[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 V)
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JULY 17, 2008
__________
Serial No. 110-196
__________
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
C O N T E N T S
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JULY 17, 2008
Page
OPENING STATEMENT
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 2
WITNESSES
The Honorable John Ashcroft, former Attorney General, U.S.
Department of Justice
Oral Testimony................................................. 3
Prepared Statement............................................. 7
Mr. Benjamin Wittes, Fellow and Research Director in Public Law,
The Brookings Institution
Oral Testimony................................................. 13
Prepared Statement............................................. 16
Mr. Walter Dellinger, former Assistant Attorney General, Office
of Legal Counsel, U.S. Department of Justice
Oral Testimony................................................. 21
Prepared Statement............................................. 24
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Chairman, Committee on the Judiciary........................... 85
Prepared Statement of the Honorable Maxine Waters, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 86
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Member, Committee
on the Judiciary............................................... 87
Appendices to the Prepared Statement of Walter Dellinger, former
Assistant Attorney General, Office of Legal Counsel, U.S.
Department of Justice.......................................... 88
FROM THE DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: ADMINISTRATION
LAWYERS AND ADMINISTRATION INTERROGATION RULES (PART V)
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THURSDAY, JULY 17, 2008
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:09 a.m., in
room 2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Committee) presiding.
Present: Representatives Conyers, Nadler, Scott, Lofgren,
Waters, Delahunt, Wexler, Sanchez, Cohen, Johnson, Sherman,
Baldwin, Schiff, Davis, Ellison, Smith, Coble, Gallegly,
Goodlatte, Chabot, Lungren, Cannon, Keller, Issa, Pence, King,
Feeney, Franks, Gohmert, and Jordan.
Staff Present: Elliot Mincberg, Majority Chief Oversight
Counsel; Sam Sokol, Majority Oversight Counsel; Paul Taylor,
Minority Counsel; and Renata Strause, Majority Staff Assistant.
Mr. Conyers. Good morning. The Committee will come to
order. The hearing today is entitled ``From the Department of
Justice to Guantanamo Bay: Administration Lawyers and
Administration Interrogation Rules'' that are being examined
before the Committee. Actually, this is the fifth in a series
of hearings on the subject, the first four which have been held
in the Constitution Subcommittee of the Judiciary Committee.
In recent months, our Constitution Subcommittee has
conducted a vigorous investigation of the Administration's
interrogation policy, and some of the legal theories that
allowed it. Today the investigation comes to the full
Committee, with a remarkable opportunity to hear from our
former Attorney General and two other distinguished witnesses.
I think that all of us, witnesses and Members of the
Committee alike, share in the view that there is important
common ground in the subject matter that brings us together. I
could recite a number of examples of where the former Attorney
General made me very proud of the decisions he made or some of
the things that he said.
But our subject today is a narrow one about interrogation
rules. Our overall inquiry, however, is about the rule of law.
In prior hearings, the Subcommittee heard testimony, including
claims of Presidential power, that made it seem that no act or
conduct was out of bounds if the President thought it
necessary. We heard testimony about how dissenting views were
handled on this issue. I have great concern about the way any
executive branch responds to legal advice it doesn't like,
especially when it results in the firing of the lawyer that
provided it.
So while one goal of this hearing is to continue to develop
as well as we can these recent important historical incidents
on the interrogation issue, I am also appreciative of the
opportunity to hear from all our witnesses on what is happening
to the rule of law today and how they best think we can move
forward on this issue, and to continue it. After all, that is
the role, one of the important roles of the Constitution
Committee--of the Judiciary Committee, which has jurisdiction
over the Constitution. And so we hope that we can restore
meaning and significance to the promise that America does not
torture, and that further, America respects the rule of law.
I now turn to our distinguished Ranking Member from Texas,
Lamar Smith.
Mr. Smith. Thank you, Mr. Chairman. Mr. Chairman, this is
the ninth hearing of this Committee and its Subcommittees
regarding the interrogation of known terrorists. After nine
hearings, like nine innings, the game should be over. Yet all
the curve balls thrown at these many hearings cannot obscure
the simple fact that Members of both political parties had been
fully briefed on the CIA's interrogation program, and no
objections were raised.
According to the Washington Post, four Members of Congress,
including House Speaker Nancy Pelosi, were given a thorough
review of the CIA interrogation program in September 2002. The
methods outlined included waterboarding. No objections to the
interrogation program or the methods were raised at the time by
the Members.
Torture is, and has been, illegal under U.S. law, as it
should be. We do not, have not, and will not condone acts of
torture. In fact, Congress has taken additional steps in recent
years to strengthen laws against torture. The McCain amendment
prohibits persons in the custody or control of the U.S.
Government, regardless of their nationality or physical
location, from being subjected to cruel, inhuman, or degrading
treatment or punishment.
It should come as no surprise that special interrogation
methods that do not amount to torture are legal and can and
have been used appropriately to save American lives. For
example, the interrogation of terrorist Zubaydah, a high level
logistics chief of al-Qaeda, resulted in the disruption of
several terrorist attacks. When Zubaydah was captured, he and
two other men were in the process of building a bomb. A
soldering gun used to make the explosives was still hot on the
table, along with building plans for a school. According to a
former CIA official, when asked what he would do if released,
he responded I would kill every American and Jew I could get my
hands on. He refused to offer any actionable intelligence until
he was subjected to special interrogation procedures for
between 30 to 55 seconds. According to what he said, quote,
from that day on he answered every question. The threat
information that he provided disrupted a number of attacks,
maybe dozens of attacks.
The Supreme Court has determined that unconstitutional
acts, or torture, are those that shock the conscience. And what
shocks the conscience depends on the circumstances and purpose
of the interrogation. For example, if someone were picked at
random on the streets of New York and subjected to special
interrogation techniques, it would undoubtedly shock the
conscience. But what if that person was one of the 9/11
terrorists? Or perhaps a known terrorist who is found in
possession of explosives, the blueprint for a U.S. embassy, and
expresses his desire to kill Americans? Given the recent events
in Turkey, this is a realistic hypothetical. Using legal means,
even as a last resort, to gather information that could save
hundreds or thousands of American lives does not shock the
conscience. Though rarely used, these legal methods work and
have saved lives.
The Schlesinger report, an independent report on Pentagon
detention operations, concluded that at Guantanamo the
interrogators used those additional techniques with only two
detainees, gaining important and time-urgent information in the
process. A separate review found that the interrogation program
in the case of alleged 20th hijacker, Mohammad al-Qahtani,
ultimately provided extremely valuable intelligence.
Benjamin Wittes of the Brookings Institution, one of our
witnesses today, perhaps said it best. Whatever rhetorical pose
politicians adopt, categorical opposition to coercive
interrogation is not a tenable position for anyone with actual
responsibility for protecting the country. Those charged with
the responsibility of keeping Americans safe must do what they
can within the limits of the law. And when they do so in very
difficult circumstances, there will inevitably be debates
regarding what those limits are. But while those debates should
be welcomed, we should be careful not to unjustly persecute
anyone, especially those whose sleepless efforts enable us and
our families to sleep better at night.
Thank you, Mr. Chairman. I yield back.
Mr. Conyers. Thank you. Would the witnesses please stand to
be administered the oath? Raise your right-hand.
[Witnesses sworn.]
Mr. Conyers. Thank you. All the witnesses said yes. Without
objection, other Members' opening statements will be included
in the record.
Our first witness this morning is the distinguished former
Attorney General John Ashcroft, who served in that position
from 2001 to 2005. He was additionally a United States Senator
from Missouri. He was also the State's Governor for two terms.
And we are very proud to welcome him back again to the House
Judiciary Committee. Sir, you may proceed.
TESTIMONY OF THE HONORABLE JOHN ASHCROFT, FORMER ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Ashcroft. Thank you, Chairman Conyers and Ranking
Member Smith. I am grateful for the opportunity to testify
about interrogation of al-Qaeda detainees. This Committee's
prior hearings on this topic have focused principally on three
legal opinions authored by the Office of Legal Counsel,
opinions authored in August of 2002, March 2003, and December
of 2004. I served as Attorney General of the United States when
each of these opinions was written. And before delving into the
specifics of the memos, I would like to make a few preliminary
points.
First, after 7 years without an attack, it is perhaps easy
to forget just how perilous the time was. But during the summer
of 2002, we in the Justice Department were confronted with
daily reminders that the lives of countless Americans depended
on our efforts to prevent another terrorist attack, and that
even the slightest mistake could result in tragedy. After 9/11,
the Administration's overriding goal, which I fully embraced,
was to do everything within its power and within the limits of
the law, I repeat within its power and within the limits of the
law, to keep this country and the American people safe from
terrorist attacks.
As this Congress and the Nation now turn to reevaluate the
work that was done, with the altered perception of 7 years of
safety, we would all do well to remember the dangers we faced
and the dangers we still face, and the potentially catastrophic
consequences of error.
Second, the process we will discuss here today, the
examination of difficult legal questions by the Office of Legal
Counsel and OLC's reassessment of its opinions when warranted
by new concerns, conditions or information, is a distinct
virtue, and reflects this Administration's commitment to the
rule of law. There is no room in the Justice Department for an
assumption that its work is perfect, nor for an attitude of
resistance to reconsideration. Determined to provide the best
advice possible, I sought to ensure that the Department adhered
to the highest professional standards of quality and integrity.
In rendering legal advice to the President and the
executive branch agencies, the Office of Legal Counsel, or OLC,
is bound to adhere faithfully to the holdings of relevant
Supreme Court precedents. So too are the lower Federal courts.
That is why, I submit, the Justice Department's legal positions
in the major war on terror cases uniformly prevailed in the
courts of appeals, courts where the Supreme Court precedent is
binding. Indeed, the Department of Justice lost only one vote
of the 12 Court of Appeals judges that heard such cases. The
Department's positions to be sure did not fare as well in the
Supreme Court, where unlike the Court of Appeals, the justices
are free to depart from the Court's precedents. It simply
cannot be denied, however, that each of these cases presented
close, difficult issues on which reasonable legal minds, acting
in good faith, disagree.
The Justice Department serves both the institution of the
presidency and the presidency--or the President himself, in
whom the Constitution of the United States vests the executive
power. While OLC is bound to adhere faithfully to Supreme Court
precedent, that precedent is often genuinely open to more than
one interpretation, and thus contemplates an executive branch
interpretive role. It follows, I believe, that when OLC is
presented with a close and difficult legal question, one on
which it cannot conclude that an Administration's proposed
policy is legally foreclosed, OLC is obliged to so inform the
President and to offer any advice it may have on steps that
might be taken to reduce any legal uncertainty.
It is difficult to imagine an area in which the imperative
to afford the President the benefit of genuine doubt is greater
than with respect to his judgments as Commander in Chief on how
best to protect the lives and liberties of the American people
in the war on terror.
A final preliminary point I would like to make is this.
Before these hearings commenced, I had but a limited
recollection of many of the events pertinent to your inquiry.
In attempting to prepare for this hearing, I reviewed testimony
from prior hearings, I read portions of publications recounting
some of the timely events, and I must admit that it has been
difficult for me sometimes to distinguish between what I in
fact recall as a matter of my own experience and what I
remember from the accounts of others. As a result, what I hope
I will be able to say will be of value to the Committee.
Reliance on my statements and observations ought to be tempered
by these awarenesses.
In March of 2002, the United States and Pakistan captured
Abu Zubaydah, al-Qaeda's third in command, the highest value
capture up to that point. The Administration turned to OLC for
guidance as to the standard for interrogation of al-Qaeda
detainees outside the United States under the anti-torture
statute and the Convention Against Torture. OLC issued its
opinion August 1, 2002.
In 2003, the Department of Defense requested that OLC
provide an opinion on the scope of Federal and international
law standards governing military interrogation of al-Qaeda
detainees held outside of the United States. The resulting
opinion was issued on March the 14th, 2003.
Former Deputy Attorney General John Yoo has testified to
this Committee that OLC followed its normal process in
preparing both of these highly classified opinions, including
consultations with other components of the Justice Department
and executive branch agencies, and he provided a fairly
detailed account of the process that attended the preparation
and issuance of the August 2002 opinion.
My own memory is not nearly so detailed, but I do not
generally recall that I was--pardon me, but I do generally
recall that I was made aware that a legal opinion relating to
the interrogation of al-Qaeda detainees was being prepared by
OLC, that a draft or drafts were provided to my office, and
that I was briefed on the general contours of the opinion's
substantive analysis and on its conclusions, and that I
approved its issuance.
Thus, as best I can recall, the August 2002 interrogation
opinion followed the normal review process in my office for
such matters. In this regard, it is important to bear in mind
that each week during my tenure as Attorney General, and
especially following 9/11, scores of critically important
matters came to my desk. Necessarily then I did what every
Attorney General and Cabinet official must, I daily relied on
expert counsel and painstaking work of experienced and skilled
professionals who staffed the Department.
With respect specifically to the March 2003 opinion, while
I have no recollection of the process that attended its
preparation by OLC or the review it received in my office, I
have no reason to doubt the testimony of Mr. Yoo on this
matter.
It is now well known that Assistant Attorney General Jack
Goldsmith withdrew the August 2002 and March 2003 memos during
his tenure as head of the OLC. He did so with both my knowledge
and my approval. Upon review of the memos, concerns were raised
about the appropriateness of some of the analysis, and that the
memos addressed certain issues beyond those necessary to answer
the narrow questions presented to the Department.
This remedial process worked as it should have. When
concerns were raised about the Department's work, I directed
the professionals at the Department to reexamine the work and
to make any warranted adjustments. The December 2004 memo that
ultimately replaced the August 2002 memo advanced a narrower
interpretation of the standard defined by the anti-torture
statute. It also deleted unnecessary discussions of the scope
of Presidential power and potential defenses to prosecutions
under the anti-torture statute.
The memo did not, however, call into question any of the
actual interrogation practices that OLC had previously approved
as legal. In fact, the new memo, the replacement memo stated we
have reviewed the office's prior opinions addressing issues
involving treatment of detainees, and do not believe that any
of their conclusions would have been different under the
standards set forth in this memorandum.
One way to think about this is to imagine that a highway
had a posted speed limit of 85 miles per hour, but the cars
traveling upon it never moved faster than 65 miles per hour.
Taking down the 85 mile per hour signs and putting up 65 mile
per hour signs would not require a change in driving conduct.
It would merely redefine the outer boundaries of what drivers
would be said legally could be done. This is precisely what
happened with the interrogation advice rendered by the
Department in 2002 and 2003. When I was informed about concerns
relating to overly broad advice, the limits of which were never
tested, I directed the OLC to correct it.
To the extent my memory will allow and the extent I am
permitted under the guidance I have received from the
Department of Justice, I would be pleased to answer your
questions.
[Prepared statement of Mr. Ashcroft follows:]
Prepared Statement of John Ashcroft
Mr. Conyers. Thank you.
Benjamin Wittes is a Fellow and Research Director in Public
Law at the Brookings Institution, a well known writer and
author of a recently published book, entitled Law and the Long
War: The Future of Justice in the Age of Terror.
Mr. Benjamin Wittes, welcome to the Judiciary Committee.
TESTIMONY OF BENJAMIN WITTES, FELLOW AND RESEARCH DIRECTOR IN
PUBLIC LAW, THE BROOKINGS INSTITUTION
Mr. Wittes. Thank you very much, Mr. Chairman, Mr. Ranking
Member, and Members of the Committee, for inviting me to
testify concerning American interrogation policy. I do not
intend today to focus on the past, but on the future; that is,
on the contours of the interrogation laws we need prospectively
in order to prosecute the war on terrorism in a manner that is
at once effective and consistent with American values.
I would like to make three points. First, that Congress in
the McCain amendment successfully addressed the problem of
military interrogations. That law gave the military, within the
parameters of more general requirements of humane treatment of
detainees, great latitude to set its own rules, requiring only
that it publish and follow them. The new field manual that the
Army promulgated in response offers a limited degree of
additional flexibility over the old one in certain areas. It
also contains a great deal more specificity about all of the
interrogation tactics it authorizes than did the prior version.
These policy changes have been so successful that today neither
human rights groups nor the military is complaining a whole lot
about contemporary Army interrogation rules. And the result of
this is that the currently contested terrain in the battle over
interrogation policy is actually a lot narrower than most
people imagine it to be.
Second point, that the policy Congress adopted in that
statute is relatively easily adapted to address interrogations
by the CIA, though not simply by applying the McCain amendment
itself to the agency; that is, applying the Army Field Manual
to the agency.
The residual dispute; that is, the rules that govern the
interrogations of the comparatively tiny number of detainees
held by the CIA, is a narrow, but important one. It is
important both because these detainees present the highest
stakes interrogations, and because the rules that are applied
against them in the CIA's program define the outer parameters
of what the U.S. will do in interrogations under any
circumstances.
The current state of the law for these detainees is in my
judgment simply inadequate. Current law articulates flat bans
on vaguely defined categories of abuse, torture, and cruel,
inhuman, and degrading treatment. These amount in practice to
absolute injunctions not to do anything too mean, but leave far
too open the question both of what meanness is and the
additional question of how much of it is too much. The result
of this is a terrible conundrum for interrogators in the field.
We want these people to be aggressive. We want them to walk up
to the line of legality in order to get information that will
stop the next attack. Yet on the other side of that line is
illegality. And we have refused as a society to draw the line
clearly or to promise that it won't move. We are asking men and
women in the service of this country to live their professional
lives leaning over the border of unlawful conduct that we
haven't the courage to define precisely.
It is an abdication that we need to redress. And Congress
can do so simply using the McCain amendment as a model for the
CIA. The CIA should not be bound by the Army Field Manual
itself, for even a completely responsible palette of procedures
for the CIA would probably differ in some respects from the
list in the Army Field Manual. Yet the CIA, like the military,
should have its own list of approved techniques, amendable at
any time, to which the law binds its compliance.
Think of it as a CIA field manual. That is, within the
confines of the existing legal strictures on interrogation,
Congress should permit the agency the use of any technique to
which it will willingly attach its name. Ideally, Congress
would insist that this document, like the Army Field Manual, be
openly disclosed so that all approved interrogation techniques
available on the law could withstand debate and scrutiny. This
may not be possible with the CIA, however. The agency may
rather need to maintain a certain level of ambiguity about its
interrogation palette. But Congress should still require of it
as much transparency and accountability as possible.
Binding the CIA to its own interrogation palette by law
would likely fix the problem that we are currently fighting
about for all but a tiny number of the highest value detainees.
Third, that tiny subset of high value detainees will stress
the rules. The agency sometimes interrogates highly resistant
detainees in time-sensitive efforts to avert catastrophes. In
these efforts the executive branch will face extraordinary
pressure to get information and will sometimes make a decision
to breach the rules in order to get it. We should be honest
that these breaches are breaches of the rules, not within the
rules, and that reality requires that the rules here do
something genuinely extraordinary, which is to contemplate the
circumstances of their own violation.
The question, and it is a tremendously difficult question,
is what legal zone the President and his Administration and the
people in the field will occupy when they do what they deem
necessary in those dire circumstances. Many people believe in
structuring the law so as to render the interrogator in the
field culpable of a felony for the interrogation expected of
him under these circumstances. I do not. To ask that
interrogators subject themselves to prosecution for these acts,
approved at the highest levels, is unlike anything we ask of
other government officials for acts we expect them to take in
foreseeable situations. Congress needs to create a mechanism to
recognize that in such situations the President has the
authority to stand alone accountable for the interrogations he
orders. This implies a law that clarifies that the President's
authority--that the President has the authority to assume legal
and political responsibility for breaches of the normal rules,
and also ensures that the legislature is kept informed and has
the opportunity to object.
Congress can accomplish this relatively simply. The law
should forbid the President to authorize any deviations from
CIA interrogation policies except by written finding to the
congressional intelligence committees identifying the need for
enhanced techniques in the specific case and the individual
techniques the President is ordering. The law should insist
that these techniques under no circumstances violate the
prohibition on torture, and the findings should require the
personal signature of the President. Congress should require as
well that the White House annually publish the number of such
findings the President issues, so that while each finding would
remain classified, the public may determine whether coercive
interrogation has remained an exception or is drifting toward
more of a norm.
The law should further immunize against all criminal and
civil liability those personnel carrying out the enhanced
techniques specified within such a finding.
I am happy to take your questions. Thank you very much.
