[Senate Hearing 110-941]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-941
 
COERCIVE INTERROGATION TECHNIQUES: DO THEY WORK, ARE THEY RELIABLE, AND 
                   WHAT DID THE FBI KNOW ABOUT THEM?

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 10, 2008

                               __________

                          Serial No. J-110-98

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................   123
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     1
    prepared statement...........................................   125
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   159
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     4

                               WITNESSES

Caproni, Valerie E., General Counsel, Federal Bureau of 
  Investigation, Washington, D.C.................................     9
Cloonan, John E., retired Special Agent, West Caldwell, New 
  Jersey.........................................................    32
Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C................................................     7
Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law 
  School, Cambridge, Massachusetts...............................    40
Sands, Philippe, QC, Professor of Law and Director of the Centre 
  of International Courts and Tribunals, University College 
  London.........................................................    37

                         QUESTIONS AND ANSWERS

Responses of Valerie Caproni to questions submitted by Senators 
  Kennedy, Feingold and Schumer..................................    51
Responses of John (Jack) Cloonan to questions submitted by 
  Senator Kennedy................................................    65
Responses of Glenn A. Fine to questions submitted by Senators 
  Schumer, Feingold and Kennedy..................................    67
Responses of Philip B. Heymann to questions submitted by Senator 
  Kennedy........................................................    73
Responses of Philippe Sands to questions submitted by Senator 
  Kennedy........................................................   108

                       SUBMISSIONS FOR THE RECORD

Caproni, Valerie E., General Counsel, federal Bureau of 
  Investigation, Washington, D.C., statement.....................   112
Cloonan, John E., retired Special Agent, West Caldwell, New 
  Jersey, statement..............................................   116
Fine, Gleen A., Inspector General, Department of Justice, 
  Washington, D.C., statement....................................   130
Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law 
  School, Cambridge, Massachusetts, statement....................   144
Legal Analysis of Interrogation Techniquies......................   161
Sands, Philippe, AC, Professor of Law and Director of the Centre 
  of International Courts and Tribunals, University College 
  London, statement and attachment...............................   164
Whitehouse, Sheldon, a U.S. Senator from the State of Rhode 
  Island, Intelligence hearing transcript........................   206


COERCIVE INTERROGATION TECHNIQUES: DO THEY WORK, ARE THEY RELIABLE, AND 
                   WHAT DID THE FBI KNOW ABOUT THEM?

                              ----------                              


                         TUESDAY, JUNE 10, 2008

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:36 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Dianne 
Feinstein, presiding.
    Present: Senators Feinstein, Feingold, Schumer, Durbin, 
Cardin, Whitehouse, and Specter.

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM 
                    THE STATE OF CALIFORNIA

    Senator Feinstein. I would like to quickly announce that 
there are five votes at 11 o'clock. Our witnesses this morning 
and I think the members are aware of that. My plan would be to 
recess the Committee at 11, and if we are not concluded, we 
will be able to recess and reconvene here at 2 o'clock in the 
afternoon.
    I might say this: For me, this is a very important hearing. 
I serve on the Intelligence Committee, so I am well aware of 
enhanced interrogation techniques. And the question before us 
is a very difficult and important subject: coercive 
interrogations and torture.
    Historically, the United States has been steadfast in its 
resolve that torture is unnecessary, unreliable, and un-
American. Without torture, we succeeded in conflicts that 
threatened the very existence of our country, including a Civil 
War, a World War, and numerous other conflicts and enemies.
    Despite President Bush's promise that the United States 
would fight the war on terror consistent with American values 
and ``in the finest traditions of valor,'' the administration 
decided, as the Vice President said in 2001, to ``go to the 
dark side''--to use coercive interrogation.
    This decision by the Bush administration has had profound 
effects.
    Cruel, inhuman, and degrading treatment of prisoners under 
American control I believe violates our Nation's laws and 
values. It damages our reputation in the world, and it serves 
as a recruitment tool for our enemies. Perhaps more 
importantly, it has also limited our ability to obtain reliable 
and usable intelligence to help combat the war on terror, 
prevent additional threats, and bring to justice those who have 
sought to harm our country.
    I have listened to the experts, such as FBI Director 
Mueller, DIA Director General Maples, and General David 
Petraeus. All insist that even with hardened terrorists, you 
get more and better intelligence without resorting to coercive 
interrogations and torture.
    The bottom line is that there are many interrogation 
techniques that work, even against al Qaeda, without resorting 
to torture. One of today's witnesses, former FBI Special Agent 
Jack Cloonan, has personally interrogated members of al Qaeda 
within the confines of the Geneva Conventions and obtained 
valuable, reliable, and usable intelligence.
    Mr. Cloonan was involved in the interrogation of Ibn al-
Sheik Al-Libi, the first high-profile al Qaeda member captured 
after September 11th, and Ali Abdul Saud Mohammed, one of Osama 
bin Laden's trainers. In both cases, the FBI used non-coercive 
interrogations to obtain valuable information about al Qaeda. I 
look forward to Mr. Cloonan's testimony about how the non-
coercive interrogation techniques used by the FBI work to 
provide reliable and usable intelligence.
    The FBI has long recognized the unreliability of 
information obtained from coercion and torture. It has based 
its belief on years of experience and behavioral science. This 
hearing will examine how non-coercive interrogation techniques 
can be used effectively and why coercive interrogations and 
torture do not yield reliable and useful intelligence for the 
most part.
    The hearing will also review the recently released 
Department of Justice Inspector General's report detailing the 
FBI's knowledge and involvement in the coercive interrogation 
techniques and torture that occurred in Guantanamo, 
Afghanistan, and Iraq after the September 11, 2001, attack.
    Both Senator Specter, our Ranking Member today, and I have 
heard numerous times the Inspector General report on the FBI, 
and let me just say I believe he is a very square shooter and 
one of our finest Inspector Generals.
    To its credit, the FBI was steadfast in its unwillingness 
to use coercion and torture as a means to obtain information. 
FBI agents on the ground at Guantanamo and other sites 
repeatedly voiced concerns about the harsh interrogations being 
conducted by military and DOD interrogators. In total, over 200 
FBI agents raised these concerns. For that, the FBI should be 
commended.
    Questions remain, however, about why FBI leadership was not 
notified more quickly about the agents' concerns at Guantanamo 
and why formal guidance was not provided to FBI agents in the 
field until May of 2004-2 years after the first complaints were 
received at FBI Headquarters about coercive interrogations. I 
hope Mr. Fine and Ms. Caproni, the legal counsel of the FBI, 
can address these issues.
    The FBI should also be credited for raising the alarm to 
the Department of Defense about what was happening at 
Guantanamo. We now know that as early as October 2002, FBI 
agents at Guantanamo alerted Marion Bowman, the FBI's Deputy 
General Counsel in charge of national security, about coercive 
interrogations occurring at Guantanamo. On November 27, 2002, 
an FBI agent at Guantanamo sent a written legal analysis 
questioning the legality of coercive interrogations and noting 
that these techniques appeared to violate the U.S. torture 
statue.
    In November and December 2002, Mr. Bowman personally 
contacted officials in the DOD General Counsel's office, 
including General Counsel Jim Haynes, about the FBI's concerns. 
According to Mr. Bowman, Haynes claimed he did not know 
anything about the coercive interrogation techniques that were 
occurring at Guantanamo, despite the fact that he recommended 
on November 27, 2002, that Secretary Rumsfeld formally approve 
the very techniques that were being used at Guantanamo.
    Clearly, there are questions that need to be answered 
regarding how the interrogation policies at Guantanamo were 
formulated and authorized, whether they were from the bottom 
up, as the Administration has stated, or from the top down, as 
the evidence is beginning to show. Whose idea was it? Who was 
consulted? And when complaints were raised about what was 
happening at Guantanamo, what was done?
    Historically, the Bush administration has argued that the 
military commanders and JAG lawyers on the ground requested the 
initial authorization and provided the legal justification to 
use coercive interrogation techniques against detainees. In 
June of 2006, in testimony before this Committee, then-DOD 
General Counsel Jim Haynes said that the request to use these 
harsh interrogation techniques was made by the commanding 
general at Guantanamo, and that the request ``came with a 
concurring legal opinion of his Judge Advocate.''
    Yet, as time goes by and more facts come out, the 
administration's explanation has become increasingly 
discredited. More and more evidence shows that the decision to 
use coercive interrogation techniques was made at the highest 
levels of the Bush administration.
    Just a moment on the timeline:
    On August 1, 2002, the DOJ Office of Legal Counsel 
completed the so-called Yoo-Bybee memos providing a legal 
justification for coercive interrogation techniques and 
torture.
    On September 25 and 26, just about a month later, a month 
and a half, DOD General Counsel Haynes, White House Counsel 
Alberto Gonzales, and Vice Presidential Counsel David Addington 
visited Guantanamo and witnessed detainee interrogations.
    On November 23, 2002, Secretary of Defense Rumsfeld 
verbally authorized harsh interrogations of Muhammad Al 
Qahtani, a high-value detainee at Guantanamo.
    On November 27, 2002, Haynes recommended that Secretary 
Rumsfeld formally authorize coercive interrogation techniques 
at Guantanamo.
    On December 2, 2002, Secretary Rumsfeld approved, in 
writing, the coercive interrogations at Guantanamo.
    Philippe Sands, who is testifying today--and I very much 
appreciate the fact he has come from London to provide this 
testimony, and this is one of the reasons that if we are not 
concluded, we will recess at 11 and come back at 2:00--has 
interviewed many of the Bush administration officials involved 
in the authorization to use coercive interrogation techniques 
at Guantanamo, including former DOD General Counsel Jim Haynes. 
He has asked to take the oath, because he wants to be sure that 
everybody knows he will be telling us the truth as he knows it. 
And I will administer the oath at that time.
    I look forward to hearing what he has learned about how the 
decision to use coercive interrogations and torture was made in 
the Bush administration.
    It is absolutely essential that we obtain reliable and 
usable intelligence to successfully fight the war on terror. I 
believe it is wrong to use coercive interrogation and torture 
to try to accomplish that goal. I believe we must stop it, and 
as a member of the Intelligence Committee, I am doing 
everything I can think of to do just that.
    It is also imperative, however, that we examine how 
complaints about coercive interrogations were handled by the 
FBI and how those harsh interrogation techniques were first 
authorized.
    So I would like now, if I might, to turn it over to my very 
distinguished Ranking Member. I am delighted that you are 
apparently substituting for Senator Kyl today. I thank you very 
much for being here as Ranking Member of the entire Judiciary 
Committee, Senator Specter.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Well, thank you, Madam Chairwoman. I do 
not believe that I am substituting for anybody. I am the 
Ranking Member. This is my position. So I am glad to be here on 
this--
    Senator Feinstein. All right. Thank you.
    Senator Specter [continuing]. Very important subject.
    Senator Feinstein. I misspoke. I did not realize this is a 
full Committee hearing. I thought it was my Subcommittee 
hearing. But I am delighted as such to give you due deference, 
and I do so immediately.
    Senator Specter. I am not that concerned about deference, 
due or not, but I think you should note that you are the 
Chairman of the full Committee today, so your status is a 
status which has been clarified. But on to the subject.
    This is obviously a very, very important hearing to have an 
airing and public disclosure as to what our interrogation 
techniques are. There is no doubt that torture is against the 
law of the United States, the Geneva Convention, and it ought 
not to be countenanced in any way, shape, or form. We have the 
famous Bybee memorandum, which has been thoroughly discredited. 
We have voted on issues like waterboarding, where I voted 
against having waterboarding as a technique. And as Senator 
Feinstein has noted, there is obviously a very, very high value 
on getting important intelligence information.
    The war on terrorism is with us all the time. We do not 
have to talk about the ravages of 9/11 or about terrorism 
around the world, and it is an ongoing threat. And we need 
strong law enforcement techniques, but they have to be balanced 
at all times--at all times--against constitutional rights. And 
this Committee has been very diligent on a whole range of 
analyses.
    We have taken up the expansion of Executive power with the 
Terrorist Surveillance Program. My sense is that decades from 
now, historians will look back upon this period in our history 
for the very vast increase of Executive power. And, finally, we 
brought the Terrorist Surveillance Program under the 
jurisdiction of the Foreign Intelligence Surveillance Court. 
Senator Feinstein and I labored long and hard to structure some 
legislation on that subject. We have seen the signing 
statements where the executive branch has disregarded the will 
of Congress. We have seen grave problems on rendition, on state 
secrets, and it is an ongoing battle. And Congress has not been 
very effective, in my judgment, on restraining the expansion of 
Executive authority. Candidly, neither have the courts.
    I was very disappointed when the Supreme Court of the 
United States denied cert. on the litigation challenging the 
constitutionality of the Terrorist Surveillance Program. It was 
declared unconstitutional by a Federal judge. In a 2-1 
decision, the Sixth Circuit said there was no standing, and the 
Supreme Court denied cert. We could have used some help on the 
standing issue. That is just one case where the executive 
branch has insisted that Article II powers as Commander-in-
Chief enable the President to disregard the statutes, the 
Foreign Intelligence Surveillance Act, just as the 
administration has disregarded the National Security Act of 
1947 in not informing the Intelligence Committees as to what 
was going on.
    And now we have the habeas corpus issue, where the Supreme 
Court has in effect ducked the issue. We have the Boumediene 
case where the District of Columbia Circuit ignored the Rasul 
decision, waiting to see if habeas corpus will be reinstated on 
what in my legal judgment was a clear-cut opinion by Justice 
Stevens, that habeas corpus is grounded in the Constitution as 
well as in the statute.
    I make these comments in a broader context of our efforts 
to restrain Executive authority. And when you come down to the 
focus as to interrogation techniques, there obviously has to be 
greater restraint than what the executive branch has 
undertaken.
    It was my hope that we would have General Hayden testify 
here today. There is a debate in the intelligence agencies 
about the various levels of responsibility of what the Army 
needs to do by way of interrogation defined by the Army Field 
Manual, contrasted with what the FBI does, which is 
significantly different, contrasted yet again with what the CIA 
does, which is significantly different.
    There have been representations that these interrogation 
techniques have yielded very, very valuable information to 
prevent terrorist attacks. Candidly, I have not seen that. And 
perhaps it has to be disclosed in a closed session, but those 
are issues which we have to weigh carefully. But it is a great 
credit to our system that we have a former FBI agent, Jack 
Cloonan, stepping forward to blow the whistle, in effect, about 
what is going on with the intelligence tactics at Guantanamo. 
It is a credit to our system that the Inspector General, Mr. 
Fine, and counsel, Ms. Caproni, come forward with critical 
analysis and that this Committee is ready to put a microscope 
under what is being done.
    We have Phil Heymann, former Deputy Attorney General, who 
has written extensively on this subject and has offered a 
somewhat different opinion that highly coercive interrogation 
techniques that fall short of torture may be necessary and 
legal, but only if strict guidelines are in place. Well, let's 
explore that. Let's explore what the guidelines should be and 
what are those highly coercive interrogation techniques are 
permissible which fall short of torture.
    We all agree that torture is illegal and ought not to be 
countenanced. You have very extensive writing by a notable 
civil libertarian, Professor Alan Dershowitz from Harvard, who 
talks about torture warrants and going to a judicial official. 
We talk about presenting the matter to the highest authorities 
in our civil government, including the President of the United 
States. And we talk about the so-called ticking bomb case. What 
do you do if hundreds of thousands of people are about to be 
killed? So we are dealing in very, very deep water, and this 
ought to have a very heavy glare of congressional analysis. And 
we are going to try to do that today and in the future.
    I am 37 seconds over, Madam Chairwoman. I hope that does 
not foul up the timing too much.
    Senator Feinstein. Yes, I am surprised by that. Thank you 
very much, and it is good to have you here.
    Senator Specter. Thank you.
    Senator Feinstein. I would like to ask Senator Whitehouse--
we serve together on the Intelligence Committee and have worked 
together on these issues and, I think, see things similarly. 
Senator Whitehouse, would you like to make a statement?
    Senator Whitehouse. Thank you, Chairman. I just want to 
congratulate you on holding this hearing and express my 
appreciation that the Ranking Member is here. As you know, 
months ago when I proposed the first limitation on the CIA's 
use of these abusive techniques, the only Senator who 
cosponsored it was you, Chairman, and it was your amendment 
that ended up passing in the Intelligence authorization, and 
you have been in the Committee, both behind closed doors and in 
public, very firm and strong in your views on the subject. And 
it has been an inspiration for this new Senator to see you in 
action, and I appreciate that this is going on.
    I would like to ask, do you remember we had an interesting 
hearing in the Intelligence Committee in which a colonel who 
had 22 years of interrogation experience with the United States 
Air Force Special Operations Command testified about the 
relative value of abusive techniques versus effective 
techniques? I think you and I were perhaps the only people left 
in the Intelligence hearing at the time that that evidence was 
taken. But it has been declassified, and I would ask unanimous 
consent that it be made a part of the record of this hearing.
    Senator Feinstein. Without objection.
    Senator Whitehouse. And I thank Chair for her courtesy and 
for this hearing.
    Senator Feinstein. Thank you very much.
    We will now proceed with panel No. 1. I would like both Mr. 
Fine and Ms. Caproni, if possible, to summarize. We do have a 
5-minute rule. I am going to change it today, but, please, 
recognize that we have a vote at 11, and we would like to start 
with the second panel. And so I would appreciate your being 
relatively concise.
    There will be 7-minute rounds for the Committee, and we 
will follow the early-bird rule, alternating between sides.
    So if I may begin with you, Mr. Fine, I would like to 
introduce you. You have served as the United States Inspector 
General for the Department of Justice since December 15, 2000. 
You are charged with conducting independent investigations, 
audits, and inspections of the United States Department of 
Justice personnel and programs. Your office recently released a 
report reviewing the FBI's involvement in and observations of 
detainee interrogations in Guantanamo, Afghanistan, and Iraq. 
Prior to becoming Inspector General, Mr. Fine worked in the 
Office of the Inspector General for over a decade. He has also 
served as an Assistant United States Attorney.
    At this time, I would like to introduce Valerie Caproni as 
well. She has served as the General Counsel of the FBI's Office 
of General Counsel since August of 2003. She is responsible for 
advising FBI officials on all legal issues, including national 
security law and terrorism. Prior to joining the FBI's General 
Counsel Office, Ms. Caproni worked as a regional director for 
the Securities and Exchange Commission. Over the course of her 
career, she has had extensive experience in both the private 
and public sector, including time as an Assistant U.S. Attorney 
in the Eastern District of New York.
    Welcome, Mr. Fine. Welcome, Ms. Caproni. Mr. Fine, if you 
would begin.

STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, U.S. DEPARTMENT 
                  OF JUSTICE, WASHINGTON, D.C.

    Mr. Fine. Thank you, Madam Chairwoman, Senator Specter, 
members of the Committee. Thank you for inviting me to testify 
about the Office of the Inspector General's report on the FBI's 
involvement in and observations of detainee interrogations in 
Guantanamo Bay, Afghanistan, and Iraq. As part of our 
investigation, the OIG team surveyed over 1,000 FBI employees 
who were deployed overseas to one of the military zones between 
2001 and 2004. In addition, the team interviewed more than 230 
witnesses and reviewed more than half a million pages of 
documents. Our team also made two trips to Guantanamo.
    Our investigation focused on detainee treatment in 
facilities under the control of the Department of Defense. With 
limited exceptions, we were not able to investigate the 
observations of FBI employees regarding detainees held at CIA 
facilities. In my testimony this morning, I will briefly 
summarize some of our major findings. In line with the subject 
of this hearing, I will also focus on the FBI's decision not to 
participate in joint interrogations of detainees with other 
agencies who were using techniques not permitted by the FBI.
    Our investigation found that the vast majority of the FBI 
agents deployed to the military zones adhered to FBI policies. 
FBI officials and agents told us that the FBI's approach, 
coupled with a strong substantive knowledge of al Qaeda, had 
produced extensive useful information in both pre-September 
11th terrorism investigations as well as in the post-September 
11th context. DOJ officials also said they agreed with the 
FBI's approach.
    FBI agents, however, encountered interrogators from other 
agencies who used aggressive interrogation techniques. In 
August 2002, FBI Director Mueller decided that the FBI would 
not participate in the joint interrogation of detainees with 
other agencies in which techniques not allowed by the FBI were 
used. This policy was established as a result of the 
interrogation of Abu Zubaydah, who was captured in Pakistan in 
March 2002 and interrogated at a CIA facility. We determined 
that FBI agents observed the CIA use techniques that 
undoubtedly would not be permitted under FBI interview 
policies.
    The head of the FBI's Counterterrorism Division at the 
time, Pasquale D'Amuro, gave the OIG several reasons for the 
FBI's position. First, he said he believed that the military's 
aggressive techniques were not as effective for developing 
accurate information as the FBI's rapport-based approach, which 
he stated was used successfully to obtain cooperation from al 
Qaeda members.
    Second, D'Amuro said that the use of aggressive techniques 
failed to take into account an ``end game.'' He stated that 
even a military tribunal would require some standard for 
admissibility of evidence.
    And, third, D'Amuro stated that using these techniques 
helped al Qaeda in spreading negative views of the United 
States.
    Our investigation found that in 2002, the friction between 
the FBI and the military increased regarding the interrogation 
of Muhammad Al Qahtani at Guantanamo. The FBI advocated a long-
term rapport-based strategy, while the military insisted on a 
different, more aggressive approach. Despite the FBI's 
objections, the military proceeded with its interrogation plan 
for Al Qahtani. The techniques used on him during this time 
period included stress positions, 20-hour interrogations, tying 
a dog leash to his chain and leading him through a series of 
dog tricks, stripping him naked in the presence of a female, 
repeatedly pouring water on his head, and instructing him to 
pray to an idol shrine.
    We were unable to determine definitively whether the 
concerns of the FBI and the Department of Justice about DOD 
interrogation techniques were addressed by any of the Federal 
Government's interagency groups that resolve disputes about 
antiterrorism issues. Several senior Department of Justice 
officials told us that the DOJ raised concerns about particular 
DOD practices in 2003 with the National Security Council and 
the DOD. We found no evidence that these concerns influenced 
Department of Defense interrogation policies. Ultimately, the 
DOD made the decisions regarding what interrogation techniques 
were used by military interrogators because the detainees were 
held in DOD facilities and the FBI was there in a support 
capacity.
    As part of our review, we also examined the training that 
FBI agents received regarding issues of detainee interrogation. 
In May 2004, following the Abu Ghraib disclosures, the FBI 
issued written guidance stating that the FBI personnel may not 
participate in interrogation techniques that violate FBI 
policies regardless of whether the co-interrogators were in 
compliance with their own policies. We concluded that while the 
FBI eventually provided some guidance to its agents about 
conduct in military zones, FBI headquarters did not provide 
timely guidance or fully respond to requests from its agents 
for additional guidance.
    We also investigated several specific allegations that FBI 
agents participated in abuse of detainees in connection with 
interrogations in military zones. In general, we did not 
substantiate these allegations. We found that most FBI 
employees adhered to the FBI's traditional interview strategies 
in the military zones
    In conclusion, we believe that while the FBI could have 
provided clearer guidance earlier and could have pressed harder 
its concerns about detainee abuse by other agencies, the FBI 
should be credited for its conduct and professionalism and for 
generally avoiding participation in detainee abuse.
    That concludes my testimony, and I would be pleased to 
answer any questions.
    [The prepared statement of Mr. Fine appears as a submission 
for the record.]
    Senator Feinstein. Thank you very much, Mr. Fine.
    Ms. Caproni.

   STATEMENT OF VALERIE E. CAPRONI, GENERAL COUNSEL, FEDERAL 
           BUREAU OF INVESTIGATION, WASHINGTON, D.C.

