[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 III)

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



                                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 26, 2008

                               __________

                           Serial No. 110-189

                               __________

         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 26, 2008

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     5

                               WITNESSES

Mr. David Addington, Chief of Staff, Vice President of the United 
  States
  Oral Testimony.................................................     7
Mr. John Yoo, Professor, Boalt Hall School of Law, University of 
  California at Berkeley
  Oral Testimony.................................................     7
  Prepared Statement.............................................    10
Mr. Christopher Schroeder, Charles S. Murphy Professor of Law and 
  Public Policy Studies at Duke University
  Oral Testimony.................................................    18
  Prepared Statement.............................................    20

                                APPENDIX
               Material Submitted for the Hearing Record

Exhibits submitted by David Addington, Chief of Staff, Vice 
  President of the United States.................................    88
Post-Hearing Questions submitted to David Addington, Chief of 
  Staff, Vice President of the United States.....................   148
Post-Hearing Questions submitted to John Yoo, Professor, Boalt 
  Hall School of Law, University of California at Berkeley.......   157
Correspondence between Pilippe Sands, Professor of Laws and 
  Director, Centre for International Courts and Tribunals, and 
  John Yoo, Professor, Boalt Hall School of Law, University of 
  California at Berkeley.........................................   165


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

                              ----------                              


                        THURSDAY, JUNE 26, 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 10:12 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Conyers, Nadler, Davis, Wasserman 
Schultz, Ellison, Scott, Watt, Cohen, Franks, and King.
    Also present: Representative Delahunt.
    Staff present: Sam Sokol, Majority Counsel; David Lachmann, 
Subcommittee Majority Chief of Staff; Caroline Mays, Majority 
Professional Staff Member; and Paul B. Taylor, Minority 
Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order.
    Today's hearing will be the third in our series of hearings 
on the role of Administration lawyers in the formulation of 
interrogation policy.
    I want to say at the outset that the subject matter we are 
considering today is of utmost importance to the integrity and 
honor of this nation.
    This hearing is very important and it will not be permitted 
to be disrupted by anyone in the audience for any purpose. 
Anyone who is disruptive in any way will be expelled 
immediately and without further proceedings.
    Without objection, the Chair is authorized to declare a 
recess of the hearing, which I hopefully will not have to do, 
except if there are votes on the floor.
    We will now proceed to Members' opening statements.
    As has been the practice in this Subcommittee, I will 
recognize the Chair and Ranking Members of the Subcommittee and 
of the full Committee to make opening statements.
    In the interest of proceeding to our witnesses and mindful 
of our busy schedules, I would ask that other Members of the 
Subcommittee submit their statements for the record.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record.
    The Chair now recognizes himself for 5 minutes for an 
opening statement.
    Today, we commence the third in our series of hearings on 
the role of Administration lawyers in the development and 
implementation of interrogation rules, which have drawn 
criticism here in the United States and around the world.
    I think it does not go too far to say that the reputation 
of this nation and our standing as the leading exponent of 
human rights and human dignity have been besmirched by the 
policies of this Administration.
    Legal memos have been written defining torture out of 
existence and what almost everyone except this Administration 
regards torture has been inflicted on prisoners.
    Today, we will look at how these policies came into being 
and how they were applied.
    I think I speak for many of my colleagues when I say that 
the more we find about what was done and how it was concerned 
and how it was justified, the more appalled we become.
    These policies have been kept from the Congress and the 
American people by assertions of secrecy, assorted privileges 
and flat refusals to disclose what has been done and why, even 
in classified settings.
    As a result, the information that we do know has come out 
in dribs and drabs, often through the press.
    That is unacceptable.
    We live in a democracy composed of three equal branches of 
government. No one has the right to arrogate to themselves the 
complete non-checked power of the power state. That simply 
defeats the design of our system of checks and balances, which 
the founders of this nation crafted to ensure our freedom and 
protect us from the unaccountable monarchy against which we 
rebelled and to which we do not want to return.
    Today, we are joined by two of the architects of those 
policies, one testifying voluntarily and one testifying under 
subpoena, and I hope we will be able to have a free and open 
discussion of these very important questions.
    Clearly, we do not want to reveal classified information in 
this open setting, but neither will we be deterred by expansive 
and unjustified claims of assorted privileges.
    I would ask that if the witnesses feel the need to invoke a 
privilege, they do so judiciously and that they provide the 
specific basis for that claim of privilege.
    I look forward to the testimony of our witnesses and I hope 
we can finally begin getting to the bottom of these important 
questions.
    I yield back the balance of my time.
    I would now recognize our distinguished Ranking minority 
Member, the gentleman from Arizona, Mr. Franks, for his opening 
statement.
    Mr. Franks. Well, thank you, Mr. Chairman.
    I thank all the panelists who are here with us today.
    Mr. Chairman, as I have said before, the subject of 
detainee treatment has been the subject of over 60 hearings, 
markups and briefings during the last Congress in the House 
Armed Services Committee alone, of which I am a Member.
    And I will say, then, as I have said in this Committee many 
times, torture is banned by various provisions of law, 
including the 2005 Senate amendment prohibiting the cruel, 
inhuman or degrading treatment of anyone in U.S. custody.
    Severe interrogations, by contrast, do not involve torture 
and they are legal. The CIA waterboarded 9/11 mastermind, 
Khalid Sheikh Mohammed, Abu Zubaydah, and Abdul Rahim al-
Nashiri.
    The results of these severe interrogations were of 
immeasurable benefits and perhaps saved lives in the American 
society.
    CIA Director Hayden has said that Mohammed and Zubaydah 
provided roughly 25 percent of the information the CIA had on 
al-Qaeda from human sources.
    Even ultraliberal Harvard law professor Alan Dershowitz 
wrote recently in the Wall Street Journal that ``Attorney 
General Mukasey is absolutely correct that the issue of 
waterboarding cannot be decided in the abstract. The court must 
examine the nature of the governmental interest at stake and 
then decide on a case-by-case basis. In several cases involving 
actions at least as severe as waterboarding, courts have found 
no violation of due process.''
    And, again, these are Alan Dershowitz's words, not mine.
    Torture, as I have said, again, should be illegal. But when 
severe interrogation methods that are not torture are 
contemplated, the law requires that their legitimacy be 
evaluated in context.
    To put some of this in context, it is useful to note that 
the comments of Jack Goldsmith, who formerly served as the 
assistant Attorney General with the Office of Legal Counsel, at 
a November 12, 2007 discussion at Duke Law School, Jack 
Goldsmith said the following, ``It is widely thought that the 
Administration is exaggerating the terrorist threat for public 
consumption.
    In my experience, the opposite is true. The threat, as the 
government perceives it, is much more intense, fear-inducing, 
than the government lets on to the public.''
    Mr. Goldsmith went on to say of his experience in this 
Administration, ``I don't think it is right to characterize it 
as policymakers using the fear of an attack to try to influence 
the lawyers, because everyone understood those stakes, because 
we were all reading the same reports.''
    Stuart Taylor has written the following in the National 
Journal, ``The CIA had reason to believe that unlocking the 
secrets in Khalid Sheikh Mohammed's mind might save hundreds of 
lives, perhaps many, many more, in the unlikely, but then 
conceivable event that al-Qaeda was preparing a nuclear or 
biological attack on an American city.''
    Mr. Chairman, Mr. Taylor is correct. For example, at a May 
6 Constitutional 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 refuse to provide vital information 
voluntarily.
    And I want to just have us listen to her reply.
    [Begin audio clip.]
    MS. Cohn. 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.
    [End audio clip.]
    Mr. Franks. Mr. Chairman, I want you to know, as sincerely 
as I can say, that I wish that this lady were correct. I wish 
it were that simple. I wish it could be that way.
    But I would suggest that the statement she made is 
dangerously naive and any successful effort to stop another 
devastating terrorist attack must necessarily involve a more 
serious and realistic response than that offered by Ms. Cohn.
    And I hope our discussion today rises to a higher level of 
analysis. It is critical to American national security.
    And, finally, I would like to note that the dangers of 
moving back toward the failed model of treating terrorists like 
ordinary criminals was made perfectly clear in a recently 
written article on the interrogation of Khalid Sheikh Mohammed.
    The article appeared last Sunday in the New York Times and 
it makes clear how we can expect terrorists to react when they 
are granted the rights of criminal defendants.
    According to the New York Times, Khalid Sheikh Mohammed met 
his captors at first with a cocky defiance, telling one veteran 
CIA officer, a former Pakistan station chief, that he would 
talk only when he got to New York and was assigned a lawyer.
    Of course, this was the experience of his nephew and 
partner in terrorism, Ramzi Yousef, after Yousef's arrest in 
1995.
    Unfortunately, the Supreme Court of the United States has 
taken steps to grant Khalid Sheikh Mohammed's wish, and I hope 
the Congress does not make the same mistake.
    Before I yield back, I would also like to ask unanimous 
consent that a small set of exhibits provided by Mr. Addington 
would be entered into the hearing record.
    Mr. Nadler. We would have liked testimony, too, but without 
objection.
    [The information referred to is available in the Appendix.]
    Mr. Franks. Thank you. Thank you, Mr. Chairman.
    I understand Mr. Addington may be referring to some of 
these things during his testimony here today. Electronic copies 
have been made available to Member offices.
    And I thank you for your indulgence, Mr. Chairman.
    Mr. Nadler. Well, you are quite welcome. But what I was 
referring to was the fact that we normally expect witnesses to 
submit written testimony and Mr. Addington hasn't done that, 
but has submitted these exhibits 1 through 10, which will be 
entered into the record.
    Before we go on to our next statement, I want to defend the 
reputation of Mr. Dershowitz against allegations that he is an 
ultraliberal.
    He would not so regard himself and he did write a book 
recently in which he advocated torture through warrant. He is 
not the best witness as to what constitutes torture.
    In any event, we will now recognize the distinguished 
Chairman of the full Committee for 5 minutes, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman Nadler, Ranking Member 
Franks, and all of my colleagues here.
    This is an important day. I am so glad to see the witnesses 
that are here.
    Now, I don't want to begin a dialogue with Trent Franks, 
because have plenty time for that, but Marjorie Cohn's response 
was to a question asked by Republicans on the Committee. She 
didn't come here as a person to give us advice on what we ought 
to do.
    Someone asked her that and that is what she said.
    I am more interested in what we are going to say in 
response to that question, not to any individual lawyer or 
individual citizen, and where we want to go with another person 
that was given a lawyer in New York.
    I don't know if that is shocking to anybody. We normally 
provide people that are going to be tried criminally with 
counsel. That has been the custom in the United States for 
quite a period of time now.
    So I just want to thank the Committee, this Judiciary 
Committee I am so proud of, the Constitution Committee in 
particular, and the way we go about making history around these 
questions.
    Now, we have several points here that will be examined. We 
have reports stating that our witnesses today played a central 
role in drafting Justice Department legal opinions on 
interrogations.
    Some of those opinions have been withdrawn. But let's 
listen to Senator Lindsey Graham of the Armed Forces Committee, 
what he said last week about these memos.
    [Begin audio clip.]
    Mr. Graham. What we are trying to do here today is 
important. Now, the guide that was provided during this period 
of time, I think, will go down in history as some of the most 
irresponsible and shortsighted legal analysis ever provided to 
our nation's military and intelligence communities.
    [End audio clip.]
    Mr. Conyers. And he also said that while he thought that 
Administration lawyers may have had good intentions, but he 
said ``they used bizarre legal theories to justify harsh 
interrogation techniques.''
    Now, Mr. Addington, Professor Yoo, I come here to give you 
the benefit of the doubt and we want to hear your side of it. I 
would like to understand how these memos came to be written and 
why. I would like to learn more about your view of the unitary 
executive theory of government in which the President is 
supposed to be superior to some or all of the laws or wherever 
that leads.
    I am interested in Professor Yoo's description of this 
public debate that he entered into of if the President could 
order that a suspect's child be tortured in gruesome fashion 
and that his response was ``I think it depends on why the 
President thinks he needs to do that'' or is there anything 
that the President could not order to be done to a suspect if 
he believed it necessary for the national defense.
    And that line of questions are all very important to me. We 
want to understand this and we want to have a fair discussion 
about it.
    So thank you, Chairman Nadler, for permitting me these 
opening comments.
    Mr. Nadler. I thank the distinguished Chairman.
    I now want to welcome our distinguished panel of witnesses 
today and introduce them.
    David Addington is the chief of staff and former counsel to 
Vice President Dick Cheney.
    Mr. Addington was assistant general counsel to the Central 
Intelligence Agency from 1981 to 1984. From 1984 to 1987, he 
was counsel for the House Committees on Intelligence and 
International Relations.
    He served as a staff attorney on the joint U.S. House-
Senate Committee investigation of the Iran Contra scandal, was 
an assistant to Congressman and now Vice President Dick Cheney, 
and was one of the principal authors of a controversial 
minority report issued at the conclusion of the Joint 
Committee's investigation.
    Mr. Addington was also a special assistant to President 
Ronald Reagan for 1 year in 1987, before becoming President 
Reagan's deputy assistant.
    From 1989 to 1992, Mr. Addington served as special 
assistant to Mr. Cheney, who was then the secretary of defense, 
before being confirmed as the Department of Defense's general 
counsel in 1992.
    From 1993 to 2001, he worked in private practice. Mr. 
Addington is a graduate of the Edmond A. Walsh School of 
Foreign Service at Georgetown University and holds a J.D. from 
Duke University School of Law.
    John Yoo is a professor of law at the University of 
California at Berkeley School of Law, where he has taught since 
1993. From 2001 to 2003, he served as a deputy assistant 
Attorney General in the Office of Legal Counsel of the U.S. 
Department of Justice.
    He served as general counsel of the U.S. Senate Judiciary 
Committee from 1995 to 1996. Professor Yoo received his BA 
summa cum laude in American history from Harvard and his J.D. 
from Yale Law School in 1992.
    In law school, he was an articles editor of the law 
journal. He clerked for Judge Lawrence H. Silverman of the U.S. 
Court of Appeals for the District of Columbia Circuit.
    He joined the Boalt faculty in 1993 and then clerked for 
Justice Clarence Thomas of the U.S. Supreme Court.
    Chris Schroeder is the Charles S. Murphy Professor of Law 
and Public Policy Studies at Duke University.
    He served in the Office of Legal Counsel for 3.5 years, 
including 6 months as acting assistant Attorney General in 
charge of the office.
    He has also served as chief counsel to the Senate Judiciary 
Committee. He is of counsel to the firm of O'Melveny and Myers, 
where he works primarily on appellate matters.
    He received his BA degree from Princeton University in 
1968, a master of divinity from Yale University in 1971, and 
his J.D. degree from the University of California at Berkeley 
Boalt in 1974, where he was editor in chief of the ``California 
Law Review.''
    Before we begin, it is customary for the Committee to swear 
in its witnesses. If the witnesses would please stand and raise 
your right hands and take the oath.
    Do you swear or affirm, under penalty of perjury, that the 
testimony you are about to give is true and correct, to the 
best of your knowledge, information and belief?
    Thank you. Let the record reflect that the witnesses 
answered in the affirmative. And you may be seated.
    Without objection, the written statements of the witnesses 
will be made a part of the record in their entirety. We would 
ask each of you to summarize your testimony in 5 minutes or 
less.
    To help you keep time, there is a timing light at your 
table. Assuming it works properly, when 1 minute remains, the 
light will switch from green to yellow and then to red when the 
5 minutes are up.
    I will ask the first witness, Mr. Addington is recognized 
for 5 minutes for the purpose of an opening statement.

         TESTIMONY OF DAVID ADDINGTON, CHIEF OF STAFF, 
              VICE PRESIDENT OF THE UNITED STATES

    Mr. Addington. Thank you, Mr. Chairman.
    Just three quick points, two of which are technical.
    In the introduction, you mentioned that on the Iran Contra 
Committee, I was working for Mr. Cheney. I was, in fact, the 
designee of Mr. Brumfield of Michigan in that Committee.
    Second, I think there was a reference, and I don't remember 
exactly what you said, but something like being an author or 
involved in the preparation of the minority views in that 
report.
    I think I had actually left and gone to the White House in 
the Reagan administration before it was written and I really 
didn't have anything to do, that I recall, with writing the 
report.
    Lastly and more importantly, Chairman Conyers mentioned he 
wanted to give us the benefit of the doubt, which I appreciate 
very much. He has a long history of being respectful and 
looking for the fact-finding and so forth.
    There is one subject on which I think there is no doubt and 
I thought I would point it out, given that the hallways here 
are full of protests and so forth on the subject, and, that is, 
I believe everyone on this Committee, and I am certain the 
three witnesses, want to defend this country, protect it from 
terrorism.
    That is not a partisan issue. There are obviously 
differences on how that is accomplished that we will be 
discussing today, no doubt, but I think everyone has that view 
in this group.
    Thank you, Mr. Chairman.
    Mr. Nadler. Is that--well, let me say, first, that I 
suppose I am sorry I gave you too much credit for that 1987 or 
1988 memo or whatever.
    But is that the entirety of your statement?
    Mr. Addington. Yes. Thank you. I am ready to answer your 
questions.
    Mr. Nadler. Okay. Recognize Professor Yoo for 5 minutes.

