    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

                     CIVIL LIBERTIES AND NATIONAL SECURITY

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

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON THE CONSTITUTION,
                       CIVIL RIGHTS, AND CIVIL LIBERTIES

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                DECEMBER 9, 2010

                                   __________

                               Serial No. 111-159

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            DARRELL E. ISSA, California
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    STEVE COHEN, Tennessee               STEVE KING, Iowa
    HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
      Georgia                            LOUIE GOHMERT, Texas
    PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
    MIKE QUIGLEY, Illinois               TED POE, Texas
    JUDY CHU, California                 JASON CHAFFETZ, Utah
    TED DEUTCH, Florida                  TOM ROONEY, Florida
    LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
    TAMMY BALDWIN, Wisconsin
    CHARLES A. GONZALEZ, Texas
    ANTHONY D. WEINER, New York
    ADAM B. SCHIFF, California
    LINDA T. SANCHEZ, California
    DANIEL MAFFEI, New York
    JARED POLIS, Colorado

           Perry Apelbaum, Majority Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

      Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                       JERROLD NADLER, New York, Chairman

    MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr.,
    ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
    WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
    HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
      Georgia                            TRENT FRANKS, Arizona
    TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
    JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
    STEVE COHEN, Tennessee
    SHEILA JACKSON LEE, Texas
    JUDY CHU, California

                         David Lachmann, Chief of Staff

                        Paul B. Taylor, Minority Counsel

                                C O N T E N T S

                                  ----------

                                DECEMBER 9, 2010

                                                                       Page

                               OPENING STATEMENTS

    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of New York, Chairman, Committee on the
      Judiciary, and Member, Subcommittee on the Constitution, Civil
      Rights, and Civil Liberties....................................     1
    The Honorable F. James Sensenbrenner, Jr., a Representative in
      Congress from the State of Wisconsin, and Ranking Member,
      Subcommittee on the Constitution, Civil Rights, and Civil
      Liberties......................................................     3

                                   WITNESSES

    The Honorable Thomas R. Pickering, former Under Secretary of
      State for Political Affairs and former United States Ambassador
      to the United Nations
      Oral Testimony.................................................     4
      Prepared Statement.............................................     8
    Ms. Laura W. Murphy, Director, American Civil Liberties Union
      Oral Testimony.................................................    26
      Prepared Statement.............................................    28
    Mr. Jamil N. Jaffer, Kellogg, Huber, Hansen, Todd, Evans & Figel
      Law Firm
      Oral Testimony.................................................    43
      Prepared Statement.............................................    45
    Mr. Michael W. Lewis, Associate Professor of Law, Ohio Northern
      University, Pettit College of Law
      Oral Testimony.................................................    53
      Prepared Statement.............................................    62
    Mr. Jeremy Scahill, Investigative Reporter and Correspondent for
      Democracy Now!
      Oral Testimony.................................................    69
      Prepared Statement.............................................    72
    Mr. Bruce Fein, former Associate Deputy Attorney General
      Oral Testimony.................................................    80
      Prepared Statement.............................................    85
    Ms. Mary Ellen O'Connell, Robert and Marion Short Chair in Law
      and Research Professor of the American Society of International
      Law, University of Notre Dame Law School
      Oral Testimony.................................................   103
      Prepared Statement.............................................   105

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Supplemental Statement of Michael W. Lewis, Associate Professor
      of Law, Ohio Northern University, Pettit College of Law........    54
    Material submitted by Mary Ellen O'Connell, Robert and Marion
      Short Chair in Law and Research Professor of the American
      Society of International Law, University of Notre Dame Law
      School.........................................................   116

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
      Jr., a Representative in Congress from the State of Georgia,
      and Member, Subcommittee on the Constitution, Civil Rights, and
      Civil Liberties................................................   150

                     CIVIL LIBERTIES AND NATIONAL SECURITY

                                  ----------

                           THURSDAY, DECEMBER 9, 2010

                  House of Representatives,
                  Subcommittee on the Constitution,
                     Civil Rights, and Civil Liberties,
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 9:42 a.m., in
    room 2141, Rayburn House Office Building, the Honorable John
    Conyers, Jr. presiding.
        Present: Representatives Conyers and Sensenbrenner.
        Staff Present: Sam Sokol, Majority Counsel; and Paul
    Taylor, Minority Counsel.
        Mr. Conyers. Good morning. The Subcommittee will come to
    order. This is the Constitution, Civil Rights, and Civil
    Liberties Subcommittee chaired by Jerry Nadler and the Ranking
    Member is Jim Sensenbrenner.
        I want to welcome our witnesses to what I consider an
    unusually important hearing in this Subcommittee. And I begin
    by welcoming this distinguished list of witnesses, Former
    Associate Deputy Attorney General Bruce Fein is with us this
    morning; Ms. Mary Ellen O'Connell from the University of Notre
    Dame Law School is on a plane that is delayed, she will be here
    shortly; Mr. Jeremy Scahill, investigative reporter; Mr.
    Michael W. Lewis, associate professor of law at Ohio Northern
    University, Petit College of Law; Jamil Jaffer of the Kellogg,
    Huber, Hansen law firm; the director of the American Civil
    Liberties Union Washington office, Laura Murphy; and the
    Honorable Thomas R. Pickering, the former Under Secretary of
    State and former United States ambassador to the United
    Nations. Without objection, of course, all of the witnesses
    statements will appear in the record.
        And before I ask you to begin Ambassador Pickering, I and
    Mr. Sensenbrenner wanted to make a couple of comments with
    reference to the issue that brings us here today. The subject
    is a hearing on national security and civil liberties.
    Obviously the first question is, is there a tension between the
    two, or are there areas of compatibility? The power of what has
    begun to be termed the imperial presidency grows, and the
    ability of our democratic institutions, especially the Federal
    legislative branch, us, to constrain it, seems more uncertain.
        And so to begin with, there seems to be agreement that in
    the 43rd presidency, there was left behind a grossly expanded
    national security state, and a tragic legacy of civil rights
    abuses. To wit: the creation of off-the-books Black sites, the
    use of waterboarding and other tortures, an apparent violation
    of United States and international law. The cover-up of these
    crimes by the admitted destruction of videotapes of some of
    these brutal interrogations, a destruction that appears to have
    been not only intentional, but in violation of court orders.
        The construction of a vast domestic surveillance apparatus
    in widespread warrantless wiretapping. The mass detentions at
    Guantanamo Bay prison, a scheme so ill-conceived that the
    Supreme Court and the lower Federal courts have overruled the
    previous Administration's judgment more than one dozen times.
    Extraordinary rendition of suspects to foreign governments for
    abusive interrogation.
        The Guantanamo situation is further complicated by the fact
    that, last night, there was found out in the continuing
    resolution that there was a provision inserted by still no one
    knows who, that allowed--that prevented anyone on Guantanamo--
    the prosecutors would no longer determine whether they would
    prosecute under an Article 3 Federal court or whether there
    would be a military commission.
        There was language in there that said there would be only
    military commissions. That never went to Judiciary Committee,
    and it nearly resulted in the whole bill collapsing, because
    myself and at least three or four other Members were prepared
    to vote against the whole resolution. We did not and the bill
    barely passed.
        The extraordinary rendition of suspects to foreign
    governments for what is more likely to be expected abuse of
    interrogation. The ignoring of congressional enactments such as
    the McCain amendment, preventing abuse of detainees, through
    illegitimate signing statements. The repeated invocation of the
    state secrets privilege, with has gone on in recent years,
    including this Administration, to an incredible new height, to
    shut down complaints, investigations and lawsuits challenging
    executive branch action, such as illegal domestic surveillance,
    torture and rendition. The making of numerous unsubstantiated
    claims of executive privilege to create legal immunity from
    congressional subpoena, to avoid legislative oversight claims.
    When challenged in Federal court by the House Judiciary
    Committee, the House Judiciary Committee prevailed.
        And then on top of all these, the USA PATRIOT Act passed by
    a compliant and overreactive Congress in the weeks following 9/
    11. Multiple Department of Justice reviews have found abuse of
    the PATRIOT Act provisions on National Security letters, which
    allows records to be seized on the thinnest legal showing of
    mere relevance, and require abusive gag orders. Other
    provisions of the PATRIOT Act such as the so-called library
    provision and the sneak and peek searches equally threaten, in
    my view, our liberty.
        The 44th President started his term on a positive note when
    he said he would ban torture, the use of secret prisons or
    Black site, ordered the Guantanamo detention camp closed,
    revoked gravely flawed office of legal counsel memos on torture
    and other related subjects.
        But the Administration has failed to adequately
    investigate, much less prosecute apparent national security
    crimes, including torture and waterboarding, and does not
    appear to have even investigated who approved or ordered these
    activities in the first place. This would include investigation
    of the 43rd President, who has written a book personally
    admitting and giving details of how and why he did what he did.
        The present Administration has refused to prosecute the
    intentional destruction of the evidence of the crimes of what
    he did. That is known for anybody that has been around a few
    years, the cover-up, which is usually more prosecutable than
    the crime itself, evidence of these crimes, CIA videotapes of
    the interrogations themselves.
        The formerly secret State Department cables recently
    released show that in addition to refusing to carry out its own
    investigation of torture, the Administration, this
    Administration, worked to squelch other countries investigating
    the same subject matter. And I have citations that will be
    brought in on all of these.
        The Administration continues to rely on clearly overbroad
    interpretations of the state secrets privilege, to shut down
    lawsuits challenging executive branch activity that can be
    termed as misconduct, inappropriate or illegal.
        Public reports describe the extensive use of drones not
    only in the battlefield but where villages and huge civilian
    populations can be destroyed, which amounts to an incredible
    extension of war in a new sense unlike any that we have
    experienced before.
        I know everyone has read about the claim that this
    Administration and previous ones have claimed the power to
    target and assassinate anyone determined to be an enemy,
    including Americans. This President has implied that the
    Administration may resort to detaining individuals indefinitely
    without trial.
        Fortunately, it hasn't gone beyond the thinking out loud
    about it, but to me and to other Members on this Committee, it
    is fundamentally at odds with the Constitution and the
    traditions of freedom and due process of law. And despite the
    effort of the President's task force, Guantanamo Bay detention
    camp remains open with 170 people still in limbo; detainees or
    prisoners, still in limbo. And while we in the Congress, and I
    am not trying to exclude us from receiving some of the
    criticism that I am directing to the other branch of
    government, it is an important and critical subject matter that
    brings us here today. I am very proud of the fact that the
    former Chairman of Judiciary Committee, Jim Sensenbrenner, is
    with us as the Ranking Member and I would recognize him at this
    time, thank you.
        Mr. Sensenbrenner. Well, thank you very much, Mr. Chairman.
    And listening to the opening statement of my esteemed friend,
    the gentleman from Michigan, I think he has turned the calendar
    back 2 years, because this sounds like the speech that he gave
    indicting the Bush administration 2 years ago and there just
    hasn't been any hope and change around here.
        Mr. Conyers. That is right.
        Mr. Sensenbrenner. Okay. Well, you were supposed to bring
    about the hope and change and you know we are still waiting for
    it. What I can say is that this Committee approved a
    reauthorization of the PATRIOT Act without any change. That is
    the PATRIOT Act that I wrote following 9/11 and the national
    security letters issue was not one of the expanded law
    enforcement functions in the PATRIOT Act, but was a law that
    was originally enacted in 1986 sponsored by Senator Leahy and
    Representative Kastenmeier.
        Now, just yesterday in the continuing resolution, which my
    good friend Mr. Conyers and our Subcommittee Chair, Mr. Nadler
    voted for, contained a provision that prevents the
    Administration from closing Guantanamo and relocating the
    detainees in the United States and prohibits the transfer of
    any detainee who is not a U.S. citizen and who is held in the
    Guantanamo detention center on or after June 24th, 2009. And
    that is despite the efforts of the Administration and the
    executive order the President signed earlier in his tenure in
    office.
        So, you know, I don't see why we need to have this hearing
    today, because it is talking about things in the past, it is
    talking about things that my friend, Mr. Conyers and Mr.
    Nadler, voted to continue when they voted for the continuation
    resolution yesterday. So if he wishes to continue with this
    hearing, I think that is fine, he is the Chairman. But I want
    to wish him and everybody in the room a very blessed Christmas
    season and a productive new year, because next year when this
    Committee is under new management, we will be much more
    productive, much more relevant and we won't be looking at the
    calendar of last year or 2 years ago. Thank you.
        Mr. Conyers. Well, I thank you, at least for coming to the
    meeting to make your statement, Mr. Sensenbrenner.
        Of course, a hearing can only be held on things that
    happened in the past. I have never heard of a hearing--well,
    around here I have heard of hearings on things that are going
    to happen in the future, but more than normally, they are in
    the past.
        Mr. Conyers. Ambassador Thomas Pickering is vice chairman
    of Hills and Company, an international consulting firm and
    serves as the member of the Constitution Projects Liberty and
    Security Committee.
        He has had a distinguished career spanning over five
    decades as a United States diplomat serving as Under Secretary
    of State for political affairs, ambassador to the United
    Nations. Ambassador to Russia, ambassador to India, Israel,
    Nigeria, Jordan and El Salvador.
        I must say, Ambassador, I read your submitted statement,
    which is now being printed in the record and was amazed at the
    depth and breadth and conviction that keeps you coming before
    us and working in government in your own way. We thank you and
    appreciate you being here and invite you to make your statement
    at this time.

