[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 IV)

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

                                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

                               __________

                             JULY 15, 2008

                               __________

                           Serial No. 110-192

                               __________

         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

                              ----------                              

                             JULY 15, 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................     2
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     4
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     5
The Honorable Steve King, a Representative in Congress from the 
  State of Iowa, and Member, Subcommittee on the Constitution, 
  Civil Rights, and Civil Liberties..............................     7

                               WITNESSES

Mr. Douglas Feith, Professor, Georgetown University, and former 
  Defense Undersecretary for Policy
  Oral Testimony.................................................    11
  Prepared Statement.............................................    15
Ms. Deborah N. Pearlstein, Associate Research Scholar, Law and 
  Public Affairs Program, Woodrow Wilson School for Public and 
  International Affairs, Princeton University
  Oral Testimony.................................................    65
  Prepared Statement.............................................    67
Mr. Philippe Sands, Professor, International Law, University 
  College London
  Oral Testimony.................................................    78
  Prepared Statement.............................................    82

                                APPENDIX

Material Submitted for the Hearing Record........................   135

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

                              ----------                              


                         TUESDAY, JULY 15, 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 10:15 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Davis, Wasserman Schultz, 
Ellison, Conyers, Scott, Watt, Franks, Pence, Issa, and King.
    Staff Present: David Lachmann, Subcommittee Chief of Staff; 
Sam Sokol, Majority Counsel; Heather Sawyer, Majority Counsel; 
Caroline Mays, Majority Professional Staff Member; Paul Taylor, 
Minority Counsel; and Charlotte Sellmeyer, Minority 
Professional Staff Member.
    Mr. Nadler. Ladies and gentlemen, before we start this 
hearing, may I remind everybody that this is an official 
hearing of the Subcommittee. No disruption or calling out will 
be tolerated. Anyone who does will be instantly evicted from 
the room. We have had pretty good decorum at previous hearings 
on this subject. Please, let's not change that. I don't like to 
evict anybody from the room. But if I have to, I will, and I 
won't hesitate, because we have to do this in a business-like 
manner and respect the rights of the witnesses, the Committee 
Members and, for that matter, everybody watching.
    So those who have the privilege of having a seat in the 
room to observe this, you are observers. Observe. You're not 
participants in the sense of calling out or voicing opinions. 
You can voice opinions through blogs, e-mails, anything else 
you want after the hearing. Thank you.
    This hearing of the Subcommittee on the Constitution, Civil 
Rights and Civil Liberties is called to order. Without 
objection, the Chair is authorized to declare a recess of the 
hearing.
    Mr. King. Objection. Objection, Mr. Chairman.
    Mr. Nadler. The gentleman wants us to sit here through 
votes, is that the point?
    Mr. King. Mr. Chairman, I object to granting unanimous 
consent to the Chair, and that is an issue that can be dealt 
with when the situation arises.
    Mr. Nadler. Members of the Committee, I move that the Chair 
be authorized to declare a recess at the Chair's discretion. 
All in favor? Opposed? The ayes have it. The Clerk will call 
the roll. Is there a Clerk?
    Mr. Issa. Mr. Chairman.
    Mr. Nadler. Who seeks recognition?
    Mr. Issa. Mr. Chairman, might I suggest in the absence of a 
recording clerk that----
    Mr. Nadler. There is a recording clerk.
    Mr. Issa. Might I suggest before the reporting clerk gets 
down to call the roll, that if the Chairman and Ranking Member 
were to agree to, and whoever is sitting as Ranking Member, 
were to agree to a recess at any time, I am quite sure there 
would be no objection.
    Mr. Nadler. I will accept that assurance. I do not 
anticipate having controversy between the Chairman and the 
Ranking Member over whether to call a recess. That has never 
occurred, to my knowledge, or my memory, certainly. So with 
that assurance, the Committee will proceed, in the 
understanding that if it is necessary to call a recess because 
of votes on the floor, or any other unforeseen event, that we 
will call a recess.
    We will now begin by proceeding to Members' opening 
statements. As has been the practice in this Subcommittee, I 
will recognize the Chairs and Ranking Members of the 
Subcommittees and of the full Committee to make opening 
statements. In the interest of proceeding through our 
witnesses, and mindful of our busy schedule, I would ask that 
other Members submit their statements for the record.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record.
    The Chair now recognizes himself for 5 minutes for an 
opening statement.
    Today, this Subcommittee continues its investigation into 
this Administration's interrogation policies, which have 
brought disgrace to our Nation. Whatever euphemism one chooses, 
harsh interrogation, enhanced interrogation, or whatever 
justification might be offered, I believe, given all we know 
now, that it is clear that this Administration has authorized 
torture and that under its auspices, torture has been inflicted 
on people in U.S. custody and that assurances that this Nation 
does not use torture, when it clearly does, does not make the 
situation any better.
    The testimony we have received so far has been deeply 
troubling. Perhaps nothing was so troubling as discovering that 
the Chief of Staff to the Vice President of the United States 
could not bring himself to make an unequivocal statement that 
the President lacked the authority to order someone buried 
alive.
    I have also been astonished to discover that despite the 
radical departure from past practice and the past understanding 
of the law governing interrogation and treatment of detainees, 
no one appears to have been responsible for the changed 
understanding of the word ``torture.'' In fact, it has been 
surprisingly difficult to find anyone who can remember much 
about the decision-making process at all. Perhaps there is 
something in the White House drinking water these days that 
causes amnesia.
    The facts have also been obscured by expansive claims of 
privilege, extraordinary claims of secrecy, sometimes 
concerning matters that were later made public without so much 
as a ripple, and claims that some matters were so super secret 
that Members of Congress couldn't be told even in a classified 
setting.
    I do not believe that this country has ever had an 
Administration that was as obsessed with secrecy as this one. 
The public is ill-served by concealing questions of law and 
policy from the public or from other branches government. Not 
questions of execution, but questions of law.
    Nonetheless, the picture that has emerged from our 
investigations, despite the Administration's stonewalling, is 
deeply disturbing. It seems clear from the evidence that we 
have been able to assemble so far that the Administration 
decided early on to engage in torture, to use any rationale to 
do what generations of soldiers understood we could not do, and 
to conceal that fact from the American people and from the 
world. As a result, our Nation, and especially our men and 
women in uniform, are unsafe today.
    It was also interesting to hear from Mr. Yoo at a previous 
hearing that he could not say that a foreign power or enemy 
power that waterboarded our troops would be doing anything 
illegal. That is the consequence of our adopting policies of 
torture.
    Instead of uniting our allies and isolating our enemies, 
the Administration has accomplished the exact opposite. We must 
find out who is responsible for this and must determine how we 
can prevent this from happening again.
    Today, we will hear from Douglas Feith, one of the 
individuals most closely associated with the decision-making 
process concerning detainees. Mr. Feith was a top ranking 
official at the Department of Defense when many of these 
matters were considered and many of the policies set in place. 
I hope that Mr. Feith will be able to enlighten the 
Subcommittee about how some of these decisions were made and 
what the justification was for these policies.
    Before we begin, I need to address the issue of the 
subpoena that Chairman Conyers issued to Mr. Feith compelling 
his testimony before the Subcommittee. I had not intended to 
raise it, but Mr. Feith has included in his prepared testimony 
a discussion of the subpoena. So I want to make sure everyone 
understands our understanding of the facts.
    We would rather proceed without having to authorize 
subpoenas, and I know the Chairman of the full Committee does 
not like issuing them. But they are an important tool available 
to the Congress to ensure that individuals with information 
necessary to the work of the Congress will cooperate.
    In Mr. Feith's case, the Committee worked with him and his 
counsel for several months, finally obtaining his voluntary 
agreement to appear at a hearing. He cancelled that appearance 
the morning of the hearing. His attorney gave as the reason for 
the last minute cancellation Mr. Feith's objection to one of 
the other witnesses and his stated belief that the hearing 
would not be businesslike.
    We cannot permit a witness whose testimony we require to 
censor the Committee's choice of other witnesses.
    After the Subcommittee authorized the subpoena, Committee 
staff again contacted Mr. Feith's attorney, attempting to 
obtain his voluntary agreement to appear. Although counsel did 
make an oral statement that Mr. Feith was available to appear, 
Committee staff were unable to obtain unambiguous written 
commitment that there were no circumstances in which he would 
fail to appear. As a result, issuing the subpoena was only 
prudent.
    Mr. Feith's failure to cooperate with this investigation so 
far goes beyond his earlier refusal to appear. Nearly 2 months 
ago, Subcommittee staff met with Mr. Feith's counsel and 
informed him that Committee Members would be interested in Mr. 
Feith's role in Secretary Rumsfeld's approval of harsh 
interrogation measures for Guantanamo Bay. Staff even 
identified the particular document in which Defense Department 
General Counsel Jim Haynes states that he discussed the issue 
with Mr. Feith.
    While Mr. Feith has provided us with a lengthy statement 
for this morning a couple of days ago, it is striking in its 
failure to address his role in the Administration's 
interrogation program beyond the narrow question of the Geneva 
Conventions. Yet, Mr. Feith simply ignores this issue in his 
statement.
    Given our prior experience, it was clear that the only way 
to ensure the appearance today was to issue the subpoena. I 
hope my colleagues will agree that witnesses do not decide what 
we will investigate or which witnesses we will invite to assist 
us in our work. Especially the case in which the accountability 
of public servants is involved, those public servants do not 
have the option of refusing to account for their actions.
    The subject matter of this hearing is extremely important, 
and I hope that despite earlier difficulties, we will be able 
to conduct our work in a businesslike manner and that the 
witnesses will endeavor to assist the Members in getting the 
facts as easily as possible.
    I thank the witnesses for their cooperation. I yield back 
the balance of my time.
    I now recognize for his opening statement our distinguished 
Ranking minority Member, the gentleman from Arizona, Mr. 
Franks.
    Mr. Franks. Thank you, Mr. Chairman.
    Mr. Chairman, the subject of detainee treatment was the 
subject of over 60 hearings, markups, and briefings during the 
last Congress in the Armed Services Committee alone, of which I 
am a Member. This hearing is yet another on terrorist 
interrogation programs, including those Speaker Pelosi was 
fully briefed on many years ago, and during those briefings, no 
objections were made by Speaker Pelosi or anyone else.
    Let me be clear again, as I have been in the past, by 
saying that torture is illegal. Torture is banned by the 
various provisions of law, including the 2005 Senate amendment 
prohibiting the cruel, inhumane, or degrading treatment of 
anyone in U.S. custody. But special interrogations, while 
legal, are very infrequent.
    CIA Director Michael Hayden has confirmed that despite the 
incessant hysteria in some quarters, the waterboarding 
technique has only been used on three high-level captured 
terrorists, the very worst of the worst of our terrorist 
enemies.
    What are these people like, Mr. Chairman? When the 
terrorist Zabaydah, a logistics chief of al-Qaeda was captured, 
he and two other men were caught building a bomb. A soldering 
gun used to make the bomb was still hot on the table, along 
with the building plans for a school.
    John Kiriakou, a former CIA official involved in Zabaydah's 
as interrogation, said during a recent interview, ``These guys 
hate us more than they love life and so you're not going to 
convince them that because you're a nice guy and that they can 
trust you and that they have a rapport with you, that they are 
going to confess and give you their operations.''
    He said the interrogation was a great success and that it 
led to the discovery of information that led to the capture of 
terrorists, thwarted their future plans, and saved innocent 
American lives.
    The result of these brief special interrogations of three 
of the worst of the worst terrorists were of immeasurable 
benefit to the American people. CIA Director Hayden has said 
that Mohammad and Zabaydah provided roughly 25 percent of the 
information CIA had on al-Qaeda from all human sources. The 
President has also described in some detail other crucial 
information we received through special interrogations 
programs.
    Now after the May 6, 2008 House Constitution Subcommittee 
hearing, our Chairman said that silence was the response when 
today's witnesses were asked to identify a single example of a 
ticking bomb scenario ever occurring. But, unfortunately, that 
gives a misleading impression. If they are asking about 
specific incidents, then maybe we are a little bit to obsessed 
with the television show 24. But if we are talking about 
general threats and imminent threats generally, then the case 
of Khalil Sheikh Mohammad should be placed front and center.
    As Benjamin Wittes of the Brookings Institute has written 
in his book, Law and the Long War, ``Khalil Sheikh Mohammad is 
far more than a ticking bomb. He is all of the bombs in various 
stages of imagination and construction. While the United States 
has not captured many such people, he was not the only one. And 
for leaders and operatives dedicated to protecting the country, 
failing to get all available information from such people is 
simply not an outcome.''
    Mr. Chairman, just a personal note. I believe this is about 
the 10th hearing that we have had in this Subcommittee that was 
dedicated primarily to making sure that we are protecting the 
right of terrorists. I understand that. But we have had none 
that I know of that are dedicated to trying to protect the 
lives of American citizens. I think ten to zero is a little out 
of balance.
    So with that, I want to yield back. Thank you.
    Mr. Nadler. I thank the gentleman. I now recognize the 
distinguished Chairman of the full Committee, the gentleman 
from Michigan, Mr. Conyers, for an opening statement.
    Mr. Conyers. Thank you, Mr. Chairman. I begin by expressing 
my pride at the work of you and this Subcommittee, all of its 
Members, in continuing to press for the truth on these 
important matters.
    My dear friend from Arizona, the Ranking Member, Mr. Trent 
Franks, said, ``This is the 10th hearing we have had protecting 
the rights of terrorists.'' I would like to yield to the 
gentleman to tell us about these 10 hearings. Which 10 hearings 
are you referring to?
    I yield.
    Mr. Franks. Mr. Chairman, thank you. We would be glad. I 
think this is one of the examples. I think that this is a 
repetitive hearing that we have had certainly on this subject.
    Mr. Conyers. Would you provide me after the hearing with a 
list of the 10 hearings?
    Mr. Franks. We will try to do that, Mr. Chairman. Thank 
you.
    Mr. Conyers. Thank you very much.
    We are not here to protect rights of terrorists. This is 
the Constitutional Committee of the Judiciary. It is to protect 
the rights of Americans. That is what brings us here. That is 
what this proceeding I think is all about, and to prevent our 
own government from violating the laws and treaties that obtain 
to torture. That is what we are hearing.
    I counted some hearings myself. This is the fourth hearing. 
The first hearing was when Professor Philippe Sands, who we 
welcome to the Committee today, who is with us again, explained 
in detail that the torture that was visited in Guantanamo was 
ordered from the top and not from a few bad apples on the 
bottom.
    The second hearing that this Committee had, we had Dan 
Levin of the Office of Legal Counsel, who told us about flaws 
in Professor Yoo's memos and how he was forced out of the OLC 
while attempting to impose constraints on torture. Mr. 
Wilkerson told us that Colin Powell was worried about torture 
and that the President was complicit.
    The third hearing of this Committee we had Messrs. Yoo and 
Addington, who refused to take responsibility for approving 
torture or the memos and documents surrounding them and could 
not or would not remember the facts. So here we are at the 
fourth hearing.
    Now the fourth hearing was necessitated because we had 
trouble getting Professor Feith to the hearing. It's quite 
likely that we would not have had this hearing if he had been 
able to fit his schedule in with the other three previous ones 
that I noted. I will give him plenty of opportunity to respond 
to that at the appropriate time.
    Now what have we learned here? We have had disturbing 
information coming out in an unbroken stream about the way we 
have treated detainees. We heard about numerous deaths in the 
United States' custody. We have heard about extreme methods of 
questioning involving the harshest possible treatment.
    Just today, we heard reports of a young Canadian detainee 
deprived of sleep for over 50 consecutive days. Last week, we 
had news of a Red Cross report that determined that it was 
Administration officials who approved torture, and that in 
their judgment, in this report, that they had committed war 
crimes. A respected Major General Taguba also has written that 
war crimes were committed. And the question is: How high does 
this responsibility go. So it is clear that the current 
leadership is not going to do the investigation that our Nation 
requires.
    Last week, I received a letter from Attorney General 
Mukasey, refusing to appoint a special prosecutor to 
investigate the advice givers and policymakers who apparently 
directed this abuse. Attorney General Mukasey said that these 
people acted in good faith and so it would not be fair to 
prosecute them.
    Well, that starts off sounding fairly reasonably,
    but let's look at it more closely. How does anyone know 
they acted in good faith without having an investigation 
beforehand. How can we start off with that assumption. Final 
decisions on what to do in this area can't be responsibly made 
until after the facts are given a full and independent 
investigation.
    When the Attorney General appeared before us, this 
Committee, in February, I asked if he would investigate those 
who use waterboarding. He said no. He said the reason was 
because, ``Whatever was done, was part of a CIA program at the 
time that it was done, was the subject of a Department of 
Justice opinion, and was found to be permissible.''
    Well, after that, we get to a question of calling for a 
special counsel is not to prove guilt, it is to inquire into 
whether these folks did act in a normal and reasonable manner 
and were acting under instructions. So we asked for an 
investigation of the people who gave the legal approval and of 
other policymakers that were involved. The Attorney General 
says that they cannot be investigated either because they were 
simply responding in good faith to a CIA request for approval.
    So here is the problem the Committee on the Constitution 
find itself engaged in this morning. We can't investigate those 
who did the waterboarding because they had legal approval. We 
can't investigate those who gave the approvals because our 
intelligence agents relied on them for advice. It is a perfect 
circle that leads us round and round and round and nowhere 
closer to the truth.
    So I say to all the Members of the Committee, this isn't 
repetition. We are just trying to find out what has happened.
    I thank the Chairman for his giving me additional time to 
make this statement.
    Mr. Nadler. I thank the distinguished Chairman. I now want 
to welcome our----
    Mr. King. Mr. Chairman. Mr. Chairman, I seek time for an 
opening statement.
    Mr. Nadler. The gentleman is recognized for an opening 
statement.
    Mr. King. I thank you, Mr. Chairman. I appreciate the 
opportunity, and I know that it's not standard procedure, but 
our Ranking Member is not here and in that 5-minute period of 
time, I would appreciate the full Ranking Member of the full 
Committee, as in Mr. Conyers' counterpart.
    So I just think it is important for us to frame this 
hearing today within the context of the work and the service of 
the people that are under this scrutiny. I would ask us to role 
our minds back to that terrible day of September 11, 2001, the 
day that my sons came together in our household, grown men, 
some with families, and said, One more attack and we are all 
going to join the military today; the day that all of us looked 
at that blazing inferno tumbling down in New York and thought 
the planes that were in the air that aren't grounded may be 
planes that still come into the Capitol, into the White House, 
other places unknown across this country. The day that, when 
the sun set on September 11, 2001, no one in this country would 
have logically predicted that we would be sitting here today on 
this date in 2008, having not suffered an attack, a successful 
attack by al-Qaeda or other significant terrorists in the 
entire continent of the United States, and Hawaii and Alaska 
included.
    That has been the success of this Administration. That was 
not even a dream then. It would not have been uttered by our 
leadership back in September of 2001, because it would 
considered to be a pipe dream. In fact, if President Bush would 
have stepped up and said, I can hear you now, and you hear me 
now; there will be no American who is suffering from this kind 
of attack on our sovereign soils during the Bush 
administration, you would have all been busy here trying to 
discredit the President for the audacity of a statement like 
that. But that is the reality of where we are today.
    The reality that these men who are under scrutiny for the 
decisions that made at that time was that they were working 
while that smoking hole in New York was still burning, and 
while that burning rubble, and as bodies and ashes were brought 
out of there, they were trying to protect this country from 
seeing that kind of inferno again, they were using the legal 
guidelines that they had, and as I read through those 
guidelines and I try to second-guess that logic, I think all of 
us have to second-guess that logic if we are going to do it 
within the context of the scenario that I have painted.
    I think it is inappropriate for us to bring people up now 
and turn them slowly on a spit because there are people on the 
Committee that despite the Administration. I remind you that 
this Administration will be over January 20, 2009, and it is 
time for us to turn our focus to the future of the United 
States of America, not to the past, and turning people on a 
spit that have been serving America in the fashion that they 
have, who have a legal foundation for their analysis, because 
there are people that disagree with that legal analysis, I 
think is an inappropriate kind of show for us to have before 
the American people.
    I have disagreements with the majority party on how they 
analyze those definitions of torture, and in fact, it is just 
not possible to write a complete definition of what torture is. 
So that will allow Monday morning quarterbacks, any time there 
is any pressure made, to draw that kind of a judgment.
    So I would caution this Committee to, when we listen to Mr. 
Feith's testimony in particular, to think about what he was 
thinking, what was in his mind, how recent and how current the 
smoking hole in New York was, the smoking ground in 
Pennsylvania was, and the Pentagon and the United States. That 
is the context that this hearing should be considered in.
    I thank the Chairman for recognizing me for the opportunity 
to frame that, and I would yield back the balance of my time.
    Mr. Nadler. I thank the gentleman. I would simply like to 
point out that regardless of the situation of the country, we 
can all judge that for ourselves at any given point. We do have 
laws in this country, and that is what distinguishes us from 
other countries. Those laws are not set aside by difficult 
circumstances. Among the questions we are considering is 
whether those laws were violated. We can differ on that 
question. But no one can take the position that our laws 
against torture or any other laws can be simply set aside at 
the whim of the Administration, which thinks that that is the 
best way to deal with the challenges with which we are faced.
    We are a Nation of laws. Those laws must be obeyed. If they 
are inadequate, they should be changed through constitutional 
processes. That is what this Committee is examining, whether 
those laws were obeyed, whether they were disobeyed, and if so, 
why and what we can do about it in the future.
    Mr. Issa. Mr. Chairman.
    Mr. Nadler. That is a legitimate inquiry.
    Mr. Issa. Mr. Chairman, point of parliamentary inquiry.
    Mr. Nadler. Yes, sir.
    Mr. Issa. Isn't it true that we are having another hearing 
on Thursday, the fifth in the series?
    Mr. Nadler. That is a hearing of the full Committee.
    Mr. Issa. Further inquiry. Isn't it true that under the 
law, this alleged torture had to be reported to Congress, and 
that it was reported to Congress?
    Mr. Nadler. First of all, I don't know the answer to your 
question. In any event, that is not a parliamentary inquiry.
    Mr. Issa. Then a further inquiry of the Chair. Isn't it 
true that Speaker Pelosi and Jane Harman of California both 
were briefed, and would thus fall under the Chairman's 
definition of advice and counsel?
    Mr. Nadler. That, again, is not a parliamentary, and you 
might want to address any questions to the witnesses.
    Mr. Issa. One final parliamentary inquiry.
    Mr. Nadler. I am yet to hear the first one. But go ahead.
    Mr. Issa. Do we have the ability to summon Members of 
Congress who may know about the torture at Guantanamo or other 
places? Do we have that authority, Mr. Chairman?
    Perhaps the full Committee Chairman can tell us whether we 
can bring a Member of Congress to answer those answers. Can we 
even invite a Member of Congress to give testimony or to tell 
us what they knew?
    Mr. Nadler. We can certainly invite a Member of Congress to 
testify about anything. We have had Members of Congress in 
front of our Committee. Whether we can compel a Member of 
Congress, frankly, I don't know. We would have to consult the 
Parliamentarian.
    Mr. Issa. Thank you, Mr. Chairman. I then move that we 
invite Speaker Pelosi and Ms. Harman to give us the knowledge 
they knew, since my understanding, as a Member of the Intel 
Committee, is that they were both fully briefed in real-time on 
what we are going to hear today, and that we do it for 
Thursday, since before we come to an end of these endless 
hearings, we certainly should know what did they know and when 
did they know it.
    Mr. Nadler. The gentleman's suggestion, which I will take 
as a suggestion since a motion would not be in order, will be 
taken under advisement.
    Mr. Issa. I thank the Chairman.
    Mr. King. Would the Chairman yield?
    Mr. Nadler. For what purpose does the gentleman seek 
recognition?
    Mr. King. For further clarification on your remarks, Mr. 
Chairman.
    I appreciate that. I wanted to clarify. I hope no one 
misunderstood my remarks. I think I was clear that I didn't 
advocate for violation of the law or the law of torture. My 
remarks were that it is not possible to define torture 
precisely enough. That we will always have a debate on it. So I 
hope there wasn't a misunderstanding on my advocacy and my 
statement.
    Mr. Nadler. I thank the gentleman for the clarification.
    Ladies and gentlemen, I want to welcome our distinguished 
panel of witnesses, at last, today. Douglas Feith is professor 
and a distinguished practitioner in national security policy at 
Georgetown University. He is a Belfor Center visiting scholar 
at Harvard's University's Kennedy School of Government. And a 
distinguished visiting fellow at the Hoover Institution at 
Stamford University. Professor Feith served as the Under 
Secretary of Defense for Policy, the number three position in 
the Department, from July, 2001, until August, 2005. In the 
Reagan administration, Professor Feith worked at the White 
House as a Middle East specialist for the National Security 
Council, and then served as Deputy Assistant Secretary of 
Defense for negotiations policy. Professor Feith holds a JD 
from Georgetown University Law Center and an AB from Harvard 
College.
    Philippe Sands QC is on the faculty of the University 
College at London, where he has been a Professor of Law and 
Director of the Center on International Courts and Tribunals in 
the faculty, and a member of the staff of the Center for Law 
and the Environment. Professor Sands has litigated cases before 
the International Court of Justice, the International Tribunal 
for the Law of the Sea, the International Center for the 
Settlement of Investment Disputes, and the European Court of 
Justice.
    He is the author of Torture Team: Cruelty, Deception and 
the Compromise of Law, and of Lawless World: America and the 
Making and Breaking of Global Rules.
    Deborah Pearlstein is currently a visiting scholar at the 
Woodrow Wilson School of Public and International Affairs at 
Princeton University. From 2003 to 2006, she was the director 
of the law and security program at the nonprofit organization 
Human Rights First. She clerked for Judge Michael Boudin of the 
U.S. Court of Appeals for the First Circuit, and Justice John 
Paul Stevens of the United States Supreme Court. Professor 
Pearlstein is a graduate of Harvard Law School.
    Before we begin, it is customary for the Committee to swear 
in its witnesses. If you would please stand and raise your 
right hands to take the oath.
    [Witnesses sworn.]
    Mr. Nadler. Let the record reflect that the witnesses 
answered in the affirmative.
    You may be seated, as you already have been.
    Without objection, your written statements 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. When 1 minute 
remains, the light will switch from green to yellow, and then 
to red when the 5 minutes are up.
    Our first witness I will recognize now is Professor Feith 
for 5 minutes.