  TESTIMONY OF JOHN YOO, PROFESSOR, BOALT HALL SCHOOL OF LAW, 
              UNIVERSITY OF CALIFORNIA AT BERKELEY

    Mr. Yoo. Thank you, Mr. Chairman. I appreciate the 
opportunity to appear before the Committee.
    I also appreciate Mr. Conyers' commitment to having an open 
and fair discussion and to clarify things for the public 
record, and I appreciate that very much.
    I presented extensive opening statement to the Committee 
and the text. So I don't have anything more. I don't want to 
waste the Committee's time in reading it.
    So I will just waive the rest of my time, because I 
provided the statement.
    Mr. Nadler. That is rather unusual. You don't want to 
summarize the statement?
    Mr. Yoo. I don't need to, unless you would like me to.
    Mr. Nadler. Well, I think it would serve not everyone in 
this room, perhaps not even everyone on this Committee has read 
your statement.
    So why don't you summarize the key points of it?
    Mr. Yoo. Sure. The first thing I just wanted to make clear, 
in response to your comments about privilege, as you know, I 
have been a lawyer in the executive and legislative branches 
and I have received instructions from the Department of Justice 
about exactly what kinds of things I am allowed to talk about 
and which I cannot.
    I provided a text of that e-mail to the Committee. I just 
want to make clear, I have every desire to help the Committee, 
but I also have a professional obligation to the Department of 
Justice to obey their instructions.
    I, myself, don't have the authority to resolve any conflict 
that you as a Committee might have with them.
    As a former staff member for the Senate Judiciary 
Committee, I would never, of course, share conversations I had 
with the Member I worked for either. And so I understand that 
there could be conflict between the Committee and the----
    Mr. Nadler. Let me just say, as I said at the outset, we 
understand that there are legitimate privileges and all we ask 
is that if any one of the witnesses asserts a privilege, you do 
so judiciously and you assert--you state, rather, the exact 
grounds for the assertion of the privilege.
    And now, please summary, if you want to, your statement.
    Mr. Yoo. Yes. I just wanted to make it clear when we start 
at the beginning.
    Mr. Nadler. Fine.
    Mr. Yoo. Just a few points.
    One point I would just like to make clear is that we are 
talking about events that happened 6 to 7 years ago and I think 
it is important to remember the context within which these 
questions arose.
    Some of the events occurred no more than 6 months after the 
9/11 attacks, in which 3,000 of our fellow citizens were 
killed.
    I know, having worked in the government at that time and 
dealt with the Congress, that Members of both branches were 
very concerned that there would be follow-up attacks by al-
Qaeda, which is one of their trademarks.
    I believe we in the Justice Department, in examining these 
questions, did the best we could under the circumstances to 
call the legal questions as best we could with the materials 
that we had available under those circumstances.
    I want to make clear, and I don't think anyone in the 
department would make any claim of infallibility about our 
legal judgments. These are very difficult legal questions. I 
think they are the hardest questions that a government lawyer 
can face.
    I openly accept that reasonable people can differ in good 
faith about their answer to these questions.
    One last thing I want to make clear is also that we were 
functioning as lawyers. We don't make policy. Policy choices in 
these matters were up to the National Security Council or the 
White House or the Department of Defense.
    Our job was to provide legal advice about the meanings of 
different Federal laws, but our job wasn't to--I am sorry. As 
lawyers, it wasn't our purpose and we were not in the business 
of choosing amongst different policy options.
    Let me say, though, and, for that matter, in response to 
these questions about privilege and so on, I can't provide any 
information to the Committee about why different policy choices 
were made, because we weren't privy to those decisions.
    I do think, though, and I will close here, that as someone 
who has seen the results of those policies, to the extent they 
have been publicly disclosed by the head of the intelligence 
agencies and the President, I think that those policies have 
successfully provided information to the government that have 
allowed this country to prevent terrorist attacks by al-Qaeda 
on our homeland.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Yoo follows:]
                     Prepared Statement of John Yoo




    Mr. Nadler. I thank the witness.
    Now recognized for 5 minutes for an opening statement, 
Professor Schroeder.

TESTIMONY OF CHRISTOPHER SCHROEDER, CHARLES S. MURPHY PROFESSOR 
      OF LAW AND PUBLIC POLICY STUDIES AT DUKE UNIVERSITY

    Mr. Schroeder. Thank you, Chairman Nadler.
    Mr. Nadler. Use your mic, please.
    Mr. Schroeder. Thank you, Chairman Nadler and Mr. Franks 
and Mr. Chairman. It is a privilege to be here today.
    I am not here to question anyone's good faith, either my 
two colleagues here before us today or anyone else who worked 
in the Administration under what were extraordinarily difficult 
circumstances.
    We are all eager in providing the country the best and most 
effective defense against any additional attacks.
    At the same time, it has become clear, as events have 
unfolded and been revealed, that events have taken place with 
respect to how detainees have been treated, with respect to how 
military commissions have been established and their procedures 
with respect to how surveillance activities have been 
undertaken by the National Security Agency, that we find out, 
as events unfold, that behind each of these occurrences, these 
policy decisions, there has frequently been a substantial legal 
analysis from the Office of Legal Counsel.
    And I have to say, reluctantly, that I think a number of 
these analyses have serious mistakes in them. And so I think it 
is important to look back in an effort so that going forward, 
we can establish methods whereby the President will be getting 
the best legal advice in good times, as well as bad, and to do 
that to the extent that it is humanly possible.
    So I would just make three points about the memorandum, and 
this is mildly repetitive of my prepared statement, which you 
have, but just let me emphasize three points.
    One I think the memoranda reflect, starkly reflect an 
extreme view of absolute and uncontrollable presidential power 
that has been pursued by this Administration, not without 
dissent among the lawyers inside the Justice Department and 
other places, but it seems that those dissenting voices don't 
remain around for very long and that the prevailing view has 
been one in which the President is purported to have almost un-
definable limits on the power that he apparently is entitled to 
exercise as commander in chief to control the conduct and 
operations of a war.
    Now, this power, if it is applied to the war on terror, is 
breathtaking in its scope, because the President, first, has 
warned us, and I think it is plausible to believe, that the war 
on terror is going to be going on for a long time.
    Secondly, we have defined, as we ought to, that the 
battlefield of this war on terror includes the United States, 
as much as Iraq or Afghanistan.
    And, third, the tactical strategic decisions about how to 
go after terrorists, about how to interrogate them once you 
have detained them, about whether they can be detained for some 
period of time or have to be put on trial, if they are tried, 
what the conditions of those trials ought to be, are enormous 
authorities.
    And for the President to assert that in each and every of 
these respects affecting American citizens, as well as foreign 
nationals, as well as aliens who have never set foot in this 
country, that the President has unilateral and unreviewable 
authority, even to disobey the criminal statutes that the 
Congress has passed and a President has ratified, is a position 
that is far outside the mainstream of jurisprudence in this 
country, of what the Supreme Court has held, and, indeed, what 
prior Presidents have asserted.
    The second point I want to say is this is not a criticism 
that has been raised simply by President Bush's political 
opponents or by liberal law professors.
    Jack Goldsmith is a staunch Republican. When he came into 
the Office of Legal Counsel and reviewed some of these memos, 
he called them ``deeply flawed, sloppily reasoned, and 
overbroad.''
    When the Attorney General, the acting Attorney General, Mr. 
Goldsmith, the director of the FBI were confronted with the 
national security surveillance program, they refused to 
reauthorize it.
    They refused to agree with the analysis that had been done 
earlier that purported to find that this was also something 
within the President's constitutional authority, and our 
understanding is that they and perhaps several other high 
ranking officials in the Justice Department threatened to 
resign over this legal analysis.
    You have Mr. Goldsmith telling a story in his book of 
needing to review and eventually to revise or reauthorize, 
under quite different legal analyses, what he calls ``a small 
stack'' of these memoranda.
    So this is not just outsiders carping at the President. 
This is reflective, I think, of a deeply flawed view of the 
jurisprudence that ought to be applied in understanding both 
the strengths and the limits of what the President can do in 
the face of statutory prohibitions.
    And the last point I will mention is just with respect to 
how these memos have been put together.
    In my testimony, I express some concerns that they don't 
seem to have followed internally in the Office of Legal Counsel 
the good practices that the office has tried to pursue over the 
years.
    Mr. Yoo supplied some information and some more details, 
which I am glad to have received, in his prepared testimony. I 
think they still leave a number of questions, in my mind, that 
would be worth pursuing, but I see my red light is on and I 
will stop at this point and perhaps be able to say more in 
response to some of your questions.
    Thank you.
    [The prepared statement of Mr. Schroeder follows:]
             Prepared Statement of Christopher H. Schroeder