     TESTIMONY OF THE HONORABLE THOMAS R. PICKERING, FORMER UNDER
      SECRETARY OF STATE FOR POLITICAL AFFAIRS AND FORMER UNITED
                STATES AMBASSADOR TO THE UNITED NATIONS

        Mr. Pickering. Thank you, Mr. Chairman and Members, and
    thank you for your kind words. I am pleased to come before you
    as a diplomat with extensive service in the country with a
    single simple message. I don't believe that our national
    security and protection of our civil liberties are mutually
    exclusive. In fact, I believe they are intimately tied
    together. The key task is to work together to find ways to
    assure both priorities are met in the interest of our people
    and of their government. What we do as a Nation in this area
    determines whether we have the support and backing of our
    friends around the world and the respect of all who look to us
    for leadership. Failure to follow our principals regarding
    civil liberty loses that respect. Even more, it sets an example
    for others that either we don't care or we have made expediency
    and compromises with our principles an overriding necessity.
    Once we do that, others will, of course, follow.
        The limits on their actions will not be set by us or
    others, but by what they believe they can and need to do to
    meet their immediate needs with little or no respect for human
    rights. We will then be in a position where our own citizens
    from whatever walk of life will be fitted into their construct
    and held for an indefinite period, and be subject to trials
    that do not assure the high standards to which we aspire and
    left with little for our diplomats to use to assist our
    personnel, our people, our citizens under these conditions.
        All of this reflects on our role as a state, which aspires
    to lead in the field of human rights, which is looked to by
    many to do so, and where we play a role that deeply impacts on
    our interests, including our security at home.
        The trial of terrorism suspects is obviously of deep
    concern, the recent Ghailani terrorism prosecution in New York.
    Despite the disappointment of many that the convictions were
    not more sweeping is an example of the United States pursuing
    the right procedures in the correct court in trying terrorism
    suspects.
        The Ghailani trial was only one out of over 400 terrorism-
    related trials that demonstrate that we can use Article III
    courts. I have already explained why I believe the use of our
    traditional criminal justice system has helped us to preserve
    and to protect our foreign policy interests.
        The American justice system is the established standard,
    maybe even the gold standard around the world. An effort on the
    part of the United States to strengthen and preserve the use of
    alternative methods, specifically for terror-related crimes has
    appeared to the rest of the world to detract from, rather than
    strengthen our system of justice and by alternative methods, I
    am obviously here referring to military commissions.
        Within our own judicial arrangements during the last review
    by the United States Supreme Court of military commissions, it
    appeared that they failed to meet constitutional standards.
    Recently, there have been increased calls for the use of
    indefinite or preventive detention, instead of trying suspected
    terrorist detainees at all. I believe that indefinite detention
    of individuals without charge under any guise short of
    prisoners of war, and traditional state-to-state military
    conflicts, either declared or undeclared, raises all of the
    problems of abuse of state power to the detriment of individual
    rights.
        In my view, a system of indefinite detention without charge
    contravenes central principles of our own Constitution and
    national standards of a right to notice of charges and to
    trial. The detention issue presents a central conundrum of what
    to do when we believe all of the information at our disposal
    indicates that the detainee is guilty, but we cannot put him or
    her through a Federal trial for one or more reasons. One such
    reason is that the information to be used at trial has been
    tainted by illegal and unacceptable methods of interrogation.
    One example is information found to be inadmissible, such as
    that in the Ghailani trial.
        We have a treaty obligation not no engage in torture or
    cruel, inhuman or degrading treatment. These practices also
    contravene domestic legislation. Although we all now agree that
    torture must be prohibited, the value of information obtained
    through so-called enhanced interrogation techniques is widely
    debated in the intelligence world. The preponderance of
    evidence in my view is against the utility of such practices
    based on a reading of the materials which discuss it
    extensively.
        In addition to the moral and legal issues, many studies
    have found that evidence obtained through coercion is
    inherently unreliable. That raises the question about what to
    do with defendants in this category. The options are stark and
    challenging. They can be tried on the admissible evidence as
    Ghailani was. They can be sent to jurisdictions which may have
    more evidence or different charges against which to try them
    outside our country. They can be, in the end, released.
        That, in my view, of course, is a serious and difficult
    option, but it is not an option that obviously we can ignore.
    The danger here is that they will attempt once again to launch
    attacks on our country and its people. The danger has to be
    balanced against the fact that the high-level leadership of al-
    Qaeda, bin Laden and Zawahiri and others also remain at large.
    These are not easy choices, Mr. Chairman. But the shorter term
    tactical considerations need also to be balanced against the
    longer-term human rights and strategic issues for our country.
        The second reason with respect to trial is that information
    was derived through intelligence collection where the tradition
    and the national interest are to protect the sources and
    methods of collection. The government has developed a practice
    of clearing and briefing judges and attorneys for a use of this
    protected evidence in courts under the Classified Information
    Procedures Act of 1980. There are, in that legislation, ways to
    protect sources and methods while making the principal elements
    of the evidence clear to those who need to know, including the
    defendant. This seems to be a respectable and responsible way
    to proceed.
        Safeguarding privacy and avoiding unnecessarily secrecy. As
    you yourself have just told us, it is self-evident that the
    rule of law requires appropriate safeguards to protect
    individuals right to privacy. States traditionally for fiscal
    and security purposes at their borders have exercised the right
    to examine persons and goods entering their territory on an
    absolute basis with exceptions only for diplomatic and State
    immunity. It is obvious that that needs to be done for the
    purpose of protecting the country in carrying out its laws on
    trade and commerce, but such searches must also be conducted in
    a manner that minimizes intrusion into individual privacy.
        In addition, we use the process of issuing visas to permit
    people to present themselves at our borders for admission into
    the country. We do so in a way that, among other things,
    reduces security risks.
        We should, however, avoid a blanked selection of everyone
    from one or a number of countries for special treatment and
    review, wherever possible, including in their background.
    Instead, we should rely on actual intelligence and the
    application of standards of reasonable suspicion to determine
    which individuals actually pose threats. Ethnic, racial,
    national or other profiling have brought growing antagonism to
    the United States on the part of many, many innocent people who
    have been affected by these practices. This, in turn, has
    fostered resentment against the country which terrorists and
    others have used to recruit individuals to act against the
    United States.
        Mr. Chairman, the sum total of this is that we must comport
    ourselves in the prosecution, and indeed, the detention, and
    the other aspects of our concern, rightful concern about
    terrorism in ways that continue to enhance our capacity to lead
    in the world, particularly in the areas of human rights and
    civil rights. We must treat individuals in accordance with our
    Constitution as we would expect to have our citizens treated
    around the world. And we should do so in ways that balance the
    security needs that we have with the rights to civil and the
    human rights in this country. That is the essence of my
    discussion here this morning and I thank you for the
    opportunity.
        Mr. Conyers. Ambassador Pickering, I want to congratulate
    you and hope that you continue to speak and read and write on
    the subject of your experience for a long time to come.
        Mr. Pickering. Thank you, Mr. Chairman.
        Mr. Conyers. Thank you very much for opening this
    discussion up.
        [The prepared statement of Mr. Pickering follows:]

            Prepared Statement of the Honorable Thomas R. Pickering

                                   ATTACHMENT

                                   __________

        Mr. Conyers. I turn now to the director of the American
    Civil Liberties Union, Laura Murphy. Her family is very well
    known. Her father created, was it the Pittsburgh Courier?
        Ms. Murphy. My great grandfather created the Afro-American
    newspapers.
        Mr. Conyers. What were they called?
        Ms. Murphy. The Afro-American newspapers.
        Mr. Conyers. And they were nationwide?
        Ms. Murphy. They were in five cities, Richmond,
    Philadelphia, Newark, Baltimore, Washington, D.C., Richmond.
        Mr. Conyers. Well, I used to deliver something that had
    Murphy on it.
        Ms. Murphy. It was the Afro.
        Mr. Conyers. Yes. And her brother is a distinguished civil
    rights lawyer now in New York. She herself has 30 years of
    policymaking and political expertise at both the national,
    State and local levels. In previous professional positions, Ms.
    Murphy has served as chief of staff to the California assembly
    speaker, a cabinet member for the mayor of the District of
    Columbia, an account executive for a public affairs
    organization, and a legislative assistant for two Members of
    the House of Representatives.
        She represents the Washington branch of an organization
    that is very distinguished and is well-known to the House
    Judiciary Committee because they come before us so regularly.
    The one comment I have about her paper, because it was in small
    print and it had to be enlarged for my reading, is that it is
    the longest and one of the best papers.
        Normally, when we get large quantities of speech
    preparation, we say, uh-oh, but this was not the case in your
    case. I want to commend you for the thorough review of the
    subject matter before us and the work of ACLU in this regard.
    And we welcome you this morning before our Committee.