 TESTIMONY OF DOUGLAS FEITH, PROFESSOR, GEORGETOWN UNIVERSITY, 
         AND FORMER DEFENSE UNDER SECRETARY FOR POLICY

    Mr. Feith. Mr. Chairman, Mr. Franks, Members of the 
Committee, I am pleased to testify today. All I will say in my 
opening statement is that the subpoena was unnecessary. I am 
happy to have the opportunity to counter some widely believed 
falsehoods about the Administration's policies.
    The history of war on terrorism detainee policy goes back 
nearly 7 years. Some critics of the Administration have twisted 
that history into what has been called the torture narrative. 
It is an unsubstantiated accusation that top level 
Administration officials sanctioned abuse and torture of 
detainees.
    The book by Philippe Sands is an important prop for that 
false narrative. Central to the book is its story about me and 
my work on the Geneva Convention. Mr. Sands says I was hostile 
to Geneva and that I devised the argument that Gitmo detainees 
shouldn't receive any protections at all under Geneva. Those 
assertions are wrong. In fact, I strongly championed a policy 
of respect for Geneva, and I did not recommend that the 
President set aside Common Article 3.
    In January and February 2, 2002, Administration lawyers 
brought to the President the question of the detainees' legal 
status. A key issue was whether the war with the Taliban was 
subject to the Geneva Convention. Some lawyers argued that the 
President could say that Geneva didn't apply, even though 
Afghanistan was a party to the Convention. Their argument was 
that Afghanistan at that time was a failed state and the 
Taliban was not a proper government.
    General Myers, the Chairman of the Joint Chiefs of Staff, 
didn't like that argument. He said the United States should not 
try, in his words, to weasel out of its obligations under 
Geneva. I agreed with him wholeheartedly. The two of us argued 
to Secretary Rumsfeld that the United States had a compelling 
interest in showing its respect for Geneva.
    I drafted a memo on the subject for Mr. Rumsfeld, and 
cleared it with General Myers. The memo stressed that Geneva is 
crucial for our own Armed Forces. I described Geneva as a good 
treaty that requires its parties to treat prisoners of war the 
way we want our captured military personnel treated. I noted 
that U.S. troops are trained to uphold Geneva, and this 
training is an essential element of U.S. military culture.
    I wrote that Geneva is morally important, crucial to U.S. 
morale, and it is also practically important, for it makes U.S. 
Forces the gold standard in the world, facilitating our winning 
cooperation from other countries.
    My memo made the case that Geneva should apply to our war 
with the Taliban. Secretary Rumsfeld arranged for me to make 
these points to the President at the National Security Council 
meeting, which I did. The Department's leadership took a 
strongly pro-Geneva position.
    The Committee can therefore see that the charge that the 
department's leadership was hostile to Geneva is untrue. The 
picture that Mr. Sands' book paints of me as an enemy of the 
Geneva Convention is wildly inaccurate.
    Mr. Sands also misstates my position on the treatment 
detainees were entitled to under Geneva. He writes that I 
argued that they were entitled to none at all. But that is 
false. I argued simply that they were not entitled to POW 
status.
    There was a question whether the President should grant POW 
status to all the detainees as a magnanimous gesture, without 
regard to whether they were entitled to it. I believe that 
would be a bad idea. Geneva sets conditions for POW 
eligibility. It uses POW status as an incentive to encourage 
fighters to wear uniforms and comply with the other rules 
designed to protect noncombatants. Giving that status to 
terrorists would undermine the Convention's incentive to 
mechanism.
    Also, giving POW status to undeserving terrorists would 
make it impossible to get intelligence from many of them. It 
was legal and proper. Furthermore, it was necessary and urgent 
that U.S. officials interrogate war-on-terrorism detainees 
effectively.
    In fighting the enemy after 9/11, the key intelligence was 
not discoverable by satellite, as it was during the Cold War, 
when we could watch the Soviet Western military district from 
space for signs of a planned attack. In our post-9/11 
challenge, the most important intelligence was not visible from 
space. We aimed to prevent future 9/11-type attacks, as 
Congressman King pointed out, by learning what was in the heads 
of a few individuals, by learning what captured terrorists knew 
about their groups' plans and capabilities. It would have made 
no sense for the President to throw away the possibility of 
effective interrogations by bestowing POW status on detainees 
who were not actually entitled to it under Geneva.
    The President ultimately decided Geneva applied in 
Afghanistan and that none of the Gitmo detainees qualified for 
POW status.
    So what standard of treatment then should the detainees 
receive? President Bush said they should be given humane 
treatment, which brings us to the essence of the books' attack 
on me. It is the claim that in the deliberations leading up to 
the President's decision on humane treatment, I not only argued 
against relying on Common Article 3 for the definition of 
humane treatment, but I somehow invented that argument.
    Those assertions are false. There is no evidence for them. 
I did not invent any argument against Common Article 3. I was 
not even making such an argument. In fact, I was receptive to 
the view that Common Article 3 should be used.
    So Mr. Sands' account about me is fundamentally wrong. This 
is important not simply because that account smears me, it is 
significant because it exposes the astonishing carelessness or 
recklessness of his book and his Vanity Fair article. It 
impeaches Mr. Sands as a commentator.
    I was a policy official and didn't serve in the 
Administration as a lawyer, but I asked the lawyers occasional-
Questions about detainee matters being handled in legal 
channels. I asked, ``Why not use Common Article 3 to define 
humane treatment and why not use so-called Article 5 tribunals 
to make individual determinations that the detainees are not 
entitled to POW status?''
    The lawyers in charge, however, opposed using Article 5 
tribunals. They said they were unnecessary. The lawyers also 
decided that Common Article 3 was not applicable because, 
according to its language, it applies to only non-international 
conflicts.
    On February 7, 2002, the President declared that he 
accepted the Justice Department's legal conclusion that Common 
Article 3 doesn't apply to the detainees. Contrary to Mr. 
Sands' story, I had nothing whatever to do with that Justice 
Department legal conclusion.
    Now I know that various lawyers dispute the legal 
conclusion adopted by the President on Common Article 3. 
Reasonable people differ on the matter. When the U.S. Supreme 
Court eventually dealt with Common Article 3's applicability to 
the Gitmo detainees, a question of first impression, the 
Justices split. The majority ruled against the Administration, 
but there were justices who went the other way. The President 
has deferred to the Supreme Court, as he must.
    In no way does the record bear out Mr. Sands' allegation 
that I argued against using Common Article 3, much less that I 
invented the legal argument against it. Mr. Sands dragged me 
into his book and painted me as a villain without any evidence 
for his key accusation that I opposed the use of Common Article 
3.
    Mr. Sands' book is a weave of inaccuracies and distortions. 
He misquotes me by using phrases of mine like, ``that is the 
point,'' and making the word ``that'' refer to something 
different.
    Mr. Nadler. The witness will suspend.
    Mr. Conyers. I ask unanimous consent that the witness be 
given additional time.
    Mr. Feith. I only need a minute more.
    Mr. Nadler. Without objection, the witness will be given an 
additional minute, loosely interpreted.
    Mr. Feith. Thank you.
    As I was saying, Mr. Sands' book is a weave of inaccuracies 
and distortions. He misquotes me by using phrases of mine like, 
``that's the point,'' and making the word that refer to 
something different from what I referred to in our interview. I 
challenge Mr. Sands to publish whatever on-the-record audio he 
has of our interview. I believe it will clearly show that he 
has given a twisted account.
    Likewise, Mr. Sands' book presents a skewed account of the 
Rumsfeld memo referred to in the book's subtitle. I hope we 
will get into in this during today's hearing.
    I want to conclude this statement by
    reiterating that I have focused on issues relating to me, 
not because they are necessarily the most important but because 
I can authoritatively say that Mr. Sands has presented those 
issues inaccurately. His ill-informed attack on me is a pillar 
of the broader argument of his book, and that flawed book is a 
pillar of the argument that Bush administration officials 
despise the Geneva Convention and encouraged abuse and torture 
of detainees.
    Congress and the American people should know that this so-
called torture narrative is built on sloppy research, 
misquotations, and unsubstantiated allegations.
    Mr. Nadler. I thank the witness.
    [The prepared statement of Mr. Feith follows:]
                  Prepared Statement of Douglas Feith



    Mr. Nadler. Our next witness will be Professor Pearlstein, 
who is recognized for 5 minutes.

TESTIMONY OF DEBORAH N. PEARLSTEIN, ASSOCIATE RESEARCH SCHOLAR, 
   LAW AND PUBLIC AFFAIRS PROGRAM, WOODROW WILSON SCHOOL FOR 
     PUBLIC AND INTERNATIONAL AFFAIRS, PRINCETON UNIVERSITY

    Ms. Pearlstein. Thank you, Mr. Chairman, Ranking Minority 
Member Franks, Members of the Committee. Thank you very much 
for the opportunity to testify before you today.
    My testimony today is about the consequences of the 
Administration's legal policy, and it is informed by my work 
both as a scholar of U.S. constitutional and national security 
law and as a human rights lawyer. In the course of my work I 
have been privileged to meet an array of senior retired 
military leaders, JAG officers, civilian intelligence, and 
defense department officials who spent their careers devoted to 
pursuing national security interests, and who have been 
overwhelmingly deeply troubled by the Administration's approach 
to human intelligence collection and detainee treatment.
    I have also met with Iraqi and Afghan nationals who have 
been victims of gross abuse in U.S. detention facilities, and 
have reviewed hundreds of pages of government documents 
detailing our treatment of the many thousands of detainees who 
have passed through U.S. custody since 2002.
    Based on this work, it has become clear to me that the U.S. 
record of detainee treatment has fallen far short of what our 
laws require and what our security interests demand.
    Well beyond the few highly publicized incidents of torture 
at Abu Ghraib, as of 2006, there have been more than 330 cases 
in which U.S. military and civilian personnel have been 
credibly alleged to have abused or killed detainees. These 
figures are based almost entirely on the U.S. Government's own 
documentation.
    These cases involved more than 600 U.S. Personnel and more 
than 460 detainees held at U.S. facilities throughout 
Afghanistan, Iraq, and Guantanamo Bay. They include some 100-
plus detainees who died in U.S. custody, including 34 whose 
deaths the Defense Department reports as homicides. At least 
eight of these detainees were, by any definition of the term, 
tortured to death.
    Beyond these obviously dismaying human rights consequences, 
multiple U.S. defense and intelligence officials have now 
described the negative strategic and tactical security 
consequences or our treatment of detainees. Polling in Iraq has 
underscored how U.S. Detention practices helped galvanize 
public opinion against the United States. Extremist group Web 
sites now invoke the image of Abu Ghraib to spur followers to 
action against the U.S.
    Arguably, even more alarming, a remarkable recent study by 
the British parliament found that U.S. detainee treatment 
practices led the U.K. to withdraw from previously planned 
covert operations with the CIA because the U.S. failed to offer 
adequate assurances against inhumane treatment.
    But I think it was the statement of the young army 
intelligence office who put the intelligence impact most 
succinctly. The more a prisoner hates America, the harder he 
will be to break. The more a population hates America, the less 
likely its citizens will be to lead us to a suspect.
    Over the course of my work it has become clear to me that 
these effects were not merely the consequences of misconduct by 
a few wrongdoers. Rather, senior civilian legal and policy 
guidance was, in my judgment, a key factor that led to the 
record just described.
    In addition to Mr. Sands' important work, I highlight here 
two other factors that led me to this conclusion. First, the 
abuse I have described followed a series of legal decisions to 
change what had been for decades settled U.S. law. This law 
embodied in military doctrine, field manuals, and training had 
unambiguously provided that detention operations in situations 
of armed conflict were controlled by the Geneva Conventions, 
including Common Article 3 of those treaties affording all 
detainees a right to humane treatment, not just prisoner of war 
detainees.
    The Administration's 2002 legal interpretation to the 
contrary, as the Supreme Court later made clear in Hamdan 
versus Rumsfeld, was wrong as a matter of law. It was also 
disastrous as a matter of policy. In suspending application of 
Common Article 3, the Administration offered no consistent set 
of rules to replace those it had summarily rejected, producing 
rampant confusion and ultimately gross abuse by frontline 
troops.
    Although troops moved seamlessly from Afghanistan to 
Guantanamo to Iraq, the operative interrogation orders in each 
theater differed. The orders differed further within each 
detention center, depending on the month, the Agency 
affiliation of the interrogator, and the legal status assigned, 
which itself shifted repeatedly, to the prisoner himself. These 
policies and orders and the confusion they engendered 
unquestionably played a role in facilitating abuse.
    Second, and critically, gross acts of abuse continued long 
after senior Pentagon officers, including that of Secretary of 
Defense Rumsfeld, knew it was happening, and yet no meaningful 
action was taken to stop it. By February 2004, the Pentagon had 
seen extensive press accounts, NGO reports, FBI memoranda, Army 
criminal investigations, and even the report of Army Major 
General Antonio Taguba detaining detainee torture and abuse, 
yet essentially no investigative progress had been made by 2004 
in some of the most serious cases, including the interrogation-
related homicides of detainees in U.S. custody.
    On the contrary, shortly after the Taguba report was leaked 
to the press in early May, 2004, Mr. Feith's office sent an 
urgent e-mail around the Pentagon, warning officials not to 
read the report. The e-mail, according to a News Week report, 
warned that no one should mention the Taguba report to anyone, 
including family members.
    This is not the response of an Administration, in my 
judgment, that takes either human rights or law enforcement 
seriously.
    I am deeply supportive of this Committee's efforts to 
review the record on these matters, and I am grateful for the 
opportunity to share my views. I look forward to your 
questions.
    Mr. Nadler. I thank Professor Pearlstein.
    [The prepared statement of Ms. Pearlstein follows:]
              Prepared Statement of Deborah N. Pearlstein



    Mr. Nadler. I now recognize for 5 minutes for his opening 
statement, Professor Sands.