    Mr. Nadler. Thank you. I thank the witnesses for their 
statements.
    And we will now go to the questioning. 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, provided that the Member is present when 
his or her turn arrives.
    Members who are not present when their turn begins will be 
recognized after the other Members have had the opportunity to 
ask their questions.
    The Chair reserves the right to accommodate a Member who is 
unavoidably late or only able to be with us for a short time.
    I will inform the Members of the Subcommittee that we do 
anticipate having more than one round of questioning.
    I will begin by recognizing myself for 5 minutes to 
question the witnesses.
    Mr. Addington, It has been reported in several books and in 
the The Washington Post that you contributed to the analysis or 
assisted in the drafting of the August 1, 2002 interrogation 
memo signed by Jay Bibey.
    Is this correct?
    Mr. Addington. No.
    Mr. Nadler. You had nothing to do with that.
    Mr. Addington. No. I didn't say I had nothing to do with 
it. You asked if I assisted in contribution, and let me read to 
you something I think will be helpful to you.
    This is an excerpt from the book that I recommend that all 
of you----
    Mr. Nadler. Make it briefly, because I have a number of 
questions.
    Mr. Addington. I will make it very brief. ``War by Other 
Means'' by Professor Yoo, page 33, two sentences to read. 
``Various media reports claim that his influence,'' I am the 
``his,'' ``was so outsized, he even had a hand in drafting 
Justice Department legal opinions in the war on terrorism. As 
the drafter of many of those opinions, I,'' Professor Yoo, 
``find this claim so erroneous as to be laughable, but it does 
show how wrong the press can get the basic facts.''
    Same book, page 169----
    Mr. Nadler. Wait a minute. Mr. Addington, please, we don't 
need all these quotes.
    Mr. Addington. Okay.
    Mr. Nadler. Just tell us what your role was, if you can.
    Mr. Addington. Yes, I will.
    Mr. Nadler. Because you said it wasn't nonexistant but you 
didn't help shape it. So what was it?
    Mr. Addington. Mr. Chairman, my recollection, first of all, 
I would be interested in seeing the document you are 
questioning me about. I think you are talking about a document 
of August 2002.
    Mr. Nadler. Yes.
    Mr. Addington. It would be useful to have that in front of 
me so I can make sure that what I am remembering relates to the 
document you have and not a lot of other legal opinions I 
looked at.
    But assuming you and I are talking about the same opinion, 
my memory is of Professor Yoo coming over to see the counsel of 
the President and I was invited in the meeting, with the three 
of us, and he gave us an outline of here are the subjects I am 
going to address.
    And I remember, when he was done, saying, ``Here are the 
subjects I am going to address,'' saying, ``Good,'' and he goes 
off and writes the opinion.
    Now, in the course of my work--thank you. You have a copy 
of it? Thanks. Let me just look at it. I will give it back to 
you.
    It is August 1, 2002, memorandum for Alberto Gonzales, 
counsel of the President, re: standards of conduct for 
interrogation under 18 USC Sections 2340 and 2340(a).
    I believe that this is the result of the process I was just 
describing where he came over and said, ``These are the 
subjects I am going to address,'' and we said, ``Good.''
    Now, there is one thing worth pointing out in there in 
defense of Mr. Yoo, who, as any good attorney would, has, I 
presume, not felt free to explain and defend himself on the 
point.
    I can do this in my capacity essentially as the client on 
this opinion. It was later said about this opinion, ``It 
unnecessarily addressed constitutional issues, defenses that 
could be raised.''
    You don't want to hear that, Mr. Chairman?
    Mr. Nadler. Not right now, because I have a number of 
questions and we are running out the clock.
    Mr. Addington. Please, go ahead.
    Mr. Nadler. The Washington Post reported that, ``The vice 
president's lawyer,'' referring to you, I believe, ``advocated 
what was considered the memo's most radical claim that the 
President may authorize any interrogation method, even if it 
crosses the line into torture.''
    Is that accurate?
    Mr. Addington. That The Washington Post said that?
    Mr. Nadler. No, not that The Washington Post said it. Is 
The Washington Post correct in saying that?
    Mr. Addington. Could you repeat it? I have to listen 
closely before I answer.
    Mr. Nadler. That you advocated what was considered the 
memo's most radical claim that the President may authorize any 
interrogation method, even if it crosses the line into torture.
    Mr. Addington. No, I don't believe I did advocate that. 
What I said was, in the meeting we had with Mr. Gonzales and 
Mr. Yoo and me present, Mr. Yoo ran through ``here are the 
topics I am going to be addressing,'' one of which is the 
constitutional authority of the President, separate from issues 
of statutes.
    My answer is, ``Good, I am glad you are addressing these 
issues.''
    Mr. Nadler. So in other words, you didn't advocate any 
position. You simply said, ``I am glad you are going over these 
topics.''
    Mr. Addington. Correct.
    Mr. Nadler. Okay. Now, do you believe that the President 
can order violations of the Federal torture statute if he 
believes it necessary for national security under his Article 2 
or any other powers?
    Mr. Addington. I will answer that carefully, because 
although, in common conversation, we are used to using words 
like ``torture'' and meaning a common conversation, what we are 
talking about are laws here.
    The Federal statute which implements a----
    Mr. Nadler. Let me just read now the question. Do you 
believe the President can order violations of a Federal statute 
if he believes it necessary for the national security?
    Mr. Addington. As a general proposition, no. I qualify that 
is a general proposition because I think we all agree, in fact, 
there was testimony here and I think some of the Members of 
this Committee agreed that facts matter for lawyers in 
rendering opinions, and I wouldn't render a legal opinion in 
the absence--I wouldn't render one to the Committee----
    Mr. Nadler. When do you believe that the President is 
justified in violating a statute?
    Mr. Addington. You are assuming a fact not in evidence. I 
didn't say I did believe that.
    Mr. Nadler. You said under certain circumstances.
    Mr. Addington. No. I said reserving the fact that you need 
to have facts in order to render legal opinions.
    Mr. Nadler. Are there any----
    Mr. Addington. And as I said----
    Mr. Nadler. Excuse me. Is there any set of facts----
    Mr. Addington. I won't render a legal opinion.
    Mr. Nadler. Is there any set of facts that would justify 
the President in violating a statute?
    Mr. Addington. I am not going to answer. A legal opinion on 
every imaginable set of facts, any human being could think of, 
Mr. Chairman.
    Mr. Nadler. Do you believe that the torture of--torture, 
never mind how you define it, assume it is torture, do you 
believe that torture of a restrained detainee could be allowed 
under a theory of self-defense and necessity?
    Mr. Addington. I haven't expressed an opinion on that, Mr. 
Chairman.
    Mr. Nadler. You have not expressed an opinion.
    Do you have such an opinion?
    Mr. Addington. I haven't researched the issue myself. I 
have relied on opinions on the subject issued by the Department 
of Justice.
    Mr. Nadler. But you did express the opinion, I believe, 
that the President could--or that his Article 2 powers as 
commander in chief, in effect, allowed him to take actions 
which the FISA statute would prohibit. Is that correct?
    Mr. Addington. I don't believe I have expressed those here. 
I think there is a serious question, constitutional questions 
raised to the extent Congress, instead of carrying into--
helping bypassing statutes to carry into execution the 
President's power would instead try to block the President's 
power.
    There are court cases at the circuit level, not at the 
Supreme Court level, and, also, the foreign intelligence 
surveillance quarter review that refer to the President's 
commander in chief powers as----
    Mr. Nadler. Let me ask you one further question.
    Mr. King. Mr. Chairman? I would ask unanimous consent to 
grant the Chairman an additional minute to complete his 
questioning.
    Mr. Nadler. Thank you. Without objection.
    Mr. Addington, Mr. Yoo, Professor Yoo is quoted as saying 
that under certain circumstances, it would be proper and legal 
to torture a detainee's child to get necessary information.
    Do you agree with that?
    Mr. Addington. I don't agree or disagree with it, Mr. 
Chairman. I don't plan to address it. You are seeking legal 
opinion and, as we told you in Exhibit 4, I am not here to 
render legal advice to your Committee. You do have attorneys of 
your own to give you legal advice.
    Mr. Nadler. Let me ask Mr. Yoo one opinion--one question. 
In your memo, Professor Yoo, you talked about, the memo that 
has been quoted repeatedly from August--the Bibey memo which 
you helped prepare--that severe pain, as used in the Federal 
statute, prohibiting torture, must rise to the level that would 
ordinarily be associated with a sufficiently serious physical 
condition such as death, organ failure or serious impairment of 
body functions.
    Where did you get that from? I mean, I know that that 
language is in a different statute.
    But where did you derive that that is what torture means 
under the Federal statute?
    Mr. Yoo. Mr. Chairman, you are referring to the August 1, 
2002 memo.
    Mr. Nadler. Yes.
    Mr. Yoo. Not the March 2003.
    Mr. Nadler. Yes.
    Mr. Yoo. Again, I want to say--your question is where did 
it come from.
    Mr. Nadler. No. How did you reach that conclusion? You made 
a very specific statement that this is what--in order to 
violate the statute, it has got to meet this criterion.
    Mr. Yoo. Yes.
    Mr. Nadler. Where did you get that criterion from?
    Mr. Yoo. So let me make clear, when Congress passed that 
statute, there is no further definition of that phrase in the 
statute itself.
    We looked at the legislative history. There was no 
legislative history from the time of the passage of the statute 
that produced any kind of definition.
    There was no--the United States Justice Department had 
never brought a prosecution under this statute. There had been 
no judicial decisions of that language.
    So we applied, I think, as the memo says, a can of 
construction to try to find anywhere else in the U.S. Code 
where Congress, where you have defined those terms in any other 
kind of statute.
    And as the opinion says, and the 2003 opinion also says, we 
recognize that that statute was on a subject that was different 
than the torture statute, but we used a can of construction to 
try to infer from what Congress has passed in other contexts to 
see if it can provide some help to us in trying to interpret 
what I think is--I think then, I think now is a very difficult 
statutory language, because there was no further judicial 
interpretation or congressional guidance.
    Mr. Nadler. Thank you.
    The time of the Chairman has expired.
    I will now recognize the distinguished Ranking Member on 
this Subcommittee, Mr. Franks.
    Mr. Franks. Well, thank you, Mr. Chairman.
    And thank you, Mr. Addington, Mr. Yoo and Mr. Schroeder, 
for appearing here.
    Is it Mr. Schroeder or Mr. Schroeder?
    Mr. Schroeder. Half of my family says Schroeder, the other 
half says Schroeder. You can take your pick.
    Mr. Franks. I will stick with your family on this one.
    Professor, are you familiar with the report of the 9/11 
commission?
    Mr. Schroeder. Yes, I am.
    Mr. Franks. According to page 132 of that report, in 
December 1998, the Clinton administration, Justice Department, 
issued a legal opinion authorizing the assassination of Osama 
Bin Laden on the apparent ground that he was waging war on the 
United States and that assassinating him would be self-defense, 
not murder.
    Incidentally, I think assassinating him might have 
interfered with some of his major bodily functions. I am just 
positing an opinion there.
    Do you believe that this is one of the implausible theories 
of defenses to criminal statutes that you decry on page 3 of 
your prepared testimony?
    Mr. Schroeder. Well, Mr. Franks, I haven't reviewed either 
that opinion or the Committee report. I do believe that if we 
are talking about the formulation of the defense of self-
defense a necessity as it appears in the August 2002 
memorandum, that, yes, that is--the way those defenses are 
articulated there are among the pieces of legal reasoning in 
that memo that I think are far-fetched.
    And I am surprised actually to read in Professor Yoo's 
testimony that he says the criminal division reviewed the memo. 
He doesn't say the criminal division approved of the contents 
of the memo, and I would be surprised if they did.
    I would be interested in knowing. And by they, I mean not 
only the political appointees, but the career professionals in 
the Justice Department, and I say that because, in my, 
experience, the prosecutors in the criminal division labor 
mightily to keep those defenses as narrow as possible, as you 
can imagine, since they are in the business of prosecuting 
criminals.
    And, in fact, in 2001, the Supreme Court had just recently 
decided a case that the government argued, in which the 
government argued that unless the defense of necessity was 
explicitly stated in a Federal statute, it wasn't available to 
a defendant in opposing----
    Mr. Franks. Thank you, Mr. Schroeder.
    Mr. Schroeder [continuing]. A conviction under a Federal 
statute.
    So it surprises me to learn that the criminal division was 
part of this process, and yet nothing about their--what I think 
the full range of their views would be on self-defense and 
that----
    Mr. Franks. Professor, thank----
    Mr. Schroeder [continuing]. Have revealed in the memo.
    Mr. Franks. Thank you.
    It does appear a little interesting to me that the Clinton 
Justice Department can issue a memo saying that assassinating 
someone is a self-defense of the country, but now we are 
debating today whether waterboarding someone like Khalid Sheikh 
Mohammed to save perhaps thousands of American lives here is 
the big question.
    Mr. Yoo, let me read part of an interview that you had with 
Esquire magazine. In that interview, you discussed the need for 
precise legal guidance when you help draft legal opinions at 
the Office of Legal Counsel (OLC).
    And incidentally, I think this is very well stated. ``The 
other thing I was quite conscious of was that I didn't want the 
opinion to be vague so that people who actually have to carry 
out these things don't have a clear line, because I think that 
would be very damaging and unfair to the people who are asked 
actually to do these things.''
    Do you have any elaboration on that?
    Mr. Yoo. Mr. Franks, I think the interview speaks for 
itself, but let me just say, now, not putting myself in the 
position back then, but now, I think when you are called on to 
interpret a statute which provides language which Congress 
hasn't otherwise defined and the courts haven't otherwise 
defined, that it is important to give the client, the people 
who have to undertake action very clear definition, the best we 
can do, of what those terms mean.
    Mr. Franks. Well, I think that is what you tried to do, Mr. 
Yoo.
    Mr. Chairman, I would just say, try as they might, the 
majority should not be spinning matters of life and death into 
a soap opera.
    The fact remains that the special terrorist interrogations 
program was approved through a normal process for classified 
covert operations. It was disclosed to Speaker Pelosi. She did 
not object at the time.
    It was rarely used and it was immensely successful in 
preventing future terrorist attacks.
    Mr. Addington, is there anything that you would like to add 
here?
    Mr. Addington. Just one brief point. Professor Schroeder 
mentioned that it was unnecessary or even not a good idea that 
Mr. Yoo's opinion of--excuse me--Mr. Bibey's opinion of August 
1, 2002 addressed the defenses of necessity and justification 
and I think the constitutional issue.
    In defense of Mr. Yoo, I would simply like to point out 
that is what his client asked him to do. So it is the 
professional obligation of the attorney to render the advice on 
the subjects that the client wants advice on.
    Mr. Franks. Thank you, Mr. Chairman.
    Mr. Nadler. I will now recognize the distinguished Chairman 
of the full Committee, Mr. Conyers.
    Mr. Conyers. Thank you very much, Chairman Nadler.
    Professor Yoo, I appreciate your appearance here today.
    During a public debate, it was reported you were asked if 
the President could order that a suspect's child be tortured in 
gruesome fashion, and you responded that ``I think it depends 
on why the President thinks he needs to do that.''
    Is that accurate?
    Mr. Yoo. Mr. Chairman, I don't believe it is accurate, 
because it took what I said out of context.
    The quote stopped right before I continued to explain a 
number of things, which I appreciate the opportunity to do now.
    Mr. Conyers. But so far, what I read was accurate, but 
there was more.
    Mr. Yoo. It stops like mid-sentence. So I didn't get to 
finish--I mean, I finished the sentence during the debate, but 
I didn't----
    Mr. Conyers. Okay.
    Mr. Yoo [continuing]. Get a chance to----
    Mr. Conyers. Thank you.
    Is there anything, Professor Yoo, that the President could 
not order to be done to a suspect if he believed it necessary 
for national defense?
    Mr. Yoo. Mr. Chairman, I think that goes back to the quote 
you just read, because----
    Mr. Conyers. No. I am just asking you the question. Maybe 
it does or doesn't, but what do you think?
    Mr. Yoo. I think it is the same question that I was asked--
--
    Mr. Conyers. Well, what is the answer?
    Mr. Yoo. First, can I make clear, I am not talking about--
--
    Mr. Conyers. You don't have to make anything clear. Just 
answer the question, counsel.
    Mr. Yoo. I just want to make sure I am not saying 
anything----
    Mr. Conyers. You don't have to worry about not saying--just 
answer the question.
    Mr. Yoo. Okay. My thinking right now----
    Mr. Conyers. Yes, right now.
    Mr. Yoo. My thinking right now----
    Mr. Conyers. This moment.
    Mr. Yoo. This moment, Mr. Chairman, is that, first, the 
question you are posing----
    Mr. Conyers. What is the answer?
    Mr. Yoo. Mr. Chairman, I am not trying to make you----
    Mr. Conyers. I get it, okay.
    Mr. Yoo. Let me answer--I will answer the question.
    Mr. Conyers. No. You are wasting my time. Look, counsel, we 
have all practiced law.
    Mr. Yoo. I don't think the President----
    Mr. Conyers. Hold it. Could the President order a suspect 
buried alive?
    Mr. Yoo. Mr. Chairman, I don't think that I have ever----
    Mr. Conyers. I am asking you that.
    Mr. Yoo [continuing]. Given the advice that the President 
could bury somebody alive.
    Mr. Conyers. I didn't ask you if you ever gave him advice. 
I asked you, do you think the President could order a suspect 
buried alive.
    Mr. Yoo. Mr. Chairman, my view right now is that I don't 
think a President would--no American President would ever have 
to order that or feel it necessary to order that.
    Mr. Conyers. I think we understand the games that are being 
played.
    Okay. Now, let me turn to Attorney Addington about the ABC 
News report that there was a so-called principals meeting in 
which Vice President Cheney sat around with other cabinet level 
officials to approve specific interrogation techniques.
    Is this true?
    Mr. Addington. I don't know of any such meeting, Mr. 
Chairman. It doesn't mean one did or didn't occur. I certainly 
wasn't at one.
    Mr. Conyers. None.
    Mr. Addington. I was not at a meeting that fits the 
description you have given.
    Mr. Conyers. Right. Do you feel that the unitary theory of 
the executive allows the President to do things over and above 
the stated law of the land?
    Mr. Addington. The Constitution binds all of us, 
Congressman, the President, all of you as Members of Congress, 
all of the Federal judges. We all take an oath to support and 
defend it.
    I, frankly, don't know what you mean by unitary theory of 
government. I don't have----
    Mr. Conyers. Have you ever heard of that theory before?
    Mr. Addington. Oh, I have. I have seen it in the newspapers 
all----
    Mr. Conyers. Do you support it?
    Mr. Addington. I don't know what it is.
    Mr. Conyers. You don't know what it is.
    Mr. Addington. No, and it is always described as something 
Addington is a great advocator of.
    Mr. Conyers. I see.
    Mr. Addington. Now, let me tell you where I have used the 
word ``unitary,'' in quoting OLC opinions, in drafting signing 
statements, and you will find OLC opinions that refer to the 
unitary executive branch.
    And by that, they simply mean----
    Mr. Conyers. I don't need you to interpret to me what other 
people have used.
    Mr. Addington. No. I am answering your question.
    Mr. Conyers. You are telling me----
    Mr. Addington. I have used the word----
    Mr. Conyers [continuing]. You don't know what the unitary 
theory means.
    Mr. Addington. I don't know what you mean by it, no, Mr. 
Chairman.
    Mr. Conyers. You don't know what I mean by it.
    Mr. Addington. Or anyone else.
    Mr. Conyers. Do you know what you mean by it?
    Mr. Addington. I know exactly what I mean by it and----
    Mr. Conyers. So what do you mean?
    Mr. Addington [continuing]. Sentences.
    Mr. Conyers. Tell me.
    Mr. Addington. The use of the word ``unitary'' by me has 
been in the context of unitary executive branch and all that 
refers to is--I think it is the first sentence of Article 2 of 
the Constitution, which says all of the executive power is 
vested in, A, the President of the United States, one 
President, all of the executive power, not some of it, not part 
of it, not the parts Congress doesn't want to exercise itself.
    That is all it refers to.
    Mr. Conyers. Thank you very much.
    Mr. Addington. Yes, sir.
    Mr. Nadler. The gentleman from Iowa is recognized for 5 
minutes.
    Mr. King. Thank you, Mr. Chairman. And perhaps I would 
quote the Chairman of the full Committee and we could take the 
temperature down in here just a little bit, and I have always 
found the Chairman to be a gentleman and I point that out to 
the witnesses today.
    Mr. Addington. I do, too, sir. Chairman Conyers has a long 
and distinguished history.
    Mr. King. That is a unanimous opinion on the Judiciary 
Committee, I believe.
    I wanted to take you back, Mr. Addington, and just simply 
give you a little latitude to express yourself here.
    The book, ``Torture Team'' by Philippe Sands, which has 
been quoted here a number of times and seems to be the source 
of the criticism, refuted by at least two of the witnesses here 
at the panel today, and I would ask--what do you have to say 
about the credibility of the information that is in that book 
and without necessarily impugning the author, if that can be 