[Prepared statement of Mr. Wittes follows:]
Prepared Statement of Benjamin Wittes]
Mr. Conyers. Thank you.
Walter Dellinger was the head of the Office of Legal
Counsel, OLC, under President Clinton. And as Acting Solicitor
General, he argued nine cases before the Supreme Court, more
than any Solicitor General in more than 2 decades. He is a
visiting professor at Harvard Law School, and is on leave from
teaching law at Duke University, and belongs to the O'Melveny &
Myers law firm. Welcome again to the Committee.
TESTIMONY OF WALTER DELLINGER, FORMER ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE
Mr. Dellinger. Chairman Conyers, Ranking Member Smith,
Members of the Committee, on September the 12th 2001, the New
York Times had a single sentence paragraph: It was a moment
that split history. And because I will use my time to take
issue with some of the things that each of our witnesses has
said, I want to begin by acknowledging how difficult were the
circumstances faced by General Ashcroft and the others in
government.
There was a real sense that further attacks, perhaps even
more deadly, were in the offing, a palpable sense. I can hardly
imagine what the pressures must have been on those who were in
the government. And we all could exercise some humility in
judging how well we would have done under those extraordinary
pressures. General Ashcroft is, we know, a man of the law who
is willing to stand up and take tough and courageous positions
when in his view the law is being violated. And my friend, Ben
Wittes's thoughtful work, Law and the Long War, is
indispensable reading for anyone who wants a really balanced
and thoughtful approach to these issues.
Nonetheless, I want to say that I fear that we have not had
an adequate defense of the torture memos, which more than
anything else are the source of this hearing, the memos of 2002
and 2003. I don't think it was a process that worked well in
the end, because they were reversed. I think it is also the
case that these memoranda were not close questions.
As Jack Goldsmith, the subsequent head of the Office of
Legal Counsel said, the memos were deeply flawed, sloppily
reasoned, overbroad, incautious in asserting extraordinary
constitutional authorities on behalf of the President.
As Dean Harold Koh said, the 2002 memo was a stain upon the
law and upon America's reputation in the world.
In his testimony, General Ashcroft refers us to the fact
that the Federal courts were closely divided on the issues that
came to the U.S. Supreme Court in Rasul, and Hamdi, and Hamdan,
and in the Court's most recent case of Boumediene. But no one
has disputed that. Those were difficult cases. Whether habeas
corpus applied in a territory over which we did not have de
jure sovereignty with respect to noncitizens was a question of
first impression. And the extraordinary arguments were evenly
divided in that case. And the Court came close. But that segue
in General Ashcroft's testimony is away from the separate issue
of the torture memos, where I think it is hard to defend the
extraordinary reading of the torture statute that would, as the
Office of Legal Counsel memorandum read the statute, approve
even of the worst techniques of Saddam Hussein if they were
intended to get information, and not simply to inflict pain.
The connection and the assertion of a Presidential
authority to disregard criminal statutes enacted by Congress,
signed into law by the President, intended to limit the
authority in precisely these circumstances, which was true of
the torture statute of the Foreign Intelligence Surveillance
Act and the war crimes law, the ability to disregard those
statutes was I think a virtually shocking assertion of
Presidential authority not to comply with the law. There is a
connection between those memoranda and the Supreme Court
decision.
I think that one thing that led the Supreme Court to
require the use of habeas corpus was because it had lost trust
in the Administration of justice because of the extraordinary
position taken with respect to the Foreign Intelligence
Surveillance Act, the torture laws, and other issues. The Court
felt that it did not have confidence that the processes in the
absence of judicial oversight would work appropriately. So that
I think at the end of the day, the process did not work well,
and we need to acknowledge how extraordinary those assertions
of power were.
Ben Wittes offers very thoughtful, very thoughtful views on
how we should think about these issues going forward. And with
much of what he says I concur. A couple of points with which I
disagree, and then I will yield for questions for our panel.
It seems to me that to say that the CIA ought to have
authority beyond what is in the Army Field Manual for
interrogations, to open up a gap there between what is cruelty
and what is torture when the U.S. military has complied with
the field manual in questioning the Viet Cong, in questioning
throughout our history, I am not sure that we want to be a
Nation which officially approves of the use of cruelty as a
matter of government policy. I think that the President does
not have the lawful authority to pardon someone in advance for
what would be a criminal offense. I do believe the pardon would
be effective, just it would be I think if someone is bribed to
give a pardon, the pardon cannot be called into question. But
it is an offense for the Governor or the President who accepted
the bribe. And I think that a Presidential pardon intended to
facilitate the commission of a violation of a criminal statute
would itself be lawless, even if the pardon were to be
sustained.
Finally, let me just address the notion that we should have
a specific exception for extraordinary circumstances where
someone has information that would save the lives of countless
Americans, the ticking time bomb in the middle of Manhattan. I
don't think the law should make an exception for that. I
believe that is a situation, if and when it ever arose, that
calls for civil disobedience.
I think what we would expect a President to do in those
circumstances is to authorize what was necessary to save the
lives of countless Americans when there is a direct and
immediate threat in those circumstances, and to turn himself in
after having done so, and to submit to the criminal process. We
ask sacrifices of men and women in the military more serious
than that. That to me would be the answer, not to engraft in
our code of laws the notion that we are a country that would
tolerate that kind of cruelty.
Thank you, Mr. Chairman.
[Prepared statement of Mr. Dellinger follows:]
Prepared Statement of Walter Dellinger
Mr. Conyers. Thank you. Before I invite our Ranking Member
to begin the questions, Lamar, I have only one question. I got
some others a little later. But the notion that we have not
been attacked since September 11, 2001, means that we are doing
things right to me begs the question. I mean is that safe, Mr.
Attorney General, to assume that that is the conclusion we
ought to come to?
Mr. Ashcroft. Mr. Chairman, I believe that there have been
disrupted plots. I believe there have been numbers of them. I
believe the evidence of that is good. So that something we have
done is right enough to have disrupted those plots. The fact
that you are doing some things right doesn't mean that you are
doing everything right. And so I think it is appropriate for us
always to be looking at what we are doing. And if we are being
successful, to be grateful that some of what we are doing is
participating in the success, but not assuming that everything
we are doing is responsible for it. And we have to look
intelligently.
It is a complex question. So it is one of those things like
when we run for office. You know, if you win, everything you
did was right. If you lose, everything you did was wrong. It
may have turned out that you were just running in the wrong
year or the right year.
So I think overly simplistic approaches that say everything
we are doing is right--really, as a matter of fact they are
dangerous approaches because they lead us not to make good
judgments about corrective behavior, how we might improve our
performance. You know, if you think everything you are doing is
right, then when you get hit the next time, it tells you that
maybe we should have done something a little differently.
We learned a powerful lot after 9/11. I did. And we learned
that we had to make changes. Wouldn't it be great if we not
assume that everything is right and we always ask ourselves how
can we make changes so that we don't have to be awakened by
something that cost Americans lives?
Mr. Conyers. Mr. Wittes, what is your response to that
question?
Mr. Wittes. It is not an argument that I have ever made,
and so I feel a little awkward about responding to it. I
largely agree with Mr. Ashcroft. I think, you know, there has
obviously been some successes. I don't think 7 years ago people
would have imagined that we would go another 7 years without
another major attack. So we can assume something is going right
as a result of that, and I don't think one should overread
that. I don't think one should assume therefore everything is
going right, or therefore there is no cause for course
correction.
Mr. Conyers. Professor Dellinger.
Mr. Dellinger. Mr. Chairman, this is not an area in which I
have an informed view except to say that I know that the threat
assessments that come in daily to the Attorney General and
others must be extraordinary. And surely, credit is due to this
Administration for the fact that we have in many areas appeared
to have been successful in countering activities. I think at
the end of the day our long-range national security is best
served by our adherence to the fundamental constitutional
values that should make us a country respected by the world.
Mr. Conyers. Thank you. I turn now to Lamar Smith.
Mr. Smith. Thank you, Mr. Chairman. Mr. Dellinger, just a
few minutes ago you complimented the other witnesses in I think
unusually flattering terms. You don't often hear a witness do
that, particularly a witness who might disagree with them
strongly on the legal analysis that might be contained in
memos. But I thank you for doing that. And I think, quite
frankly, your graciousness adds to your stature. And I
appreciate your comments a while ago.
Mr. Ashcroft, I would like to direct my first question to
you. It is traditional, I think, that congressional leaders are
briefed on interrogation techniques that are being used by
various agencies within the government. But why specifically,
for example, were then Congresswoman Pelosi and others informed
about the use of waterboarding to obtain information from
terrorists several years ago? What is the specific reason?
Mr. Ashcroft. I didn't make the decision to do that. That
was a decision made by others. I am not in a position to
comment on it. And to the extent it has been revealed, I
believe those briefings were classified. And I am very
sensitive about making comments about classified matters.
Mr. Smith. The briefings were classified. Let me just
assume that those types of briefings occur simply because the
Administration, whatever Administration it might be, wants to
make sure that congressional leaders understand and appreciate,
and presumably approve of the techniques that are being used to
obtain valuable information. At least that would be my view.
Mr. Wittes, let me ask you whether you feel in general that
enhanced interrogation techniques are effective in obtaining
valuable information that we might not otherwise get.
Mr. Wittes. As I say in my book, I am actually somewhat
agnostic on that point. I think the--you know, I have spoken to
a lot of interrogators over the years who are very emphatic
about the general proposition that the best intelligence is
always gathered through rapport building, noncoercive
interviews.
Mr. Smith. And if that is not successful, what techniques
do you----
Mr. Wittes. And I have also been impressed by the fact that
there is, you know, a fairly large number of people, and I
outline some of this in the book, who are--you know, who do
contend that there are situations in which these techniques do
not succeed and you don't have time to develop them. The best
academic work that I have seen evaluating the data came to the
conclusion, such as it is, came to the conclusion that we
really don't know what works--there is a very striking
discussion of this--and concludes that we need a lot more study
about what works, both in the coercive and in the noncoercive.
Mr. Smith. It seems to me that I might disagree with the
academics who say we don't know what works, because clearly
some techniques do work, and there is evidence of it. And I
have given some quotes in my opening statement.
Mr. Wittes. Well, if I may, I mean I think the general
pattern, at least as I have noticed it, is that everybody
believes that the techniques that they have used successfully
work. And people tend to generalize the success. So if you talk
to FBI people who use noncoercive stuff, they are very
convinced that they have the best way to do it. If you talk to
the people who have, you know----
Mr. Smith. Maybe they all work at different times. Who
knows?
Mr. Wittes. You know, there may be something to be said for
that. And I think what I conclude from this is that unless you
know that it does not work in the highest stakes situations,
where there is enormous time pressure, and you know that what
you are doing isn't working, there will be enormous pressure on
you to ratchet it up. And I think, you know, that is a reality
that, you know, exists whatever the optimum level of coercion
is, whether it is zero or considerable.
Mr. Smith. Okay. Thank you.
Mr. Ashcroft, the last question for you. What are the
disadvantages of taking a criminal law approach to trying to
combat terrorism?
Mr. Ashcroft. Well, my belief is that there are some times
when the criminal law is the appropriate approach. There are
some times when it is not. We apprehended people who were
involved in terrorist plots in the United States, brought them
to trial when I was in the Justice Department. A number of them
have been convicted, a number of them are serving time. There
are other individuals that were detained as enemy combatants
that were terrorists and involved in terrorist activity, and
some that I think the Administration will eventually seek to
try in military commissions. When you are defending the
country, I think you should have the full array of potentials
available. And I think maybe that splashes over a little bit
into the interrogation world. Not everything is appropriate in
every circumstance. There are different things that work in
different settings. Sometimes the security associated with the
national security would be jeopardized by having an Article 3
criminal proceeding, and so other views or other avenues ought
to be explored.
Mr. Smith. Thank you, Mr. Ashcroft. Thank you, Mr.
Chairman.
Mr. Conyers. The Chairman of the Constitution Subcommittee,
Jerry Nadler.
Mr. Nadler. Thank you, Mr. Chairman. Attorney General
Ashcroft, in your testimony you mentioned Abu Zubaydah, who was
captured in March 2002. The Inspector General report on the
FBI's role in interrogation makes clear that he was
interrogated beginning in March of that year. The Yoo-Bybee
legal memo was not issued until August 2002. So was the
interrogation of Abu Zubaydah before August 2002 done without
DOJ legal approval?
Mr. Ashcroft. I don't know.
Mr. Nadler. Well, did you offer legal approval of
interrogation methods used at that time?
Mr. Ashcroft. At what time, sir?
Mr. Nadler. Prior to August of 2002, March 2002.
Mr. Ashcroft. I have no recollection of doing that at all.
Mr. Nadler. And you don't know if anyone else from the
Department of Justice did?
Mr. Ashcroft. I don't know.
Mr. Nadler. One FBI agent objected to the interrogation at
this time before the Yoo-Bybee memo was issued as, quote,
borderline torture. He described the techniques used on Abu
Zubaydah as comparable to harsh techniques used during military
SERE training. SERE training, as we know, includes
waterboarding. Do you know if waterboarding was used on Abu
Zubaydah before the DOJ approved it?
Mr. Ashcroft. I do not.
Mr. Nadler. Okay. Your written testimony stated that the
December 2004 interrogation memo by Mr. Levin, which withdrew
the August 2002 memo, did not, quote, call into question any
actual interrogation practices authorized by the prior Office
of Legal Counsel opinions. You used the 65 to 85 mile an hour
example there. But Dan Levin, the final author of the 2004
memo, testified to our Subcommittee that the 2004 memo did
change interrogation practices. He said, quote, I believe it is
the case that there were certain changes in practices as a
result of the change in legal analysis, close quote. Do you
think Mr. Levin was in error?
Mr. Ashcroft. It is possible that there have been changes
in practices in a variety of times and in a variety of
intervals, both prior to and subsequent to the issuance of the
various opinions. My statement is not that there hasn't been an
ability, within the limits expressed in the opinions, for those
practices to be adjusted. I wouldn't have knowledge of that.
Mr. Nadler. No, but he said that----
Mr. Ashcroft. The point of the opinions is that what was
defined as permissible or explained as permissible in the memos
did not render impermissible things that had been determined
permissible in prior memo.
Mr. Nadler. That was what you said. But Mr. Levin said
exactly the contrary.
Mr. Ashcroft. I don't think he did.
Mr. Nadler. Let me read you the----
Mr. Ashcroft. I don't want to quibble about it. He may have
said the practices changed.
Mr. Nadler. Well, let me read you an exchange between
myself and him in an earlier hearing. Mr. Levin: ``I don't
think it is accurate that nothing changed as a result in the
change in legal analysis. What do you think was the change?
Well, I unfortunately am not authorized to discuss certain
matters, but I believe it is the case that there were certain
changes in practices as a result of the change in legal
analysis.'' Representative Nadler: ``So as a result of the
change in your memo you think there were changes in practices?
That means required changes in interrogation policies?'' Mr.
Levin: ``I believe that's the case, sir, yes.''
So you are saying in effect that you and he would disagree
on that point?
Mr. Ashcroft. My understanding is related to what he said
in the footnote of his opinion, that while they have identified
disagreements with the memorandum, we have reviewed the
office's prior opinions addressing issues involving treatment
of detainees, and do not believe that any of the conclusions
would be different.
Mr. Nadler. But he explained at the hearing that this
footnote simply, in his view--simply that in his view the
people who wrote the original opinions would not have reached
different conclusions even under a different legal analysis. He
himself was at the time drafting new, more restrictive legal
opinions to address the specific practices when he was fired by
Attorney General Gonzales.
So what he said was that memo simply said that the people
who wrote the original memo would not have believed that that
memo would have changed the analysis, but that he believed it
did. So you are disagreeing not with the memo--forget the
footnote. But are you disagreeing with his opinion and his
testimony at the hearing?
Mr. Ashcroft. He may have more information about what was
an actual practice than I do.
Mr. Nadler. Okay.
Mr. Ashcroft. But I have--the Department has on a
consistent basis reiterated its conclusion, including testimony
by General Mukasey last week, when he said but it is fair to
say that the conclusions----
Mr. Nadler. Okay.
Mr. Ashcroft [continuing]. The ultimate bottom line is the
same. And the acting head of OLC has indicated that they have
on numerous occasions revisited the various definitions of
practice by the agencies, and have found them in each
instance----
Mr. Nadler. Okay----
Mr. Ashcroft [continuing]. Consistent with the new opinion.
So there seems to be a pretty substantial consensus of people
who believe the fair, understandable reading of the footnote,
the subsequent statements and evaluations by OLC, and the
recent last week testimony by the Attorney General, that the
second opinion had adjusted the reasoning and a number of other
things, but as it relates to practices and techniques, they
remained legal under the new tests.
Mr. Conyers. The Chair recognizes the senior Member from
North Carolina, Howard Coble.
Mr. Coble. Thank you, Mr. Chairman. It is good to have you
all on the Hill. General, I was going to pursue the
waterboarding briefing that Mr. Smith mentioned, but you
advised us, and I recall, that they were classified, so I don't
think I can insert my oars into those waters at this time.
Let me ask you this, General. Waterboarding, as we all
know, is a controversial issue. Do you think it served a
beneficial purpose?
Mr. Ashcroft. The reports that I have heard, and I have no
reason to disbelieve them, indicate that they were very
valuable. I think the Director of the CIA, George Tenet,
indicated that the value of the information received from the
use of enhanced interrogation techniques, I don't know whether
he was saying waterboarding or not, but assume that he was for
a moment, the value of that information exceeded the value of
information that was received from virtually all other sources.
When the lives of Americans are at stake, and in
significant numbers, as we well know they were, on one day we
lost more people in New York--way more than we lost at Pearl
Harbor, and we lost more people in the combined New York,
Pennsylvania, and Washington area, that the people expect, and
I think the President has a duty, to do everything within the
law and within his power. I emphasize both of those phrases.
And using techniques that do not violate the law that bring us
the kind of productivity that the Director of the CIA, George
Tenet, said they brought, and I have no reason to doubt that, I
think is a duty, not just an option of a chief executive,
commander in chief.
Mr. Coble. Thank you, General.
Mr. Wittes, is it your opinion that waterboarding is
torture and why?
Mr. Wittes. Well, you know, I think--I say this in the
book, I think it is very difficult for me anyway to reconcile
it with the text of the torture statute. And for the simple
reason that it is designed, as I understand it, to induce a
perception of drowning. And I believe the torture statute, I
don't have the text in front of me, specifically identifies the
fear of--the inducing of the fear of imminent death as a
prototypical definition. So I think it is at least extremely
close. And you know, I am not a lawyer, and I am not--you know,
I wouldn't, you know, declare my views on this authoritative in
any respect. But I have a lot of trouble reconciling it with
the torture statute.
Mr. Coble. I thank you, sir.
Mr. Dellinger, do you believe that the President of the
United States could lawfully order the assassination of Osama
bin Laden?
Mr. Dellinger. Yes, I do.
Mr. Coble. Let me give you Part B.
Mr. Dellinger. It would require--let me qualify that by
saying it would probably require--it may well require the
revision of an Executive order of the President prohibiting
assassination.
Mr. Coble. Mr. Dellinger, let's assume that the Congress
enacted a statute that provided that the United States shall
never engage in an assassination. In view of those
circumstances, what would be your answer?
Mr. Dellinger. No.
Mr. Coble. An assassination could not be ordered?
Mr. Dellinger. That is correct.
Mr. Coble. Do you know whether or not during your time with
President Clinton that he ever argued that a Federal law should
not be followed by him?
Mr. Dellinger. Yes. On more than a few occasions we took
the position, which every President has taken, and which I
believe, that the President has not only the authority, but the
responsibility to decline to enforce laws that in the
President's view are unconstitutional. That should be done with
great care and with deference to the courts and what the courts
might hold. But I do believe that every President has that
authority.
And if I may add a word, Mr. Coble, because the important
qualification is I am concerned that that legitimate authority
of the President has been called into question by the assertion
of Presidential authority to decline to enforce laws that I
believe are unquestionably valid and constitutional, and that
it is the exercise of that authority with respect to, for
example, the FISA law, the torture law, where I believe that
there is not a good case that those laws were unconstitutional,
and the President nonetheless asserted the authority not to
comply with those.
Mr. Coble. Thank you, sir.
Mr. Chairman, I think this is a very fine panel that
appeared before us, and I thank you all for being here.