  TESTIMONY OF PHILIPPE SANDS, PROFESSOR, INTERNATIONAL LAW, 
                   UNIVERSITY COLLEGE LONDON

    Mr. Sands. Thank you very much.
    Mr. Chairman, Subcommittee, it is a pleasure to be back for 
the second time, and a privilege also to share this table with 
my two colleagues to my right.
    Since I last appeared on the 6th of May, important details 
have emerged, filling out and developing accounts that I and 
others have given, and that account, my account, other accounts 
have been sustained and strengthened by what has emerged.
    I then described really four simple steps to what happened. 
First, get rid of Geneva and the international rules 
prohibiting aggressive interrogations. Second, find new 
interrogation techniques and disarm their opponents by 
circumventing the usual consultations. Third, deploy those 
techniques. And fourth, make it look as though the initiative 
came from the bottom up.
    New information and testimony conclusively shows the 
decision to move to aggressive military interrogations at 
Guantanamo came from the top. We now know, for example, since 
the hearing before the Senate Armed Services Committee, that as 
early as July, 2002, the Office of General Counsel at DOD was 
actively engaged in exploring sources for new techniques of 
interrogation, including from the SERE program. That seems to 
have pre-dated the efforts at Guantanamo.
    There has been, until this morning, no challenge to my 
conclusion that the Geneva Conventions were set aside to allow 
new interrogation techniques to be developed and applied. That 
Act created a legal vacuum within which the torture memo of 
August 1, 2002, was written by Jay Bybee and John Yoo. Nothing 
has emerged, frankly, to contradict my conclusion and that of 
others that it was Professor Yoo's memo rather than Colonel 
Beaver's legal advice that served as the true basis for Mr. 
Haynes' recommendation and Mr. Rumsfeld's authorization of 
cruelty on the 2nd of December, 2002.
    Most significantly, in my view, in her testimony before the 
Senate Armed Services Committee on June 17, Jane Dalton, who 
was the general counsel to General Myers, the Chairman of the 
Joint Chiefs of Staff, confirmed my account that Mr. Haynes 
actively and directly short-circuited the decision-making 
process.
    Admiral Dalton went further. She revealed that there was 
serious objections already by November from military lawyers, 
that these were known to General Myers and Mr. Haynes, and that 
steps were taken to prevent them from being taken any further. 
That is entirely consistent with my belief that a conscious 
decision was taken at the upper echelons of the Administration 
to avoid unhelpful legal advice.
    These are very serious matters that, in my humble 
submission, do require further investigation. That is an 
important role for this Committee and for Congress and perhaps 
also for others.
    Professor Yoo testified before this Committee on June 26. 
Whether deliberately or by accident, he fell into error with 
respect to my previous testimony. Professor Yoo said that I had 
never interviewed him for my book, and that is right, but he 
also asserted in my testimony that I had claimed to have done 
so, and that is wrong. It seems that if he did read my 
testimony, he did so with insufficient care.
    I didn't say to this Committee that I had interviewed him. 
I chose my words with great care. What I said on May 6 was, and 
I quote, ``Over hundreds of hours I conversed or debated with 
many of those most deeply involved in that memo's life. They 
included, for example, the Deputy Assistant Attorney General at 
DOJ, Mr. Yoo.''
    I was, of course, referring to the debate I had with 
Professor Yoo in the autumn of 2005 at the World Affairs 
Council in San Francisco. It is fully described in my book. If 
you are interested, you can listen to it on the Web.
    Congressman King seized on Professor Yoo's words with 
impressive speed. The Congressman seemed to be under the 
impression that I had made a full statement to the Committee, 
and suggested that might reflect on the veracity of the balance 
of my book. That avenue, I fear, is not available to him 
because I made no claim in my testimony or in the book to 
having interviewed Professor Yoo. And because the allegation is 
serious, I wrote to Professor Yoo, inviting him to correct his 
error. I have attached a copy of that letter in my written 
statement. I haven't yet received a reply. I did also copy the 
letter to Congressman King, and I trust he accepts that if any 
false statement was made before this House, I was not its 
author.
    Mr. Addington also appeared before this Committee on June 
26. His appearance was striking in many respects, not the least 
for his apparently generous failure of memory. On many key 
issues he simply said he couldn't remember. He couldn't 
remember, for example, whether he had been to Guantanamo in 
September, 2002. He couldn't remember whether they had 
discussions on interrogation techniques. He couldn't even 
remember whether he then met Colonel Beaver, Staff Judge 
Advocate. And yet, he was curiously able to recall one point 
during this meeting with crystal clarity. Asked by Congressman 
Wasserman Schultz whether he had encouraged Guantanamo Bay 
interrogators, ``to do whatever needed to be done,'' Mr. 
Addington was suddenly be able to provide a clear response. I 
do deny that, he said. That quote is wrong.
    You will appreciate my skepticism at his sudden and 
selective capacity for recollection. Either he remembers what 
happened that day, or he does not.
    I did interview Mr. Feith for my book. He told me much that 
was of interest. He told me the decision not to follow the 
rules reflected in Geneva was taken in the knowledge that it 
would remove constraints on military interrogations. He told me 
the decision to move to aggressive military interrogations 
followed what he called a thoroughly interagency piece of work 
involving DOJ.
    I learned also that Mr. Feith was somewhat reticent about 
his own role in the decision to treat Al Qahtani, detainee 063, 
with cruelty. I was able to help him recall that his 
involvement in that decision came rather earlier than he had 
wanted me to believe. You can see that for yourself in Mr. 
Haynes' one-page memo that I included as an attachment to my 
statement. ``I have discussed this with Doug Feith,'' wrote Mr. 
Haynes.
    Mr. Feith later wrote a letter to the editor of Vanity Fair 
complaining that my article contained more misquotations and 
errors that can be addressed in this letter. He didn't, 
however, provide even a single example of misquotation. I 
believe that I provided an accurate and fair account of that 
conversation and was able to deal shortly with his allegation 
when the editor gave me an opportunity to respond. He may not 
recall that our conversation was recorded, I wrote of Mr. 
Feith. The quotations are accurate.
    Since he has not identified any errors, I wasn't in a 
position to respond to his allegations. Subsequently, Mr. Feith 
took matters to another level. Last month, in the course of an 
interview on the Canadian Broadcasting Corporation program, The 
Current, he expressed his belief that my book was dishonest. 
That is a serious charge. Perhaps it is was made in a moment of 
excess. Even so, it is wrong. It has been made, once again, 
until this morning, without substantiation.
    Now this morning, for the first time I have got an 
indication of what it is that seems to bother Mr. Feith. I 
should say I am entirely open to reviewing all the documents in 
a spirit of transparency if I have got things wrong, but I 
don't think I have.
    This morning, Mr. Feith said, and I read from his 
introductory statement, that, Sands writes that I argued that 
the Gitmo detainees were entitled to no rights at all under 
Geneva. But that is not true, he writes. I argued simply they 
were not entitled to POW privileges.
    Now that, I am afraid, is not an accurate account of what 
he said to me. And I quote from an extract that I will 
circulate and make available, and I should say that I am very 
happy to accede to his request, and if the Committee would like 
it, to make available to the Committee the audio and the 
transcript of my interview with him. I leave that to the 
Committee to indicate.
    This is what he said to me. ``The point is that the al-
Qaeda people were not entitled to have the convention applied 
at all, period.'' Obvious. ``Al Qaeda people were not entitled 
to have the convention applied at all, period.'' End of quote. 
That word admits of no ambiguity. I understood those words to 
include what it says: All of Geneva, including Common Article 
3. And the thing that is so curious is that in the document 
that he put in this morning attached to his introductory 
statement he refers to his contemporaneous memo of February, 
2002, and we find no reference in that to his strong and 
burning desire to ensure that Common Article 3 provisions are 
respected.
    So with respect, I stand to be correct, but I do not see 
that I have misquoted or miscited in any way what he told me or 
what the record shows.
    Now, Mr. Feith held an important position. He was head of 
policy, number three, at Pentagon. And yet it seems that he and 
his colleagues failed to turn their minds to all the possible 
consequences of----
    Mr. Nadler. Without objection, the witness will have an 
additional minute and a half.
    Mr. Sands. Thank you very much, sir. I will try to wrap 
within that time.
    Having decided to circumvent these international 
constraints on aggressive interrogation, it seems that some key 
questions were not asked. Was the Administration satisfied that 
these new techniques could produce reliable information? Could 
the techniques undermine the war on terror by alienating 
allies? Would the fact of aggressive interrogation be used as a 
recruiting tool?
    It seems that Mr. Feith was involved in many aspects of 
these decisions, from the denial of Geneva rights to all the 
detainees at Guantanamo, to the appointment of Major General 
Dunlavey, the combatant commander at Guantanamo, to the 
adoption of aggressive interrogation techniques.
    You would not know that from his recent book, in which six 
pages out of 900 are devoted to the Geneva decision and the 
issue of aggressive interrogations is reduced to a mere single 
paragraph. No mention is made of Detainee 063 or Mr. Feith's 
role on the interrogation rules or the way in which the 
Department of Defense Inspector General concluded that the 
Guantanamo techniques approved on his watch migrated to Abu 
Ghraib. All this is simply airbrushed out of the story.
    Mr. Chairman, Members of the Subcommittee, at the heart of 
these hearings lie issues of fact. If Congress cannot sort this 
out, and if a desire for foreign investigations is to be 
avoided, the need to investigate the facts fully in this House 
and the other House is an important one. And foreign 
investigations may become impossible to resist if that does not 
happen.
    I thank you, sir, for allowing me to make this introductory 
statement.
    [The prepared statement of Mr. Sands follows:]
                  Prepared Statement of Philippe Sands



    Mr. Nadler. I thank you, sir.
    We will now begin the questioning of the witnesses. As we 
ask questions of our witnesses, the Chair will recognize 
Members in the order of their seniority in the Subcommittee, 
alternating between majority and minority, provided that the 
Member is present when his or her turn arrives.
    Members who are not present when their turn begins will be 
recognized after the other Members have had the opportunity to 
ask their questions. The Chair reserves the right to 
accommodate a Member who is unavoidably late or only able to be 
with us for a short time.
    I will begin by recognizing myself for 5 minutes to begin 
the questioning.
    Mr. Feith, I want to ask you about your role in Secretary 
Rumsfeld's December 2002 approval of techniques for use in 
interrogations at Guantanamo Bay. The cover memo from the 
Department of Defense counsel Jim Haynes to Secretary Rumsfeld 
says, and I quote, ``I have discussed this with the deputy, 
with Doug Feith, and General Myers. I believe that all join in 
my recommendation,'' unquote.
    Did you undertake your own review of legality of the 
requested techniques?
    Mr. Feith. No.
    Mr. Nadler. And if you didn't, whose legal advice did you 
rely upon?
    Mr. Feith. We were relying on the general counsel.
    Mr. Nadler. That is Mr.----
    Mr. Feith. Mr. Haynes.
    Mr. Nadler. Mr. Haynes. And had you seen the August 2002 
OLC illegal memo?
    Mr. Feith. I don't think so. I don't remember when I first 
saw that. I've been doing so much work on this subject in 
recent years and doing research, that I can't--I don't remember 
when I first saw that document.
    Mr. Nadler. But is it your recollection that that document 
would not have been influential in your deciding to accede to 
the Secretary's memo in December?
    Mr. Feith. It's possible that I hadn't seen it at all. But, 
I mean, I can't say that it's influential, when I don't know 
that I saw it.
    Mr. Nadler. So you're saying it wasn't influential? Even if 
you had seen it, it wasn't influential? You don't remember 
seeing it.
    Mr. Feith. I don't remember seeing it.
    Mr. Nadler. Okay, fine.
    In your written testimony, you state that you argued for 
application of common Article 3's humane treatment 
requirements.
    Do you believe that the interrogation techniques which you 
recommended Secretary Rumsfeld give blanket approval--stress 
positions, isolation, nudity, the use of dogs--qualify as 
humane--that would in categories 2--qualify as human treatment 
under the Geneva?
    Mr. Feith. I think it's important, when we discuss this 
document--there's so much discussion of this document on the 
Haynes memo and counter-resistance techniques. To understand 
the way it looked to us, I think it's extremely important to go 
back and look at the memo.
    Mr. Nadler. We have the memo.
    Mr. Feith. And I would encourage everybody to do that. I 
attached it as part--as an attachment to my----
    Mr. Nadler. We all have the memo, sir.
    Mr. Feith. Okay. I attached it as part of my statement.
    When we looked at this statement, what it does is--SOUTHCOM 
requested some additional techniques. I think there were 18 of 
them. And it put the techniques into three categories, and----
    Mr. Nadler. Excuse me. To cut to the chase, you said that 
categories 1 and 2 were okay----
    Mr. Feith. No, no, no, cutting to the chase I think leads--
--
    Mr. Nadler. Hold on a second. Tell me if I'm wrong or if my 
summary is wrong. You said that categories 1 and 2 are okay, 
could be used. Category 3, while legal, is inadvisable, 
shouldn't be used.
    Mr. Feith. I think that's largely correct. I think the 
question that, Mr. Chairman, you seem to be getting at is, 
shouldn't alarm bells have gone off when we saw this memo 
that----
    Mr. Nadler. No, no. No, sir, the question is that you're 
acceding to a memo which said that the use of categories 1 and 
2 were okay, legal and okay. And category 2 includes such 
things as the use of 28-hour interrogations, hooding----
    Mr. Feith. No, no, 20-hour.
    Mr. Nadler. What? Oh, 20. It looks like 28 here. I don't 
know if there is a great difference.
    These are 20-hour interrogations, hooding, removal of 
clothing, use of detainee individual phobia, such as fear of 
dogs, to induce stress.
    Wouldn't that be the normal definition of anyone's concept 
of torture? Hadn't it always been?
    Mr. Feith. I don't believe so, but especially not----
    Mr. Nadler. I'm sorry, let me rephrase that. It shouldn't 
be torture. Are those humane treatments that we should apply?
    Mr. Feith. Okay, this--I imagine one could apply these 
things in an inhumane fashion, or one could apply them in a 
humane fashion. The general guidance----
    Mr. Nadler. Well, let me ask you, how could you force 
someone to be naked and undergo a 20-hour interrogation?
    Mr. Feith. It doesn't say naked.
    Mr. Nadler. The removal of clothing. Removal of clothing 
doesn't mean naked?
    Mr. Feith. Removal of clothing is different from naked.
    Mr. Nadler. Really?
    Mr. Feith. It talks about removal of comfort item and of 
clothing that would make--the idea was to induce stress, they 
talked about, but one could induce--in our police stations 
around America every day, American citizens are subjected to 
stress as part of interrogations. It can be done in an inhumane 
way; it could be done in a humane way.
    The general guidance----
    Mr. Nadler. Wait, wait. Are you saying--I find it hard to 
believe--hard to imagine, I should say, how someone could have 
a hood placed over his head or be restricting his breathing, 
undergo a 20-hour interrogation, while having had his clothing 
removed and using his fear of dogs or other----
    Mr. King. Mr. Chairman, point of order.
    Mr. Nadler [continuing]. And how that could be considered 
humane.
    Mr. King. Mr. Chairman, point of order.
    Mr. Nadler. The gentleman will state his point of order.
    Mr. King. The Chairman is ignoring the 5-minute rule. Under 
rule 11, clause 2(j), it requires that questioning of the 
witnesses occur under the 5-minute rule until each Member has 
had an opportunity to question the witnesses. When you allow 
the Members to take more than 5 minutes, it's a violation of 
the rules, and it potentially derives----
    Mr. Nadler. The gentleman is 5 seconds over the 5-minute 
rule.
    Mr. Conyers. I'm going to ask that the Chairman be granted 
an additional minute.
    Mr. Nadler. Without objection, the Chairman is granted an 
additional minute so Professor Feith can finish answering these 
questions.
    Mr. Feith. When one looks at this memo, what one sees is 
people were saying in SOUTHCOM that the interrogations under 
the field manual were not working with respect to some 
particularly important and difficult detainees. And they said, 
``We would like to go beyond the field manual.''
    Our understanding was, at the policy level, that there were 
legal limits--the limits, for example, set by Geneva to the 
extent they were applicable, the limits set by the torture 
stature. We understood there were important legal limits----
    Mr. Nadler. I understand the circumstances of which----
    Mr. Feith. Mr. Chairman, I would really----
    Mr. Nadler. We are proceeding under Mr. King's strict time 
instructions, so I have to get the question in.
    So your testimony is that the use of these techniques meet 
the humane treatment standards and that--and let me ask you 
last, if common Article 3 of the Geneva Convention applied, 
would these techniques be allowed?
    Mr. King. Mr. Chairman, point of order.
    Mr. Nadler. I will recognize your point of order when the 
gentleman has finished his answer to that question.
    Mr. Feith. Mr. Chairman, I would really like to try to 
answer this in a way that gives the picture that explains how 
we read this memo.
    Mr. Nadler. If Mr. King will not object, we'll allow 
additional minutes to answer.
    Mr. Issa. I object, Mr. Chairman. I think the minority--if 
I may speak, the minority fully intends and wants questions to 
be answered fully. We're not trying to cut off answers, only 
follow-up questions after a time has expired, if the Chair 
would observe that. We certainly want full answers by the 
witnesses.
    Mr. Conyers. I move that the Chairman be given an 
additional minute.
    Mr. Nadler. Without objection.
    Mr. Feith?
    Mr. Feith. Mr. Chairman, the way we looked at--the way I 
looked at this memo was there were important legal lines that 
everybody understood cannot be crossed. Whatever was the law of 
the United States--the Geneva Convention is part of the law of 
the United States, the torture statute is part of the law of 
the United States, the torture treaty--whatever the legal 
limits were, they had to be respected.
    The President, furthermore, eventually--well, before this 
point, the President, furthermore, said, all detainees must get 
humane treatment.
    Mr. Nadler. You have not answered the question. The 
question is, if common article 3 of the Geneva Convention 
applied, would these techniques be allowed?
    Mr. Feith. It depends how they are used. They could be used 
in a way that violated the convention; they could be used in a 
way that's consistent with the convention. There was guidance 
given, and all of this was under that guidance.
    Mr. Nadler. So they are not per se----
    Mr. Feith. The guidance was that everything had to be 
done----
    Mr. Issa. Point of order.
    Mr. Feith [continuing]. Lawful and humane.
    And one of the things that I would urge you to do, if 
people would actually read the October 11th memo, you will see 
that it shows great care, it shows concern for humane 
treatment, it shows concern for the kind of issues that you 
raised, Mr. Chairman----
    Mr. Nadler. In the----
    Mr. Feith [continuing]. That if they were used in 
combination, there could be a problem.
    Mr. Nadler. In the second round of questioning, perhaps you 
could show which words in that memo show that.
    My time has expired. I'll now recognize for 5 minutes the 
distinguished Ranking minority Member of the Subcommittee, the 
gentleman from Arizona, Mr. Franks.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, let me begin by, in deference to the Chairman 
of the full Committee--he had asked for information related to 
the number of hearings. Let me first say that my comment was 
focused on the notion that if this Government has failed at any 
time in the last 10 years related to terrorism, it's in failing 
to being able to thwart the tragedy of 9/11.
    Now, I'm not suggesting that--I'm not blaming anyone, but 
certainly there were mistakes led up to that situation. And if 
we fail, our first purpose is to protect the citizens of the 
United States of America.
    And I had mentioned that there had been approximately 10 
hearings here in this Committee that worked to try to protect 
terrorist rights or thwart our ability to defend American 
citizens against terrorists, whereas I'm not aware of any 
hearing that we've had that has tried to specifically protect 
victims in the United States from terrorism.
    And I was asked to--I've just got a rough thing--there were 
10--I mentioned the number 10. There was one hearing on habeas 
corpus litigation rights for terrorists. There was another one 
on preventing access to business records and terrorist 
investigations. And this is the eighth hearing on this issue. 
That's 10.
    Now, I'd like unanimous consent to place the official list 
in the record.
    Mr. Nadler. Without objection.
    [The information referred to follows:]
    