done?
    Mr. Addington. Yes. I have read the book. I can't, of 
course, as a witness who is under oath, address every word on 
every page in the book. There are things in there, as I recall 
from reading it, that were accurate and there were things in 
there that weren't.
    Mr. King. And, Professor Yoo, the same question.
    Mr. Yoo. Sir, I haven't read the book. I did read Mr. 
Sands' testimony before this Committee and I noticed in the 
testimony he said that he had interviewed me for the book, and 
I can say that he did not interview me for the book.
    He asked me for an interview and I declined. So I didn't 
quite understand why he would tell the Committee that he had 
actually interviewed me.
    Mr. King. And with that answer, Professor Yoo, then, I am 
going to interpret that to mean that at least with regard to 
that statement that he had interviewed you, you find that to be 
a false statement and that would perhaps reflect on the 
veracity of the balance of the book.
    Mr. Yoo. I can't tell what else is in the book, but I don't 
understand why he would say that he interviewed me for the 
book.
    I can tell the Committee that he contacted me once. He 
wanted an interview for the book and I said, ``I don't want to 
talk to you. I wrote my own book. You can look at my own book. 
Everything I have to say is in my book.
    And then he told the Committee that he had interviewed me.
    Mr. King. Thank you, Professor Yoo.
    Let me just take this a little bit a different way. And we 
are here, the Constitution Subcommittee of the House Judiciary 
Committee, reviewing apparently the process by which the 
Administration reached a conclusion which seems to be a little 
bit amorphous at this point.
    And it is still in the middle of a war, trying to put it 
within the context of 2008 rather than the context of 2001, 
with the smoking hole at ground zero, still a smoking hole, 
with the reconstruction of the Pentagon not perhaps yet begun, 
and an entirely different environment.
    And I would make this point, that without regard to 
constitutionality or statute with regard to torture, there was 
a different environment and a different context with which the 
President had to make decisions.
    And I am, I believe, reliably informed that the President 
has taken the position consistently that prisoners will be 
treated humanely. Now, that definition of humane may be up for 
question.
    But within this context, it is a similar context with which 
we went into liberate Iraq. And I will make this point, that 
had the President not taken action, if the President had said 
we are going to make sure that we treat every prisoner with the 
idea, the advice that the Ranking Member of the Committee put 
up on the screen at the beginning of--during his opening 
statement, we are going to make friends with them and cuddle up 
to them and gain their trust and then we will find out 
everything we need to know and we can surely rely on somebody 
we are nice to tell us the truth.
    If the President had taken that approach, that the 
President had also taken the approach that in spite of the 
global evidence, the global intelligence evidence that weapons 
of mass destruction that Iraq had, if he had either said ``I 
don't believe that that exists'' and if we do send troops, they 
are going to go in without, let's just say, weapons against 
chemical weapons or without defense against chemical weapons of 
mass destruction, the President had misstepped anywhere along 
the way and misinterpreted that very cautionary evidence that 
was out there, and we had been attacked again by the 
terrorists, which we have not effectively been so on this soil 
since September 11, 2001, any little trip along the way would 
have been turned back on him as having either not taken action 
against weapons of mass destruction in Iraq or not extracting 
the intelligence that was necessary to protect the American 
people from a terrorist attack.
    If he had been soft on this, the President might well be 
brought before this Committee or at least as the subject of the 
Committee. We might have seen another series of hearings like 
we saw in this same room in 1998 if the President hadn't taken 
action.
    And I would ask, Mr. Addington, if you would care to 
characterize this within the context of the circumstances 
during the time that is at question here today.
    Mr. Addington. Yes, Mr. Chairman.
    I am careful in doing so because of the point I made at the 
outset, that everyone here, I recognize, wants to defend the 
United States of America and their constituents from attack.
    Chairman Nadler, for example, lost several thousand in his 
district. I mean, he had the twin towers in his district. So I 
don't want to appear to be lecturing on ``I care more about 
protecting Americans than you do,'' and I don't and I know you 
don't either, Mr. Franks, want to be seen that way.
    I am sorry, Mr. King.
    Mr. King. Thank you.
    Mr. Addington. We looked--I looked, I should say, through 
basically three filters as we considered these kinds of issues 
back, as you say, when they were still smoking, the twin towers 
and the Pentagon.
    The first filter in deciding what we have to do is support 
and defend the Constitution of the United States. We all have 
to start there. Every one of us, Members of Congress, me, 
everybody in the executive branch takes the same oath.
    We have to take the oath to support and defend. The 
President has a different oath, but the rest of us all took the 
oath to support and defend the Constitution.
    The second filter you look through in deciding how are we 
going to approach these issues, at least I did, was how, within 
the law, I emphasize that, within the law, I help maximize the 
President's options in dealing with it.
    The third filter is when you go to war, you ask a lot of 
people to do very tough things. On this Committee, I know there 
are some veterans. Chairman Conyers I know served in the Korean 
War era and there are others who served.
    You ask people to do--young men to do tough things, young 
women to do tough things in wartime. Same with our intelligence 
agents. You want to make sure that whatever orders they are 
given, they are legally protected.
    You don't want to find out later somebody things, ``Oh, 
let's investigate that, maybe they are wrong.'' You want to be 
careful about it.
    So everything we did in that era, at least that is what I 
carried in my head to measure recommendations or legal advice 
as they were going through.
    Now, the one thing I would add to what you said, Mr. King, 
is things were different back then. The smoke is still rising. 
It was fresh in our memories that 3,000 Americans were just 
killed by al-Qaeda terrorists, and that is true.
    Things are not as different today as people seem to think. 
We are dealing with intelligence on threats every day. We have 
to consider these things.
    Now, there can be legitimate judgments and disputes, and 
this Committee has had them and they go on throughout the 
government about what combination of activities should deal 
with these sorts of things.
    But no American should think we are free, the war is over, 
al-Qaeda is not coming and they are not interested in getting 
us, because that is wrong.
    Mr. King. Thank you, Mr. Addington and all the witnesses.
    Mr. Chairman, I yield back.
    Mr. Nadler. I thank the gentleman.
    I now recognize, for 5 minutes, the gentleman from Alabama.
    Mr. Davis. Thank you, Mr. Chairman.
    Gentlemen, thank you for coming today.
    Mr. Yoo, I have not read your book, but I did do you the 
courtesy of reading your opening statement and I want to have 
some conversation with you about it.
    In your opening statement, your written statement, you make 
the observation that it was your analysis, 2001-2002, rather, 
that the anti-torture statute passed by Congress in the 1990's, 
the interpretation of that statute would depend, as you put it, 
``not just on the particular interrogation method, but on the 
subject's mental and physical condition.''
    I interpret your observations as meaning that the test of 
torture is, in part, a subjective standard, that one has to do 
an inquiry into what you describe as the subject's physical and 
mental condition.
    Now, in response to Chairman Conyers' questions, you said 
that that interpretation did not come from legislative history, 
because there was very little. You said it did not come from 
reviewing judicial opinions, because there were none.
    And your phrase today was that there was very little--there 
was no congressional guidance--no congressional guidance.
    One good source of congressional guidance is Members of 
Congress. So I would ask you if you or, in your knowledge, 
anyone else in the Administration consulted, for example, the 
Chairman of the House Judiciary Committee, Mr. Sensenbrenner at 
that time, or other Republicans about the meaning of the anti-
torture statute?
    Mr. Yoo. Mr. Davis, thanks for the----
    Mr. Davis. That is a simple question. Was Mr. Sensenbrenner 
consulted?
    Mr. Yoo. First, I just want to correct one thing I said 
that you quoted, just to be clear here.
    There are judicial opinions on a related statute called the 
torture----
    Mr. Davis. I understand that. Was Mr. Sensenbrenner 
consulted?
    Mr. Yoo. I would not know one way or the other.
    Mr. Davis. Mr. Addington, do you know if Mr. Sensenbrenner 
was consulted? That is a simple was he or wasn't he.
    Mr. Addington. I did not consult him and I do not know 
whether anyone else did or did not.
    Mr. Davis. The Chairman of the Senate Judiciary Committee, 
I believe, was Mr. Specter, a Republican. Do either of you know 
if Mr. Specter was consulted regarding the meaning of the anti-
torture statute?
    Mr. Addington. I did not consult him. I don't know whether 
he was or wasn't and----
    Mr. Davis. Mr. Yoo, do you happen to know----
    Mr. Addington [continuing]. Not necessarily relevant to the 
legal interpretation.
    Mr. Davis. Mr. Yoo, do you happen to know if Chairman 
Specter was consulted?
    Mr. Yoo. I don't know one way or the other.
    Mr. Davis. And there is a process that has been alluded to 
today of consulting with Members of the House and Senate 
Intelligence Committees regarding certain matters that, 
frankly, we wouldn't want disclosed in open forum.
    Mr. Yoo, did you or anyone else in the Administration 
consult Members of the House or Senate Intelligence Committees 
regarding Congress' intent regarding the anti-torture statute?
    Mr. Yoo. All I know is what I have read in the newspapers.
    Mr. Davis. That is a simple were they or were they not 
consulted. Do you know if they were?
    Mr. Yoo. Again, all I know is what I have read in the 
papers about it.
    Mr. Davis. To your knowledge, were they or were they not 
consulted, Mr. Yoo?
    Mr. Yoo. You mean to my knowledge back----
    Mr. Davis. Yes. To your knowledge, they were not, were 
they?
    Mr. Yoo. I don't know.
    Mr. Davis. Mr. Addington, to your knowledge, were any 
Members of the House or Senate Intelligence Committees 
consulted regarding the question of Congress' intent regarding 
the anti-torture statute?
    Mr. Addington. There is no reason their opinion on that 
would be relevant and----
    Mr. Davis. Is that a no?
    Mr. Addington. I did not consult them and I do not know 
whether----
    Mr. Davis. Now, let me make--thank you all for answering 
those questions without too much struggle.
    One of the interesting things here today, Mr. Yoo and Mr. 
Addington, is that, frankly, we have heard this word 
``context'' over and over again and I have heard both of you 
say, and I have heard my colleagues and my friends on this side 
of the aisle say you have got to remember the context.
    We had been threatened. We had been attacked. There was a 
possibility of follow-up attacks. All of that is accurate. But 
let me tell you the rest of the context.
    You had a Congress that was a rubber stamp for the 
Administration's entire security agenda. You had Chairmen of 
the House and Senate Judiciary Committees who were strongly 
supportive of your agenda.
    You came to Congress and asked for the Patriot Act and you 
got it easily. You came to Congress and asked for an 
authorization of force resolution and you got it easily.
    You got bipartisan support for both of them.
    During the 107th, 108th and 109th Congresses, there was not 
a single time the Bush administration was rebuffed on any issue 
related to national security.
    You got an expansion of FISA that met your interests. You 
got a Military Tribunal Commissions Act that met your 
interests.
    We wouldn't be here today, gentlemen, if you had come to 
this Congress and you had said one of two things, either give 
us a stronger, clearer definition of what torture means or if 
you had even gone to congressional leadership and said you are 
a source of guidance on what Congress meant, tell us, Chairman 
Sensenbrenner, you were there, tell us, Chairman Specter, you 
were there.
    The problem, Mr. Addington, and I will direct my last 
observation to you, because you still serve with this 
Administration, when you have got a Congress that is a rubber 
stamp for what you want, you ought not be disrespectful of the 
legislative branch of government.
    If you had come to this Congress, everyone in this room 
knows to an absolute certainty, they would have given you 
anything you asked for in October 2001. If you had said, ``Give 
me a definition that fits,'' and Mr. Yoo had written the 
statute, if he had said, ``Give us a torture statute that makes 
torture a subjective condition, depending on the person's 
mental or physical state,'' you could have gotten that.
    You didn't even trust people who were rubber stamps for 
you.
    And I will yield back the balance of my time.
    Mr. Nadler. I thank the gentleman.
    I now recognize, for 5 minutes, the gentleman from 
Minnesota.
    Mr. Ellison. Mr. Yoo, you wrote the Bibey memo of August 
2002. Is that right?
    Mr. Yoo. Mr. Ellison, as I described in the opening 
statement----
    Mr. Ellison. I need a yes or no, sir.
    Mr. Yoo. I did not write it by myself.
    Mr. Ellison. Did you write it in any part?
    Mr. Yoo. I contributed to a drafting of it.
    Mr. Ellison. Okay. So you contributed to a drafting of it.
    What percentage of the drafting did you write?
    Mr. Yoo. It is difficult for me to----
    Mr. Ellison. And do you check--you checked in with 
Addington about what you were going to cover. He said you did.
    Mr. Yoo. Can I----
    Mr. Ellison. Were you----
    Mr. Yoo. We are talking about the August 1, 2002 memo.
    Mr. Ellison. Of course. Did you check in with Addington, as 
he just said you did?
    Mr. Yoo. I, unfortunately, do not have the same----
    Mr. Ellison. So you can't----
    Mr. Yoo [continuing]. Guidance as Mr. Addington does, 
because the Justice Department has told me I am not allowed to 
talk about any individuals. I am only allowed to talk about----
    Mr. Ellison. Was Mr. Addington telling the truth when he 
said you checked in with him over what you were going to cover?
    Mr. Yoo. Let me describe it.
    Mr. Ellison. No. I want you to say yes or no.
    Mr. Yoo. I gave the draft of the opinion to the White House 
counsel's office, which would be----
    Mr. Ellison. So when he just said you came in to tell us 
what he is going to cover, you cannot confirm that. Is that 
right?
    Mr. Yoo. No, I am not saying that at all, Mr. Ellison.
    Mr. Ellison. Well, answer my question. It is a yes or no.
    Mr. Yoo. And so it is up to the White House counsel to 
decide who within the White House----
    Mr. Ellison. Stop, sir. I am asking you to tell me to 
confirm whether what Mr. Addington reported to this Committee 
was right or not right. That is simple.
    I hope this isn't coming out of my time, Mr. Chairman.
    Mr. Nadler. We are a little flexible.
    Mr. Yoo. Mr. Ellison, I am afraid I have to follow the 
guidance provided by the Justice Department on this question.
    Mr. Ellison. So confirm what Addington said, deny what 
Addington said, or say ``I cannot answer the question.'' And 
what privilege are you asserting?
    Mr. Yoo. I can't answer the question because of the 
instruction by the Justice Department that----
    Mr. Ellison. Thank you.
    Mr. Yoo [continuing]. I am not allowed to----
    Mr. Ellison. Thank you.
    Mr. Yoo [continuing]. Discuss----
    Mr. Ellison. Who else was present when Addington--when you 
checked in with Addington?
    Mr. Yoo. Sir, you are assuming I answered your last 
question.
    Mr. Ellison. Is that a repeat of the last answer? Do you 
stick with the last answer?
    Mr. Yoo. Your question was who else was in the room when I 
checked in with Addington.
    Mr. Ellison. Right. And you can assert your privilege 
again, if you choose. Do you?
    Mr. Yoo. It is not my choice. The Justice Department has 
told me I can only talk about the office----
    Mr. Ellison. So at some point, this 2002 memo was 
implemented. Is that right?
    Mr. Yoo. What do you mean by implemented, sir?
    Mr. Ellison. Well, do you know what the word 
``implemented''----
    Mr. Nadler. If the gentleman would suspend for a moment and 
stop the clock, please.
    Professor, are you asserting a privilege?
    Mr. Yoo. On the last question or the previous two?
    Mr. Nadler. Either one of them.
    Mr. Yoo. On the first two he asked me, I have to because of 
the instructions by the Justice Department that I can't discuss 
internal deliberations.
    I can discuss----
    Mr. Nadler. And exactly what privilege are you asserting?
    Mr. Yoo. I assume the Justice Department--I can't say what 
the Justice Department's belief for the----
    Mr. Nadler. No, no. Wait a minute.
    Mr. Yoo. They ordered me not to----
    Mr. Nadler. Hold on. You are testifying before a 
congressional Committee.
    Mr. Yoo. Okay.
    Mr. Nadler. The Justice Department cannot order you with 
regard to your testimony. It can instruct you to take a 
privilege, if you are entitled to a privilege. You can take the 
privilege without their instructions, if you are entitled to 
the privilege.
    If you are asserting a privilege, you are entitled to do 
so, but we are entitled to ask you what privilege is it is you 
are asserting.
    Mr. Yoo. Yes, sir.
    Mr. Nadler. And whether they are ordering you to assert a 
privilege or not, if the privilege is there, you can assert it. 
If it isn't there, you can't assert it, whatever they say.
    Mr. Yoo. I believe it is the attorney-client privilege, 
sir.
    Mr. Nadler. So you are asserting the attorney-client 
privilege in not answering the question you were asked.
    We will take that--since you are not here under subpoena, 
we will take that under advisement and consider that at the end 
of the hearing.
    We will resume the questioning and the clock will resume.
    Mr. Ellison. Mr. Yoo, are you denying knowledge of what the 
word ``implement'' means?
    Mr. Yoo. No. I wanted to----
    Mr. Ellison. What does ``implement'' mean, sir?
    Mr. Yoo. You are asking me to define what you mean by the 
word?
    Mr. Ellison. No. I am asking you to define what you mean by 
``implement.'' What do you understand the term to mean?
    Mr. Yoo. It can mean a wide number of things.
    Mr. Ellison. Okay. Look, you contributed to the writing of 
the 2002 memo. Is that right?
    Mr. Yoo. Yes, I do----
    Mr. Ellison. The name on the memo was Bibey, but you 
contributed to the memo, right?
    Mr. Yoo. Yes, sir.
    Mr. Ellison. The memo was implemented at some point. Is 
that right?
    Mr. Yoo. What do you mean by implemented, sir?
    Mr. Ellison. What I mean by implemented is the guidance 
that was set forth in that legal memorandum was followed and 
put into action. Do you understand what I mean by implemented 
now, sir?
    Mr. Yoo. So you are asking me was the memo followed, was 
the memo followed by----
    Mr. Ellison. I am not going to get into semantical games 
with you in this 5 minutes. I need you to answer the question 
or refuse to.
    Was the memo implemented?
    Mr. Yoo. The memo was signed and provided----
    Mr. Ellison. I know what signed means and so do you. Stop 
wasting my time, Mr. Yoo.
    Mr. Yoo. I am not trying to, sir.
    Mr. Ellison. Was the memo followed? Will you accept 
followed?
    Mr. Yoo. I don't have personal knowledge about how it was 
followed, but I expect----
    Mr. Ellison. I didn't ask you about how. I asked you 
whether it was followed, sir.
    Mr. Yoo. Sir, you are asking me about things that other 
people would have done, not me.
    Mr. Ellison. So the fact is--so the memo was never put into 
effect. Are you making that claim?
    Mr. Yoo. No, no, no, sir. Let me go back and refer to my 
opening statement.
    Mr. Ellison. Forget it.
    Mr. Schroeder, do you understand what implement means?
    Mr. Schroeder. I think I do. Yes, sir.
    Mr. Ellison. Was this memo, this 2002 memo which Mr. Yoo 
refuses to answer questions about, ever put into effect?
    Mr. Schroeder. Of course, I have no personal knowledge. I 
wasn't in the Administration----
    Mr. Ellison. I am not asking you about personal knowledge. 
Based on your study.
    Mr. Schroeder. My understanding is that the memo was 
prompted, at least in part, by a specific request of the CIA 
with respect to what kinds of procedures their operatives would 
be able to use in interrogating some high level al-Qaeda 
detainees and that once the advice was forthcoming, my 
understanding, it is all from published investigative 
reporting, I have no firsthand knowledge myself, is that some 
of the techniques that fell on the legal side of the line, 
according to the memorandum, were employed.
    Mr. Ellison. So is that right, Mr. Yoo? Were the legal 
techniques that you outlined in this memo employed?
    Mr. Yoo. Were the techniques that were legal--let me say 
this. We did not make decisions about policy----
    Mr. Ellison. I didn't ask you about that.
    Mr. Yoo. We didn't----
    Mr. Ellison. I did not ask you about that, sir. I want to 
know if the legal advice that you gave in that memo was 
followed or if you expect that it was followed.
    Mr. Yoo. Again, Mr. Ellison, I don't----
    Mr. Ellison. Did anyone ever come to you and ask you for an 
interpretation of your memo?
    Mr. Yoo. Interpretation of my memo?
    Mr. Ellison. Did the interrogators ever come back and say, 
``We got the memo''----
    Mr. Nadler. Without objection, the gentleman will have 1 
additional minute to finish his line of questioning.
    Mr. Ellison. Did the interrogators ever return to you and 
say, ``You know, you have given us this memo, but we want to 
implement a certain technique. Do we fall within the memo?'' 
Was that scenario ever played out?
    Mr. Yoo. Again, sir, because of the instructions of the 
Justice Department, I can't tell--that is not my clock, I 
assume.
    Mr. Ellison. Mr. Schroeder, what----
    Mr. Yoo. I can't----
    Mr. Ellison. Mr. Schroeder, was the memo in effect during 
Abu Ghraib?
    Mr. Nadler. The gentleman will suspend, again.
    Professor, are you asserting a privilege?
    Mr. Yoo. Sir, I am afraid Mr. Ellison's questions may 
involve a discussion of classified information, which, because 
of congressional statute, I am not at liberty to discuss in a 
public setting.
