated he did. In March 2003, he made one of his closest 
subordinates, Stephen Cambone, the first Under Secretary of Defense for 
Intelligence--clearly indicating that he was going to take the some 80% 
of the approximately $40B intelligence budget that was his and use it 
to his purpose.
    He also set up a sort of intelligence ``red team'' in the office of 
his Undersecretary for Policy, Mr. Feith. This team vetted the 
intelligence community's raw materials, analysis and findings.
    So, twin pressures were thus unleashed almost immediately in early 
2002. First, the need for actionable intelligence was uppermost and 
urgent and this need was conveyed to the field down the chain of 
command. Second, echoing the President and the Vice President's own 
words, the word went out that the gloves were off, and we were going to 
have to work ``sort of the dark side''. That same day at Camp David, 
September 16, 2001, when the Vice President referred to the dark side, 
he also told Tim Russert: ``. . . it's going to be vital for us to use 
any means at our disposal, basically, to achieve our objective.''
    These words reminded me of what Undersecretary of Defense Robert 
Lovett had argued as the Cold War was heating up, after the Soviets had 
developed and tested a nuclear weapon in 1949. Lovett argued in 1950 
that the nation was ``in a war worse than any we have ever 
experienced'' and that this meant doing away with the ``sharp line 
between democratic principles and immoral actions. . . .'' Lovett 
considered such distinctions as a ``dangerous and unnecessary 
handicap'' in the struggle with communism. He said he wanted to fight 
the Soviets ``with no holds barred. . . .''. In my view, it was 
fortunate for the nation that Truman did not follow Lovett's advice.
    But many in the Pentagon, and eventually the armed forces, did seem 
to follow the advice, however implicit, of Lovett's reincarnation in 
2001, Vice President Cheney.
    In short, the Pentagon needed intelligence; people should go out 
and get it. And the usual rules were not going to apply; new rules 
would be forthcoming. Even as a result of my early investigations at 
the State Department, this overriding reality was clear. But somewhere 
in that early part of 2002, some of the principals also began to worry 
about legalities. It was likely earlier even but I could find nothing 
in late 2001. Perhaps someday others will.
    These concerns derived from knowledge of the Church Committee and 
the damage it had done with regard to the clandestine service in 
particular but to the CIA in general, as well as from a sure knowledge 
among the selected intelligence personnel and their leaders that they 
were being asked to depart from the realm of what they considered legal 
activities.
    This concern, I believe, generated the legal discussions that would 
began to develop among David Addington in OVP, John Yoo and Jay Bybee 
at Justice, Alberto Gonzales in the White House and, eventually, expand 
to include the inputs from USD (P) Douglas Feith and OSD General 
Counsel Jim Haynes.
    In effect, the most direct way for the Defense Department to create 
a legal screen for its own activities was to adapt the work that was in 
progress for the legal opinions backing the presidential finding to the 
needs of the DOD.
    But let's backtrack for a moment and shed more light on what in my 
view had transpired to this point.
    It's my strong view that the legal proceedings were led by David 
Addington, who turned to Jay Bybee and John Yoo at the Department of 
Justice, and Alberto Gonzales in the White House, then counselor to the 
President.
    These were the lawyers who set the legal background against which 
other-than-standard interrogation methods would be explained away as 
``in accord with the Geneva Conventions'', ``not constituting 
torture'', ``fully within the Article II powers of the Commander-in 
Chief'', and so forth. At Defense, Jim Haynes and Douglas Feith would 
adapt these views to their needs at the Pentagon. Indeed, in the recent 
book Torture Team by English barrister Philippe Sands, in extended 
interviews Mr. Feith appears to express no small degree of pride in 
having helped make the Geneva Conventions adaptable to the needs of the 
new interrogation regime. In my view, this was done largely through 
artifice not unlike the angels sitting on the pinhead. Such artifice 
may appeal to certain lawyers but I assure you soldiers have no use for 
it for they know how dangerous such arguments are when put to the hard 
act of execution in the field.
    Meanwhile, the operational end of this affair was orchestrated by 
the Secretary of Defense and his subordinates, Haynes, Feith, Stephen 
Cambone and I'm quite certain others. Certain of these individuals, 
including Addington, even visited the prison at Guantanamo Bay in 
September 2002 to get a better grip on what was happening to acquire 
actionable intelligence and to inform their own views about what was 
possible.
    There has been an argument that U.S. Southern Command queried the 
Defense Department with respect to interrogation procedures for GITMO, 
and thus the impetus for the new procedures came from the field. There 
is a paper trail that seems to have been laid down to support that. 
What I found, however, was that Southern Command's query was expected 
(set up perhaps?) and that OSD General Counsel, in league with the 
others in the legal group, had already worked up what the legal 
position was going to be. In short, there were people in DOD at the 
highest level who knew what they wanted: actionable intelligence. They 
also knew, or thought they knew, that the only way they were going to 
get it from battle-hardened al Qa'ida operatives was to use harsh 
interrogation methods. And that's the bottom line.
    Depressingly to me, these men also seemed to have the cavalier 
disregard for any innocents who might be caught up in this process that 
one often finds in men safely to the rear of the real action. Soldiers 
call such men ``REMFs''. I won't elaborate on that acronym.
    Mr. Chairman, I have given much thought to the idea of malice 
aforethought in these matters. That is, did any of these men clearly 
realize what they were setting in motion? Did they realize for example 
that a significant proportion of the detainees in all their prisons 
were innocent of any wrongdoing, they were simply swept up in military 
operations and, due to a debilitating shortage of troops, vetting in 
the field was poorly done? This was particularly true in Afghanistan 
and, later, in Iraq. Did they realize that hooding and shackling and 
keeping such people in isolation was cruel and unusual punishment? Did 
they realize that what they had put in motion would spread and grow? 
That units from Afghanistan would bring methods to Iraq? That methods 
used at GITMO would migrate to Iraq via Major General Miller? That in 
Iraq the shortage of troops would be an enormous deficiency, 
complicating almost every activity including prisoner control? That at 
the end of the day their twin down-flowing pressures of getting 
intelligence and, if necessary, using ``other means'', would create a 
disaster in the Armed Forces--so much so that a U.S. Senator would have 
to bring legislation to the floor of the Senate to get the Armed Forces 
back where they should be, adhering to the established rules of 
warfare?
    In that regard, I have read and reread Secretary Rumsfeld's memo of 
November 27, 2002 (1:00 PM), ``Counter-Resistance Techniques''. This is 
the memo with the now infamous hand-written postscript: ``However, I 
stand for 8-10 hours a day. Why is standing limited to four hours? D. 
R.''
    I believe that more than any other single document this one 
demonstrates both the arrogance and the ignorance--and I use that 
latter term with great precision and not in a pejorative sense--of the 
signer. What is exhibited here is the sheer lack of understanding of a 
man who has never been in what I call the crucible of combat, the fiery 
furnace that soldiers call home from time to time, however reluctantly. 
And who works beneath a Vice President, a long-time colleague, who 
believes like Robert Lovett that any evil is justified in the name of 
security.
    Moreover, this was a man--and these were men--who could not bring 
the challenge he thought he was confronting to the legislative branch 
and ask for relief. To come to the people's representatives, and 
through them to the people, was beneath this group. They would not 
deign to ask the legislature to change the rules for the Armed Forces--
a legislature vested by our Constitution with the power to ``make Rules 
concerning Captures on land and water'' and ``To make Rules for the 
Government and Regulation of the land and naval Forces.''
    Instead, they made the rules all by themselves in secret.
    I expect that at the end of the day they calculated the legislature 
would not let them do what they wanted to do and that this calculation 
influenced heavily their decision to operate in secret. By my research 
and evidence, they even decided to keep the Chairman of the Joint 
Chiefs of Staff, the other Joint Chiefs, the Joint Staff, and the 
Service JAGs out of their secret deliberations and actions as well.
    Mr. Chairman, the hard core of Secretary Rumsfeld's memos 
authorized as many as 30 techniques by my calculations (``a'' through 
``dd'' on one memo). As U.S. Navy Captain and JAG officer Alberto Mora 
has pointed out, no one seems to have considered the possibilities of 
an interrogator employing eight or ten of the ``authorized'' techniques 
at the same time, over extended periods, in near-hypothermic 
temperatures, in darkness and in isolation, and the final results. Some 
would say--indeed experts have said--the results would be worse than 
actual physical torture. No one at the highest levels of the Department 
of Defense, including its Secretary, seems to have considered this, 
even for a moment.