                TESTIMONY OF LAURA W. MURPHY, DIRECTOR,
                     AMERICAN CIVIL LIBERTIES UNION

        Ms. Murphy. Thank you, Mr. Chairman. And it has been my
    honor since I first became a lobbyist for the ACLU in 1979 to
    have known you and worked with you over all of these years. And
    we so appreciate your stewardship of this Committee. Thank you
    for being here today.
        I appreciate the opportunity to testify on behalf of the
    ACLU on this important subject. There is no question that the
    9/11 attacks were a serious blow to our Nation. And the risk of
    significant future attacks is a frightening prospect and
    something our government must work to prevent. But we must work
    intelligently to prevent attacks, and we must do so with the
    integrity that we as Americans owe to our constitutional
    heritage, ourselves, and to future generations.
        In particular, history teaches us that the executive branch
    of the U.S. Government regardless of the party in power always
    seizes opportunities to expand its own power, and the American
    people need Congress to serve as a healthy check on that
    tendency. We need to make sure that the steps we take to
    protect ourselves are smart ones. And we need to keep faith
    with our Nation's highest ideals as outlined in the bill of
    rights, which are the source of the real strength of our
    Nation.
        In recent years in the wake of 9/11, unfortunately we have
    not done this. The examples are many, and as you say, my staff
    has prepared excellent testimony illustrating many of these
    examples: Illegal warrantless wiretapping; the targeted
    killings of Americans without trial far from any battlefield;
    unjustifiably intrusive airline security measures; military
    commission; state secrets; indefinite detention; out-of-control
    watchlists; the PATRIOT Act.
        Never before has the executive branch had such sweeping
    powers. This is a radical departure for our country. Despite
    the summer clamoring to give even more broad powers to the
    executive branch. Let me briefly mention three that the
    Congress is likely to confront: Authorization for the use of
    military force. One absolutely crucial issue is indefinite
    detention and the authorization for use of military force.
    Twice introduced by the incoming full Committee Chairman, Lamar
    Smith and Senator Lindsey Graham their legislation would
    declare that the U.S. is in a worldwide war without end. It is
    just two simple sentences in their proposal, but it would
    drastically expand the power of executive even further and
    forever alter the course of U.S. history.
        We wonder how many Members of Congress realize the
    monumental effect that the proposed new declaration of war
    would have. It has no time limits or geographic boundaries; it
    authorizes indefinite imprisonment without charge or trial,
    including against Americans in America. Is this the heritage
    our generations wants to pass along to future Americans?
        A second issue that Congress will be confronting is the
    Obama administration's reported plans to change the very
    architecture of the Internet to make eavesdropping easier. As
    reported, this radical proposal would require all on line
    services, even those which operate by putting individuals in
    direct contact with each other using encryption to restructure
    the way their services work in order to make it easier for the
    government to eavesdrop upon demand. This step would interfere
    with technological innovation, create significant new
    cybersecurity vulnerabilities, reduce privacy and chill
    expression on the Internet, impose great dangers of abuse.
        The third upcoming issue I wanted to mention, which will be
    before this Committee very shortly, is the reauthorization of
    the PATRIOT Act. There are a couple of sections up for
    reauthorization before February 28th, including section 215,
    the so-called library provisions, which gives the government
    sweeping new powers to seize records or goods from anyone, even
    people who aren't suspected of doing anything wrong, who are
    somehow just relevant to an investigation. Roving John Doe wire
    taps.
        The Fourth Amendment Requires warrants to state with
    particularity the things to be search or seized. But this
    sweeping authority permits the government to get an order
    without naming either the place or the person to be tapped.
    Either one or the other should be required.
        Protecting the Constitution is not a partisan issue. The
    executive branch, whether under control of Democrats or
    Republicans, tends to push for expanded powers of monitoring
    and control over the American people. It is up to the
    legislative branch to push back.
        In closing, Mr. Conyers, I am sorry that Mr. Sensenbrenner
    wasn't able to stay longer, but I would ask that the Committee
    allow to be put in the record a report recently issued by the
    ACLU called the New Normal, talking about how many of the
    expanded executive branch powers have been carried over by the
    Obama administration.
        Mr. Conyers. Without objection, we will do that.
        Ms. Murphy. Thank you.
        [The prepared statement of Ms. Murphy follows:]

                     Prepared Statement of Laura W. Murphy

                                   __________

        Mr. Conyers. Thank you very, very much.
        I am now pleased to welcome Jamil Jaffer, Esquire of the
    Kellogg firm. He has previously served as associate counsel to
    the President from 2008 to 2009, as a counsel to assistant
    Attorney General at the Department of Justice, the National
    Security Division, and as counsel to the Department's Office of
    Legal Policy from 2005 to 2006. We have your statement,
    Attorney Jaffer, and we welcome you to the hearing this
    morning, you may proceed.

             TESTIMONY OF JAMIL N. JAFFER, KELLOGG, HUBER,
                  HANSEN, TODD, EVANS & FIGEL LAW FIRM

        Mr. Jaffer. Thank you, Mr. Chairman. I would like to thank
    the Chairman and the Ranking Member for inviting me here to
    testify today.
        I would like to spend my opening statement discussing the
    difficult questions that arise with respect to what to do about
    the detainees in Guantanamo Bay, the remaining 170 detainees.
        There are basically four options: We can try these
    detainees in Federal courts, we can try them in military
    commissions, we can create a new national security court and
    try them there, or we can detain them with no trial, no process
    other than the evaluation of status, and detain them until the
    duration of conflict is over.
        Now, the current approach of this Administration and the
    prior Administration, largely not changed, is a combination of
    the first two approaches, try them in Federal court or try them
    in military commissions. There is a fundamental problem with
    this approach though. First, I would note that under the law,
    these individuals detained at Guantanamo Bay have no
    constitutional rights except what the Supreme Court has given
    them. And those constitutional rights are fairly limited. They
    are limited to a review in Federal court of their status as
    enemy combatants. These are folks captured on the battlefield,
    captured abroad and held abroad in Cuba.
        Now they have no right to a trial in Federal court. They
    have no rights that come with the right to a trial in Federal
    court: the right to a jury, the right to the exclusionary rule
    and other similar rights.
        The criminal justice system that we have in this country is
    designed to exonerate the innocent and convict the guilty. And
    in doing so, we build in a strong presumption in favor of
    innocence. In essence, we stack the decks against conviction.
    This makes a lot of sense. This is as it should be in the
    criminal context. Because based on our view--long held in this
    country--that it is better if many of the guilty get off in
    order to save one innocent from being convicted.
        So we confront then a policy question, not a legal
    question, but a policy question whether this same approach
    should be applied to enemy combatants captured abroad on the
    battlefield of war. And if we do so, we must consider the very
    real consequences. That is, if we fail to convict these
    detainees in Federal court, the typical analysis would suggest
    release. But in an era when we are engaged on a global war on
    terrorism and we have recently learned that the individuals
    released from Gitmo, the ones that have been cleared for
    release, and have been sent abroad, return to the fight at a
    rate of 25 percent, one must wonder whether it makes a lot
    sense to take the remaining 170 detainees, try them in Federal
    court, and run the risk that we will be presented with the
    Hobson's choice of releasing them because they haven't been
    convicted, or continuing to detain them after they have been
    held not guilty by a jury.
        If we take the latter approach, which the current Attorney
    General said may very well happen and could very well happen
    with Khalid Sheikh Mohammed if he is tried in a Federal court,
    and you have to wonder what is this project of trying folks in
    Federal court really about? If it is about showing justice
    being done and justice being done in the American way, well
    then, how can we possibly justify continuing to detain these
    folks after they have been found not guilty by a Federal jury?
    And yet, we can't help but do that, because these are the
    highest value detainees. This Administration has gone through a
    review process determining that these 170, other than the ones
    who have been scheduled for release and some can't be released
    because of the challenges of countries we would release them
    to, are a serious problem.
        Now, in addition to these issues with respect to the
    release of individuals who aren't convicted, it is simply the
    case that many of the evidentiary rules in the Federal courts
    don't make a lot of sense when the evidence and the witness
    come from abroad and on the battlefield. Moreover, there are
    security issues for the people who live near the courthouse,
    think New York City, the judges and the court staff, and
    civilian jurors who will be sitting in on these trials.
    Moreover, there are issues of classified information, and
    having worked with the talented prosecutors in the Department
    of Justice's National Security Division, I can tell you that
    while the Classified Information Procedures Act is extremely
    helpful, it is certainly not a panacea.
        I would like to close briefly by returning to the basic
    options available to the government moving forward. Again, we
    can try these detainees in the Federal courts, we can try them
    in military commissions, we can create a new national security
    court with different rules and different approaches, and
    perhaps then have justice seem to be done or you can detain
    them, no trial and no process, save for status reviews. In my
    view, it is critical that this Committee is considering that we
    balance national security and civil liberties and yet we be
    seen to do justice.
        The Federal court project, as we have just discussed, is
    fraught with a number of difficulties. The military
    commissions, while better, also face significant public
    perception issues because of the nature of the military
    criminal justice system and the fact of having the very
    individuals who capture these folks try them in court. Many
    have argued the creation of a national security court staffed
    by sitting Federal judges, nominated by the President,
    confirmed by the Senate, and prosecutions brought by the
    talented, outstanding prosecutors in the Department of Justice,
    and rules that make more sense than the current criminal
    Federal court system for the trial of national security
    detainees is a reasonable approach.
        My view, expressed in other settings, is that the latter
    approach has many of the benefits of trials in Federal court
    without the downside, and it also lacks many of the downsides
    that come from the public perception associated with military
    commissions.
        Now this is not an easy project. The creation of a new
    court will be a substantial challenge. It would take a lot of
    work, but it is something to consider. And with that, I
    appreciate the Committee's time, and would be happy to answer
    any questions the Committee might have.
        Mr. Conyers. Thank you very much, Attorney Jaffer.
        [The prepared statement of Mr. Jaffer follows:]

                     Prepared Statement of Jamil N. Jaffer

                                   __________
        Mr. Conyers. I now turn to Michael Lewis, welcome. An
    associate professor of law at Ohio Northern University. Before
    that, he was a Naval aviator in the United States Navy, and he
    is a cum laude Harvard Law School graduate, which we do not
    hold against anybody in the Judiciary Committee. But we do
    welcome you, we have your statement and we would like to hear
    from you at this time, sir.

    TESTIMONY OF MICHAEL W. LEWIS, ASSOCIATE PROFESSOR OF LAW, OHIO
               NORTHERN UNIVERSITY, PETTIT COLLEGE OF LAW

        Mr. Lewis. Thank you, Mr. Chairman. I would also like to
    thank Ranking Member Sensenbrenner for inviting me to testify
    here today.
        In reading the other submissions, I noted that there was
    also an extensive discussion of scope of the laws of armed
    conflict and the boundaries of the battlefield, and I actually
    filed a supplemental submission on that issue that I would like
    to be entered into the record.
        Mr. Conyers. We will be happy to take it into the record.
        [The information referred to follows:]

                                   __________

        Mr. Lewis. As my written testimony focuses on the choice
    between Article III courts and military commissions for trying
    terrorists and al-Qaeda members, there is no question that
    Article III courts are capable of trying terrorist and al-Qaeda
    members. We have seen that with Richard Reid, the shoe bomber,
    Zacarias Moussaoui as well as Timothy McVeigh. I believe that
    there is a subset of terrorists or al-Qaeda defendants whose
    proper place is before military commissions rather than Article
    III courts. That subset would be the group of defendants who
    are apprehended overseas by members of the United States
    military. And the reason for that is that the Federal Rules of
    Evidence that determine what evidence gets before criminal
    juries in Federal court is based upon the police apprehension
    assumption, basically, the idea that law enforcement
    individuals who are trained in the preservation and collection
    of evidence in chain of custody and Mirandizing defendants and
    interrogating them appropriately under Miranda; in drafting
    very detailed police reports that will stand up to cross
    examination by skilled defense counsel; and, perhaps most
    importantly, to be available weeks, months or even years after
    the event to return to testify about the specifics of the
    arrest, again, subject to the cross examination of skilled
    defense counsel.
        These assumptions underlie the Federal Rules of Evidence,
    and none of these assumptions are valid for that subset of
    defendants who are apprehended overseas by members of the U.S.
    military. Because the members of the U.S. military combat
    troops are not trained, nor should they be trained in the
    collection and preservation of evidence or in the Mirandizing
    of defendants, or in the writing of police reports. And they
    are very likely to not be available weeks, months or years
    later to come back and testify about the specifics of the
    arrest, which gives a great deal of hearsay problems to any
    evidence that was collected at the time.
        As a result of this, I think there are two major concerns
    that I have. The first is, obviously, there is a great deal of
    evidence that is likely to be excluded from any trial because
    of the fact that these people are not trained in the
    preservation of such evidence, and we saw some of that in the
    Ghailani trial, and that was even where you had law enforcement
    agents that had gone over to Kenya and Tanzania to do much of
    the investigation.
        But the other problem, and this is one that is less
    discussed and I think equally as important, is that if you
    decide to tell the military that all al-Qaeda members, all
    terrorists will be tried before Article III courts, you are
    going to make the military become better police officers, and
    that is not something we want to do.
        In my submissions, if you look at page 4, 5 and 6, there
    are a couple of different forms that I have copied for the
    Committee to look at. On page 4, you have a standard what is
    called capture tag that was used in Afghanistan, and that is a
    very short piece of information that is required by the Geneva
    Conventions anytime you capture someone. It can be filled out
    in a minute and a half by anyone, whether they understand the
    Federal Rules of Evidence or not.
        Pages 5 and 6 contain a form that has been used by the
    coalition forces in Iraq and looks far more like a traditional
    police report. It requires a great deal of detailed information
    be secured by the combat forces that are doing the
    apprehension, and it also requires some understanding of chain
    of custody, evidence collection, et cetera. And the reason why
    this is a problem is because our combat soldiers only have a
    limited amount of time to maintain their skills. And as someone
    who, at least for a brief period of time, myself, achieved a
    high degree of combat proficiency, I can tell you that that
    combat proficiency is very perishable. And to the extent you
    take away training time from combat proficiency in order to
    learn how to properly withstand cross examinations, fill out
    police reports, and keep evidence, you are likely to degrade
    the combat effectiveness of the troops that are being asked to
    do that.
        So I would ask that we do not make that requirement of our
    men and women overseas that are in combat. Thank you for the
    time.
        [The prepared statement of Mr. Lewis follows:]

                     Prepared Statement of Michael W. Lewis

                                   __________

        Mr. Conyers. Thank you very much, Professor Lewis. We turn
    now to a Puffin Foundation writing fellow at the Nation
    Institute, a non profit media center. Mr. Jeremy Scahill, he is
    investigative journalist, an author and a correspondent on both
    radio and television programs. We welcome you here this
    morning, your statement will be included in the record,
    welcome.