    Mr. Nadler. So you are asserting the privilege against the 
revelation of classified information in answering the question.
    Mr. Yoo. I don't know if that is a privilege. I just can't 
do that, sir. I am not saying it is a privilege. I just can't--
that is a violation of the law.
    Mr. Nadler. You are asserting that in order to answer Mr. 
Ellison's question, you would have to reveal classified 
information.
    Mr. Yoo. I might have to, sir.
    Mr. Nadler. Might have to or do have to? Let me rephrase 
the question.
    Mr. Yoo. If I understand the question----
    Mr. Nadler. Let me rephrase the question.
    Is there any way you can answer Mr. Ellison's question 
without revealing classified information?
    Mr. Yoo. As I understand the question, I would have to 
discuss classified information to provide him a complete 
answer. I don't----
    Mr. Nadler. Okay.
    Mr. Yoo [continuing]. Do that, sir.
    Mr. Nadler. Again, we will take that under advisement.
    Mr. Davis. Mr. Chairman, may I make a parliamentary 
inquiry?
    Mr. Nadler. Yes. The gentleman will state his parliamentary 
inquiry.
    Mr. Davis. I would inquire of the Chair, after we come back 
from our break from voting on the floor, if the Chair would 
consider directing particularly the two government witnesses, 
Mr. Yoo and Mr. Addington--I have noticed, Mr. Chairman, I have 
been on the Committee for a year and a half, and I have never 
seen two witnesses, frankly, struggle as much to appreciate the 
ordinary use of terms and questions.
    Would you consider instructing the two witnesses to answer 
the questions and if they wish to elaborate or clarify, then 
they can ask to do so?
    But given that we have time constraints, I would ask that 
the Chair admonish the witnesses to err on the side of being 
responsive as opposed to constantly quibbling over word choice, 
because I have never seen it to the degree I am seeing it 
today.
    Mr. Nadler. I will certainly consider that as we break, 
which we will recess in a few minutes for the votes on the 
floor.
    The gentleman can finish his questioning.
    Mr. Ellison. My question is: when the interrogators, the 
ones who were addressing the witnesses who were being 
interrogated, were those individuals--did they have a lawyer 
that they could go to to ask about guidance as to what they 
could do or could not do under the guidance of the memo that 
you contributed to writing?
    Mr. Addington. Mr. Ellison, as I understand the structure 
of our government, the CIA has its own general counsel's office 
and I believe it is about 100 lawyers.
    So if you--I assume you believe that the CIA conducted 
interrogations and if you did, they have a general counsel's 
office to ask legal questions.
    Mr. Ellison. Were you ever asked questions about whether 
certain techniques or others were permissible under the 
guidance you gave in that memo?
    Mr. Yoo. As I said to the Chairman just a second ago, I am 
afraid I think your question asks----
    Mr. Ellison. You are asserting a privilege. Were you ever 
asked whether waterboarding was permissible under the advice 
you gave?
    Mr. Yoo. Sir, if you will let me finish. I can't answer 
your question----
    Mr. Ellison. Okay.
    Mr. Yoo [continuing]. Because I believe it----
    Mr. Nadler. The gentleman will suspend again. You are 
asserting that you cannot answer the question as to whether the 
CIA asked you questions regarding the legality of waterboarding 
without revealing classified information.
    Is that your assertion?
    Mr. Yoo. Yes, sir.
    Mr. Nadler. Okay.
    Mr. Ellison. Did you ever----
    Mr. Nadler. We will hold that--we will hold that under 
advisement, and the gentleman's time has expired.
    Mr. Ellison. One last question?
    Mr. Nadler. Without objection, the gentleman will have 30 
additional seconds.
    Mr. Ellison. Did your memo allow for the use of sicking 
dogs on interrogated individuals?
    Mr. Yoo. I am afraid I have to give the same answer, but I 
will point out to the----
    Mr. Nadler. Excuse me a second. The question was did your 
memo allow for that. That is not confidential. Your memo has 
been revealed to the public.
    Mr. King. Mr. Chairman, parliamentary inquiry.
    Mr. Nadler. One second. Let him answer the question.
    Mr. Yoo. You are referring again to the August 1, 2002 
memo. The memo speaks for itself. It does not discuss what you 
just mentioned.
    Mr. Nadler. Thank you. The gentleman's time has expired.
    The gentleman----
    Mr. King. I just simply want to make the parliamentary 
inquiry, the procedure here, whether who is actually asking the 
questions and if the privilege of the Chair is reflective of 
the executive privilege that has been denied the President of 
the United States, I just can't keep with the flow when the 
Chair is asking questions on behalf of the Member who has been 
recognized.
    Mr. Nadler. Excuse me. The Chair was not asking questions, 
but trying to ascertain what privilege is being asserted, and, 
at one point, trying to clarify so that we don't go back and 
forth with a misunderstanding, and I think I saved a little 
time.
    The gentlelady from Florida is recognized for 5 minutes, 
after which we will recess.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman.
    Mr. Addington, there are press reports that state that in 
September of 2002, you and other Administration lawyers visited 
Guantanamo Bay.
    A JAG attorney in Guantanamo, Diane Beaver, is quoted in a 
``Vanity Fair'' article as saying that the message from you and 
the other visitors was ``do whatever needed to be done.''
    And just weeks after that visit, interrogators at 
Guantanamo Bay began to developing a far harsher interrogation 
program than they had ever used before.
    Did you visit Guantanamo Bay in September of 2002, as has 
been reported?
    Mr. Addington. I don't remember the exact date, but I went 
there a number of times.
    Ms. Wasserman Schultz. Well, do you recall going to 
Guantanamo Bay around that time?
    Mr. Addington. I really don't remember the dates, ma'am, 
but I remember going in the----
    Ms. Wasserman Schultz. How many times have you been--did 
you go to Guantanamo Bay during that period?
    Mr. Addington. During that--well, I am not sure what period 
you are describing. I would say I have probably been to 
Guantanamo, I guess, maybe five times. The first time would 
have been years ago, which isn't relevant to this, when I 
worked at the Department of Defense
    And then I have probably been, I would guess, three or 
four----
    Ms. Wasserman Schultz. On one of those trips, did you meet 
with JAG attorneys?
    Mr. Addington. I don't recall it. I remember when Ms. 
Beaver, Col. Beaver, who was referenced, I think, in Mr. Sands' 
``Vanity Fair'' article, I did not remember meeting her there.
    The only time I remember meeting her is over at the office 
of general counsel at the Department of Defense many years 
later.
    Ms. Wasserman Schultz. What generally prompted your trips 
to Guantanamo Bay when you made them?
    Mr. Addington. I was invited by the Department of Defense 
to go and I accepted. I thought it would be good to go and see 
what they were doing to implement the decisions made in January 
and February at the White House to have detainees held there by 
the Department of Defense.
    Ms. Wasserman Schultz. Did you have any discussions on 
those trips about interrogation methods?
    Mr. Addington. I don't know about methods. I would say we 
probably did, only in the sense that I can remember, and I am 
not sure it is this particular trip, but at least on some of 
the trips, and it may----
    Ms. Wasserman Schultz. On any of the trips?
    Mr. Addington. Yes. That they would show us an 
interrogation room, with no one in it, so you could see what 
the room looked like and then, separately, look through, I 
assume, and I don't know, that the person being interrogated 
and the interrogator couldn't see us.
    In other words, like a one-way mirror kind of set, where 
you could see into that. So having done that, I am sure they 
must have discussed----
    Ms. Wasserman Schultz. On any of the trips, did you discuss 
interrogation methods that were directly referenced in the memo 
that we have been discussing here for this hearing?
    Mr. Addington. I am not sure I remember this memo having 
methods discussed in it, frankly.
    Ms. Wasserman Schultz. Did you discuss specific types of 
interrogation methods that interrogators should use while at 
Guantanamo Bay on the detainees?
    Mr. Addington. I don't recall doing that, no.
    Ms. Wasserman Schultz. That means you didn't or you don't 
recall doing it?
    Mr. Addington. It means I don't recall doing it, as I said.
    Ms. Wasserman Schultz. Well, it is hard to fathom that you 
would not have a recollection on specific conversations about 
types of interrogation methods as opposed to just generally 
talking about interrogation.
    Mr. Addington. Is there a question pending, ma'am?
    Ms. Wasserman Schultz. The question is I don't believe that 
you don't recall whether you discussed specific interrogation 
methods. So I will ask you again.
    Did you discuss specific interrogation methods on any of 
your trips to Guantanamo Bay with people who would be 
administering the interrogation?
    Mr. Addington. And as I said to you, I don't recall. Let me 
be clear to you that there are two different things that may be 
helpful to you in asking your questions.
    The Department of Defense interrogations----
    Ms. Wasserman Schultz. I really don't need----
    Mr. Addington. Well, the CIA program, and you will find 
when you question me the participation with respect to the CIA 
program is more extensive than the DOD program.
    And I wouldn't find it so unusual that I don't recall the 
details----
    Ms. Wasserman Schultz. Except that interrogations, your--
there is an accusation that interrogation methods went far 
beyond and up to and past torture following your visits to 
Guantanamo Bay.
    So I am trying to get a sense of whether you actually went 
there, encouraged those specific interrogation methods and 
whether they crossed the line.
    Mr. Addington. I did not.
    Ms. Wasserman Schultz. So I am pretty clear on why I am 
asking you the questions and which one I am asking you.
    On one of the trips that you took, it was weeks after the 
August 1, 2002 interrogation memo was issued by the Office of 
Legal Counsel.
    Did you have any discussions on that trip about that recent 
Department of Justice legal advice on interrogations? Did you 
ever discuss the memo which offered legal advice on 
interrogations with anyone at Guantanamo Bay on any of your 
trips there?
    Mr. Addington. I am fairly certain, I won't be absolute, 
but fairly certain that I did not.
    Ms. Wasserman Schultz. That you did not ever----
    Mr. Addington. Discuss this August 1, 2002 legal opinion to 
the counsel of the President from the Department of Justice.
    Ms. Wasserman Schultz. So you deny the suggestion then in 
their report that you encouraged Guantanamo Bay interrogators 
to do whatever needed to be done.
    Mr. Addington. No--yes, I do deny that.
    Ms. Wasserman Schultz. You do deny that.
    Mr. Addington. Yes. That quote is wrong.
    Ms. Wasserman Schultz. Okay. Did you observe an 
interrogation during the trip, as has been reported?
    Mr. Addington. I think we probably did, as I described 
earlier.
    Ms. Wasserman Schultz. And why did you observe an 
interrogation?
    Mr. Addington. The Department of Defense took us around to 
show us the camp and what was going on, showed us that. Now, I 
emphasize, I am not sure it is the particular September 2002 
trip you are describing, but on at least several of those 
trips, I----
    Ms. Wasserman Schultz. What did you observe?
    Mr. Addington. Observed a detainee in, I believe, an orange 
jumpsuit sitting in a chair.
    Ms. Wasserman Schultz. What kind of interrogation was used?
    Mr. Addington. They were talking to him during the brief 
time that we went.
    Ms. Wasserman Schultz. Simply just conversation, no other 
methods, just conversation.
    Mr. Addington. During the brief time that we were there, 
yes. And I don't recall that we could actually hear what was 
being said. You could look and see mouths moving. I infer that 
there was communication going on.
    Ms. Wasserman Schultz. But you saw no physical contact with 
the interrogators.
    Mr. Addington. Correct.
    Ms. Wasserman Schultz. The only thing you witnessed----
    Mr. Addington. It was a very brief look.
    Ms. Wasserman Schultz [continuing]. Was discussion.
    Mr. Addington. Yes.
    Ms. Wasserman Schultz. Okay. I yield back the balance of my 
time.
    Mr. Nadler. Thank the gentlelady.
    There are now three votes on the floor. The Subcommittee 
will stand in recess until immediately after the third vote.
    We ask the witnesses to remain. We thank you for your 
participation and for your indulgence and patience.
    The Committee is in recess.
    [Recess.]
    Mr. Nadler. The Committee will come to order again. I thank 
the witnesses for their patience in awaiting our votes on the 
House floor.
    Without objection, the two quotes from the ``War by any 
Means'' by Mr. Yoo that I think it was Mr. Addington asked be 
entered into the record, are entered into the record.
    Mr. Addington. Thank you. It is Exhibits 10 and 11.
    Mr. Nadler. Well, they are entered into the record, 
whatever they are.
    Before we proceed, let me simply, again, admonish those 
present in the room that this is a very serious hearing 
involving very serious and very emotional questions and we must 
consider them as dispassionately as possible.
    And any disruption or demonstration of any kind will not be 
tolerated and any person engaging in such will be immediately 
escorted from the room. So I hope we don't have the necessity 
to do that.
    When we recessed, we were about to recognize the gentleman 
from Virginia.
    The gentleman from Virginia is now recognized for 5 minutes 
for the purposes of asking questions.
    Mr. Scott. Thank you, Mr. Chairman.
    Let me see if I can get a quick answer to the question, 
because there was much discussion of military training 
techniques in the Senate Armed Services Committee last week.
    These are called the SERE techniques, S-E-R-E, survival, 
evasion, resistance and escape.
    Now, Mr. Yoo, did you ever discuss or get information about 
that program as you prepared the August 1, 2002 memorandum?
    Mr. Yoo. Mr. Scott, I am afraid the Justice Department has 
instructed me that I can't answer questions of that nature.
    Mr. Scott. Mr. Addington, did you ever discuss the SERE 
program in connection with the----
    Mr. Nadler. The gentleman will suspend.
    Mr. Yoo, in order for you to assert a privilege as a basis 
for refusing to answer a question, we need you to tell us what 
the privilege is and the specific basis on which you are 
asserting it.
    That is, precisely why and what aspect of the question you 
cannot answer further and still maintain the privilege.
    We need you to be specific and detailed enough that we can 
determine whether the basis you are asserting is valid for the 
line you are drawing in refusing or limitin your answer.
    Mr. Yoo. Mr. Chairman, according to the Justice 
Department's instructions, I believe the privileges would be 
both the attorney-client privilege and the protection of 
classified information.
    Mr. Nadler. So you are asserting that the answer to Mr. 
Scott's question would necessitate the revelation of classified 
information.
    Mr. Yoo. As I understand the instructions the Justice 
Department----
    Mr. Nadler. No, no, no, I am not asking you that. You are 
asserting the privilege, not the Justice Department.
    You are asserting their privilege. You have to be satisfied 
that--well, let me just back up a bit.
    The attorney-client privilege is not a valid privilege in 
Congress. It may be in court, but it is a common law privilege. 
It is not a valid privilege here, number one.
    But your classified information is. That is, it is valid if 
it applies.
    So what I am asking you is that you must state that an 
answer to Mr. Scott's question would necessitate the revelation 
of classified information, not that someone else believes it, 
you believe it.
    Mr. Yoo. I have to say this, sir, that the Justice 
Department gave me these instructions. I can't go out beyond 
them, sir. I am not sure what you are asking me to say.
    I mean, if your view is that my saying that this is the 
privilege, this is what the Justice Department communicated to 
me in an e-mail. So I have to follow it, sir.
    I don't have the right to go beyond or to go----
    Mr. Nadler. It is difficult to credit your assertion of 
privilege on this question because Steven Bradbury, the current 
assistant Attorney General of the OLC, testified before this 
Committee earlier this year.
    When he testified, he said that ``The CIA's use of the 
waterboarding procedure was adapted from the SERE training 
program.''
    In light of his saying that, how can your answer to Mr. 
Scott's question be privileged?
    Mr. Yoo. Sir, I recognize that it is your view that the 
attorney-client privilege does not apply. However, sir, that is 
the instructions I received from the Justice Department.
    It is their privilege to raise and those are the 
instructions I received.
    I don't want to be in the middle of a privilege fight 
myself if you and the Justice Department have a disagreement 
about it.
    Mr. Nadler. It is difficult. I gather Steven Bradbury is, I 
am told, the person giving these instructions to the Justice 
Department. He answered this question before this Committee.
    So I fail to see how, in effect, the repetition of the 
answer could be--unless you are going to disagree with him--
could be privileged.
    Mr. Yoo. Sir, I recognize that Mr. Bradbury gave me the 
instructions, but I personally can't go beyond what he has----
    Mr. Nadler. All right. The Chair will have to--I can't say 
anything further. The Chair will take your assertion of 
privilege regarding this question under advisement and we will 
come back to you later as may be warranted.
    The gentleman from Virginia's time is resumed.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Addington, did you ever discuss the SERE program in 
connection with the August 1, 2002 memorandum?
    Mr. Addington. No. I didn't think I did so, but I don't 
have any reason to dispute the quotation from Mr. Bradbury that 
the Chairman just read.
    Mr. Scott. Mr. Yoo, let me ask a kind of basic question. Is 
torture by United States officials illegal?
    Mr. Yoo. You are asking me--my current view is if it is a 
violation of torture as it is defined in the statute, in the 
criminal code, then it would be illegal under that statute.
    Mr. Scott. Thank you. Now, is there an international 
agreement of what torture is and what it isn't? I mean, doesn't 
everybody in the world kind of know when it is torture and when 
it isn't?
    Mr. Yoo. Mr. Scott, you are referring to the convention 
against torture, I believe.
    Mr. Scott. Sure.
    Mr. Yoo. So there is a treaty in effect called the 
convention against torture.
    Mr. Scott. Don't most countries kind of understand when it 
is torture and when it is not?
    Mr. Yoo. I think, looking at that treaty, that there has 
been disagreement by the United States itself as to----
    Mr. Scott. You put some disagreement in it. I am talking 
about everybody else in the world.
    Mr. Yoo. No, sir. When the Senate ratified the treaty, the 
convention against torture, it put in a reservation about its 
definition of torture.
    Mr. Scott. Okay. Whatever the definition is, did 9/11 
change that definition?
    Mr. Yoo. 9/11 did not change the definition of torture 
under the convention against torture, no.
    Mr. Scott. Now, if people--if United States officials 
torture people based on your memo, would they be protected if 
they follow your memo? If they followed your memo, would they 
be protected from prosecution, even though your memo has been 
pretty much disparaged?
    Mr. Yoo. Mr. Scott, putting aside whether it has been 
disparaged or not, the purpose of the memo was to define 
torture so that people would not commit torture.
    The memo itself does not----
    Mr. Scott. Mr. Schroeder, Professor Schroeder, can a legal 
opinion be so ridiculous that it does not protect those who 
follow the definition in such a memo?
    Mr. Schroeder. Well, it could be, Congressman. But if you 
are talking about the effect it would have on somebody, say, 
down the line, actually, an operative in the field and hasn't 
had a chance to read the memo, but is simply getting advice 
that an authoritative interpretation exists, then I think it 
would be very difficult for that person to be held responsible 
for having analyzed and rejected the law on his or her own 
behalf.
    Mr. Scott. Well, can the opinion be so ridiculous that as 
it goes down the line, people ought to have the common sense to 
reject the analysis and use their common sense as to when it is 
torture and when it is not, or does the Administration have the 
power to just write up such a memo and protect people who 
torture people based on a ridiculous legal opinion?
    Mr. Schroeder. No. I don't believe they do. I think that 
people--and you would expect that members of the military would 
use their own common sense as to what is permissible or not.
    Mr. Scott. Now, is it an excuse to torture if you got good 
information from the torture?
    Mr. Schroeder. Not under the treaty and I think not under 
the statute that implements the treaty, no.
    Mr. Scott. Is it an excuse to torture if you can't get the 
information you are looking for using less aggressive 
techniques?
    Mr. Schroeder. No, sir. The treaty admits of no exceptions.
    Mr. Scott. Now, Mr. Yoo, if you are going to go around 
torturing people based on your memo, how do you know before you 
get information whether or not you are going to get good 
information from someone?
    Mr. Yoo. Sir, I am not going around torturing people, as 
you just said, and the memo does not authorize anyone to 
torture anybody.
    So unfortunately, I don't agree with the premise of your 
question.
    Mr. Scott. Are you suggesting that the activities allowable 
under your memo do not constitute torture by everybody's 
definition in the world except yours?
    Mr. Yoo. Sir, I don't know what everybody else's definition 
in the world is.
    Mr. Scott. Now, is it an excuse to use more aggressive 
techniques, the techniques that you can use, do you get--do you 
consider the information you are going to get or the fact that 
you couldn't get it using less aggressive techniques?
    Does that excuse more aggressive techniques?
    Mr. Yoo. Sir, as I understand the statute, as it is written 
now, does not provide--it does not provide an exception for 
whether the information is good, as you said, or whether the 
interrogation techniques are less--you could less or more 
aggressive interrogation techniques.
    There is nothing in the statute that says anything about 
that.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    The gentleman from North Carolina is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    I thank the witnesses for being here.
    I have kind of observed from the earlier questioning that 