    Likewise, no one seems to have considered what I call the basic 
soldier test (how could they?--none of them were soldiers and they had 
removed the real soldiers from their deliberations).
    What I mean by this is, for example, if you tell a soldier under 
pressure to produce actionable intelligence that he can use a muzzled 
dog, he will do it faithfully. And when that doesn't work--and it isn't 
likely to--the soldier will remove the muzzle. And when that doesn't 
work, he will let the dog take a bite.
    That is the basic soldier test which should be applied to all such 
finely-tuned deliberations.
    Similarly, when you slap on the Abu Ghraib prison wall as many as 
three different checklists in a 30-day period, checklists that tell the 
interrogators what they can do, you are asking for trouble. Mastering 
one checklist is about all you can expect of a soldier under the sorry 
conditions that existed at that prison. And when the prison guards are 
encouraged to ``prep'' their charges (this, too, is against the rules 
of course, ordering the soldiers guarding the detainees to ``prep'' 
them), you are asking for more trouble. Send an aggressive two-star 
general into the fray, just arrived from GITMO where the gloves are off 
and things are happening, and your trouble reaches the sort of levels 
of which the world saw visual evidence in the photographs from Abu 
Ghraib.
    It is nothing new that uniformed military personnel, trying to 
accommodate the twin pressures of actionable intelligence and ``the 
gloves are off'', plus being under the immediate pressure to take 
actions that will keep their buddies alive, will violate the rules. 
Some of them will even do so with gusto if they perceive their officers 
to be in the game with them. And too many of the officers will be in 
the game with them if they perceive that all the way up the chain of 
command, as far as they can see, the leadership approves.
    Mr. Chairman, as you no doubt realize there is much, much more that 
I have not delved into. There is bad leadership enough to sink a 
battleship, poor decision-making, a dysfunctional bureaucracy, and a 
President too removed from the day-to-day details of a war he 
essentially declared himself, with the help of a Congress acting 
largely as a rubber stamp.
    As a student and teacher of every president's decision-making since 
Truman, I find the present circumstances rich ground to plow. There are 
unique insights available with every president, but none so full of 
such insights into failure as the current one.
    But as a soldier and a citizen I do not find this rich ground for 
an academic very uplifting. Instead I find it dangerous.
    We have damaged our reputation in the world and thus reduced our 
power. We were once seen as the paragon of law; we are now in many 
corners of the globe the laughing stock of the law.
    What has brought about this change is Abu Ghraib, Guantanamo, 
secret renditions, what much of the world perceives as an unlawful war 
in Iraq, and, more than all of these, a refusal to recognize and 
acknowledge any of this and do something about it.
    I hope this subcommittee's efforts to deal with this failure will 
prove successful. I also hope that a new president in 2009, whether it 
is John McCain or Barak Obama, will move swiftly to tell the world that 
America--the real America--is back. In the realm of foreign policy, 
that will mean at a minimum closing Guantanamo, repudiating torture and 
abuse, and realigning our strategy in the Middle East.
    Thank you and I look forward to your questions.

    Mr. Nadler. And we will now go through the questions of the 
witnesses. As we ask questions of our witnesses, the Chair will 
recognize Members in the order of their seniority on the 
Subcommittee, alternating between Majority and Minority, and 
provided the Member is present when his or her turn arrives. 
Members who are not present when their turn begins will be 
recognized after the other Members have had the opportunity to 
ask their questions. The Chair reserves the right to 
accommodate if a Member is unavoidably late or only able to be 
with us for a short time.
    I will begin by recognizing myself for 5 minutes to 
question the witnesses.
    First, Mr. Levin, a series of questions for you. ABC News 
reported that after issuing the December 2004 memo, you were 
working on another, more specific interrogation memo imposing 
tighter controls on interrogation techniques. The report states 
that you never finished this memo and instead were, ``forced 
out of the Justice Department when Alberto Gonzales became 
Attorney General.''
    Was your departure from OLC voluntary?
    Mr. Levin. I would preferred to have stayed. I guess that 
is the best way to answer.
    Mr. Nadler. And is it true that you did not finish a 
follow-up memorandum because of your removal at that point?
    Mr. Levin. That is correct.
    Mr. Nadler. And is the ABC report accurate that you were 
removed because your follow-up memo would have imposed limits 
on waterboarding or other interrogation techniques?
    Mr. Levin. I don't know the reason for why I was removed. I 
don't know the answer to that, sir, why that decision was made.
    Mr. Nadler. So you can't say yes or no to that question?
    Mr. Levin. I can't. I was not told a reason.
    Mr. Nadler. And so you do not know if your views on 
imposing tighter controls on interrogations were related to the 
decision to have you removed from that position?
    Mr. Levin. I do not. No, sir.
    Mr. Nadler. Now, Newsweek reported, referring to you, that 
battles at the White House took their toll on your political 
future.
    Is that statement accurate, or is that speculative?
    Mr. Levin. Again, sir, I don't know the answer to that.
    Mr. Nadler. Now, John Yoo has written that the December 
2004 replacement opinion you drafted was done for appearance's 
sake, in quotes, and that, ``no policies or interrogation 
techniques changed as a result of the withdrawal of the torture 
memo.'' Mr. Yoo has also said that, ``the OLC's reversal was 
pure politics.''
    Do you agree that nothing changed as a result of your 2004 
memo? Do you agree that the 2004 memo you authored was pure 
politics?
    Mr. Levin. I certainly don't agree that it was pure 
politics, and I don't think it is accurate that nothing changed 
as a result of the change in legal analysis.
    Mr. Nadler. What do you think was the change? How would you 
characterize the change?
    Mr. Levin. Well, I unfortunately am not authorized to 
discuss certain matters, but I believe it is the case that 
there were certain changes in practices as a result of the 
change in legal analysis.
    Mr. Nadler. So as a result of the change in your memo, you 
think there were changes in practices. That means required 
changes in interrogation policies?
    Mr. Levin. I believe that is the case. Yes, sir.
    Mr. Nadler. Now, John Yoo told the Washington Post that the 
interrogation memos that he authored were, ``near 
boilerplate.'' Do you agree with that assessment?
    Mr. Levin. No, I don't, sir.
    Mr. Nadler. You think they were more significant than not 
boilerplate?
    Mr. Levin. Well, I don't exactly know what he means by 
boilerplate, but there were statements in them that I think 
were not--if, again, boilerplate means commonplace and 
accepted, there were statements in there that I do not think 
were commonplace or accepted.
    Mr. Nadler. And do you believe that those memos represent 
responsible scholarship consistent with the traditions of the 
Office of Legal Counsel?
    Mr. Levin. Well, I am reluctant to criticize John. I think 
that there were aspects of those memos that I would not have 
written that way.
    Mr. Nadler. Okay. And, finally, in a debate in 2005, Mr. 
Yoo was asked if the President could torture a suspect's child 
if he believed that was necessary in time of war. The 
specific--I am not going to go into the specific example. It 
was rather gruesome of what you might do to the suspect's 
child.
    Mr. Yoo answered: I think it depends on why the President 
thinks he needs to do that.
    Do you agree with John Yoo that the President, as Commander 
in Chief, that his power as Commander in Chief would allow him 
to order a detainee's child to be abused if he believed it was 
necessary for the national defense?
    Mr. Levin. I can't imagine a situation where that would be 
the case, sir.
    Mr. Nadler. Thank you.
    Colonel Wilkerson, in your prepared testimony you write 
that: As I compiled my dossier for Secretary Powell, and as I 
did further research, and as my views grew firmer and firmer, I 
needed frequently to reread that memo; that is to say, the 
memorandum of February 7, 2002. I need to balance in my own 
mind the overwhelming evidence that my own Government has 
sanctioned abuse and torture, which, at its worst, has led to 
the murder of 25 detainees and a total of at least 100 detainee 
deaths. We had murdered 25 or more people in detention. That 
was the clear low point of the evidence.
    So your testimony is that 100 detainees have died in 
detention, and that you believe 25 of those were, in effect, 
murdered?