    Ms. Caproni. Good morning, Madam Chairwoman, Ranking Member 
Specter, and members of the Committee. It is my pleasure to 
appear before you today to discuss with the Committee the FBI's 
knowledge of interrogation techniques used by other agencies. 
The FBI is pleased that the Office of the Inspector General 
credited the FBI in its recent report on this subject for its 
``...conduct and professionalism in the military zones of 
Guantanamo Bay, Afghanistan, and Iraq.''
    As you know, the primary mission of the FBI is to lead law 
enforcement and domestic intelligence efforts to protect the 
United States and its interests from terrorism. FBI 
intelligence derived from Iraq, Afghanistan, and Guantanamo Bay 
has led to numerous investigations to identify and disrupt 
terrorist threats in the United States and has provided 
important intelligence in ongoing investigations.
    We were gratified to read the conclusion of the IG that 
``the vast majority of FBI agents in the military zones 
understood that existing FBI policies prohibiting coercive 
interrogation tactics continued to apply in the military zones 
and that they should not engage in conduct overseas that would 
not be permitted under FBI policy in the United States.''
    The FBI decided in 2002 that, regardless of what other 
agencies might be authorized to do, the FBI would continue to 
apply FBI interrogation policies regardless of where the 
interrogation was occurring and regardless of who was being 
interrogated. The IG's report confirmed that our agents 
complied with that policy with very few exceptions. 
Significantly, the IG found no instance in which an FBI agent 
participated in the sort of clear detainee abuse that some 
members of the military used at Abu Ghraib prison.
    Consistent with the FBI's long history of success in 
custodial interrogations, FBI policy is to employ non-coercive, 
rapport-based interview techniques, whether we are questioning 
detainees captured in a military zone or individuals arrested 
in the United States. The most significant difference between 
interviews of foreign detainees and interviews of defendants 
under arrest in the United States is that foreign detainees are 
generally not read Miranda warnings.
    As the IG's report makes clear, the FBI Director determined 
in 2002 that the FBI would not participate with other 
Government agencies in joint interrogations in which techniques 
that would not be permissible in the United States were used. 
That decision was consistent with the FBI's longstanding belief 
that the most effective way to obtain accurate information is 
to use rapport-building techniques in interviews.
    After the Abu Ghraib disclosures, the FBI issued written 
policy which reaffirmed existing FBI policy and reminded FBI 
agents that they were prohibited from using coercive or abusive 
techniques, regardless of whether the technique was authorized 
by any other agency. The policy also directed agents that they 
were not to participate in any treatment or interrogation 
technique that is in violation of FBI guidelines and that they 
were required to report any incident in which a detainee was 
abused or mistreated. All allegations of detainee mistreatment 
during the course of interrogations were reviewed by FBI 
headquarters and referred to the appropriate agency for 
investigation.
    In short, we are proud of the fact that FBI agents acted 
consistently with our policies despite the existence of 
circumstances where it might have been very easy to go along 
with other agencies' techniques in the interest of interagency 
harmony. The FBI will continue to use rapport-building 
techniques when conducting interviews in the military zones 
because we believe these techniques are the most efficacious 
way to obtain reliable information during interrogations.
    I appreciate the opportunity to appear before the Committee 
and look forward to your questions. Thank you.
    [The prepared statement of Ms. Caproni appears as a 
submission for the record.]
    Senator Feinstein. Thank you very much. The order will be 
myself, Senator Specter, early bird, Senator Whitehouse, and 
then Senator Feingold--oh, Senator Feingold was here before 
Senator Whitehouse? All right. Senator Feingold, then Senator 
Whitehouse.
    Mr. Fine, if I could begin, in your report, did you get any 
information about FBI agents observing waterboarding?
    Mr. Fine. No. We talk about the FBI's involvement with the 
interrogation of Abu Zubaydah. They did not witness 
waterboarding. I think the CIA has subsequently acknowledged 
waterboarding Zubaydah, but they did not report to us that they 
witnessed that conduct.
    Senator Feinstein. Did any of them comment on long periods 
of isolation?
    Mr. Fine. Yes, isolation was a tactic used by the military, 
and there were periods of isolation, sometimes more than 30 
days, that were used in Guantanamo.
    Senator Feinstein. And on Al Qahtani, what information do 
you have on how long he has been held in isolation?
    Mr. Fine. I am not sure he was one that was the subject of 
the long-term isolation. There was a whole series of tactics 
used on him. Isolation was not the most coercive tactic used on 
him.
    Senator Feinstein. Okay. Now, you pointed out or your 
report points out that over 200 agents observed or heard 
military interrogators using a variety of harsh techniques, and 
you spell them out: stress positions, short shackling, the 
isolation, growling military dogs, twisting thumbs back, using 
a female interrogator to touch or provoke a detainee in a 
sexual manner. And these allegations were made public in FBI e-
mails that were obtained by the ACLU through Freedom of 
Information requests.
    The report also states that these agents expressed strong 
concern about what they observed to senior officials at FBI 
headquarters and that, in early 2003, FBI agents continued to 
raise objections and sought guidance, but no response was 
forthcoming.
    Finally, on May 19, 2004, FBI General Counsel finally 
issued an official policy on what FBI agents should do if they 
saw coercive or abusive techniques.
    I would like you to explain, if you can, what happened to 
concerns or complaints that were raised prior to when the 
official policy was finally issued, who received them, how did 
they go up the chain of command, what was done to follow up on 
them, and have they ever been dealt with.
    Mr. Fine. We talk about that in the report in that the 
concerns originally arose when the Abu Zubaydah case and the Al 
Qahtani case, the concerns were raised to FBI headquarters. 
They eventually resulted in the policy that Director Mueller 
instituted that the FBI agents were not to participate--
    Senator Feinstein. Two years later.
    Mr. Fine. Well, that happened in 2002, August of 2002, and 
the concerns continued. We did find that the concerns went to 
the Department of Justice, that there were senior officials in 
the Department of Justice who heard about the concerns and 
raised the concerns with the Department of Defense, and we also 
heard that they raised it with the National Security Council.
    The issue that was raised, though, from the interviews that 
we conducted, was more an issue of effectiveness. Was this an 
effectiveness tactic to obtain reliable and accurate 
information? They raised the concerns with the Department of 
Defense, but the Department of Defense, from what we were told, 
dismissed those concerns and no changes were made in the 
Department of Defense's strategy. Ultimately, it was the 
Department of Defense's decision. These detainees were under 
their control. The Department of Justice and the FBI believed 
that the Department of Defense tactics that were used were not 
effective and should have been changed, but they were not 
successful in--
    Senator Feinstein. Did you raise them with the Department 
of Justice?
    Mr. Fine. Did?
    Senator Feinstein. Did the FBI raise those concerns with 
the Department of Justice?
    Mr. Fine. Yes, with officials in the Criminal Division, and 
ultimately we heard that even Attorney General Ashcroft heard 
about the concerns, particularly with regard to Al Qahtani and 
raised those codncerns. We were not able to definitively find 
out what he did because he declined our request to interview 
him.
    Senator Feinstein. Did Department of Justice at any time 
say that those techniques were legal?
    Mr. Fine. Well, that is an issue about what the Office of 
Legal Counsel has done and its legal opinions, and you talked 
about the Bybee-Yoo memo. There are other classified memos. So 
it was--
    Senator Feinstein. No, I am not talking about the memos. We 
are now, fortunately, all aware of them.
    Mr. Fine. Right.
    Senator Feinstein. I am talking about when these reports 
came in and somebody in the upper echelons of the FBI--and I 
will get to who in a minute--called Justice, I would assume 
they called Justice to say, ``Is this legal? '' What I am 
asking is what was the answer that came back.
    Mr. Fine. What we were told was that the concerns mostly 
related not to the legality of it, but to the effectiveness of 
it. That is what the people told us that the concerns that were 
raised--
    Senator Feinstein. Well, why would they raise effectiveness 
with DOJ?
    Mr. Fine. Pardon me?
    Senator Feinstein. Why would they raise effectiveness with 
Justice?
    Mr. Fine. Because Justice is the component overseeing the 
FBI and had participation in interagency councils, and the FBI 
believed that these techniques were not getting actionable 
information, that they were unsophisticated and unproductive, 
and that they asked the Department of Justice to get involved.
    Senator Feinstein. Now, how far up the line at the FBI did 
these complaints go?
    Mr. Fine. In general, the complaints went to the 
Counterterrorism Division. We talked about it going up higher 
and that there were some--the concerns were raised at the 
highest levels, not constant concerns or not in lots of 
specificity, but particularly with regard to Al Qahtani, those 
concerns were raised at high levels.
    Senator Feinstein. Did they reach the Director?
    Mr. Fine. He recalled general concerns. I do not think he 
recalled in specifics and in clear detail, but he was aware of 
concerns about the Department of Defense interrogation tactics.
    Senator Feinstein. And what did the Director do about those 
concerns?
    Mr. Fine. The first thing he did was institute the policy 
that the FBI was not to participate in it. In terms of further 
issues, it is not clear that he was the one who was raising the 
concerns over to the Department of Defense; rather, we found 
that officials in the Counterterrorism Division, the Military 
Liaison and Detainee Unit, and also Spike Bowman, raised 
concerns with other agencies.
    Senator Feinstein. Could one conclude--and I am just asking 
this question now--that Director Mueller raised these concerns 
and was rebuffed and, therefore, decided that the FBI would not 
cooperate in these interrogations?
    Mr. Fine. I think what we were told was that when the 
concerns were raised, he made that decision for the reasons 
that Pasquale D'Amuro stated that I stated in my oral 
statement. I do not think it was because he was rebuffed. I 
think it was because he decided that this was not something 
that the FBI should participate in.
    Senator Feinstein. Thank you very much.
    Can you tell me how many reports were made?
    Mr. Fine. How many?
    Senator Feinstein. Yes.
    Mr. Fine. It is not clear how many reports were made, but 
there were concerns being raised--
    Senator Feinstein. Are we talking about dozens of reports 
coming back?
    Mr. Fine. Well, the reports would go through the on-scene 
commander. The on-scene commander would sometimes raise it in 
the Counterterrorism Division. The problem was that the people 
did not know what was authorized and what was not authorized, 
and at some point they assumed these tactics were authorized. 
So they sort of stopped making complaints about them because 
they did not know what was authorized and what was not 
authorized.
    Senator Feinstein. Thank you very much.
    Senator Specter.
    Senator Specter. Mr. Fine, there is a clear distinction as 
to what the FBI's duty was on the issue of not engaging in 
these kinds of interrogation techniques and blowing the whistle 
on them. Now, what did the FBI do by way of blowing the 
whistle? And the really critical factor, as I listened to your 
testimony, is how far it went up the chain of command and 
precisely what did Director Mueller do. It seems to me that 
where the FBI witnesses interrogation techniques which the FBI 
believes are improper, perhaps even illegal, perhaps even 
torture, that there is a duty to take it to the top. And that 
requires not generalizations but did you interview Director 
Mueller?
    Mr. Fine. Our investigators did interview Director Mueller.
    Senator Specter. I asked you if you interviewed Director 
Mueller.
    Mr. Fine. No.
    Senator Specter. Why not?
    Mr. Fine. Because our investigation was conducted by 
trained investigators. I do not conduct the investigations. All 
the investigations we participated in--
    Senator Specter. Okay. The trained investigators questioned 
him. Did they ask him specifically whom he reported these 
abusive tactics to?
    Mr. Fine. I believe they asked him if he made reports of 
this.
    Senator Specter. But wait a minute. I do not want to know 
what you believe. This is a very critical question. It seems to 
me that if the Director is to be acting properly and he finds 
out something that is going on which is improper or illegal, he 
ought to take it up with the Attorney General, and he ought to 
find out what the Attorney General is doing about it. And if he 
is not satisfied with what the Attorney General is doing about 
it, he ought to take it up with White House Counsel, or he 
ought to take it up with the President. The FBI Director has 
access to the President. What are the specifics? What did 
Mueller say or at least what was Mueller asked?
    Mr. Fine. I think what Director Mueller said, Senator 
Specter, was that he was aware that the legality of this was 
being assessed by the Department of Justice, it was changing; 
that there were people in the Department of Justice, the Office 
of Legal Counsel, who were blessing some of these tactics; and 
that the Department of Justice had reviewed it and as a result, 
he decided that his agents would not be involved with this.
    Senator Specter. Well, it seems to me that that is 
insufficient. To say that the practices were changing--your 
words--that is not to say that they were changed. That is not 
to say that they were stopped.
    Now, you made a brief comment about Attorney General 
Ashcroft specifically. What did your investigation show as to 
what Attorney General Ashcroft was told?
    Mr. Fine. We were informed that Attorney General Ashcroft 
was aware of the complaints, mostly in terms of the 
effectiveness of the tactics that were being used.
    Senator Specter. Well, could you be more specific? Did your 
investigators question Ashcroft?
    Mr. Fine. No. We asked to, and he declined our request for 
an interview.
    Senator Specter. So when he declined, what did you do about 
that?
    Mr. Fine. We asked the people around him. We asked--we 
interviewed Deputy Attorney General Thompson. We interviewed 
Michael Chertoff. We interviewed--
    Senator Specter. You asked the Deputy Attorney General, and 
what did he say--Thompson?
    Mr. Fine. He did not remember the complaints or the 
specific complaints--
    Senator Specter. He did not remember the complaints?
    Mr. Fine. No.
    Senator Specter. Did not amount to much in Thompson's 
opinion?
    Mr. Fine. I don't know about that, but he did not remember 
the specific complaints coming to him.
    Senator Specter. Well, it seems to me that the 
investigation--and this is a critical point. You make a 
distinction in your concluding statement that the FBI could 
have provided clearer guidance, but they should be credited 
with generally avoiding participation in detainee abuse. It 
seems to me it is not sufficient not to participate in improper 
or illegal conduct; that if they see it, they ought to blow the 
whistle and do what is necessary to stop it. Isn't that the way 
it ought to be done?
    Mr. Fine. I think that is a fair statement, Senator 
Specter, and one of the things I did say was not only should 
they have provided clearer guidance, but they could have 
pressed harder their concerns. I think they should have pressed 
harder their concerns.
    Senator Specter. Well, to say that they should have pressed 
harder is not to say very much. On your testimony, they did not 
press much at all.
    In your judgment, Mr. Fine, were the tactics used by DOD 
torture?
    Mr. Fine. We did not do a legal analysis of this based 
upon--
    Senator Specter. You did not do a legal analysis?
    Mr. Fine. No. What we--
    Senator Specter. Why not?
    Mr. Fine. Because that is not our role as the Inspector 
General. Our role is to provide the facts and to discuss what 
happened and discuss what the FBI witnessed--
    Senator Specter. Well, you have got a lawyer, you have got 
a General Counsel to make a legal judgment.
    Mr. Fine. That is correct, and also I am a lawyer. But our 
role is to provide the facts and to provide reports on this.
    Senator Specter. Let me ask you--my time is growing short. 
Let me ask you to review the facts and give this Committee a 
conclusion. Give us a conclusion as to whether DOD tactics were 
torture. You are a lot closer to it than we are. We have got 7 
minutes to sift through a lot of material. I would like to know 
what your conclusions are.
    How about in 26 seconds, Mr. Fine? We have got a lot of 
time for these--it does not amount to a whole lot. How about 
the ticking bomb situation which we theorize about so much? 
There is an opinion by an Israeli dissenting justice and there 
are comments by some pretty noted people about unusual 
circumstances if there is a ticking bomb and hundreds of 
thousands of people are in jeopardy of being killed. Is there 
any circumstance which would warrant these excessive 
interrogation tactics?
    Mr. Fine. I can envision certain circumstances, but the 
problem with that is, you know, were they used widespread and 
not in a ticking time bomb context, and that is the concern 
that I would have and the concern that--
    Senator Specter. So you think it would be appropriate to 
have an exception in the ticking bomb circumstance?
    Mr. Fine. I certainly think we ought to consider that and 
establish processes and procedures to deal with it.
    Senator Specter. We ought to consider that? We are 
considering it. I want your judgment. In a ticking bomb 
circumstance, should we use these excessive interrogation 
tactics?
    Mr. Fine. I am not sure. I am not sure about that, Senator 
Specter. I would have to think about that more.
    Senator Specter. Well, give us your judgment. You are in 
the middle of it. We are trying to come to conclusions.
    Mr. Fine. I think the problem that we saw was that these 
were not ticking time bomb situations and that there was--
    Senator Specter. Okay, I grant you that. This is a 
hypothetical that we have to come to grips with. And if you 
conclude that in the ticking bomb circumstance these tactics 
ought to be used, I would like your judgment as to how we do 
it. Should we have a warrant, which Dershowitz suggests? Should 
it go to the President? Why not take it to the President if you 
are in that kind of extremis? We would like to go beyond, Mr. 
Fine. We have great respect for what you have done and your 
independence, but, candidly, I do not think you have gone far 
enough. And we need more hard facts and more pursuit of the 
facts as to Ashcroft and as to what is going on, and I know we 
need your judgment as to what we ought to be doing. We are not 
necessarily going to follow it. That is our responsibility. But 
we ought to have the benefit of it.
    Thank you, Madam Chair.
    Senator Feinstein. Thank you very much, Senator Specter.
    First of all, the votes have been moved to 11:20 from 11 
o'clock, so there is a little more time. For those that were 
not here, we will continue at 2 o'clock in this room, and we 
will recess when the votes begin.
    Senator Feingold, I believe you are next, then Senator 
Whitehouse, and then Senator Durbin.
    Senator Feingold. Thanks, Madam Chairman. Thank you for 
holding this hearing. I ask that my full statement be placed in 
the record, but I just wanted to say that I commend the FBI 
agents discussed in the Inspector General's report who 
recognized that the kinds of abusive interrogation practices 
they witnessed other agencies employing were wrong and, just as 
important, ineffective. They deserve our credit and they 
deserve our thanks.
    Ms. Caproni, did you personally ever raise concerns about 
the CIA or Defense Department's use of abusive interrogation 
techniques with the White House, the National Security Council, 
or directly with the agencies at issue?
    Ms. Caproni. A little bit of history might be helpful in 
terms of when I came to the Bureau. I came to the Bureau in 
August 2003, so at the point that I arrived, the Director had 
already determined that the FBI would not participate in these 
techniques. There were existing OLC opinions that were highly 
classified and that we did not have access to, though the 
Bureau, kind of writ large, generally understood that there 
were existing memos.
    The first I learned that aggressive interrogations were 
being used was when Abu Ghraib broke and when we then started 
trying to find out what did FBI agents know either about what 
was going on at Abu Ghraib--actually, that was our first focus, 
and that then flushed out a lot of other information that was 
at this point--again, I had only been at the Bureau about 6 
months at this point.
    Senator Feingold. Is that your way of saying no to my 
question then, that you personally--
    Ms. Caproni. I personally did not--
    Senator Feingold. Did you ever personally raise questions 
or concerns about the CIA or Defense Department's use of 
abusive interrogation techniques with the White House, the 
National Security Council, or directly with the agencies at 
issue?
    Ms. Caproni. I did not.
    Senator Feingold. Okay. Did you witness other FBI or DOJ 
officials raising such concerns with those entities?
    Ms. Caproni. Again, I was not here when all of this 
started, so no.
    Senator Feingold. So the answer is no.
    Ms. Caproni. I have heard--I mean, I have learned 
historically what was done.
    Senator Feingold. Okay. The answer is no in terms of your 
own role or what you observed.
    Inspector General Fine, your report concludes that 
ultimately ``neither the FBI nor the DOJ had a significant 
impact on the practice of the military.'' Your report also 
explained that the Office of Legal Counsel at DOJ had opined 
that ``several interrogation techniques sought to be used by 
the CIA were legal'' and that the Secretary of Defense had 
personally authorized the use of certain abusive techniques at 
Guantanamo Bay.
    Did the OLC opinions and the fact that the techniques were 
being approved at the highest levels of the Pentagon make it 
more difficult for the FBI or DOJ to raise concerns? And might 
it have even dissuaded some from raising these issues at all?
    Mr. Fine. I think it did. I think the fact that these 
opinions existed out there did have an impact on what FBI 
agents believed was authorized and what they believed was 
acceptable for other agencies. And I think at a certain point 
it dissuaded them from raising continuous concerns about this.
    Senator Feingold. Inspector General, your report explains 
in detail how Defense Department interrogation policies changed 
repeatedly from 2001 to 2004. Just to take an example, in late 
2002 Secretary Rumsfeld authorized a series of what I would 
consider abusive interrogation techniques for use at Guantanamo 