if I really want some answers, I probably ought to focus on 
Professor Schroeder here.
    Otherwise, I will probably be just pretty much banging my 
head against the wall and wasting my 5 minutes.
    So let me ask Mr. Schroeder a couple of questions here.
    I am fascinated by the comment on the first page of your 
written testimony, where you say we must be mindful of the 
difference between law and policy.
    I was kind of reflecting on that during the time we went to 
vote and recalled that in the 22 years that I practiced law, I 
had a particular client who, when he didn't like the legal 
advice I would give him, would always tell me that the Lord 
told him to do otherwise.
    And I was very insistent with him that I never wanted to 
argue with the Lord, but I stood by the legal advice that I 
gave him. And so I have some appreciation for the difference 
between policy and law.
    I guess when somebody, the Lord or somebody other than a 
lawyer, tells you that you should do something that the lawyer 
has told you he thinks is illegal, that is the distinction you 
are drawing between policy and legal advice, I take it.
    Mr. Schroeder. Yes, sir.
    Mr. Watt. All right. I think I understand the concept then.
    Well, let me, first of all, ask you, are there things that 
you understand--I know you have not been a party to all of the 
torture techniques and what have you that this Administration 
has pursued.
    Are there things that you understand that this 
Administration has pursued that go beyond Mr. Yoo's memo and 
basically the President was told or the Vice President or 
somebody in the CIA was told by somebody other than Mr. Yoo 
that the Lord or whoever told them, that--have those kinds of 
things been engaged in based on what you understand?
    Mr. Schroeder. Congressman, I hope I am now not going to 
join Mr. Yoo and Mr. Addington in being unable to respond to 
your question, but I really don't have knowledge of what 
exactly was being--now, we have read reports that waterboarding 
was used on some suspects.
    Mr. Watt. Would that be authorized by Mr. Yoo's memo?
    Mr. Schroeder. I would have to, frankly, know more about 
waterboarding than I do.
    Mr. Watt. That is fine. This is not a trick question. I am 
just trying to get----
    Mr. Schroeder. I wish I could be helpful, but I just don't 
have----
    Mr. Watt. Assume that a policy decision was made to go 
beyond the legal memorandum and advice that Mr. Yoo gave. The 
recourse that I suppose the public and Congress would have, 
only recourse probably would be an impeachment proceeding. 
Isn't that correct or is that correct?
    Don't ponder too long. My clock is ticking here.
    Mr. Schroeder. I just hate to use the word in this 
Committee, which has had to consider these matters in the past.
    It would be difficult under the legal theory in the August 
2002 memo to think of what remedy would be available other than 
impeachment.
    Mr. Watt. And I guess this is the same question that Mr. 
Scott was asking at some level. When an attorney gives a piece 
of advice that is legal advice, we presume attorneys have a 
sense of responsibility to the law, to the Constitution.
    What recourse does Congress or the public have against the 
attorney, if any?
    Mr. Schroeder. Well, proceedings with a bar association is 
one possibility. But you have to understand that I am not 
remotely in a position to say anything----
    Mr. Watt. I am not suggesting that----
    Mr. Schroeder [continuing]. That the advice being given by 
the individuals who gave them was under their understanding of 
the law, at the time, the best advice that they could give.
    I happen to think it was wrong, but there is a big 
difference between being wrong----
    Mr. Watt. Just a hypothetical question that has nothing--I 
am separating it from Mr. Yoo's opinion.
    Is there some recourse that Congress has if we find that 
the advice was outrageous, as Mr. Scott said?
    Mr. Schroeder. Well, I think as far as this institution 
goes, I am not aware of laws on the books that would reach that 
situation.
    Certainly, the bar associations responsible for someone's 
professional license could evaluate the advice that was being 
given and seeing if it constituted malpractice or an abuse of 
that person's responsibility as an officer of the court to 
uphold the law.
    Mr. Watt. So really Congress and the public really have 
little recourse other than malpractice.
    Mr. Schroeder. I would think a disciplinary proceeding 
before the bar association leading to disbarment would be the 
kind of remedy that I would think of first. But this is not a 
question I have investigated.
    Mr. Watt. Okay. My time has expired, and I appreciate you 
being responsive to my questions.
    I yield back.
    Mr. Nadler. I thank the gentleman.
    I now recognize for 5 minutes the gentleman from Tennessee.
    Mr. Cohen. Thank you, Mr. Chairman.
    And thank you, the gentleman from North Carolina.
    Mr. Yoo, you worked for Mr. Ashcroft, did you not?
    Mr. Yoo. Mr. Ashcroft was the Attorney General when I was 
at the Justice Department.
    Mr. Cohen. Right. Did you consider yourself an employee of 
his?
    Mr. Yoo. I am sorry, sir?
    Mr. Cohen. You were an employee of his. You were in the 
chain of command. You were underneath him, correct? Is that 
right?
    Mr. Yoo. Yes, sir.
    Mr. Cohen. Did you communicate with Mr. Addington sometimes 
and not relay those communications through Mr. Ashcroft's 
office and keep him outside the loop?
    Mr. Yoo. Sir, I never did anything to keep Mr. Ashcroft out 
of the loop.
    Mr. Cohen. So Mr. Ashcroft had knowledge of everything that 
you discussed with Mr. Addington, is that correct, sir?
    Mr. Yoo. As I explained in my opening statement, in the 
development of the August 2002 memo, we notified the Attorney 
General's office that we had received a request for the memo.
    They, the Attorney General's office, dictated who and whom 
we could not discuss it with. We shared drafts of the memo with 
the office of the Attorney General and the office of Attorney 
General approved the memo.
    There is no way that we----
    Mr. Cohen. Did General Ashcroft ever express to you 
concerns about your relationship to his office vis-a-vis the 
communications you had had with Mr. Addington and keeping him 
outside of the loop?
    Mr. Yoo. I don't think that I--I don't think, according to 
the Justice Department's guidelines, I am allowed to discuss 
with you any particular conversation that I had with Mr. 
Ashcroft----
    Mr. Cohen. Did the conversation exist?
    Mr. Nadler. The gentleman will suspend.
    Again, Mr. Yoo, in order for you to assert a privilege as a 
basis for answering a question, we need you to tell us what the 
privilege is and the specific basis on which you are asserting 
it.
    Mr. Yoo. Sir, any information or conversations I had with 
any individual in the executive branch is covered by the 
instruction of the Justice Department by either attorney-client 
privilege or deliberative process privilege, and that is the 
decision of the Justice Department, sir.
    Mr. Nadler. No, no, no, no. This particular question, which 
privilege are you asserting?
    Mr. Yoo. First of all, I just want to make clear it is the 
Justice Department that is asserting it and it is the attorney-
client privilege, along with, as I said before, in response to 
the previous questions.
    Mr. Nadler. Well, wait a minute. How is the attorney-client 
privilege implicated in a question about your communication 
with your superior in the--you weren't his attorney.
    The Justice Department may be--I mean, are you the attorney 
in your position or were you the attorney in your position at 
OLC of the attorney of the Attorney General?
    Was he your client?
    Mr. Yoo. Sir, it is the Justice Department that has already 
decided, in giving me these instructions, that all these 
communications are covered by either the attorney-client 
privilege or the executive deliberation privilege.
    Mr. Nadler. The instructions, we were given a copy of the 
instructions. He is not authorized to discuss the specific 
deliberative communications, including the substance of 
comments on opinions or policy questions or the confidential 
pre-decisional advice, recommendations or other positions taken 
by individuals or entities of the executive branch.
    The question, as I understand it, was did Attorney General 
Ashcroft express concerns about your relationship with Mr. 
Addington.
    That does not seem to fall within these instructions. He 
either did or did not express concerns. The question does not 
ask about specific deliberative communications or the substance 
of comments or opinions.
    Mr. Yoo. Can I just consult with my attorney?
    Mr. Nadler. Certainly.
    Mr. Yoo. After consultation with our attorneys, I will 
answer the question, which is my recollection is that, no, I 
never had such a conversation with the Attorney General.
    Mr. Cohen. Did you have any discussions with the Attorney 
General at all where he expressed any concern that you were not 
operating within your line of authorities?
    Mr. Yoo. Mr. Cohen, I do not recall any conversation of 
that nature.
    Mr. Cohen. So if The Washington Post reported that General 
Ashcroft was upset and if General Ashcroft said he was upset 
about communications between you and Mr. Yoo, The Washington 
Post and General Ashcroft would be mistaken or not have proper 
recall. Is that correct?
    Mr. Yoo. No, sir. Let me explain.
    First of all, what General Ashcroft expressed to other 
people or if he talked to The Washington Post at all is beyond 
my knowledge.
    Mr. Cohen. Right, beyond you. Let me ask you this.
    Mr. Yoo. Your question was whether he expressed it to me.
    Mr. Cohen. To you, and you don't recall that.
    Mr. Yoo. And my answer is he----
    Mr. Cohen. You don't recall it. I have been here for a 
while.
    You articulated a definition of illegal conduct in 
interrogations, explaining that it must ``shock the 
conscience.''
    Do you remember that? Is that accurate?
    Mr. Yoo. Sir, I believe you are referring to the memo that 
was sent by the Justice Department to the Department of Defense 
in 2003 that defined cruel, inhumane and degrading treatment.
    Mr. Cohen. Yes. What is the answer, yes or no? Do you 
remember that, ``shock the conscience?''
    Mr. Yoo. I am just saying that the--I am just trying to 
tell you where it arises, sir, which was in this memo, where 
the Justice Department was interpreting the phrase ``cruel, 
inhumane and degrading treatment,'' which was subject to a 
reservation by the United States that said it is equivalent 
to--and it cited the 5th and 8th and 14th amendments, which 
those amendments use the phrase ``shock the conscience.''
    Mr. Cohen. All right. But you also said that and you 
explained that whether the conduct is conscience-shocking 
depends, in part, on whether it is without any justification. 
Is that right?
    Mr. Yoo. I am sorry, sir. Can you repeat the question?
    Mr. Cohen. Right. Did you also go further and say that 
whether the conduct is conscience-shocking depends on whether 
it is without any justification? Do you recall that?
    Mr. Yoo. Well, sir, it is in the memo. The memo----
    Mr. Cohen. So that is true, then, yes. The answer is yes.
    Mr. Yoo. The memo says that.
    Mr. Cohen. And it would have to be inspired by malice or 
sadism before it could be prosecuted. Is that right?
    Mr. Yoo. Sir, I think that language is taken out of context 
in the sense that the memo, as I read it, does not say that you 
must have those characteristics.
    Mr. Cohen. Where did those words come from?
    Mr. Yoo. They come from, sir--in the memo, they come from 
the case law. They come from the decisions of the Federal 
courts interpreting--when they interpret what does the due 
process clause require and then they say--the courts have said 
we interpret it to mean shocks the conscience standard.
    There are Federal courts that have--I did not create those 
words. They are----
    Mr. Cohen. Are you saying that the law states it is not how 
the person that is being tortured is receiving the treatment, 
but the intent of the person who is torturing?
    So if I want to take somebody's fingernails out, if I think 
it is for the good of the country, that is not torture? If I 
want to cut somebody's appendage off, it is okay as long as I 
think it is important for the country?
    Mr. Yoo. Sir, the memo does not say that. The memo quotes 
Federal cases that cite this as one amongst many factors that 
courts consider when they to determine what shocks the 
conscience.
    Mr. Cohen. Let me ask you this. Is there anything you think 
that the President cannot order in the terms of interrogation 
of these prisoners in a state of war?
    Mr. Yoo. Sir, you are asking my opinion now, not what we 
addressed in the opinion, because the opinion----
    Mr. Cohen. Right. Now, what is your opinion now?
    Mr. Yoo. The opinions in 2002 and 2003 do not address that 
question.
    Mr. Cohen. What is your opinion now?
    Mr. Yoo. Because they were not at the----
    Mr. Cohen. What is your opinion now?
    Mr. Yoo. Sir, let me finish. I am just trying to finish my 
answer, sir.
    Mr. Cohen. No. You are trying to stretch out 5 minutes.
    Mr. Yoo. No, I am not. I have no idea what time it is.
    Mr. Cohen. You guys are great on ``Beat the Clock.''
    Mr. Yoo. I don't play basketball, but I watch it.
    Mr. Cohen. That was a game show. Maybe it was BYT.
    Mr. Yoo. I guess it was before my time, sir.
    Mr. Cohen. That is it, BYT.
    Mr. Yoo. Sir, to answer the question. Those questions are 
not addressed in those memos. They were not before us.
    Today, I would say there are a number of things a 
President--I don't think any American President would order, in 
order to protect the national security, and I think one of 
those things is the torture of detainees.
    I do not believe, and I have said so many times, that the 
President--I don't think the President should ever----
    Mr. Nadler. Without objection, the gentleman is granted 1 
additional minute.
    Would the gentleman yield for a second?
    Mr. Cohen. Yes, sir.
    Mr. Nadler. Thank you.
    Mr. Yoo, this is the second or third time today that you 
have said that you don't believe an American President would 
order certain heinous acts.
    Would you answer the question not would he order it, but 
could he order it under the law, in your opinion?
    That is your question. The question is to you.
    Mr. Cohen. I am not Edgar Bergen. That was a question.
    Mr. Yoo. That is your question, whether----
    Mr. Nadler. No. The question is not would an American 
President order such terrible things, but could he legally do 
so.
    Mr. Yoo. I think it is not fair to ask that question 
without any kind of facts, any kind of--I mean, you are asking 
me to state some kind of----
    Mr. Nadler. So in other words, there is nothing 
conceivable----
    Mr. Yoo. No, sir, I am not saying that.
    Mr. Nadler. No, no. Let me finish the question, because you 
don't know what I am going to ask.
    There is nothing conceivable to which you could answer, no, 
an American President could not order that without knowing 
facts and context.
    Mr. Yoo. Sir, I have told you I don't agree with that, 
because you are trying to put words in my mouth about--
attempting to get me to answer some broad question covering all 
circumstances, and I can't do that.
    I don't agree with the way you are characterizing my 
answer.
    Mr. Nadler. I will yield back to the gentleman.
    Mr. Cohen. Let me ask Mr. Addington. What branch of 
government is the Vice President's office in?
    Mr. King. Mr. Chairman, can we return to regular order?
    Mr. Nadler. We just did.
    Mr. Cohen. If I can pursue the question.
    Mr. Nadler. The gentleman is granted another additional 
minute.
    Mr. Cohen. Mr. Addington, what branch of government----
    Mr. King. Objection.
    Mr. Cohen [continuing]. Is the Vice President in?
    Mr. King. Objection, Mr. Chairman.
    Mr. Nadler. Objection to 1 additional minute?
    Mr. King. I am objecting to the extenuation of this 
interrogation that is going on and some of this process. And 
there wasn't a unanimous request for that additional minute.
    Mr. Nadler. I will ask unanimous request for an additional 
minute.
    Mr. King. Now I don't object.
    Mr. Nadler. Thank you.
    The gentleman is granted an additional minute by unanimous 
consent.
    Mr. Cohen. Thank you, Mr. Chairman.
    Mr. Addington, what branch are we in?
    Mr. Addington. Sir, perhaps the best that can be said is 
that the Vice President belongs neither to the executive nor to 
the legislative branch, but is attached by the Constitution to 
the latter. Closed quote. That is from two legal opinions 
issued by the Office of Legal Counsel of the Department of 
Justice dated March 9, 1961 and April, I believe it is 18, 1961 
by, I believe, Mr. Katzenbach, if I remember.
    Mr. Cohen. So he is a member of the legislative branch.
    Mr. Addington. To Vice President Johnson, and I offer those 
as Exhibits 13 and 14----
    Mr. Cohen. Mr. Addington, is he a member then, you are 
saying----
    Mr. Nadler. Without objection, they will be entered into 
the record.
    Mr. Cohen [continuing]. So he is a member of the 
legislative branch.
    Mr. Addington. No. I said attached by the Constitution to 
the latter. He is not a member of the legislative branch, 
because the Constitution says that the Congress consists of a 
Senate and a House of Representatives.
    The Constitution further says that the Senate consists of 
Senators and the House of Representatives consists of 
Representatives, and he is neither a Senator nor a 
Representative.
    Mr. Cohen. But he is attached to the legislative branch.
    Mr. Addington. That is the quote I read you.
    Mr. Cohen. So he is kind of a barnacle.
    Mr. Addington. He is attached by the Constitution to the 
latter. I don't consider the Constitution a barnacle, Mr. 
Cohen.
    Mr. Cohen. No, the Vice President. Since he is really not 
fish nor fowl, he is just attached to something.
    Mr. Addington. It is not exclusive in the Constitution to 
have that situation.
    Mr. Nadler. The time of the gentleman has expired.
    Mr. Cohen. Thank you, Mr. Chairman.
    Mr. Nadler. You are quite welcome.
    The gentleman from Massachusetts, Mr. Delahunt, who is a 
Member of the Committee, but not the Subcommittee, has 
requested an opportunity to question the witnesses.
    As a matter of courtesy, without objection, I will grant 
that.
    Mr. King. Mr. Chairman?
    Mr. Nadler. The gentleman from Iowa.
    Mr. King. I thank the Chairman.
    Mr. Chairman, at the request of the Ranking Member Smith, I 
object to the participation of a non-Subcommittee Member.
    House rules provide for participation in hearings only by 
Members of the Committee or Subcommittee. House Rule 11 states 
``Each committee shall apply the 5-minute rule during the 
questioning of witnesses in a hearing until such time as each 
member of the committee would so desire an opportunity to 
question each witness.''
    The Committee rules explicitly allow only the participation 
of non-members of a Subcommittee in one instance, and that is 
the Chairman and Ranking Member to participate as ex officio 
Members of any Subcommittee.
    Subcommittee membership should mean something. It allows 
Members the privilege of participation.
    Setting a precedent that allows a non-Member of a 
Subcommittee to participate could lead to a situation where 10 
other Members might also want to participate.
    That would not serve the Committee well, Mr. Chairman.
    This objection has nothing to do with the Member in 
question, as you well know, or the subject matter at hand; 
rather, participation in a hearing that should be a privilege 
of the Members of the Subcommittee.
    And so I, therefore, object to his participation.
    Mr. Nadler. The gentleman's objection is, unfortunately, 
grounded in the rules and the gentleman's objection is correct.
    I would observe that the precedent of allowing Members of 
the full Committee who are not Members of the Subcommittee to 
participate in Subcommittee hearings by asking questions of 
witnesses has been set many times over, and I regret--without 
causing chaos--and I regret that the gentleman insists on the 
point of order.
    But if he does insist, it must be enforced.
    I apologize to the gentleman from Massachusetts.
    The Chair recognizes himself for 5 minutes to question the 
witnesses.
    Mr. Addington, you stated to Ms. Wasserman Schultz earlier 
in this hearing that your involvement in the CIA interrogation 
program was greater than your involvement in the military 
program.
    What was your involvement in the CIA interrogation program?
    Mr. Addington. We had a number of meetings, as you might 
imagine. An example was the one I described earlier with the 
Justice Department to obtain legal advice on the program.
    A number of the lawyers and the relevant parts of the 
executive branch would be involved in working on the legal 
advice on such a matter.
    Mr. Nadler. Firstly, you just said you are part of the 
executive branch or the Vice President's office, but leave that 
aside.
    Mr. Addington. There is a number of us lawyers. All I am, 
sir, is an employee of the Vice President.
    Mr. Nadler. Why was a lawyer from the Vice President's 
office involved in CIA business?
    Mr. Addington. As you know, in modern times, the Vice 
Presidents often provide advice and assistance to Presidents. 
In fact, that is what they spend a majority of their time 
doing.
    Vice Presidents are not in charge of anything. They simply 
gather information. They provide advice. They have whatever 
functions Presidents give them, but it is basically advice and 
assistance.
    Mr. Nadler. And they participate in various agencies' 
business?
    Mr. Addington. No. Congress has recognized that function. 
If you look at Section 106 of Title 3, that modern Presidents 
provide advice and assistance, and they provide staffs.
    Part of the Vice President's staff is paid for under the 
appropriation that goes with the statute I just cited. Part of 
the Vice President's staff is paid out of the legislative 
branch appropriation.
    And when the President's staff wishes to have us 
participate and provide advice, then we----
    Mr. Nadler. So the President asked you, in effect, or 
someone on behalf of the President authorized that.
    Mr. Addington. We were included because it is the practice 
in this Administration, stronger at some times than others, but 
generally, that the President's staff and the Vice President's 
staff----
    Mr. Nadler. In other words, pursuant to the President----
    Mr. Addington [continuing]. Work together.
    Mr. Nadler. Okay. Pursuant to the President's 
authorization.
    Did you have any involvement in the CIA's decision to 
destroy any interrogation videotapes?
    Mr. Addington. To destroy? No, sir.
    Mr. Nadler. If the CIA program is found to be unlawful, 
would you bear any responsibility for that?
    Mr. Addington. If the CIA program is found to be unlawful?
    Mr. Nadler. Yes.
    Mr. Addington. Would I bear responsibility for that?
    Mr. Nadler. Any responsibility.
    Mr. Addington. Is that a moral question or a legal 