    Colonel Wilkerson. Mr. Chairman, I think the number is 
actually higher than that now. The last time I checked, there 
was about 108. And the total number that were declared 
homicides by the military services or by the CIA or others 
doing investigation, CID and so forth, was 25, 26, 27.
    Mr. Nadler. Were declared homicide?
    Colonel Wilkerson. Correct. Starting as early as December 
in Afghanistan.
    Mr. Nadler. And these are homicides committed by people 
engaged in an interrogation?
    Colonel Wilkerson. Or in guarding prisoners or something 
like that. People who were in detention.
    Mr. Nadler. So these weren't people trying to escape or 
something. They were declared homicides by our own authorities?
    Colonel Wilkerson. Right.
    Mr. Nadler. Do you know if any were prosecuted?
    Colonel Wilkerson. As far as I know, several were. And they 
have come to different conclusions.
    As an experienced military officer, one of the things that 
indicated to me early on as I examined the result of some of 
these courts-martial was that the punishment being rendered to 
these people, especially the lower-ranking people, didn't match 
the crime. And quickly, for a military officer, I know how that 
works: We have an extremely fair system in the military, the 
Uniform Code of Military Justice. If I were going to be tried, 
I would much rather be tried under it than I would in a 
civilian court.
    So what was happening was a jury of their peers, if you 
will, officers and NCOs and enlisted personnel, knew that these 
people had performed under great tension and stress, and so it 
is my view that they were rendering verdicts of reduced to 
private first class, 2 months of pay, Article 15-type 
punishment, for example, rather than the kind of punishment 
that would have matched the crime.
    That was one of the insights I early gained into this as I 
looked at my Army in particular taking this action. And I said, 
now, why are these people not being given sentences appropriate 
to the crime, or at least what would appear to be?
    Mr. Nadler. And your supposition is?
    Colonel Wilkerson. And my supposition is the people on the 
jury of your peers, the colonels and the NCOs and so forth, and 
the military judges, they knew the background.
    Mr. Nadler. I will get to you more in the second round of 
questioning, but I have one question to follow up on this, and 
that is, your judgment as a career military officer is that 
these prosecutions were handled in a way that would lead you to 
suspect that the conduct that resulted in these homicides were 
tolerated or sanctioned from higher authority?
    Colonel Wilkerson. I think it was fairly common knowledge 
throughout the very small Army that we have now that 
individuals in both the military police, military intelligence, 
interrogators, and so forth were under enormous pressure to 
produce intelligence. And they were also being given guidance 
that they could do things that weren't necessarily in 
consonance with the law of the land warfare, certainly not in 
consonance with Common Article 3 of the Geneva Convention or 
even the conventions themselves. And so that made people be 
more lenient.
    Mr. Nadler. Thank you. My time has expired.
    I will now recognize the distinguished Ranking Minority 
Member of the Committee, Mr. Franks.
    Mr. Franks. Thank you, Mr. Chairman.
    Colonel Wilkerson, I always appreciate anyone who has put 
themselves on the line for the cause of freedom. I did want to 
ask you something that kind of struck me. You cited as a 
comparative a circumstance where you were in a combat zone, and 
you were in a free-fire zone, and that a 12-year-old girl 
walked up the road, and that you broke the rules and chose not 
to shoot her.
    Were you under rules that would require you to shoot a 12-
year-old girl, or was this something that would have been up to 
you, but would have required you to break the rules to keep 
from shooting a 12-year-old girl?
    Colonel Wilkerson. I can't tell you how many radio 
conversations on Fox Mike that I had with----
    Mr. Franks. But that is a yes or no question. Were you 
breaking the rules by not shooting her?
    Colonel Wilkerson. May I answer the question?
    Mr. Franks. Sure.
    Colonel Wilkerson. I had conversations with higher officers 
in Vietnam who, when anything was encountered in a free-fire 
zone, essentially said you are free to engage it. Then it was 
up to my discretion as to whether I didn't or not. And clearly, 
as I indicated, in this case I wouldn't.
    Now, it is not even as black and white as that. Had she had 
an AK-47 and been shooting back at me, indeed I might have. But 
it would have taken that kind of evidence for me to engage.
    Mr. Franks. I understand. But your testimony was that you 
broke the rules and chose not to shoot her. That--I understand 
that you had the option. But I don't think you--I mean, it just 
seems astonishing to me that you would have been under a rule 
that would have required you to shoot her. And I just wanted to 
point that out, it just struck me wrong. Forgive me if I 
misunderstood it.
    Mr. Rivkin, Colonel Wilkerson states in his written 
testimony the following: No one seems to have considered what I 
call the basic soldier test. What I mean by this is, for 
example, if you tell a soldier under pressure to produce 
actionable intelligence that he can use a muzzled dog, he will 
do it faithfully. And when that doesn't work, and it isn't 
likely to, the soldier will remove the muzzle. And when that 
doesn't work, he will let the dog take a bite.
    What do you make of that statement?
    Mr. Rivkin. Thank you, Congressman Franks.
    With all due humility, since, unlike Colonel Wilkerson, I 
have never served in combat, but I fancy myself a bit of a 
student in military history, I would strongly disagree with the 
statement. I would say that a well-disciplined military, 
particularly American military, is probably the best 
institution among any other set of public institutions that is 
capable of very nuanced behavior, operating in very different 
environments with different rules of engagement. For example, 
you have military units, knowing the difference between 
operating with live ammunition, using nonlethal munitions, 
versus using lethal munitions. The military is able to operate 
in different drills and all sorts of different environments.
    Now, I understand the dilemma of having ambiguous orders, 
but if you tell people that the dividing line is, again in his 
testimony, to muzzle dogs, by golly, you don't take off a 
muzzle. If you do, it is a serious failure of leadership at 
their officer corps level. And if you tell them you can take 
the muzzle off, but there should be no biting, by golly there 
should be no biting. I don't understand that logic at all, and 
it certainly would not seem to be the modus operandi in any 
law- and rule-complying military.
    Mr. Franks. Obviously I would agree with your assessment, 
that being able to precisely follow orders is not only a good 
idea, but in many circumstances is absolutely critical to the 
survival of a particular unit or battle.
    Mr. Rivkin, as you reviewed the written testimony of some 
of the other witnesses here today, I have been asked many times 
of witnesses, tell us what should be the appropriate anti-
terrorism policy for interrogation. Did you find the materials 
here that you reviewed related to the other witnesses' 
testimony here today helpful in determining the contours of an 
appropriate anti-terrorism policy, or were they lacking in 
significant ways? And could you elaborate?
    Mr. Rivkin. Thank you, Congressman. I hate to put myself in 
the position of being a bit of a schoolmaster, and these are 
difficult issues, but I would at least suggest a couple things. 
And, again, not to pick on Colonel Wilkerson, with all due 
respect, about the hundred deaths, it is very important not to 
paint things with a broad brush. You really need to drill down 
on what caused these deaths. If these deaths were primarily 
caused in the context of interrogation, that is very troubling. 
If these deaths were caused by guards overstepping their 
authority or some other reasons, that would not necessarily be 
terribly relevant to the question of interrogation routines.
    And another thing I would say, and I will draw on my own 
experience back in my Department of Justice days, I had an 
opportunity to look at, shall we say, some problems involving 
the Bureau of Prisons. Let's be honest, abuses by inmates 
against inmates and guards sometimes acting in good faith and 
sometimes acting sadistically without any justification are 
endemic in prison systems, civilian and military, Federal and 
State. You always have to ask yourselves a question as a 
citizen, particularly as a lawyer: What is your current 
baseline? I mean, that is true whether investigating 
corporations for abuses of worker safety or something else. Is 
the current behavior dramatically divergent from the past 
historical baseline? If the answer is no, it doesn't mean you 
rest on your laurels; you try to drive the misconduct down to 
zero. But you certainly don't stagger about in dramatic 
indignation.
    You have to look very carefully at what is the baseline of 
prisoner-related abuse in World War I, World War II, Korea, 
Vietnam, Spanish-American War. And I am sure the Defense 
Department has these statistics.