    
    Mr. Franks. And I don't challenge the Chairman's 
motivations in the slightest. I believe that the Chairman wants 
to do the right thing. We may perhaps have a different 
perspective of it.
    But my big concern here is the whole direction of our 
country here. To suggest that the President of the United 
States is more committed to perpetrating torture than trying to 
protect the American people is a ridiculous notion. And, yet, 
that has been the ultimate effect of a lot of these hearings.
    Let me also say that I was, of course, at the hearing that 
Mr. Addington appeared, and he did--he couldn't remember 
exactly when he had been to Guantanamo. He said he had been 
there several times, Professor Sands. I've been to Iraq a 
couple times; I can't recall exactly which years those were. 
Now, maybe that explains a lot of things. I don't know, maybe 
I'm gathering wool. But I don't remember exactly what year 
sometimes the places I've been.
    What he did say was he had clear memory that he hadn't 
said, ``Do whatever is necessary.'' I think that's reasonable.
    And, unfortunately, here, in a country where we have the 
right to our own opinion, we sometimes suggest that that gives 
us the ability to consider ourselves unconstrained to the facts 
and the truth. And there is a difference.
    But, Mr. Feith, let me calm down here a little bit and just 
suggest that--I want to give you an opportunity to describe any 
more of the inaccuracies that you feel like you've been 
subjected to here.
    Mr. Feith. Thank you, Mr. Franks.
    I think that--I'll give you a quick list of what I think 
are errors and distortions in Mr. Sands's book.
    He says that this memo from Mr. Haynes was completely 
silent on the use of multiple techniques. And, Mr. Chairman, 
this is something that you just asked about, whether this memo 
talked about multiple techniques. The memo said that if 
multiple techniques were used, they would have to be used, 
quote, ``in a carefully coordinated manner.''
    Second, Mr. Sands says that I wanted the detainees to 
receive no protection at all under Geneva and that I worked to 
ensure that none of the detainees could rely on Geneva. On the 
contrary, I argued that Geneva applied to the conflict with the 
Taliban, and what I said is they should not get POW status. 
That's very different.
    And what Mr. Sands said actually confirms my point, because 
the quote that he cited applied to al-Qaeda detainees, and 
there was a general view within the Administration that the 
Geneva Conventions did not apply at all to the al-Qaeda 
detainees. This is something that, ultimately, the Supreme 
Court disagreed with the Administration on, but it was not even 
a controversial issue at the beginning where--I mean, I don't 
recall any part of the U.S. Government making the argument that 
our conflict with al-Qaeda was governed by the Geneva 
Conventions.
    Mr. Sands says that if detainees do not get POW or common 
Article 3 protections, then, quote, ``No one at Guantanamo was 
entitled to protection under any of the rules reflected in 
Geneva.'' That's not true. There are various protections that 
they might get, including ICRC visits, repatriation after the 
conflict, possibly Article 5 tribunals and other matters.
    Mr. Sands says that I solidly resisted----
    Mr. Nadler. The gentleman from Iowa has insisted on strict 
enforcement of the 5-minute rule. I will have to----
    Mr. Conyers. Mr. Chairman----
    Mr. Nadler. I will have to----
    Mr. Conyers [continuing]. Be given an additional----
    Mr. Nadler. I will have to accede to his demand, and will 
do so with apologies to Members of the Subcommittee.
    And I will now ask for unanimous consent to give the 
gentleman from Arizona an additional minute to continue his 
questioning Professor Feith.
    Without objection, so ordered.
    Mr. Franks. Thank you, Mr. Chairman. I would respectfully 
yield back.
    Mr. Feith. Mr. Sands said that I solidly resisted the idea 
of returning----
    Mr. Nadler. I'm sorry. The gentleman yielded back.
    Mr. King. Mr. Chairman, I would ask unanimous consent to 
accede to Mr. Watt's request of unanimous consent to allow the 
witness to answer the question.
    Mr. Nadler. Without objection, the witness will have 
additional minute.
    Mr. Feith. I misinterpreted the comment about yielding 
back.
    Mr. Sands said I solidly resisted the idea of returning any 
detainees. The fact is I favored returning detainees and, in 
fact, wrote the policy for doing so.
    Mr. Sands says that Secretary Rumsfeld did not reject the 
Category 3 interrogation techniques in the SOUTHCOM proposal. 
But he did reject them. They were proposed, and he did not 
authorize them. By any common definition of ``reject,'' they 
were rejected.
    Mr. Sands says that I hoodwinked General Myers. I spoke to 
General Myers yesterday, and he says that he was, in fact, in 
agreement about Geneva. And the General authorized me to say 
that he believes the Sands book is wrong to say that he was 
hoodwinked.
    Mr. Sands accuses me of circumventing Geneva. I never did 
that or advocated that.
    And with respect to common Article 3, while I raised the 
question while it was being debated before the President made 
his decision in February 2007, later, when the issue came up 
again, my office was active in raising the question about why 
common Article 3 can't be used, and if it can't be used as a 
matter of law, why should it not be used as a matter of policy 
to define humane treatment.
    The Deputy Assistant Secretary of Defense for Detainee 
Affairs, who worked for me, Matt Waxman, was well-known within 
the Administration as somebody who was championing the idea 
that common Article 3 could be used.
    And given that the entire case against me in Mr. Sands's 
book relates to common article Article 3, this is an enormously 
important, and I do believe it impeaches him as a commentator.
    Mr. Nadler. The gentleman's time has expired.
    I now recognize for the purpose of questioning for 5 
minutes the distinguished Chairman of the full Committee, the 
gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    Professor Feith, you said that there was no argument about 
the fact that al-Qaeda shouldn't get any protection under the 
Geneva Convention until the United States Supreme Court said 
otherwise.
    Mr. Feith. No. What I said, Mr. Conyers, was that, at the 
time this was initially debated in the run-up to the February 
2002 NSC meeting, where the President made his decision on this 
subject, I don't recall any agency of the U.S. Government 
making the case----
    Mr. Conyers. All right.
    Mr. Feith [continuing]. That our conflict with al-Qaeda was 
governed by the Geneva Convention.
    Mr. Conyers. Thank you. You don't remember William Taft, 
general counsel of the State Department, ever arguing or 
presenting a contrary position?
    Mr. Feith. No. I don't think he said that the Geneva 
Conventions apply to the conflict.
    Mr. Conyers. What about Alberto Mora, general counsel?
    Mr. Feith. I'm not aware that he made that argument either.
    Mr. Conyers. What about the Secretary of State, Colin 
Powell?
    Mr. Feith. I was in the meeting where this was discussed. 
And I reviewed my notes, and I didn't see that he made that 
argument either.
    Mr. Conyers. So, in other words, you never heard any of 
these people or anybody else taking a contrary position?
    Mr. Feith. What happened was----
    Mr. Conyers. Isn't that right?
    Mr. Feith [continuing]. The lawyers in the Administration--
--
    Mr. Conyers. Is that right?
    Mr. Feith. As I said, I do not recall any agency of the 
U.S. Government making----
    Mr. Conyers. Okay. I heard you say that. That's fine. All 
right. We accept that.
    Now, let me just ask Professor Pearlstein, you mentioned 
the importance of these hearings, and I have too. Do these 
hearings protect America more than torture does? Or what kind 
of thoughts do you have on this issue?
    Ms. Pearlstein. Let me explain why I think these hearings 
are important, if that's an answer to your question.
    It is clear by the facts--and by the facts, I mean the 
facts as recorded and kept by our own Government--that the 
United States has engaged in torture. Saying that we haven't 
has not only proven false, it has done, in the judgment of the 
intelligence and military community members I have spoken with, 
significant harm to both our strategic and tactical interests 
in engaging in counterterrorism.
    What can we do to correct what is now an ongoing security 
problem, namely, the United States' reputation as a country 
that does engage in torture? I think that one of the most 
important things we can do is engage in fact-finding that 
ensures that the full record is known.
    As we sit here 7 years later, there are still many OLC 
memos from the Department of Justice and elsewhere that, to my 
knowledge, have yet to be made public on the public record. As 
we sit here, the reportedly two-volume-thick report by the CIA 
Inspector General on the treatment of detainees held in the 
secret program at sites that remain undisclosed has yet to be 
made public or, to my knowledge, even be fully disclosed to 
this body.
    Mr. Conyers. Thank you very much.
    Mr. Feith, as Under Secretary of Defense for Policy, is it 
not correct that you were responsible for treatment of 
detainees?
    Mr. Feith. My office had some responsibility in that area, 
together with the various other parts of the Defense 
Department.
    Mr. Conyers. Well, the Under Secretary of Defense, Stephen 
Cambone, testified before the Senate that the overall policy 
for handling of detainees rests with the Under Secretary of 
Defense for Policy. That was you.
    Mr. Feith. There were a number of----
    Mr. Conyers. Well, who else was it besides yourself?
    Mr. Feith. I'll be happy to explain.
    My office had what was called primary staff responsibility, 
and we basically were in charge of pulling matters together for 
presentation to the Secretary.
    But the Secretary of the Army was the executive agent for 
administration of the detainee interrogation program. The 
secretaries of the military departments were in charge of 
ensuring appropriate training and the prompt reporting of 
suspected or alleged violations. The combatant commanders were 
in charge of----
    Mr. Conyers. I see. It was really spread out all over the 
place, wasn't it?
    Mr. Feith. There were various responsibilities.
    Mr. Conyers. Yes, great. Okay.
    I ask for an additional minute, Mr. Chairman.
    Mr. Nadler. Without objection.
    Mr. Conyers. Could I elicit a response from Professor Sands 
on this and anything else you've heard here this morning.
    Mr. Sands. I would offer just a single response in relation 
to the question of the compatibility of the techniques that 
were authorized on the 2nd of December, 2002, with the standard 
reflected in Geneva Convention common Article 3.
    I think I heard Mr. Feith this morning say--please correct 
me if I got it wrong--that you always believed Geneva 
Convention, in particular common Article 3, applied to the 
detainees in Gitmo. And that would certainly be a fine 
statement--or at least at the standard reflected in common 
Article 3.
    Mr. Feith. No, I didn't quite say that. What I said was, 
when this was initially debated before the February 2002 NSC 
meeting, I raised the question--I had not come to a conclusion 
on the subject. I considered it a difficult subject. But based 
on work that I had done on the Geneva Convention in the Reagan 
administration, I knew enough to know that there was an 
argument that common Article 3 might be useful or even legally 
applicable here, and I raised that question.
    So, in other words, I was open to the idea----
    Mr. Nadler. Without objection, the gentleman will have an 
additional minute so that this colloquy between Mr. Sands and 
Professor Feith will be completed.
    Mr. Feith. Okay.
    And then some years later, when the common Article 3 issue 
revived within the Administration, my office went further, 
because, when I had raised that question--this was a matter 
that was largely handled in legal channels, rather than policy 
channels. So when I raised the question to the lawyers that 
were handling it, they came back and said, ``No, the common 
Article 3, by its language, doesn't apply. It only applies to 
non-international conflicts.''
    Mr. Conyers. Okay.
    Mr. Feith. Later, when the issue came up, my office went 
beyond that. It said, ``Even if it doesn't apply as matter of 
law, might we not use it as a matter of policy?'' And, again, 
the lawyers who were running the process said no.
    Mr. Conyers. All right. Okay, thank you.
    Mr. Sands. I would simply note that those are fine words, 
indeed, and they were not shared with me on the occasion.
    Let me make my point very, very simple. None of the 
techniques listed in the memo for approval and the three 
category 3 techniques not approved are compatible with the 
standard reflected in common Article 3 of Geneva.
    And you can test that in the simplest possible way: If any 
of the techniques were used on an American serviceman or 
servicewoman or an American national in any circumstances, this 
country, quite rightly, would say, ``These standards are not 
being met. They are being violated.''
    I challenge Mr. Feith to identify a single military lawyer 
in the United States who would say these techniques all are 
compatible with common Article 3.
    Mr. Conyers. Mr. Chairman, I ask for another minute.
    Mr. Nadler. Without objection.
    Mr. Feith. If I heard you correctly, I'm amazed at that 
statement. Because the techniques that Mr. Sands just said are, 
on their face, incompatible, are--number one, yelling at the 
detainee, not directly in his ear or to the level that would 
cause physical pain or hearing problems. Another one, 
techniques of deception, in other words, telling the detainee, 
``Your buddy over there blew the whistle on you,'' and it's not 
true. That's one of the techniques that went beyond the field 
manual that they were asking for permission for. Multiple 
interrogator techniques, which we understood was good cop/bad 
cop. This goes on in American jails every day.
    I mean, the suggestion----
    Mr. Conyers. And they may be illegal, too.
    Mr. Feith. Well, the good-cop/bad-cop interrogation 
technique is--anyway, I find----
    Mr. Conyers. Well, I didn't mean that, but there are 
illegal techniques going on in American prisons and police 
stations that are clearly illegal as well.
    Mr. Feith. You're quite right. Mr. Conyers, you're making 
an enormously important point that I would like to sharpen. And 
that is, what we just read in the newspaper the other day, that 
there was a terrible case, I believe it was in Maryland, where 
somebody in a jail was murdered----
    Mr. Conyers. Mr. Chairman, I will require another minute.
    Mr. Issa. If you don't mind, I'm next. I'd be happy to let 
him finish on my time, so we could move on.
    Mr. Conyers. I would like another minute. I want you to 
move on.
    Mr. Nadler. The Chairman of the full Committee requests an 
additional minute. If I don't hear objection, I will grant it.
    Without objection.
    Mr. Conyers. Thank you.
    Mr. Feith. There was this case that we read about just the 
other day, that someone was murdered in a jail in Maryland. I 
want to make it clear that the essence of the argument that we 
are hearing this morning when people are saying things like, 
``The United States had engaged in torture,'' I believe that 
statement is no more well-grounded and no more responsible than 
saying Maryland has engaged in torture or murder because 
somebody in a Maryland jail got murdered.
    Mr. Conyers. All right.
    Mr. Feith. The fact is we had a clear policy from the top 
of this Government that was against torture, against 
illegality, against inhumane treatment. I don't deny that there 
were terrible, reprehensible cases of abuse and bad behavior 
and possibly even torture in various places against detainees. 
None of them was sanctioned by law or policy.
    Mr. Conyers. Have you ever been considered an 
uncontrollable witness?
    Mr. Feith. Well, I've been on the receiving end of a lot of 
allegations that are easy to----
    Mr. Nadler. The gentleman's time has expired, and the 
witness need not answer the rhetorical-Question.
    Mr. Conyers. Why not?
    Mr. Nadler. The gentleman from California is recognized for 
5 minutes.
    Mr. Issa. Thank you, Mr. Chairman.
    Professor Feith, good to see you again. I'll try to be 
short in my questions, short in the answers, and we'll get 
through a couple of things that I think I would like to have on 
the record.
    First of all, have you ever been to Guantanamo?
    Mr. Feith. Once.
    Mr. Issa. Second of all, have you ever been to a briefing 
up in the House Select Intelligence hearing room?
    Mr. Feith. Yes.
    Mr. Issa. In those meetings, was now-Speaker Pelosi or 
Ranking Member Jane Harman present?
    Mr. Feith. Ms. Harman was present.
    Mr. Issa. And were techniques, enhanced techniques or 
treatment of detainees ever discussed at those meetings? 
Nothing more specific than that.
    Mr. Feith. I believe so.
    Mr. Issa. So your testimony here today is that Jane Harman, 
now a Chairwoman, in fact was aware of at least some of 
techniques that are today being characterized as torture.
    Mr. Feith. I believe so.
    Mr. Issa. Are you familiar with what the Iraqi Government 
authorized and allowed to be done to some of our prisoners of 
war and other detainees, civilian and military, in the first 
Gulf war?
    Mr. Feith. Not in any detail.
    Mr. Issa. Are you familiar to what has been done to some 
people caught by al-Qaeda?
    Mr. Feith. Well, we have seen videos of beheadings and the 
like.
    Mr. Issa. So it is very clear that we have documented proof 
of what is undeniably torture and murder by our enemies. Is 
that correct?
    Mr. Feith. Yes.
    Mr. Issa. And if I understood you correctly earlier, you 
have a series of memos--they are in the record--that make it 
clear that you were neither authorizing torture nor inhumane 
treatment nor murder or any other crimes in anything other than 
these enhanced techniques which are on the record, were briefed 
to the Speaker, certainly briefed to then-Ranking Member Jane 
Harman, that are the subject of essentially these hearings 
today. Is that correct?
    Mr. Feith. Yes. And the techniques were not an exception to 
the rule against torture or complying with the law. Those 
techniques were supposed to be done within the law and within 
the President's decision that all detainees were to be treated 
humanely.
    Mr. Issa. Now----
    Mr. Feith. So there was no excuse whatsoever for inhumane 
treatment. And if anybody abused these techniques, they were 
doing so in the violation of the policies set down by the 
President. And one of the key policies was complying with the 
law.
    Mr. Issa. And speaking of the law, I want to circle one 
more time back to the same point, because it is important to me 
today because of what is being characterized as torture.
    The law requires any Administration--this one, the Clinton 
administration the Reagan administration--you are required to 
brief certain select Members of Congress, either the 
intelligence Committees, both sides, or, if it is extremely 
sensitive, then a select group, which includes the Speaker and 
the Chair and Ranking Member of those Committees. Is that 
correct?
    Mr. Feith. I assume that's correct. I'm not an expert on 
that area of law, but it sounds right.
    Mr. Issa. So you're aware that these briefings occurred?
    Mr. Feith. Yes.
    Mr. Issa. Either of the other two professors aware of any 
claims that the briefings did not occur? In other words, do 
either of you have knowledge here today that Speaker Pelosi or 
then-Ranking Member Harman were not properly briefed, as 
required by law? It's a yes or no.
    Ms. Pearlstein. I simply have no knowledge of those facts 
one way or another.
    Mr. Issa. Okay.
    Mr. Sands. I have never heard it said that, in relation to 
the interrogation of Detainee 063, that issue ever came to 
Congress. My understanding is that that issue did not come 
before Congress, but I don't have hard information on that.
    Mr. Issa. Okay. I will just make, not in his testimony, but 
to go on the record, when I went to the Intelligence Committee, 
Select Intelligence Committee, within a matter of weeks I was 
both briefed on these techniques in excruciating detail, and 
that they were limited to certain areas, and briefed on the 
fact that this had been briefed and rebriefed to the Committee 
on a regular basis.
    So, here today, my question for Professor Feith is, do you 
know of any interrogations or any of these techniques that were 
ever used that, to your knowledge, failed to be briefed to the 
Congress, including the appropriate--at least the Speaker and 
Ranking Members?
    Mr. Feith. I have no particular knowledge on that, but----
    Mr. Issa. Were you ever in any meeting where somebody said, 