question? Let me distinguish----
    Mr. Nadler. Interpret it as you will, either way.
    Mr. Addington. I believe, and I am somewhat sympathetic to 
the approach Professor Schroeder took, that the legal opinions 
issued by the Department of Justice, to the extent they are 
relied upon by those who are implementing the----
    Mr. Nadler. No. We are not talking about legal opinions. 
Excuse me. We are not talking about legal opinions of the 
Department of Justice.
    Given your involvement in discussions with the CIA, did 
these discussions implicate what they did and if what they did 
was unlawful, would your discussions have any bearing on that? 
That is my real question.
    Mr. Addington. No. I wouldn't be responsible is the answer 
to your question.
    Mr. Nadler. Thank you.
    Mr. Yoo?
    Mr. Addington. Legally or morally.
    Mr. Nadler. Mr. Yoo, The Washington Post has reported that 
Attorney General Ashcroft and his deputy, Larry Thompson, were 
not aware of the March 2003 memorandum when you wrote it and 
transmitted it to the Pentagon.
    Is that accurate that the Attorney General and his deputy 
AG were not aware of that memo?
    Mr. Yoo. Mr. Nadler--I am sorry. Mr. Chairman, we received 
a request from the Defense Department. We notified the office 
of the Attorney General immediately that we had received the 
request.
    Mr. Nadler. You notified them of the request. Did you 
notify them and send them a copy of the memo?
    Mr. Yoo. Sir, we also notified the deputy Attorney 
General's office and----
    Mr. Nadler. Did you notify them and send them a copy of the 
memo when you sent it to----
    Mr. Yoo. We sent them drafts of the memo, both offices.
    Mr. Nadler. And the final one?
    Mr. Yoo. Yes, sir. We also sent versions of the final ones 
to both the deputy Attorney General's office and the office of 
the Attorney General.
    Mr. Nadler. Thank you. What?
    What do you mean versions? You sent them a copy of the 
final memo?
    Mr. Yoo. Yes, sir.
    Mr. Nadler. Okay. Thank you.
    Your prepared testimony says that the offices of the 
Attorney General and the deputy AG and the criminal division 
received drafts of the opinion. You just said that.
    Who in those offices received those drafts?
    Mr. Yoo. In response to your question, sir, as you know, 
the Justice Department has instructed me not to discuss the 
particular individuals----
    Mr. Nadler. Not to name those who received the draft? I 
don't think that was in the instructions, number one, and I 
don't think they have the power to issue such an instruction.
    Mr. Yoo. Excuse me 1 second, sir.
    Mr. Chairman, I think that my recollection at the time was 
that in delivering the drafts of the memo to the office of the 
Attorney General, that we delivered it to the counselor to the 
Attorney General.
    Mr. Nadler. And who is the counselor?
    Mr. Yoo. His name was Adam Ciongoli.
    Mr. Nadler. Thank you.
    Mr. Yoo. And my recollection as to the deputy Attorney 
General's office--and let me--also, I can't say definitively 
everybody who got a copy either.
    I am just saying because these were sensitive matters, we 
had to transmit them. I believe we may have given it to the 
principal associate deputy Attorney General at the time, who 
name was Chris Wray.
    Mr. Nadler. Chris Wray. Thank you.
    Now, without divulging the contents of any discussions, did 
those offices make comments or revisions to the opinions?
    Mr. Yoo. Without divulging the----
    Mr. Nadler. Without divulging the content, did they make 
any----
    Mr. Yoo. Yes, they did. I can say that there were--is your 
questions comments or----
    Mr. Nadler. Comments or revisions.
    Mr. Yoo. I can say that we received----
    Mr. Nadler. Well, how about separating that? Comments? Yes. 
Revisions?
    Mr. Yoo. I would say we received comments. I don't recall 
revisions one way or the other, sir.
    Mr. Nadler. Okay. And can you say who made those comments?
    Mr. Yoo. Any comments we would have received would have 
come from the people I just mentioned, the counselor to the 
Attorney General or the principal associate deputy Attorney 
General.
    Mr. Nadler. Thank you. Without objection, I will grant the 
Chairman 1 additional minute.
    Did you ever understand that the Attorney General or the 
deputy AG had personally approved this opinion, that is, the 
March 2003 memorandum?
    Mr. Yoo. Let me say, sir, we could not have issued such an 
opinion without the approval of the office of the Attorney 
General or the office of the deputy Attorney General. I can't 
recall whether----
    Mr. Nadler. But you don't whether they personally approved 
it.
    Mr. Yoo. Well, I can't recall whether they sent a memo or 
something signing it, signing off on it.
    Mr. Nadler. When you say the office--you couldn't have 
issued it without the approval of the office of the AG or 
deputy AG, what do you mean by that other than by them 
personally?
    Mr. Yoo. Sir, you are asking--I mean, I wouldn't know, sir, 
just personally, whether the Attorney General himself 
personally approved it, but we would receive--the way the 
Justice Department works, we received communications from the 
office of the Attorney General.
    Mr. Nadler. Okay. And finally, why was the memo or the 
opinion, rather, signed by you instead of by the head of the 
OLC at the time?
    Mr. Yoo. The 2003, March 2003 memo.
    Mr. Nadler. Yes.
    Mr. Yoo. I don't have the dates in front of me, right in 
front of me, but my recollection is that Jay Bibey, who was the 
head of the office, was just about to go onto the bench.
    As you know, he is now currently a judge of the U.S. court 
of appeals for the ninth circuit. And so I believe that the 
timing of the memo and when he was going to go on the bench 
were very close to each other and couldn't be certain whether 
he would still----
    Mr. Nadler. Have been there or not.
    Mr. Yoo [continuing]. Been in office at the time the 
opinion issued.
    Mr. Nadler. Professor Schroeder, could you comment briefly 
on that answer--on that question, rather?
    Mr. Schroeder. Well, I only know what has been reported 
back, which is that Jay Bibey went onto the bench about 10 days 
after the memo was signed on March 14. So at the time, so far 
as I think the public record discloses, he was still assistant 
Attorney General in the Office of Legal Counsel.
    Mr. Nadler. And after he went on the bench, who was the 
assistant Attorney General? Who took that position immediately 
thereafter? Anybody?
    Mr. Yoo. There was an acting assistant. There was no 
nominee or there was----
    Mr. Nadler. But there was someone acting in that.
    Mr. Yoo. There was an acting assistant Attorney General.
    Mr. Nadler. And if it was too late for Mr. Bibey to sign 
it, why didn't that gentleman or lady sign it?
    Mr. Yoo. As you know, Mr. Chairman, classified matters can 
only be discussed with people who are cleared to know about 
them. When the Justice Department----
    Mr. Nadler. So just to cut to the chase, that person may 
not have been cleared at that point.
    Mr. Yoo. I am trying to remember, sir, but I do not 
believe, at that time--my recollection is I don't believe they 
were cleared at that time.
    Mr. Nadler. Okay. Thank you. My time has expired.
    I will recognize, for 5 minutes, the distinguished Chairman 
of the full Committee, Mr. Conyers.
    Just for information, since we normally rotate by parties, 
Mr. King has asked to pass for a number of witnesses, and we 
are granting him that privilege.
    Mr. Conyers. Thank you, Steve King.
    Professor Schroeder, as the former acting director of the 
Office of Legal Counsel in the department, can you elaborate on 
any irregularities or improprieties that you may see in how the 
OLC memos we are discussing today were put together?
    Mr. Schroeder. Yes, Mr. Chairman.
    It is unusual, in my experience, for memoranda as 
significant as the March 2003 memo and, say, the September 25, 
2001 memo on the commander in chief authority to be signed by a 
deputy.
    If the assistant position was vacant, I can understand how 
that might happen. But otherwise, in my experience, those would 
be the kind of detailed memoranda that would be--and 
significant memoranda that would be issued by the assistant 
Attorney General.
    It is also the practice, as Professor Yoo has said in his 
testimony, to solicit the advice of other components of the 
Justice Department and where there are any disagreements about 
the content of the memos, to note that fact in the memos 
themselves.
    In this case, there was either unanimity throughout the 
Justice Department on the controversial legal interpretations 
that were being given or that some disagreements were not noted 
for the record.
    Finally, with respect to the memoranda that deal with 
interrogation techniques and torture specifically, there is 
some expertise in the executive branch on what torture means, 
because both the State Department and the INS have 
responsibilities for applying the idea of torture in the 
context of requests for aliens to seek relief from removal 
decisions in immigration matters or the State Department 
receiving asylum requests from aliens.
    And in both of those contexts, the two departments have 
developed their own administrative understanding of what 
constitutes torture or not.
    I would have expected that those internal executive branch 
reservoirs of knowledge on what torture means would have been 
accessed by OLC.
    Now, I understand from Professor Yoo's prepared testimony 
that the CIA specifically prohibited the State Department from 
participating or didn't allow them to be contacted.
    That strikes me as very unusual, because it is cutting out 
a source of knowledge within the Administration that I think 
could have been quite helpful in articulating the working 
standard of what constitutes torture or not under the statute 
and under the treaty.
    Mr. Conyers. Our witness, Professor Yoo, has claimed that 
there was a lack of guidance on the meaning of torture, which 
was why he used a health care-related statute in drafting the 
2002 opinion.
    Do you have any comment on that circumstance?
    Mr. Schroeder. Well, I think, to amplify on what I just 
said, I think there are sources of understanding, working 
knowledge as to what constitutes torture or not, that would 
have provided more guidance, not necessarily in statutory law, 
but in the working experience of expert agencies who have 
handled the matters.
    Some of them, like the immigration process, result in 
decisions by the board of immigration appeals that could have 
been accessed to give you some reference points at least for 
purposes of discussion.
    Now, maybe they are not going to be conclusive, because 
torture--I think if you try to define the precise boundary 
where just an inch to one side it is torture and just an inch 
to the other side it is not torture, you are going to have a 
very difficult time.
    Mr. Conyers. Of course.
    And the last comment with reference to Professor Yoo's 
testimony. It seems he has claimed that even though the August 
2002 memo was revoked, that there is a footnote in the 
revocation memo stating that the conclusions in the memo remain 
in force.
    Am I missing something there?
    Mr. Schroeder. Well, Mr. Chairman, that is not my 
understanding. Dan Levin, who authored the December 31, 2004 
memo, has testified before this Committee that that is an 
erroneous interpretation of that footnote and that, in fact, he 
had not completed a review of any of the specific interrogation 
techniques at the time the December 2004 memo issued, and that 
footnote is not be interpreted as endorsing the outcomes of the 
2002 evaluation process.
    Mr. Conyers. Thank you very much.
    Mr. Nadler. I thank the gentleman.
    The gentleman from Minnesota is recognized for 5 minutes.
    Mr. Ellison. Professor Schroeder, when a person who was at 
the OLC or in a policy--well, a lawyer at the OLC drafts a 
memorandum advising agencies on any legal matter, I don't want 
us to drill down just on torture right now, but when they offer 
advice, legal advice in the form of memoranda, do they--in your 
experience, is there an ongoing role after the memoranda is 
written in helping to advise how to implement that advice that 
is offered?
    Mr. Schroeder. Well, it will vary from topic to topic, but 
it would not be unusual for Office of Legal Counsel attorneys, 
after issuing a written opinion, to be asked follow-on 
questions or variations on the first question that had been 
asked or questions about what certain language in the opinion 
ought--how that ought to be applied in light of circumstances 
that the agency or the executive office of the President is 
considering.
    And some back-and-forth is not at all unusual, I think.
    Mr. Ellison. And in your experience, would it be at all 
unusual if somebody who was actually trying to carry out and 
implement an activity which they received guidance on from a 
legal memoranda would say, ``Well, the memo doesn't speak 
specifically to this instance. Does it apply or how would it 
apply in a given situation?''
    Mr. Schroeder. No, that wouldn't be unusual at all.
    Mr. Ellison. So I guess my question is--one of the things I 
would like--that I think that we should know more about is to 
what degree did people who were doing interrogation, in the 
light of the memo, the August 2002 memo, get advice on how to 
implement and how to interpret that memo.
    Now, I know you weren't part of that, but do you have any 
views on this subject? Is there anything you could tell us 
about it?
    Mr. Schroeder. Well, typically, those sorts of additional 
questions would come, I think, first, if you are talking about 
an administrative agency or a branch of the services, would 
tend to go through their lawyer chain of command and it 
wouldn't be necessarily, and I think it would probably be 
unusual for somebody in the field to call an Office of Legal 
Counsel lawyer directly.
    What they typically do, and because most--many of the 
requests that the Office of Legal Counsel receives for legal 
advice come, in the first instance, from a general counsel or a 
chief counsel.
    So the communication is lawyer to lawyer. So there would be 
a communication. If someone in the other department or branch 
was confused, the tendency would be for them to inquire of 
their general counsel's office and then for a communication to 
come over to the Office of Legal Counsel from there.
    Mr. Ellison. Now, Mr. Addington, you have been to 
Guantanamo Bay, obviously. Were you there during an 
interrogation of suspects?
    Mr. Addington. As I mentioned this morning to Ms. Wasserman 
Schultz, I have a recollection, perhaps not on the September 
2000 trip she was referring to, but perhaps, at least on one of 
the trips, I can recall seeing people in a room, I guess you 
would call it, and we could see through an observation window 
or up on a video screen, or maybe both.
    I do remember that.
    Mr. Ellison. Now, did the interrogators ever ask you any 
questions about how the interrogation could be legally 
conducted as it was going on?
    Mr. Addington. I don't recall them doing that, no, sir, and 
I don't believe they did. It wouldn't be appropriate for me to 
be talking to an interrogator about what he would be doing 
outside of his chain of command, or her.
    Mr. Ellison. What about indirect? What about indirect? For 
example, if an interrogator went out, they might talk to 
someone in their agency, do you have occasion for somebody in 
the agency to confer with them about how the interrogation 
might be continued on?
    Mr. Addington. I spoke with the general counsel's office of 
the Central Intelligence Agency, as did a number of other 
folks, as I described, when the executive branch would have a 
meeting that they would invite me to and we would talk about 
it, both at the CIA and at DOD, although less so at DOD, the 
Department of Defense.
    Mr. Ellison. So at DOD, you are speaking with regard to Mr. 
Haynes, is that right?
    Mr. Addington. The general counsel.
    Mr. Ellison. And who is the individual you have in mind at 
the Central Intelligence Agency?
    Mr. Addington. Well, early on, it was their general counsel 
and he left and went back to New York to practice law and there 
was----
    Mr. Ellison. What is his name?
    Mr. Addington [continuing]. An acting general counsel. The 
general counsel is a fellow named Scott Muller, M-U-L-L-E-R. 
And then he left, as I say, and there was as acting general 
counsel, who I believe is still the acting general counsel.
    Mr. Ellison. Did you witness the interrogation process 
going forward while you were in Gitmo?
    Mr. Addington. I don't know what else to say other than 
what I have already said, that I remember seeing, through the 
observation window, an orange suit in there and someone 
talking.
    Mr. Ellison. Could you hear it?
    Mr. Addington. I don't recall you could hear it. You could 
just see it.
    Mr. Ellison. Were you part of a group of folks who made 
legal decisions on a regular and routine basis that would 
include Alberto Gonzales, William Haynes, Jim Haynes, and 
yourself?
    Were you part of that?
    Mr. Addington. I talked regularly in lots of different 
meetings with the counsel of the President and his deputy, with 
the department of defense general counsel, less frequently with 
the CIA general counsel or acting general counsel, but yes.
    Mr. Ellison. So did you and Messrs. Gonzales and Haynes 
have sort of an ongoing responsibility or authority to guide 
and make decisions about legal matters for the Administration 
with regard to torture of detainees, the conduct of the war on 
terror?
    Mr. Addington. No. I think it is more monitoring what is 
going on, discussing it and if you need legal advice on the 
subject, you would ask a question to the Office of Legal 
Counsel, which typically would be done either by the counsel to 
the President, if it is the White House that wants the advice, 
which the law, by the way, that you all passed provides for.
    It is 28 UCS something like 511, 512, in that range. And 
also heads of agencies have the authority to go to OLC and get 
that legal advice. So they usually do that through their 
general counsels, either DOD or CIA.
    Mr. Ellison. Do you deny being a member of a war council 
that includes Alberto Gonzales, Mr. Haynes and yourself?
    Mr. Addington. No, that--it is interesting. I never heard 
that label until Jack Goldsmith wrote his book, ``The Terror 
Presidency,'' which has been quoted earlier in this hearing.
    We had meetings all the time. That is the same group of 
folks I was talking about earlier.
    I asked Jim about it once and he said, ``Oh, yeah, we call 
it the war council over here.'' I am not actually a fan of cute 
little names for meetings. It is a common executive branch 
habit and I think that is where it came from.
    Mr. Ellison. So do you deny it or do you admit it?
    Mr. Addington. No. I think I just said--I just answered 
that question.
    Mr. Ellison. I don't think you did.
    Mr. Addington. Well, as I said, I met regularly with Mr. 
Haynes, sometimes the CIA general counsel, the counsel of the 
President and deputy counsel of the President, and me on a 
range of issues, some of which dealt with interrogation of 
enemy combatants in the war on terror.
    At the Department of Defense, apparently, when some of 
those meetings were held, they were list on their schedules 
``war council,'' as if that is some great name for this group.
    To me, it was just the lawyers getting together to talk.
    Mr. Nadler. [OFF MIKE]
    Mr. Ellison. That fast?
    Mr. Nadler. The time of the gentleman has expired.
    The gentleman from Iowa is recognized for 5 minutes.
    Mr. King. Thank you, Mr. Chairman.
    Just to bring this back to a bit of a focus here, this 
hearing is about focusing on the role of Administration lawyers 
in developing, approving and implementing aggressive 
interrogation techniques.
    I will concede that much of this has focused on how that is 
developed and focused and refocused and reworded and reposed 
the questions, and so I am wondering what a person that is 
watching on C-SPAN thinks of all of this that they have seen 
and heard.
    And I realize that is a rhetorical question to the 
witnesses, but I do want to ask a more specific question, 
first, to Mr. Addington and then perhaps to Professor Yoo.
    And that is, do you believe that it is possible to 
precisely define torture in law?
    Mr. Addington. Just off the top of my head, you are getting 
me here in front of the cameras and the microphones----
    Mr. King. I am not trying to.
    Mr. Addington. And as I said earlier, lawyers have to be 
very precise and careful, as you all clearly do when you 
actually draft and pass legislation.
    About the only way I could think of it doing is something 
like you did with the Military Commissions Act of 2006, which 
is you laid out you can't do this, you can't do this, you can't 
do this, you can't do this.
    And then you got to the end and there was a catch-all in 
there for dealing with certain categories of other things that 
aren't listed here.
    The difficulty in drafting such a thing, of course, is you 
have to think of everything. You have to think of every 
circumstance.
    So I think you all would have a challenge trying to come up 
with a statute that could contemplate everything and put those 
who do these sorts of things in our intelligence agencies on 
the fair notice they are constitutionally entitled to that 
their conduct would be illegal.
    Mr. King. I appreciate that.
    Mr. Yoo?
    Mr. Yoo. Again, speaking now, I think that it is a 
difficult problem. I think the way that the statute was first 
written was--it did use language that was vague or ambiguous 
and was not defined by Congress.
    And I think over time, Congress has become more specific 
referring to, for example, Army manuals and so on is a much 
better way to do it.
    It is much clearer. I will say that even in attempting to 
interpret that language in the opinion, we attached, as an 
appendix, every judicial decision we could find in the Federal 
system that did define torture and exactly what acts, some of 
them involving some of the issues that Professor Schroeder 
mentioned involving INS and so on.
    So we tried to provide a complete appendix in that fashion. 
But Congress didn't do that. It only did that later in the 
Military Commissions Act.
    Mr. King. And just to restate my question, is it possible 
to precisely define torture in law? And to add some 
completeness to the question, but with regard to the Army 
manual, do you believe there is room between the manual and the 
law to expand beyond the level that is part of the manual?
    Mr. Yoo. Well, I think that----
    Mr. King. To take torture to a level--is there a level 
between the Army manual and that is limited by the law?
    Mr. Yoo. Sir, let me say that I haven't written any 
opinions about this issue. This all happened after I left 
government.
    My understanding is that the statute directly incorporates 
the manual. So it seems to me the law and the manual--there is 
no space.
    There is a difference in which agency it applies to. My 
understanding of the McCain amendment is that it applies the 
manual to the military, but not to the CIA.