Bay, but he then rescinded that authorization in early 2003. 
One of the techniques no longer authorized, as I understand it, 
was short shackling. Yet FBI agents reported that the use of 
this technique continued for at least another year at 
Guantanamo. And I do understand that the focus of your report 
was on the FBI.
    But is it your sense that military interrogators did not 
know what they were permitted to do given the constantly 
shifting policies and mixed messages that they were getting?
    Mr. Fine. I think there was some sense that with the 
changes in the policies that did not always get down to the 
level of the interrogators who were actually conducting the 
interrogation, and so that at points they were not sure or 
aware what exactly was authorized.
    Senator Feingold. So not necessarily willful defiance of 
what they understood to be the procedures, but some confusion 
perhaps.
    Mr. Fine. I think to some extent, yes.
    Senator Feingold. Mr. Fine, according to your report, an 
FBI agent told you that Chinese authorities came to Guantanamo 
Bay to interrogate several Uighur detainees. I know we are in 
an unclassified setting, so what can you tell me about this 
incident?
    Mr. Fine. What we can tell you is that we were informed by 
FBI agents at Guantanamo that Chinese authorities did come to 
interview the Uigurs in Guantanamo, that they were informed 
that prior to the Chinese officials' visit that the Uigurs were 
subject to what was called the ``frequent flyer program''--that 
is, they were woken up at regular intervals, every 15 minutes, 
the night before to put them in a position to be interrogated 
by the Chinese officials.
    Senator Feingold. Ms. Caproni, according to the Inspector 
General's report, you sent an e-mail in May 2004 to determine 
whether FBI agents had ever received written guidance about 
when they should decline to participate in interrogations 
conducted by the Department of Defense or should report on 
techniques that they witnessed. You found no such written 
guidance, as I understand it. Director Mueller determined in 
2002 that FBI agents should not participate in any 
interrogations involving techniques that violated FBI policy. 
If no written guidance was issued, how was that decision 
communicated to the agents on the ground?
    Ms. Caproni. It is my belief, and having read the IG's 
report, who looked extensively, that it was orally conveyed and 
that there was fairly consistent knowledge, despite the fact 
that it was not written down, that they were supposed to only 
use FBI technique, regardless of what their co-interrogators 
might be authorized to do.
    Senator Feingold. Why had the FBI not issued any guidance 
prior to May 2004, despite the fact that FBI agents had been 
dealing with military detainees for 2 years at that point?
    Ms. Caproni. Senator, I do not know. I do not know the 
answer to that. I mean, again, as soon as we realized that it 
had never--there had never been written guidance
    provided, we provided it. But I cannot answer why it was 
not given earlier.
    Senator Feingold. Mr. Fine, what about you? Do you draw any 
conclusions as to why there was no written guidance prior to 
May 2004?
    Mr. Fine. I think there should have been guidance. I think 
that it was not focused on, and I think that that was a 
problem, not providing written guidance. It is one thing to 
orally tell people things, but some of the agents had different 
understandings. It is a complicated area. It is not simply what 
you participate in but what other agencies are authorized to 
do, what you should report, whether you can interview a 
detainee who has been subjected to the other agency's 
interrogation tactics, when can you do that, how you should do 
that. It is a complicated area, and I think that written 
guidance was appropriate and should have been issued.
    Senator Feingold. I thank both of you and I thank the 
Chair.
    Senator Feinstein. Thank you very much, Senator.
    Senator Whitehouse.
    Senator Whitehouse. Thank you.
    In response to the FBI decision that you would not 
participate in the coercive methods of interrogation, it 
strikes me that there are a number of reasons why that might 
have taken place, and I would like to explore those reasons a 
little bit with both of you.
    The first reason would be to protect statements that were 
obtained for judicial use in future criminal prosecutions, 
correct?
    Ms. Caproni. I think that it accomplished that, but I am 
not sure that was a motivating factor.
    Senator Whitehouse. You are not sure that was a motivating 
factor.
    Ms. Caproni. No. I think, again, these interrogations were 
largely being done for intelligence purposes, and so while it 
is, in fact, a benefit of our techniques, I do not think that 
was the major--it was a motivating factor in the sense that, as 
Agent D'Amuro said, you need an end game, and--
    Senator Whitehouse. Would that have been the motivating 
factor? In the report, page 115 to 116, there is a discussion 
in November of 2003 in which the concern was raised that the 
DOD's interrogation methods were making Gitmo detainees 
unusable in U.S. cases. The unusable-ness, is that what you are 
referring to?
    Mr. Fine. Yes. I think that was one of the reasons why they 
were concerned about it. I am not sure that is, as Ms. Caproni 
said, the first reason, but it certainly was a factor, one of 
the reasons, yes.
    Senator Whitehouse. Would you agree with me that for an FBI 
agent simply to leave when coercive methods are being applied 
and then come back and resume after they are over clearly would 
not be an adequate response in terms--if the goal really were 
just to preserve evidence for future use judicially?
    Mr. Fine. I think that is an important issue, and that is 
the question of what kind of attenuation there is, from the 
time that the coercive tactics are used and the FBI gets 
involved, what do you have to do, how long a period of time it 
is, what do you have to tell the detainee, what are the 
circumstances of the interrogation that the FBI does after the 
military interrogation. That is a complicated issue, and simply 
coming in a few hours later probably is not sufficient.
    Senator Whitehouse. So that takes us to a second issue, 
which I think you have already discussed in your testimony, 
which is that the coercive methods are either not effective or 
not as effective as traditional expert interrogation 
techniques. Was that another motivating factor in the 
Director's decision, as best you know, to refuse to participate 
in the coercive methods.
    Ms. Caproni. Yes.
    Senator Whitehouse. Okay. A third would be concern about 
the legality of the techniques and of agent or agency liability 
for participating in them. Was that a concern?
    Ms. Caproni. It is my belief, as I have tried to 
reconstruct who knew what when, that at the time that this 
became crystallized, after Abu Zubaydah was captured, that 
there were, in fact, existing opinions so that--again, I was 
not at the Bureau at the time, so I was trying to reconstruct 
how this happened--is that that actually shifted the debate 
from it is illegal to, okay, OLC may have said it is legal, but 
we have still got to decide whether we are going to participate 
in it, we, the FBI, are going to be involved in something that, 
A, we do not think is effective; B, it is going to make the 
statements unusable in whatever the judicial end game is; and, 
three, do we want to expose our agents, who eventually, unlike 
CIA employees, unlike DOD employees, will be testifying in 
Article III courtrooms, do we want them involved in this. And I 
think all of those all came together, but it was with a 
backdrop of OLC had been involved in--
    Senator Whitehouse. Let's talk about OLC for a minute. Are 
you comfortable with the OLC opinions? One of them has already 
been publicly withdrawn.
    Ms. Caproni. Again, I am the General Counsel of the FBI. 
OLC is the agency within the Department who is charged with the 
responsibility of making those decisions. So OLC's decision 
ultimately controls.
    Senator Whitehouse. Did the FBI make any effort to either 
review the OLC decisions or to reach its own internal 
determination as to the merits of the conclusions drawn by 
those decisions?
    Ms. Caproni. Not to my knowledge.
    Senator Whitehouse. To date, still?
    Ms. Caproni. I mean, I have my opinion on the merits of 
those decisions, but, again, OLC's decisions are binding on the 
Department of Justice in terms of what is lawful and what is 
not, what is the meaning of statutes. They get the last word.
    Senator Whitehouse. Well, ultimately a court gets the last 
word.
    Ms. Caproni. Perhaps.
    Senator Whitehouse. That is a very scary word you just 
used.
    Ms. Caproni. No, no. I mean, Senator, a court gets the last 
word if the issue is joined in a courtroom. Of course, the 
court gets the last word.
    Senator Whitehouse. And with respect to the ultimate 
prospect that a court might get the last word, the FBI never 
did its own sort of double-checking or kind of due diligence to 
take a look at the OLC opinions even after one was withdrawn?
    Ms. Caproni. There was a point when I requested to see the 
opinions, and I was not shown the opinions. In fact, I did not 
really press the issue because we were not participating. So 
from the standpoint of our agents, we were not involved in the 
techniques. My understanding was that OLC had passed on them. 
And so from our perspective, we were not--I did not have 
employees that were at risk.
    Senator Whitehouse. When did you first become aware of the 
OLC opinions, of their content? When did you first have a 
chance to review them?
    Ms. Caproni. I still have not reviewed them.
    Senator Whitehouse. Just the declassified ones?
    Ms. Caproni. Correct.
    Senator Whitehouse. But the classified ones you still have 
not had a chance to review?
    Ms. Caproni. No.
    Senator Whitehouse. Have you done research of your own on 
this subject?
    Ms. Caproni. No.
    Senator Whitehouse. Well, maybe you should.
    Ms. Caproni. Again, FBI agents are not participating in 
techniques that go beyond what the FBI--
    Senator Whitehouse. No, but FBI agents may take cases into 
court, and as the case agent, they may be obliged to have to 
manage a prosecution that brings to light that these coercive 
techniques and methods were used. So it could very well become 
a part of their role as a case agent to have to respond to 
this, and in that guise, you would think that they would be 
wanting some guidance from their General Counsel.
    Ms. Caproni. I think our agents want guidance in terms of 
what is their responsibility if they are interviewing someone 
who has been subjected to these techniques, and we have had 
extensive discussions on that, and particularly with the high-
value detainees that are now in Guantanamo, worked very 
carefully with the Department of Justice--
    Senator Whitehouse. My light just went. Let me ask you one 
last question. You said you had an opinion about these OLC 
opinions. What is it?
    Ms. Caproni. It would not have been my opinion.
    Senator Whitehouse. Fair enough. My time has expired.
    Senator Feinstein. Thank you very much, Senator Whitehouse.
    Senator Durbin.
    Senator Durbin. Thank you. I want to thank you, Senator 
Feinstein, for this hearing, and I have said on the floor and 
in this Committee that I really believe that when the history 
of this time is written, one of the most unfortunate, 
embarrassing chapters will deal with this administration's 
decision to set aside what had been time-honored for 
generations, our opposition to torture. The next President will 
have an awesome responsibility to restore the image of this 
great Nation in the eyes of many people around the world who, 
unfortunately, will identify us by some of the extreme conduct 
which was the subject of this effort by the Inspector General.
    It is my understanding, Mr. Fine, that you have set out to 
interview some 1,000 different witnesses and actually had 
opportunity to speak to over 200 of them. Is that correct?
    Mr. Fine. Well, we sent out a survey to 1,000 witnesses, 
FBI witnesses who were deployed overseas. About 900 of them 
sent back responses. We picked the ones where they had relevant 
information, and we interviewed over 200 witnesses.
    Senator Durbin. I went to the floor of the Senate in June 
of 2005 to talk about an FBI agent's observations, which are 
chilling and I will not read back into the record, but involved 
short shackling, extreme temperatures, and the like. Four of my 
Republican colleagues came to the floor 2 days later, and one 
raised the question as to whether this had even happened, 
whether it was even possible, whether the report was accurate 
from this FBI agent, which had been obtained through normal 
means.
    So I would like to ask you, based on what you have seen 
here and what you have heard and the questions that have been 
asked, is there any doubt in your mind that, for example, the 
short shackling for prolonged periods of time, where a 
detainee's hands were shackled close to his feet to prevent him 
from standing or sitting, occurred?
    Mr. Fine. We believe the evidence showed that it did occur. 
The FBI agents witnessed it and reported it to us.
    Senator Durbin. The use of extreme temperatures, another 
commonly reported technique, did that occur?
    Mr. Fine. They reported that as well.
    Senator Durbin. FBI agents also told you that short 
shackling was sometimes used in conjunction with holding 
detainees in rooms where these extreme temperatures were being 
applied as well. Is that correct?
    Mr. Fine. That is correct.
    Senator Durbin. And, finally, isn't it true that Secretary 
Rumsfeld approved the use of stress positions, like short 
shackling and temperature manipulation, as interrogation 
techniques and that these were not the actions of a few bad 
apples on the night shift, as we have been told?
    Mr. Fine. There was an evolution of the policies, and, yes, 
there were periods of time where those techniques were approved 
and authorized.
    Senator Durbin. Ms. Caproni, I have struggled here in this 
Committee trying to understand the position of the Department 
of Justice, and particularly our current Attorney General, when 
it comes to waterboarding and other cocercive techniques. And 
throughout history we as a Nation have taken a pretty clear 
position on some of these issues, and I might say that the 
Judge Advocates General, the highest-ranking uniformed military 
lawyers, told me unequivocally that the following techniques 
are illegal and violate Common Article 3 of the Geneva 
Conventions: painful stress positions, threatening detainees 
with dogs, forced nudity, mock execution, and waterboarding.
    Ms. Caproni, you are the FBI's highest-ranking legal 
officer, so I would like to ask for your position on these 
interrogation techniques. Are they abusive? Are they illegal?
    Ms. Caproni. Again, the issue of legality or non-legality 
is not mine to reach. That truly is the responsibility of the 
Office of Legal Counsel, and as much as I might like to be able 
to overrule any other component of the Department, I cannot. It 
is really their responsibility to make that decision.
    Senator Durbin. Have they made that decision? Are they 
illegal? Abusive? Do they violate the Geneva Conventions?
    Ms. Caproni. I have not read the OLC opinion, so I cannot 
answer that question.
    Senator Durbin. Well, let me ask you, if you cannot answer 
the question, how do you expect rank-and-file FBI agents to 
determine whether these techniques are abusive?
    Ms. Caproni. I think there is a different question about 
whether something is abusive versus whether something violates 
the Geneva Accords or whether it violates--
    Senator Durbin. I asked that question. Are they abusive, 
illegal, or violate Geneva Conventions?
    Ms. Caproni. I am sorry. I was running them all together, 
Senator. I would say they are all abusive.
    Senator Durbin. Under all circumstances?
    Ms. Caproni. Short shackling, waterboarding--I am sorry, 
what was the other--
    Senator Durbin. Painful stress positions, threatening 
detainees with dogs, forced nudity, mock execution, and 
waterboarding.
    Ms. Caproni. Yes, those are abusive under all 
circumstances.
    Senator Durbin. Do you consider them torture?
    Ms. Caproni. Again, torture has a legal definition, and 
that is what OLC has passed on, and it is not within my pay 
grade to overrule OLC.
    Senator Durbin. And how could it be within the pay grade of 
those below you to understand whether what they are doing is 
torture or not?
    Ms. Caproni. Again, the FBI agents' responsibilities was, 
one, not to participate. These techniques are clearly not 
permissible in the United States. We train our agents well. 
They would have known that none of those techniques were they 
permitted to participate in. In terms of reporting, I believe 
from May 2004, when we made it clear that they were obligated 
to report abusive techniques, unless they knew it was 
authorized, and that was not part of the policy. But if they 
called in and they said if it was authorized, we did not need 
to report, the answer is no, if it is authorized, you do not 
need to report; that an agent would understand these to be 
abusive techniques.
    Senator Durbin. Mr. Fine, I was struck by your findings 
that Director Mueller was unaware of the dispute between the 
FBI and the Defense Department regarding interrogation 
techniques which began in 2002 until after the Abu Ghraib 
scandal in May of 2004?
    Mr. Fine. He was aware of it in 2002 in connection with the 
Abu Zubaydah matter.
    Senator Durbin. So were there reports from his agents about 
activities at Guantanamo and other places involving these 
interrogation techniques?
    Mr. Fine. Mostly reports related to Abu Zubaydah. After 
that, the reporters filtered through the FBI, but most of them 
were handled in the Counterterrorism Division and over to the 
Department of Justice Criminal Division and through the 
Department of Justice. So--
    Senator Durbin. Beyond Abu Zubaydah, do you believe that 
there was a regular communication of reported abuse and 
techniques that were questionable to the Director?
    Mr. Fine. I do not believe that there was a regular report 
to the Director of abusive techniques, no.
    Senator Durbin. I quote from your report: ``Director 
Mueller told the OIG that, in general, he did not recall being 
aware of the dispute between the military and the FBI over 
interrogation techniques at Guantanamo prior to the spring of 
2004 after the Abu Ghraib disclosures. He said he didn't recall 
seeing either the November 2002 EC written by Foy or the May 
2003 EC written by McMahon.''
    Mr. Fine. Abu Zubaydah was not held at Guantanamo at that 
time. He was held at a CIA facility.
    Senator Durbin. So in terms of Guantanamo, if the Director 
says it was not until after Abu Ghraib that he was given any 
kind of basic information, 2 years after this had been going 
on, that is what you found in the course of your investigation?
    Mr. Fine. We found that the reports did filter up. It 
filtered up through the Counterterrorism Division. They went 
over to the Department of Justice. We did not have clear 
evidence that these reports went up to the Director of the FBI 
in specificity.
    Senator Durbin. I see my time has expired, Madam Chair. 
Thank you very much.
    Senator Feinstein. Thank you very much, Senator Durbin.
    We are joined by Senator Cardin. Welcome.
    Senator Cardin. Madam Chair, thank you very much, and let 
me thank our witnesses for being here.
    There are many reasons why this Committee and the American 
people need to be concerned about the interrogation techniques 
that have been used by the CIA and others that clearly, as 
reported, would violate, in my view, U.S. law, would be a moral 
issue for this country, the values that we hold so dear. The 
techniques, in my view, are torture and, therefore, are illegal 
not only by our domestic laws but by our international 
commitments. And I think my colleagues have questioned in 
regards to those points.
    I want to raise another issue, and that is, the reliability 
of the information that is obtained through these enhanced 
techniques. Is there anything that either one of you can report 
on as to whether the use of these enhanced techniques has 
produced information that is reliable and helpful in dealing 
with the threats against America?
    Now, just to give you--there have been several reported 
cases of misinformation that was obtained through enhanced 
techniques. I will give you one example. IBN Al-Sheikh Al-Libi, 
who ran al Qaeda's training camp in Afghanistan, told 
authorities that Iraq provided chemical and biological weapons 
training to al Qaeda operatives. That ended up in Secretary 
Powell's comments to the United Nations. It was used as 
justification for U.S. military action in Iraq. Al-Libi later 
recanted, saying he made it all up under coercive interrogation 
and he was subsequently deemed A ``FABRICATOR'' by the CIA.
    So I would like to know whether in your investigations you 
have uncovered information that would show whether this is 
useful to America as far as intelligence gathering. We could 
also go back historically that if coercive practices worked, we 
probably had a lot of witches in America back a couple 
hundred--a couple decades ago, or I guess a hundred years ago. 
So any information you have that can shed light on this?
    Mr. Fine. Senator Cardin, our investigation was not an 
investigation of what intelligence was obtained and whether 
more useful information was obtained in one way or the other. 
But what I can tell you is the FBI believes strongly that their 
techniques, which have been used successfully in various 
contexts, both domestically and internationally, with people 
not wanting to give them information, have been successful and 
are successful in getting reliable, accurate information.
    In addition, they believe that these other techniques, 
which are used to break people or to coerce them into 
testifying, can have the effect of getting the person to say 
whatever he thinks the interrogator wants him to say in order 
to get the interrogator to stop using those techniques. And, 
therefore, the accuracy or the reliability of that information 
is undermined.
    They believe strongly in their rapport-based approach. I 
will also note that after the Detainee Treatment Act and the 
change of the Army Field Manual, the Army has now moved 
towards--closer to the FBI's techniques and rapport-based 
approach rather than a coercive approach. So I think that tells 
one something as well.
    Senator Cardin. So what you are basically telling us is 
that the FBI, the Army interrogators believe that it is not 
only the right method to interrogate by not using the so-called 
enhanced techniques that many of us think are illegal, but it 
also from a pragmatic point of view produces more reliable and 
timely information.
    Mr. Fine. That is clearly what the FBI believes.
    Senator Cardin. I see that you are shaking your--
    Ms. Caproni. Correct. The FBI believes that the most 
efficacious way of conducting interrogations is through 
rapport-based interview techniques.
    Senator Cardin. And, of course, there are many other 
reported examples. These are reported examples where we know 
that information obtained through coercive techniques has 
proved to be unreliable. We had the three British detainees at 
Gitmo, the ``Tipton Three,'' who were reportedly subject to a 
year and a half of coercive interrogation. They eventually 
admitted to being present at a speech by Osama bin Laden in an 
Al Qaeda training camp. The authorities later found out that 
they were in the United Kingdom at that time, so that 
information was inaccurate. And there are more and more 
examples of those types that have been reported. We do not know 