``Oh, we can't tell that to the Congress, we can't tell that to 
the Speaker''?
    Mr. Feith. I don't recollect anything of that kind. The 
general rule was that intelligence operations were briefed to a 
small group of the most senior----
    Mr. Nadler. The gentleman's time has expired.
    Mr. Issa. I thank the Chairman. Regular order is fine. I 
yield back.
    Mr. Nadler. I will now recognize the gentleman from Alabama 
for 5 minutes.
    Mr. Davis. Thank you, Mr. Chairman.
    Professor Pearlstein, let me pick up on the last line of 
questions from Mr. Issa. Mr. Issa had a clever set of 
questions, I thought, that implied that the Speaker of the 
House and former Ranking Member of the Intelligence Committee 
may have had some knowledge about these knowledge of these 
techniques.
    Of course, he does not point out one very important detail. 
As he knows very well from his time on the Intelligence 
Committee, Members of Congress cannot share with their 
colleagues that which they learn on the Intelligence Committee. 
If they were to do so, they would be violating Federal criminal 
statutes, which most Members of Congress try to avoid doing.
    Mr. Issa. Will the gentleman yield for a moment?
    Mr. Davis. No, I will not. I would like to ask my 
questions.
    And that's an important point, I think, to make. The issue 
is not whether certain selected members of the leadership were 
given a confidential briefing that they couldn't share with 
their colleagues. The issue is whether the making of 
interrogation policy, the formulation of detainee policy was 
shared between the executive and legislative branch. I think it 
is in dispute that that did not happen.
    Professor Sands, you would agree with me, and you just 
said, I believe, that at no point did the Bush administration 
come to Congress and ask Congress to shape its position on 
whether Article 3 applied, whether Geneva applied, whether or 
not the torture statutes applied, what the torture statutes 
meant, when Geneva meant.
    None of that was brought before Congress in a formal 
debate, was it, Professor Sands?
    Mr. Sands. If it was, I've not come across it.
    Mr. Davis. Professor Pearlstein, do you have any knowledge 
of Congress debating any of these subjects, or the 
Administration coming to Congress and asking for its input?
    Ms. Pearlstein. Not until Congress insisted upon it in 2005 
with the passage of the Detainee Treatment Act.
    Mr. Davis. An important point, Professor Feith, I 
understand there are some things you profess to be expert on; 
depending on the question, many things you profess to not be 
expert on.
    But there is this interest--may I see the Constitution, Mr. 
Chairman? It is right in front of you there. Let me borrow it 
for 1 second.
    It is an interesting document. It has all kinds of good 
stuff in it that is incredibly relevant to a lot of disputes 
that we have.
    There is a provision that talks about the war-making 
authority. And it says, if I recall it correctly, that Congress 
shall declare war, that Congress shall raise and support 
armies, that Congress shall provide for the common defense. 
It's pretty broad stuff.
    Professor Feith, tell me why the United States Congress 
should not have had a role in 2002, at the time these decisions 
were made, in shaping detainee policy?
    Mr. Feith. I believe Congress did have a role. I mean, 
Congress should address any issues that it believes is 
important. And Congress can have hearings----
    Mr. Davis. How can issues be addressed, Professor Feith, if 
Congress----
    Mr. Feith [continuing]. And Congress can have debates and 
Congress can propose legislation
    Mr. Davis. Sir, we can't talk at the same time.
    How can Congress have a role if the policy debate is 
confidential, the Intelligence Committee Members can't share it 
with their colleagues?
    I don't want to waste 5 minutes going back and forth 
playing word games with you, because I think you get the point. 
For Congress to be involved and to have a role, there has to be 
transparency.
    And certainly the Administration could have come to the 
United States Congress and could have said, ``We have a 
disagreement over whether or not Article 3 should apply, 
whether Geneva should apply. Let's have a debate about it.'' 
That could have been done in a wide variety of----
    Mr. Feith. But----
    Mr. Davis. Let me finish my question, sir.
    You cite in your opening statement editorials written in 
1987 complimenting the Reagan administration for what I think 
was the correct position that it took regarding Protocol 1 of 
Geneva. That makes a point that I think you may have missed, 
sir.
    For The New York Times and The Washington Post to even be 
writing about this subject means that there was a debate and a 
discussion that aired in public view. If there had been a 
debate and discussion that aired in public view about what all 
of these provisions meant, it would have put in much more 
transparency.
    And I'm a little bit intrigued, also, by your arguments 
that, ``Well, I wasn't involved in formulating the detainee 
policy. I made some general arguments about Geneva.''
    I'll close with an old story about Franklin Roosevelt. Mr. 
Roosevelt was campaigning for re-election in 1936 and got 
carried away in Philadelphia and made some rather extravagant 
campaign promises, and they got caught on tape. So he went back 
to his chairman, and Mr. Farley said to him, ``Well, just deny 
you said it.'' And he said, ``Well, I can't do that. It is on 
tape.'' He said, ``Well, then just deny you were ever in 
Philadelphia.''
    That's what I think of, Mr. Feith, when I hear you today.
    Mr. Feith. Well, I think that's very unfair, because----
    Mr. Nadler. The time of the gentleman is expired.
    Mr. Conyers. I ask unanimous consent that the gentleman be 
given additional minute.
    Mr. Nadler. Without objection.
    Mr. Feith. I mean, on your point about things being done in 
secret, the President's decision on February 7th, 2002, on the 
applicability of the Geneva Conventions and his point about 
common Article 3 and various other aspects of this were done in 
a public statement. There was nothing secret about it. The 
White House issued a statement to the world. Every Member of 
Congress could have seen that. If there was any concern, if 
there was any thought that he had done anything wrong, there 
would have been nothing whatsoever to stop any Member of 
Congress from asking a question, and you would have had an 
answer. And if you wanted to engage in that and say that the 
President made the wrong policy, nobody would stop----
    Mr. Davis. Is that correct, Professor Sands, that in 2002 
the Administration announced its position that its 
interpretation that Geneva would not apply to detainees? Was 
that on the record in 2002?
    Mr. Sands. I think the actual decision only came out much 
later. There were news reports that a decision had been taken, 
but what had not come out what was going on in July, August, 
September, October, November, and the decision to move, for the 
first time in American history since 1863, to abandon President 
Lincoln's prohibition on cruelty. That happened on Mr. Feith's 
watch. Torture occurred, and Mr. Feith is----
    Mr. Davis. An additional 30 seconds, Mr. Chairman, just to 
respond.
    Mr. Nadler. Without objection.
    Mr. Davis. Professor Feith, this is the point that I think 
you miss. The issue wasn't whether a piece of paper applied or 
whether a set of words were ritualistically invoked. The issue 
was what those words meant in application and in practice. That 
debate was an impossible one to have, because it wasn't shared 
with the Congress at the time decisions were made. Only after 3 
years of extensive newspaper reporting was the extent of the 
program crystal-clear.
    Mr. Feith. Mr. Davis, that's just not correct. The 
Administration announced publicly the President's decision when 
he made it. There are talking points that the White House 
issued. It was published on the White House and State 
Department Web sites. It is just not correct. And if Congress, 
any Member of Congress wanted to talk about it and debate it, 
they could have done so. And any inquiries that you would've 
made would've been answered.
    Mr. Davis. Professor, the issue was not the ritualistic 
invocation of the words. The issue was what they meant in 
practice, how it was informed, what ``inhumane treatment'' 
meant. To adopt a paper standard without inviting Congress to 
codify it statutorily was an important omission, in my opinion.
    Mr. Nadler. The gentleman's time has expired.
    Mr. King of Iowa is recognized for 5 minutes--I'm sorry. I 
am sorry. Mr. Pence of Indiana is recognized for 5 minutes.
    Mr. Pence. Thank you, Mr. Chairman. There is no need to 
apologize when you confuse me with Mr. King.
    Mr. Nadler. Excuse me. I would never confuse you with Mr. 
King. I simply didn't see you.
    Mr. Pence. I thank the Chairman for this hearing, and thank 
all the witnesses for their testimony.
    Mr. Feith, I haven't always found myself in agreement with 
your interpretation of events in recent years, but I am 
grateful for your service to the country, particularly in the 
matter about which this hearing has been convened.
    I want to get a little bit more into your testimony as 
someone that was centrally involved in this. Because I have to 
be honest with you, I went to law school, I graduated, I got 
the degree on the wall, but I try to get over it. I try to not 
think like a lawyer. I try to think like an American in this 
job. And I try and find myself thinking in very plain terms. I 
think, you know, very few people back in my hometown worry too 
much about common Article 3 and Geneva.
    I want you to explain, if you can, before this hearing what 
was the significance of your conclusion that Geneva should 
cover the conflict with the Taliban, but because Taliban 
fighters didn't wear uniforms, didn't carry guns openly or 
operate within a chain of command or obey laws of war, that 
they didn't qualify for POW privileges.
    Now, a lot of this comes across as really interesting law 
school debate, but we are talking about American lives. We are 
talking about people who got up every day to figure out new 
ways to kill Americans in uniform and in the streets of this 
country. This is not a theoretical debate.
    And I want to acknowledge to you that the decisions that 
you made, and more importantly the President made, were made 
with an eye toward the safety and security of this country. And 
to my way of thinking, we put real limitations on our ability 
to obtain information to save American lives if we attached the 
letters ``POW'' to the people that were in our custody.
    Can you explain that, in as brief a time as possible? 
Because I have a very important follow-up. Why would it have 
been a bridge too far to say that these detainees at Guantanamo 
or elsewhere were POWs under the Geneva Convention?
    Mr. Feith. Mr. Pence, we had a number of large interests 
that we had to pursue simultaneously, and there was tension 
among those interests. One of them was we had an interest, 
obviously, in preserving the rule of law in America and making 
sure that laws were obeyed and that we, as a country, behaved 
humanly. And the President laid that down as a major interest.
    At the same time, we had just been attacked on 9/11, and it 
was clear that in this challenge the most important information 
that we needed in order to prosecute the war was in the heads 
of individuals. And if we captured terrorists, we had to 
interrogate them effectively.
    There was tension between effective interrogation and 
complying with the law. We had to make sure that people 
understood that they needed to be vigorous in pursuing that 
information but they needed to be vigorous within the law. And 
it was clear that people could be vigorous beyond the law, and 
that was not permitted.
    Mr. Pence. Well, let me interject, if I can, Mr. Feith. To 
get to this issue of POW, had it been the conclusion of the 
Administration to denominate these detainees as POWs, as some 
in Congress would prefer that they did? Could we have exerted 
any pressure to obtain any information beyond name, rank and 
serial number?
    Mr. Feith. No, one other problems that--I mean, had the 
detainees been entitled to POW status under the law, they 
would've gotten it. But, as I said--and this gets to the 
important point that you're raising--the question was, should 
we give POW status to people who are not entitled to it?
    And one the major arguments against it is, if you had given 
POW status to people who are not entitled to it under Geneva, 
you would effectively be precluding interrogations of them, 
because POWs are not held for purposes of interrogation. POWs 
had held simply to keep them out of combat. The people we were 
holding on the war on terrorism were being held for two main 
reasons: to keep them out of combat and to interrogate them.
    Mr. Nadler. The gentleman's time----
    Mr. Franks. I ask the gentleman be given additional time.
    Mr. Nadler. How much time?
    Mr. Pence. Could I have another 3 minutes? I, kind of, kept 
count on the last one. It went about 3 over.
    Mr. Nadler. Why don't we do 2 minutes and we'll see how it 
goes?
    Mr. Pence. Thank you, Mr. Chairman.
    Mr. Nadler. Without objection, the gentleman will be 
awarded an extra 2 minutes.
    Mr. Pence. To get to the point here, though, Mr. Feith, had 
they been entitled to POW status under Geneva under the law, 
they would have been required to. But to have extended the 
status of POW would've taken the United States America out of 
the interrogation business----
    Mr. Feith. Correct.
    Mr. Pence [continuing]. With regard to the people who had 
all the information about past and future attacks against this 
country.
    Mr. Feith. That's correct.
    Mr. Pence. Let me say clearly, I want to associate with 
comments of the Ranking Member, that torture is illegal, 
torture is banned by various provisions of the law. I support 
that. I associate myself strongly with your statement that it 
is imperative that the United States America be about the rule 
of law.
    But it's also imperative that anyone looking into this 
hearing understand that to have gone as far as many would have 
you have gone that day and had the President gone to extend POW 
status to detainees in Guantanamo Bay would have meant that 
Khalid Sheikh Mohammed could not have been interrogated beyond 
his name, rank and serial number.
    Is that correct?
    Mr. Feith. I believe so.
    Mr. Pence. And so, I just want people to understand this. 
And as I have mused at previous numerous hearings on this topic 
and will muse again this week at another, it is seems to me 
that, when you look at the terrorist handbooks that have been 
uncovered and found, they train--isn't it your understanding, 
Mr. Feith--to endure pressure, to endure interrogation, and 
also to claim that they were tortured, regardless of the 
circumstances of their incarceration.
    And it seems to me that it is imperative, as Mr. King said 
before, that we remember that we are talking about protecting 
the American people and doing so in a way that reflects 
favorably on the United States, that shows our devotion to the 
rule of law, our veneration for the Geneva Conventions, but 
also recognizing that to have extended the status that many 
would us have extended would have constrained us from any 
interrogation beyond rank and serial number.
    Mr. Feith. That's correct.
    Mr. Nadler. Gentleman's time has expired.
    Mr. King. Mr. Chairman, point of order.
    Mr. Nadler. The gentleman will state his point of order.
    Mr. King. Mr. Chairman, in your opening remarks you made 
the statement that signs and demonstrations would be disallowed 
in this room. I know it is out of the sight of the Chairman, 
but there is a sign----
    Mr. Nadler. I'm sorry. Say that again. You spoke too fast. 
You know what?
    Mr. King. Okay. In your opening statement----
    Mr. Nadler. No, no, I heard that. You then said, I know 
that----
    Mr. King. It is out of the vision of Chairman, so I 
wouldn't hold you responsible to be able to see it. They have 
just pulled the sign down that was posted on the back of a 
chair, and it has been there for some time.
    Mr. Nadler. The back of the chair?
    Mr. King. On the front chair of the chair, where one sits 
with their back leaning against it. I would ask that that sign 
be removed from this room.
    Mr. Nadler. I don't see any sign.
    Mr. King. They have just taken it down. It's on the chair 
directly across from me. The gentleman's picking it up, in the 
red tie. I'd ask that it be removed.
    Mr. Nadler. All right. He is leaving, so I won't have to 
rule on that.
    I will remind everyone no demonstrations, no visible signs. 
I'd have to repeat that again.
    Mr. Conyers. Mr. Chairman, could we give an additional 
minute so that Mr. Pence's question can be responded to?
    Mr. Nadler. Without objection, if anybody remembers what 
the question was.
    Ms. Pearlstein. Thank you. I'm happy to respond.
    Let me just, in particular, clarify one point about the 
significance of the designation of the detainees as POW under 
the law, which I think does matter.
    The critical distinction under the Geneva regime--there are 
four conventions; two are relevant here: the convention on POWs 
and convention on civilians, essentially anybody else who is 
not a POW caught up in armed conflict.
    The critical significance between declaring somebody a POW 
and declaring them any other detainee in U.S. custody is that a 
POW cannot be prosecuted for engaging in lawful acts of war. 
Our soldiers can't be criminally tried for engaging in lawful 
combat.
    It is not a distinction between the treatment of POWs and 
the treatment of anybody else that common Article 3 and a host 
of basic protections for the humane treatment of detainees 
apply. They apply to POWs. They apply equally to everybody 
else.
    There is nothing under law, in my judgment, to be gained, 
even if one believes that coercive interrogation is useful--and 
I believe it is not--there is nothing to be gained under law by 
denying those POW protections. The same standards of treatment 
apply.
    Mr. Pence. Well, if I could ask Professor Pearlstein----
    Mr. Nadler. Without objection, the gentleman will have 1 
additional minute.
    Mr. Pence. I thank the Chairman for his extraordinary 
courtesy, and the Chairman of the full Committee.
    Am I right to understand, as Mr. Feith has testified, that 
the status of POW would essentially eliminate any 
interrogation, any pressure whatsoever, beyond the obtaining of 
name, rank, serial number, as the cliche is known?
    Ms. Pearlstein. There is no prohibition under the third 
Geneva convention for the protection of prisoners of war, 
against asking prisoners of war questions. You can no more 
coerce a prisoner of war into answers those questions than you 
can coerce----
    Mr. Pence. But it would be--excuse me for interrupting--it 
would be constrained from being placed under any kind of 
pressure whatsoever, they could be asked questions, but they 
could not be put any kind of pressure as a POW.
    Ms. Pearlstein. Nor can they be subject to cruel, inhumane, 
degrading----
    Mr. Pence. Are you effectively, then, eliminating all 
interrogation of prisoners who have information about the next 
terrorist attack on this country?
    Ms. Pearlstein. Not necessarily at all. As most of the--in 
fact, all of the FBI investigators with whom I spoke and the 
vast majority of military investigators with whom I spoke 
described, many detainees are interested in speaking and have 
information to share.
    It is not the case that the limit of human intelligence 
collection is either you torture them and treat them cruelly 
and get information or you get no information at all. That's 
not the difference.
    Mr. Nadler. The time----
    Mr. Pence. Excuse me.
    Mr. Nadler [continuing]. Of the gentleman has expired.
    Mr. Pence. I appreciate it.
    Mr. Nadler. The Chair now recognizes for 5 minutes the 
gentlelady from Florida, Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman.
    Professor Pearlstein, it seems pretty simple, from what 
you're saying, as inconvenient as the minority might find 
treating detainees humanely and not torturing them, doesn't it 
just boil down to that you can question a POW, you can question 
a detainee, you just can't torture them and treat them 
inhumanely? Is this what you're saying?
    Ms. Pearlstein. That's the simple answer. I think the 
designation of POW in that question is a significant 
distraction from the question of how can any detainee in U.S. 
custody in the course of armed conflict be treated. The answer 
to that question is provided in common Article 3, in our own 
laws and constitutions, in the convention against torture, and 
the Army's own field manual.
    Ms. Wasserman Schultz. Is it not possible to get 
information from a detainee without torturing them?
    Ms. Pearlstein. The experts that I have spoken to--and I 