        TESTIMONY OF JEREMY SCAHILL, INVESTIGATIVE REPORTER AND
                    CORRESPONDENT FOR DEMOCRACY NOW!

        Mr. Scahill. Thank you very much, Mr. Chairman. I am the
    national security correspondent for the Nation Magazine and
    proud of our editor, Katrina vanden Heuvel.
        I would like to thank the Chairman in this Committee. I
    wish that Ranking Member Sensenbrenner was here, I am from his
    State of Wisconsin. I would have liked to engage with him on
    some of these issues.
        As we sit here today in Washington across the world, the
    United States is engaged in multiple wars, some like those in
    Afghanistan and Iraq are well-known, but there is another war,
    a covert shadow war, being waged in darkness by U.S. special
    operations forces and the CIA across the globe. This war is
    largely void of any effective or meaningful congressional
    oversight, and takes place in countries like Yemen, Somalia and
    Pakistan, nations with which the U.S. is not officially at war.
        The actions and consequences of this shadow war are seldom
    discussed in public, or investigated by the Congress. And yet
    they have a direct impact on the debates and legislation on
    national security and civil liberties here at home.
        Far from discussing the distant past, as Mr. Sensenbrenner
    indicated, I intend to talk about current U.S. policy and how
    the Obama administration has continued some of the most
    outrageous policies and dangerous policies of the Bush
    administration.
        The current U.S. strategy in the shadow war can be summed
    up as follows, we are trying to kill our way to peace, and the
    killing fields are growing in number. Congress has a
    responsibility to soberly and seriously address crucial
    questions. What impact are these clandestine operations having
    on U.S. national security? Are they making us more safe or less
    safe? When U.S. forces kill innocent civilians in so-called
    counterterrorism operations, are we inspiring a new generation
    of insurgents to rise against our country. And what is the
    oversight role of U.S. Congress in the shadow wars that expand
    the Bush and Obama administration. The most visible among these
    shadow wars, Mr. Chairman, is in Pakistan where the U.S.
    regularly bombs that country using weaponized drones. At the
    same time, U.S. special operations forces are engaged in covert
    offensive actions in Pakistan, including hunting down so-called
    high value targets and conducting raids with Pakistani forces
    in north and south Waziristan. These actions are carried out in
    secret and have been publicly denied by senior Pentagon and
    State Department officials who stated that there are no U.S.
    troops in Pakistan, or that the only role of U.S. troops there
    is to train Pakistani forces. Such statements made recently by
    Ambassador Richard Holbrooke and Pentagon spokesperson Geoff
    Morrell, their statements are demonstrably false.
        U.S. Officials have consistently misled the American public
    and the Pakistani people on the extent of U.S. military
    operations in Pakistan. If Congress is kept in the dark about
    these operations, Mr. Chairman, how can it expect to honestly
    and effectively debate U.S. on Pakistan?
        One of the most off-the-radar wars the U.S. is currently
    waging is in the Horn of Africa and the Gulf of Aden, where
    U.S. Forces are increasingly attacking forces from al-Qaeda and
    the Arabian Peninsula. As with the presence of U.S. Forces in
    Pakistan, publicly the Obama administration insists that its
    role in Yemen is limited to training and equipping the
    country's military forces.
        This is false. On multiple occasions, the United States has
    launched cruise missiles carrying cluster bombs at villages in
    Yemen, killing scores of people, among them, women and
    children. Two such attacks took place last December. One of
    them was reportedly aimed at targeting a U.S. citizen, Anwar
    al-Awlaki to execute him without trial. Special operation
    sources have told me that elite U.S. Special ops have also
    engaged in lethal ground operations directly in Yemen. As in
    the case of U.S. drone strikes in Pakistan, the Yemeni
    authorities are colluding with American officials to cover up
    and mask the extent of U.S. involvement.
        In a meeting with General David Petraeus in early January
    2010, Yemen's president reportedly told the General, ``We will
    continue to saying the bombs are ours, not yours.'' U.S.
    special ops forces have launched at least six attacks in
    Somalia in recent years, including multiple helicopter assaults
    and Tomahawk missile attacks.
        The most recent operation we know of in Somalia was a
    helicopter attack in September 2009 under the current
    President's command.
        These ongoing shadow wars, Mr. Chairman, confirm an open
    secret that few in Congress are willing to discuss publicly,
    particularly Democrats. When it comes to U.S. counterterrorism
    policy, there has been almost no substantive change from the
    Bush to the Obama administration. In fact, my sources within
    the CIA and the special operations community tell me that if
    there is any change, it is that President Obama is hitting
    harder, hitting in more countries than President Bush. The
    Obama administration is expanding covert actions of the
    military in the number of countries where U.S. special forces
    are operating. The Administration has taken the Bush era
    doctrine that the world is a battlefield, a favorite of the
    neocons, and run with it and widen its scope.
        Under the Bush administration, special forces were in 60
    countries around the world; under President Obama, they are in
    75. As a special operations veteran told me, President Obama
    has, ``Let U.S. special operations forces off the leash.''
        As I just returned from Afghanistan, Mr. Chairman, I would
    like to share with this Committee part of my investigation into
    deadly U.S. Night raids in that country where innocent
    civilians were killed. These operations carried out by the same
    special ops team that operate in Yemen, Pakistan and Somalia
    are part of what is effectively a shadow war within the more
    publicly visible war in Afghanistan.
        In one incident in February of this year, U.S. special
    operations forces raided a civilian compound in the Gardez
    district of Paktia Province. They killed two pregnant women, a
    teenage girl and two men. U.S. forces tried to cover up their
    responsibility for the killings and blame the Taliban and said
    the women were executed in an honor killing. That was a blatant
    lie, Mr. Chairman, and eventually the U.S. was forced to admit
    its responsibility. These innocent Afghans were killed by
    soldiers from the joint special operations command.
        I went to visit with that family in their home in Gardez.
    They were pro American and anti Taliban before this raid. In
    fact, the night U.S. Forces stormed their compound, they
    thought it was a Taliban attack. The two men who were killed
    were actively working with U.S. forces. One of them was a top
    police commander trained by the United States. The other was a
    local prosecutor in the Karzai government. One man who saw his
    pregnant wife gunned down by U.S. Forces was hooded, and
    handcuffed, and taken prisoner for days by American forces.
    When he was released, he told me he wanted to become a suicide
    bomber and blow himself up among the Americans. To date, the
    only remedy that the United States has offered this family were
    two sheep for them to sacrifice.
        A similar story happened when I visited Nangarhar Province,
    U.S. forces raided the Kashkaki family's compound in May of
    2010, killing 8 civilians. Local police officials told me the
    family had no connection to the Taliban. That family is left
    asking why they should support the U.S. presence in their
    country after watching their loved ones shot dead before their
    eyes by a military that claims to be there to liberate them and
    free their country. These raids and the civilian death they
    cause are hardly isolated incidents.
        In closing, Mr. Chairman, I told both of these families
    targeted in those raids that I described that I would bring
    their cases before the U.S. Congress and ask that they be
    investigated and that those responsible be held accountable. On
    behalf of those families I humbly ask this Committee to
    consider this request. Thank you, Mr. Chairman.
        [The prepared statement of Mr. Scahill follows:]

                      Prepared Statement of Jeremy Scahill

                                   __________

        Mr. Conyers. I would like to get the details on both of
    them. And would you also, when you submit, would you identify
    the 75 nations that you say we have gone up from 60 to 75.
        Mr. Scahill. Mr. Chairman, that information remains
    classified. I have been able to gather about a dozen of them
    from Special Operation sources, but I will submit to you the
    information that I have thus far and documentation to support
    the 75 statistic.*
    ---------------------------------------------------------------------------
        *The material referred to was not received by the Subcommittee at
    the time of the printing of this hearing.
    ---------------------------------------------------------------------------
        Mr. Conyers. Thank you very much.
        I now am very pleased to introduce as our next witness
    Bruce Fein. For years he served as Assistant Director of the
    Office of Legal Policy, legal adviser to the Assistant Attorney
    General for Antitrust, and the Associate Deputy Attorney
    General of the United States.
        Mr. Fein has also served as the general counsel of the
    Federal Communications Commission, followed by an appointment
    as research director for the Joint Congressional Committee on
    Covert Armed Sales to Iran. And I hesitate to add this, but he
    also is a graduate from Harvard Law School with honors.
        We welcome you, Bruce Fein, to this hearing.