Mr. Issa. Would the gentleman yield? Would the gentleman
yield, Mr. Coble? Never mind, we have lost our time.
Mr. Coble. All right. I took a lot of time. Yield back.
Mr. Conyers. The Chair recognizes the Chairman of the Crime
Subcommittee, Bobby Scott of Virginia.
Mr. Scott. Thank you, Mr. Chairman.
I thank our witnesses for being with us today.
Attorney General Ashcroft, there is no question that
torture is illegal. Is that----
Mr. Ashcroft. That's correct.
Mr. Scott. Okay. Now, is there an exception to that if it
is done during a crisis?
Mr. Ashcroft. There is no exception that I know of that
allows people to violate the law.
Mr. Scott. Okay. Well, suppose you got some good
information as a direct result of torture. Would that be an
exemption to the statute?
Mr. Ashcroft. No, the outcome or product of torture doesn't
justify it.
Mr. Scott. Okay. Now, you've made a comment that we have
not been attacked since 9/11. Are we to surmise that that is a
direct result of the fact that people have been tortured and we
got good information?
Mr. Ashcroft. Well, first of all, I don't know of any acts
of torture that have been committed by individuals in
developing information. So I would not certainly make an
assumption.
I would attribute the absence of an attack, at least in
part, because there are specific attacks that have been
disrupted, to the excellent work and the dedication and
commitment of people whose lives are dedicated to defending the
country.
Mr. Scott. Well, we are here to talk about----
Mr. Ashcroft. That includes interrogators, who have used
enhanced interrogation techniques, but they haven't used
torture.
Mr. Scott. So you are not suggesting that we should forgive
torture because we got good information and we are therefore
safer. That is not your position.
Mr. Ashcroft. No, that is not my position.
Mr. Scott. Okay. It is a defense against torture that
traditional techniques were not working?
Mr. Ashcroft. Not to my knowledge.
Mr. Scott. Is it an exemption from the criminal law on
torture that a Department of Justice or an Office of Legal
Counsel lawyer wrote a memo that said what people generally
perceive to be torture is okay?
Mr. Ashcroft. I think the ultimate definition of
``torture'' will be rendered in the courts.
Mr. Scott. And if a Department of Justice or Office of
Legal Counsel writes a memo saying a technique is okay when
everybody else in the world thinks it constitutes torture,
would that be an exemption for the criminal statute?
Mr. Ashcroft. It would be a marvelous thing of unanimity if
everybody else in the world agreed.
[Laughter.]
Mr. Scott. Well, I think just about everybody agrees
waterboarding is torture. There hasn't been much controversy
about that.
No? You don't believe that waterboarding is torture?
Well, excuse me. Everybody on this side of the aisle, I
believe, believes that waterboarding is torture.
Mr. Ashcroft. Well, in all deference and respect to the
Members of this Committee, I believe that the legal definition
of ``torture'' will prevail.
One of the things about the rule of law that the Chairman
eloquently brought to our attention at the beginning of the
hearing is that people are not convicted based on polls taken
from men on the street or people in the world. People are
convicted of violations of the law based on what the statute
says----
Mr. Scott. Okay, so my question, though, is that you don't
get an exemption because of Department of Justice or an Office
of Legal Counsel lawyer wrote a memo excusing it.
Do you get an exemption if the CIA does it rather than
Department of Defense?
Mr. Ashcroft. I don't know of any exception in the law that
relates to the different parties that are involved in the
activity.
Mr. Scott. Is there an exemption of the law if we hand
someone over to another country, believing that they will
torture the person, where we might not have been able to do it
because of our statutes?
Mr. Ashcroft. I think you are taking me beyond my awareness
of the statute, at this point. And I am going to decline to try
and be exhaustive about the law.
First of all, you have amended the statute, I think,
several times since I left office. I wasn't an expert in this
arena when I was in office. So I am going to have to decline to
follow down a more and more intricate set of options, which are
obviously beyond my capacity.
If you want legal advice on this, as a Member of Congress,
you have your own legal counsel and you have the Attorney
General. I am not there anymore.
Mr. Scott. Let me ask Mr. Dellinger a question.
If the United States is generally believed to be a Nation
which inflicts torture on detainees, what impact would that
have on our troops and our national security?
Mr. Dellinger. Mr. Scott, I am not an expert on that. I
think I agree with Senator McCain. His view has been that it
would put our own troops at serious risk and greater risk if we
take the position that techniques like that are lawful, and
others who have taken that position.
May I add a word to your question to General Ashcroft?
Mr. Scott. Yes, please.
Mr. Dellinger. Which is just that I think it has to be the
case that when the Office of Legal Counsel issues an opinion
that a given activity is lawful to an officer or agent of the
Government, that criminal prosecution of such a person is ruled
out in all but the most extreme, unusual circumstances.
Mr. Scott. Well, in that case, who would be responsible and
accountable for the torture?
Mr. Dellinger. Well, I think that moral responsibility
would lie with lots of people, but that, in terms of legality,
that is the way it has to work. It means you ought to be very
careful about who is approved to head the Office of Legal
Counsel. But the office is given the delegated authority to
make law for the executive branch of the Government. I think
that is binding.
I am not necessarily happy to give you that answer, but I
think----
Mr. Scott. And some laws are so poorly written that people
really ought not----
Mr. Conyers. The time of the gentleman has expired.
The gentleman from California, Elton Gallegly.
Mr. Gallegly. Thank you very much, Mr. Chairman.
Welcome, General, Mr. Wittes and Professor Dellinger.
In your opening statement, General Ashcroft, you talked
about the success, if you will, of how we have been able to
avoid any significant attacks since 9/11, something that we
have all been concerned about. Unfortunately, sometimes people
have a tendency to, kind of, forget after a period of a year or
2 years or 3 years, although the threat is still there, even
though we have had success. Some might argue that that has just
been a matter of luck. Some might argue that it is 100 percent
a result of the actions of your office and your successors. But
I think, clearly, the Chairman asked and Bobby Scott, my good
friend from North Carolina, also asked about, is this all a
result of the Justice Department?
The one thing that we all know, that have been following
this for years, is the fact that there have been many, many
direct attacks that we are aware of that have been foiled by
our interrogation process. Many are public; many are
classified. But we do know that there have been specific
attempts to attack us and do harm to the level of the World
Trade Center and maybe even more, and they have been foiled.
You have also said, as I understand it, that, to the best
of your knowledge, during your administration you lived within
the letter of the law, as it related to your understanding of
the interrogation process. Is that correct?
Mr. Ashcroft. My understanding of what process?
Mr. Gallegly. What was legally permissible through the laws
at the time as it related to interrogation.
Mr. Ashcroft. Yeah, I think the request for guidance on
this by the Administration signals that it's an Administration
that is very eager to do everything possible, but within the
law. And there was almost an obsessive demand that we get
clarity and do what we could to define the law clearly, because
you had these parallel aspirations: One, we have to stop
terrorists; and, two, we have to do it within the law. So it
demands and requires that you get as much definition as you
can.
And, with that in mind, there was this sensitivity to
making sure we stayed within the limits of the law. But we,
within those limits, were as aggressive as possible in
defending America.
Mr. Gallegly. And in dealing with those limits, would you
say that this Nation--had we not used these interrogation
techniques that we did during the past 7 years, had we not used
those, would the probability of another attack not only been a
probability but a certainty?
Mr. Ashcroft. It could well have been. No one can say what
would have happened exactly, but I believe specific attacks
were disrupted.
Mr. Gallegly. Well, we know for a fact that many were, and
there are people in prison as a result of those.
Mr. Ashcroft. There are people in prison that were
prosecuted successfully, in this metropolitan area, but all
across America. I happen to have been Attorney General when the
excellent work of the prosecutors resulted in their detentions
and incarceration. And absent, I believe, their incarceration,
they would be out doing things that would threaten the American
people.
Mr. Gallegly. Mr. Wittes, I know that--maybe I am
paraphrasing--but we talked a little bit about plan A in
interrogation and plan B, if you will, and rapport-building,
and then enhanced, if that doesn't work.
Can you give me some thoughts about why some terrorists do
not respond to rapport-building?
Mr. Wittes. Well, look, I am not in any sense an
interrogator, and I have never engaged in, you know, a high-
stakes interrogation.
Mr. Gallegly. But you have written about it.
Mr. Wittes. But I think what we do know is that there has
been a certain amount of training to known interrogation
techniques.
We also know that, you know, if you are trying to protect
something--these are extremely motivated, very serious people,
and if you are trying to protect something, you have a lot of
incentive to resist whatever interrogation techniques are being
used. And that is true, by the way, in the criminal justice
system too. You know, that is a general truth about trying to
get information from noncooperative suspects.
And so, I mean, you know, whenever you are an in-custody
detainee who is trying to protect something that you want to
succeed from an official who is trying to prevent you from
doing it, you have a lot of incentive to use whatever resources
are at your disposal, including, in some cases, very high
intelligence and very deep-seated convictions and motivations
in order to protect those pieces of information that you are
trying to protect.
Mr. Gallegly. Thank you.
Thank you, Mr. Chairman.
Mr. Conyers. The Chairwoman of the Immigration Subcommittee
and an expert in our intellectual property issues, Zoe Lofgren
of California.
Ms. Lofgren. Thank you, Mr. Chairman. I am appreciative of
this hearing.
This is a very troubling subject. And, you know, as I think
about where we are in this country today and the various
challenges that we as a Nation have faced, certainly we should
be concerned about international terrorism. We need to be
vigilant. There are enemies of our country who wish to do us
harm. But surely that challenge isn't greater than the harm
posed to us by the Soviet Union during the entire Cold War.
Surely that challenge is not more serious than that posed by
the Nazis in World War II.
I mean, we have always been able to face off with those who
would do harm to our country while living within our
Constitution and our rule of law. And whenever we decide that
our safety is more important than our freedom, then we've lost,
we've lost it.
I think that we are coming fairly close to that spot right
now, which is why I think we need to sort through this and make
sure that our system of government is preserved as we continue
to preserve the safety of this Nation. I think that's the
seriousness of what we are doing here today.
So I just have a couple of questions.
Mr. Ashcroft, I appreciate your willingness to be here and
the light that you are shedding on these important issues.
On the withdrawal of the interrogation memos, both the
August 1, 2002, memo and the March 14, 2003, memo on
interrogations were withdrawn by the Department of Justice
while you were the Attorney General. In accordance with your
testimony, Jack Goldsmith wrote that you were fully supportive
of his judgment that these memos needed to be withdrawn and
corrected.
Can you describe your decision to support Mr. Goldsmith on
this?
Mr. Ashcroft. You know, when I said I approved the issuance
of the memos, I relied on the experts in the Department.
And let me just say for a moment that John Yoo is a noted
expert in national security, and he is a person of incredible
intelligence and is an outstanding person who wants to serve
America and, I thought, served America in good faith. And we
accepted the judgment of the Department reviews and all.
But it became apparent, when further examination of those
opinions was made by others in another time frame and at a
subsequent time, that there were matters of concern that they
brought to my attention. And it was not a hard decision for me.
My philosophy is that if we have done something that we can
improve, you know, why would we not want to improve it? Why
would we not want to adjust it?
And let me just say this, that when it was brought to me
that there were matters of concern that related to the
appropriateness of the analysis and, secondly, that related to
the scope of the opinion itself, my own--and I am, kind of,
conjecturing here a little bit--my way of looking at it would
be just to make sure this wasn't one attorney picking at
another attorney. As you well know, attorneys can pick at each
other pretty----
Ms. Lofgren. We have seen that.
Mr. Ashcroft. We've restrained ourselves so far here.
But once I satisfied myself that these were concerns that
were not just isolated and were not part of one-upsmanship by
attorneys, I said, ``Any time this Department has the ability
to improve what it is doing, by way of giving advice or counsel
to the executive branch, we owe it to the President, we owe it
to America, we owe it to ourselves to make sure we do the best
job possible.''
With that in mind, it wasn't a hard decision for me when
they came to me and I came to the conclusion that these were
genuine concerns: Get about the business of correcting it.
Ms. Lofgren. Let me just mention, I certainly don't
question Mr. Yoo's patriotism or his love of country. I do
question his legal analysis. I mean, there seems to be, you
know, the Constitution and the Constitution as Mr. Yoo thinks
it should be, and the two are remarkably different.
But I want to get to the FBI's role on this. As you know,
the DOJ Inspector General recently released a report. And, to
summarize, I mean, the FBI was very concerned about what was
going on at Gitmo and, in fact, would not participate.
And I am wondering, I mean, these are people who know
interrogation, and whether their lack of participation because
of their concern has really led to a situation where we are
less safe because we are missing their expertise.
Mr. Ashcroft. First of all, I don't think that is the case.
Ms. Lofgren. You mean the Inspector General is wrong?
Mr. Ashcroft. No. No. I think that it's fair to say that
the report can be--I have no reason to quarrel with the report.
Different cultures and different bureaucracies of the
American Government handle things in different ways. And I
think it has already been alluded to on the panel that
everybody seems to think his way is the best way.
I think the Congress of the United States, for example, has
been reluctant to extend to the CIA the ability to operate
domestically, because we know that they operate worldwide and
they are accustomed to a different set of rules. Sort of, when
in Rome, do as the Romans do. I don't mean to say anything
about the Italians, but just that they operate in a variety of
forums.
Now, the point that I would make, the FBI has a tradition
and culture of being involved in Article 3 court proceedings,
where what it does is done in a way that is consistent with
what is expected for use in prosecutions and the like. So their
approach to interrogations reflects that culture. But----
Ms. Lofgren. If I may--my time is running out. I don't mean
to be rude and interrupt. But that really gets to the gist of
it, whether this process has led to a situation where we are
not going to be able to convict these people because of the
prosecution----
Mr. Ashcroft. Well, you know, very frankly, people that we
intercept on the battlefield are not people frequently that we
expect to convict. They were out there fighting. What we want
to interrogate them for is not so we can try them someday. We
expect to detain them for the pendency of the battle and then
to release them when the war is over.
The value of the interrogation is to provide the basis for
prevention, and especially in the modern world, where lethality
of weaponry is so robust, so that if you wait and try to
penalize someone after an event, you have really taken a super
risk, especially when al-Qaeda has an express desire to gain
nuclear and chemical and other weapons.
So the CIA may tend more toward a culture which is
prevention-oriented. One of the things we hoped to do at the
FBI was to bring prevention to the top of our list of
priorities. That is what I hoped to do. Not that we would
abandon our commitment to the Article 3 processes, but our
exclusive effort at intelligence is not designed to bring
evidence to Article 3 courts; it is designed to prevent damage
to the country.
Mr. Conyers. Bob Goodlatte, the Ranking Member of
Agriculture, distinguished Member of Judiciary.
Mr. Goodlatte. Well, thank you, Mr. Chairman.
And I want to thank all of our witnesses for their
contributions here today.
I would like to follow up on the questions of my
colleagues, Mr. Scott of Virginia and Ms. Lofgren of
California, Attorney General Ashcroft.
Congressman Scott asked and you affirmed that torture is
illegal and it is a violation of the law under all
circumstances. Then he started moving in the direction of what
constitutes torture, citing his specific example,
waterboarding. And I think therein lies the crux of the problem
that we have to look at here today.
And that is, if you attempt to define that, the McCain
amendment refers you to the Constitution. So if you look at the
Constitution to determine what constitutes torture, you are
then looking at court decisions interpreting various
circumstances under which torture has been alleged throughout
our judicial history. And what you find is that the courts have
a general standard that torture constitutes what shocks the
conscience.
Now, I can see and I think many can see that what shocks
the conscience under one circumstance, taking somebody off the
street under some minor charge and conducting certain
activities, might be very different than under circumstances
where somebody is a known terrorist, known to have been
involved in a particular activity and may have extraordinarily
valuable information and information that, under the
circumstances following 9/11, we might have felt a need to
gather very promptly.
So I would like to ask you to comment on that. And then I
am going to ask Mr. Dellinger a follow-up question about that,
as well.
Mr. Ashcroft. Well, the question you have asked,
Congressman Goodlatte, is one that relates to the amendments in
the torture framework of statutory prohibition that you have
enacted since I have left office. And it does, I think, make
reference to the kinds of language that appear under the--I
believe it's the eighth amendment that prevents cruel and----
Mr. Goodlatte. Unusual punishment.
Mr. Ashcroft.--unusual punishment. And so there is a
different body of law and there is a different body of analysis
and reasoning that is now available. And I think that makes our
understanding a little bit clearer.
And, as Mr. Wittes has indicated, we need clearer
definitions here. One of the problems that we had at the
Department of Justice was that the severe pain standard for
torture was just not very clear; it was hard to define.
Mr. Goodlatte. Well, in light of that, let me ask you this
question, in following up on what Ms. Lofgren asked. And that
is, looking back now, to the best of your knowledge, under the
circumstances at the time and the information available to you,
do you believe that any memo that your Department provided the
President on interrogation techniques contained legal advice
that was inaccurate?
Mr. Ashcroft. The conclusions of all the memos were, I
believe, accurate conclusions. There was some of the reasoning
which is of arguable appropriateness, and we thought that we
would be best served and the Nation would be best served if
that was withdrawn.
But the Attorney General himself, as short a time ago as
last week, I believe, and the Office of Legal Counsel several
times in the last 5 years, according to its leader, Mr.
Bradbury, has indicated that they have gone back over and,
applying the reasoning and analysis of the second memo, have
indicated that all of the conclusions reached in the first memo
relating to enhanced interrogation would be acceptable under
the second memo.
Mr. Goodlatte. Thank you.
Now, let me ask Mr. Dellinger whether or not it's easy to
define ``torture.''
Mr. Dellinger. No, except that I think the definitions
reached and the--it may not be easy to affirmatively define
what is not torture. But, certainly, the techniques approved in
the 2003 memo would seem, to me, clearly to be within the
category of torture. That is----
Mr. Goodlatte. Can you give us a framework of that? Can you
state what you think torture would be that would allow those
things to, as you say, clearly fit into that framework?
Mr. Dellinger. That is beyond my, sort of, competency to do
here, to affirmatively define it. Someone once said it's easier
to identify instances of injustice than it is to define
justice, and so it is here. But----
Mr. Goodlatte. Do you agree with the line of thought that
is included in the Supreme Court cases that uses a standard
that ``shocks the conscience'' as being a measure of what
constitutes torture?
Mr. Dellinger. No, because I think the standards are
different from that.
And let me give you one particular example. The 2002
memorandum says that something is not torture if it is not
specifically intended to inflict pain; that is, if it's
intended to gain information. And that would simply exclude
virtually any technique that you're using to gain information
from the definition of ``torture.''
And it also uses the definition of ``severe pain'' that is
taken from a completely different context to indicate that it
has to be something equivalent to that associated with organ
failure or death. And I don't think that anybody in the world
has ever thought that the definition of ``torture,'' as enacted
by this Congress as a prohibition, was so narrowly defined as
it is in that memorandum
Mr. Goodlatte. I think my time has expired, Mr. Chairman.
I would just add that, in other words, you are saying that
that line of reasoning from the courts, that a definition of
``torture'' as something that shocks the conscious and,
therefore, might be different under different circumstances,
you do not agree with that being at least a part of how you
would define ``torture''?
Mr. Dellinger. It may well be a part. I don't think it is
particularly helpful. And I certainly don't think that the
techniques approved by the 2003 memo are outside the definition
of ``torture.''
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Conyers. The gentlelady from California, Maxine Waters,
Chair of the Housing Subcommittee on Finance and distinguished
Member of Judiciary.
Ms. Waters. Thank you very much, Mr. Chairman. I certainly
appreciate you holding this hearing today.
And I want to get back to a subject that has been in the
papers consistently, and they may have already been touched
upon or discussed here this morning. I was a little bit late
coming in. And if so, our witnesses can just refer to their
earlier testimony.
I want to ask about, were there ever allegations of torture
or other misconduct by U.S. personnel involved in
interrogations that you, Mr. Ashcroft, considered to rise to
the level as to justify a criminal investigation?
I understand there has been some discussion, but I am not
clear whether or not you feel that there was information that
emerged in these interrogations that really did rise to that
level of a criminal investigation.
Mr. Ashcroft. I'm not aware of any interrogation process
that resulted in a request or in a situation that would have
given rise to a basis for prosecution for torture.
Ms. Waters. Where you ever aware that U.S. personnel were
indeed involved with waterboarding?
Mr. Ashcroft. I have been aware of that.