    The anecdotal evidence that I have heard from people who 
have actually served in the military, particularly in the time 
of Vietnam, is that the behavior of American troops is 
dramatically better measured--and, again, statistics is a 
difficult matter, but in terms of percentage or relative to, 
let's say, 100 detainees or 1,000 troops in the field is 
dramatically better than in Vietnam and Korea and even World 
War II. Again, that doesn't mean that it is wonderful, but that 
is a fact. And I have not seen this nuanced.
    Another thing that bothers me very deeply is, let's be 
clear, I never supported waterboarding. I tend to think that 
waterboarding by and large is not torture and certainly CID. 
But why can't we have a serious discussion about things other 
than waterboarding? Why can't we have a serious discussion 
about stress interrogation techniques that aren't pleasant, but 
don't rise to that level? But everything 99 percent of the time 
gets pivoted off waterboarding? And that--I mean, we should be 
able as a society to have nuanced rules that rules out some 
levels of coercion, but allows some levels of coercion in. And 
it is very difficult to have a serious debate because 
everything is portrayed in the same light.
    Thank you.
    Mr. Franks. Thank you, Mr. Chairman. My time has expired.
    Mr. Nadler. I now recognize for the purposes of questioning 
the witnesses the distinguished Chairman of the Judiciary 
Committee, the gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman Nadler.
    Good to see you again here, Mr. Rivkin.
    Colonel Wilkerson, did you believe that the President 
personally approved the use of these tactics by the military?
    Colonel Wilkerson. When I read the President's 7 February 
memo, I saw it both as an academic and a person looking at the 
charts the Secretary had written me. I saw it as a decision in 
the post-1945 country we live in. That is to say, we tried to 
reconcile our liberties with our security.
    That memo to me does not constitute the kind of order that 
others have interpreted it to constitute. It constitutes a 
compromise. The one thing that critics of my view have said is 
that it gives an escape clause; the escape clause is consistent 
with military necessity. And I point out to them that 
Presidents in the past, when they wanted escape clauses, said 
things like ``consistent with national security'' or 
``consistent with the dictates of the global war on terror,'' 
something far more sweeping.
    Military necessity to me as a military man means if I have 
to butt-stroke someone in order to save a life, I can do it. It 
doesn't mean that I can hang someone from metal screens at 
Bagram in Afghanistan and then beat him until he dies, as they 
did to Dilawar on 10 December, 2002.
    So there is a real distinction, I think, between what the 
President authorized in that compromise and what actually 
happened as it got interpreted through the DOD principally and 
the Vice President's office and went down to the field.
    Mr. Conyers. When you had discussions with Secretary Colin 
Powell about whether he believed that the President personally 
approved aggressive techniques, what opinion did you form from 
those discussions?
    Colonel Wilkerson. Those were torturous discussions, if you 
will pardon the play. The Secretary was of a mind that the 
President was fully complicit in everything that had happened. 
But I must add that at that time, neither of us was really 
confident that we knew exactly what had happened. So I qualify 
it with that.
    Mr. Conyers. And Secretary Powell, didn't at one point he 
suggested that he believed that Vice President Cheney obtained 
the President's personal approval for these boundaries on 
interrogations at Guantanamo?
    Colonel Wilkerson. Again, I don't know if he knew the full 
story at that time. I am quite sure that I didn't. And the 
remarks that he made were offhand, and they were something more 
general than that. They were like: You can bet that if Cheney 
did it, he walked in the Oval Office and got the last bite at 
the apple before he did it.
    Mr. Conyers. Did you conclude that anyone in the Office of 
the Vice President played a significant role in the development 
of Administration interrogation policy?
    Colonel Wilkerson. It is my strong view that Mr. Addington 
had a very significant role in it.
    Mr. Conyers. And was he part of what sometimes was termed 
an ``unholy alliance'' of the Office of the Vice President, the 
Secretary, or Rumsfeld, and the Office of the Legal Counsel 
bringing pressure to bear on the military to use aggressive 
interrogation techniques?
    Colonel Wilkerson. I think you actually had a collusion of 
six people. You had John Yoo and Jay Bybee at OLC. You had Jim 
Haynes and Doug Feith at the Defense Department and had 
Addington in the Vice President's Office and Gonzales then as 
Counsel to the President.
    I think they all participated initially in developing this 
legal opinion for a finding that the President had probably 
signed with regard to the CIA; and it gravitated over--migrated 
over, if you will--to the Defense Department.
    Mr. Conyers. Then it would be fair to say that these 
tactics were essentially pushed from the top down?
    Colonel Wilkerson. That is my view.
    Mr. Conyers. And that leaves us in a difficult--we are just 
trying to flesh this out, and everyone brings their opinion; 
but we have to--as an investigating Committee, have to bring 
this to even finer detail. We may have to invite some of these 
persons in.
    As a matter of fact, some have already been invited in. And 
to my pleasant surprise, some have agreed to come in.
    So I thank you for your testimony.
    Mr. Nadler. Thank you.
    The gentleman from California is now recognized for 5 
minutes to question the witnesses.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Rivkin, the question of whether someone is tortured, 
does it hinge on whether it is effective?
    Mr. Rivkin. I do not think so. I think it is a very 
unfortunate observation that has been read about, the 
effectiveness.
    Mr. Issa. So just to set the record straight, whether or 
not torture yields vital or important information should have 
no bearing on whether it is torture.
    Even if torture is effective, it is wrong; is that right?
    Mr. Rivkin. That is true of torture, I would say, 
Congressman.
    I would say in the case of lesser levels of coercion, I 
still prescribe cruel, inhumane and degrading treatment when 
you look at what shocks the public conscience, the 
circumstances, the imperative for intelligence and 
effectiveness. But torture to me is a pretty absolute 
prohibition.
    Mr. Issa. Well--and, look, I served in the Army. If I knew 
there was an ambush a quarter of a mile ahead and I had a 
prisoner and I had to decide whether my unit got ambushed or 
whether we got out alive and the only way to get out was 
straight ahead, I might ask later for forgiveness or a minimum 
punishment for what I would do in order to get that information 
in a timely fashion.
    But that is sort of what we try to protect ourselves 
against, the actions of individuals when they have complete 
control over somebody; isn't that true?
    Mr. Rivkin. It is true. And you can have circumstances 
that, you know, bring out these types of reactions.
    I certainly would not suggest legalizing it, but it is 
one----
    Mr. Issa. Okay.
    Let us go to waterboarding. I know you said you didn't want 
to, but waterboarding is another name for drowning with a 
doctor present, isn't it?
    Mr. Rivkin. As I understand, it is a pretty capacious term. 
But, yes, it does involve--I don't know even know if 
waterboarding always involves drowning. It may involve forms of 
noninundation that induces some feeling of asphyxiation where, 
let us say, you are strapped to a board and there is some kind 
of water that gets poured over your face. It may not be 
drowning----
    Mr. Issa. Take my word for it, waterboarding is either 
drowning the person or making him think he is going to be 
drowned. And you said you don't think that is torture?
    Mr. Rivkin. No. On the contrary.
    I said, in my view in almost all conceivable circumstances, 
waterboarding would be torture.
    Mr. Issa. Okay. So this Administration, recognizing that it 
had a multitude of tools, including sleep deprivation and so on 
that had a lot of history, chose to condone on three occasions 
the use of this near-drowning technique called waterboarding, 
right?
    Mr. Rivkin. It appears to be the case.
    Mr. Issa. Okay.
    Mr. Wilkerson, you and I both went through some of the same 
training. You went through more of it. Thank you for your 
service.
    We were told about the other side torturing. Some things 
like waterboarding were part of the training that we expected 
we would be tortured by the enemy, right?
    Colonel Wilkerson. Right.
    Mr. Issa. Okay. And when you and I went through and were 
commissioned as Army officers, we were told we don't do that, 
right?
    Colonel Wilkerson. Right.
    Mr. Issa. And the U.S. Army Manual says we don't do that?
    Colonel Wilkerson. Right.
    Mr. Issa. If I watched MASH, the CIA guys would go in and 
out, and we would assume they would have different standards, 
right?
    Colonel Wilkerson. Probably, knowing the CIA's history.
    Mr. Issa. And those standards would be, in fact, secrets, 
right?
    Colonel Wilkerson. Yes.
    Mr. Issa. And----
    Colonel Wilkerson. Usually very highly classified.