don't portend to be one myself--assure me that the only thing 
torture guarantees you is pain--that, according to Joe Navarro, 
a long-time FBI interrogator--and that, on the contrary, the 
most effective techniques tend to, in fact, invariably involve 
no torture or cruel treatment.
    Ms. Wasserman Schultz. Thank you.
    Professor Feith, I want to, sort of, get to the kernel of 
the information that we need here, and that's the role that you 
played or did not play in making the recommendations and 
developing the Administration's policy on interrogation.
    There was a recent report of the Department of Justice 
Inspector General Glenn Fine that described the role of the 
NSC's principles committee and policy coordinating committee in 
formulating the interrogation policy for the Administration.
    What was the role of the NSC in developing and implementing 
interrogation policy? And did you participate in any of those 
discussions? And who else participated as you did?
    Mr. Feith. The first time that I believe that the 
principles committee or the National Security Council got 
involved in this matter, at least the first time that I know 
of, that I can recollect, is the February 2002 meeting that 
we've been discussing. When it came to----
    Ms. Wasserman Schultz. Did you participate in any----
    Mr. Feith. I was at that meeting.
    Ms. Wasserman Schultz. Who else participated?
    Mr. Feith. It was the whole National Security Council.
    Ms. Wasserman Schultz. Who?
    Mr. Feith. The President chairs it, Secretary of State 
Powell, Secretary of Defense Rumsfeld, General Myers as the 
Chairman of the Joint Chiefs.
    Ms. Wasserman Schultz. Were any of the legal opinions of 
the Department of Justice on interrogation discussed at any of 
those meetings?
    Mr. Feith. I believe so.
    Ms. Wasserman Schultz. Did you raise any concerns about the 
legality or consequences of the Administration's interrogation 
policy at any of those meetings? You represent in your 
testimony you strongly advocated----
    Mr. Feith. I don't believe that interrogation techniques as 
such were discussed there.
    Ms. Wasserman Schultz. Interrogation policy. If 
interrogation policy was discussed, what would have been 
discussed, if not interrogation techniques?
    Mr. Feith. Well, I don't recall precisely, but it would not 
surprise me if what was discussed at that time related to the 
kinds of questions that Mr. Pence was asking, which was if 
these people are POWs, does that mean you can interrogate them.
    Ms. Wasserman Schultz. I am asking you a specific question. 
Did you, at any of these meetings, raise concern about the 
direction that the Administration's interrogation policy was 
going, whether it was on techniques, whether or not they were 
going in the right direction, whether or not they were going 
too far. You do represent in your testimony that you were a 
strong Geneva Convention advocate.
    Mr. Feith. Correct. Those concerns were certainly raised.
    Ms. Wasserman Schultz. Are you?
    Mr. Feith. We were quite emphatic that it is important that 
we comply with the Geneva Convention; be seen to comply. That 
we not make arguments that would bring disrespect to the Geneva 
Convention.
    Ms. Wasserman Schultz. So was your advice ignored?
    Mr. Feith. No, on the contrary. The President rejected the 
advice that he got from some of the lawyers in the 
Administration not to apply the Geneva Convention to the 
conflict with the Taliban.
    Ms. Wasserman Schultz. The President rejected that?
    Mr. Feith. The President rejected that. What the President 
decided on that point was in line with what General Myers and I 
and Secretary Rumsfeld had advocated in the meeting, which is 
that we should not refuse to apply the Geneva Convention to the 
conflict with the Taliban because we argued that Afghanistan 
was a party to the Convention. The Convention is part of U.S. 
Law.
    Ms. Wasserman Schultz. Secretary Rumsfeld rescinded his 
November 2002 approval of additional interrogation techniques 
on January 15, 2003, and he convened a working group. What role 
did you play in that working group?
    Mr. Feith. I don't believe that I ever attended any of 
those working group meetings. I am fairly confident I didn't 
attend any of them.
    Ms. Wasserman Schultz. What role did the Office of Legal 
Counsel advice or memos play in the deliberations of that 
group?
    Mr. Feith. I wasn't in on the meetings
    Ms. Wasserman Schultz. So you don't know anything about 
that group itself?
    Mr. Nadler. The time of the gentlelady has expired. Without 
objection, she will have one additional minute if she wants it.
    Ms. Wasserman Schultz. Thank you very much.
    I just want to ask you one additional-Question. Newsweek 
Magazine has reported that your office sent an urgent e-mail 
directing the Defense Department staff not to read or discuss 
the report on Abu Ghraib abuses by Major General Tagubu. Why 
did your office do that?
    Mr. Feith. I am glad you raise that because that doesn't 
ring any bells at all. I don't know about that memo. Maybe 
there was a memo sent by somebody in my office. I was very 
surprised when I saw that in the testimony.
    Ms. Wasserman Schultz. The Newsweek report is inaccurate. 
It shortly after the Tagubu report leaked in early May, your 
subordinates sent an urgent e-mail around the Pentagon warning 
officials not to read the report.
    Mr. Feith. I am not aware of that
    Ms. Wasserman Schultz. You have never seen any e-mail like 
that?
    Mr. Feith. I don't remember seeing any e-mail like that.
    Ms. Wasserman Schultz. You don't remember.
    Mr. Feith. I was completely surprised.
    Mr. Nadler. Will the gentlelady yield?
    Mr. Feith. Sometimes press reports are wrong.
    Mr. Nadler. When you saw Newsweek or others report that 
your subordinates sent such a memo, you didn't check into it?
    Mr. Feith. To tell you the truth, I don't remember even 
hearing about it until I read Professor Pearlstein's testimony.
    Ms. Wasserman Schultz. I am finished
    Mr. Nadler. The gentlelady's time has expired. I now 
recognize the gentleman from Iowa, Mr. King, for 5 minutes.
    Mr. King. Mr. Chairman, with consent, I would be happy to 
yield to another Democrat witness and temporarily pass my turn.
    Mr. Nadler. Are you yielding your time?
    Mr. King. Just temporarily passing my turn.
    Mr. Nadler. Either you yield your time or you will ask your 
questions now.
    Mr. King. Mr. Chairman, I would be happy to take advantage 
of this 5 minutes that you so graciously allowed me, and I will 
start this out this way:
    Mr. Sands, I am looking through your written testimony. I 
am not able to find this. But this is what I think I heard you 
say and I would ask you if you can clarify or agree.
    Speaking of Mr. Feith, when you said, and I believe this is 
what I heard, al-Qaeda are not entitled to Geneva Convention 
protection at all, would that be the exact quote that I heard 
from you and is that in your written testimony and I missed?
    Mr. Sands. I will happily give you the exact quote again. 
It is from an abstract, which I will give if the Committee 
wishes it, the point is that, ``the al-Qaeda people were not 
entitled to have a convention applied at all, period.'' I 
interpreted that to include the rules reflected in Common 
Article 3. The reason it was of interest to me was that my book 
was about an al-Qaeda individual.
    Mr. King. At least, in essence, I have characterized this 
relatively accurately, and I think Mr. Feith agrees with that 
by watching his head nod.
    I take you back to a statement that you made in response to 
Mr. Yoo's testimony in the previous hearing. By the way, we are 
still looking for that letter that was copied to us. I have no 
doubt it was sent, but there is a copy in my testimony.
    In any case, you say that Mr. Yoo is incorrect, and when he 
characterizes you as having interviewed him for the book. And 
here's the quote that says, ``Over hundreds of hours I 
conversed or debated with many of those most deeply involved in 
that memo's life. They included, for example, the Deputy 
Assistant Attorney General at DOJ, Mr. Yoo.'' Accurate 
statement from your testimony.
    So, Mr. Sands, I would ask can you understand how it would 
be that Mr. Yoo might have misunderstood, having missed that 
nuance ``I conversed or debated'' in that phrase?
    Mr. Sands. I think there is a great difference between the 
word ``interviewed'' on the one hand and the words ``conversed 
or debated'' on the other hand.
    Mr. King. Would you concede, perhaps, if he is debating 
you, he didn't think about whether or not he was being 
interviewed for a book and that statement ``conversed or 
debated?'' To me, that is a nuance.
    Mr. Sands. I am happy to read you what he said.
    Mr. King. I am going to run out of time and I don't expect 
the Chairman is going to grant me an additional minute so I'm 
going to have to trudge onward here.
    I would point out that I think perhaps Professor Feith has 
chosen his words as carefully as you, Mr. Sands. I would turn 
to Mr. Feith and ask him if he can clarify the statement that 
the al-Qaeda are not entitled to Geneva Convention protection 
at all.
    Mr. Feith. The decision that the President made on February 
7, 2002, was that the Geneva Conventions don't apply to our 
conflict with al-Qaeda. The lawyers in the government made a 
distinction between the conflict that we had worldwide with al-
Qaeda and the conflict we had with the Taliban in Afghanistan. 
And what the President said is the Geneva Conventions do not 
apply to our conflict worldwide with al-Qaeda, because al-Qaeda 
is not a party to the Geneva Conventions. It does apply to our 
conflict with the Taliban.
    Now I understand that there is a controversy over whether 
Common Article 3 should apply even to groups like al-Qaeda. 
What I am saying is at the time, I don't recall that anybody in 
the Administration made that argument. The people who counted, 
the lawyers who worked this, and I did not work this with them 
other than ask a question why not use Common Article 3. But the 
lawyers who actually worked this came up with a recommendation 
and the President in his statement cited the Justice 
Department's conclusion that Common Article 3 did not apply.
    I realize that reasonable people differ on the subject, as 
I said, and the Supreme Court ultimately said the 
Administration was wrong on the subject. But when I was talking 
with Mr. Sands, I was reflecting the views of the President on 
the subject.
    Mr. King. Thank you, Mr. Feith. Now there has been some 
disagreement in your opening statement, yours with Mr. Sands, 
on who said what, when. Would you like to address that. Are you 
willing to stand on the statements that are part of your 
testimony and your rejection of Mr. Sands' accuracy of those?
    Mr. Feith. I think that Mr. Sands essentially confirmed 
that what he said was inaccurate because he said that I said 
that no one at Gitmo was entitled to any Geneva Convention 
protections at all. Then, when he was asked to produce the 
statement, he produced a statement that applied only to al-
Qaeda.
    Mr. King. Mr. Sands, would you release those tapes?
    Mr. Sands. I have already said so. If the Committee wishes 
to have a copy, I would make them available to the Committee.
    Mr. King. This Committee Member would like to have a copy.
    I thank you very much. I thank all the witnesses for your 
testimony, and yield back the balance of my time with time left 
over, and I credit it to the Chairman, Mr. Conyers.
    Mr. Conyers. Mr. Chairman, I ask unanimous consent that the 
tapes in question be made a part of the record.*
---------------------------------------------------------------------------
    *The tapes submitted by Mr. Conyers have been made a permanent part 
of this hearing record and are available at the Committee.
---------------------------------------------------------------------------
    Mr. Nadler. Without objection.
    The Chair now recognizes the gentleman from Minnesota, Mr. 
Ellison.
    Mr. Ellison. Thank you, Mr. Chairman.
    Mr. Feith, just to clear this up, do you concede that 
people designated as POWs are subject to questioning by 
authorities that have them in custody?
    Mr. Feith. They can be questioned. According to the Geneva 
Convention, no form of coercion to secure information can be 
used.
    Mr. Ellison. So you agree they can be questioned, you just 
believe they ought--well, I think your answer is clear on the 
record. Thank you.
    Let me also ask this question. In an earlier hearing, we 
had Colonel Wilkerson here, and I heard you object to being 
here because of his presence. Was that true?
    Mr. Feith. Yes
    Mr. Ellison. What is your objection to Colonel Wilkerson?
    Mr. Feith. That was laid out in a letter that I sent.
    Mr. Ellison. I want to hear it now.
    Mr. Feith. He has made a number of very personal and 
vicious remarks. He has accused me of being a card-carrying 
member of the Likud party in Israel and he has accused me of 
having loyalty to Israel rather than the United States. I think 
that is a vicious, false, and bigoted remark.
    Mr. Ellison. Is that the only basis for your objection?
    Mr. Feith. He made other nasty statements too. I don't 
think I am interested in rehearsing all of them.
    Mr. Ellison. I don't really care if you are interested. He 
was a witness, you are a witness. You gave a public reason for 
not being here. And I think the Committee is entitled to know 
what it is.
    Mr. Feith. I think that remark, in and of itself, 
establishes why I think he was not an appropriate person for 
this.
    Mr. Ellison. Is there anything he said with regard to your 
role in the policy regarding detainee questioning that caused 
you to refuse to appear on the panel?
    Mr. Feith. I believe he has made a number of very reckless 
remarks describing top Administration officials as war 
criminals, and I just think that it's--I think he is a reckless 
guy. I mean in the hearing here he said an absolutely 
extraordinary thing. He said that he had to violate the rules 
when he was a soldier in Vietnam not to shoot a 12-year-old 
girl. He said it two or three times.
    Mr. Ellison. Mr. Feith, that can't be the basis of your 
objecting to being here.
    Mr. Feith. It is a sign of the kind of irresponsibility.
    Mr. Ellison. I control the time, Mr. Feith. I am trying to 
get at why you objected to being here. One is a personal 
comment that he made about you, another one is that you think 
he criticized some members of the Administration and you didn't 
appreciate that criticism.
    Mr. Feith. Third, he speaks recklessly.
    Mr. Ellison. Is there anything that he said about your role 
with regard to detainee interrogation that was the basis of 
your refusal to appear?
    Mr. Feith. He is lumping me together with other people in 
the Administration that he said reckless things about, about 
war crimes and the like.
    Mr. Ellison. So I am trying to get into did he make a 
statement regarding your role?
    Mr. Feith. Why don't you tell me what you have in mind.
    Mr. Ellison. Why don't you tell me the truth. I am trying 
to figure out----
    Mr. Franks. Regular order here. Badgering the witness here.
    Mr. Ellison. We are not in court.
    Mr. Nadler. The gentleman will suspend.
    This is not a courtroom. I don't think badgering the 
witness is an objection.
    Mr. Franks. But he is certainly doing that.
    Mr. Nadler. The gentleman will continue.
    Mr. Ellison. Moving along. I am just going to say there is 
nothing that he said about your role in regard to detainee 
questioning policy that formed the basis of your refusal to 
appear, it's just you don't like him so you didn't appear. That 
is what I gather.
    Mr. Feith. That is not what I said.
    Mr. Ellison. Then make the record clear, Mr. Feith.
    Mr. Feith. I don't understand what you are getting at.
    Mr. Ellison. It doesn't matter whether you understand, you 
have to answer the question or refuse to. What is the factual 
basis with regard to detainee policy?
    Mr. Feith. I laid it out in the letter that we sent you. I 
will pull the letter out.
    Mr. Ellison. So you are refusing to answer now. Are you 
refusing to answer?
    Mr. Feith. I will read you what I said.
    Mr. Ellison. The answer is I am trying to get at the facts 
as to why he refused to appear with Colonel Wilkerson, not at 
who he didn't like or any kind of personal invectives.
    Mr. Feith. Mr. Ellison, here's what my lawyer said in his 
letter to Chairman Conyers: What I object to is not that Mr. 
Wilkerson disagrees with Mr. Feith about the issues. In 
discussion of issues of public importance, disagreements are 
inevitable and welcome. But what should neither be expected nor 
tolerated are the kinds of personal vicious, groundless attacks 
that Mr. Wilkerson has repeatedly directed at my client.
    Mr. Ellison. That is all, Mr. Feith. You have pretty much 
made it clear, it is personal invective. In your book, War and 
Decision, you state that Attorney General John Ashcroft said 
the main problem with applying the Geneva Conventions is that 
it would preclude effective interrogation. I want to make sure 
I understand that correctly. Did Attorney General Ashcroft tell 
you that prisoners could not be effectively interrogated under 
Geneva Conventions?
    Mr. Feith. I think what he was addressing was under POW--if 
they had POW status under the Geneva Convention.
    Mr. Ellison. The first thing you told me is you can 
question a POW. We don't have to retry that. I want to know, 
did the Attorney General tell you that prisoners could not be 
interrogated at Geneva Conventions?
    Mr. Feith. I believe he was saying they couldn't be 
interrogated effectively.
    Mr. Ellison. Did he tell you?
    Mr. Feith. They couldn't be interrogated effectively if 
they had POW status.
    Mr. Ellison. So he said to you they could not be 
interrogated----
    Mr. Feith. It wasn't to me.
    Mr. Ellison. I am going to finish my question. Did Attorney 
General Ashcroft tell you that prisoners could not be 
effectively interrogated under Geneva?
    Mr. Feith. If they had POW status.
    Mr. Ellison. All right. Now do you know why he was under 
the impression that they could not be interrogated effectively 
if they are in the circumstance you described?
    Mr. Feith. I believe it is because the general view, as I 
understand it, of the lawyers in the military----
    Mr. Ellison. Is it because----
    Mr. Feith. May I please answer your question?
    Mr. Ellison. Is it because you cannot use coercive methods?
    Mr. Nadler. The time of the gentleman has expired
    Mr. Ellison. One more minute.
    Mr. Nadler. Without objection, the gentleman may have 1 
additional minute.
    Mr. Issa. I object. It's timely. I object.
    Mr. Nadler. The gentleman's objection is heard.
    I recognize the gentleman from Virginia for 5 minutes.
    Mr. Ellison. Mr. Chairman, can I be heard? How come 
everybody gets an extra minute but I don't?
    Mr. Nadler. Because no one objected. The gentleman from 
California objected to the request for unanimous consent for an 
additional minute. The Chair has no power beyond that.
    Mr. Ellison. Mr. Chairman, it has been a practice in this 
hearing people have had an extra minute.
    Mr. Nadler. I understand that. And previously when I 
requested or someone requested unanimous consent, no objection 
was heard. In this instance, for some reason, an objection was 
heard. Apparently, continues to be heard.
    Mr. Issa. Mr. Chairman.
    Mr. Nadler. The gentleman from California.
    Mr. Issa. In the spirit that we are going to have a normal-
Question and answer, I certainly want a proper opportunity, and 
would withdraw my objection at this time.
    Mr. Nadler. I thank the gentleman for withdrawing his 
objection.
    Without objection, the gentleman from Minnesota has an 
additional minute.
    Mr. Ellison. Mr. Feith, do you know why the Attorney 
General would believe that you could not effectively 
interrogate a detainee?
    Mr. Feith. I would assume that he was reflecting the view 
of our military lawyers that the way the Geneva Convention 
provision on POW interrogation reads, you can't even offer any 
kind of inducement, positive or negative, to a POW to answer a 
question. You can't say we will give you cigarettes if you 
answer the question. Anything of that type.
    And so the view that many people have is that unless a 
detainee is completely voluntary and offering information, you 
are not going to be able to get any information from him if he 
has POW status.
    Mr. Ellison. Ms. Pearlstein, do you have any reaction to 
that?
    Ms. Pearlstein. I guess I have two reactions. One is that 
to clarify, if I may, Mr. Feith's testimony. He was speculating 
that the reason that the Attorney General believed that 
interrogation would not be effective if conducted as against a 
detainee who is a established POW was because he imagined that 
was the advice that the military lawyers were giving. First, 
that is supposition.