Ms. Waters. How did you become aware of this?
Mr. Ashcroft. I'm not sure. I know that I have become aware
of it as a result of this discussion in areas before this
Committee and the like. But I'm not sure at what other points.
And if I had received information, it probably would have been
in classified settings that I couldn't discuss.
Ms. Waters. So you believe that the information that you
received about waterboarding was not in a setting--but where
you were being advised, you were being told that, based on news
reports, other reports, that some very serious was going on and
described to you in detail, perhaps?
Mr. Ashcroft. I believe that a report of waterboarding
would be serious, but I do not believe it would define torture.
The Department of Justice has consistently--when I say the word
``waterboarding,'' I mean waterboarding as defined and
described by the CIA in its descriptions. And the Department of
Justice has, on a consistent basis over the last half-dozen
years or so, over and over again in its evaluations, come to
the conclusion that, under the law in existence during my time
as Attorney General, waterboarding did not constitute torture,
if you say waterboarding as the CIA interrogation methods were
described.
So I could receive information about waterboarding. That's
clear that that was a possibility. But if I received
information about waterboarding being conducted as the CIA had
described it, the experts at the Department, who very carefully
went over this material uniformly over the last half-dozen
years, under the law in effect at that time, indicated to me
that it was not a violation of the law.
I am trying to be clear.
Ms. Waters. I understand what you are saying. And I suppose
that I would like to explore just a moment whether or not,
given those analyses, those explanations, those descriptions
and what you have since learned about it, do you think that
that advice was good advice, it was an accurate description of
what was going on? Have you had second thoughts about it?
Mr. Ashcroft. Well, let me just say this, that I believe
that the conclusions of the memoranda, that concluded that as
described by the CIA's interrogation methods that waterboarding
did not constitute torture, I think those are valid
conclusions.
I don't think I could, under oath, say that I've never had
a second thought about it. But when the Department has
revisited over and over again, as it has testified according to
the head of OLC, Mr. Bradbury, they have concluded on each
occasion that it did not violate the laws enacted by the
Congress, signed by the President, that prohibited torture.
Ms. Waters. Finally, if I just may ask, based on all of
that information, those descriptions, your understanding, and
the conclusions, if, in fact, these practices as they were
identified in the reports were applied to American soldiers, do
you think that that conclusion would be a good one? Or do you
think that if these techniques were used on American soldiers,
that they would be totally unacceptable and even criminal?
Mr. Ashcroft. Well, my subscription to these memos and my
belief that the law provides the basis for these memos
persisted even in the presence of my son serving two tours of
duty overseas in the Gulf area as a member of our Armed Forces.
I know that his training included a number of activities that I
think would be very, very difficult for any of us to sustain,
including having to deal with evil chemistry and the like.
But my job as Attorney General was to try and elicit from
the experts and the best people in the Department definitions
that comported with the statutes enacted by the Congress and
the Constitution of the United States. And those statutes have
consistently been interpreted so as to say, by the definitions,
that waterboarding as described in the CIA's request is not
torture.
Mr. Conyers. The gentleman from Ohio, the distinguished
gentleman from Ohio, Steve Chabot.
Mr. Chabot. I thank the Chairman for yielding.
And welcome, General Ashcroft. Just a couple of questions.
First of all, waterboarding has come up a couple of times
this morning already. And we hear about it so much in the press
and others; it's as if this is a fairly routine thing that is
done all the time. How many times has it actually occurred, to
our knowledge, at this point?
Mr. Ashcroft. I don't really have knowledge other than what
I read in the newspapers, but my understanding is that it has
been done three times.
Mr. Chabot. Three times.
Mr. Ashcroft. Excuse me, as part of an interrogation
process. There are other times people have done it as part of
training our own military and to be resistant to and to
understand what kind of techniques might be used on them.
Mr. Chabot. But in an actual interrogation environment, the
three individuals you mentioned, what type of people were
these?
Mr. Ashcroft. Well, I think they were people that would be
labeled as high-value detainees, people that we think might
have significant information that could relate to the safety
and security of the United States.
I think also it's fair to say that generally in people who
have that kind of information, members of al-Qaeda, they have
been trained in resisting interrogation and they have been
hardened both in their own--as I recall from reading their
training manual, which I had a copy of, or translations of it,
they are hardened in resisting interrogation and, of course, in
accusing--whether or not their detainers do anything to them or
not, always alleging abuse.
Mr. Chabot. Thank you.
And, secondly, the term ``cruel and unusual punishment''
has come up a couple of times. Do you know in advance what the
Supreme Court is going to say or is likely to say in what is
cruel and unusual punishment?
An example that has come up recently is there are a number
of States that believe that a child rapist who has committed an
unspeakable crime should be subject to the highest penalty,
which is the death penalty. A number of States have taken that
posture. But the Supreme Court recently, on a 5-4 vote, decided
no, that it is cruel and unusual punishment to execute somebody
who has raped a child under the age of 12. For that reason, a
number of us, because it is the only thing available to us,
have introduced a constitutional amendment to reverse the court
on that particular issue.
But do you know in advance what the court is likely to say?
And if not, what is your procedure that you undergo to make
sure that you're as closely as possible following the law as
defined by the U.S. Supreme Court?
Mr. Ashcroft. That may seem like a simple question, but
it's not a simple question.
When you're trying to figure out what the law is, in a
rule-of-law culture you should be able to go and find out what
the courts have said in the past that that is what the law is.
And that is why we were very successful. In the major terrorism
cases, of the 12 judges at the Court of Appeals level, where
they repair to the standard of what finding out what has been
said previously on the law, 11 out of 12 judges said, the
Justice Department has got this right.
But you get to the Supreme Court, and the way our system is
is that the Supreme Court is the court that, while it respects
precedent, or at least it likes to allege that it does, it is
free to abandon it if it so chooses.
Now, it makes difficult, then--guessing where the Supreme
Court might go is a lot harder than ascertaining where the
Supreme Court has been. And this puts some tension into the
law.
It's the way our system operates, and it puts some
uncertainty into it. It's one of the things that gives lawyers
the space in which to argue. As you well know, what it does is
it provide for the employment of lots of lawyers, because when
things are uncertain, you have to have more and more advice.
Unfortunately, when it's uncertain, it shrinks freedom.
Mr. Chabot. General, not to interrupt you, but I am almost
out of time. I had one more question I wanted to slip in.
I had the opportunity to visit Guantanamo Bay on two
separate occasions, the second time actually accompany the
gentleman from New York, Mr. Nadler, and some of our
colleagues, and Mr. Gohmert, Judge Gohmert also, and a few
others. And I happened to be, for 6 years, the Chairman of the
Subcommittee on the Constitution, which Mr. Nadler is now, and
so we wanted to see firsthand.
We witnessed an interrogation that was going on. We were in
another room over a closed-circuit TV. We also saw the type of
medical care they were receiving. We learned that they gained
about 15 pounds per person, were getting better medical care
than they ever had, that there was an arrow pointing to Mecca,
and all the other types of things that were going on at that
time.
Relative to the interrogation that we viewed--and, of
course, you weren't with us--but is that typically what an
interrogation is? It was a person essentially talking to
another person in another Chair.
Could you comment on the interrogations that were taking
place there?
Mr. Ashcroft. I suppose that's the most frequent kind of
interrogation.
But I think one of the problems is to assume that there is
a best way to interrogate. I mean, we are all different kinds
of people. We all have different training. We all have
different kind of heritage. For this Congress to say, ``This is
the only way we are going to interrogate; we are going to have
a warm and fuzzy approach to everybody,'' I think it would be
to jeopardize the Nation's security.
I think what we need to do--yes, I'm in favor of rules that
can provide the right parameters to what we do, but I think we
need to have variety, because we are unrealistic if we don't
anticipate a variety of people that we'll be up against.
And if I just had a second, someone raised the issue of,
well, we made it through the Second World War with one set of
rules, and we made it through the Cold War with another set of
rules; shouldn't we just lock in on all those things and
pretend the world is the same? It's not.
I offer to you that in the Second World War we didn't have
people dying on the streets of America. We had 3,000 that died
in American streets on the first day of the war on terror that
came to the United States--far more than we had in even in what
was then a territory, not a State.
So the lethality and the nature of weaponry and the fact
that small groups of individuals can pose threats to the entire
Nation, which wasn't true before, shouldn't lead us to narrow
unduly our ability to defend America.
Mr. Chabot. Thank you.
Yield back.
Mr. Conyers. The distinguished gentleman from Florida,
Attorney Bob Wexler.
Mr. Wexler. Thank you very much, Mr. Chairman.
I first want to thank you, Chairman Conyers, for
aggressively pursuing the issue of torture and the potentially
abusive interrogation practices and detainee abuse practiced by
this Administration.
Simply put, in my view, torture is antithetical to who we
are as Americans. And how we respond to allegations of the
illegal use of torture defines the character of our Nation.
I also, Mr. Ashcroft, Mr. Attorney General, want to commend
you for your willingness to appear before this Committee. I
think it says a lot about you in a positive way.
I want to follow, Mr. Attorney General, Mr. Nadler's
question to you, if I could. If I understand it correctly, Mr.
Nadler asked, are you aware whether Abu Zubaydah was
waterboarded before August 2002, and you answered you didn't
know.
In your testimony, you had indicated that Mr. Zubaydah was
captured in March 2002. The Department of Justice Inspector
General report on the FBI's role in the interrogation makes
clear that he was interrogated beginning in March of that year.
So the question I would like to offer you, was the
interrogation of Mr. Zubaydah before August 2002, from March
until August, done with or without the Department of Justice's
legal approval?
Mr. Ashcroft. I don't know. I don't know if we--it was done
without the opinion, which was issued on the 1st of August. And
I don't know what other kinds of activity there would have
been.
Mr. Wexler. So from March to August, did you offer any
legal approval of the interrogation methods used at that time?
Mr. Ashcroft. I don't have any recollection of doing so.
Mr. Wexler. And did anyone else at the Department of
Justice?
Mr. Ashcroft. I don't know. I don't know.
Mr. Wexler. Did you provide anybody at the White House or
the CIA or the Defense Department, prior to August in 2002,
with any instructions or advice regarding waterboarding,
hypothermia, or any enhanced interrogation techniques? Did you
tell anybody at the White House, the Defense Department or the
CIA that those actions do not violate the Anti-Torture Act or
any other Federal criminal law?
Mr. Ashcroft. If I had a recollection about that, it would
be classified communication and outside the guidelines of what
I could answer.
Mr. Wexler. Did any other attorney, to your knowledge, at
the Justice Department provide advice to those people prior to
August 2002?
Mr. Ashcroft. I think my answer should be the same as it
was before.
Mr. Wexler. Okay. Let's move on.
News reports described detailed meetings in the White House
Situation Room at which interrogation methods were discussed
and, in some cases, apparently demonstrated.
It is reported that you attended those meetings. Is that
accurate?
Mr. Ashcroft. Let me just say that I attended a lot of
meetings in the Situation Room. I don't know if I attended
those meetings, but I attended a lot of meetings there. They
were all classified, and I will not comment on the meetings.
Mr. Wexler. Well, two different accounts place you at the
meetings. ABC News reports they have a quote from you saying,
quote, ``History will not judge this kindly.'' And journalist
Jane Mayer quotes you as saying, quote, ``History will not
treat us kindly.''
Did you make those statements about history and the
judgment of history?
Mr. Ashcroft. Any statement I did or did not make or would
or would not make in a classified setting I would not comment
on.
I am appalled that so much seems to be available from
classified settings. This town leaks like a sieve. I think the
easiest job in the world would be to be a spy against America.
Mr. Wexler. Well, yeah, I am appalled too. But from what we
know, it was only yourself, Secretary Rice, the Secretary of
Defense, the head of the FBI, the CIA that were in the rooms.
That's all, reportedly, and possibly the Vice President. So
it's not just ancillary people.
Can you tell us who was in those meetings? Was the
President in the meeting? Just a yes or no?
Mr. Ashcroft. I will not tell you who was in the meetings.
I will not comment on meetings that are classified. I think it
would be for me to break the law to do so. And I really want to
cooperate with the Committee, but I don't want to break the law
in doing so, and I don't want to be invited to break the law
before the Committee.
Mr. Wexler. I'm not asking you to break the law.
Mr. Ashcroft. I've been making this statement on a regular
basis. I just want you to know that the consistency of my
answer is not my attempt to be obdurate or less than
cooperative, but it is my persistence in wanting to respect the
law.
Mr. Wexler. Sure. Apparently, Mr. Attorney General, you
were specifically uncomfortable with what the principals at
that meeting were doing or were being asked to do, to your
credit.
Mr. Ashcroft. Do you think I would want to break the law if
I thought it was to my credit?
[Laughter.]
Mr. Wexler. No.
Mr. Ashcroft. Well, then I'm not going to answer. I mean,
with all due respect, Congressman----
Mr. Conyers. The time of the gentleman has expired.
Mr. Wexler. Thank you.
Mr. Conyers. The only ex-attorney general we have in the
Congress is Dan Lungren. I am pleased to present him to you at
this time.
Mr. Lungren. Actually, Congressman Udall would be very
upset for you to say that.
But that brings up a point. I would just like to say that
the enhanced stature with which you are now observed by Members
of both sides of the aisle, I think, reflects on the fact that
you performed well as Attorney General.
And just a comment. I happen to think it is a good idea to
have someone as Attorney General who is both a distinguished
attorney and has submitted himself to the voters for different
positions. I think that gives you a view of the Constitution
that is, in some ways, enriched and, in some ways, helps guide
you in your performance. And I want to thank you for your
service.
Mr. Ashcroft. Thank you.
Mr. Lungren. Mr. Dellinger, I would like to ask you a
question. You set up a scenario by which you think we ought to
operate. That is, in certain circumstances, dire circumstances,
the President ought to break the law by directing people to do
something that would save American lives.
If that had been the case in World War II, should President
Truman have submitted himself to the law after he ordered the
dropping of the atomic bomb on two occasions?
Mr. Dellinger. I don't know that that was unlawful, in
violation of any statute.
Mr. Lungren. Even though it ended up with the loss of a
tremendous number of lives of that were innocent men, women and
children who were not at that time in any way described as
belligerents or combatants?
Mr. Dellinger. I think that may well have been within the
scope of his authority.
Mr. Lungren. I was reading ``Crusade in Europe'' by
Eisenhower. And President Eisenhower mentioned that we had a
circumstance in which we had some of our ships in the
Mediterranean loaded with mustard gas, which we were forced to
carry with us because of the uncertainty of German intentions
in the use of the weapon. There was damage to this ship.
Luckily, the wind was offshore, and the escaping gases caused
no casualties.
He said, ``Had the wind been in the opposite direction,
great disaster could well have resulted. It would have been
indeed difficult to explain even though we manufactured and
carried this material only for reprisal purposes in case of
surprise action on the part of the enemy.'' And the fact is,
during the war against Germany, we had things such as mustard
gas, which, as I understand, were illegal under the conventions
after World War I. We carried it because we used it as a
deterrent to the Germans.
Had we used it in those circumstances under the direction
of President Roosevelt--what I am trying to say is, is it
practical to assume under those circumstances a President would
order that action and then immediately turn himself over to the
authorities?
Mr. Dellinger. No, because there are circumstances in which
the President can constitutionally decline to comply with an
act of Congress where it would impinge upon the core of his
responsibility.
Mr. Lungren. So the core of the responsibility of Franklin
Delano Roosevelt in that circumstance was to protect this
Nation against our enemy, Germany, correct?
Mr. Dellinger. Yes, but----
Mr. Lungren. And the core of the President of the United
States at the present time, as least reflected in these
actions, is to attempt to protect us against the terrorist
threat that we have at the present time, correct?
Mr. Dellinger. That is correct. But----
Mr. Lungren. Okay. I am not trying to catch you in
something. I am just trying to follow through with your
recommendation. And what I am trying to suggestions these are
not easy questions with easy answers. You have said that.
And your prescription is to the President to direct those
actions, not allowing criminal liability with respect to those
who carry it out, but the President subjecting himself to that,
because you said other people make greater sacrifices.
That is in contrast to what Alan Dershowitz has suggested
when he said, in an article in the Wall Street Journal, ``This
brings us to waterboarding. Michael Mukasey is absolutely
correct as a matter of constitutional law that the issue of
waterboarding cannot be decided in the abstract. Under the
prevailing precedence, the court must examine the nature of the
governmental interest at stake and the degree to which the
Government actions at issue shock the conscience and then
decide on a case-by-case basis. In several cases involving
actions at least as severe as waterboarding, courts have found
no violations of due process.''
I take it you would disagree with that.
Mr. Dellinger. I disagree with the proposition that we
ought to engraft an exception for torture in certain
circumstances into the law. And in the most extreme
hypothetical, of someone who had information about a weapon in
the middle of Manhattan, I thought the President should violate
the law and take whatever consequences exist.
Mr. Lungren. Okay. Let me ask you then very specifically,
not dealing with thousands, but we have been told that, of the
three people that have been waterboarded, one was Khalid Sheikh
Mohammad, and that he, after being waterboarded for some period
of time, gave us information.
One of the things he admitted to was personally murdering
Wall Street Journal reporter Daniel Pearl. He said, ``I
decapitated with the blessed right hand the head of the
American Jew Daniel Pearl in the city of Karachi, Pakistan.''
So let me ask you this. Both morally and legally, if we
knew beforehand that we could find out the location of Daniel
Pearl by waterboarding Khalid Sheikh Mohammad, if we had been
able to capture him and thus stop Daniel Pearl from being
beheaded, would that that be morally justifiable and would that
be legal under the law?
Mr. Dellinger. Morally justifiable, probably yes.
But it seems to me that--one of the things we are in
serious danger of missing as a point here when we struggle to
define what would be the morally correct thing to do about
torture is that the 2002 and 2003 memoranda which say whatever
the Congress of the United States decided ought to be the law,
the President can simply disregard. It is a breathtaking claim
that the President can simply disregard whatever conclusion the
Congress reached, enacted into law. And, moreover, the
President could decide to keep that secret from the Congress
and the American people. I don't want us to lose sight of that.
Mr. Lungren. In this case, if he had ordered that and we
had saved Daniel Pearl, but then he revealed that to the
American people, would that have been justifiable and legal?
Mr. Dellinger. There is much to be said for transparency
because of the toxic combination of an assertion that anything
the President could do when Congress has enacted, which I think
is a broad range of authority, he can also do after Congress
has chosen to make it a crime. And then the fact that we don't
know what laws the President is not complying with renders this
Congress as if your laws are notes that you are putting in a
bottle, never knowing whether anybody is going to find them or
pay attention to them or not. And that is an issue that cuts
across all of these areas of discussion.
Mr. Lungren. Thank you very much.
Mr. Conyers. The distinguished gentleman from
Massachusetts, Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman.
Mr. Dellinger, I think you just hit the gravamen of this
whole discussion, which is that this is as much about the
constitutional order and the relationship between the branches
as it is about the specific issue of torture. And it is a
question of whether this Congress will stand and accept the
burden and the responsibility of, in a transparent fashion,
enumerating what is acceptable under our law and what is
unacceptable. I think that you made a significant contribution
by responding to the question of the gentleman from California.
I would also--I find interesting, not the hypothetical, but
the constant reference to Khalid Sheikh Mohammad and the
premise that the information that has been generated from him
was, as a proximate cause, a result of waterboarding, because
my information contradicts that. It's when the rapport effort
was undertaken that information came from Khalid Sheikh
Mohammad, and that he was resistant during the course of the
efforts to secure information from him as a result of
waterboarding.
So I think it's important to put that on the record so that
we understand that waterboarding, from my information, was not
effective in that case.
So I just wanted to respond to my dear friend, the former
attorney general of California.
Mr. Lungren. I thank the former district attorney.
Mr. Delahunt. I wasn't in the room, but I understand that
you stated that you believe that officials relying on the legal
opinion issued by OLC should not or could not be subject to
criminal prosecution if, at a later point in time, there was a
decision by the relevant court that there was a criminal
violation of American domestic law.
Is that accurate?
Mr. Dellinger. Yes. And the only exception to that, in my
view, would be where the legal opinion was a sham not issued in
good faith, and the action officer knew that the opinion was a
sham not offered in good faith.
Mr. Wittes. I agree with that, I mean, not that you asked
me----
Mr. Delahunt. We have such limited time. I would like to
ask everybody.