    Mr. Issa. And so the use of waterboarding and, if you will, 
the whole handling of how we dealt with a number of incidents, 
has created a situation in which the CIA's techniques are at 
least for now public, right?
    Colonel Wilkerson. At least to that extent, yes, 
waterboarding.
    Mr. Issa. I don't condone torture. When I was on the 
Intelligence Committee and was told of what waterboarding was 
before it became, quote, ``unclassified,'' I thought it was 
wrong, just as Senator McCain thought. And I will tell you 
today I still think it is wrong. And I think that, in fact, 
this hearing is valuable because, in fact, it has--it causes us 
to reflect on whether or not going too far creates a situation 
in which the legitimate effectiveness of our Secret Service is 
compromised.
    I want to just follow up with one question, though, because 
I do have to hold you to a high standard, too. You used the 
term Article 15 when you were talking about punishment. I think 
you said Article 15 like punishment.
    You are not implying that anyone gets nonjudicial 
punishment for killing somebody?
    Colonel Wilkerson. No, no, no.
    Mr. Issa. And just for the record, the commanding general 
who was in charge of Abu Ghraib, where is she today?
    Colonel Wilkerson. I don't know.
    Mr. Issa. Wasn't she court-martialed?
    Colonel Wilkerson. I don't know if she was court-martialed. 
I know she was--at least I believe she was reduced in rank.
    Mr. Issa. I know she was reduced to colonel. I apologize. I 
thought she was. And in the case of the murder that you 
alleged--or not alleged, but you referenced--pronounce it 
correctly. Dilawon?
    Colonel Wilkerson. Dilawar.
    Mr. Issa. Dilawar.
    What was the punishment that was issued there in the case 
of that murder?
    Colonel Wilkerson. I would actually have to go back and 
look, but I don't recall its being the kind of thing you would 
say, just as a citizen or a soldier that it was commensurate 
with what happened.
    Mr. Issa. Mr. Chairman, I would ask, are those records 
something that could be made available to this Committee?
    Colonel Wilkerson. They should be, yes.
    Mr. Issa. I would appreciate it if you could follow up with 
us on that. And thank you.
    I yield back.
    [The information referred to follows:]

    
    
    Mr. Nadler. I thank the gentleman.
    The gentleman from Alabama is recognized for 5 minutes.
    Mr. Davis. Thank you, Mr. Chairman.
    Gentlemen, welcome to the Committee.
    Mr. Levin, let me begin with you and Mr. Wilkerson, and put 
frankly everything I have heard today in some context. And I 
want to pull out two particular events. The first one is the 
circumstances of your not being at the Department. I know that 
you were very careful in your answers to Chairman Nadler 
earlier. But let me make sure I understand you.
    You didn't voluntarily leave the Department; is that 
correct?
    Mr. Levin. I would have preferred to have stayed. I mean, 
when I was told I wasn't going to stay, I voluntarily left.
    Mr. Davis. That tends to be what happens; when people who 
are over you tell you to go, you go. That is what in the real 
world is called being fired. And as to the reasons, I think 
Chairman Nadler asked you if the reason had something to do 
with opinions that you issued regarding torture. And you 
indicated that you didn't wish to wade into that.
    Let me use a little bit of common sense for a moment. Was 
your performance deficient in any way that you knew of, Mr. 
Levin?
    Mr. Levin. Not that I was aware of.
    Mr. Davis. Your task of assembling scholarly, reasoned 
opinions for the Department of Justice, did you fail in any way 
that you knew of in preparing scholarly, reasoned opinions for 
the Department of Justice?
    Mr. Levin. I hope I did not fail. I don't believe I did.
    Mr. Davis. Had you received any mark in your files or any 
negative evaluation regarding the competence of your 
performance?
    Mr. Levin. No.
    Mr. Davis. Did anyone give you any reason for your 
termination?
    Mr. Levin. No.
    Mr. Davis. So, Mr. Levin, a lot of us listening to that 
would reasonably conclude, using our common sense, that you 
were asked to go because you were at odds with the 
Administration's policies, which would put you in the same 
category with General Shinseki, who was the first person to 
correctly tell the United States Congress that the war in Iraq 
would not be a limited-term adventure, but would require a 
significant commitment of forces. He was candid in telling the 
Congress that before the war, was asked to go on.
    Mr. Wilkerson, do you recall that your former boss, General 
Powell, frankly indicated his willingness to the Bush 
administration to remain for a second term? He was not given a 
chance to re-up, if you will. And I think there is a pattern 
here, gentlemen.
    A lot of the people who got it right have been asked to 
leave by this Administration, whereas a lot of the people who 
got it wrong have never been asked to leave and have formulated 
policies that have taken us to places we don't want to go.
    The second context, Mr. Levin, is this one. I am trying to 
look at this Administration's capacity for legal analysis, and 
I am trying to put this in some perspective. Let's go through 
it for a moment.
    This Administration initially believed that there was an 
extra constitutional authority for the President to supersede 
FISA. While no court has ever squarely addressed that issue, I 
don't even know of a senior Republican in Congress who holds 
that opinion today. That is an opinion that has been widely 
ridiculed. That is why we have had subsequent acts that amend 
FISA and why we have the Protect America Act now.
    The Administration initially believed the Geneva Convention 
wasn't applicable to treatment of detainees. That position was 
squarely rejected by the Supreme Court. The Administration 
believed that habeas corpus wasn't applicable to detainees. The 
Supreme Court rejected that position last week.
    Mr. Levin, Mr. Wilkerson, do either of you know of any 
Administration that has so consistently found itself at odds 
with courts and mainstream opinion regarding the scope of its 
power? Mr. Wilkerson, does any come to mind?
    Colonel Wilkerson. Well, there have been a few. I mean, 
President Truman certainly had a real problem when he tried to 
take on the steel industry.
    Mr. Davis. He had one-time--this Administration has had a 
number. There is a pervasiveness to it.
    Colonel Wilkerson. I don't disagree with you. I think 
history is--and I was part of this Administration for 4 years. 
I think history is probably going to judge this as one of the 
most inept Administrations in American history.
    Mr. Davis. Mr. Levin, would you speak to that? You are a 
knowledgeable, trained, constitutional scholar. Do you know of 
any Administration that has so consistently advanced positions 
that are at odds with mainstream legal/judicial opinion 
regarding the scope of its power?
    Mr. Levin. I don't. And I can't claim to have exhaustively 
studied the issue.
    Mr. Davis. But none come mind?
    Mr. Levin. But I don't.
    Mr. Davis. Final observation in the time that I have: Mr. 
Wilkerson, would you please end this--actually, Mr. Levin, 
frankly, you would be the better person to pose this.
    Every now and then we have these hearings. It is usually 
someone to my left, the Committee's right, who will advance the 
argument that, well, all of these liberal Democrats are worried 
about torture and all these liberal Democrats are worried about 
our being too tough and too mean on these bad guys around the 
world.
    Will you, Mr. Levin, conclusively disabuse us of the idea, 
if you oppose torture, you are sympathetic to al Qaeda?
    Mr. Levin. Yes. Torture is obviously abhorrent and against 
anything that this country stands for. I don't know anybody who 
supports torture or--in the Government who----
    Mr. Davis. Mr. Wilkerson, will you, as my time runs out, 
just speak to that idea and disabuse us once and for all of the 
idea that if you oppose torture that you are sympathetic to al 
Qaeda?
    Colonel Wilkerson. I think it is nonsense. I think it is 
right there with dissent is in some way cowardly or something. 
I think dissent is the highest form of patriotism.
    Mr. Davis. Thank you, gentlemen.
    Mr. Nadler. Thank you.
    I now recognize for 5 minutes the gentleman from Ohio.
    Mr. King. Or Iowa. And I appreciate that.
    Mr. Nadler. Sorry, from Iowa. One of those Midwest States 
that are flat, you know.
    Mr. King. We are the one under water, and I happen to be--I 
also wanted to point out, Mr. Chairman--and to the gentleman 
from Alabama, I am not to your left, regardless of the 
logistics here, but thank you.
    Mr. Davis. That is why I said my left, the Committee's 
right--my physical left, the Committee's right.
    Mr. King. You are an attorney, and I do appreciate the 
accuracy of your original statement. I couldn't resist 
commenting.