how much information, because of the classified nature of the 
interrogations and refusal of the CIA to release details, how 
much more information we have obtained is unreliable and how we 
perhaps were delayed in getting important information because 
of the failure to follow more traditional techniques for 
interrogating detainees.
    Madam Chair, we had a hearing on this in the Helsinki 
Commission to try to figure out what is the most effective way, 
and that hearing is totally consistent with the testimony of 
our two witnesses here, that using the conventional 
techniques--admittedly, we are more sophisticated today than we 
were. We now know more sophisticated ways to interrogate, but 
not using the coercive tactics that have been reported being 
used by CIA. And the experts we heard, including people who 
were former interrogators, was that the most reliable way to 
get information is to use interrogation techniques that are not 
coercive or do not border on or are torture in nature. And for 
the life of me, I cannot understand why the CIA continues to 
hold out the use of techniques that clearly question America's 
commitments to its principles and not producing the information 
we need in order to keep Americans safe.
    Thank you, Madam Chair.
    Senator Feinstein. Thank you very much.
    I have a memo that was drafted by a supervising special 
agent, whose name is redacted, of the FBI--it is unclassified--
from Guantanamo. This is the memo that was forwarded to Marion 
Bowman, and according to Mr. Bowman, this memo did not reach 
him for 6 months, that for some reason it resided at Quantico 
for a period of time.
    On the second--and it is a very good memo. On the second 
page, in the legal analysis, this memo states that--first of 
all, it states the three categories of interrogation, and then 
it goes on to say, ``Information obtained through these methods 
will not be admissible in any criminal trial in the U.S. 
Although information obtained through these methods might be 
admissible in military commission cases, the judge and/or panel 
may determine that little or no weight should be given to 
information that is obtained under duress.'' And then it gives 
some examples of coercive interrogation techniques, Categories 
2 and 3.
    It finally says--and I think it is very interesting--``It 
is possible that those who employee these techniques may be 
indicted, prosecuted, and possibly convicted if the trier of 
fact determines that the user had the requisite intent. Under 
these circumstances, it is recommended that these techniques 
not be utilized.''
    I am going to place this in the record, and I am going to 
ask you, Mr. Fine, have you looked at this memo?
    Mr. Fine. We have that memo. We discuss it on page 120 and 
121 of our report. It was by the FBI agents from the Behavioral 
Analysis Unit who were down there involved in the Al Qahtani 
matter. They raised those concerns in an electronic 
communication memo to Spike Bowman. It did take a long time to 
get to him. It took 6 months before it got to him. By that 
time, the interrogation of Al Qahtani had changed, and Spike 
Bowman used the memo and raised concerns with the Department of 
Defense, which we do discuss on page 121.
    Senator Feinstein. What is the present mental condition of 
Mr. Al Qahtani?
    Mr. Fine. The present condition?
    Senator Feinstein. Yes.
    Mr. Fine. I don't know the present condition. We did 
interview him. We interviewed him when we were at Guantanamo.
    Senator Feinstein. And what did you find?
    Mr. Fine. He described things that happened to him, and he 
was able to communicate with us.
    We interviewed him in the presence of his lawyer. He seemed 
to understand our questions and was able to communicate with 
us.
    Senator Feinstein. And what did he tell you about his 
conditions?
    Mr. Fine. He told us about the abusive techniques that had 
been utilized on him, which we describe.
    Senator Feinstein. Okay. So that will go in the record.
    Are you aware that Spike Bowman called the DOD General 
Counsel in November or December of 2002?
    Mr. Fine. He called the General Counsel's office. He did 
discuss the concerns. The exact timing of it I would have to 
get straight, but he did raise concerns with the Department of 
Defense about the treatment of Al Qahtani. And, really, when he 
called back to follow up, he was unable to obtain any 
information about what actions the DOD took in response to his 
concerns and his information. He basically got the response 
that the Department of Defense was handling it.
    Senator Feinstein. So he was effectively stonewalled?
    Mr. Fine. His concerns were not addressed.
    Senator Feinstein. One other question, and then I would 
like to turn to Senator Whitehouse. Senator Whitehouse asked 
the question about the effectiveness, and you both indicated 
that you did not believe that these types
    of enhanced interrogation techniques are effective. I would 
like to ask you to explore that for a moment and give us some 
substantiation of what you are stating for the record.
    Mr. Fine. Well, I was not giving a personal opinion. What I 
was giving is what the FBI was telling us and what their 
position is, and they have been doing this for years and years 
and years. They are trained professionals at this. They do it 
on a regular basis, trying to get information in custodial 
interrogations from all sorts of people in an adversarial 
context who do not want to give it to them, both before and 
after September 11th. They believe strongly that the best way 
to get actionable, accurate information is to use the rapport-
based approach. By that, it is not simply being a nice guy. 
There are all sorts of techniques that they use, that they can 
pressure people, that they can make it clear to them that it is 
better to provide information, giving them justifications for 
it--a whole variety of techniques that they regularly employ. 
They believe that that was the way to approach this situation 
as well.
    Senator Feinstein. Ms. Caproni, do you have a comment?
    Ms. Caproni. Again, I would agree with the Inspector 
General that, based on our experience, if you know who you are 
interrogating--I think that may be one of the things that our 
agents would say is most critical, is you need to know the 
person. You need to know all the information we have about 
them. You need to know the subject matter. So if you are 
interrogating about al Qaeda, you need to know al Qaeda. If you 
are interrogating about the Colombo family, you need to know 
the Colombo family. But if you are well prepared, rapport-based 
techniques are a better way to go because you get reliable 
information, and it is an effective interrogation technique.
    Senator Feinstein. Thank you very much. Well, thanks to the 
help of Senator Whitehouse, we have included in the 
intelligence authorization bill an amendment put in in the 
conference between the House and the Senate that the CIA will 
follow the Army Field Manual. That is a part of the bill. The 
bill will not pass without it. And the Chairman of Intelligence 
has indicated that, and we will make this change, that is for 
sure, 1 day.
    Senator Whitehouse, you wanted to say something?
    Senator Whitehouse. Yes, Chairman. I just wanted to ask a 
couple more questions, try to punch through these relatively 
quickly.
    On page 106 of the report, there is a reference to Special 
Agent Brett's legal analysis of the interrogation techniques. 
May I ask for a copy of that for the record?
    Mr. Fine. Certainly we will work with you on that, and the 
FBI.
    Senator Whitehouse. That appears to be responsive to my 
earlier question about whether the FBI had done some 
independent legal analysis. I would like to see a copy of it.
    Ms. Caproni. That is fine.
    Senator Whitehouse. The second thing is just with respect 
to what Inspector General Fine just said about the FBI being 
trained professionals. The spin that has come out of the 
administration on this subject is that the CIA are the trained 
professionals, they are the experts. By contrast, military 
interrogators are amateurs and not experienced and, therefore, 
need to be constrained by the Army Field Manual to prevent them 
from doing irresponsible things, but you can trust the trained 
experts of the CIA. Presumably, the same analysis applied to 
the FBI, that you can trust the trained agents of the CIA, but 
you FBI amateurs do not measure up in that respect and, 
therefore, have to operate under different rules.
    Is there anything that your investigation showed that would 
bear on the credibility of that argument as a defense of these 
techniques?
    Mr. Fine. We did not look at the relative, you know, 
professionalism or training of the CIA versus the FBI, but we 
do know that the FBI are trained professionals. They do this 
all the time. They have a history of success in this area, and 
there is, in my view, no reason to doubt their interrogation 
abilities.
    Senator Whitehouse. Did you have occasion to look at the 
experience and the training of trained expert military 
interrogators as well?
    Mr. Fine. Well, we looked at what the military 
interrogators were doing with regard to the detainees and how 
they came up with their plans. And it was not a well-thought-
out, sophisticated plan based upon training or experience.
    Senator Feinstein. Senator Whitehouse, would you yield?
    Senator Whitehouse. Of course.
    Senator Feinstein. When the FBI does interrogations, they 
do it with their trained government people. The CIA uses 
contractors, and this is a huge difference, in my view.
    I am sorry. Thank you.
    Senator Whitehouse. No, a very good point. I am glad you 
interjected it.
    The Vice President indicated that waterboarding amounted to 
a dunk in the water. Secretary Rumsfeld indicated that standing 
stress positions were of no particular consequence because he 
stands at his desk longer than that every day. Do these 
statements, based on your investigation, fairly and accurately 
describe the effect of these coercive treatments at issue?
    Mr. Fine. Well, first of all, we did not look at 
waterboarding because that was not done by the military or the 
FBI, and the stress positions are not simply just standing up 
for a period of time.
    Senator Whitehouse. No, but is it fair and accurate to 
equate a standing stress position with standing at your desk 
for hours?
    Mr. Fine. I do not believe so, particularly depending on 
the duration of the stress position.
    Senator Whitehouse. That raises the question, at least with 
respect to Secretary Rumsfeld's statement, as to whether he 
simply did not know what the effect is of these stress 
positions, which is kind of an alarming thought that they are 
signing off on these things so ignorant of them that they do 
not really know what they mean or what they do. The only 
alternative, unfortunately, is that he knew perfectly well what 
they are and what they do, and he was dissembling or 
misleading.
    Did your investigation turn up any evidence as to which of 
those is the more likely explanation of the discrepancy between 
his description of the technique and the actual true effect of 
the technique?
    Mr. Fine. No, we did not look at Secretary Rumsfeld, or his 
state of mind, or the statements of Department of Defense high-
level officials.
    Senator Whitehouse. Last question. Have you looked at 
United States v. Lee, the Fifth Circuit decision in which Texas 
sheriffs were prosecuted by the Department of Justice for 
waterboarding prisoners?
    Mr. Fine. I have not looked at that, no.
    Senator Whitehouse. Ms. Caproni.
    Ms. Caproni. No.
    Senator Whitehouse. Do you know if the FBI--well, a 
question for the record whether the FBI was involved in that 
prosecution.
    Ms. Caproni. I will have to check. I would guess probably. 
Just based on what you have described, that would be sort of 
within our core jurisdiction.
    Senator Whitehouse. Very good. I appreciate it.
    I thank the Chair for allowing a second round here.
    Senator Feinstein. You are very welcome.
    I know Senator Schumer wanted to come to ask some 
questions, so I will ask just one question in the hope that he 
will arrive, or else we will go on to the next panel.
    Mr. Fine, your report states that there was some friction 
between FBI officials and the military over the interrogation 
plans for Al Qahtani. Could you describe the nature of that 
friction, please?
    Mr. Fine. The friction was whether these were appropriate 
plans, effective plans to be used on Al Qahtani. The military 
wanted to use this phased, aggressive approach. The FBI did not 
believe it was effective or would obtain actionable, accurate 
intelligence. They objected to it. They raised concerns about 
it with both the Department of Defense, and we have indications 
they raised it with the National Security Council as well. 
Ultimately, the Department of Defense had the ultimate call on 
what techniques were used on Al Qahtani.
    Senator Feinstein. Thank you.
    Senator Schumer has arrived. Senator Schumer, a 7-minute 
round. If you would like to make a statement, go ahead.
    Senator Schumer. Well, thank you. And I first, Madam Chair, 
want to thank you for holding this very important hearing on a 
very important topic that goes right to the heart of who we are 
as a Nation and how we keep our Nation safe--the age-old 
balance between security and liberty, which has been one of the 
major topics of discussion in America since the days of the 
writing of the Constitution.
    Now, speaking for myself, I abhor torture. I believe 
waterboarding and other similar techniques are unlawful and un-
American, and not only that, but that Congress needs to ask, as 
we are doing in this hearing, whether coercive interrogation 
techniques are effective. That has been one of the great 
debates here. And by ``effective,'' I mean that we need to know 
whether coercive interrogation yields accurate information that 
can help keep us safe. That is the ultimate standard.
    The FBI has determined, based on decades of experience and 
expertise, that non-coercive, rapport-based interrogation 
techniques are the most effective ways to obtain information; 
and as Mr. Fine noted in his excellent and thorough report, 
numerous FBI officials question the effectiveness of coercive 
interrogation techniques.
    So let me first ask a few questions of Ms. Caproni, and I 
thank you for being here, and you can answer them yes or no. 
You will see.
    Does the FBI want to protect America?
    Ms. Caproni. Yes.
    Senator Schumer. And does the FBI want to make sure that 
criminals and terrorists are brought to justice?
    Ms. Caproni. Absolutely.
    Senator Schumer. Is the FBI's commitment any less strong 
than any other agency or component in the U.S. Government?
    Ms. Caproni. No.
    Senator Schumer. And the FBI has decades of experience and 
expertise in understanding what works and what does not in 
terms of investigation and interrogation, does it not?
    Ms. Caproni. Yes, it does.
    Senator Schumer. Then why the profound difference of 
opinion between the FBI and other U.S. agencies on the wisdom 
and effectiveness of using coercive techniques such as 
waterboarding?
    Ms. Caproni. Senator, I do not know. I do not know why the 
CIA currently believes that these are the right techniques to 
use. I do not question their good faith. They believe it. We 
simply disagree on this.
    Senator Schumer. And the kind of people you interrogate are 
not terribly different. They are similar in a lot of ways, or 
in certain instances--
    Ms. Caproni. Frequently, they are the same people.
    Senator Schumer.--drug dealers here in America, but--
pardon?
    Ms. Caproni. I said frequently they are the same people.
    Senator Schumer. Yes, exactly. Okay. Now, I have a few more 
questions about this, Madam Chair.
    The most fascinating case is provided by none other than 
Saddam Hussein. Ms. Caproni, isn't it right that the 
interrogation of Saddam Hussein was handled by FBI Special 
Agent George Piro?
    Ms. Caproni. Yes, it is.
    Senator Schumer. And Special Agent Piro has said publicly 
that no coercive techniques were ever used in interrogating 
Saddam Hussein, just traditional rapport building and 
manipulation. Is that correct, as far as you know?
    Ms. Caproni. That is correct.
    Senator Schumer. Now, as I understand it, that 7-month 
interrogation of Saddam Hussein was very successful. Special 
Agent Piro was able to find out how Hussein evaded American 
military forces for so long, and he got Hussein to confirm that 
Iraq's weapons of mass destruction had been destroyed years 
before our 2003 invasion.
    Ms. Caproni, would you agree that this was an effective 
interrogation?
    Ms. Caproni. Yes.
    Senator Schumer. Did anyone in the administration ever push 
the FBI to use coercive techniques with Saddam Hussein?
    Ms. Caproni. Not to my knowledge.
    Senator Schumer. Okay. Do you think that coercive 
techniques would have been effective with Saddam Hussein?
    Ms. Caproni. Again, we do not believe that coercive 
techniques are effective. We believe--
    Senator Schumer. Let me just--Special Agent Piro, that was 
the interrogator, he says that coercive techniques would not 
have worked with Hussein because he had ``demonstrated that he 
would not respond to threats or any type of fear-based 
approach.'' Do you have any reason to disagree with this view 
that coercive techniques would not have been effective?
    Ms. Caproni. I have no reason to disagree.
    Senator Schumer. Okay. So we are talking here about a 
notorious, cruel dictator, a tyrant, against whom the United 
States went to war twice, someone who hates the U.S., 
everything we stand for, we thought hiding weapons of mass 
destruction to use against us, and yet this pitiless tyrant 
cracked under the traditional technique of building rapport. He 
fell under the power of Special Agent Piro, gave up all kinds 
of information. If we did not use the coercive techniques with 
Saddam Hussein and if coercive methods would not have worked 
with Saddam Hussein, I cannot imagine why we would need to use 
them against anybody else. It is befuddling to me.
    Now, I just have a little bit more on these disputes that 
there are in the agencies. Again, this is for you, Ms. Caproni. 
It has been suggested that there was ``trench warfare'' between 
the DOJ/FBI on the one hand and DOD/NSC on the other with 
respect to what kinds of interrogation techniques should be 
used on detainees. Ms. Caproni, is that a fair 
characterization?
    Ms. Caproni. I am not quite sure what ``trench warfare'' 
means in that context.
    Senator Schumer. Pretty tough stuff, though, pretty heated 
discussions.
    Ms. Caproni. There were definite disagreements between FBI/
DOJ on the one hand and DOD on the other hand.
    Senator Schumer. Okay. Let me ask you, did anyone in the 
Government put pressure on you, Director Mueller, or anyone 
else at the FBI to participate more directly in the coercive 
techniques at issue?
    Ms. Caproni. You were not here when I gave my disclaimer, 
which is that I came to the Bureau in August of 2003, after the 
Director had made the decision that we would not participate. I 
know there were discussions within the administration. I do not 
know whether there was any pressure put on--
    Senator Schumer. To your knowledge, you do not know one way 
or the other.
    Ms. Caproni. I do not know one way or the other.
    Senator Schumer. How about you, Mr. Fine?
    Mr. Fine. No, we are not aware of that.
    Senator Feinstein. Would you yield for one moment?
    Senator Schumer. I would be happy to yield to you, Madam 
Chair.
    Senator Feinstein. We invited Director Mueller to be here 
today, and in his stead, very ably, is Ms. Caproni. But I had 
hoped to be able to ask him that kind of question.
    Senator Schumer. Right. And I would ask in the interim, 
could you--I do not know who is--I guess it would be Ms. 
Caproni. Could you inquire and get back to us? Could you ask 
some of the leadership?
    Ms. Caproni. I will.
    Senator Schumer. Great. Okay. Let's see. And did anyone--do 
you know this, either of you, did anyone at the FBI or DOJ 
threaten to resign over issues or disputes relating to the 
issue of coercive interrogation techniques on detainees?
    Ms. Caproni. Not to my knowledge.
    Mr. Fine. Not to my knowledge either.
    Senator Schumer. Okay. And so you would not know then if 
there was any retaliation or retribution of any kind against 
anyone at the FBI or DOJ based on the refusal to participate in 
those interrogations?
    Mr. Fine. No.
    Senator Schumer. Let's see. I have 23 seconds, and you have 
been nice in waiting for me, so I will submit my last round of 
questions about destruction of documents for the record. And 
could I ask unanimous consent that the witnesses send written 
answers?
    Senator Feinstein. Without objection.
    Senator Schumer. Thank you, Madam Chair.
    Senator Feinstein. Senator, you might be interested--and I 
thank you for those questions--in the fact that this afternoon, 
former FBI Agent Cloonan, who has interrogated al Qaeda 
suspects and was very successful in so doing using these 
techniques, and we will hear from him directly, I think, as to 
the success that he has had. Now, of course, that was in the 
1990s after the first World Trade Center bombing but, 
nonetheless, I think highly relevant to this discussion today. 
And we will continue this at 2 o'clock here. We are about to 
start--why don't I do this, because we are 20 minutes into the 
vote. Why don't we bring up the next panel, since I have got 
two Senators here.
    Let me thank you both. You really do this Nation a service 
by being so straightforward, and it is very much appreciated. 
So thank you for being here this morning.
    Senator Feinstein. We will ask the next panel to come to 
the table, and I think we will have an opportunity to begin.
    Pursuant to Mr. Sands' request, I will ask that you 
gentlemen stand and raise your right hand, please. Do you 
affirm that the testimony you are about to give before the 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you God?
    Mr. Cloonan. I do.
    Mr. Sands. I do.
    Mr. Heymann. I do.
    Senator Feinstein. Thank you very much. And I will make the 
three introductions together, and then we will begin.
    The first witness will be Jack Cloonan. He is the president 
of the security firm Clayton Consultants. He was a special 
agent for the FBI from 1977 to 2002. He was assigned to the 
Bureau's Osama bin Laden Unit in 1996. He has personally 
conducted interviews of members of al Qaeda and has received 
several commendations and awards for his work for the FBI in 
counterterrorism investigations. Since retiring from the FBI, 
Mr. Cloonan has served as a counterterrorism consultant and 
commentator for ABC News.
    The next witness will be Philippe Sands. He is a professor 
of law at the University College of London, and, again, I thank 
him for crossing the pond to be here today. And he is director 
of their Centre of International Courts and Tribunals. Mr. 
Sands has appeared before many international courts, including 
the European Court of Justice, the International Court of 
Justice, and the Special Court for Sierra Leone. He has written 
extensively on the subject of coercive interrogations and 
torture, including the books ``Torture Team,'' published in 
2008, and ``Lawless World,'' published in 2006.
    Philip B. Heymann has been the James Barr Ames Professor of 
Law at Harvard University since 1989. He has appeared before 
this Committee several times. He has authored several books 
addressing the balance between civil rights and security from 
terrorist attacks. Professor Heymann served as Deputy U.S. 
Attorney General in the Clinton administration, as Assistant 
Attorney General in charge of the Criminal Division, and as an 
associate prosecutor for the Watergate Special Task Force.
    We will begin with Jack Cloonan. Mr. Cloonan, please 
proceed.