                    TESTIMONY OF BRUCE FEIN, FORMER
                   ASSOCIATE DEPUTY ATTORNEY GENERAL

        Mr. Fein. Thank you, Mr. Chairman.
        The law reflects the moral deposit of the time. And I think
    the issue that you have raised at this hearing, civil liberties
    and national security, represents a revolution for the worse in
    the American political culture and psychology.
        The United States was born with the idea that the
    individual was the center of the universe and due process was
    to be praised and venerated above all else. And the reason
    wasn't to win foreign allies and international support,
    although that was something that would not be unwelcome, but it
    was because of who we are as a people, who we are as a people.
    Do we care about freedom more than absolute safety? Do we care
    about due process more than domination for the sake of
    domination?
        And I think I would like to illustrate the degradation in
    our political culture to a way that we resemble more China and
    Russia than we do the United States in 1776 or 1787 by some
    comparisons.
        I think the first is are we at war? It is the
    characteristic of all empires to inflate danger from a
    reasonable level into thousands or millions of times above that
    level in order to justify an extra increment of safety. And if
    you examine today the enemy-to-soldier ratio of the United
    States and Afghanistan and Pakistan--and our CIA and our
    counterterrorism experts estimate we have 50 to 100 al-Qaeda in
    Afghanistan at present, maybe 300 in Pakistan--if you take that
    current enemy-to-soldier ratio and apply it to what our Armed
    Forces would have looked like in World War II fighting Japan
    and Germany, we would have fielded a military of 3\1/2\ billion
    soldiers. Including conscripting every single American, we
    would have to multiply the population by 126. And our enemies
    in World War II were not those who were in caves and had
    primitive access to technology or weapons; these were people in
    Germany and Japan building V-1, V-2 rockets, Zero airplanes,
    kamikaze pilots, et cetera. And yet we did not suspend due
    process of law.
        In my judgment, one of the greatest errors that we have
    made in addressing this whole issue is to conclude that 9/11
    did cross the threshold of danger that put us at war. And that
    is very critical, Mr. Chairman, because war is very unique
    because it makes what is customary murder legal. That doesn't
    mean it should never happen, but that is a very grave step to
    take. What is customarily murder becomes legal.
        And that is where we are today with, I think, the
    authorization to use military force and really without much
    debate or discourse at all, saying al-Qaeda represents that
    level of danger that justifies moving from a criminal justice
    system to where we treat these people as international thugs
    and dangers to being warriors subject to the rules of war.
        But that is just one example.
        Another example, if we look at where we were at the outset
    and where we are today, you remember the Boston Massacre, and
    we had someone named John Adams, and he was a lawyer. He
    defended some of the British soldiers who were accused of
    massacring protesting Americans at the time, and he was placed
    under much criticism. He was actually defending the rule of
    law, and he won acquittal from those British soldiers. He later
    became a President of the United States. He was the first Vice
    President as well.
        Today this culture treats those who would defend those
    accused of crimes. If you call them a terrorist crime, would
    you get elected President? No. You would get on the banned
    list. No one should hire you. You should be treated as a pariah
    if you are defending the rule of law. Indeed, we have lowered
    to the situation where we have had a former Solicitor General
    of the United States say that someone who defends an
    organization allegedly listed as a--false, wrong as a foreign
    terrorist organization, to provide legal assistance is a
    material assistance prohibited under a material assistance law.
    Now, that sounds like a lawyer practicing in Russia or in
    China, not the United States of America.
        Now, let me give you the odyssey of Khalid El-Masri to show
    again how far we have come in degrading the rule of law.
        Khalid El-Masri was a German citizen of Lebanese ancestry,
    and after 9/11, he was picked up--kidnapped, if you will--from
    Macedonia, taken to Afghanistan, imprisoned there. He was
    tortured. He was abused. He was dumped back in Albania. All of
    this never being accused of any crime whatsoever.
        In Germany, there are 13 arrest warrants that were
    initially issued in order to try to bring to justice CIA
    operatives. The United States of America urged and exhorted the
    Germans to stop, don't go this far; you will upset the
    international opinion toward us. The rule of law should be
    crucified on a national security cross. And those arrest
    warrants were then never executed.
        Mr. El-Masri then comes to the United States, and he brings
    a lawsuit claiming that the Constitution has been violated, and
    he is suing CIA Director then George Tenet and others for
    constitutional violations of his rights. And what is he
    confronted with? State secrets privilege. You can't prosecute
    your case, the U.S. Court of Appeals for the Fourth Circuit
    said, because you will have to disclose who the culprits were
    who tortured and beat you, and that will disclose intelligence
    sources and methods. Therefore, you are out of court. And that
    kind of Catch-22, again, it smacks of Soviet or Chinese
    justice. This is the United States of America, and this is what
    happened to Mr. Khalid El-Masri. Just one example.
        If we were to read in the newspapers that Vladimir
        Putin could put on a list, you know, Russians who he
    thought--Mr. Berezovsky or others who are outside--a list to be
    assassinated because he thought they were endangering political
    stability in Russia, we would think, what a monstrosity. This
    shows how bad and lawless Russia is. They really haven't
    changed since Gorbachev left.
        And yet here we have today a President of the United States
    claiming identical authority, unilaterally authorized to
    identify an American citizen abroad, no judicial review, no
    congressional oversight. You are on an assassination list
    because I am declaring that you are an imminent threat to the
    United States. He is not on a battlefield. He is not engaged in
    active hostilities against the United States. There is no due
    process whatsoever. And indeed, just 2 days ago, a U.S.
    district court here held, well, there is no way that the
    judiciary can review this particular power. Only Congress can
    do it. Only Congress can do it.
        I want to take you back, Mr. Chairman, to the days when I
    think you and I were here some 30 or 40 years ago concerning
    President Nixon's impeachment and to examine how again far we
    have fallen since those times.
        You remember those three articles of impeachment that were
    voted by the House Judiciary Committee? They were strong. And
    Barbara Jordan was there. One of one, he, President Nixon, had
    failed to faithfully execute the laws. There were law
    violations that he knew about, and he was not faithfully
    executing laws. Indeed with the tapes we heard he was
    encouraging obstruction of justice, et cetera. And he was
    impeached for that.
        And as you pointed out in your opening statement, we have a
    President now who sees out there waterboarding, torture. He
    knows the people who are complicit because they have confessed.
        Now, there is no exception in Article II of the
    Constitution to decline to faithfully execute the laws because
    it would be politically difficult. No exceptions. Indeed, if
    there is some awkwardness, there is a remedy, if you will. It
    is called the pardon power. President Ford, as you well know
    and remember, Chairman Conyers, decided he would pardon Richard
    Nixon because he thought the country would be too convulsed
    with a trial. But he took accountability. A pardon requires the
    recipient to acknowledge guilt or wrongdoing, and it does not
    then wound the rule of law.
        To just shut your eyes to violations of law of the most
    heinous sort is a flagrant violation of that duty to faithfully
    execute the law, and yet nothing happens.
        Let us go to another area. Another article of impeachment
    against Richard Nixon was obstruction of justice. Remember the
    18-minute gap and all of the things that disappeared?
    Obstruction of justice.
        As you point out, we have open acknowledgment that those
    interrogation videotapes were destroyed. And what happens?
    Nothing. Nothing. Where is the oversight? That is an unflagging
    obligation to enforce the laws. And I go back. If you don't
    think it will be politically healthy, you have to pardon them.
    And pardoning requires the recipient to say, ``I did wrong.''
        The third article of impeachment was flouting a
    congressional subpoena, an impeachable offense. Today it
    happens every day. You know, Mr. Chairman, you had to go to
    court. Ultimately you won at the district level, and it became
    moot because Congress expired, et cetera. Had to fight the case
    again.
        This Administration, previous Administration, ignores
    subpoenas all the time. I don't want to answer. It doesn't even
    have to be classified information, sensitive information. We
    don't want to tell you. It is why you know more about the
    United States from reading WikiLeaks than you get in classified
    briefings from this executive branch and previous ones. It is
    not a partisan issue; it transcends politics.
        And then we had Mr. Sensenbrenner talk with, I think,
    rather a breezy air about these national security letters.
    These are letters that the FBI and others can issue
    unilaterally, no judicial review. If you say that some
    investigation has any relation to terrorism, which can be
    anything under the sun--and today, when we are at least
    semientrapping 18- and 19-year-olds that we read in the
    newspapers to plan bomb plots or whatever, you know, a
    terrorism investigation can cover the waterfront, and even with
    that breadth, their own inspector general in the Justice
    Department said it was violated thousands of times where there
    is not proper certification given.
        These kinds of infringements in our day, Mr. Chairman, it
    was called the Houston Plan, and the Houston Plan was rejected
    even by J. Edgar Hoover. J. Edgar Hoover says this is not
    acceptable in the United States. He then becomes a civil
    libertarian like John Ashcroft in the hospital where at least
    he wouldn't do some of the things in flouting the Foreign
    Intelligence Surveillance Act that the Bush administration
    wanted.
        And perhaps to me most shocking, although the incidents are
    so numerous you get numb to them, was a statement made by a
    Member of Congress, and I won't identify him, after the verdict
    up in New York on one of the alleged--those complicit in the
    bombings in Tanzania and Kenyan Embassies where the gist of his
    statement was, we can't have trials if you are going to have
    not guilty verdicts. We only do trials if you know you are
    going to bring in guilty and punish them.
        This is like a world of Joe Stalin. You only have show
    trials. Due process isn't there to try to ferret out what is
    truthful and what is not, who is innocent and who is not
    guilty. The fact that a statement like that could be made from
    someone whose oath of office is to uphold and defend the
    Constitution of the United States--and it goes unremarked--is
    truly shocking. Truly shocking.
        The last example I want to give--and I was involved in some
    sense as amicus curiae--concerns our treatment of Uighurs. Now,
    it may sound very exotic. Uighurs are an ethnic minority in
    Northeast China. They are Muslims. And there was about two
    dozen of them detained at Guantanamo Bay. Two dozen were
    detained at Guantanamo Bay, allegedly enemy combatants,
    although they despise Communist China, never threatened
    Americans ever, but they are said to be enemy combatants
    because they trained on the same field that Osama bin Laden
    once put a foot on or his car drove over.
        They were there for almost 8 years. Finally, the Supreme
    Court gave them habeas corpus in the Boumediene case. And they
    come to the district court here, and the Justice Department
    finally says--this is Obama--we really don't have any evidence
    that they are enemy combatants at all. We have no evidence that
    really they have been detained illegally for 7 years. The judge
    says, well, I guess they should come to the United States.
        Indeed their leader, semileader, is a woman called Rebiya
    Kadeer, who has received the Nobel Peace Prize nomination three
    times. Her offices are catty-corner from the White House's.
    Well, I will take care of them. There are only 17. I will give
    you my bond that they won't become public charges. And the
    Obama administration says, no, they are illegal aliens. They
    don't have green cards. They can't come to the United States.
    They have to go back and rot in Guantanamo even though they are
    being held illegally. And that argument prevailed in the
    executive branch.
        The case went up on appeal. Meanwhile, the United States of
    America then shocked the world offering bribes, would you
    please take these Uighurs off our hands? We don't want them
    here. We are frightened. The Chinese might not buy our bonds.
    So we will then sell their liberty to somebody else, Vanuatu or
    the Bahamas or Bermuda or something like that.
        That is what the United States has come to. It has come to
    resemble the King George III monarchy, the tyrannies that we
    were fighting about. And this is not something that is a trade-
    off between civil liberties and national security.
        The greatest national security of any nation is the loyalty
    of its people, its devotion to the country because it respects
    the rule of law. The British may have thought that they were
    getting security when they quartered soldiers in American
    colonists' homes, when they issued writs of assistance, when
    they impressed U.S. seamen, American seamen, into their own
    Navy, and they ended up with a revolution, and they lost
    everything. That is what the French thought, too, on the eve of
    the French Revolution. The escalation of the oppression of
    freedom ends up endangering the state rather than making it
    more secure.
        And on that score, as when stated as by my previous
    witness, we also, by acting in a lawless way abroad, are
    creating more enemies than we are killing. We are making
    ourselves less safe. We have the illusion with the body count
    that, oh, yes, now I don't feel quite as fearful that tomorrow
    there will be a caliphate in Washington, D.C.
        But ultimately, Mr. Chairman, this will change only if our
    political culture and our leadership changes to say we prefer
    freedom to absolute safety. Now is the time to understand our
    goal is not an empire. Restore the individual and freedoms as
    the center of our constitutional universe, and other things are
    subordinate to that overriding goal.
        Thank you, Mr. Chairman.
        Mr. Conyers. Thank you, sir.
        [The prepared statement of Mr. Fein follows:]