    I would like to turn first to Mr. Levin and the discussion 
that was brought up by Mr. Davis of Alabama with regard to the 
habeas case that we heard the decision on last week. I call it 
the GITMO case. And I would ask you as a constitutional scholar 
if you could advise this Constitution Subcommittee how Congress 
might enforce Article 3, Section 2, whenever we might decide to 
pass that legislation which in those cases are legion, how do 
we enforce that when the court defies the directive of 
Congress?
    Mr. Levin. I would have to study that a lot more closely, 
sir. I am sorry. It is just not something I am prepared to 
address now.
    I understand----
    Mr. Nadler. Would the gentleman yield for a second?
    Mr. King. I would.
    Mr. Nadler. When you are asking a question about Article 3, 
Section 2, could you simply mention what article that is?
    Mr. King. I would be happy to. And reclaiming my time, it 
is the section of the Constitution that grants to the 
legislature, to the Congress the authority to strip the court 
of jurisdiction to hear particular cases under such conditions 
as the Congress shall set. And we have done so in a series of 
cases that have to do with the Detainee Treatment Act and the 
Hamdan decision and the list goes on, setting up a military 
tribunal.
    So--and we directed the appeals to be exclusive within the 
authority of the D.C. Circuit Court--Court of Appeals. And the 
Supreme Court chose to hear a couple of these cases, maybe more 
of them. The Congress sits here now, having danced at the end 
of the Supreme Court's string. We tried to accommodate them; we 
passed legislation on two occasions to do that. And now they 
have moved the ball, so to speak, and Lucy has pulled the 
football away from the Charlie Brown Congress.
    Now that I have expressed myself on that, would you care to 
comment, Mr. Levin?
    Mr. Levin. Again, I would have to study it more closely. I 
do understand that the--in general, the Court has taken a very 
restrictive approach toward legislation that attempts to limit 
jurisdiction. In this particular case, I actually thought that 
they concluded that Congress had stripped statutory 
jurisdiction, but that there was still a constitutional level 
or constitutional basis for habeas corpus that Congress could 
not remove.
    Mr. King. That may well be their conclusion, which I would 
disagree with, Mr. Levin. But I think it is an astute 
observation.
    And I turn to another astute attorney, Mr. Rivkin, and ask 
what your comment might be about how Congress can restrain an 
oligarchical court that seems to have been moving--changing--
moving the ball on us, so to speak. And how do we enforce that, 
and what is the bottom line on this?
    If we keep trying to catch up with the Supreme Court, they 
will become the people that run this country, rather than the 
people.
    Mr. Rivkin. There is tremendous uncertainty. I cannot say 
enough critical things about this opinion. I think it is one of 
the two or three worst opinions in Court history--Foley and 
Barr, Dred Scott and Plessy--not because of its implications, 
but because of its overarching constitutional arrogance.
    And this opinion, with all due respect to Congressman 
Davis, is not a poke at the Bush administration. It is a poke 
at both political branches, all of you, where the Court 
basically, leaving aside the question of whether or not the 
Constitution applies overseas and leave the Constitution habeas 
overseas. They have taken a look at perfectly adequate 
procedures. There is a whole line of cases, Swain v. Pressley, 
INS v. St. Cyr, which deals with so-called adequate 
substitutes. And the majority opinion written by Justice 
Kennedy just blew right past those cases, very cursory matters.
    My honest opinion is, there is absolutely no certainty, if 
you ask me to draft legislation, that anything you would pass 
that would deviate in the slightest from the baseline Federal 
habeas, codified at section 2241, would pass their muster. I 
don't know, if you decided to anoint one district court in the 
District of Columbia as an exclusive repository for all habeas 
petitions if nothing else. I don't know if that would pass 
muster because this is an opinion that is utterly willful, 
inconsistent with precedent and inconsistent with the 
Constitution.
    So you need to see what they will say next time.
    Mr. King. And, Mr. Rivkin, I would submit that there is 
precedent for Congress abolishing judicial districts. And 
whatever the Congress gives, we can take away, at least 
constitutionally; and all of the Federal courts, with the 
exception of the Supreme Court, are the creation of Congress.
    And so we do have the authority; we do not have the will. 
And the bottom-line: We don't have the will.
    Mr. Rivkin. It is funny you say that. I was speaking to a 
colleague of mine, and he remarked upon the fact that, 
theoretically, you are absolutely right, you have a power to 
abolish all the lower courts.
    But I am not sure, under the logic of Justice Kennedy's 
opinion, you can do that because that would impermissibly 
impede the ability of detainees to bring the habeas petition. 
So maybe you cannot do that either anymore.
    Mr. King. So perhaps we can reduce the Supreme Court down 
to Chief Justice Roberts with his own card table and his own 
candle, and they might get the message.
    I thank you, Mr. Rivkin. I appreciate your testimony and 
everyone else's.
    Mr. Chairman, I yield back the balance of my time.
    Mr. Nadler. Thank the gentleman.
    And I recognize the distinguished gentlewoman from Florida.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman. And I might 
note for Mr. King that of the five Justices in the majority in 
last week's opinion, three of them were appointed by Republican 
Presidents.
    Mr. Wilkerson, I would like to ask you a couple of 
questions just about some--if you can comment on some things 
that you have said recently for clarification.
    Recently you were quoted as stating, ``Haynes, Feith, Yoo, 
Bybee, Gonzales and--at the apex--Addington, should never 
travel outside the U.S.'' You continued, ``They broke the law; 
they violated their professional ethical code. In future, some 
government may build the case necessary to prosecute them in a 
foreign court, or in an international court.''
    Why do you describe Mr. Addington as at the apex of this 
group, and what prompted you to make that statement?
    Colonel Wilkerson. Because it is my view that Mr. 
Addington's very astute brain was integral to the development 
of not just the legal position to back the CIA's findings 
program, but also to back, ultimately, the program that DOD 
generated for the Armed Forces.
    Ms. Wasserman Schultz. In terms of the legal memorandum 
that was written by John Yoo, did you ever see those memoranda 
and what was your reaction?
    Colonel Wilkerson. I saw some of them; I didn't see all of 
them.
    In fact, as I listened to Senator Levin yesterday, I was 
stunned. I knew Senator Levin was sitting on a lot of material 
that I had not seen, but that I had heard of, but I had no idea 
that he had gotten almost all of it, apparently, with a few 
exceptions.
    The memos that I saw gave me the impression that lawyers 
were sitting in the room--you will pardon my soldier's view of 
this--trying to count how many angels could sit on the head of 
a pin with regard to something that was, to me as a soldier, 
quite serious--torture, abuse and so forth.
    Ms. Wasserman Schultz. That leads me to ask you about some 
notes that were released from a meeting in Guantanamo Bay in 
October of 2002 that was reviewed yesterday in the Senate Armed 
Services Committee about interrogation methods.
    In that meeting, a CIA lawyer named Jon Fredman described 
the legal guidance that the CIA had received from the 
Department of Justice. Mr. Fredman said that according to the 
Justice Department, whether something is torture is basically 
subject to perception. And he also wrote, if the detainee dies, 
then you are doing it wrong.
    In terms of demonstrating that rules for covert operations 
eventually spilled over into standard military procedures, can 
you describe your ``discomfort''--I guess is probably an 
understatement--between the significant difference between Army 
Field Manual procedures and CIA intelligence gathering 
techniques and where your discomfort lies?
    Colonel Wilkerson. I have some familiarity with what some 
of the CIA teams did in Vietnam, for example, that the military 
took, at least the military I was a part of, took some great 
umbrage at. So I do have some historical familiarity with what 
the CIA can do in the field, has done in the field, as opposed 
to what the military can do in the field.
    In this case, I think there was this double effort. The CIA 
would do a highly--a highly classified, compartmented program 
that was, as pointed out earlier, only affect high-value 
targets, and they could do certain things against those high-
value targets.
    I think what happened on the other side of the river, so to 
speak, was that the Pentagon wanted to wage this conflict on a 
very wide-scale basis. They wanted to go after everyone from 
Abu Sayyaf in the Philippines to Jemaah Islamiyah to al Qaeda, 
every terrorist that could possibly come against us. Mr. Feith 
writes about this quite extensively in his book, War and 
Decision. And as a consequence, they needed actionable 
intelligence too.