    Secondly, based on my own extensive conversations with 
military lawyers, I have not encountered one who would have 
taken that position. So I leave that as an open question before 
the Committee, what position a military lawyer would take with 
respect to the efficacy of interrogation under Geneva 3.
    Mr. Nadler. The time of the gentleman has expired. The 
Chair now recognizes for 5 minutes the gentleman from Virginia.
    Mr. Scott. Thank you. Thank you, Mr. Chairman. Professor 
Feith, does the present policy of the United States allow 
torture or not?
    Mr. Feith. It does not
    Mr. Scott. What you call aggressive techniques or humane 
treatment doesn't make a technique that everybody considers 
torture not torture just because you described it. There are a 
lot of memos that have been discussed. Was the policy changed 
as to what techniques would be allowable? That is to say, were 
there some techniques that have previously been prohibited that 
would be allowed under your guidance?
    Mr. Feith. There were various changes in detainee policy. 
But what didn't change was the directive that everybody had to 
comply with the law. Torture was against the law. Everybody had 
to give the detainees humane treatment. That didn't change.
    Mr. Scott. Was there any functional difference then as to 
what was allowed and what was not allowed?
    Mr. Feith. Yes. Absolutely. There were various discussions 
of what was allowed and not allowed.
    Mr. Scott. Those concepts were there before, they were 
there after. Was there any functional difference in what was 
allowed and what was prohibited before allowed under the new 
interpretations?
    Mr. Feith. Yes.
    Mr. Scott. What? What was the difference?
    Mr. Feith. Initially, the interrogators at Gitmo were 
operating under the Army Field Manual. General Hill, in October 
2002, sent up a memo and said the techniques that we are using 
under the Field Manual are not adequate with respect to a small 
number of especially important detainees and we would like to 
use some additional techniques that are within the law but 
beyond the limits of the field manual.
    They were considered. Secretary Rumsfeld approved some of 
the techniques that were before him and then later, when 
Secretary Rumsfeld was told there was concern on some of the 
part of service lawyers about the legality of the arrangement 
that he had just approved, he, in the middle of January of 
2003, said, If there are concerns among lawyers, then I want it 
stopped. I want all the new procedures stopped. I want all the 
relevant lawyers brought together in a working group. I want 
them to study this matter and I want them to come back to me.
    I think his reaction was actually very admirable. He did 
exactly what I think any of you and any of us concerned about 
civil liberties and respect for the law would have done. He was 
told there was unease. He said if there's unease, I want all 
the new procedures stopped. I want this studied. If there are 
people who are not part of the original process who should be 
part of the process, I want them brought in.
    Mr. Scott. Is it your testimony that it was based on 
everybody else, the interpretation of everybody else in the 
world, that there was no policy of the United States that 
people would be subjected to techniques that everybody else in 
the world considered torture?
    Mr. Feith. By the way, if you are talking about 
waterboarding, that was one of the techniques mentioned that 
Secretary Rumsfeld did not approve. When the memo came up, he 
rejected that.
    Mr. Scott. Let me ask a more direct question. To the best 
of your knowledge, were any detainees tortured?
    Mr. Feith. My understanding is that there were detainees 
who were killed and murdered. I base that, in part, on what 
Professor Pearlstein said, and various news reports.
    Mr. Scott. What happened to those?
    Mr. Feith. What we did is what a proper government does 
under these circumstances. Those things were investigated, 
people were identified as criminally culpable, they were 
prosecuted, and when convicted, punished.
    Mr. Scott. Why do they think they could do what they did?
    Mr. Feith. I don't believe that they necessarily believe 
they could do what they did. They just did it. There are people 
who do bad things that are against law and against policy.
    Mr. Scott. Let me ask Professor Pearlstein. Why did the 
people who were doing that torturing think they could do what 
they did?
    Ms. Pearlstein. Well, I think there were different reasons 
that people acted as they did. But I think there is no question 
that part of the reason that some acted as they did was that 
they believed they had the authority to do so.
    If I may, just from the report you have in your record, I 
submitted it with the testimony in 2006, in one of the court 
martial proceedings against a young officer, chief warrant 
officer, young troop, Chief Warrant Officer Welshoff for the 
murder of one of the detainees, Welshoff claimed that he was 
not at all trained for the interrogation of captured detainees.
    This is the young soldier put on trial for the murder of a 
detainee stuffed into a sleeping bag wrapped with rope and 
suffocated to death. He testified that he understood that he 
was authorized to force this detainee into a sleeping bag, 
based in part on a memorandum from General Ricardo Sanchez, the 
highest ranking military official in Iraq and the time. In that 
memo, General Sanchez authorized harsh interrogation 
techniques, including sleep and environmental manipulation, the 
use of aggressive dogs, and stress positions, even as General 
Sanchez acknowledged that other countries would view these 
techniques as inconsistent with the Geneva Conventions.
    That memorandum was the only in-theater guidance that 
Welshoff testified he received. The use of the sleeping bag 
technique was authorized by his immediate company commander.
    The reason I testified earlier as I did that limits----
    Mr. Nadler. The time of the gentleman is expired. Without 
objection, the gentleman will have an additional minute.
    Mr. King. In the interim, I have a parliamentary inquiry.
    Mr. Nadler. The gentleman will state his parliamentary 
inquiry.
    Mr. King. Mr. Chairman, I am watching the witnesses and 
some of them are undergoing water torture, having drank nearly 
a pitcher of water. One is undergoing fluid deprivation. All of 
them are undergoing food deprivation. And I don't know if it's 
cruel and inhumane at this point but it's 2 hours and 45 
minutes into this hearing. I would ask if the Chairman would 
grant the witnesses 45 minutes to have a break and have some 
lunch and get some relief from this relentless pressure.
    Mr. Nadler. That is not a parliamentary inquiry. But I will 
state that there is another hearing scheduled for this room and 
we have to vacate the room by about 1:15 or perhaps 1:30. So, 
unfortunately, we are not going to be able to do that. I would 
love to take lunch now, but we can't do that. The hearing will 
end by 1:15 or 1:30 because we will be chased out of here.
    Mr. King. Mr. Chairman, do you have an opinion on whether 
this is cruel and inhuman?
    Mr. Conyers. Will the gentleman yield?
    Mr. Nadler. I will be happy to yield to the Chairman.
    Mr. Conyers. The question is whether it is cruel and 
inhuman to the Members of the Committee. I mean, we have all 
been here, too.
    Mr. Nadler. I would also state that none of us are POWs and 
therefore entitled to the benefits of such treatment.
    Mr. Conyers. I think the professor was in the middle of an 
answer.
    Mr. Nadler. The gentleman had been granted an additional 
minute of time. We will resume that.
    Which professor? Professor Pearlstein.
    Ms. Pearlstein. I was just concluding, if I may, and 
without prejudice to the further consideration of the 
possibility of a break, the point I was making was simply the 
ambiguity of guidance and the existence of the authorization of 
the techniques we have been discussing. Without clarification, 
not just after 9/11, but over a period of years, clearly in the 
findings of Defense Department investigations themselves 
contributed to the record of torture and abuse I discussed.
    Mr. Scott. Thank you. Now is it a defense to torture that 
you got good information as a result of the torture?
    Ms. Pearlstein. To my knowledge, not a defense to torture 
under international law. In fact, I know it is not a defense to 
torture under international law that you got good information.
    Mr. Scott. Is it a defense that you couldn't get the 
information under traditional interrogation techniques but you 
thought you could get it with a little torture?
    Ms. Pearlstein. No, that is not a defense.
    Mr. Scott. Whose responsibility is it to ensure that 
detainees were not tortured or killed and that our troop are 
properly trained to avoid torturing and killing people? Let me 
ask Professor Feith, since he was in the Department of Defense. 
Whose responsibility is it?
    Mr. Nadler. The gentleman's time has expired, but the 
witness can answer the question.
    Mr. Feith. My understanding is that the combatant 
commanders are responsible for proper treatment classification, 
administrative processing, and custody of detainees, and 
ensuring prompt reporting of suspected or alleged violations.
    Mr. Nadler. The gentleman's time has expired.
    The gentleman from North Carolina is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    Professor Feith, are you intending to imply by that, that 
responsibility for any kind of conduct that takes place in the 
military is down at the level that you just described?
    Mr. Feith. It is not down. You are talking about a Four-
Star General. I am just telling you what DOD directives say. If 
it were to be the case that a combatant commander was not 
fulfilling his responsibility to investigate, prosecute 
violations of law and policy, then that would be a serious 
breach of the combatant commander's responsibility and his 
superior, the Secretary of Defense, would be responsible for 
remedying that problem.
    I mean, the way the U.S. Government works is people have 
responsibility at various levels. And if people are not 
fulfilling those responsibilities, people at a higher level 
have to make sure those get fulfilled.
    Mr. Watt. I am not arguing with you, I am just trying to 
get clarification of whether you were saying that there is no 
upward responsibility for decisions that get made. I presume 
the buck stops with the Commander in Chief.
    Mr. Feith. No. The buck stops with the President. That is 
what Harry Truman said.
    Mr. Watt. That wasn't a trick question. I am just trying to 
get clarification on what it was you were saying.
    There has been a lot of dispute about who has 
responsibility here. Is there any dispute about Professor 
Pearlstein's testimony that there has, in fact, been torture?
    Mr. Feith. No.
    Mr. Watt. Is there dispute about that? The answer to that 
is no?
    Mr. Feith. There was no dispute there was torture.
    Mr. Watt. That is all I am asking, Professor Feith. Is 
there a dispute about what was reported by the Human Rights 
First and Human Rights Watch reports that suggest that there 
were 100-plus detainees who died in U.S. custody, including 34 
whose death the Defense Department reported as homicides?
    Mr. Feith. I don't know if that is right or wrong.
    Mr. Watt. Professor Pearlstein, is there dispute about 
that?
    Ms. Pearlstein. No, not to my knowledge.
    Mr. Watt. Professor Sands.
    Mr. Sands. I am not familiar with the facts, sir.
    Mr. Watt. Is there any dispute about the fact that at least 
eight of those detainees were tortured to death?
    Mr. Feith. If they were, it is disgusting and horrible and 
they should be punished.
    Mr. Watt. I didn't ask you whether it was disgusting and 
horrible. I am trying to find out whether the facts are in 
dispute. Is it a fact or is it not a fact? That is all I am 
trying to find out.
    Mr. Feith. I don't know. I don't have personal knowledge 
about it.
    Mr. Watt. So regardless of who has the responsibility for 
it, whether it is a general down at the command level, or the 
Secretary of Defense, or the Commander in Chief, there is no 
dispute that the United States has engaged in torture. Or 
somebody who worked for the United States has engaged in 
torture. Let me put it that way. Is there a dispute about that?
    Mr. Feith. I don't think there is a dispute that there were 
people who misbehaved and did terrible things.
    Mr. Watt. The question I want to get to, Professor Feith, 
is to what extent if any, in your estimation, and then I would 
like the response of Professor Pearlstein and Professor Sands 
to the same question, to what extent if any did that torture 
take place as a result of either clear communication of what 
the standards were by whoever had responsibility, or a wink and 
a nod, or, yeah, you're not supposed to engage in this, but 
it's okay with us as your superiors if you do.
    Professor.
    Mr. Issa. Mr. Chairman, I would ask unanimous consent for 1 
additional minute for the gentleman.
    Mr. Feith. I can say that I never saw a wink or a nod from 
any senior Administration official on these enormously 
important points for us that the law had to be complied with, 
the torture statute had to be complied with and all detainees 
should get humane treatment.
    Mr. Watt. So no notice occurred as a result of kind of an 
implicit approval of it.
    Mr. Feith. That is right.
    Mr. Watt. Okay.
    Professor Pearlstein and then Professor Sands.
    Ms. Pearlstein. I would emphasize two points. In addition 
to whatever was specifically authorized at any point time, 
there are two things to me that on the record already seems 
clear. One is that we sent a bunch of troops into a war zone 
with completely inadequate guidance about how detainees were to 
be treated. And, two, is that even after it became clear that 
the guidance was completely inadequate and unclear and that as 
a result it was leading to a massive problem of detainee abuse 
and torture, the Defense Department took years to take any 
action at all in response to what was going on.
    Mr. Sands. I focused on detainee 063, and in his case there 
was no need for a nod and a wink or anything implicit because 
there was an explicit authorization to use techniques that, at 
the very least, amounted to inhumane treatment and most people 
now believe amounted to torture. So that was directed 
explicitly as a result of the memorandum signed by Mr. Rumsfeld 
on the 2nd of December 2002.
    Mr. Nadler. The time of the gentleman has expired. We will 
now go to a second round of questioning.
    Mr. King. Mr. Chairman.
    Mr. Nadler. Who seeks recognition?
    Mr. King. Mr. Chairman, I would ask unanimous consent that 
the witnesses be able to let us know if they would like a short 
break in this interim. I am actually feeling sorry for them.
    Mr. Nadler. If any witness needs to take a short break, 
they may do so. But the fact is we only have about 40 minutes 
at the outside, and I hope we can complete our business within 
that. So I can't agree to that.
    Mr. King. I yield back.
    Mr. Nadler. Thank you.
    The Chair now recognizes himself for 5 minutes. I am going 
to be a little more strict in this round on the 5 minutes 
because of the timing.
    I want to just ask, first of all, Professor Pearlstein and 
Professor Sands, very quickly. I read before from the 
definitions of category 2 and category 3; category 2, including 
20-hour interrogations, hooding, removal of clothing, use of 
detainee's phobias such as fear of dogs to induce stress; 
category 3, including waterboarding, cold weather and cold 
water, the use of scenarios designed to convince the detainee 
that death or severely painful consequences are imminent to him 
or his family. And that the memo that we talked about before 
said that category 3 was legal but not advised and category 2 
was okay.
    I asked Professor Feith if these techniques were humane 
under the Geneva Conventions, he said depending on how they 
were applied, depending on the circumstances.
    Professor Pearlstein, Professor Sands, very quickly, are 
these techniques under any circumstances proper?
    Mr. Sands. They are under no circumstances compatible with 
Common Article 3. They are clearly prohibited.
    Mr. Nadler. That includes category 2.
    Mr. Sands. Includes almost all of category 2 and all of 
category 3.
    Mr. Feith. Mr. Chairman.
    Mr. Nadler. Getting back to detainee number 063, detainee 
063 was forced to perform dog tricks on a leash, straddled by 
female interrogator, told that his mother and sister were 
whores, forced to wear a woman's bra and thong on his head 
during interrogation, forced to dance with a male interrogator, 
and subjected to an unmuzzled dog to scare him. These seem to 
be category 2 treatments.
    Professor Sands, you would assert that this was completely 
illegal.
    Mr. Sands. He was also forced to stand naked, he was also 
hospitalized for hypothermia. They are clearly in violation of 
the minimum standards of international law. There is no 
question about that.
    Mr. Nadler. Did Secretary Rumsfeld approve of the plan for 
detainee 063, to your knowledge?
    Mr. Sands. He approved the techniques being used. There was 
then a plan adopted, which we have not seen because it has not 
entered into the public domain. But it reflected the standards 
reflected in his memo.
    Mr. Nadler. Do you know who reviewed or approved the 
interrogation plan for Mr. Al Khatani?
    Mr. Sands. I know certainly General Miller, who was down at 
Guantanamo at the time, approved it.
    Mr. Nadler. You don't know of anybody else?
    Professor Feith, do you know, did you review or approve the 
interrogation plan for Mr. Al Khatani?
    Mr. Feith. No.
    Mr. Nadler. Do you know who did?
    Mr. Feith. No, I don't.
    Mr. Nadler. Professor Sands, do you know if the 
International Security Council or their deputies discussed it?
    Mr. Sands. I don't know. But my understanding is the 
treatment of detainee 063 did not go to the National Security 
Counsel.
    Mr. Nadler. Professor Pearlstein, would you agree or not 
that the category 2, and not to mention the category 3 
measures, would be categorically illegal and not dependent, as 
Professor Feith said, on how they were administered under the 
circumstances?
    Ms. Pearlstein. Everything under category 3 is 
categorically prohibited under Geneva.
    Mr. Nadler. Category 2?
    Ms. Pearlstein. Stress positions, yes. I am reading through 
these to refresh my recollection.
    Mr. Nadler. Placing a hood over his head.
    Ms. Pearlstein. All of these are, at a minimum, cruel, 
inhuman, and degrading treatment.
    Mr. Nadler. Professor Feith, you do not think these are, 
per se, cruel and inhuman?
    Mr. Feith. I do not. I want to clarify something. The 18 
techniques were brought forward, and General Hill, in bringing 
them forward, specifically called into doubt the legality of 
the category 3 techniques. So it is important to point that 
out.
    Then, when Mr. Haynes presented his memo to Secretary 
Rumsfeld, he specifically said we do not recommend that you 
approve any of the category 3----
    Mr. Nadler. What he said, to be precise, was,
    ``While all category 3 techniques may be legally available, 
we believe as a matter of policy a blanket approval of category 
3 techniques is not warranted at this time.''
    Mr. Feith. I understand that. I was in the meeting. What I 
remember----
    Mr. Nadler. Excuse me. That is the memo signed by Bill 
Haynes, a memo to Secretary of Defense Rumsfeld, and it is 
granted it didn't recommend using it, but he did find it legal 
and did say they could use category 2.
    My time has now expired. I recognize the Ranking Member of 
the Subcommittee, the gentleman from Arizona, for 5 minutes.
    Mr. King. Mr. Chairman, point of order. Another protest 
sign just came in the room as you were speaking. It is just to 
the right of camera underneath one of those pink caps. I would 
ask it be removed from the room.
    Mr. Nadler. I don't see a sign.
    Mr. King. It is on a shirt.
    Mr. Nadler. If it is on a shirt and the person is sitting 
down so it is not visible, I will allow that.
    Mr. King. The person walks in and out of the room.
    Mr. Nadler. Don't walk out in the half hour or so remaining 
to the hearing.
    The gentleman is recognized for 5 minutes.
    Mr. Franks. Thank you, Mr. Chairman.
    Ms. Pearlstein, I just wanted to get a yes or no answer, 
then I will let you expand on the next question. In Mr. Witte's 
book he said, ``In Iraq and Afghanistan, detainees actually 
died in custody in incidents the military deemed homicides, 
though none of the interrogation tactics used in these case 
were authorized.''
    Do you know, of those people who died in custody, do you 
know of any technique that was used that caused their death 
that was specifically authorized by the United States 
Government?
    Ms. Pearlstein. I think the answer to that question remains 
unclear. I quoted before the testimony of the young officer who 