                        Prepared Statement of Bruce Fein

                                   __________

        Mr. Conyers. You six witnesses have provided us with some
    of the most important discussion that the Judiciary Committee
    has held in the 111th session. I am grateful to you.
        I am going to ask you now, starting with Ambassador
    Pickering, where do you think we ought to--or how might members
    of the legislative branch and citizens begin to weigh in on a
    discussion such as the one that has been held here this morning
    that many people are going to look much further into and become
    more aware of some of these tensions between constitutional
    liberties and security?
        Mr. Pickering. Mr. Chairman, that is an important and
    significant challenge. All of us, I think, have great respect
    for the Committee and great respect for your work and role. I
    hesitated to provide prescriptory ideas, but let me begin with
    a few.
        I think you have several powers that are very important
    here. One, the simplest and the easiest, but perhaps one of the
    most effective, is the simple power of reporting, reporting to
    your fellow Members of Congress, reporting to the public,
    reporting in that way to the executive branch about the areas
    that you are concerned about.
        I particularly expressed my concern about the issue of the
    use of Article III courts and the concern I had that military
    commissions and other substitutes, if they were not equal to
    Article III courts in their protection of the rights of the
    individual, would be failing to meet the constitutional norms.
        I am concerned about detention without trial on an
    indefinite basis. Some of us have suggested some ways to
    proceed.
        I am concerned about the protection of privacy while at the
    same time, obviously, administering effectively the law and
    security and the adequate control of trade and commerce.
        I am concerned about the exercise of state immunity as a
    blanket way to evade the use of the judicial process to find
    redress for issues and problems that come up that are otherwise
    open to citizens of this country.
        The second question that you will have to face and the
    second important power you have as individual Members is to
    institute legislation where you feel legislative remedies may
    be required to deal with the problem. I don't have in mind
    specific remedial legislation, others may have, but it is an
    important activity.
        The third is obviously what you are doing here today,
    bringing people together who have an interest in this problem.
    We don't all have unanimity of views, obviously, but we have
    serious concerns about what we see as the derogation of
    constitutional rights and privileges and the creation of sets
    of activities which could well lead to serious abuses now and
    in the future of the human rights of our citizens and indeed
    all others who enjoy rights under our Constitution.
        And those kinds of activities, I think, coming together can
    provide both a powerful voice and institutionally a powerful
    set of arrangements to correct what we believe have been abuses
    and tendencies to continue and expand abuses of these
    particular actions on the part of the executive branch.
        Mr. Conyers. Thank you very much.
        I would like to ask my two witnesses, Professor Lewis and
    Attorney Jaffer, in a hearing like this, do you see any
    recommendations, or do any suggestions come to your mind about
    ways that we might be able to improve the delivery of justice
    and fairness in this country both in our courts and in
    relationship between the three branches of government here and
    with the countries and the peoples of the world? Have you been
    thinking about that at all?
        Mr. Jaffer. Thank you, Chairman Conyers. It is a very
    important question, and, as with Ambassador Pickering, I was
    always cautious to suggest prescriptive ideas.
        Congressman, I do think that with respect to the question
    of how to deal with Guantanamo Bay detainees that the system is
    broke. We are trying folks in Federal court, and yet we are
    saying if they are not convicted, we are going to continue to
    detain them. Well, that may actually make a lot of sense
    because these are folks who have engaged in war against the
    United States. They have gone through a review process, and
    this Administration, and the prior Administration, have
    determined that these individuals are of the highest value and
    should continue to be detained. So it makes sense that if they
    are not convicted, that we are going to need to keep them off
    the battlefield, particularly when folks are returning at high
    rates.
        But then you have to ask yourself, well, perhaps we should
    be looking at a different judicial system that doesn't ensure
    convictions--that is not what folks are looking for--but that
    sets the balance differently than we do in the criminal justice
    system where instead of the default presumption being innocence
    and complete--you know, we let 99 guilty men off in order to
    ensure that 1 innocent man is not convicted--perhaps it makes
    sense to try a different set of rules.
        Certainly we don't want to abandon the presumption of
    innocence. That is not what I am suggesting. What I am
    suggesting, however, is a set of rules that makes sense in the
    context of war; a set of judges who have been through the
    Federal system, who were confirmed by the Senate, nominated by
    the President; prosecutors, career prosecutors, in the
    Department of Justice; cleared defense counsel who have high-
    level security clearances; a system that makes sense and yet
    can be seen to do justice without the problems raised by our
    current criminal justice system around the challenges, security
    issues, outside information issues, and all of those challenges
    that we have talked about earlier today.
        Mr. Conyers. Attorney Jaffer--before you begin, Professor
    Lewis--let me ask you, isn't there a possibility that among
    those 70, there may be some that even you and I could agree
    ought to be released, and that there are not appropriate
    charges to bring against them?
        Mr. Jaffer. Well, Chairman Conyers, certainly there is the
    possibility that among the remaining 170, that there are folks
    who deserve to be released.
        I would note that the current Administration, when it first
    came in, appointed a terrific team of lawyers from the National
    Security Division, many folks that I worked with, headed by
    Matt Olsen, currently the general counsel at the National
    Security Agency, a gentleman who I worked with and who I have a
    tremendous amount of respect for, who actually did the very
    review that you are talking about. And so I would be hard
    pressed to question that review.
        Certainly Congress should take a close look at the results
    of that review, but given that they spent a lot of time looking
    at the classified information, working with analysts from CIA,
    DIA, the National Security Agency, working with the operators,
    and actually recommended a number of folks to be released and a
    number of folks to be detained, continued detention, and some
    for prosecution, I think it makes a lot of sense--the process
    has been gone through.
        The question now becomes what happens with those detainees
    who we have determined are either too high-value to be released
    and/or we simply don't have the kind of evidence that would
    work in a Federal court; what do you do with those things? The
    basic options are currently military commissions or just
    detention without any sort of trial. A national security court
    might be an option that presents some of the benefits of
    Federal court without the whole perception issue associated
    with the military commissions.
        Mr. Conyers. What are the problems that you envision could
    happen in a Federal court that create a little bit of
    apprehension in your mind about them being the appropriate
    court of jurisdiction? I mean, they are nothing--I mean, that
    is the same court with the same set of rules that Americans are
    called upon to visit, and that we create the laws for, and that
    we select the judges for every--almost every day in the year.
        Mr. Jaffer. Absolutely. And the only thing I mean to
    suggest is that it is policy question. These folks don't have
    the same constitutional rights that folks in this country have.
    And the question becomes, as a matter of policy, do we want to
    put these detainees in Federal court and give them the same
    rights and benefits that Americans have, including this very
    strong bias against conviction, very strong bias against
    putting--sacrificing 99 guilty, letting them on the street----
        Mr. Conyers. Well, we are not playing the numbers game.
        Here is what I am suggesting; that going through a Title
    III court, we would have to prove their guilt. What is wrong
    with that?
        Mr. Jaffer. There is nothing wrong with that, and I
    actually think that it makes a lot of sense to have to prove
    the guilt of folks that we want to detain particularly beyond
    the duration of hostilities. Certainly there are folks at
    Guantanamo Bay who we don't ever want to have to see released
    including after the current set of hostilities, the immediate
    set of hostilities ends, because they have killed Americans and
    deserve perhaps a life sentence, perhaps even the death
    penalty.
        Mr. Conyers. Who has determined that?
        Mr. Jaffer. So, for example, an individual like Khalid
    Sheikh Mohammed, who has been accused of crimes, right, that
    would suggest a life sentence or the death penalty, Khalid
    Sheikh Mohammed we would want to, if we believe that, in fact,
    he is guilty of those crimes which he has been accused of, to
    be detained, incarcerated beyond the scope of any hostilities
    ongoing. And so the question becomes you have got to find a way
    to do that, and the Federal courts are one option, certainly.
    And it is an option that applies to American citizens, applies
    to folks inside the United States. And it is not a crazy
    option; it is a very reasonable option.
        The problem is there are huge challenges with the use of
    the Federal courts, both to the safety of the folks in New
    York, to the jurors who might be called, the judges, the
    classified information that might be used to convict Mr.
    Mohammed.
        Mr. Conyers. What is the problem? I mean, sure, all of that
    would happen, but what dangers does that present to you in
    terms of determining guilt or innocence?
        Mr. Jaffer. Well, imagine a world in which the evidence
    obtained that we have against Mr. Mohammed was obtained in ways
    that wouldn't----
        Mr. Conyers. Were illegal.
        Mr. Jaffer. Well, no. Put aside enhanced interrogation for
    the sake of argument. Take the example of information obtained
    in Afghanistan, bad chain of custody, obtained on the
    battlefield of war. That evidence you would want brought before
    you.
        Mr. Conyers. Would you want evidence that was gained by
    torture to be usable against terrorists?
        Mr. Jaffer. I think that we have to look at the evidence
    that was obtained.
        Mr. Conyers. You wouldn't want that, would you?
        Mr. Jaffer. I don't think we should be torturing people. I
    would never support the use of torture against----
        Mr. Conyers. And you wouldn't want people whose evidence
    was secured through torture to be found guilty on the basis of
    that evidence. Or water torture, for example, you don't support
    that.
        Mr. Jaffer. Chairman Conyers, certainly I don't think
    that--if we are torturing folks, we should not be doing it.
    And, you know, there are a lot of concerns about the enhanced
    interrogation techniques that were used in the CIA program.
    Nobody can doubt that. A lot of people talk a lot about
    waterboarding. There were other techniques that have now been
    publicly released by the current Administration.
        Mr. Conyers. They are probably just as bad.
        Mr. Jaffer. Walling, sleep deprivation.
        Mr. Conyers. But what would you do with evidence gained
    through those techniques in a court?
        Mr. Jaffer. If those techniques constitute torture under
    the law of the United States, and that is a legal question, one
    that no court has yet determined, and one that different folks
    disagree about----
        Mr. Conyers. On the contrary. It has been determined--
    waterboarding has been determined pretty definitively as not
    being appropriate, and for all that we can determine, it is
    ordered to have been stopped, and we don't have any reports
    that it is still going on. Do you know of any?
        Mr. Jaffer. No, Mr. Chairman. In fact, both Administrations
    have indicated clearly that there were only three individuals
    subject to waterboarding, and they disclosed the names of those
    individuals, including the number of applications of
    waterboarding. So it was a very--that particular technique
    obviously being on the farthest edge of the enhanced
    interrogation techniques that were used in the CIA program, the
    sort of the least invasive being perhaps the facial slap,
    right, all the way to the waterboarding. And there were a
    number of techniques in between as now has been declassified by
    the Administration.
        The real concern here, though, is, you know, when we are
    looking at these techniques, people of reasonable minds put
    aside the really extreme techniques and take other techniques
    that may be used, whether it is the ones that are approved in
    the Army Field Manual or others. There are people of reasonable
    minds who will disagree about whether those techniques should
    be used in a free society like America. There is no doubt that
    that disagreement is a valid, reasonable disagreement to have.
        The question then becomes what happens when a technique you
    don't want, whether it is an extreme technique--and put aside,
    again, the most extreme technique--but enhanced----
        Mr. Conyers. In other words, you might see your way to
    endorse modestly enhanced techniques. Could that satisfy your
    sense of fairness?
        Mr. Jaffer. Mr. Chairman, I think that is a decision well
    above my pay grade. And it is----
        Mr. Conyers. No. It is a decision that each of us can
    individually possess that might--yours might be different from
    someone else's, but it doesn't make it any less important to
    you.
        Mr. Jaffer. Well, Mr. Chairman, I think what I would say
    is, you know, the CIA program yielded its most highly valuable
    intelligence gained on the war on terror, period, bar none.
    There is no question that the information gained from that
    program, whether you agree or disagree with the techniques
    used, but the fact that they were detained, held as high-value
    detainees and were questioned in a particular set of
    circumstances, led to the further capture of some of the
    highest-value detainees that we have in our custody and the
    biggest efforts against the al-Qaeda network. And so, you know,
    I am not sure that I know which techniques are good----
        Mr. Conyers. Why is it that judges seem to be prone to not
    allow admissible evidence from witnesses who have been subject
    to enhanced interrogation? Are they soft-headed or sentimental,
    or what is the problem here?
        Mr. Jaffer. Not at all. We have a long history in this
    country of excluding evidence obtained from coercion because,
    A) we don't think coercion is right, and, B) we don't think
    necessarily that the information that came from coercion is
    reliable.
        Mr. Conyers. And neither do you.
        Mr. Jaffer. And I think that there are serious questions
    there. There are serious questions about whether information
    obtained from coercion is reliable. And there are serious
    questions about whether these are techniques that we want to
    use in America, in a free country.
        Mr. Conyers. Could you understand how a person subject to
    these kind of techniques would say anything that anybody wanted
    them to say?
        Mr. Jaffer. Absolutely. Absolutely. There is no doubt that
    the history of the use of coercive techniques has suggested
    that there are serious issues with the information obtained
    from such coercion.
        That being said, there is also no question that the folks
    who went through the CIA program yielded tremendously valuable,
    accurate intelligence, actionable intelligence that we acted
    upon and protected this Nation; that there are now--as part of
    the release of the CIA memos, other documents were released at
    the request of the previous Administration, that evidence, that
    information obtained from individuals in U.S. Custody as part
    of the CIA and other detainee programs, allowed us to protect
    this Nation from actual, ongoing, day-to-day plots.
        Mr. Conyers. Let me summarize here because I want to
    recognize Laura Murphy. Then I am coming back to Professor
    Lewis.
        Would you be willing to submit at your earliest convenience
    a list of cases in which there was known enhanced interrogation
    or torture used in which the witness elicited valuable and
    correct information?
        That is for you, Attorney Jaffer.
        Mr. Jaffer. I am not aware--you know, the information that
    has been declassified by the current Administration is very
    limited, especially with respect to the information obtained
    from----
        Mr. Conyers. Well, I don't want classified information.
    Although I am cleared for it, maybe several hundred million
    Americans may not be.
        Mr. Jaffer. And I am no longer cleared for it either, Mr.
    Chairman.
        Mr. Conyers. So let us take that off. Let us take that off.
        We are talking about trials or evidentiary proceedings or
    investigations in which enhanced torture, enhanced
    interrogation or torture, revealed valuable and important and
    accurate information.
        Mr. Jaffer. Well, Mr. Chairman, I would just say even if
    you look at the Agency's program alone, as we know, Abu
    Zubayda, who was subjected to extreme enhanced interrogation
    techniques, including the waterboard, ultimately gave us
    information that led us to Khalid Sheikh Mohammed. That much
    has been declassified and is in the public record.
        So I can't speak to whether, you know, in the entire
    history of the criminal justice system we have found folks who
    have been----
        Mr. Conyers. Neither can I. That is why I am asking you.
        Mr. Jaffer. But I share the concern, Mr. Chairman.
        Mr. Conyers. Okay. Then we agree that it would be pretty
    difficult to do.
        Mr. Jaffer. Absolutely, Mr. Chairman. We agree on that.
        Let me be clear. I do not support the use of coerced
    testimony, nor do I support the use of techniques that
    constitute torture or anything even approaching that, Mr.
    Chairman.
        What I do want to note, though, however, is that this
    program that the CIA engaged in where they held high-value
    detainees abroad and sat down with them and went through these
    issues yielded tremendously valuable intelligence and protected
    Americans from ongoing plots. There can be no doubt about that;
    the public record on that is clear. It is not as fulsome as one
    might hope. One might hope for even more information that would
    allow us to really judge the program, right? And perhaps this
    Administration will declassify additional information, if
    appropriate.
        But I guess my concern is that when you look at this
    classified information, to declassify, you must step very, very
    cautiously. And I would submit that even some of the
    declassifications taking place to date have been perhaps
    unnecessary. So it may be necessary to say, look, here are the
    techniques that were used in the program, but to give a
    detailed description of how many degrees you incline someone's
    head, what amounts of water you might use, I mean, this is just
    a recipe for how to torture Americans or how to use enhanced
    interrogation techniques against Americans and more
    aggressively, right, if you believe that such technique
    constitute torture, right?
        So if you are a person who believes that waterboard is
    torture, and I think most people tend to feel that it is the
    most extreme of the enhanced interrogation techniques, whether
    you use the term ``torture'' or whatever to describe it, right,
    why would you then give everybody in the world, including our
    enemies, a detailed recipe of how to carry that out? It seems--
    what is the national security benefit of that?
        Mr. Conyers. Ambassador Pickering, you seem disturbed, and
    I would like to recognize you before I go on.
        Mr. Pickering. I have been following with interest the line
    of questioning, Mr. Chairman. I have two concerns. One, the
    Federal court does not answer the question, at least in terms
    of how it has been explained--it is a new Federal court idea--
    of what to do about detainees who are not convicted. So we know
    that that is a problem.
        Secondly, I personally have no objection to finding useful
    ways to bring together the judicial system with the protection
    of classified information, and we have a statute that does
    that. If Mr. Jaffer feels that is inadequate, then maybe there
    is an opportunity here to propose something for your