    They immediately put the Special Operations Command into 
the mix here, so much so that we actually had ambassadors 
calling in from the field at the State Department and saying to 
the Secretary, Who are these 6'4'', 19-inch-bicep male 
Caucasians walking around in our capital, moaned to everyone--
of course, the ambassador knew exactly who they were--and we 
had to ask Mr. Rumsfeld what was going on. And he had to 
eventually fess up that he was putting these people in capital 
cities around the world and other places.
    So they needed actionable intelligence for these people to 
take direct action or to capture terrorists in their areas. And 
that is what caused, I think, the gravitation over to the DOD 
of the legal philosophy that backed the CIA program; and some 
of the same techniques that Secretary Rumsfeld admittedly, very 
painstakingly, went through and tried to identify those that 
would not constitute torture, but would bring results.
    And then----
    Ms. Wasserman Schultz. As my time expires, I--so basically, 
is it your opinion that DOJ crafted legal advice really 
intended for the CIA, so that it would be applicable and 
utilized by the military in intelligence and interrogation-
gathering techniques?
    Colonel Wilkerson. I don't know if that was the Justice's 
intent, but I know that is what--I am 99 percent sure that is 
what happened.
    Ms. Wasserman Schultz. Whether it was intentional or not, 
it is still illegal?
    Colonel Wilkerson. That has what we are arguing about.
    Ms. Wasserman Schultz. I yield the balance of my time.
    Mr. Nadler. I thank the gentlelady.
    I now recognize for 5 minutes for the purpose of 
questioning the witnesses the gentleman from Minnesota.
    Mr. Ellison. Mr. Levin, we had a lot of conversation about 
the so-called ``torture memo,'' not the one that was revised, 
but the one that wasn't; the one that you, I think, revised--
that one.
    I think that it is fair to say that the people who 
participated in drafting that memo, led by David Addington--and 
there were several others that have been mentioned--what I 
would like to focus your attention on is, what dialogue are you 
aware of that may have occurred before the drafting of the memo 
and who participated?
    For example, was Vice President Cheney involved in any 
preliminary discussions before the torture memo was actually 
written?
    Mr. Levin. If you were asking about the August 2002 memo--
--
    Mr. Ellison. That is the one.
    Mr. Levin. I just don't know, sir. I am sorry. I was 
actually Chief of Staff of the FBI at the time. And that was 
written--I just had no involvement in those issues, so I don't 
know.
    Mr. Ellison. Yeah. But I was just assuming that given that 
you did come into the role that you did, and you must have--you 
walked those halls every day, you sat down with people, you 
discussed things.
    I mean, do you know if the Vice President was personally 
involved in any preliminary discussions to the drafting of that 
memo?
    Mr. Levin. I don't know, sir. I am sorry.
    Mr. Ellison. For the record, do you know if the President 
was involved in the drafting of the memo?
    Mr. Levin. I don't know.
    Mr. Ellison. Now, when you drafted your memo, why--this may 
seem a simple question, but what made you redraft the memo?
    Mr. Levin. When I arrived at OLC, that process was really 
sort of already under way. Questions had been raised about the 
previous memo--frankly, I think, both internally and 
externally--and I think the assessment of Jack Goldsmith, who 
was head of OLC and others, including Deputy Attorney General 
Jim Comey, was that the previous memo was not really an 
appropriate memorandum to have out there, that it should be 
replaced with a new memo.
    And that is what I worked on when I got there. Jack had 
already really kind of started that process.
    Mr. Ellison. Whom did you talk to in the redrafting?
    Mr. Levin. I talked to a lot of people. As I mentioned in 
my opening remarks, I think one of the problems with the 
earlier memo was, it was not the subject of sufficiently broad 
collaboration and discussion.
    I talked, in addition to everybody in the Office of Legal 
Counsel virtually, people at the Criminal Division, various 
other people in the Department, people at the State Department.
    Mr. Ellison. Did you talk to anybody in the Vice 
President's Office?
    Mr. Levin. I don't believe I did talk to anybody in the 
Vice President's Office. I did submit drafts to the White House 
Counsel's Office, and whom they circulated it to in the White 
House, I don't know.
    Mr. Ellison. Okay.
    Do you know if--did Mr. Addington have any input into your 
redraft?
    Mr. Levin. Not directly to me. Whether he did so 
indirectly, I am not sure. He may have provided comments to 
White House Counsel that were then communicated to me as their 
comments.
    I was not ever told anything that were his comments, and he 
never spoke to me about it directly.
    Mr. Ellison. Could you put your finger on exactly what the 
parts of the memo were that needed changing?
    Mr. Levin. There were--there really were two parts of it, 
or from the big picture, there were aspects of the actual 
analysis of the torture statute that I concluded were 
incorrect, I disagreed with.
    Maybe I am wrong and they are right, but I disagreed with 
the actual analysis of the statute.
    There was then a very large part of the opinion that went 
beyond the statute to a variety of other analysis of the 
President's ability to override the statute, self-defense, 
necessity defenses to the statute; and in my, view and I think 
the view of others, that was simply inappropriate to even 
include in the memo.
    The President's clear direction was, we are not going to 
engage in torture. So there was no reason to look for ways that 
you might be able to get around the statute or violate the 
statute.
    Mr. Ellison. Do you believe that the earlier memo gave 
license to people following its direction to engage in illegal 
techniques, interrogation techniques?
    Mr. Levin. Well, it included a definition of torture that I 
frankly disagreed with and which would have, I think, allowed 
techniques that I would have concluded violated the statute. 
And it included this discussion of ways that you could overcome 
the statute, even if it applied and otherwise would have been 
violated.
    Mr. Ellison. So if somebody were to rely on that memo, the 
earlier memo, they would have been violating the law 
intentionally?
    Mr. Levin. If somebody relied on the first part of that 
memo and went up to the limits of what it allowed, in my view 
they would be violating the law.
    Now, again, maybe I am wrong and the earlier memo is 
correct. If somebody relied on the other constitutional 
overrides of these defenses, in my view they might well have 
been violating the law. It obviously would depend on the 
circumstances.
    Mr. Ellison. Did that ever happen?
    Mr. Levin. I don't know. I don't know.
    I know there have been lots of investigations into sort of 
how things ended up happening and who was relying on what. My 
understanding was that that memo was very--was not broadly 
circulated. And so I don't know whether people who were 
engaging in any conduct were even aware of the memo, let alone 
relying on it.
    Mr. Nadler. Thank you. The time of the gentleman has 
expired.
    There are six votes on the House floor. There are 12 
minutes left to vote. We have two people left to ask questions. 
We are going to try to finish it, because otherwise we will 
have to ask the witnesses to stay an hour or so. So I am going 
to have to be strict now with the timing.
    The gentleman from Virginia is recognized.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Levin, is there an internationally accepted definition 
of torture? I mean, if you went to the United Nations, would 
there be a lot of confusion about when it is torture and when 
it is not torture?
    Mr. Levin. I think, as a general matter, the Convention 
against Torture is probably the internationally accepted 
definition. Applying it in particular circumstances may be 
difficult, but the actual definition I think is--most people 
would accept that as the definition.
    Mr. Scott. Well, I mean, does it become okay if you, 
instead of calling it ``torture,'' call it ``aggressive 
interrogation techniques''? Does that make it okay?
    Mr. Levin. No. If it violated either the Convention or the 
statute, it doesn't matter what you call it.
    Mr. Scott. And the rules, do they apply if you are under 
United States control, but not technically on United States 
jurisdiction?
    Mr. Levin. The statute actually--the Federal statute only 
applies if you are outside of the United States, and so it 
would only apply in the situation where you were outside the 
United States.
    If you were inside the United States, various other 
statutes----
    Mr. Scott. So it would apply at Guantanamo Bay and Abu 
Ghraib prison?
    Mr. Levin. Yes, I think that is correct. I don't think 
anybody ever suggested that the statute did not apply.
    Mr. Scott. Okay. If the torture--if the normal 
interrogation techniques do not work, does that justify 
torture?
    Mr. Levin. Under the statute, nothing justifies torture. If 
it is torture, it is not allowed, regardless of the reason.
    Mr. Scott. If it worked, does it justify the torture?