   STATEMENT OF JOHN E. CLOONAN, RETIRED SPECIAL AGENT, WEST 
                      CALDWELL, NEW JERSEY

    Mr. Cloonan. Senator Feinstein and distinguished members of 
the Committee. Good morning and thank you for the opportunity 
to testify about coercive interrogation techniques, their 
effectiveness, the reliability of the information obtained in 
this way and, the FBI's knowledge of these matters. It is my 
belief, based on a 27-year career as a special agent and 
interviews with hundreds of subjects in custodial settings, 
including members of al Qaeda, that the use of coercive 
interrogation techniques is not effective. The alternative 
approach, sometimes referred to as ``rapport building,'' is 
more effective, efficient, and reliable. Scientists, 
psychiatrists, psychologists, law enforcement and intelligence 
agents, all of whom have studied both approaches, have come to 
the same conclusion. The CIA's own training manual advises its 
agents that heavy-handed techniques can impair a subject's 
ability to accurately recall information and, at worst, produce 
apathy and complete withdrawal.
    I have personally used the rapport-building approach 
successfully with al Qaeda members and other terrorists who 
were detained by U.S. authorities. The information elicited led 
to numerous indictments, successful prosecutions, and 
actionable intelligence which was then disseminated to the CIA 
and the NSA and others. This approach, which the FBI practices, 
is effective, lawful, and consistent with the principles of due 
process. And in addition to its intelligence-gathering 
potential, it can do nothing but improve our image in the eyes 
of the world community.
    A skilled interrogator, using elicitation techniques and 
understanding the end game, will serve the public's safety and 
our national security. The ultimate outcomes might be gathering 
evidence to support a prosecution or obtaining actionable 
intelligence to prevent a terrorist attack. I accept the 
argument that coercion will obtain a certain kind of 
information. I do not, however, accept the argument that sleep 
deprivation, sensory deprivation, head slapping, isolation, 
temperature extremes, stress positions, waterboarding, and the 
like will produce accurate information. An interrogation using 
rapport building obtains more reliable information and changes 
the relationship between the interrogator and the subject. Once 
a bond is formed between the two, the latter takes the 
investigator on a journey of discovery and sheds light on the 
darkest, most closely held secrets of an organization like al 
Qaeda. U.S. intelligence and law enforcement agents seldom get 
the chance to interrogate al Qaeda subject matter experts like 
Khalid Sheikh Mohammed, Ramzi Bin Al-Shib, Jamal Ahmed Al-
Fadel, L'houssaine Kertchtou, Ali Abelseoud Mohamed, and Ibhn 
Sheikh Al-Libi, and these opportunities are too precious to 
waste. I am convinced by my experience that the rapport-
building approach is the way to go in these circumstances.
    As the conversion from antagonist to ally takes hold within 
the process and the recalcitrant subject begins to cooperate, 
the interrogator assumes the role of caretaker. He or she can 
then shape the conversation, listen intently for 
inconsistencies, and, finally, save untold man-hours chasing 
after false leads.
    Critics of rapport building often say that the enemy we 
face today--the radical Islamist who is ready and willing to 
die for Allah--requires a more aggressive approach. They frame 
the debate by injecting the ticking bomb scenario. They suggest 
that there is no time to break bread with these killers. In 
fact, there are those who believe that the 9/11 attacks 
occurred because we treated terrorism as a law enforcement 
issue. This was not the case. In the months before the attacks, 
the ``chatter'' suggested that ``something big'' was imminent, 
but neither the law enforcement nor the intelligence community 
had an agent who knew what al Qaeda intended to do on that 
fateful day. The rapport-building approach used on an al Qaeda 
operative might have helped to address this frightening and 
dangerous reality.
    I participated in many interviews with suspected al Qaeda 
members where actionable, reliable information was obtained. It 
was used in the successful prosecutions of al Qaeda operatives 
who murdered American citizens. The image of a former al Qaeda 
operative testifying under oath in district court and 
repudiating bin Laden and al Qaeda and its ideology of hate 
sent a powerful message to citizens of America and the world. 
Showcasing that message had an immediate impact. It highlighted 
the fact that bin Laden and al Qaeda are vulnerable, and it 
effectively answered those who believe in his omnipotence, 
America's weakness, and the hypocrisy of her leaders.
    Bin Laden and his advisors often refer to U.S. intelligence 
and law enforcement agents as ``blood'' people. They mean 
simply this: We, according to bin Laden, use torture to extract 
information. Bin Laden has theorized that the most loyal al 
Qaeda sympathizer will break within 72 hours and give up 
operational information. Therefore, he has kept operational 
details about impending attacks strictly compartmentalized. In 
other words, those in the know or with a need to know were 
limited to a few trusted followers. My experiences and those of 
my former FBI colleagues would certainly support this 
conclusion.
    The majority of jihadists detained post-9/11 were clueless 
when it came to al Qaeda's operational plans, and I do not 
believe many of the detainees posed a direct threat to the U.S. 
or were confidants of bin Laden or Ayman Zawahiri. A heavy-
handed approach with these detainees was unlikely to generate 
any useful intelligence, and it served to validate bin Laden's 
take on America and our intelligence-gathering propensities.
    Of course, obtaining reliable information from jihadist 
foot soldiers in Afghanistan and Iraq is vital to protect our 
troops, who are in harm's way. But even on the battlefield and 
under exigent circumstances, rapport building is more effective 
in gaining information for force protection in my opinion. 
Enhanced and coercive interrogation techniques are ineffective 
even under extreme circumstances. Senator, I have spoken to a 
number of FBI agents who were seconded to Gitmo as 
interrogators. In confidence, they told me the vast majority of 
detainees questioned under these stressful conditions were of 
little or no value as sources of useful intelligence.
    Information is power, and the lack of reliable human 
intelligence assets, who are capable of telling us what al 
Qaeda is up to, is the greatest challenge facing U.S. law 
enforcement and the intelligence community. Technological 
assets, like signals intelligence, targeted wiretapping, and 
computer exploitation have preempted some terrorist attacks, 
and we are all grateful for that. I submit, however, that the 
most effective countermeasure to the threat posed by al Qaeda 
and like-minded groups is and always will be the apostate who 
chooses to cooperate and, if you will pardon the expression, 
``spills the beans.'' Gaining the cooperation of an al Qaeda 
member is a formidable task, but it is not impossible. I have 
witnessed al Qaeda members who pledged ``bayat'' to bin Laden 
cross the threshold and cooperate with the FBI because they 
were treated humanely, understood what due process was about, 
and were literally seduced by our legal system, as strange as 
that may sound.
    I am reminded of a conversation I had with an aide to bin 
Laden. He told me al Qaeda believes in the ``sleeping dog'' 
theory. The sheik is very patient, and the brothers will wait 
for as long as it takes for the dog to nod off before they 
attack. I believe we cannot relax our vigilance in the hope 
that bin Laden will forget.
    There are three questions I would like this Committee to 
ponder. Has the use of coercive interrogation techniques 
lessened al Qaeda's thirst for revenge against the U.S.? Have 
these methods helped to recruit a new generation of jihadist 
martyrs? Has the use of coercive interrogation produced the 
reliable information its proponents claim for it? I would 
suggest that the answers are no, yes, and no.
    Based on my experience in talking to al Qaeda members, I am 
persuaded that revenge, in the form of a catastrophic attack on 
the homeland, is coming, that a new generation of jihadist 
martyrs, motivated in part by the images from Abu Ghraib, is, 
as we speak, planning to kill Americans and that nothing 
gleaned from the use of coercive interrogation techniques will 
be of any significant use in forestalling this calamitous 
eventuality.
    Torture degrades our image abroad and complicates our 
working relationships with foreign law enforcement and 
intelligence agencies. If I were the director of marketing for 
al Qaeda and intent on replenishing the ranks of jihadists, I 
know what my first piece of marketing collateral would be. It 
would be a blast e-mail with an attachment. The attachment 
would contain a picture of Private England pointing at the 
stacked, naked bodies of the detainees at Abu Ghraib. This 
picture screams out for revenge, and the day of reckoning will 
come. The consequences of coercive intelligence gathering will 
not evaporate with time.
    I am hopeful that this Committee will use its oversight 
responsibility judiciously and try to move the debate in the 
direction of the prohibition of coercive interrogation 
techniques. This debate is a crucial one, and I know each 
member of the Committee understands that. The decisions you 
make will have a far-reaching impact on our national security.
    Proponents of the ticking bomb scenario seek to forestall 
discussions on interrogation techniques by ratcheting up the 
intensity of the debate to panic mode. There simply is no time 
to talk to a terrorist who might have information about an 
impending attack.
    Senator Feinstein. Mr. Cloonan, I hate to do this because 
your statement is truly an excellent one and you are delivering 
it very well. But the time is running out on the vote, as you 
might be able to tell. So if you will permit me, I am going to 
recess the hearing, allow you to be first up to finish at 2 
o'clock, and we will proceed from that point on and, I think, 
have a very interesting afternoon.
    So I apologize to the three of you, but it is the way of 
the Senate. Thank you. This meeting is recessed until 2 p.m.
    [Whereupon, at 11:35 a.m., the Committee was adjourned, to 
reconvene at 2 p.m., this same day.]
    AFTERNOON SESSION [2:07 p.m.]
    Senator Feinstein. I am going to reconvene the hearing, and 
I am particularly thankful to Senator Whitehouse for being 
here, because we have an Intelligence Committee meeting that I 
know he very much wants to attend. And I want to make another 
apology to the witnesses. We had our votes at 11 o'clock, and 
it is my information, it came to my attention that there is 
going to be an objection on the Republican side to committees 
meeting. So we may have to stop. But then the Majority Leader 
may be able to recess so that this testimony can be taken.
    I feel very strongly that this is an important subject, and 
I feel very strongly that we need to prepare a record and that 
we need to come to grips with what is happening out there and 
make some changes. And so I think this morning's hearing was 
helpful in that direction, and, Mr. Cloonan, you were 
concluding. I would like to give you the opportunity to 
conclude, and then we will move to Mr. Sands and to Professor 
Heymann.
    Mr. Cloonan. Thank you, Senator. I will be very quick with 
this.
    When I left off, I wanted to start again. Proponents of the 
ticking bomb scenario seek to forestall discussions on 
interrogation techniques by ratcheting up the intensity of the 
debate to panic mode. There simply is no time to talk with a 
terrorist who might have information about an impending attack. 
Lives are at stake and the clock is ticking, so it just makes 
sense to do whatever it takes to get the information. 
Experienced interrogators do not buy this scenario. They know 
that a committed terrorist caught in this conundrum will seek 
to throw his interrogator off the track or use it to his 
propaganda advantage. ``Go ahead and kill me, God is great.'' 
Neither the ticking bomb scenario nor the idea of a torture 
warrant makes sense to me.
    To the best of my recollection, the first time I learned 
that coercive interrogation techniques were being used on 
detainees was in November 2001 at Bagram Air Base in 
Afghanistan. One case I am personally aware of involved Ibhn 
Sheikh Al-Libi, the emir of an al Qaeda training camp in 
Afghanistan. The FBI agents on the scene were prepared to 
accord Al-Libi the due process rights he might expect as an 
American citizen. The agents concluded after questioning that 
he would be a high-value and cooperative source of information 
as well as a potential witness in the trials of Richard Reid 
and Zacarias Moussaoui. Before the agents could proceed, a 
robust debate ensued between the FBI and the CIA. The CIA 
prevailed, and Al-Libi was rendered to parts unknown, possibly 
Egypt. I do not know the exact nature of the information his 
interrogation produced, but it is common knowledge that he has 
since recanted all that he said. I feel that a very significant 
opportunity to utilize the rapport-building approach was 
missed.
    Without compromising delicate investigations, I can tell 
you that the FBI has amassed a considerable amount of reliable 
information on al Qaeda using rapport building. I will not 
attempt a full recounting in the interest of brevity, but here 
are a few salient examples.
    I personally learned that al Qaeda tried unsuccessfully to 
obtain fissionable material in 1993 and that they experimented 
with chemical and biological agents. I also became aware of how 
they selected targets and conducted surveillance on them. And I 
learned of their intentions to use airplanes as weapons before 
this became a deadly reality. These interrogations also yielded 
information about al Qaeda's finances, recruiting methods, the 
location of camps, the links between al Qaeda and Hezbollah, 
bin Laden's security detail, and the identities of other al 
Qaeda members who were subsequently indicted in absentia and 
remain on the FBI's most wanted list. I am convinced of the 
efficacy of rapport-building interrogation techniques by these 
and other experiences.
    Senator and gentlemen of the Committee, let me say that my 
heart tells me that torture and all forms of excessive coercion 
are inhumane and un-American, and my experience tells me that 
they just don't work.
    With that, I conclude my comments and welcome your 
questions.
    [The prepared statement of Mr. Cloonan appears as a 
submission for the record.]
    Senator Feinstein. Thank you very much, Mr. Cloonan.
    Professor Sands.