What I find very interesting here is, in your written
testimony, sir, you reference the fact that Jack Goldsmith was
extremely critical of the so-called torture memoranda prior to
his assuming the lead in the OLC. You quote him as saying, it
was deeply flawed, sloppily reasoned, overbroad, and incautious
in asserting extraordinary constitutional authorities on behalf
of the President.
To me, that is very damning. And I don't know if I share
your perspective in terms of exposing people who could very
well be acting in good faith in reliance on these memoranda to
criminal prosecution, but I would say it could very well be an
open question.
Mr. Dellinger. If I might just say, the fact that I believe
an OLC opinion would offer protection to officers who relied
upon it is why it is so terribly important to get the OLC
opinions right and to----
Mr. Delahunt. One could hypothecate that any OLC opinion,
no matter how deeply flawed, would give cover. I am not even
talking about torture. I am talking about, you know, any
conduct that amounted to criminal violations. If reliance could
be demonstrated on an OLC opinion, you get a free pass, you
know, a get-out-of-jail card, so to speak.
Mr. Dellinger. It also works the other way. This formerly
obscure office, which I headed for a while, also cannot be
overruled in a real sense by superior officers when they say
that an action is unlawful. If I offered an opinion that it
would be unlawful to do X and the Deputy Attorney General or
the Attorney General, the President, overruled me and then did
that, they would have no protection. If they ordered the legal
opinion reversed and then relied upon it, there would be no
reliance because they would know that the real legal opinion
was you can't do that.
So the OLC's authority is, in that sense, binding and very
important both ways, which is why so many of us were so
distressed by the extraordinarily shoddy quality of the 2002-
2003 memoranda and their deeply flawed view of almost a
Presidential authority beyond anything we know in the rule of
law.
Mr. Delahunt. I appreciate your embarrassment, but I also
now find a Nation that's embarrassed by that opinion.
And I understand that my time has run out despite the fact
I would love to ask some other questions, but I thank the
Chair.
Mr. Conyers. The distinguished gentleman from Florida, Ric
Keller.
Mr. Keller. Thank you very much, Mr. Chairman.
And, Mr. Dellinger, let me thank you for being here; and I
respect your service and your opinions.
Let me tell you the gist of what I am concerned about from
your testimony; and I want to be fair to you, give you the
chance to explain. It seems to me that the gist of your
testimony is that it was okay for the Clinton Justice
Department to authorize the killing of bin Laden, but it is not
okay for the Bush administration to aggressively question
terrorists who want to kill us, and that seems just a bit
inconsistent to me.
Go ahead.
Mr. Dellinger. I can answer that precisely.
Mr. Keller. Okay.
Mr. Dellinger. The reason is quite simple. It was not
against--it would not have been against the law of the United
States to assassinate bin Laden. It was against the law of the
United States to engage in torture. Those are decisions that
had been made by Congress.
Mr. Keller. Isn't killing the ultimate torture? I mean, my
God, what worse torture is there than killing somebody?
Mr. Dellinger. We kill enemy combatants all the time. That
is very different than subjecting them to cruelty. And I happen
to have a personal belief that the executive order forbidding
assassinations, whenever it went into effect, is probably a
mistake. But your question goes right to the heart of the
matter.
Mr. Keller. Well, let me just say to you--because we have a
Supreme Court, and they just ruled that the death penalty was
too cruel and unusual punishment for someone who raped an 8-
year-old girl. And so if the death penalty is too cruel of an
unusual punishment, how the hell is it okay to kill someone but
not okay to aggressively question them?
Mr. Dellinger. Well, Osama bin Laden is not a United States
citizen and not being detained in the United States under the
custody of the United States; therefore, has no constitutional
rights.
Mr. Keller. Right. So you agree with me that the Clinton
Justice Department specifically authorized the killing of Osama
bin Laden.
Mr. Dellinger. I am not privy to that, nor could I address
it if I did. But I will answer the part of your question, which
is, had we done so, I would have defended it.
Mr. Keller. I am privy to that and how I was, you know, in
school during that Administration. Because I am looking at page
132 of the 9/11 Commission report, and I will let you be privy
to it now.
Quote, the new memorandum would allow the killing of bin
Laden. The Administration's position was that, under the law of
armed conflict, killing a person who posed an imminent threat
to the United States would be an act of self-defense, not
assassination. On Christmas Eve, 1998, Berger sent a final
draft to President Clinton with an explanatory memo. The
President approved the document.
``Because the White House considered this operation highly
sensitive, only a tiny number of people knew about this
memorandum of notification. A message from Tenet to CIA field
agents directed them to communicate to the tribals the
instructions authorized by the President of the United States
that preferred that bin Laden and his lieutenants be captured,
but if a successful capture operation was not feasible, the
tribals were permitted to kill them.''
Now you see the contradiction? You have testified with
respect to questioning from my colleague from California, Mr.
Lungren, that even with Khalid Sheikh Mohammad that is not an
exceptional extraordinary circumstance that should allow us
under the law to question him aggressively. Right?
Mr. Dellinger. The question----
Mr. Keller. He is not a U.S. citizen. That was your concern
before. He is not a U.S. citizen.
Mr. Dellinger. The question you are asking I think is a
question directed to the Congress of the United States; and if
there is a contradiction between our legal authority to
assassinate persons who are foreign leaders and the prohibition
on torture, that is to be resolved by Congress.
My concern is that the claim in this--the fundamental flaw
in these memoranda is they take the term ``inherent authority
of the President''--that is, what a President could do in the
absence of any prohibition by Congress, which I think is a
broad area in the area of national defense, and then will say,
once Congress has enacted a criminal prohibition, the President
can still do it because it is, quote, within his, quote,
inherent authority. That I think fundamentally disregards the
central role of Congress in establishing what the law is.
Mr. Keller. All right. My time has expired.
Let me just one question to Mr. Wittes. Would you agree
with me that Khalid Sheikh Mohammed is a ticking time bomb and
that to protect our citizens from further attack failing to get
all the information available from him is simply not
acceptable?
Mr. Wittes. I say in the book that I don't like the ticking
time bomb example, because I think it is something of a--it is
something of a fiction. You know, Khalid Sheikh Mohammed in
some ways is less than a ticking time bomb and in a very
critical respect is more than the prototypical ticking time
bomb. Less in the sense that, as best as I know at the time of
his capture, we didn't know of a bomb ticking. So, you know, it
is not the situation where, you know, you capture somebody and
you know there is a bomb planted in Manhattan and it is going
to go off and you have got 3 hours and you can hear it in your
mind going tick, tick, tick.
On the other hand, you do, knowing who he is, knowing that
he is, you know, to the extent that there are ongoing
operations he is probably directing them, he is in some sense
all the ticking time bombs. And I do think that it is, as a
practical matter, sort of unacceptable as an option to not do
what you are going to do to find out what he knows.
And that is a different question from the question of what
techniques are the optimal way to do that or the morally
acceptable way to do that.
Mr. Keller. Well, look, I thank you both for being here.
And I am sorry, Mr. Attorney General, that my time has expired,
and I didn't get a chance to ask you some questions.
And, Mr. Chairman, thank you for indulging me, and I will
yield back the balance of my time.
Mr. Conyers. The distinguished Chairwoman of the
Administrative and Commercial Law Subcommittee of the
Judiciary, Linda Sanchez.
Ms. Sanchez. Thank you, Mr. Chairman.
I have a number of questions that I am anxious to get
through, so I am going to jump in and begin my questioning with
Mr. Ashcroft.
At any point during your tenure as Attorney General did the
President himself approve or order either of the Office of
Legislative Counsel August 1, 2002, OLC memoranda?
Mr. Ashcroft. Pardon me, did the President order what?
Ms. Sanchez. Approve or order either of the Office of
Legislative Counsel August 1st, 2002, OLC memoranda?
Mr. Ashcroft. I don't know.
Ms. Sanchez. You don't know? You didn't discuss it with
him?
Mr. Ashcroft. I don't believe so. If I did, it would be
privileged. I wouldn't tell you about it. Because it is the
responsibility of the--but in terms of communication to me, I
would not share communication with you that the President made
to me. I think it is my responsibility as his attorney, and it
is the deliberative product that attorneys are supposed to be
able to talk to the people they serve confidentially.
Ms. Sanchez. But if the President ordered it, he would have
spoken with more than just you about it. He would have spoken
with the OLC about it. Is that not correct?
Mr. Ashcroft. I can't answer a hypothetical about what the
President might or might not have done.
Ms. Sanchez. Do you--at any point during your tenure as
Attorney General, did the President approve of the use of any
of the tactics listed in either of the August 1st, 2002, OLC
memorandums?
Mr. Ashcroft. I can't answer that question based on the
fact that I believe what the President did in this area is
classified information.
Ms. Sanchez. Do you know at any point during your tenure as
Attorney General if the President himself approved the use of
waterboarding either as a policy or as applied to a specific
detainee?
Mr. Ashcroft. I believe my previous answer covers that
question.
Ms. Sanchez. Do you know if at any point during your tenure
as Attorney General the President himself approved induced
hypothermia or forced sleeplessness or stress positions in
general as a policy or as applied specifically to any detainee?
Mr. Ashcroft. My previous answer covers that question.
Ms. Sanchez. Do you know if the Vice President himself
approved or ordered any of these tactics either as a policy or
as applied to a specific detainee?
Mr. Ashcroft. The answer is the same as the previous.
Ms. Sanchez. Did you ever advise the President or the Vice
President that the approval or ordering of any of these tactics
could constitute crimes under the War Crimes Act?
Mr. Ashcroft. The answer to the question is the same as the
one previous.
Ms. Sanchez. Did you ever advise the President or the Vice
President that any of these tactics could constitute crimes
under the Anti-Torture Act?
Mr. Ashcroft. My communications with the President are
privileged communications.
Ms. Sanchez. Did you ever advise the President or Vice
President that the approval or ordering of any of these tactics
could constitute crimes under the Uniform Code of Military
Justice for uniformed personnel?
Mr. Ashcroft. My communications with the President are
privileged communications.
Ms. Sanchez. Did you ever advise the President or the Vice
President that the approval or ordering of any of these tactics
could constitute crimes under the general Federal criminal laws
of the United States?
Mr. Ashcroft. My communications with the President were
privileged communications.
Ms. Sanchez. In March of 2004, then acting Attorney General
James Comey refused to sign an order extending President Bush's
warrantless domestic spying program, quote, amid concerns about
its legality and oversight, end quote.
Mr. Comey testified in May, 2007, that the White House
tried to force you to overrule him, despite the fact that you
were debilitated in a hospital with pancreatitis.
Former New Mexico U.S. Attorney David Iglesias, who was
fired by the Administration for refusing to file questionable
voter fraud charges, has stated that your refusal to support
the warrantless wiretapping program led to your being, quote,
unquote, pushed out of the Bush administration. Is Mr.
Iglesias' statement correct?
Mr. Ashcroft. I am trying to think of all the reasons that
are appropriate for me to refuse to answer that question.
Ms. Sanchez. I would sure be interested in knowing what
they are.
Mr. Ashcroft. I am not a book writer, like so many other
people are. I have written books, but they are not very
interesting.
Ms. Sanchez. Was your departure entirely voluntary?
Mr. Ashcroft. My departure was a decision of my own. It was
a decision I made. It was voluntary.
Ms. Sanchez. Was it ever suggested that you should step
down from that position?
Mr. Ashcroft. Communications between me and those
responsible for my opportunity to serve America as Attorney
General are the subject of privilege, and I won't make comments
about them.
Ms. Sanchez. One last question for you. In the June 24th IG
OPR report on the politicized hiring in the Department honors
program and summer law intern program found that in 2002 the
involvement of political appointees in the hiring process was
greatly expanded. As Attorney General, did you know that
applicants for career positions at the Department were being
screened for their political affiliation? Were you aware of
that?
Mr. Ashcroft. I don't have any recollection of an awareness
of that.
Ms. Sanchez. And you don't--as to this day you were not
informed of that?
Mr. Ashcroft. I don't know whether it has ever been
mentioned to me. I----
Ms. Sanchez. Have you read the IG report?
Mr. Ashcroft. No, I have not.
Ms. Sanchez. I highly suggest that you do. It might be a
very eye-opening experience for you.
I see that my time has expired. I yield back.
Mr. Conyers. The distinguished gentleman from Indiana, Mike
Pence.
Mr. Pence. Thank you, Mr. Chairman; and I want to apologize
to you and to our distinguished panel for my tardiness. I was
attending the funeral of a friend, Tony Snow, this morning. And
I appreciate very much your written testimony and am grateful
for your time.
General Ashcroft, I would like to direct my questions to
you in the time that I have. Thank you for being here today.
More importantly, thank you for your service to the United
States of America.
Mr. Ashcroft. It was a privilege.
Mr. Pence. I must say to you I have been through many
hearings on the topic of the day, policies of the Department of
Justice and the decisions that were made in the immediate
aftermath of 9/11. I want to concede that all of my thinking
about that day is colored by the fact that I was here, like you
were. I was standing on the Capitol grounds at 20 minutes after
10, which, as my wife and children and I paid respects at the
now-under-construction memorial to flight 93 this summer, we
did the math. And had Khalid Sheikh Mohammed had his way, I
would be 7 years dead.
Mr. Ashcroft. Yeah.
Mr. Pence. Of that I am convinced, but for the courage and
sacrifice of those on that flight.
And so, while legal arguments are fascinating to me, have
been since law school, while semantic arguments, ticking time
bomb and the like, interesting, I was here. And General, you
were here that day. And I remember your service of stepping
into the gap and your calm demeanor, and I don't know that I
have had the opportunity to thank you publicly for your steady
hand at the tiller that day, but I thank you now.
In the course of many of these hearings we have heard
suggestions from witnesses in the academic world, authors and
others, that many have believed that simply by asking
terrorists nicely the United States can obtain the information
that it needs to wage the war on terror and protect our country
from the advent of another day like that day. Can you explain
to this panel why it is that some terrorists do not respond to
the so-called rapport-building approach, the noncoercive
approach to questioning?
And, secondly, not pulling you into specific methods and
tactics that were approved and utilized--I am sure that has
been well covered today--but rather how valuable was the
information that we were able to extract from Khalid Sheikh
Mohammed and others to prevent that kind of violence against
this country in the intervening 7 years?
So if you can speak to me about the value of those
techniques and what we profited from.
Mr. Ashcroft. I get a little bit emotional to have you
describe where you were that day, because it brings that day
back to me rather dramatically.
The information is only valuable if you care about the
lives of American citizens, and then it is extremely valuable.
And the idea that all prisoners would respond to the same
approaches is naive. The idea that we can arrive at a single
way of interrogation, inflexible, would be totally absurd. And
what is even more I think important is to understand that some
detainees would respond to the rapport-building only after they
had been shocked out of--I don't mean to use the electric shock
analogy--but shocked by some more aggressive techniques. So
that techniques are not necessarily uniform or appropriate in
one area or not in another or not even individual-specific.
There has to be an expertise.
That is why it is important that our people be well trained
and that they have reasonable boundaries, and it is important
that they know what the law says. And if I misspoke earlier, it
is important that they have communicated and they should be
able to rely on the protection of an opinion by a Department
which says certain things are permissible, certain things
aren't.
That is why I was so pleased when I reissued one opinion
that was able to say that the conclusions remained intact.
Because we didn't expose our people to additional jeopardy on
account of that. That was very important to me, however we let
the chips fall as they may on the reissuance.
So, yes, it is very important to take very seriously and to
understand in the context of reality.
And Professor--I don't know. Are you both professors?
Mr. Wittes. I am not.
Mr. Ashcroft. Pardon me, Mr. Wittes.
The ticking time bomb may not be something we are pleased
with, but I tell you we ought to think about it, and there may
come a day when it is there. I think there was too much we
didn't think about prior to 2001. I wish I would have thought
more carefully about terrorism prior to 2001. I think all of us
need to think about these scenarios.
And so let me just say that I am very grateful for the fact
that we had people who were willing to use enhanced
interrogation techniques, sometimes shouting, sometimes
grabbing the shirt maybe of someone, sometimes going beyond
that, within the limits of the law, to save lives. And I think
that is--you know, it is not a sacrifice of liberty to protect
it and to enhance it.
Mr. Conyers. Steve Cohen, the distinguished gentleman from
Tennessee.
Mr. Cohen. Thank you, Mr. Chairman.
I would like to follow up, General, with what you were
saying about our concerns about the ticking time bomb and what
we might have perceived and what might happen.
Senator Graham in the 9/11 Commission Report makes clear
that we had information about a possible airplane attack on
this country or in this world by terrorists. Are you familiar
with that?
Mr. Ashcroft. I am not sure what attack you are making
reference to, but the President of the United States I think
spoke openly about a proposed attack against the--what is it--
the library towers in Los Angeles, I believe.
Mr. Cohen. I believe what was quoted in the intelligence
inquiry was that President Bush and his Administration had
inaccurately said that it was a surprise, a bolt from the blue,
that no one could have imagined such attack. That since no one
could have envisioned a commercial aircraft as weapon of mass
destruction, that no one could be held accountable.
But the fact is the report showed that there was
consideration by the FBI of a possible airplane attack, of a
747 being blown up over the Olympic stadium, or 747 being flown
into the Olympic stadium, that Algerian terrorists in 1994
tried to fly an Air France plane into the Eiffel Tower, that
there was another project to blow up 11 planes simultaneously
and crash one into the Pentagon and one into the CIA.
So isn't the information clear that somebody should have
been held responsible for 9/11 when that information was in the
public knowledge?
Mr. Ashcroft. I don't think so.
Mr. Cohen. You don't think that, with this information out
there, that the Administration should have been held
responsible?
Mr. Ashcroft. Well, I think the responsibility of the
Administration was to pursue and to prevent further terrorist
attacks. There were a number of reasons why what we sought to
do to prevent the 9/11 attack were unsuccessful. And thanks to
the Congress and others, we were able to remediate a number of
the circumstances, for instance, the wall that existed that
kept information from being passed from the intelligence
community to the law enforcement community. We find out that--
--
Mr. Cohen. All right. Let me ask you----
Mr. Ashcroft [continuing]. We knew about--one of those
communities knew about the existence of two of the terrorists
in the country. The other community was looking for those
terrorists but couldn't get the information because of the
wall, which the Patriot Act took down. And I think our
responsibility is not to try and find somebody to blame for 9/
11. Our responsibility is to try and prevent 9/11 from
happening again.
Mr. Cohen. Let me ask you this, General. There are torture
laws that it is understood that the Bush administration has
gone beyond. The memo that Jack Goldsmith gave you that you
approved to change what Mr. Yoo and the Bybee proposal had that
were contoured down. Do you know if the Bush administration has
ever recommended that our torture laws be changed so they
extended--so they come within the parameters that they would
like to have them be? Or do they think it simply is within the
inherent power of the Presidency to do what they want,
regardless of what this Congress wants the law to be?
Mr. Ashcroft. I hope you will let me answer this question.
Mr. Cohen. I hope you will.
Mr. Ashcroft. First of all, the Bush administration has not
engaged in activities, to my knowledge, that constitute torture
under either of the memos. The constant and consistent
representations of the Justice Department that recount
reconsideration on a recurring basis of the law has indicated
that, as the law stood prior to the amendments by the Congress,
neither of the memos would have disallowed any of the
activities in which the Administration has engaged.
I am not in a position to talk about things that have been
done with the law changed. So I just wanted to clarify that.
Now the other part of your question has left my mind.
Mr. Cohen. Let me go to a new one. You suggested that when
the President--and let me read from your statement. As this
Congress and the Nation now turn to reevaluate that work with
the altered perception of--no, we are starting here.
It is difficult to imagine an area in which the imperative
to afford the President the benefit of genuine doubt is greater
than with respect to his judgments as Commander in Chief as to
how best to protect the lives and liberty--and I will question
that in a minute--of the American people in the war on terror.
When was there a benefit of the doubt given to the President?
Mr. Ashcroft. Well, it is the policy of the Justice
Department----
Mr. Cohen. Can you name me specific situations where you
had to give him the benefit of the doubt?
Mr. Ashcroft. We always do. Whenever it is not----
Mr. Cohen. Sometimes there is not a doubt, though, correct?
Sometimes there is.
Mr. Ashcroft. And sometimes you just say no.
Mr. Cohen. Well, Mr. Yoo. Let me ask you about Mr. Yoo. You
called him Mr. Yes, did you not?