    delectation that would, in fact, improve that particular
    process. We have no objection to that. At least I have no
    objection to that.
        I have a serious concern that if, with all the euphemisms
    that have been used, the new Federal court is designed to
    prejudice the trial in a way to assure convictions by denying
    rights that are otherwise available to Americans and others
    under our judicial system, then I have an objection. Why not
    just use the Article III courts? If it is an attempt to get
    halfway between the old military commission struck down by the
    Supreme Court and the Article III courts, then we are, in a
    sense, moving in the right direction, but not sufficiently, in
    my view. So those remain important.
        The whole question of torture and its role I addressed in a
    few brief words. I am not the expert on this issue. I have read
    a lot about it. I am convinced it is a highly unreliable and
    reprehensible technique, and that it shouldn't be used; that it
    has muddied the process of bringing people who, with every
    other piece of evidence, are undoubtedly convictable in court,
    and it, as a result, has destroyed the capacity to deal with
    that set of issues.
        I would think it would require an act of the most careful,
    painstaking, and infinitely detailed kind of research, with
    total access to every interchange with the gentlemen concerned
    who have been subject to these techniques to begin to make head
    or tails out of whether a particular technique, a particular
    line of questioning produced a particular result.
        I know from what I have read that experienced interrogators
    find the use of these kinds of techniques in the main as
    destroying their capacity to effect the kind of relationship
    with the person being interrogated that produces the kind of
    useful information that is very valuable.
        But I think your question is entirely germane, it is an
    extremely useful one, but I think it points down the road of
    the frustration of trying to find the answer to this question:
    Under any circumstances that we can conceive of, has this
    particular set of techniques produced the reliable sort of
    information that is the kind of silver bullet that Mr. Jaffer
    would like to have us believe is, in fact, the product of this,
    but where everything else is in an inscrutable and unopenable
    black box.
        Mr. Conyers. Attorney Bruce Fein.
        Mr. Fein. I would like to make three observations about Mr.
    Jaffer's remarks, which I find a little frightening.
        First, I think it is specious to say because torture,
    waterboarding was used, and some information by that individual
    who was interrogated was useful, therefore only the torture was
    the way to bring it about, because, as I think Ambassador
    Pickering pointed out, there are those skilled interrogators
    who said, well, many of these individuals were giving useful
    information before the waterboarding occurred, and there is no
    reason why they couldn't have gotten the information otherwise.
        But putting that aside, there really is no limit I see,
    principle, to stopping at waterboarding. How about the rack and
    screw? How about threatening the family of the individual and
    say, we are going to kill your son or your daughter? If
    everything is subordinate to trying to get reliable
    information, then we have lost our badge of being civilized
    people. Anything goes.
        And then the last thing that is also very troublesome is we
    do not have a culture whereby you can have a deterrent effect
    on these heinous techniques, because even though you could use
    the information against the alleged terrorist, you prosecuted
    the individual who was violating our own laws in the process,
    because we have a situation where they act with impunity, and
    Mr. Jaffer didn't say, well, we should be prosecuting those who
    used waterboarding or things that violated our laws that this
    Congress enacted. It was just like they washed out of the
    picture. But if you want to have any deterrence right now, the
    only way you get it is by excluding that evidence at a criminal
    trial.
        Mr. Conyers. The ever-patient Laura Murphy.
        Ms. Murphy. You see me wiggling over here.
        Mr. Chairman, I don't even know where to begin with some of
    these ideas.
        Our Article III courts are in great shape. They have worked
    for over 150 years. We have the Classified Information
    Procedures Act that is working.
        We need to prosecute terrorists in Article III court. We
    elevate them as war heroes when we try to use military
    commissions that are deeply flawed, that allow hearsay evidence
    that has not been tested through the Supreme Court process.
        Military commissions have tried five people. The Justice
    Department has prosecuted over 400 people in Article III
    courts.
        We need accountability for terrorism. We know that
    terrorism--I am sorry--for torture. We know that torture is
    illegal. We need to make sure that Mr. Durham fully
    investigates people all the way up the food chain in the former
    Administration who authorized this.
        That the President, the former President, can walk around
    with impunity and say that he gladly authorized waterboarding
    is just an insult and an offense to our values and to the
    treaty obligations that we hold dear in our American law and
    jurisprudence.
        But the other thing, I wanted to go back to your first
    question about what should you do. I think that if you recall
    those days right after 9/11, we worked very closely together,
    Mr. Chairman. And the Congress was put under so much pressure
    not to hold hearings, and you and Mr. Sensenbrenner figured out
    how to hold hearings nonetheless.
        We need hearings on the PATRIOT Act, and we need to start
    as soon as possible. There are many abuses of the PATRIOT Act
    that are still unresolved. There are a number of inspector
    general reports that specifically go to the use of national
    security letters where the FBI has egregiously violated the
    statute. There is section 215 that needs to be fixed. There is
    the ``lone wolf'' provision, which the Justice Department says
    it rarely, if ever, uses.
        So I think we need to start the 112th Congress with a
    strong defense of Article III courts. We need to get ready for
    the PATRIOT Act reauthorization as soon as possible, and even
    though you don't--you will not control the hearings, Mr.
    Conyers, I think it is very important that we host
    conversations.
        And there were bipartisan discussions about the PATRIOT
    Act, patriots defending the Bill of Rights. There are
    organizations and institutions that want to work in a
    bipartisan fashion to look at the PATRIOT Act, reopen it, and
    make sure that Congress has serious consideration.
        And the last thing that I will say is this whole issue
    around the authorization for the use of military force makes
    the issues that you have just been discussing go on steroids.
    We will be confronted with so many new challenges if this
    Congress abrogates its responsibility and just quickly expands
    a declaration of war.
        The Constitution gave the United States the Congress to
    declare war for a reason. And so if there is any expansion of
    our war efforts away from the original authorization of the use
    of military force, Congress should have very, very detailed
    hearings about that.
        And you will be under particular pressure, Mr. Conyers,
    because Chairman Buck McKeon has said--incoming Chairman Buck
    McKeon has said that he wants to persist in the Armed Services
    Committee. Incoming Chairman Lamar Smith has said that he wants
    to look at this. Senator Lindsey Graham has said that he is
    going to push for this. So you will be confronted in very short
    order at the very beginning of the next Congress with several
    issues.
        So accountability for torture, taking the reauthorization
    of the PATRIOT Act seriously, making sure that there is no
    expansion of the authorization for the use of military force
    are just three issues.
        And you have a remarkable track record of bringing groups
    together from all sides of the aisle, and even if you don't
    have hearings, you should have meetings. You should invite us
    in to meet with you and to brief Members on your side of the
    aisle if at all possible.
        Mr. Conyers. But we can have forums which are not official
    meetings.
        Ms. Murphy. Absolutely. Public forums. And that is what we
    did when we had the PATRIOT Act. Remember the leadership of the
    House refused to give you the permission to hold those
    hearings, but you held them anyway, and they were highly----
        Mr. Conyers. I think they were down in the basement
    somewhere.
        Ms. Murphy. They were. They were in the basement of the
    Rayburn Building.
        But that is what we are going to have to go back to.
        Thank you, Mr. Chairman.
        Mr. Conyers. I now turn to Professor Michael Lewis, who has
    been very patient.
        Ms. Murphy. I thank you, Mr. Chairman.
        I wanted to mention one thing Mr. Fein had said about the
    information obtained from Abu Zubayda using waterboarding. He
    said that there is no evidence that supports that the use of
    that technique was the result, but the fact of the matter is
    that Zubayda had resisted all the other techniques. He had been
    in the hands of trained interrogators for long periods of time
    without having given up the information that eventually led to
    the capture of Khalid Sheikh Mohammed. It was only after he was
    waterboarded that that occurred.
        Now, having said all of that, there is no question that
    enhanced interrogation techniques and information obtained from
    them should have--has no place in criminal courts or criminal
    trials. However, that doesn't mean that it has not affected
    intelligence gathering. Those are two separate issues and two
    separate ways or reasons for using the techniques.
        So you may have a need to gather intelligence in a short
    period of time that might include the use of enhanced
    interrogation techniques; however, those cannot possibly be
    used to convict the people afterwards.
        And you had asked about where we should go in terms of
    process for these individuals. And the fact of the matter is
    the Congress of the United States has gone through three
    iterations to try to make the Military Commissions Act better
    and better and better, and in each iteration it has come closer
    and closer to being, I think, the full protections required to
    give, I think, fair and legitimate trials. I think the
    greatest----
        Mr. Conyers. But, of course, people conducting the trials
    can be sergeants on the battlefield or anybody, whatever group
    of people get called together.
        I am still extremely skeptical that military commissions
    and the way that they are brought together could ever even come
    close to the safeguards in a regular court.
        Mr. Lewis. There is no doubt that they are not going to be
    the same as the safeguards in the regular court, and part of
    the reason for that is the evidentiary problems that I
    discussed previously. The evidentiary problems where soldiers
    are the ones gathering the information just are not going to
    meet Article III court standards, and therefore you are not
    going to have the evidence necessary in the Article III court
    to convict people that otherwise probably would be.
        Mr. Conyers. And that is why I thought that I heard you
    suggesting that you were in somewhat favor of Article III
    courts yourself.
        Mr. Lewis. I am in favor of Article III courts where the
    defendants are apprehended by law enforcement, even overseas. I
    don't have any problem with the idea of Ghailani being tried in
    Article III courts; however, I think you would have a very
    different case with trying to try Khalid Sheikh Mohammed or Abu
    Zubayda or others like that in Article III courts because the
    evidentiary basis is fundamentally flawed based upon who it is
    that brought them in.
        The other question that you asked earlier that I think will
    also segue to Mr. Scahill at some level is the question of our
    relation with foreign nations and how we can best work with
    them in terms of the way we are prosecuting the war on terror.
    There are a lot of anecdotal discussions, such as the one that
    Mr. Scahill presented today, where al-Qaeda members or al-Qaeda
    supporters being enhanced by some of the actions that our
    Special Forces people take and some of the tragic mistakes that
    they have made on occasion. And there is no question that
    anecdotally that that is true.
        But I think it is important to look at much broader
    studies, and there are some metastudies that have been done,
    particularly in the border regions of Pakistan, that indicate
    that overall the effect of the U.S. military's actions there is
    a net positive rather than a net negative.
        And I would strongly commend the study done by Professor
    Echeverri-Gent down at the University of Virginia because he
    did a very detailed analysis of public opinion in Afghanistan
    based upon open-source information over there. And while, yes,
    an individual might be turned against us because of a poorly
    planned or poorly executed attack, broadly al-Qaeda is not
    popular in that region. And the two choices to oust al-Qaeda
    are either the United States or the Pakistani military. And the
    fact of the matter is the Pakistani military tends to use
    artillery, tends to use artillery very indiscriminately, and
    has caused tremendous amounts of civilian havoc when they have
    attempted to--rather ineffectively in the opinion of the people
    in Pakistan--attempted to fight al-Qaeda. And they see the
    United States drone strikes and the United States Special
    Forces operations as being far more effective in countering al-
    Qaeda. They are not saying they are perfect, but they are the
    better of the choices, according to the people on the ground in
    Pakistan.
        As I said, I would commend that study to you for that
    review.
        Mr. Conyers. Thank you. We will examine that study.
        I will recognize now Jeremy Scahill.
        Mr. Scahill. Just to respond to what Professor Lewis just
    said. I think that one thing that we have learned over the past
    10 years is that these polls that are done in Pakistan and
    Afghanistan are just wildly inaccurate. It was abundantly clear
    to me not just anecdotally, but also from talking to U.S.
    forces as well, that the strength of the Taliban is growing
    within Afghanistan and also within Pakistan. And let us
    remember, we are not fighting al-Qaeda in Afghanistan.
        According to the outgoing National Security Adviser,
    General Jim Jones, there are less than 100 al-Qaeda operatives
    in Afghanistan with no effective ability to strike the United
    States.
        I also talked to senior Taliban officials from the Mullah
    Omar government, who expressed a concern that when the United
    States is killing the leadership of the Taliban, that they are
    killing the only people that would be capable of negotiating a
    nonviolent solution to the conflict there, and in some cases
    the individual commanders who are killed are replaced by
    commanders who are far more radical. And, in fact, some of
    Mullah Omar's envoys--Mullah Omar being the head of the Taliban
    in Afghanistan--some of his envoys have actually been butchered
    by new Taliban commanders because they feel that Mullah Omar
    isn't radical enough.
        So I think we have to be very careful when we take any poll
    and hold it up and suggest that it is evidence that we are sort
    of winning hearts and minds, because I think it is clear to
    many within our Armed Forces that that is just not the case.
        To respond to something that Mr. Jaffer said, I think that
    I would echo Professor Fein's comments as well, that if we do
    not hold past committers of torture accountable, we have no
    mechanism by which to dissuade future acts of torture. The most
    effective way to stop torture is to hold torturers accountable.
        I think it is outrageous that we didn't have congressional
    intervention of any strength in the case of the destruction of
    the CIA torture tapes. I think that there should have been
    subpoenas issued to Jose Rodriguez and other CIA officials to
    ask them about their role, to ask them if there were only three
    tapes, or if more had been destroyed.
        I think Congress should have used its subpoena power to go
    after those who were committing torture and also the officials
    who ordered it and authorized it. I think that is one of the
    great shames of the era of the Democratic control of both
    Houses of Congress is that there was not enough done to ensure
    that if the President wasn't going to hold the torturers
    accountable, that the Congress would.
        I would also recommend that people read Matthew Alexander's
    book, How to Break a Terrorist. He was an interrogator in Iraq,
    and he was instrumental to gathering intelligence using
    nontorture techniques that led to the capture of Abu Musab al-
    Zarqawi, and I would recommend that the Committee review his
    work as well.
        In closing, I want to say that I think that the Congress
    needs to not just limit its investigation of these torture
    techniques to the CIA. Torture was also committed at Camp Nama
    in Iraq, which was run by the Joint Special Operations Command.
    And I think that the failure to use the subpoena power is
    failing the American people. We have to have accountability, or
    it is going to continue under Democratic and Republican
    administrations.
        Mr. Conyers. Yes, Attorney Jaffer.
        Mr. Jaffer. Mr. Chairman, I appreciate the opportunity.
        Let me be clear. Torture is wrong under any and all
    circumstances, and there is no question that people who engage
    in torture should and must be prosecuted to the fullest extent
    of the law. Let there be no lack of clarity on that question. I
    think that everybody on this panel can agree on that question.
        With respect to the CIA program, you have to remember that,
    first of all, there are a very narrow number of detainees that
    were held in this program. This was not a program sort of run
    sort of, you know, behind closed doors with no monitoring at
    all. This was a program where the CIA said, look, we have got
    these folks we are capturing. We need to figure out what to do
    with them. They are high value. We believe they have immediate
    intelligence value. What should we do?
        So they came up with a series of plans. They went to the
    policy structure of the White House and the Department of
    Justice and they said, what should we do as a policy matter and
    as a legal matter? And the Department of Justice came back with
    a set of legal opinions.
        Now, those legal opinions, I think the fact of the matter
    is there were deep flaws in many of the legal opinions
    associated with that time period. Now, the time constraints
    were huge. People were working very quickly. Whatever excuses
    you might make, there is no question that there were challenges
    to the legal opinions, and they were properly withdrawn by the
    Justice Department later on down the road, and other ones
    were--continued to be withdrawn. And a better, more careful
    legal analysis was done down the road.
        That being said, the CIA came to the Administration and
    said--they came to the White House and said, what should we do
    as a policy matter, and what can we do within the law? And then
    they were given legal guidance, and they were given policy
    guidance. They were told, here is what the law says you can do.
    And they were told as a matter of policy, the policy of the
    United States is to engage in these certain techniques. Certain
    techniques, as the President has now said in his book, were
    taken off the table. Certain techniques were left on the table.
    And then the CIA went forward and executed what the Justice
    Department told them was lawful and what the policy part of the
    government said is what we wanted to do.
        Now, how can we prosecute line CIA officers? How can we
    justify prosecuting line CIA officers who did what they were
    told the law permitted them to do and the government's policy
    was to do? And that seems to me to be just as much of a crisis
    as all of the problems with military commissions and other
    levels of process or holding people without trial.
        How can you possibly take a government employee, any
    government employee sitting in this room, and say, here is what
    the law lets you do, and here is what I, as your boss, the
    Commander in Chief, and the head of the executive branch want
    you to do, and then say, oh, but down the road we are going to
    prosecute you for doing just what we told you to do? That seems
    to me to be just as much of a crime.
        Mr. Conyers. We have been joined by Professor Mary Ellen
    O'Connell, professor of law at the University of Notre Dame.
    She is a designated professor of law at Moritz College of Law
    at Ohio State University.
        We know why she was detained, and we would like, even at
    this late date, to invite her to discuss her statement with us
    and any conversations among the panel that you may have heard
    coming in the room.
        Welcome, Professor O'Connell.