    Mr. Levin. No. Under the statute, it doesn't. There is no--
there is nothing that says you can do it if it is successful. 
It doesn't matter whether it is successful or not.
    Mr. Scott. Does it become okay if the Administration says 
it is okay?
    Mr. Levin. No. If it violates the statute, it violates the 
statute.
    Mr. Scott. So the--you can't just write a little memo 
saying it is okay and that gives everybody the green light to 
go forward; is that right?
    Mr. Levin. No.
    I mean, obviously you would have to analyze the statute as 
best you could to make sure you were complying with it and not 
violating it.
    Mr. Scott. And this thing called ``rendition,'' does that--
if you hand somebody over to someone who is not restrained, 
knowing or at least suspecting they are going to torture 
somebody, does that make you complicit?
    Mr. Levin. Well, it would violate the Convention against 
Torture, which has a prohibition against just that. Whether it 
would constitute a conspiracy to violate the U.S. statute, I 
think, is not something I have ever analyzed, so I don't know.
    But it would certainly violate the Convention against 
Torture.
    Mr. Scott. Following up on one of the questions that the 
gentleman from Minnesota asked, in your 2004 memo, you had a 
footnote in there that said, ``We have reviewed this officer's 
prior opinions addressing issues involving treatment of 
detainees and do not believe that any of their conclusions 
would be different under the standards set forth in this 
memorandum.''
    ABC News reported that the White House insisted that that 
footnote be included; is that true?
    Mr. Levin. I don't--I am not allowed to discuss that. I am 
sorry, sir.
    Mr. Scott. Do you deny the ABC report?
    Mr. Levin. I think if I answer that question, I would be 
giving an answer to the question I am not allowed to answer.
    So I am sorry. I am simply not authorized to discuss that.
    Mr. Scott. What is the meaning of that footnote?
    Mr. Levin. I can tell you what it meant to say. And to the 
extent people have interpreted it differently, it is my fault 
for not being clearer on it.
    But what I meant was, if you took the other opinions the 
office had written analyzing particular techniques, and you 
took out the statutory analysis there and put in the new 
statutory analysis, in my view, the people writing those 
opinions would not have come to a different conclusion. 
Because, for instance, they never said this pain is really, 
really extreme, and it is just up to the line of body--organ 
failure, but it is not quite there.
    They never--those opinions never thought they were close to 
the line. It did not mean, as some have interpreted--and again 
this is my fault, no doubt, in drafting--that we had concluded 
that we would have reached the same conclusions as those 
earlier opinions did. We were, in fact, analyzing that at the 
time, and we never completed that analysis.
    Mr. Scott. Just to be clear on the White House asking you 
to do this, without revealing the contents of the discussion, 
did you discuss the footnote with the White House?
    Mr. Levin. Yes.
    Mr. Scott. I yield back, Mr. Chairman.
    Mr. Nadler. And the gentleman from North Carolina is 
recognized for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    Mr. Wilkerson, I just want to zero in on one question and 
that is the levels at which leadership failed. You have got 
this sentence in here, At what level did American leadership 
fail? I believe it failed at the highest levels of the 
Pentagon, in the Vice President's Office and perhaps even in 
the Oval Office.
    I am going to set aside the Oval Office because you are 
conjecturing there. You seem to be conjecturing there, and 
excusing the President for relying on the February 7, 2002, 
memo that he received. But there is no conjecture in the early 
part of that sentence it seems to me. Maybe you intended for 
there to be.
    What was it that led you to believe that leadership failed 
at the Vice Presidential level?
    Colonel Wilkerson. Well, reasonable people can argue and 
have argued, and probably will forever as long as the CIA 
exists, about the CIA doing what was essentially attempted to 
be verified legally.
    My problem is with the military, and that is what I am 
talking about with regard to failed leadership. But I actually 
think that in addition to Jim Haynes and Douglas Feith, that 
the Defense Department--and, ultimately, the blame goes to the 
Secretary of Defense, Donald Rumsfeld--there was a sharing of 
information from the Vice President's Office through David 
Addington, John Yoo, Jay Bybee and others that allowed the 
Defense Department to rapidly build a legal argument with 
regard to what it was going to do with the military forces; and 
that that legal argument ultimately wound up, in my view, 
causing some of the problems that we saw, for example, most 
dramatically, with Abu Ghraib.
    Mr. Watt. So when you are referring to a failure of 
leadership in the Vice President's Office, you are talking 
about who?
    Colonel Wilkerson. I am talking about David Addington.
    Mr. Watt. In the Office of Legal Counsel?
    Colonel Wilkerson. No. David Addington was in the Vice 
President's Office.
    Mr. Watt. And what role was he playing?
    Colonel Wilkerson. As I understand it, he was--at that 
time, he was Counselor to the Vice President.
    Mr. Watt. And were you able to determine whether he was 
acting with the authority of the Vice President or without the 
authority?
    Colonel Wilkerson. I have no idea. David has been with Mr. 
Cheney for a long time. He was in the Pentagon when I was 
working for Chairman Powell--when General Powell was Chairman 
of the Joint Chiefs of Staff. And we in the military had some 
strange terms to refer to David. I don't believe that David 
would do anything that the Vice President was not aware of.
    Mr. Watt. Mr. Chairman, I have more time, but we have one 
more person here and it would deprive her of the opportunity if 
you want to not come back after the six votes.
    Mr. Nadler. By unanimous consent, we will give 2 minutes to 
the gentlelady from Texas, who is a Member of Committee, but 
not the Subcommittee.
    Ms. Jackson Lee. Let me thank my good friend from North 
Carolina, the Chairman, and of course the Ranking Member.
    Let me quickly just ask, in light of the Supreme Court 
decision, to the gentleman there--let me thank you for your 
service--can anyone affirm the midnight venture to then-
Attorney General Ashcroft? Was it your understanding that a 
trip to his office by the then-Attorney General--or to the 
hospital bed--that had to do with torture and signing off on 
the fact that torture could be utilized?
    Was that ever gleaned as fact?
    Mr. Levin. My understanding, based in part on Deputy 
Attorney General's Comey's testimony, is that that related to a 
different matter, not to interrogation techniques.
    Ms. Jackson Lee. And as you have just--the three of you, as 
you perceive some of the actions that occurred with respect to 
the writing of the memo, the issues that--not presented to 
Congress, would you consider any of those patent violation of 
constitutional law as it relates to how the torture memo was 
written or how it was ultimately utilized?
    Mr. Levin? If I could get all three of you to answer.
    Mr. Levin. Yes. I concluded that the statutory analysis in 
the original memo was incorrect in some respects.
    Again, they may be right and I may be wrong, but I 
concluded it was incorrect as a matter of statutory analysis. 
There was a lot of constitutional analysis in there that we 
concluded was completely unnecessary.
    So I never--I have not really gone through kind of line by 
line. There are parts I don't agree with, but I--you know, I 
haven't really kind of gone through it line by line.
    Ms. Jackson Lee. But it had constitutional weaknesses.
    The other gentlemen, if you could answer that question as 
my time ends.
    Mr. Rivkin. I am in substantial accord with Dan. I am not a 
big fan of that memo, but I don't think anything in there rises 
to the level of malfeasance or bad faith or violations of law.
    Ms. Jackson Lee. Mr. Wilkerson?
    Colonel Wilkerson. I am not a lawyer, so I don't feel 
competent to comment on that. But I will tell you that 
Secretary Powell and I had opportunity to share our views once 
or twice on what things that were happening in the world, 
particularly Guantanamo, Abu Ghraib and other revelations that 
were coming out.
    We are doing a remarkable job of diminishing our influence 
in the world and our real power in the world.
    Mr. Nadler. I thank the gentlemen.
    The time of the gentlelady has expired.
    Ms. Jackson Lee. Thank you very much.
    Mr. Nadler. I thank the witnesses. Without objection, all 
Members will have 5 legislative days to submit to the Chair 
additional written questions to the witnesses, which we will 
forward and ask the witnesses to respond to as promptly as 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 in the record.
    There is now 1 minute left for us to get to the floor and 
vote.
    I thank the witnesses again. And with that, the hearing is 
adjourned.
    [Whereupon, at 3:49 p.m., the Subcommittee was adjourned.]

                                 
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