Mr. Ashcroft. No, I did not. I don't remember doing that.
Mr. Cohen. Mr. Goldsmith, I think, suggested that you did.
Mr. Yoo, how was he appointed? Was he a political appointment
by you or did he precede your coming into the Justice
Department?
Mr. Ashcroft. I think he came in after I came into the
Justice Department.
Mr. Cohen. And do you know if Vice President Cheney or Mr.
Addington recommended him to you?
Mr. Ashcroft. I don't know.
Mr. Cohen. You don't know.
Let me ask you this. When Mr. Wexler was asking you some
questions about statements attributed to you where history will
not judge us kindly and history will not treat us kindly, you
correctly refused to comment on things you said in hearings
that were of a particular nature. I am not asking you to say
what you said in those hearings and who said it. I am asking
you now, with the benefit of retrospect, how do you think
history will judge you and the Administration for what you did?
Mr. Ashcroft. I think history is already judging this
Administration as being successful in the deterring and
preventing additional terrorist acts.
Mr. Cohen. How about upholding the Constitution and abiding
by the law of the Nation?
Mr. Ashcroft. I am confident that the Constitution has been
upheld, and it will continue to be upheld.
Mr. Cohen. One last question. You said that you believe we
have disrupted plots to hurt our liberty and hurt our country.
Was one of those plots when Mr. Gonzales and Mr. Card came to
your hospital room?
Mr. Ashcroft. You know, this isn't late night television,
so your wink may not appear to everyone else.
No, I don't think that's--let me make a comment on--there
should be robust debate. If you take--and I am not in a
position to recount, and wouldn't, but say you take the reports
as being true. I certainly wouldn't call those people
untruthful folks about what happened.
You have a situation where there is people who have
differing legal opinions, and eventually somebody has to decide
whether they are going to side with the legal professionals or
others. And the President comes down on the side of the
Department of Justice according to all the accounts, no matter
which one you believe. President comes down on the side of the
Justice Department with the professionals there at the
Department, the career people there at the Department.
What is wrong with that picture? Eventually, you get to the
right decision being made. That is something that I would
expect a free society to involve vigorous debate, especially if
you have got as many lawyers as we do in this country. You get
a lot of debate, and you get controversy. You get the decision-
maker finally to make the right decision.
You know, I am just right now next to standing up and
singing the national anthem. I think that is the way the system
ought to work.
Pardon me. Mr. Chairman, I apologize.
Mr. Cohen. I know my time has expired.
Mr. Conyers. Yes, it has.
Mr. Cohen. So I will yield back the remainder of my time.
Mr. Conyers. Very good.
The Chair is pleased to recognize Steve King of Iowa,
distinguished gentleman of the Judiciary Committee.
Mr. King. Thank you, Mr. Chairman.
I want to thank the witnesses all for their testimony, and
I would like to turn initially to--I am not sure whether to
address Mr. Ashcroft as Governor or Senator or Attorney
General.
Mr. Ashcroft. For you and me, it can be John and Steve.
Mr. King. Let's get to that socially at a subsequent time.
I would very much appreciate that.
But I want to make that point, that the long continuum of
your service to this country has stepped along on some of the
highest standards and some of the most responsible positions
that any individual could be called upon to serve this country;
and I do regret some of the tone that you have been faced with
here that does not reflect their understanding of your
contribution to this country.
And so, first, I would ask if you could quickly and briefly
just bring this Committee and the folks that are watching on C-
SPAN and in this room up to speed on this situation of the
moving target of the law. What during your tenure changed
specifically on how one interpreted the statute on torture?
Mr. Ashcroft. Well, the statute on torture has never--there
has never been a prosecution under the statute on torture. So
when this Administration sought advice as to exactly how it
could operate within the law and not violate it, there was not
a lot of guidance out there for how it had previously been
implemented. So an attempt was made by John Yoo and others in
the OLC, Office of Legal Counsel, at the Department of Justice.
That statute--pardon me, that opinion included an
evaluation and was done in conjunction with an evaluation of
techniques that all were ruled to be acceptable to the extent
they did not violate, for al-Qaeda detainees maintained and
detained outside the United States, the provisions of the U.S.
statute regarding torture and the International Convention
Against Torture. That was what they were designed to do.
Mr. King. If I could just summarize, it is pretty much
encapsulated in the analogy that you gave of the 85-mile-an-
hour speed limit versus 65-mile-an-hour car.
Mr. Ashcroft. Yeah.
Mr. King. And I appreciate that.
And then you said something earlier that I would like to
reiterate.
Guessing where the Supreme Court might go is a lot harder
than determining where the Supreme Court has been. And yet you
are caught in this crossfire here today, the blur of the effort
between what did you know at the time versus what did the
second-guessers have their staff do last night. And that is
what I hear happening in this Committee.
And so I am going to take you to a question that I think is
actually a hard one, and it is one that may well illuminate
this situation. And it comes from my analysis of this and not
this but nearly everything that I deal with.
I would just make this statement.
In the end, I went back to 1802 and I read the
Congressional Record on the debates on whether they could
eliminate a couple of Federal judicial districts, a profound
constitutional debate that took place in 1802 in this Congress.
And I read that carefully, very thick, word for word, notes and
highlights and all that. And I got through that, and I
concluded that everything was political in 1802.
This was 2002, and now it is 2008, and I will submit to you
that everything is political 206 years later.
And then, with that being the framework for this question,
when you analyze the legal implications of that statute and the
controlling, limited amount of case law that was there and
memoranda were produced and the two that are the matter of the
subject here, did you do an analysis of the political
implications at the time and did you really game this out to
the scenario where we are today and anticipate that there might
be a different majority in the House with a different Chairman
of the Judiciary Committee and a different Chairman of the
Constitution Subcommittee, a different majority in the Senate,
a different political scenario whereby maybe this war wouldn't
work as easy as some folks thought it would and now there would
be people that were seeking to beat up on the Bush
administration as a political tool and try to set the scenario
for November elections? Did that all come into mind or were you
just simply looking at this cleansed and sanitized from the
political implications?
Mr. Ashcroft. I think, by and large, OLC has a tradition,
which is to be respected, of looking at questions to try and
figure out what the law is. And, obviously, when you have a
moving target that comes with a Supreme Court that
characterizes the law as organic and growing, and meaning it is
subject to their adjustment, there are challenges in doing
that.
So--but I think when Mr. Dellinger was at OLC, which is
earlier, and I don't think Administrations really change that
much in terms of the good-faith effort on the people of OLC.
It is almost quasi-judicial. In some respects, I think it
is less political than the courts from time to time appear to
be. It is a desire to find out what does the law say and what
can we ascertain from the previous rulings in this arena which
would inform our judgment?
One of the problems--and they are related to the law
regarding torture--is there hadn't been previous rulings. And
there still haven't been. And it is one of the reasons it has
been in the interests of this country to have the Congress be
more active in this area and to enact things subsequent to this
time. But I believe that the conclusions to which those
opinions came are both worthy of respect.
Mr. King. I thank you for your answer, and I just ask if
the Chair if I could indulge in one brief follow-up question on
this.
If you had had the political looking glass that would allow
you to look into the future, to where we are today, how might
you then go back and make some different decisions along the
way?
Mr. Ashcroft. Well, I think the opinion would have been
written so that I didn't have the responsibility of asking that
it be adjusted. But I never thought I was--entered the office
thinking I could be perfect, we wouldn't have to make any
corrections. My intention is, when you need a correction, make
it. That is the best I can do.
The second thing is I don't think I would make any basic
fundamental difference. This opinion has been discussed, and
there has been numerous allegations that it is wrong. I don't
believe it to be wrong, and I believe the careful analysis that
persists on a recurrent basis sustains it.
I differ with Mr. Dellinger on whether these things
constitute torture. He could be right. I could be wrong. That
is not a threat to me. I have been wrong enough times to
understand that it can happen, and I don't know whether he has
or not. But we will have those differences.
Mr. King. I thank the General and thank the Chairman, and I
yield back.
Mr. Conyers. The distinguished gentlelady from Houston,
Chairwoman of the Subcommittee on Transportation with the
Homeland Security Commission, and a distinguished Member of
this Committee, Sheila Jackson Lee.
Ms. Jackson Lee. Chairman, thank you so very much, as well
to the Ranking Member, to General Ashcroft. It is certainly
good to see you, as it is it to see the other witnesses.
I believe one of the witnesses--and forgive me for being
delayed. We were in a hearing dealing with Homeland Security
with Secretary Chertoff, and I thank you for the indulgence.
But I understand one of the witnesses said--and it seems
that you might have said that yourself--that we should be
looking at going forward. I think you said that we should--or
you would be willing to correct what was done and go forward.
And you raised a good premise.
And I think it is also important to acknowledge the
Constitution, which details Founding Fathers' wisdom, probably
assisted by founding women who were giving them some of the
answers, that we had three branches of government and there was
a checks and balance and there was an oversight. So I, frankly,
believe it is crucial to be able to go forward, to be reminded
of one's past. And we have been consistently troubled by some
of the issues that have occurred, some after your tenure. So
let me start with some pointed, probably narrow questions and
maybe yes or no answers.
Should an independent prosecutor be appointed to evaluate
the missteps of the Administration as relates to the Iraq war?
Mr. Ashcroft. No.
Ms. Jackson Lee. What power should Congress exercise in the
future to ensure that the President does not overstep the
authority?
Mr. Ashcroft. I think the Congress has the responsibility
to frame laws that define conduct by the United States and its
citizens. The Congress, obviously, has some limits on what it
should do.
Ms. Jackson Lee. So, General, if I might--finish your
sentence.
Mr. Ashcroft. For example, if the Congress sought to pass a
law saying the President is not the Commander in Chief, which
the Constitution says the President is the Commander in Chief
and shall be, it would be an unconstitutional enactment, even
if the President signed it.
Ms. Jackson Lee. And I agree with you. If I might----
Mr. Ashcroft. So there are limits. There are limits on the
Congress. There are limits on the President.
Ms. Jackson Lee. The good news is no Congress has ever
passed that kind of law.
I think Congress has questioned the abuse of power. Mr.
Dellinger, that is the point that I am getting at. I am not a
fan of the special prosecutor, not necessarily independent
prosecutor, but does Congress have an obligation to assess
missteps that have occurred?
For example, many of us characterize the Iraq war as a
misstep in spite of the statutory--alleged statutory authority.
I have legislation that said that, having met all of the
standards that was in that 2002 resolution, in fact, the
President's powers have expired. Obviously, he is the Commander
in Chief. But do we have that responsibility to oversee
missteps and to hold back the abuse of power?
Mr. Dellinger. Certainly.
Ms. Jackson Lee. And so how would you give us the road map
to do so?
Mr. Dellinger. Well, I think that the series of hearings
that this Committee has had afford that ventilation, insofar as
possible, of what has happened.
Ms. Jackson Lee. Could we use a vehicle such as an
independent prosecutor?
Mr. Dellinger. I have long shared the view of the
dissenting opinion in the Act upholding the special prosecutor
that I think they are generally unwise. One in very special
circumstances, for example, to bring actions perhaps involving
contempt of Congress, if an Administration would not bring
those to the court, is something that might well be worth
considering.
Generally, generally, I am hesitant to have it----
Ms. Jackson Lee. Many scholars are.
In general then, any punitive measures? You consider
holding hearings and, of course, potential of processes that
are allowed by the Constitution? I am not suggesting you are
supporting impeachment but processes allowed by the
Constitution. Is that what you would adhere to?
Mr. Dellinger. Sure. Sure.
Ms. Jackson Lee. Let me go quickly to the General and just
try to go back to this troubled hospital room. And I know the
limitations, but would you share with us what you remember of
now this widely known visit to the hospital room in March of
2004--I am delighted for your recovery--with White House
Counsel--then White House Counsel Gonzales and Andrew Card? Can
you describe your condition at the time?
There is a recounting by Deputy Attorney General Jim Comey
that mentions that when they came to you--and, by the way, it
is on the record that there is some relation to the torture
memo of sorts. But when they came to you that you looked at
whatever the document was, and you rose from the pillow and
said something very direct and seemingly harsh. Maybe you
rejected the idea of torture or whatever dastardly memo was
there. Can you recall the facts or to the best of your ability,
General?
Mr. Ashcroft. I can recall the facts.
Ms. Jackson Lee. All right, General.
Mr. Ashcroft. My health records I consider to be private--
--
Ms. Jackson Lee. I do, too.
Mr. Ashcroft [continuing]. And my communications to the
members of the Administration regarding legal matters and
deliberations I consider to be private. And, for that reason,
while I don't want to argue with people who have made
representations of what happened, I am not going to try and
recount what happened.
I was in a rather--I had been in intensive care for about a
week, and the way they treated me was--my condition was not to
give me food or drink. So I was both thirsty and hungry. So I
might have been grouchy. Who knows?
Ms. Jackson Lee. Mr. Chairman, let me just conclude by
saying we have had hearings before that have documented the
fact that Mr. Gonzales and Mr. Card was in the room, and we
have had hearings that have alluded very carefully that they
were carrying a memo dealing with the torture issue, and that
this might have been one living example of a man who was both
dehydrated and without food, an excessive abuse of power. And I
think that we are warranted in this hearing and as well
warranted in going further in determining the abuse of power
that may have occurred on actions by the individuals in this
Administration.
Mr. Chairman, I yield back.
Mr. Conyers. I am pleased now to recognize the
distinguished gentleman from California, Darrell Issa.
Mr. Issa. Thank you, Mr. Chairman.
General, good to see you again.
Mr. Ashcroft. Thank you.
Mr. Issa. It is sort of amazing that, as a Member of the
Permanent Select Intelligence Committee, I have actually never
heard any allegation of any detainee being denied food or water
for a week. It is clear--it is clear that we treated our
hospital patients at times worse than we do people with al-
Qaeda.
Mr. Ashcroft. What's more, they were poking needles into me
all the time.
Mr. Issa. Clearly, we would never do that, either.
General Ashcroft, a lot of people here want to relive the
events of Speaker Pelosi, Jane Harman and others being told
about the enhanced interrogation and saying and doing nothing
about it, not even sending an opposing letter or minority
opinion in a classified setting, and now they want to say this
was heinous torture. I think that is really the scandal that we
are dealing with here today, is that you can't be informed and
then later on pretend like you are shocked.
But, having said that, I want to have something good come
out of this experience. I, for one, as a Member of the
Committee, have concerns that the current law that would
describe in detail, would require the President to avail this
information in detail is often limited to just the Speaker,
majority and minority members of the HPSCI and SSCI.
From your experience, and you have the luxury--and maybe it
is not a luxury. You paid heavily for it. But, you know, you
have been in so many parts of government, including, obviously,
appreciating the House and Senate, would it be good for the
Congress to look at more broadly--insisting that more broadly
disseminated information to cleared personnel, both staff and
Members, so that we wouldn't have just X Members on the
Republican side and X Members on the Democratic side that are a
very small group, you know----
And I have some sympathy for the fact that Speaker Pelosi
may not have been the one who could determine what torture was,
and she may have just seen this as less than she now sees it
when more people know about it.
So my question to you is, should the House for future
Administrations begin looking at expanding the information
pool?
And would you agree that that is constitutionally, with the
advice and consent--sometimes the consent the Administration
debates--and this would be for both you and Mr. Dellinger--the
advice portion, shouldn't we expand that to make sure that we
have a large enough pool in the future who were informed who
later on have to admit they were informed and therefore are
part of the broad conspiracy, to the extent there is one?
Mr. Ashcroft. This is a very interesting idea, but it has
got its plusses and minuses.
With classified matters, when the safety of the Nation is
at stake, anytime you expand the pool of individuals who are
made aware of something, you elevate the risks of its
disclosure. And the risks of disclosure can make a big
difference for things like methods of interrogation, because
people are trained to resist various methods of interrogation
once they are known.
And in all deference to both the House and the Senate--and
I served in the Senate, had the privilege of being there for 6
years. You weren't here earlier when I said the easiest job in
the world might be to be a spy in Washington, because
information just--classified and otherwise--just keeps pouring
out of this place.
I remember one briefing, even before an Intelligence
Committee--and I won't get more specific than that--that by the
time the Committee meeting was over the press knew what was
said in the meeting. It turns out that there had been a break
taken midway through the meeting.
So we have this tension between the protection of America
that is necessary with limiting information and what would
obviously I think be very helpful, as what you suggest.
Mr. Issa. Let me give a quick follow-up before the time
expires.
If we were as a body to take the measure of holding our own
people accountable, make them eligible for criminal
prosecution, those who get the select information also make
them do what the CIA and other groups do, submit to polygraph,
if we were to discipline ourselves, would it then be reasonable
to insist that we be treated at a peer level to the highest
level of people within an Administration?
I know that is a tough hypothetical, but I ask you because
this is something we would have to do.
Mr. Ashcroft. I think that is a very--it changes the
equation if there could be more responsibility if it is
successful. There is absolutely no reason, in my judgment, that
we wouldn't want to have more buy-in by the Congress, the
leadership of the country in whatever we are doing. It is
valuable. It gives you greater strength. It gives you the
opportunity to be more successful. And I think that is where
you are going.
Mr. Issa. It is.
Mr. Ashcroft. How do you provide a basis for sharing this
understanding? And if it can be done without additional risks,
I think it is something well worth considering.
Mr. Issa. Mr. Chairman, thank you for your indulgence, and
hopefully we can work on a bipartisan basis to facilitate that
happening in the next Administration.
Mr. Conyers. Thank you for your idea.
The Chair recognizes, finally, a former magistrate and
distinguished Member of this Committee, Hank Johnson of
Georgia.
Mr. Johnson. Thank you, Mr. Chairman; and thank you,
witnesses, for appearing today.
And I would just like to comment that, Attorney General
Ashcroft, you have served with distinction, both as an attorney
and as a Governor, Senator and, finally, as Attorney General.
And as Attorney General--and, by the way, I really respect
you as a formidable witness. I think you are probably the most
formidable witness that I have experienced during my short
tenure as a Member of this Committee.
Mr. Ashcroft. This is going to be a pretty rough question.
This is not a buildup for a good-bye.
Mr. Johnson. But now, as Attorney General, you were the
President's senior law enforcement officer, were you not?
Mr. Ashcroft. I think it would be fair to say that.
Mr. Johnson. And in that capacity then as senior law
enforcement officer, you supervised the FBI?
Mr. Ashcroft. The FBI is under the Justice Department.
Now, the Director of the FBI is an independently
appointed----
Mr. Johnson. I understand that.
Mr. Ashcroft [continuing]. For a 10-year term.
Mr. Johnson. But you supervised----
Mr. Ashcroft. Yes, I did. And I was in the FBI every single
day after 9/11, and most of them before then.
Mr. Johnson. And you also oversaw terrorism prosecutions
nationwide, correct?
Mr. Ashcroft. The U.S. Attorneys answer to the Attorney
General----
Mr. Johnson. Yes.
Mr. Ashcroft [continuing]. Since about 1870.
Mr. Johnson. So you would agree that you oversaw terrorism
prosecutions nationwide?
Mr. Ashcroft. Yes, sir.
Mr. Johnson. So therefore your position has always been
that the Department of Justice would have to have a voice in
the military tribunal process to try terrorism suspects. Is
that correct? That would have been your opinion? Yes or no.
Mr. Ashcroft. I had an interest in that. Not that I had the
right to insist that I have a voice.
Mr. Johnson. But you felt strongly that the Office of the
Attorney General--being the senior law enforcement officer,
you, and you overseeing the activities of the FBI and the
terrorism prosecutions, that your office should have a voice in
the military tribunal process. Is that a fair----
Mr. Ashcroft. I think there are some other things that are
important. One, the military tribunals do not try criminal
violations.
Mr. Johnson. You are going a little bit afar of the
question I am asking.
Mr. Ashcroft. No, I am not. Military tribunals try war
crimes, and the Attorney General has no authority to try war
crimes. He deals with the laws enacted by Congress.
Mr. Johnson. Well, let me take it in this direction then.
Press reports describe a heated meeting in November of 2001
between yourself and Vice President Cheney on the subject of
military tribunals for terrorism suspects. And, in particular,
it was reported that you were upset because, without your
knowledge, Mr. Yoo, who was your subordinate, had advocated
keeping the Department of Justice out of the process of trying
terrorists. Is that true? Is it true?