said he believed that he was authorized to stuff a detainee in 
a sleeping bag.
    Mr. Franks. I understand. But you don't know of anything 
that was authorized like that, yes or no.
    Ms. Pearlstein. Some of the soldiers believed it was 
authorized.
    Mr. Franks. So I am not going to get an answer. Let me just 
ask you this then. What specific, specific interrogation 
techniques would you recommend under the framework that you 
choose that the government use to obtain information from known 
terrorists who are resisting the questions when those 
terrorists refuse to provide information voluntarily. What 
techniques would you use, Ms. Pearlstein?
    Ms. Pearlstein. I think the techniques----
    Mr. Franks. Specifically.
    Ms. Pearlstein. What it is elaborated in the Army Field 
Manual is an excellent start.
    Mr. Franks. Enlighten me. What specific techniques would 
you use?
    Ms. Pearlstein. Do you want me to read to you----
    Mr. Franks. I would like you to give me your opinion.
    Ms. Pearlstein. I am not an interrogator, so I am not sure 
I am the witness best qualified to give that.
    Mr. Franks. So would you like to make a shot?
    Ms. Pearlstein. I think the answer is the U.S. Army Field 
Manual has multiple sections that describe appropriate 
interrogation techniques. I think that is a good approach.
    Mr. Franks. You don't know anything you would use that 
would get reluctant information from a terrorist.
    Ms. Pearlstein. I would prefer to receive some training 
before I was sent into a room like that.
    Mr. Franks. That is great. Professor Feith, read one more 
time the specific phrase that you read earlier about POWs, how 
they can be questioned and what the course of nature of that 
could be or could not be.
    Mr. Feith. In Article 17 of the Geneva Convention it says 
that no physical or mental torture nor any other form of 
coercion may be inflicted on prisoners of war to secure from 
them information of any kind whatever.
    It says, ``Prisoners of war who refuse to answer may not be 
threatened, insulted, or exposed to unpleasant or 
disadvantageous treatment of any kind.''
    Mr. Franks. That is pretty clear to me. That may escape a 
lot of us, but that is pretty clear to me. That means if you 
said you don't answer that question, we are not going to let 
you play checkers this afternoon. You wouldn't be able to do 
that, is that correct?
    Mr. Feith. I believe that is right.
    Mr. Franks. Well, I think that if we said that you were a 
prisoner of war, under that language, Mr. Ellison's questions 
would have been out of bounds. I think that the entire 
Committee hearing would be out of bounds. I think that, 
unfortunately, if Osama bin Laden and Khalil Sheikh Mohammad 
were sitting in the corner, they would be laughing at this 
Committee right now because they understand our system better 
sometimes than we do.
    In terms of a wink and a nod, don't you think terrorists 
wink and nod about being tortured to each other?
    Mr. Feith. As we know, and as was referred to earlier, part 
of the training that al-Qaeda people have received, and it is 
in writing, is to always claim that they were tortured when 
they are in detention.
    Mr. Franks, may I use your time to clarify something that I 
wanted to say with regard to what the Chairman was talking 
about. When I said that the techniques from the 18 techniques 
memo were consistent with humane treatment, depending on how 
they were done, I was referring only to those that Secretary 
Rumsfeld had actually approved because the several that he 
hadn't approved, there were legal-Questions that were raised by 
General Hill about them, and it was not recommended that they 
be used and Secretary Rumsfeld did not approve them.
    So I just want to make it absolutely clear that I am not 
saying--I am not offering an opinion on whether the techniques 
that were rejected by Secretary Rumsfeld could have been used 
properly.
    Mr. Franks. My last thought here.
    Mr. Feith. In other words, Secretary Rumsfeld only 
approved, of the category 3 items, the only one that he 
approved was use of mild, non-injurious physical contact such 
as grabbing, poking in the chest with the finger, and light 
pushing.
    Mr. Nadler. Would the gentleman yield. Did he approve 
anything or everything or disapprove anything in category 2?
    Mr. Feith. Yes, he approved category 2, but in category 3--
--
    Mr. Nadler. Thank you. But he approved category 2?
    Mr. Feith. Yes.
    Mr. Franks. Mr. Chairman, essentially, under the rationale 
of the Committee here, if someone in prison in our American 
prisons gets beat up tomorrow, we can blame the President.
    I yield back.
    Mr. Nadler. I thank the gentleman.
    I now recognize for 5 minutes the gentleman from Minnesota.
    Mr. Ellison. Professor Pearlstein, some questions haves 
been raised about whether you could use interrogation 
techniques that are designed to get the suspect's trust, and 
then get information out of them that way. For example, earlier 
I think Mr. Feith said you couldn't offer them cigarettes. Is 
that true?
    Ms. Pearlstein. I'm sorry; who cigarettes?
    Mr. Ellison. Detainees.
    Ms. Pearlstein. To clarify, it is currently, although I 
wish it were otherwise, constitutional under U.S. law in U.S. 
prisons to engage--for police to engage in questioning designed 
to illicit the trust of a detainee and then get information 
under that way.
    Mr. Ellison. Under Geneva, Mr. Feith read out a description 
of what would be permissible questioning strategy for a 
detainee, and essentially it prescribed or prohibited a course 
of techniques. What other kinds of interrogation techniques 
that are non-coercive would be permissible?
    Ms. Pearlstein. I think, as the FBI has long called 
rapport-building techniques are entirely permissible under that 
standard, among others.
    Mr. Ellison. These are effective at gleaning information, 
is that right?
    Ms. Pearlstein. As the one of the FBI interrogators put to 
me, all I need to get good information is a room and time.
    Mr. Ellison. You don't need waterboards. Is that what he 
said?
    Ms. Pearlstein. He didn't even get there.
    Mr. Ellison. Let me ask you this question, Mr. Feith. There 
was a November, 2002, meeting in which I believe the issue of 
the categories arose. Would you mind describing that meeting 
for us today?
    Mr. Feith. What I remember is that Jim Haynes, the general 
counsel of the Defense Department, said that the commander of 
SOUTHCOM, General Hill, believed that the techniques that were 
allowed under the field manual, which were those that weren't 
in effect at the time, while they were sufficient for many of 
the detainees, were not sufficient for some of the key 
detainees. And so he said that General Hill wanted authority 
from the Secretary of Defense to go beyond the field manual but 
still to stay within the law. And then we looked over the memo 
and it talked about things like yelling at the detainee and 
good cop-bad cop.
    So what we understood sitting around the table was that the 
people who were proposing this were proposing something that 
was very careful, very circumscribed, reflected a good attitude 
toward the law, toward humane treatment, and the like. If you 
actually read through this memo you will see----
    Mr. Ellison. I don't want to be rude to you, but I have got 
only 5 minutes. So General Hill and Jim Haynes were present, 
you were present. Is that right?
    Mr. Feith. I don't know that General Hill was present.
    Mr. Ellison. Who else was present besides Mr. Haynes?
    Mr. Feith. I don't remember precisely. We went to lots of 
meetings.
    Mr. Ellison. You were there.
    Mr. Feith. I was there.
    Mr. Ellison. Was it just you and Haynes?
    Mr. Feith. No. In a case like that, I would assume that 
General Myers or General Pace or both of them was there. I 
don't know. One would have to check the record. It is easy 
enough to find out who was at that meeting.
    Mr. Ellison. Did anybody object to the use of the category 
3 techniques?
    Mr. Feith. Yes, absolutely.
    Mr. Ellison. Who objected?
    Mr. Feith. We all did.
    Mr. Ellison. You all did.
    Mr. Feith. They weren't approved. Except for the poke in 
the chest.
    Mr. Ellison. Did anyone object to any category 2 
techniques?
    Mr. Feith. They were considered to be, again, if done 
within the bounds of no torture, no inhumane treatment, they 
could have been done in a way that was considered okay.
    Mr. Ellison. Professor Sands, do you have a view of this 
issue?
    Mr. Sands. I do. What emerged, I had written about it, and 
what emerged during the course of Admiral Dalton's testimony 
was there was a review initiated by Admiral Dalton, who was the 
General Counsel of the Joint Chiefs of Staff to consult with 
military lawyers. That was terminated early at the intervention 
of Mr. Haynes. Before that happened, senior military lawyers 
expressed strong objections to category 2 techniques on the 
grounds that they were inconsistent with the United States' 
international obligations and they amounted to cruel, inhuman, 
and degrading treatment.
    It may well be that Mr. Feith was not aware that they had 
occurred. Admiral Dalton was very clear that the intervention 
had occurred at the instigation of Mr. Haynes directly, and 
apparently, on her account, with the knowledge of General 
Myers.
    Mr. Nadler. The gentleman's time has expired. The gentleman 
from California is recognized for 5 minutes.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Feith, I would like to take you back to a discussion 
that went on a little while ago about POW status. First, I 
would like to ask one question. Looking back now as a professor 
and in the private sector, if you were back at DOD again and 
you were dealing with the prisoners of this war, would you, 
knowing what you know now, have essentially said the Army, 
Navy, Air Force is not generally equipped or trained to do 
interrogations that are outside that which is in the Field 
Manual? Would that be a fair statement to say, that at the 
beginning of this war, we were trained to do interrogations to 
that level. CIA, other groups might have been better equipped, 
the FBI, but not our uniformed military. Is that a lesson 
learned?
    Mr. Feith. I think so. I think there have been, as you 
know, I am sure, 15 or 20 investigations, studies of various 
aspects of the problems, and they came to conclusions along the 
lines that you just mentioned.
    Mr. Issa. Going back, though, to POW, because I think it is 
important, first of all, all of the accusations and statements 
made here today about people who died in captivity, people who 
clearly were tortured, put into a bag, suffocated, those are 
all criminal acts under existing law, and as far as you know, 
nobody above the individuals present at the time of those 
incidents ever authorized them. In other words, everyone who we 
know of that was involved has been punished. Is that correct, 
to your understanding?
    Mr. Feith. I would say that no senior officials of the 
Administration ever authorized them. I don't know the details 
about way down.
    Mr. Issa. Combatant commanders and above had nothing to do 
with it.
    Mr. Feith. There is no evidence whatever that they were 
ever authorized.
    Mr. Issa. I would like to take you through a short line of 
questioning on POWs for a moment. I was an Army enlisted man 
and an Army officer so I have been through this drill a bunch 
of times. Isn't it a true a prisoner of war is limited to only 
answering name, rank, and serial number, essentially?
    Mr. Feith. Yes.
    Mr. Issa. Isn't it true a prisoner of war is entitled to 
essentially be independently interviewed by outsiders? The 
Geneva Convention generally calls for the Red Cross. Is that 
correct?
    Mr. Feith. Yes.
    Ms. Issa. Isn't it true that a POW has a right to its chain 
of command to be intact? In other words, you can't simply put 
all of these--totally segregate people and deny them their 
chain of command. You can't put them in solitary confinement. 
And in fact, the senior officer or senior noncommissioned 
officer is, in fact, part of that system, much like 
Presidential candidate Senator McCain and how they reassembled 
while they were in captivity, their chain of command.
    Mr. Feith. I think that is right. Whether somebody could be 
put in solitary for disruptive behavior or something, I can't 
comment on that.
    Mr. Issa. There are some nuances. But, in general, POWs are 
not housed in separate facilities and POWs are, in fact, 
considered to be a unit. In other words, they are allowed to 
maintain their normal military presence as a group. Isn't that 
correct?
    Mr. Feith. Yes. Because they are viewed as lawful 
combatants.
    Mr. Issa. So, essentially there would have been no way to 
take al-Qaeda and other jihadists who were simply choosing to 
be on the field and maybe a whole bunch of independents and 
bring them together in a conventional POW way without 
essentially allowing people who may have been young and 
misguided and essentially mixing them in with the most 
dedicated jihadists of al-Qaeda. Isn't that correct?
    Mr. Feith. That may be.
    Mr. Issa. So, in a sense, although we can have a discussion 
about lawful and unlawful things that occurred while in 
captivity, aren't we faced with a responsibility as the U.S. 
Government to treat these people in a way that does not treat 
them as conventional combatants because they are not, both for 
reasons of our benefit, but also for reasons of their benefit?
    Mr. Feith. Yes. I believe there are multiple reasons why we 
should not give POW protections to terrorist detainees who are 
not entitled to it.
    Mr. Issa. Thank you very much.
    Mr. Chairman, I have got all my questions answered. I yield 
back.
    Mr. Nadler. I thank the gentleman. The gentleman from Iowa 
is recognized for 5 minutes. I am sorry, the gentleman from 
Virginia. I didn't see him here.
    Mr. Scott. Thank you. I was in the back, watching it on the 
monitor.
    Professor Pearlstein, Professor Sands, do you want to 
respond to that last colloquy?
    Ms. Pearlstein. Really, my only response is to emphasize 
that the designation of al-Qaeda detainees as POWs or not is 
not the issue. I think it, in many respects, is correct, unlike 
with respect to the Taliban, that al-Qaeda are not entitled to 
the full panoply of POW protections. Having said that, it is 
irrelevant. What they are entitled to, among other things, at a 
minimum is the protection of Common Article 3, a provision of 
law that would prohibit the set of techniques that we are 
discussing here today.
    Mr. Sands. I think I would agree with that. The issue of 
POW status is a complete red herring. I don't think Mr. Feith 
and I are in disagreement about the POW issue. I think it may 
well be worth sharing that in the United Kingdom, this issue 
doesn't arise because there is no war against al-Qaeda and so 
the issue of designation of POWs or Geneva Convention simply 
does not arise. They are treated by reference to the criminal 
law and they are prosecuted accordingly. That is the way it is 
done.
    So, in a sense, the Administration has created a rod for 
its own bag by embarking on the direction of a war on terror 
and getting stuck into issues of the Geneva Conventions. But I 
think Professor Pearlstein is absolutely correct, the issue of 
POWs is of total irrelevance. What matters is the standards 
reflected in Common Article 3.
    Mr. Scott. Well, if you redefine what constitutes torture, 
what effect does that have? They have written memos that 
suggest that what everybody else thought was torture is not 
torture. Does that mean that that it is because they called it 
aggressive interrogation techniques or they declare it to be 
humane, therefore it is?
    Mr. Sands. Well, I've listened with interest during the 
course of the morning, and of course I accept entirely that 
there is no Member of this House that would wish to engage in 
torture. That is a given.
    But, of course, if you then engage in a redefinition of 
torture, as happened in August 2002 in the memo written by Mr. 
Bybee and Mr. Yoo, and weighs it in terms of a threshold which 
basically excludes everything short of pain associated with 
organ failure or death, a great deal is permitted.
    And in those circumstances I think is important to come 
back to a point in relation to something Mr. Feith said 
earlier. General Hill did make a request on the 25th of October 
2002, but that request was for legal advice, not just from DOD 
but from Department of Justice. And people often forget that.
    When I was engaged in my conversation with Mr. Feith, one 
of the things we did talk about, I'll sure he'll recall, was 
the extent to which the Department of Justice was involved. And 
the audio will show that his belief was this was a full 
interagency operation. No one believes this was the Department 
of Defense off on a frolic.
    And in that sense, I got from that, as I got from others, a 
strong sense of confirmation that the Department of Justice 
memorandum of August 2002 provided a basis for the decision-
making, which allowed the Administration to conclude that 
certain acts would not constitute torture.
    Mr. Scott. Well, if you can't get information from the 
traditional interrogation techniques, and if this 
Administration thinks with a little torture that you can get 
some good information, what's wrong with torturing people to 
get the good information?
    Mr. Sands. Well, like Professor Pearlstein, and I'm sure 
Mr. Feith, we've spoken to a lot of interrogators, and what 
have I picked up, as Professor Pearlstein has picked up, from 
professional interrogators in the military, in the FBI, in the 
Naval Criminal Investigative Service, and anywhere else is you 
don't need to go to those techniques, because they don't 
produce useful and reliable information. What works is rapport-
building and related techniques.
    And it's the main problem with torture, is that it doesn't 
provide useful information. And, indeed, in the story that I 
told, as I describe, the aggressive interrogation amounting to 
inhumanity or torture of Detainee 063 did not produce, as I was 
told, useful information.
    Mr. Scott. Professor Feith, what responsibility does the 
Under Secretary of Defense for Policy have to make sure the 
troops are properly trained so that they do not torture people?
    Mr. Feith. I don't believe any. That's not what the job of 
the Under Secretary of Defense for Policy is. The issue for 
training of military forces is within the services--in other 
words, within the Army, the Navy, the Air Force. And that's not 
an issue that is dealt with in the Office of the Under 
Secretary of Defense for Policy.
    Mr. Scott. Detainee-related policies don't come under that 
purview?
    Mr. Feith. Basically, the way----
    Mr. Nadler. The time of the gentleman is expired. The 
professor may answer the question.
    Mr. Feith. I mean, I would answer it similar to what I said 
before. If it were clear that the services were falling down on 
their job of training people, so that the problem could not 
properly be handled in the service, that would be an argument 
for people working for the Secretary to say, ``Mr. Secretary, 
you need to intervene.''
    But the way the system is set up, the training of military 
forces is handled within the services.
    Mr. Nadler. Thank you. The time of the gentleman has 
expired.
    The gentleman from Iowa is recognized for 5 minutes.
    Mr. King. Thank you, Mr. Chairman. I move we adjourn.
    Mr. Nadler. There are no more people to be questioned. I 
will entertain the motion to adjourn in one moment. I must get 
some boilerplate procedure out of the way.
    Mr. King. Mr. Chairman, there is a proper motion on the 
floor to adjourn.
    Mr. Nadler. If there are no further questions, we will 
adjourn in a moment, but we must take care of this one 
paragraph of boilerplate.
    Oh, we'll take a vote on the motion to adjourn.
    Mr. King. I would agree if there is boilerplate to be 
processed pending a vote to adjourn.
    Mr. Nadler. We'll adjourn at that point without a vote, but 
okay.
    Without objection, all Members have 5 legislative days to 
submit to the Chair additional written questions for the 
witnesses, which we will forward and ask the witnesses to 
respond as promptly as they can, so that their answers may be 
made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    Before we adjourn, I would remind people that this hearing 
is conducted with decorum. And I would ask that there be no 
demonstrations as we leave the room and that no one get up with 
any signs or anything else that could cause anybody to object.
    And without the necessity for a motion to adjourn, the 
hearing is adjourned.
    [Whereupon, at 1:21 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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               Material Submitted for the Hearing Record



                                 
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