 STATEMENT OF PHILIPPE SANDS QC, PROFESSOR OF LAW AND DIRECTOR 
OF THE CENTRE OF INTERNATIONAL COURTS AND TRIBUNALS, UNIVERSITY 
                         COLLEGE LONDON

    Mr. Sands. Madam Chairwoman, honorable members of the 
Committee, it is my privilege and honor to appear before you. 
As Professor of Law at the University of London and as a 
practicing member of the English Bar, it may be said that I 
appear before you as something of an outsider. I hope you will 
bear in mind that I am from a country that is both friend and 
ally, that shares this country's abiding respect for the rule 
of law, and that has had its own long, painful experiences of 
dealing with the very real threat of terror. I have come to 
know America well over more than two decades, since I was a 
visiting scholar at Harvard Law School. I then taught at Boston 
College Law School and at NYU Law School. I happen to be 
married to an American. And I am deeply proud of the fact that 
my three children share British and American nationality.
    A few weeks ago, I published an article in Vanity Fair, 
``The Green Light,'' and my new book, ``Torture Team: The 
Rumsfeld Memo and the Betrayal of American Values.'' These both 
tell an unhappy story: the circumstances in which the U.S. 
military was allowed to abandon President Lincoln's famous 
disposition of 1863, that ``military necessity does not admit 
of cruelty.'' This Committee will be very familiar with those 
events since it was a focus of the judicial confirmation 
hearings for William J. Haynes II in July 2006. You will recall 
that on December 2, 2002, on the recommendation of Mr. Haynes, 
Secretary Rumsfeld authorized the use of new, aggressive 
techniques of interrogation on Guantanamo Detainee 063. It is 
the famous memo, the one in which Mr. Rumsfeld wrote: ``I stand 
for 8 to 10 hours a day. Why is standing limited to 4 hours? ''
    My book tells the story of that memo, the circumstances in 
which it came to be written, relied on, and rescinded, and how 
the techniques migrated. It is a snapshot of the subject of 
these hearings. To write the book, I journeyed around America, 
meeting with many of the people who were directly involved. I 
met a great number and was treated with a respect and 
hospitality for which I remain very grateful. Over hundreds of 
hours, I conversed or debated with, amongst others, the 
combatant commander and his lawyer at Guantanamo, Major General 
Dunlavey and Lieutenant Colonel Beaver; the Commander of United 
States Southern Command, General Hill; the Chairman of the 
Joint Chiefs of Staff, General Myers; the Under Secretary of 
Defense, Mr. Feith; the General Counsel of the Navy, Mr. Mora; 
and the Deputy Assistant Attorney General at DOJ, Mr. Yoo. I 
met twice with Mr. Haynes who, along with the Vice President's 
counsel, Mr. Addington, took a central role on the key 
decisions. I also met twice with Spike Bowman, the FBI Deputy 
General Counsel who received complaints from Guantanamo and 
took them to DOD. From these and many other exchanges, I pieced 
together what I believe to be a truer account than that which 
has been presented by the administration. In particular, I 
learned that in the case on which I focused, the aggressive 
techniques of interrogation selected for use on Detainee 063 
came from the top down, not from the bottom up; that they did 
not produce reliable information, or indeed any meaningful 
intelligence; and that they were strongly opposed by the FBI.
    My account is consistent, fully consistent with that of the 
report recently published by the Inspector General at the DOJ, 
on which we heard more this morning, although I do go further 
on some points of detail, I suspect for jurisdictional reasons. 
I did not have his limitations. I learned, for example, that 
the concerns of FBI personnel at Guantanamo were communicated 
directly to Mr. Haynes' office, in telephone conversations in 
November and December 2002 between Mr. Spike Bowman and, first, 
Mr. Bob Dietz; then Mr. Dan Dell'Orto, who was then Mr. Haynes' 
deputy and is now his acting successor; and third, Mr. Haynes 
himself. Mr. Bowman told me it was ``a very short conversation, 
he did not want to talk about it all, he just stiff-armed me.'' 
You can find a full account of that at pages 112 to 121 of the 
U.S. edition of my book.
    My conclusion, taking into account my conversations with 
Mr. Haynes, is that he was able to adopt that approach because 
by then, contrary to the impression he sought to create when he 
appeared before this Committee 2 years ago, he had knowledge of 
the contents of the DOJ legal memos written by Jay Bybee and 
John Yoo on the 1st of August 2002, memo No. 1 of which was 
most certainly intended for use also by the DOD.
    On the basis of these conversations, I believe that the 
administration has spun a false narrative. It claims that the 
impetus for the new interrogation techniques came from the 
bottom up. It is not true. The abuse was the result of 
pressures driven from the highest levels of Government. It 
claims the so-called torture memo of the 1st of August 2002 had 
no connection with policies adopted by the administration. 
That, too, is false, as it is that memo that truly provided 
cover for Mr. Haynes. It claims that in its actions it simply 
followed the law. To the contrary--
    Senator Feinstein. I must interrupt you. Apparently, the 
Republican Leader has just objected to Committees proceeding, 
so for the moment, we will have to stop. And we will know as 
soon as it is acceptable to go ahead.
    Mr. Sands. Thank you, Madam Chair.
    Senator Feinstein. Thank you.
    [Recess 2:15 p.m. to 2:21.]
    Senator Feinstein. The Majority Leader has just recessed 
the Senate so that we are now able to proceed. So, Mr. Sands, 
please proceed with your testimony.
    Mr. Sands. Thank you, Madam Chairwoman. I will try to not 
double up what I have already done.
    I was restating the arguments of the administration and 
indicating the extent to which I feel those are not accurate. 
The administration claims, for example, that in its actions, it 
simply followed the law. To the contrary, the administration 
consciously sought legal advice to set aside international 
constraints on detainee interrogations, without apparently 
turning its mind to the consequences of its actions. In this 
regard, the position adopted by the Pentagon's head of policy 
at the time, Mr. Feith, in failing apparently to turn his mind 
to the key issues, appears most striking.
    As a result of all of this, Common Article 3 of the Geneva 
Conventions was violated, along with provisions of the 1984 
Convention prohibiting torture. The specter of war crimes was 
raised by United States Supreme Court, and in particular by 
Justice Anthony Kennedy, in the 2006 judgment in Hamdan v 
Rumsfeld. That judgment corrected the illegality of President 
Bush's determination that none of the detainees at Guantanamo 
had any rights under Geneva.
    Madam Chairwoman, honorable members of the Committee, this 
is an unhappy story. It points to the early and direct 
involvement of those at the highest levels of Government, often 
through their lawyers. When he appeared before this Committee 
in July 2006, Mr. Haynes did not share with you his 
involvement--and that of Secretary Rumsfeld--which began well 
before that stated in their official version. He did not tell 
you, for example, that in September 2002 he had visited 
Guantanamo, together with Mr. Gonzales and Mr. Addington, and 
discussed interrogations. This is not, sadly, only a story of 
abuse and crime opposed by the FBI; it is also a story about a 
cover-up.
    Chairman, for what purpose was this done? The 
administration claims that coercive interrogation of Detainee 
063 produced meaningful information. That is not what I was 
told by those I interviewed. The coercive interrogations were 
illegal, they did not work, they have undermined moral 
authority, they have migrated, they have served as a recruiting 
tool for those who seek to do harm to the United States and to 
Britain, and they have made it more difficult for allies to 
transfer detainees and to cooperate in other ways. They have 
resulted in the very opposite of what was intended, 
contributing to an extension of the conflict and endangering 
the national security of this country. Astonishingly, on May 
the 14th last, the Pentagon announced that charges against 
Detainee 063 were being dropped. He is now, apparently, 
unprosecutable. It is not clear what future he has.
    These unhappy consequences mirror Britain's experience in 
using similar techniques against the IRA in the early 1970s, 
and these were widely believed to have extended the conflict. 
The five techniques, as I referred, more or less identical to 
those used here, were very soon abandoned, but not before great 
damage was done. They have never been picked up again. Across 
the political spectrum, from left to right, in Britain there 
exists a unanimous belief that such techniques are wrong and 
can never be justified. Coercive interrogation, aggression, and 
torture must never be institutionalized. The view in Britain is 
that once the door is open, it is difficult, if not impossible, 
to close. And that is why, with the greatest respect to 
Professor Heymann, we have turned our back firmly against the 
institutionalization of coercive interrogation that appears to 
have been recommended by some in his report of 2000. And that 
is why even more strongly we are so vigorously opposed to the 
related idea of torture warrants, as floated by Professor 
Dershowitz, an idea which, as I describe in my book, and 
somewhat to my surprise, directly undermined the efforts of 
those who opposed the abuse at Guantanamo.
    In conclusion, Chairwoman, I can put it no better than 
George Kennan, the great American diplomat. In 1947, he wrote a 
telex that issued this warning in relation to a perceived 
Soviet threat: ``[W]e must have courage,'' he wrote, ``and 
self-confidence to cling to our own methods and conceptions of 
human society. [T]he greatest danger that can befall us .  .  . 
is that we shall allow ourselves to become like those with whom 
we are coping.''
    Chairwoman, honorable members of the Committee, no 
country--no country--has done more to promote the international 
rule of law than the United States of America. Uncovering the 
truth is a first step in restoring this country's necessary 
leadership role; in undoing the great damage that has been 
caused; and in providing a secure, sustainable, and effective 
basis for responding to what is a very real threat of 
terrorism.
    I thank you for allowing me the opportunity to make this 
introductory statement, and, of course, I would be delighted to 
take your questions.
    [The prepared statement of Mr. Sands appears as a 
submission for the record.]
    Senator Feinstein. Thank you very much, Mr. Sands.
    Professor Heymann, it is good to see you again, sir. Please 
proceed.

 STATEMENT OF PHILIP B. HEYMANN, JAMES BARR AMES PROFESSOR OF 
       LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS

    Mr. Heymann. Thank you, Madam Chairwoman.
    I have been viciously defamed by Professor Sands and maybe 
the Ranking Minority Member. I am of course, not serious but 
joking. I think I am here under the illusion that I--that you 
wanted someone on the panel who would defend torture and cruel, 
inhuman, and degrading or highly coercive techniques. That's 
not me.
    What Juliette Kayyem and I recommended and published was 
something that takes the step that I think has not been 
discussed at all today, Madam Chairwoman, and I think it is an 
essential one. We recommended that the Attorney General should 
propose to the President a list of permissible techniques 
consistent with the ban on torture and consistent with the ban 
on cruel, inhuman, and degrading treatment; and that there be 
no exception to this list. The United States would not do 
anything that was torture and it would not do anything that 
violated the ban on cruel, inhuman, and degrading treatment, 
which means under the Senate's reservation it would not do 
anything that the Supreme Court would hold ``shocked the 
conscience.'' It does not say of whom. Presumably of the 
American people.
    We then went on and said that that list has to be made 
available to the appropriate committees of the Senate and the 
House. It cannot be kept secret from them.
    We said if anybody is ever going to engage in an 
interrogation technique that is not on that list, it would have 
to be on a published finding by the President that lives were 
imminently at stake, that this individual had the information 
that could save lives, and that there was no other technique 
that would work. In short, I think that our proposal was more 
protective than any proposal that has been made to this 
Committee, including today.
    My written testimony is very consistent with Mr. Cloonan's 
testimony and Professor Sands'. It says that we do not need 
torture. I have met with the leading interrogators in France, 
Britain, Spain, Israel, the CIA, the DOD, the FBI over a 3- or 
4-year period. I have to say that I agree with Mr. Cloonan's 
description. But the problem that the Committee faces, the 
problem that the Congress faces, is that the words saying what 
is not permissible have lost their meaning. The administration 
agrees that torture is absolutely forbidden with no exception--
in my testimony, I have quoted where they say that, ``no 
exception''--but they do not regard waterboarding as torture. 
And thus we have no idea what they regard as torture.
    The Detainee Treatment Act of 2005 belatedly forbids all 
forms of cruel, inhuman, and degrading treatment. But nobody 
knows whether the steps that Inspector General Fine described--
putting in solitary confinement, environmental manipulation, 
food changes, stress positions, prolonged shackling, sleep 
deprivation--are cruel, inhuman, and degrading. They feel 
pretty cruel to me. But the problem is that we are talking in 
vague terms with no determinate meaning.
    The only way for the United States to give determinate, 
proud meaning to those terms is for either the Congress or the 
President, with congressional oversight, to list what is 
permissible. Nothing is permissible that is torture; but what 
is torture and what is permissible under the category of non-
torture? That list must be made available to the Congress and 
the administration must be bound by that list unless the 
President himself says that we have an emergency so severe that 
he has to depart from the list and why.
    The President's argument has been that if you tell the 
terrorists what can be done to them, they will be at an 
advantage in meeting that in interrogation. Well, the Congress, 
the relevant committees of Congress, will know what is on the 
list. The terrorists will not.
    I agree with Mr. Cloonan's statement and the statement of a 
number of others that the ticking bomb case is largely a red 
herring. We have not had a situation in the last 7 years since 
September 11th in which we have been able to identify an 
individual who has information that would prevent a lethal 
attack of a substantial size and that could not--and 
information that cannot be obtained as well in a different way.
    That particular event is a difficult one. It is a 
philosophically hard one. It is the example that all of the 
supporters of coercive interrogation argue from. We dealt with 
that--not in the only way. We dealt with that by saying no 
torture, but you could, on the President's order, if all those 
conditions were met and if he filed a statement to that effect, 
he could depart from a list of techniques to choose others that 
were also consistent--consistent--with the prohibition of 
cruel, inhuman, and degrading. We did not give him a lot of 
leeway. We gave him very little leeway. But the real ticking 
time bomb situation has not happened, and it is not likely to 
happen, and we should not pay much attention to that highly 
unusual possibility in defining what the American rules are. We 
tried to leave a little bit of leeway. You can do it other 
ways, too.
    I think I can stop there, but, again, my point is that we 
are at a stage now where everybody agrees and says that torture 
is forbidden. And now the Congress has said, without providing 
a remedy, in 2005 that anything cruel, inhuman, and degrading, 
meaning ``shocking the conscience'' from the Supreme Court 
precedent, is forbidden. But we have no agreement on what 
``shocking the conscience'' means or what ``torture'' means and 
no possibility of the courts filling in that gap. That should 
not be a decision made by the President alone. It is not his 
conscience that has to be shocked. It is the conscience of the 
American people, and the Congress can speak to that.
    [The prepared statement of Mr. Heymann appears as a 
submission for the record.]
    Senator Feinstein. Thank you very much, Professor Heymann. 
Just a comment and then I want to recognize Senator Whitehouse, 
who has done so much work in this area.
    I think--well, Senator, I will save my comment. I was just 
going to say the thing that we would replace this with is the 
Army Field Manual, which prohibits eight specific interrogation 
tactics and has some 18 to 21--I forget exactly how many--
various strategies which are comprehensive and individuals are 
taught how to do what Mr. Cloonan essentially spoke about. And 
we believe that there should be one standard throughout our 
entire Government, and because this is accepted now by the 
military, has been worked on for 4 years, revised just about a 
year ago, that it is really the best way to proceed.
    Let me turn it over to Senator Whitehouse.
    Senator Whitehouse. Thank you, Madam Chair. We are having a 
slight delay in the Intelligence Committee, so I was able to 
come back for a moment. We have OLC in the Intelligence 
Committee, so torture is the theme throughout this building 
today.
    First, I just want to say thank you to Special Agent 
Cloonan for his career of service to our country. Anybody who 
has read ``The Looming Tower'' and seen the references to him 
in there knows how hard the FBI worked towards the end to try 
to be prepared for the eventuality that became the 9/11 
disaster, and I just want to express my personal appreciation 
to you for your service.
    I will ask again the question that I asked before. You had 
the Vice President of the United States publicly comparing 
waterboarding--this is a term that most Americans were not 
particularly familiar with--to a dunk in the water. You had the 
Secretary of Defense of the United States of America comparing 
the stress position interrogation method to himself standing at 
his desk. Would you first give me your view on the extent to 
which either of those comparisons fairly or accurately 
represents the effect and substance of those two methods? 
Anyone who feels qualified to answer.
    Mr. Cloonan. To your question, Senator, the issue of stress 
positions, waterboarding, whether it is a short dunk or whether 
these prolonged stress techniques amount to torture in my view, 
I--
    Senator Whitehouse. My question is: Do you think that is a 
fair way to describe--
    Mr. Cloonan. I do not think it is a fair way. I do not 
think it is a fair way of describing it. I mean, waterboarding 
is an extreme interrogation technique. It is torture. Those who 
have been submitted to it will tell you so. I have never 
undergone it myself. I know a number of people who have.
    The stress positions that you were talking about are 
extreme, being hung from the ceiling and various other things. 
Those are very, very extreme and counterproductive. So they are 
not things that we should treat lightly. The way they were 
described, I would disagree with the way they were described.
    Senator Whitehouse. Professor Sands, do you disagree with 
that?
    Mr. Sands. I agree with what Mr. Cloonan has said. I would 
start this from the proposition of how we would look at it 
dealing with the situations in the U.K. We have English law. We 
have international obligations. We look to our international 
obligations. There is no one I can think of in the United 
Kingdom who would not immediately conclude that the use of 
waterboarding, which is creating the misperception of 
suffocation, is torture in all circumstances, and we are, 
frankly--
    Senator Whitehouse. The reason that I am asking this--I 
have limited time, so forgive me if I jump in from time to 
time. The reason I am asking this is that we have two very 
significant officials of the Government of the United States of 
America who have apparently a fairly considerable misperception 
of what the techniques are that they authorized. And it strikes 
me that if they have authorized these techniques under the 
misperception that you all have identified, that is a pretty 
significant failure of communication and knowledge. It is 
ignorance of a very high order at a very high level about a 
very significant matter.
    The only alternative, which is not any better, is that they 
actually do know how devilish these techniques are and how 
devilish their application can be, and they deliberately sought 
to mislead the American people about exactly what America was 
now responsible for doing. And I do not see a third road. It 
seems it is either--you either knew it or you did not. You 
either should have known or you should have told the truth.
    Mr. Sands. I regret to say I think the answer is that your 
first option is excessively generous. Your second option is the 
one that I would go for, and I think I have got a pretty 
reasoned basis for doing that.
    The administration, if you go back to December 2001, 
January 2002, February 2002, forms the clear view that the 
Geneva Conventions, and in particular Common Article 3--
outrages against human dignity, cruel, degrading treatment, et 
cetera, as well as torture--stood in the way of aggressive 
techniques of interrogation. And they, therefore, designed an 
approach led by people like Doug Feith to set aside the Geneva 
Conventions. And that is consistent with the conclusion that 
they knew very well what they were doing and that the use of 
this language was actually intended to signal to people on the 
ground that the people at the highest levels have no problem 
with it.
    Senator Whitehouse. Green-lighted it, to use your phrase.
    Professor Heymann, you are now a professor of law at 
Harvard University. You have served in the United States 
Department of Justice. Very briefly, the Office of Legal 
Counsel, what is its tradition and history within the 
Department? What has its reputation been prior to the Bush 
administration?
    Mr. Heymann. I think prior to the Bush administration it 
had a very high--was held in very high repute for the fairness 
and objectivity of its opinions.
    Senator Whitehouse. Have you had the occasion to review the 
unclassified opinion authorizing torture?
    Mr. Heymann. Yes, I have.
    Senator Whitehouse. Have you had occasion to review the 
sourcing of the definition of ``severe pain'' back into the 
Medicare and Medicaid reimbursement statutes?
    Mr. Heymann. Yes. I thought it was highly creative. It has 
nothing--it is a totally impermissible reading of law. 
Professor Sands had said to me earlier before you began how 
much he enjoyed being at Harvard for a year because it brought 
him into an open-minded and intelligent attitude towards what a 
law means. This was totally beyond the pale.
    Senator Whitehouse. Let me ask you this: Are you familiar 
with the Fifth Circuit decision in United States v. Lee, in 
which the Department of Justice in the 1980s brought a 
prosecution against a Texas sheriff and two of his associates 
for waterboarding prisoners in order to extract confessions 
from them?
    Mr. Heymann. The first time I heard of that was when you 
mentioned it this morning. I did know that we have--we 
prosecuted Japanese for war crimes for waterboarding after 
World War II.
    Senator Whitehouse. As a professor of law, would you 
consider a case that addressed waterboarding in the United 
States and described it as water torture to be on point to the 
question whether waterboarding was torture as a matter of law?
    Mr. Heymann. The Fifth Circuit case, Senator?
    Senator Whitehouse. Would you consider it an on-point case 
to the questions they are trying to answer?
    Mr. Heymann. Not having read it, it sounds, as you describe 
it, very close.
    Senator Whitehouse. Would it surprise you that the Office 
of Legal Counsel would, on the one hand, find precedent in 
Medicare and Medicaid reimbursement law and, on the other hand, 
not find the case that is directly on point that was actually 
prosecuted by the Department of Justice itself?
    Mr. Heymann. I think that the Office of Legal Counsel was 
working hand in hand with the counterterrorism policy officials 
in the White House, was consulting with them regularly, and had 
very much in mind what decision they intended to reach and were 
expected to reach.
    Senator Whitehouse. Thank you very much.
    Senator Feinstein. Thank you very much, Senator.
    Mr. Sands, if I might, the Bush administration has said 
that the coercive intelligence techniques and torture used at 
Guantanamo originated from the military interrogators and JAG 
lawyers at Guantanamo, and you speak about that in your 
articles and your book. In testimony before this Committee, 
former DOD General Counsel Jim Haynes said, and I quote, that 
he ``did not seek a written opinion from the Department of 
Justice'' on coercive interrogation techniques at Guantanamo. 
He also said that he ``did not have a copy of it,'' and ``it'' 
is the August 1, 2002, Yoo memo, and ``did not shape its legal 
analysis.''
    You have interviewed Mr. Haynes on how many occasions?
    Mr. Sands. I have met with him on two occasions.
    Senator Feinstein. On two occasions. Did you ask him if he 
had read or was otherwise aware of the conclusions in the 
August 1, 2002, OLC memo before recommending that Secretary 
Rumsfeld authorize coercive interrogations at Guantanamo?
    Mr. Sands. Chairman, I wonder if I can come to this in a 
roundabout sort of way.
    Senator Feinstein. Okay. Any way you--
    Mr. Sands. I am very familiar with his testimony before 
this Committee on, I think, the 11th of July--
    Senator Feinstein. ``His testimony'' being Mr. Haynes'?
    Mr. Sands. Mr. Haynes' testimony of 11th of July 2006. The 
one question he was not asked was whether he had knowledge of 
the contents of the memo of the 1st of August 2002. I 
established to my complete satisfaction that he did have 
knowledge of the contents of that memorandum, and I established 
that on the basis of my conversations with General Myers, with 
General Hill, with Mr. Feith, amongst others.
    I then had occasion to meet with--
    Senator Feinstein. You understand you are under oath.
    Mr. Sands. I then had occasion to meet with him, and I met 
with him on an undertaking that although the fact of our 
meeting would not be confidential, I gave him an undertaking 
that the conversations were off the record and, therefore, I 
did not in the book make any reference to the conversations 
that we had.
    What I did was in the penultimate chapter indicate in the 
last sentence that my conclusions would take fully into account 
everything I had learned from him, and in the last chapter, I 
set out very clearly my view that he had knowledge of the 
content--he, Mr. Haynes, had knowledge of the contents of that 
memo, certainly by the time he went down to Guantanamo in 
September 2002.
    Mr. Heymann. Madam Chairwoman?
    Senator Feinstein. Yes, Professor Heymann?
    Mr. Heymann. I would like to speak up a little bit for Jim 
Haynes.
    Senator Feinstein. All right. Please do. That is fine.
    Mr. Heymann. When Juliette Kayyem and I wrote our 
recommendations on the ten hardest questions--highly coercive 
interrogation, detention without judicial trial, targeted 
killings, et cetera--I sent them to Jim Haynes, and he asked me 
if I would come down and present them to Attorney General 
Gonzales and Harriet Miers, the White House counsel. I did 
that, and I think he did it because he thought that it was time 
to look at those questions in a less frightened, less knee-jerk 
way. And I appreciated it very much. I thought he was trying to 
move the administration--unsuccessfully, I may say.
    Senator Feinstein. Okay. Thank you.
    I would like to proceed along this line for a moment. This 
morning I mentioned the special agent's memo to Mr. Bowman, the 
Deputy General Counsel for national security law at the FBI. 
Mr. Sands, did Mr. Bowman tell you that he contacted Jim Haynes 
and other officials at DOD earlier in November and December 
2002 about the concerns relating to coercive interrogation 
techniques at Guantanamo?
    Mr. Sands. He did. Mr. Bowman told me very clearly--and I 
met with him twice, and I went in great detail over these 
issues and managed to ratchet down the dates. He spoke first to 
his friend Bob Dietz, who was a senior intelligence person in 
DOD, whom he knew well; and I described that conversation in 
the book. Mr. Dietz evidently told him that the person who was 
dealing with this was Mr. Dell'Orto, so when he received a 
further complaint from Guantanamo, by now we are about the 19th 
or so of November. So this is well before the memorandum was 
written on the 27th of November 2002. He contacted Mr. 
Dell'Orto. Mr. Dell'Orto evidently told him he would look into 
these things, but most significantly, Mr. Dell'Orto, who was, 
of course, Mr. Haynes' deputy, confirmed that he already had 
knowledge that there were concerns about what was happening. 
Mr. Dell'Orto did not then get back to him. Mr. Bowman told me 
he did not read anything negative into that because he just 
assumed it was being sorted out. It did not occur to him for a 
moment that there was actual systematic abuse taking place.
    Unfortunately, he then received a further communication 
from an FBI agent down at Guantanamo, and at some point in 
early December--he could not remember the specific date; he 
just remembered--telling me, ``I remember that there was a lot 
of snow on the ground on that date.'' He called Mr. Dell'Orto. 
Mr. Dell'Orto was not there. He spoke to Mr. Haynes, and Mr. 
Haynes fobbed him off. On that basis, I think it is pretty 
clear on Mr. Bowman's account that Mr. Haynes would have had 
knowledge of concerns of what was going on down at Guantanamo 
by the time he signed his memorandum on the 27th of November 
and further confirmation after that date and before it was 
rescinded.
    Senator Feinstein. Okay. Now, one of the presiding 
concepts, I think, of this administration has been that the 
Article II powers of the President, the Commander-in-Chief 
authority derived thereof, is such that it virtually overrides 
anything. It has been asserted that the Geneva Conventions do 
not apply to detainees, that the President has the 
constitutional authority to violate the Convention Against 
Torture and the U.S. torture statute, and that the President's 
Executive power essentially trumps the powers of the other 
branches of Government in times of war.
    Professor Heymann, I would like to get your view of that 
from a constitutional, legal point of view.
    Mr. Heymann. Well, I am afraid that a great deal of very 
detailed work, hundreds and hundreds of pages have been done by 
my colleague, David Barron and by Marty Lederman. I have a 
quite different view of the whole thing, and I can state it 
very simply.
    Number 1, I do not think the problem is a Commander-in-
Chief problem. I think the President may have to violate a 
statute if we have an earthquake, like China has just had; if 
we have an outbreak of the plague or a smallpox epidemic; if we 
have a flood in New Orleans; that statutes are not themselves 
absolute. Every country that I know of except the United States 
has emergency powers. We do not have emergency powers, and we 
are probably better off for not having emergency powers in the 
Executive. But I think that the problem that we then have to 
deal with as a Nation is what do we want to have happen when 
there is a very grave emergency and there is a law that stands 
between the Executive and dealing with it.
    If I can say one other thing, as to the Commander-in-Chief 
powers, I think it cannot--I do not think the Framers of the 
Constitution, who separated powers and gave great powers in 
Article I to the Congress and in Article III to the Supreme 
Court, and who would not pass the Constitution without a Bill 
of Rights, could not have agreed that the President can decide 
when he can set aside those protections that they insisted on 
by deciding that we were at war. I think a totally clear 
decision by the Congress--it does not have to be a declaration 
of war--would have to be necessary. It is hard to imagine the 
writers of the Constitution saying we want this protection, 
that protection, and this and that, all against the Executive 
power, and then saying, However, when the President says there 
is a war, he can ignore it as Commander-in-Chief.
    Senator Feinstein. Thank you very much. That is really the 
heart of the argument of much of what has gone on.
    I want to be concise here because the Senate is in recess, 
and I do not want to keep--there are important issues on the 
floor, so, Professor Sands, do you have a comment you would 
like to make?
    Mr. Sands. Very briefly on that, and I am not an expert on 
the U.S. constitutional provision so I cannot express any view 
on that. But I think it is also important to put this in an 
international context. We are dealing with treaties from which, 
particularly in relation to torture, there is no national 
security or emergency exception. The ban is absolute. So 
whatever may be the position under the domestic law within the 
United States--or indeed any other country--as a matter of 
international law you violate that law and you expose yourself 
to the risk of international criminality and international 
investigation. That is the first point I would make.
    The second point is this: Imagine the same argument being 
made by a foe of the United States. Why can't the President of 
Iran or the President of some other country that may from time 
to time be feeling hostile toward the United States--and, 
actually, we too face such a national security emergency--that 
we are going to justify the use of these techniques? And the 
danger with the argument in a globalized world is that by 
adopting these techniques domestically within the United 
States, you expose U.S. troops to their use internationally. 
And no country is more peripatetic than the United States.
    Senator Feinstein. Thank you.
    I would like to ask one question, if I might, of Mr. 
Cloonan. Mr. Cloonan, you were speaking in your comments that 
you gave earlier to the effect that there are certain instances 
where certain kinds of intelligence, SIGINT, other kinds of 
intelligence, have produced information that really was 
valuable. Do you know offhand of any cases where torture as we 
mean it in terms of the broader expanse of enhanced 
interrogation techniques has actually produced critical 
intelligence information?
    Mr. Cloonan. No, Senator, I don't.
    Senator Feinstein. So it is your belief, as someone who has 
looked at this, that most of it has come from other means of 
intelligence gathering rather than HUMINT?
    Mr. Cloonan. I would say--
    Senator Feinstein. Other than torture, let me put it that 
way.
    Mr. Cloonan. Yes, I understood what you said. Yes, back to 
my statement, yes, a lot of good information has come from the 
techniques that you have discussed or the technological assets 
we have deployed. But most of the good stuff, Senator, comes 
from good old field work and from that rapport-building 
approach that I alluded to. That is where the rubber meets the 
road. That is when the skill of a good interrogator who is 
confronted with this issue, who sits across the table from a 
member of al Qaeda, as I said in my statement, a person who has 
pledged their allegiance to bin Laden, a person who knows the 
information, that is where it works.
    This is the challenge that we have, and I think that when 
you do and are successful at getting that information, it is 
unbelievable, Senator, how much time and effort you save, how 
much resources you save from chasing after fruitless leads. And 
if you will pardon the expression, when you do reach that point 
in an interrogation and that subject is broken--and I have seen 
it happen any number of times--there is literally a physical 
reaction. And you know at that point that you have hit it. You 
know that you have hit a home run. And in my particular case, 
dealing with these people from al Qaeda, Egyptian Islamic 
Jihad, and other groups, they almost feel in their heart that 
they have a moral obligation to cooperate with you.
    Senator Feinstein. How many al Qaeda members did you 
interrogate?
    Mr. Cloonan. Many.
    Senator Feinstein. Give me a number.
    Mr. Cloonan. I would say people who pledged ``bayat,'' who 
were members of al Qaeda, I would say half a dozen.
    Senator Feinstein. And how many--
    Mr. Cloonan. There were many that were on the periphery.
    Senator Feinstein. Right. Of that half dozen, how many were 
prosecuted?
    Mr. Cloonan. Several, and some were--
    Senator Feinstein. Several.
    Mr. Cloonan. Three or four, and some were put into the 
witness protection program.
    Senator Feinstein. And the three or four that were 
prosecuted, what was the verdict? Were they convicted?
    Mr. Cloonan. They are guilty. In fact, everybody that we 
spoke to and everybody that agreed to cooperate with us walked 
into the Southern District of New York in a sealed courtroom 
and pled guilty. So we were very, very successful in that. I 
mean, we had a wonderful team of prosecutors. And it is 
amazing, Senator, when you sat, again, in these situations and 
you explained to these people from al Qaeda what the 
consequences were going to be, you would think that the 
cooperation would end right there. It did not. They understood 
what the consequences were going to be, and in some instances, 
their exposure was zero to life. And I can assure you that 
pleading guilty and being sentenced to life in prison and 
spending a life at Supermax in Florence, Colorado, is something 
that is incredibly powerful.
    And I alluded in my statement, we have a tendency sometimes 
to sort of poke fun at our legal system. We complain about it. 
When you have a member from al Qaeda and you literally explain 
to them what their rights are and that they understand that 
they do not necessarily have to speak to you, they are 
perplexed by that. They are troubled by it. And, frankly, it 
starts a dialogue. And when you have the opportunity to take 
information that the United States Government has in its 
possession under the rules of discovery and you give those to 
an al Qaeda member to look at, for example, and he thinks this 
is an amazing system, the United States Government is allowing 
me to see what it has against me, and for them, to correct what 
you think to be accurate, again, is amazing.
    Senator Feinstein. I cannot help but contrast what you are 
saying with Khalid Sheikh Mohammed, who has admitted that he 
was the perpetrator of the murder of the Wall Street Journal 
reporter Danny Pearl, who has admitted that he planned 9/11, 
and yet would cooperate in no way, shape, or form and wants to 
die.
    Mr. Cloonan. Well, as you probably recall, Senator, Khalid 
Sheikh Mohammed was indicted in the Southern District of New 
York in 1996 for his role in the Bojinka plot. So the FBI in 
New York knew an awful lot about Khalid Sheikh Mohammed, and 
that was a real difficult situation for us, the fact that we 
did not have access to him right away.
    I think when Khalid Sheikh Mohammed, frankly, gave his 
interview to Al Jazeera, you might recall, on the first 
anniversary of 9/11, I think you saw in that that he was 
celebrating the fact. I had an opportunity, frankly, to look at 
some of the videotape when he was first detained by the 
Pakistani authorities. And it was my conclusion, just based on 
looking at him very quickly, he was not going to be a tough nut 
to crack. This is a man who is very proud of what he did. He 
was celebrating what he did. This is what his life was. And all 
you had to do, frankly, is have the opportunity to let him tell 
his story. And I believe that we did not have to engage in any 
techniques that are alleged to have occurred against him, 
waterboarding being one.
    Senator Feinstein. Thank you very much.
    I want to take this opportunity to thank the three of you 
and once again to apologize for the vagaries of the United 
States Senate and the schedule. I am very grateful to you for 
being here.
    Mr. Cloonan, I want to echo what Senator Whitehouse said to 
you. Thank you for your excellent service to this country.
    Dr. Sands, thank you for, again, crossing the ocean to be 
here today. It is very much appreciated.
    And, Professor Heymann, I am sure I will see you again and 
again before this Committee. Thank you very much for your 
excellent testimony.
    Thank you, gentlemen, and the hearing is adjourned.
    [Whereupon, at 3:02 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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