Mr. Ashcroft. Is it true that there was a meeting? Is it
true----
Mr. Johnson. That you were upset because----
Mr. Ashcroft. I don't recollect.
Mr. Johnson. Because without your knowledge----
Mr. Ashcroft. I don't recollect that.
Mr. Johnson. Well, is it true without your knowledge Mr.
Yoo was advocating keeping the Department of Justice out of the
process of trying terrorists?
Mr. Ashcroft. I don't know. I don't know.
Mr. Johnson. Now, Mr. Yoo was dealing with the White House
and/or the office of the Vice President directly and without
your knowledge about his opinions with respect to whether or
not the Department of Justice should be included in that
process. Is that true?
Mr. Ashcroft. I am aware of those reports, and there were
individuals in the Department who were concerned.
Mr. Johnson. Are the reports true?
Mr. Ashcroft. There were individuals in the Department who
came to me and expressed concerns that we would make sure that
we always maintained the independence and detachment that would
serve the President best with legal advice.
Mr. Johnson. Thank you. My time has expired. I will say
that history will judge you differently than it will judge your
successor. And I appreciate it. Thank you very much.
Mr. Ashcroft. Thank you.
Mr. Conyers. The Committee will stand in recess for two
short votes, and we will resume immediately thereafter.
[Recess.]
[1:25 p.m.]
Mr. Conyers. The Committee will come to order. The Chair
recognizes the distinguished gentleman from Ohio, Jim Jordan.
Mr. Jordan. Let me thank our witnesses as well. I know they
have been here several hours and done a tremendous job. I will
start with the Attorney General. I want to give you a chance to
talk about this respect issue that has been raised. I think Mr.
Dellinger in his opening comments talked about a country
respected by the world. The Subcommittee Chairman,
Representative Nadler, and I am quoting from a New York Times
story a couple of weeks ago, said that as a result of the harsh
interrogations, ``the reputation of this Nation and our
standing as a leading exponent of human rights and human
dignity has been seriously damaged.''
I would like your thoughts on that. And I guess I want to
give it a little context, too. When I hear statements like
that, I think about somehow they have forgotten all the good
things our country does. I think they forget about the relief
when there is a disaster around the world, helping African
nations with AIDS, malaria, what we did with the tsunami relief
effort a few years ago.
Again, just your thoughts on those statements and
activities that the Justice Department was involved with over
the last several years.
We will start with General Ashcroft.
Mr. Ashcroft. First of all, I am concerned and care about,
I guess that is the right word. But I do care about how we are
viewed abroad. I do believe, as Ronald Reagan said, that we are
a city set on a hill, that we stand for something.
But I also believe that there are forces afoot in the world
that are against what we stand for. They don't believe in the
freedom we believe in and they believe in what I call
imposition, that they want to impose their religion, impose
their views on other people, and they are willing not to offer
it in the marketplace but to impose it by terror. They seek to
force people to their view.
And I think we have to resist them. And in doing so,
whenever you fight for what you believe in, there is a risk
that someone will misinterpret what you are doing. The risk is
enhanced and is expanded when you may be misrepresented in what
you are doing.
The suggestion, with the reckless labeling of enhanced
interrogation techniques, that they are automatically torture,
does little to help our image overseas, in spite of the fact
that the best legal minds I know that have looked at this very
carefully have concluded that it is not torture.
With that in mind, I think we have to defend ourselves and
we have to represent and defend freedom as aggressively as we
can, and we should do what we can to make sure that we don't
unduly besmirch the representation of the United States by
recklessly charging that the officials of the United States are
engaged in activities in which they are not engaged.
So my own view is that we have to do what is right. That is
the first responsibility we have. The second responsibility we
have is, having done what is right, we have to make sure we do
our best to market it so that the world doesn't misinterpret it
and we don't allow people to take what we have done which is
right and try and portray it as being criminal.
Mr. Jordan. Do you believe, Mr. Wittes, that there are some
individuals out there who are so--terrorists who are so evil
that all the great things that our country does, there is
nothing that is going to diminish the hatred they have for the
United States?
Mr. Wittes. I have no doubt of that.
Mr. Jordan. Mr. Dellinger, you made a comment in your
opening statement. I feel like I should give you a chance to
respond to the general question about respect. Go ahead.
Mr. Dellinger. I think that the pictures from Abu Ghraib
have hurt our reputation in the world, whatever term one uses
to describe that. I also agree with you that there are people
who would hate the U.S. regardless of what we did.
Mr. Wittes. May I? I think in some ways the reputational
question is more salient less with respect to how much the
terrorists hate us than to how wide an audience they have for
that hatred. I think to the extent that we have a set of laws
that we are proud of, that we observe meticulously, and that we
are not sort of constantly chafing at and finding ways to
stress, we put a better face to the people who the terrorists
are talking to.
But I wouldn't frame it as how the terrorists feel about
it. These are not people that we are trying to impress, really.
Mr. Jordan. I understand. Thank you, Chairman.
Mr. Conyers. The Chair is proud to recognize Brad Sherman,
a distinguished Member of the Committee from California.
Mr. Sherman. Thank you, Mr. Chairman. I would comment that
there are tens of millions of people who are going to hate us
even if we live up to our highest standards. But I agree with
the witness that the audience for that hatred would be
contracted a bit if we lived up to our highest standards.
General Ashcroft in his book the Terror Presidency, former
OLC Chief Jack Goldsmith said this about OLC Deputy John Yoo:
In practice, Yoo worked for Gonzalez, who at that time was
White House Counsel. He took his instructions mainly from
Gonzalez, and at times gave Gonzalez opinions and verbal advice
without running the matters by his superiors in the Department
of Justice. Actually, the quote says, ``without fully running
the matters by the Attorney General.''
This arrangement was an understandable affront to you, who
worried about the advice Yoo was providing in the Attorney
General's name. So when the White House wanted to elevate Yoo
to lead the office of OLC, you put your foot down and vetoed
Yoo for the job.
Mr. Ashcroft. Sounds like who's on first.
Mr. Sherman. I know that. Let me rephrase that. Ashcroft
put his foot down and vetoed Mr. Yoo for the job. Is that
accurate?
Mr. Ashcroft. Let me say what I can say here. I think it is
very important, and this is consistent with the traditions and
responsibility of OLC to have independent, detached, fully
vetted advice provided by the OLC, the Office of Legal Counsel,
to the President of the United States.
During this time in the Justice Department there were key
individuals in the Department that served me and served the
Department, served America, that expressed to me reservations
that related to the proximity that characterized the
relationship that he had with various individuals in the
Administration.
My view is simply this; that I wanted to make sure that
that wasn't some singular view and that that wasn't some
isolated conclusion.
I developed in my own mind a sense of confidence about the
nature of their reservations and that they merited our serious
consideration, and so as a result of these items being brought
to my awareness, I raised these issues.
Mr. Sherman. So you were opposed to Mr. Yoo getting the job
as Chief of OLC?
Mr. Ashcroft. I felt that the United States of America and
the President would both be best served, especially as it
related to the characteristics I previously mentioned, if there
would be an OLC Chief that would emphasize those
characteristics more profoundly.
Mr. Sherman. Does the OLC speak only for itself, or does it
speak for the Department of Justice?
Mr. Ashcroft. It is part of the Department of Justice, and
when it speaks, I think the Department of Justice--we have got
an OLC Chief here that can probably answer this.
Mr. Sherman. You described to me how much fun you have at
these House hearings.
Mr. Ashcroft. I do, that's right. It is a thrill a minute
here.
I have always taken it as the gospel. When OLC speaks, I
have given it the highest level of respect. As a matter of
fact, I don't know of a better set of attorneys that has
existed in any Administration.
Mr. Sherman. There are press reports that describe a heated
meeting in 2001 between you and Vice President Cheney on the
subject of military tribunals for terrorism suspects. In
particular, it was reported that you were upset because,
without your knowledge, Mr. Yoo had advocated keeping DOJ out
of the process of trying terrorists. Is that accurate?
Mr. Ashcroft. I won't comment on meetings which otherwise
would be and are classified or meetings that involved
communications by their attorney with the Administration.
Mr. Sherman. Thank you. My time has expired.
Mr. Conyers. The gentleman from Arizona, the Ranking Member
of the Constitution Committee, Mr. Trent Franks.
Mr. Franks. Thank you, Mr. Chairman. I appreciate it, and I
appreciate the tone of the Committee so far, even though we
perhaps have some differences here.
General Dellinger, as an associate with the Ranking Member
of the Committee, I appreciated some of your comments. I
couldn't help but be intrigued by your thoughts of making a law
that did not provide for exceptions with dealing with that
ticking bomb scenario but that relied upon the courage of
people to just do what was necessary to protect their country.
I find that very intriguing, quite honestly.
I say this in absolute respect to you. My concern is
something like that can only work in an environment where we
have an age of congressional reason because this hearing, in my
judgment, is proof that we are kind of off track here already.
I think that the Administration and the Attorney General
here, in my judgment and evidence I have seen, is they acted
well within their constitutional bounds and yet we are still
dragging them before this Committee. I wonder what we would do
if they had to actually do something along the lines you have
talked about.
We have had 11 hearings that in my judgment make the lives
of terrorists easier and make it more difficult for us to
protect citizens from terrorists in this Committee, and yet I
don't know one that we have had that makes it easier for us to
defend citizens against terrorists. I think balance is one
thing, but 11 to 0, that concerns me. I think it represents
essentially a misunderstanding of what we are really up
against.
So I want to start with a quote by Mr. Stuart Taylor. He
wrote in the National Journal, ``The CIA had reason to believe
that unlocking the secrets of Khalid Sheikh Mohammad might save
hundreds of lives, and perhaps many, many more in one unlikely
but then conceivable event that al-Qaeda was preparing a
nuclear or biological attack on a major American city. This
tough, smart committed jihadist was not about to betray his
cohorts to his hated enemies if interrogators stuck to the kid-
glove interrogation rules demanded by human rights and recently
by most congressional Democrats, unquote. I think Mr. Taylor
was correct.
I even in this Committee asked Marjorie Cohn, President of
the National Lawyers Guild, how she would write a statute
defining how terrorists should be handled; what we should do to
try to encourage them to give information that they didn't want
to give voluntarily. I want to just read what her reply was.
She said, Well, what kind of a statute would I write? I would
write a statute that says when you're interrogating a prisoner
that you want to get information from him, you treat him with
kindness, compassion, and empathy; you gain his trust, get him
to like you and trust you, and he will turn over information to
you.
I wish the world was like that. I really do. I teach Sunday
school for 2 year olds. I really wish the world was like that.
Unfortunately, the terrorists have shown that they have a
little different mindset than we do. I am convinced that unless
we get ahold of that there will be blood on the wall again in
this country, and we will look back to Committees like this and
wonder why we weren't focusing on more of our primary job,
which is to defend our citizens.
My first question is to you, General Ashcroft. I want to be
fully open about this. I think General Ashcroft's career is a
model to public service. So I am very biased. But I want to ask
you, General Ashcroft, what was your goal in these discussions
that we are having, what was your goal at that time and in what
legal framework were you trying to pursue that goal in trying
to accomplish the things that you believed that needed to be
done?
Mr. Ashcroft. Well, I think we wanted to do everything
within our power and within the law to provide a basis for
defending America. I came back to the Justice Department and I
put it this way, I said, We have got to think outside the box.
We can't be thinking just like we always thought because the
same things will happen to us that happened before. But I said,
We can never think outside the Constitution.
That was the way of saying we have got to change. If you
don't change, you get what you got before. Albert Einstein put
it this way, he said, Ignorance is defined as doing the same
thing over and over again and expecting a different result.
Well, we needed a different result. We didn't want to get hit
again.
So we needed to change, we needed to be able to do things,
but we needed to do them within the Constitution. That was the
controlling motivator for me. Sounds pretty simple. But my view
is that it was the right thing to do and I believe that should
be--when it comes to national defense, we ought to be thinking
in those terms, what are the tools that are available to us and
what are the legal tools that are available to us, and we
should use them.
Mr. Franks. Mr. Chairman, I can only say that I believe
that that perspective will be vindicated in history. The
coincidence of terrorism and nuclear proliferation I am afraid
make it necessary for us to look at this a little differently
than we have. I hope General Ashcroft's perspective prevails in
the final analysis.
I yield back.
Mr. Conyers. The Chair is pleased to recognize the
gentlelady from Wisconsin, a distinguished Member of the
Committee, Tammy Baldwin.
Ms. Baldwin. Thank you, Mr. Chairman. General Ashcroft, can
you describe for the Committee briefly your understanding with
regard to detainee interrogations and discussions regarding
concerns that might have been raised with regard to
mistreatment of detainees?
Mr. Ashcroft. The Attorney General of the United States is
only occasionally called to meet with the National Security
Council, is not a member of the National Security Council, and
so for me to try to define the National Security Council and
its role would be beyond my expertise.
Ms. Baldwin. But the principals committee, as I understand,
it is one in which you participated.
Mr. Ashcroft. There were times when I was called to meet
with various groups that were part of the National Security
Council. But in terms of its jurisdiction and what its function
is, it is not something that I am prepared to comment on. I
would say that I think they called on me when they thought
there were matters that related to my responsibilities that
could be of assistance to them and their deliberations.
Ms. Baldwin. Well, in particular during your time as an NSC
principal when you did attend those meetings, or in the years
since then in looking back at your NSC principal tenure, did
you come across any evidence of what you believe may be crimes
by government officials in the headquarters of DOD, DOJ, CIA,
State, or the White House and, if so, did you make any referral
for criminal investigation?
Mr. Ashcroft. To the extent that I was involved in meetings
of the National Security Council, they were classified
meetings, and I will not comment on what I found, didn't find,
or what was said or wasn't said.
Ms. Baldwin. Well, let me then ask you a different
question. Where do you believe the ultimate decision on what
interrogation tactics would be approved for use on U.S. held
detainees was made? At the White House, the Justice Department
headquarters, at the FBI headquarters, at the Defense
Department headquarters, at the CIA headquarters, or out in the
field?
Mr. Ashcroft. Part of that answer is yes. I think different
agencies make different decisions regarding what techniques
would be used in different situations, and the purpose for
having a generalized understanding that would help people know
what could be done legally and not be done is the basis for the
opinions.
I might indicate to you that the opinions that we have been
discussing today were very limited in terms of their
application. They were opinions relating to the interrogation
of al-Qaeda detainees outside the United States, and as a
result, they didn't apply to a variety of other detentions in
other settings that related to people who were say fighting in
the war in Iraq.
Ms. Baldwin. Let me follow up on that same line of
questions but with regard to a specific detainee, Abu Zubaydah.
Where do you believe the ultimate decision on the choice of
interrogation tactics for his interrogation was made?
Mr. Ashcroft. I don't know.
Ms. Baldwin. Are you aware of whether our allies, any of
our allies in the war on terror condone or use techniques that
the U.S. would define as torture in the course of their
interrogations?
Mr. Ashcroft. In other words, am I aware that some of our
allies might use techniques that would be considered torture?
Ms. Baldwin. Yes, that is the question.
Mr. Ashcroft. I have not witnessed anything that would
cause me to have that awareness.
Ms. Baldwin. Related to that, are you aware of whether the
U.S. has ever turned over any of its detainees to an ally in
the war on terror so that they could take the lead on
interrogation of such a detainee?
Mr. Ashcroft. Has the U.S. ever turned over----
Ms. Baldwin. A detainee to one of our allies in the war on
terror to let them take the lead on interrogations.
Mr. Ashcroft. I don't know. I couldn't name a person that
that would apply to.
Ms. Baldwin. Are you aware of whether it ever has in the
course of the war on terror?
Mr. Ashcroft. I can't say
Ms. Baldwin. Do you know what the U.S. policy is on turning
over a detainee so that an ally in the war on terror could lead
the interrogation?
Mr. Ashcroft. I don't know.
Mr. Conyers. Judge Gohmert of Texas is a distinguished
Member of the Committee and is frequently the acting Ranking
Member of the Judiciary Committee.
Mr. Gohmert. Thank you, Mr. Chairman. It is an honor to be
sitting beside you. Maybe one of these days we will be
switched. We will talk about that later.
I just wanted again to thank General Ashcroft. Going back
to my days as a judge, we never met, but I always had great
respect and admiration for the way you conducted yourself with
class and veracity, and I have never heard anything that you
have ever said either through the media or in person that had
the least cloud over it until earlier today when you made a
comment that stretched, I felt, like the bounds of credibility
when you said you were thankful for the opportunity to be here
to testify. I wasn't real sure about that one. I do want to
come back.
Mr. Dellinger, I wanted to ask you, this discussion about
waterboarding brought out the comment I think from General
Ashcroft that some of our agents may have been hardened in
training by the use of waterboarding. So I am wondering, would
those people who use waterboarding on one of our trainees be
susceptible to being prosecuted for violating the law?
Mr. Dellinger. One of our U.S. agents who engaged in
training on one of our folks?
Mr. Gohmert. One of our trainees.
Mr. Dellinger. It has been a while since I have taught
criminal law, but I believe there is a mens rea intentional
requirement that would clearly not be met and therefore that
criminal liability would not apply in those circumstances.
Mr. Gohmert. It would seem like he would certainly
intentionally be waterboarding one of our own agents.
Mr. Dellinger. Assisted by Mr. Wittes, it reminds me when
there is voluntary participation by the subject, that may in
and of itself eliminate a requirement of criminality.
Mr. Gohmert. So it is possible waterboarding could be
acceptable in that scenario. You are saying if he volunteered
for the service, even though he may not have known that the
waterboarding was coming, he knew some tough training was
coming, and the goal is to harden him to make him a good agent
so he could withstand torture in some other setting. So there
are settings where it may be acceptable then, correct?
Mr. Dellinger. Whether it is wise or acceptable is beyond
my ken. I do not think that would be a crime. Indeed, I have
heard press accounts of Mr. Levin of the Department of Justice
himself who asked to be subjected to this to learn about and
gain a sense of what the technique was like.
Mr. Gohmert. There are probably others we would like to ask
if they would volunteer for that technique as well. You had
indicated that if we use waterboarding then you would basically
agree that that would put our troops at risk, and you are so
well-educated you are surely aware that before waterboarding
was ever an issue, before Abu Ghraib was ever an issue, that we
had extremist radical Islamics who I believe mistakenly
believed the Koran gives them and tells them they should
destroy infidels. That was going on. We had our soldiers being
disemboweled, we had their heads being cut off. What is more
risky than being disemboweled and having your head cut off?
Mr. Dellinger. My answer to that question was that I was
not an expert in these matters but I had always been impressed
by Senator McCain's arguments that he thought, having been a
prisoner of war, that the standards that we set as a country--
--
Mr. Gohmert. My time is running out. I wasn't interested in
what Mr. McCain had to say, I was interested in your
perspective. But when you go back in history to the late 1700's
when we had never done anything and Thomas Jefferson was sent
to negotiate with the radical Muslims who felt like it was okay
to take our sailors and either put them in bondage, torture
them, or kill them, we had done nothing. He didn't understand.
That is when he bought a Koran.
If I might just ask Attorney General Ashcroft, he has been
so patient, what would you say to those who have accused you of
war crimes?
Mr. Ashcroft. I don't think they know what war crimes are.
I am glad people care about what their public officials do. I
think it is important that they do--I certainly am a Ronald
Reagan fan, and he said, Trust but verify. I think that is the
way people ought to be about public officials.
So when people and the public and others, people in the
Congress want to verify, and they don't want to totally rely on
trust, I am for that. I just think it would be very--I think it
is important to be very careful before you accuse anybody of
committing any crime.
It stuns me that some people want to run around and call
other people criminals. That is a serious offense to me to call
someone a criminal. I find that the people who do it sometimes
are the people who speak about being the most liberal and the
most rights-oriented, and for them to announce the criminality
of individuals is stunning to me. It takes my breath away.
It was my job to protect their right to do so, and I think
that is one of the privileges of serving in government and one
of the great aspects of America, is that we are very, very
tolerant of people expressing an opinion that others are even
criminal. I think, on the other hand, I think that is a term
that ought to be reserved and used with great care. And when it
is used recklessly, it has a way of diminishing our freedom, if
not our respect for each other. I think that is unfortunate.
Mr. Gohmert. I appreciate it. Thank you very much. Thank
you, Mr. Chairman.
Mr. Conyers. The Chair recognizes Adam Schiff, himself a
former U.S. Attorney, and a Member of this Committee, who has
been here from the very beginning this morning and has sat
through all of the proceedings.