    Mr. King. Mr. Addington, on that same----
    Mr. Addington. Repeat the question, please.
    Mr. King. Is there room, do you believe, between United 
States Army Field Manual on Intelligence Interrogation and 
between the controlling statutes against torture?
    Mr. Addington. In other words, are there things that are 
not permitted by the Army manual that are, nevertheless, short 
of torture?
    Mr. King. Yes.
    Mr. Addington. I believe the legal opinions of the Office 
of Legal Counsel or Department of Justice indicate yes and 
that, if you will recall, the Military Commissions Act of 2006 
and the executive order that the President issued under that, I 
believe, sometime early, I think, but sometime in 2007, in 
fact, were all about that, what could the Central Intelligence 
Agency do that was beyond was in the Army field manual.
    Mr. King. And I would agree with that answer. And so as we 
sit here and the military interrogators and their legal 
advisers are watching these hearings today, can you enlighten 
us a little bit about what you might think they can draw from 
this?
    Does it further define the law? Do they know what is the 
law? Will that intimidate them, do you believe, from gathering 
information in a legal fashion to help our intelligence to 
protect the American people?
    What can you tell us that came out of this hearing at this 
point that is constructive that secures the American people?
    Mr. Addington. As I mentioned at the beginning, there were 
three filters, I said, were in my mind, as I looked at all 
these issues over the years, and the third filter--the third 
filter is the crucial one of making sure that after all the 
policy level and senior lawyer level review of this is done and 
somebody gets an order to do something, that person who gets 
that order, especially on a subject matter like this, needs to 
know.
    I have got an order here, it has been reviewed carefully by 
the senior lawyers of this government that I am entitled to 
rely on legally to know that my activity is lawful.
    That is what going to the Office of Legal Counsel was all 
about in getting those legal opinions and as you know, this 
August 1, 2002 opinion is not the only legal opinion issued by 
the Office of Legal Counsel.
    I can think of five off the top of my head on this subject. 
Those people out in the field, particularly the folks at the 
CIA, would not have engaged in their conduct and the head of 
the CIA would not have ordered them to engage in that conduct 
without knowing that the Attorney General of the United States 
or his authorized designee, which is what OLC is, had said this 
is lawful and they relied on that.
    And they need to be able to rely on that. We can't leave 
the folks in the field hanging out there because we are going 
to have battles, whether you characterize them as political or 
otherwise, here in Washington.
    Mr. King. Thank you.
    Thank you, Mr. Chairman. Yield back.
    Mr. Nadler. The time of the gentleman has expired.
    I now recognize the gentleman from Alabama for 5 minutes.
    Mr. Davis. Mr. Chairman, thank you for forgiving me not 
being in place when my turn came up earlier.
    I want to go back, Mr. Addington and Mr. Yoo, to the line 
of questions I pursued earlier, because the clock cut us off 
before I had a chance to make some points I wanted to make.
    A lot of what we are talking about today, Professor Yoo, is 
the interpretation of the statute. You have conceded that there 
was a relevant on point anti-torture statute in place in early 
2001-2002. It was passed by Congress.
    You have correctly pointed out it is not at all unusual. 
There wasn't a massive amount of legislative history.
    I questioned you earlier about why it would not have been 
helpful or important for the Administration to reach out to the 
body that drafted the statute to get its own interpretation of 
what the words meant.
    Mr. Addington, I think you were telling me, at one point, 
or you were conceding that Mr. Specter, the Republican Chairman 
of judiciary, wasn't consulted, Mr. Sensenbrenner wasn't 
consulted.
    Tell me, sir, why it would not have been helpful for the 
Bush administration to have reached out to the congressional 
leadership, even of its own party, to ask what the statute 
meant.
    Mr. Addington. Sir, you asked that question earlier today 
and I would give you the same answer.
    Actually, as a legal matter, I think you are wrong and that 
doing so would be irrelevant.
    As a political matter----
    Mr. Davis. I didn't ask you as a matter of policy.
    Mr. Addington [continuing]. That is different. As a matter 
of policy, that can be different.
    As a practical matter, back when all this first came up, I 
am not sure the exact timeframe, let's say the year 2002, these 
were highly classified. This was a highly classified program 
conducted by the----
    Mr. Davis. No, sir. Very simple question.
    Mr. Addington. I am explaining to you why some members----
    Mr. Davis. Let me reframe my question then and perhaps make 
it a little bit easier, sir.
    All I am asking--I am picking up on the analysis Mr. Yoo 
makes in his opening statement.
    He talks about a particular interpretation of the anti-
torture statute.
    And, Professor, you said that he believed that the anti-
torture statute was a subjective test that depended on the 
physical and mental condition of the individual being 
interrogated.
    That is an interpretation of Congress' intent.
    I happen to think, sir, from a policy standpoint, as well 
as from a legal standpoint, there were two options for the 
people you work for. They could have come to Congress and they 
could have asked for the statute to be clarified.
    They could have asked for new powers. You all did that with 
respect to the Patriot Act.
    I suppose, theoretically, the Bush administration could 
have said we don't need a Patriot Act, we are just going to 
assume that we have some plenary executive power, but you 
didn't do that.
    You came to Congress and you asked for new intelligence-
gathering, new information-gathering capabilities and the 
Congress gave it to you in overwhelming bipartisan fashion.
    Authorization of force. You could have said there is some 
plenary executive power to protect the United States using all 
means necessary. You came to Congress.
    All of those things involve potentially confidential, 
classified matters.
    Was there even anyone in the executive branch who 
advocated, Mr. Addington, coming to Congress and asking for a 
new torture statute?
    Mr. Addington. Of course, I can't answer for everyone in 
the executive branch. I don't know what they thought about.
    Mr. Davis. Did you advocate it?
    Mr. Addington. As for me----
    Mr. Davis. That is a simple yes or no. Did you advocate it?
    Mr. Addington. I don't recall advocating that to anyone and 
I wouldn't today.
    Mr. Davis. Just a simple yes or no.
    Do you know of anyone, Professor Yoo, I include you in 
this, do either of you know of anyone in the executive branch 
or the Department of Justice who advocated coming to Congress 
and asking for a new statute?
    That is a simple yes or no.
    Mr. Addington. On the subject of interrogations?
    Mr. Davis. Torture, the definition of it.
    Mr. Addington. No. I don't recall it.
    Mr. Davis. Professor Yoo, do you know of anyone who even 
advocated coming to Congress and asking for a new statute?
    Mr. Yoo. I don't remember anyone doing that.
    Mr. Davis. Do you know of anyone who advocated going to the 
House and Senate Intelligence Committees and asking for their 
judgment as to what the torture statutes meant?
    Mr. Yoo. No, and I wouldn't recommend that. I would 
recommend going where the law requires, which is OLC.
    Mr. Davis. And this is the problem, gentlemen.
    If your Administration had come to what was a Republican 
Congress and gotten its imprimatur for your definition of 
torture, you would have shared responsibility.
    If you haven't figured it out by now, one of the critiques 
that a number of Members on both sides of the aisle have of the 
way you all have done business is, frankly, you haven't shared 
the responsibility of making the decisions.
    Sometimes you have had to, when the Supreme Court has told 
you you had to with respect to tribunals and FISA. But, 
frankly, on your own, you have never done it.
    And I would submit that that is the core thing that this 
Committee ought to be focused on, a policy that was derived by 
the executive branch.
    You didn't even feel the need to even consult or to share 
your thoughts or your analysis of congressional intent with 
Congress. It has left you now with a policy that has only your 
fingerprints on it.
    It has left you with a policy with which the legislative 
branch was completely cut out. That is a very negative legacy 
for your Administration.
    Mr. Addington. You are leaving one bad implication on the 
record that I want to clear up that is not accurate, which it 
sounds like you are implying that the House and Senate 
Intelligence Committees didn't know anything about the CIA 
program.
    Mr. Davis. No, no, no. I am talking about your 
interpretation of the definition of torture. You are not 
suggesting the House and Senate Intelligence Committees knew 
about the interpretation of torture that Mr. Yoo advanced in 
his opening statement, are you?
    Mr. Addington. At some point they did, I don't know when.
    Mr. Davis. Would you tell us that point?
    Mr. Addington. I said I don't know when. I am fairly 
confident that these were discussed and they have held a lot of 
hearings on it. But I don't know when it first occurred.
    Mr. Nadler. The time of the gentleman has expired.
    I now recognize, for 5 minutes, the gentleman from North 
Carolina.
    Mr. Watt. Thank you, Mr. Chairman.
    Before I start, I wanted to do this while Mr. King was 
here, the basis of his objection to allowing Mr. Delahunt to 
ask questions was that it would prolong the hearing.
    I wanted to ask a different unanimous consent request that 
he be allowed to take my time in the rotation so that he--and I 
didn't want to do it----
    Mr. Nadler. Do you want to do that now?
    Mr. Watt. I would like to do that.
    Mr. Nadler. Without objection.
    Mr. Watt. Well, I just wanted to make it clear that I 
wasn't doing it because he was out of the room. I actually sent 
a message to him that I was planning to do that.
    Mr. Nadler. Okay. Well, he apparently didn't care enough to 
stay. Without objection.
    Mr. Delahunt. Well, Mr. Chairman, I don't want to proceed 
unless staff has been able to communicate.
    Well, I won't take all the 5 minutes. I will try to be very 
brief. In fact, I----
    Mr. Watt. Whatever you don't use I will use myself.
    Mr. Delahunt. Well, thank you. And this has been a very 
informative hearing.
    And I am going to request both witnesses or I will extend 
an invitation to both witnesses to appear before the 
Subcommittee that I Chair, because this obviously has foreign 
policy implications, which is the Foreign Affairs Subcommittee 
on Oversight, and I would hope they would accept that 
invitation for a more expansive conversation and dialogue about 
this very important issues.
    It is true that the United States is a signatory to the 
convention against torture. Is that accurate, Professor?
    Mr. Schroeder. Yes.
    Mr. Delahunt. Either one.
    Mr. Yoo. Yes, it is.
    Mr. Delahunt. And the domestic legislation we are talking 
about was to implement the convention against torture.
    Mr. Schroeder. That is correct.
    Mr. Delahunt. And the whole issue of what constitutes 
torture, what techniques are implicated in that definition, 
would you all agree that there are some techniques that are, 
per se, considered torture, such as electric shocks?
    Professor Yoo?
    Mr. Yoo. I am sorry. It is Yoo.
    Mr. Delahunt. Yoo. I apologize.
    Mr. Yoo. In the memo, we have a list--an appendix.
    Mr. Delahunt. I haven't had an opportunity to review the 
memo. But would you consider the use of electric shock----
    Mr. Yoo. Yes. It is one of the things that are listed in 
the back of the memo as things that courts have found to 
violate the--not this statute, but the other statute, because 
there was a second statute, the Torture Victim Protection Act, 
which is a little different than the criminal statute, but we 
thought close enough.
    Mr. Delahunt. What about waterboarding?
    Mr. Yoo. I would have to know exactly what you mean by 
waterboarding, but there is a description in the appendix of--
in the appendix to the 2002 memo that talks about trying to 
drown somebody.
    But when people say waterboarding, they seem to have lots 
of different--they are referring to lots of different things.
    So I think it is important to be precise if we are talking 
about what the courts approve. I am sorry. Not that courts 
approve--courts have interpreted the language to mean or not.
    Mr. Delahunt. Well, it has been reported that on three 
different occasions, the Central Intelligence Agency utilized 
waterboarding and at least that was the term that was used in 
the reports in the media.
    Is that your understanding, Professor? Professor Yoo? Are 
you aware of that?
    Mr. Yoo. Well, sir, I have read the same press accounts 
that you have, I am sure, and I have seen it in the press 
accounts and I have also seen it in, I believe, a statement 
made by the President or, I am sorry, by the head of the CIA.
    Mr. Delahunt. By the head of the CIA. And that was my 
understanding, as well, that it was acknowledged by the head of 
the CIA.
    And I think you, Mr. Addington, indicated that you had 
multiple conversations regarding enhanced interrogation 
techniques at the CIA.
    Mr. Addington. With the Office of Legal Counsel, office of 
general counsel at CIA.
    Mr. Delahunt. Did the issue of waterboarding arise during 
the course of those conversations?
    Mr. Addington. I think you will find that over the years, 
as lawyers in the group talk, at various times, there would be 
discussion of particular techniques.
    As I indicated to the Chairman at the beginning of this, 
when the subject came up----
    Mr. Delahunt. Was waterboarding one of them?
    Mr. Addington. That is what I am answering, because I know 
where you are headed. As I indicated to the Chairman at the 
beginning of this thing, I am not in a position to talk about 
particular techniques, whether they are or aren't used or could 
or couldn't be used or their legal status.
    And the reasons I would give for that, if you will look at, 
I think, Exhibit 9, the President's speech of September 6, 
2006, explains why he doesn't talk about what particular 
techniques----
    Mr. Delahunt. Oh, I can understand why he doesn't talk 
about it.
    Mr. Addington. But you have got to communicate with al-
Qaeda. I can't talk to you. Al Qaeda may watch C-SPAN.
    Mr. Delahunt. Right. Well, I am sure they are watching and 
I am glad they finally have a chance to see you, Mr. Addington.
    Mr. Addington. I am sure you are pleased.
    Mr. Delahunt. Given your pension for being unobtrusive.
    In any event, there would appear to be a question then as 
to whether the use on those three occasions that have been 
acknowledged by the CIA and reported on the media as to the 
technique that was used, as to whether it was a violation, a 
per se violation of the convention against torture or not.
    Would you agree with me, Professor Yoo?
    Mr. Yoo. Your question is you are saying there is an open 
question whether waterboarding in the way used by the CIA 
violated the convention against torture.
    Mr. Delahunt. That is what I am saying. It is an open 
question.
    Mr. Yoo. I understand. I just want to make sure.
    Mr. Delahunt. Sure.
    Mr. Yoo. I think one of the problems is that the convention 
against torture is interpreted different ways by different 
countries. And so if your question is does waterboarding--is 
the way it has been described by the director of the CIA, Mr. 
Hayden, violate the treaty, it may violate the treaty as 
understood by some countries.
    Our understanding of the treaty is defined by the criminal 
statute and the Torture Victims Protection Act.
    Mr. Nadler. Without objection, Mr. Watt has 1 additional 
minute, which he has yielded to Mr. Delahunt.
    Mr. Delahunt. I would pose this. The techniques, whatever 
was utilized on those occasions, and I think we can agree it is 
an open question, if they were used on American military 
personnel, it would still be an open question as to whether 
they violated the convention against torture then.
    Mr. Yoo. I assume you are still asking me.
    Mr. Delahunt. I am asking you.
    Mr. Yoo. Mr. Delahunt, my understanding of the testimony 
that the head of OLC gave before the Committee was that it was 
his view that if we were using it as part of the training on 
our own servicemen and officials who might be captured, that I 
thought it was his view and his testimony that that would not 
be a violation of the statute.
    Mr. Delahunt. So if it was used by an enemy, because we 
considered that it did not constitute torture, then the enemy 
that utilized that on American military personnel would not be 
in violation of the convention against torture.
    Is that a fair statement?
    Mr. Nadler. The time of the gentleman has expired.
    The witness will answer this question, please.
    Mr. Yoo. Sir, I don't remember whether Mr. Bradbury went 
that far and reached that conclusion. That could be an 
implication of what his statement was, but I don't----
    Mr. Nadler. The question was of you, not of Mr. Bradbury.
    Mr. Yoo. I know, sir, but I wanted to make sure that I am 
not--that it is clear what the Administration's position is. I 
understand it is, because they directly answered the question 
to the Committee.
    Mr. Nadler. But would you answer the question? If some 
enemy interrogator used that technique on an American prisoner 
of war, would that be----
    Mr. Yoo. My view now is that it would depend on the 
circumstances. I think that there would--I agree with the 
Congressman that----
    Mr. Nadler. Okay. Thank you. Thank you.
    It would depend on the circumstances.
    Mr. Yoo. But I just want to--okay.
    Mr. Nadler. Go ahead.
    Mr. Yoo. I mean, I just want to fully answer your question, 
sir, and you are cutting me off.
    Mr. Nadler. Go ahead, go ahead. Go ahead.
    Mr. Yoo. Oh, I am sorry. I thought you were cutting me off 
again and I was accepting the cutoff that time.
    My only point is it would depend on the circumstances, but 
I am not saying it would never--that it would always not be 
torture, sir. Again, there is an appendix at the back of the 
opinion that lists trying to drown somebody as something that 
violates the Torture Victims Protection Act.
    Mr. Nadler. Thank you.
    The time of the gentleman has expired. All time has 
expired.
    Before we conclude the hearing, I want to observe there 
have been a number of unanswered questions today, some on 
grounds of privilege, others on the basis that any answer to 
the question would unavoidably get into classified information.
    We will take those matters under advisement. Depending on 
our determination, we may need to revisit some of these 
questions with you, perhaps in executive session for any 
matters that are classified.
    Can I get a commitment from each of you to make ourselves 
available for any follow-up hearings that may be warranted?
    Mr. Addington. No, Mr. Chairman, but I will wait here as 
long as you like, if you have more questions today.
    Mr. Nadler. We have to take under advisement the question 
of----
    Mr. Addington. I didn't invoke any privileges in my 
communications.
    Mr. Nadler. No, but you invoked classified information.
    Mr. Addington. I think what I said was for the same reasons 
the President, in his speech, stated that I couldn't discuss--
--
    Mr. Nadler. That is invoking classified information. We may 
have to----
    Mr. Addington. I didn't.
    Mr. Nadler. What?
    Mr. Addington. I didn't do that. I didn't invoke any 
privilege.
    Mr. Nadler. Well, we will decide.
    We will determine if you did and if--I don't think you 
invoked any privileges except for classified information. But 
if we determine that we have to have a session, an executive 
session to go into those classified matters, would you make 
yourself available?
    Mr. Addington. If you issue a subpoena, we will go through 
this again. But I am willing to stay here as long as you like 
today.
    Mr. Nadler. And, Mr. Yoo--and, Professor Yoo?
    Mr. Yoo. Subject to reasonable accommodation of schedule, 
which there has been so far.
    Mr. Nadler. Fine, of course.
    Mr. Yoo. I would be willing to, yes, sir.
    Mr. Nadler. Professor Schroeder didn't invoke any 
privileges.
    Mr. Conyers. Mr. Chairman, Conyers here.
    Mr. Nadler. The Chairman is recognized.
    Mr. Conyers. Thank you.
    On balance, I would like to thank all the witnesses for 
coming forward today. They, from their perspective, have been 
as candid as they could and I think I sense an impression that 
for reasonable reasons and coordinating with all of our 
schedules, they might most probably be likely to return.
    And I want to thank them for that.
    Mr. Nadler. I thank the gentleman.
    I thank the witnesses for their appearances and their 
cooperation.
    I want to just clarify one other thing. I made a hasty 
observation with respect to a Member's not objecting to--not 
repeating his objection to Mr. Delahunt's testimony.
    I didn't mean to cast any aspersions on his being here or 
his caring or anything else. And I want to correct the record 
in that respect.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses, which we will forward, and for the witnesses to 
respond as promptly as they can so 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.
    Again, I want to thank the witnesses and the Members.
    And with that, this hearing is adjourned.
    [Whereupon, at 1:48 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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               Material Submitted for the Hearing Record

        Exhibits submitted by David Addington, Chief of Staff, 
                  Vice President of the United States


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 Post-Hearing Questions submitted to David Addington, Chief of Staff, 
                  Vice President of the United States*




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* Note: The Subcommittee had not received a response to these questions 
prior to the printing of this hearing.
















                                

  Post-Hearing Questions submitted to John Yoo, Professor, Boalt Hall 
          School of Law, University of California at Berkeley*



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* Note: The Subcommittee had not received a response to these questions 
prior to the printing of this hearing.














                                

 Correspondence between Pilippe Sands, Professor of Laws and Director, 
Centre for International Courts and Tribunals, and John Yoo, Professor, 
     Boalt Hall School of Law, University of California at Berkeley







                                 
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