Mr. Schiff. Thank you, Mr. Chairman. Assistant U.S.
Attorney, but I appreciate the promotion. Thank you all for
being here for so long with us. I think it has been a very
important hearing.
I have a couple of questions I wanted to ask Mr. Ashcroft
and Mr. Dellinger. Mr. Ashcroft, I am not going to ask you
about your conversations with the White House, but as Mr.
Dellinger has testified, the choice of who runs the OLC is
extremely important, given the substance of the opinions that
come out of that office. Is it fair to say that you are
concerned that the White House was trying to foist an OLC
director that, in your opinion, might be too pliable to the
wishes of the White House, and that raised a concern for you?
Mr. Ashcroft. Since you have asked me if it is fair to say,
I have got to quibble with some of the words, foist is not--I
will say something about that. I don't want to answer your
specific question using your words because they are not my word
and it is not fair to say. If you want me to answer it, I will.
I will say no.
Mr. Schiff. I would like you to answer it, so please do.
Mr. Ashcroft. I am concerned about independence and
detached advice and have the right kind of vetting, and
sometimes relationships can prevent that from happening. And so
I developed that concern when people in the Department came to
me and raised them. And I expressed those concerns in order to
make sure that the White House eventually would get the best
kind of legal advice, and not only the White House, but the
rest of the country that depends on OLC. That is the long and
short of it.
I felt that with a level of intensity that made me
committed to it.
Mr. Schiff. Why do you feel the White House rejected the
candidates that you offered who were well thought----
Mr. Ashcroft. I really don't have any feelings about that.
The President of the United States is elected by the American
people to have people that he is comfortable with in office. To
the extent that he wants to have someone that he can rely on
and is comfortable with, he ought to.
Mr. Schiff. Here is my concern, Mr. Attorney General, and
that is--and I want to question Mr. Dellinger. I think there is
a dangerous circularity of logic within the Administration that
says we can put someone in a position like the head of OLC,
which Mr. Dellinger points out is an obscure office; actually
for most of America it is on obscure office. The fact that
enhanced interrogation techniques are approved by this obscure
legal office gives no confidence to people either in the
country or around the world that we are distinguishing between
what is torture or what is not, or that as the current Attorney
General said, because OLC has said something is not torture,
ipso facto it is not torture and we don't need to look beyond
the opinion of the OLC.
That is why I think the choice of that opinion is so
important, and if you had concerns about whether improper
considerations were being brought to bear; in other words, they
were trying to pick someone for that post, not who was best
qualified to make the legal judgments but who was best
positioned to approve of what they were doing, that is
something this Committee ought to know. That is why I am
asking.
Furthermore, it concerns me, and I invite you both, Mr.
Ashcroft and Mr. Dellinger, to respond to this, it concerns me
when you both seem to be implying that because OLC approved of
this, even if it was a flawed opinion, that there is no
liability to be had.
I would think the better course for the current Attorney
General would be to authorize an investigation into whether the
prohibition on torture was violated. If it is determined that
in fact the prohibition was violated, then there can be a
determination made by the President whether to pardon the
interrogators who were following this erroneous opinion.
We don't know whether there were proper considerations
brought to bear in the selection of the head of the OLC at the
time or whether the opinions were flawed, or whether, as you
say, the speed was 65 or 85. You say it was authorized to be 85
in the flawed memo but they were only doing 65. At the same
time, you also say, Mr. Ashcroft, you don't know exactly what
techniques were being employed. So I don't know how you can say
with confidence whether people were going in fact 75 or 80 or
maybe 84. I don't know. I haven't heard you say that you know
either.
What concerns me is unless we in Congress or the Department
of Justice are willing to investigate this issue, we will never
know, and we will create a precedent where any President can
pick the right person to head the OLC that will do what they
wish and through this circularity of immunity and logic will
protect themselves.
We see the same circularity of logic in the subpoena issue,
which our Chairman has led, where the statute says that when
the Congress holds someone in contempt, the U.S. Attorney
General shall bring it before a grand jury. Not may, not might,
not if they feel like it, but shall. But the President and the
Attorney General now say that ``shall'' doesn't mean ``shall''
because they disagree with ``shall.'' We seem to be willing to
accept that. We have taken it to court in a different way. But
this circularity concerns me and I want to know if you can both
comment on it.
Mr. Ashcroft. With all respect, you are saying that there
is a circularity, and I think the situation at hand
demonstrates that the circle is interrupted. There was an
opinion that the Department itself generated a sense of concern
about, and it was re-evaluated and it was withdrawn and a new
opinion was issued.
Mr. Schiff. Let's say it was the conclusion in the second
memo that in fact not only was the first OLC opinion wrong but
in fact torture had been authorized and torture had been
conducted. Where would the liability lay? I think you are
saying nowhere. Because we took this corrective action. We
stopped doing what we were actually violating the law by doing.
Mr. Ashcroft. First of all, I am not here to answer
hypotheticals like that. I am here to say that if you outlined
this as a circular situation, the circle is not complete. The
ends don't meet because we did take action. We changed things.
We didn't find the conclusion to be wrong, but we wanted to
make sure that the opinion reflected the best judgment, and we
changed it.
Mr. Schiff. Mr. Dellinger, can you comment? Because I think
the hypothetical is enormously significant going forward as
well as looking backward. How do we provide some accountability
for putting the wrong person in the job and then simply saying
that we relied on the erroneous opinions of someone who should
never have had the position?
Mr. Dellinger. I am not happy with the answer that the law
leads me to, that you can put someone in at OLC who can issue
get-out-of-jail-for-free cards and that those cards would be
effective. I genuinely understand the problem with that.
The issue is this. Unless you were to show that the
individual who was engaged in the action, whether it is an
interrogation or rendition from another country, knew that the
legal opinion he or she was relying on was in fact part of a
plan to engage in the criminal law and to cover it with
immunity, in which case I think everybody who did that with
knowledge would be criminally liable, you have to have some way
of having the executive branch determine what is lawful and
what is unlawful. That is the executive power invested in a
President. Whoever makes that decision can be wrong, whether it
is a prosecutor, OLC official, the Attorney General.
Once you have an opinion of the Office of Legal Counsel and
whoever relies upon it is not shown to have relied upon it in
bad faith or a part of a plan to have a fake opinion, I don't
see how you can have a different officer, say the U.S. Attorney
for Northern Virginia or the District of Columbia, reach a
different judgment and prosecute someone for committing a crime
when that person was operating----
Mr. Gohmert. We are so far beyond the time. I need to ask
regular order here.
Mr. Schiff. May the gentleman be able to finish his answer?
Mr. Gohmert. It seems to go on and on and on, and that is
why I waited so long to bring it up.
Mr. Schiff. It is an important answer.
Mr. Dellinger. There is a footnote in the 2004 opinion
about whether the conclusions--they would still stand by the
conclusions of the earlier opinion. That is a very ambiguous
footnote, footnote 8, and there are some press accounts that
Mr. Levin has said that he only meant that they would have
reached the 2003 opinion if people reached the same opinion
even under the 2004 standards. I read the footnote and I do
find it is ambiguous as to whether in 2004 they actually did
say that they would agree with the results reached in 2002 and
2003.
Mr. Conyers. The Chair recognizes another U.S. Attorney,
this time from Alabama, a distinguished Member of the
Committee, Artur Davis.
Mr. Davis. Thank you, Mr. Chairman. As with Mr. Schiff, I
appreciate the promotion given by the Chairman.
Let me thank the witnesses for being here.
Let me assert a proposition to you, General Ashcroft, and
to you, Professor Dellinger, and get some response to it. We
have heard a lot of commentary from the other side about the
special circumstances after September 11, and the argument from
a lot of my Republican friends on the Committee has been we
faced a heightened danger, a heightened threat of weapons of
mass destruction, a committed set of terrorist cells that we
were working against, and that that somehow changed the state
of play in a number of ways. I think there is something to that
argument. I think there is something else about the context,
the aftermath of 9/11, I want to ask you to comment on.
At the time, there was an incredible spirit of unity in the
country. The authorization of force resolution regarding
Afghanistan passed with, I think, one vote against it in the
combined two bodies of the House and Senate. The PATRIOT Act
passed frankly with scant opposition in the House and Senate. A
policy decision to that one would think would be highly
controversial to launch a preemptive attack on a nation that
had not attacked us, that happened with overwhelming bipartisan
support in the House and Senate.
Fast forward to today, or fast forward to 2006, 2007.
Intense political division around every aspect of this
Administration's policies related to the war on terror, intense
partisan division, intense ideological debate.
Professor Dellinger tell me, and we only have 5 minutes, I
would ask for a brief answer, but tell me briefly, how do we
get from a point where we had such a level of bipartisan
enthusiasm for this Administration's policies to the divided
world we are in now?
Mr. Dellinger. I think the biggest mistake was the decision
by the executive branch to take on this task unilaterally; to
exclude the other branches from some of the critical decisions.
It is not the benefit of hindsight. In December of 2001, I
wrote a piece for the Washington Post saying that the idea to
have no judicial review of military commissions was a very big
mistake, that the courts would never accept it and that you
could channel that judicial review; the decision not to go to
Congress to say that we believe that the Foreign Intelligence
Surveillance Act provisions are not adequate to the needs. But
to unilaterally decide not to comply with its criminal terms
and not even to reveal the fact that you were not complying
with it, not to comply with the torture statute, and have that
known only because of leaks and not releases, that that
unilateral approach of not involving respecting the role of the
courts or respecting the role of Congress, I think, has got us
to a place where we need to reclaim the role of the three
branches.
Mr. Davis. I agree, Professor Dellinger. I have made the
observation to Mr. Addington, made the observation to Mr.
Feith, who appeared a few days ago. Even with respect to the
interpretation of the torture statutes I was struck that Mr.
Addington and Mr. Yoo made a virtue of the fact that an
Administration trying to interpret the will of Congress never
asked a single Member of Congress, What did you mean in 1996?
There were people who helped draft the 1996 statute who still
serve in the Congress now, who served in the Congress then, and
Mr. Yoo and Mr. Addington blithely mentioned that we didn't
feel the need to talk to them.
General Ashcroft, given even the time constraints that we
have today, I don't want a long answer from you either on this,
but would you concede in retrospect, sir, that the
Administration would have benefited from drawing in the
legislative branch to shape this detainee policy?
Mr. Ashcroft. That is a judgment that has to be made.
Mr. Davis. I am asking you to make it.
Mr. Ashcroft. Okay. I see my time has expired.
Mr. Schiff. I would happily ask additional time for the
able Attorney General to venture his opinion.
Mr. Ashcroft. We spend a lot of time working together. I
spent a considerable amount of time not only assembling the
PATRIOT Act but--working for about 40 days.
Mr. Davis. What about detainee policy though, sir?
Mr. Ashcroft. I don't know. We tried to work on military
commissions law and things like that recently.
Mr. Davis. Let me give you one example. The interpretation
of the torture statutes. What would have been the harm----
Mr. Ashcroft. I am trying to finish my first answer. I am
not going to start on the second without the opportunity to
finish the first.
Mr. Davis. I am trying to point you toward detainee policy.
Mr. Ashcroft. I think I know where you are trying to point
me, sir, but I would really prefer to be pointed toward the
door.
Mr. Davis. I appreciate your earlier observation about the
reasonableness of skepticism; unfortunately, the Congress has
reason to be skeptical about this Administration. We appreciate
you for being here. You have been a wonderful witness today. I
am simply asking why your Administration----
Mr. Ashcroft. First of all, it is not my Administration,
sir, with all due respect to the Congress. We benefited greatly
when we did work for things like the PATRIOT Act and even for
the reenactment of the PATRIOT Act.
Mr. Davis. Would have it benefited----
Mr. Conyers. The time of the gentleman has expired.
The Chair recognizes the distinguished gentleman Minnesota,
Keith Ellison.
Mr. Ellison. General Ashcroft, as to waterboarding, what
changes took place in the legal reasoning that approved this
technique when the American soldiers were convicted of war
crimes when it was used on prisoners in Vietnam?
Mr. Ashcroft. Could you speak up just a little louder?
Mr. Ellison. No problem. As to waterboarding, what changes
took place in the legal reasoning that approved this technique
when American soldiers were convicted of war crimes when it was
used on prisoners in Vietnam?
Mr. Ashcroft. The process, in my understanding, at OLC for
evaluating whether or not waterboarding is criminal was that
the statute, which was passed in 19--I think it is 1996,
whether or not its terms were violated. The statute is then
decades after Vietnam. To the best of my awareness, the
Department, in its reassessment of that decision and of that
evaluation on several occasions, according to the head of OLC,
and last week, according to the now Attorney General, has come
to the same conclusion, and it was based on that rather than on
any other experiences in other setting, that I know of, and
that is my understanding, that the judgment was reached.
Mr. Ellison. Thank you. I would like to turn away from the
detainee policy for a moment and ask you about some other
things. You answered a lot of questions about that.
I am sure you would agree with me that there are many
Americans who happen to be Muslim, who love our country,
support our country, fight for our country. The question I want
to ask you revolves around some of the treatment, some of the
experiences since 9/11. In particular, there were a few groups
that were identified as unindicted coconspirators in a Dallas
case. I know that--are you familiar with the case that I am
talking about, the Holy Land Foundation case?
Mr. Ashcroft. That name is familiar to me. I recognize the
name.
Mr. Ellison. Really, I don't want to ask you about the case
itself. What I really want to ask you is could you offer your
views on the advisability of publicizing a list of unindicted
coconspirators? I know some U.S. attorneys don't do it, some do
it. In the U.S. attorney manual it is actually frowned upon.
What are your views on the publication of an unindicted co-
conspirator list in an ongoing prosecution?
Mr. Ashcroft. It probably makes a difference what the facts
are and the circumstances are. So for me to----
Mr. Ellison. That is fair.
Mr. Ashcroft. If it is expressed in the manual in one way,
but not strictly prohibited, it probably recognizes that it is
discretionary.
Mr. Ellison. Do you think there should be some way for
people on a list to get themselves off the list if there is no
basis for them to be on it? At this point it is not much they
can do. And yet you would agree it is kind of not good for your
reputation to be on such a list.
Mr. Ashcroft. There are a number of aspects in the criminal
justice system that sometimes people are spoken of in the
process and it presents challenging circumstances for them and
they would prefer to be able to clear their name. There aren't
a lot of ways for that to happen, and I don't know if I have
any good suggestions. The Congress might find those or think of
them. But on the spot it is a pretty novel question. I hadn't
prepared that here.
Mr. Ellison. I know that. That is why I just thought you
have got a lot of background, I thought you might offer a view.
Here is another one that you weren't asked to prepare for.
We have got watchlists in our country; have had them. As I
understand it, the names on the watchlist have grown and yet we
really don't have a good process for cleaning those lists to
make sure that we are watching the people who need to be
watched. In so doing, we have got a lot of people on there who
we probably don't need to watch but we don't have a good
process to get people off these lists.
I actually heard, I can't confirm, but an FBI employee,
because they have a name similar to somebody who was associated
with the IRS, was on a watchlist. Do you have any views on
whether we should clean these lists up, these watchlists, and
if so, how should we go about it?
Mr. Ashcroft. It is certainly not in our interest to have
watchlists that have people on them that don't belong on there.
It increases the risk of error and inhibits the ability of
people to travel without inconvenience. So the quality of the
list is important not only to the success of our operation but
to the liberty and freedom of the American people. If there are
ways to improve that, and I would hope that whoever is involved
in the watchlist, I think that is probably in the Department of
Homeland Security, but whoever that is would be sensitive to
ways of trying to minimize the risks.
The only way not to have errors is not to have a list. We
all know that. We are willing to accept some error rate, but
our objective ought to be to drive it down.
Mr. Ellison. Thank you, Mr. Attorney General.
Mr. Wittes, I have got a few questions for you.
Mr. Conyers. Just a moment. Your time has expired.
Mr. Ellison. Really?
Mr. Conyers. Yes, really.
Mr. Ellison. That was fast.
Mr. Conyers. The witnesses, Attorney General Ashcroft, Mr.
Wittes, Mr. Dellinger, I consider this, and I think most of the
Members of the Committee think this was an extremely important
hearing. Your testimony was valuable. It has helped us examine
the question that brings us here. I am very grateful for your
return appearance to the House Judiciary Committee. We thank
you very much for your contributions.
We are going to leave the record open for 5 days in case
there are questions that Members want to ask you that will be
put on the record. So I thank you very, very much for your
attendance. The Committee is adjourned.
[Whereupon, at 2:20 p.m., the Committee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Chairman, Committee on the
Judiciary
In recent months, our Constitution Subcommittee has conducted a
vigorous and detailed investigation of the Administration's
interrogation policy and the extreme legal theories that allowed it.
Today, that investigation comes to the full Committee with a remarkable
opportunity to hear from our former Attorney General and our other
distinguished witnesses. Let me make three short observations as we
begin.
First, while the former Attorney General and I will disagree about
many of the issues that come before the Congress, on this one I am
hopeful that we share some important common ground.
I was impressed, for example, to learn that when Jack Goldsmith
determined that the John Yoo interrogation memos needed to be
withdrawn, Mr. Ashcroft supported his judgment. That could not have
been an easy decision to make and it is one that has done our nation a
great deal of good. The well known story of Mr. Ashcroft's support,
even from his hospital bed, for his Deputy Jim Comey's actions on the
secret warrantless surveillance program also shows an Attorney General
trying to uphold the rule of law.
Second, while our narrow subject today is interrogation rules, our
overall inquiry is about exactly that--the rule of law. In prior
hearings, the Subcommittee heard very disturbing testimony, including
claims of Presidential power so extreme that virtually no act was out
of bounds if the President thought it necessary. John Yoo would not
even rule out burying a suspect alive if the President so desired. That
is not the rule of law--it is the rule of one man.
The Subcommittee also heard very troubling testimony about how
dissenting views were handled on this issue. Daniel Levin, former head
of the Office of Legal counsel under Attorney General Ashcroft,
described being forced out of the Office of Legal Counsel by Alberto
Gonzales while he was drafting legal opinions that would have imposed
some constraints on the use of harsh interrogation methods. I have
great concern about an Administration that responds to legal advice it
does not like by firing the lawyer providing it and getting one who
will tell them what they want to hear, as may have happened in this
case.
Third, while one goal of this hearing is to continue to develop the
important historical facts on the interrogation issue, I am also
grateful for the opportunity to hear from all of our witnesses on what
has happened to the rule of law under this Administration and what they
think is the best way forward on this issue. After years of confusing
and misleading rhetoric, false promises, and horribly damaging
revelations, what are the most important steps we can take to restore
some concrete meaning to the promise that ``America does not torture''
and that ``America respects the rule of law''?
Prepared Statement of the Honorable Maxine Waters, a Representative in
Congress from the State of California, and Member, Committee on the
Judiciary
Mr. Chairman, thank you for arranging today's hearing, the fifth
hearing in the Judiciary Committee on interrogation rules and practices
at Guantanamo Bay. I'd like to also welcome the witnesses this morning,
who are distinguished experts on the law, particularly the former
Attorney General. I hope your testimony and answers to our questions
will help us better understand what went wrong and what should be done
to ensure that in the future, practices at the Department of Justice
will in fact protect the rule of law enshrined in our Constitution.
From the inappropriate political considerations in appointments at
the bottom of the personnel ladder, including interns, to the firing of
qualified and experienced U.S. Attorneys, the Department of Justice has
failed to set the standards Americans expect to fairly and impartially
implement and enforce the laws of this nation.
I hope that the Department of Justice will never again be complicit
in allowing the law to be twisted and contorted for political purposes
that resulted in the shameful and inhumane practices that were carried
at Guantanamo Bay, and other locations, under the banner of ``fighting
terrorism.'' In my mind, terror is having the law turned on its head
and secretly manipulated to justify the terrible injustices that were
practiced in the name of ``protecting freedom.''
I hope today's hearing will help us re-establish the highest level
of integrity and fidelity to the Constitution that will restore the
confidence of all Americans in their government. Our work on this
Committee is designed to ensure that under the next administration and
future administrations, the Department of Justice will protect
constitutional rights and not pervert them.
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Member, Committee on the
Judiciary
Appendices to the Prepared Statement of Walter Dellinger, former
Assistant Attorney General, Office of Legal Counsel, U.S. Department of
Justice