      TESTIMONY OF MARY ELLEN O'CONNELL, ROBERT AND MARION SHORT
    CHAIR IN LAW AND RESEARCH PROFESSOR OF THE AMERICAN SOCIETY OF
         INTERNATIONAL LAW, UNIVERSITY OF NOTRE DAME LAW SCHOOL

        Ms. O'Connell. Thank you very much, Mr. Chairman.
        In fact, my statement does touch on the comments that were
    just being made. So with your permission, I have a very
    succinct 5-minute statement. And I do begin with apologies from
    Delta. They are very sorry about my delay.
        Mr. Chairman, ladies and gentlemen, let me also express my
    deep appreciation for the invitation to speak before you today.
    In my very brief time I will focus on the issue of perhaps
    greatest concern to many of us today, and that is targeted
    killing of persons away from any battlefield.
        Through the use of drones and other means, the United
    States is carrying out killings that fundamentally violate the
    human right to life. The justification we have been given for
    these killings is fundamentally the same justification we were
    given for the use of torture. It consists of an erroneous
    definition of ``combatant'' accompanied by a plea of necessity
    along the lines you just heard. But as with the arguments in
    favor of torture, the arguments for targeted killing do not
    meet the test of legality, morality, or effectiveness.
        Let me address each of these tests very, very briefly.
    First, international law absolutely prohibits the intentional
    targeting of persons for killing outside of the hostility
    situations of armed conflict. International law does not relax
    this prohibition, except in the clear situation of actual armed
    conflict hostilities. In such hostilities, the regular armed
    forces of the sovereign state may intentionally kill members of
    the opposing armed forces and any civilians who are directly
    participating in armed conflict.
        International law defines armed conflict as situations of
    organized armed groups engaged in intense armed fighting.
    Today, the United States is engaged in such fighting in only
    one place, and that is Afghanistan. Ask any soldier where U.S.
    combat operations are occurring today, and they will tell you,
    Afghanistan. It is only there that the United States may
    lawfully carry out targeted killing.
        Second, not only is this the law, it is the right ethical
    position. All human beings are endowed with dignity which we
    protect through human rights, including the human right to
    life. Through the centuries, humanity has constantly striven to
    enhance respect for life. We have prohibited war through the
    U.N. Charter, and we have condemned terrorism because of its
    violence against human life. America's targeted killing program
    is a serious retrograde step in the moral advancement of
    humanity. It demonstrates grave disregard for the right to
    life. But ladies and gentlemen, if law and morality are not
    enough, we can also add that empirical data clearly shows that
    military force is ineffective to end terrorist groups.
        In 2008, the Rand Corporation released a study that
    concluded: All terrorist groups will eventually end, but how do
    they end? Answers to this question have enormous implication
    for counterterrorism efforts. The evidence since 1968 indicates
    that most groups have ended because 1, they joined the
    political process; or two, local police and intelligence
    agencies arrested or killed key members. Military force has
    rarely been the primary reason for the end of terrorist groups.
    This has significant implications for dealing with al-Qaeda and
    suggests fundamentally rethinking post September 11th U.S.
    Counterterrorism strategy.''
        We are told with respect to targeted killing as we were
    with regard to torture that post 9/11 circumstances require
    extraordinary measures. However, some of our leading ethicists
    responded forcefully to the arguments in favor of torture by
    saying that the absolute ban on torture in existence at the
    time that legal memos were prepared by the White House and DOJ,
    a moral imperative required that absolute ban regardless of the
    consequences. And we could say the same for targeted killing.
        But as in the case of torture, it turns out that doing the
    moral thing, doing the legal thing is doing the effective thing
    against terrorism. Targeted killing is unreliable--against
    terrorism.
        Torture is an unreliable means of interrogation that
    trained interrogators, including my husband, have rejected out
    of hand. Similarly, some of the best counterterrorism experts
    reject the use of military force in efforts against terrorism.
    Terrorists seek to undermine lawful institutions to sow chaos
    and discord and to foment hatred and violence. Upholding our
    lawful institution, holding to our legal and moral principles
    in the face of such challenges is not only the right thing to
    do, it is a form of success against terrorism that can lead to
    the end of terrorist groups.
        Apparently, President Obama himself is aware that targeted
    killing by drones will not achieve greater national security in
    the face of terrorist threats. Bob Woodward writes in his new
    book, Obama's Wars, ``despite the CIA's love affair with
    unmanned aerial vehicles such as Predators, Obama understood
    with increasing clarity that the United States would not get a
    lasting durable effect with drone attacks.'' If we care about
    the rule of law, fundamental morality and national security, we
    will call on President Obama to end targeted killing. Thank
    you.
        [The prepared statement of Ms. O'Connell follows:]

                   Prepared Statement of Mary Ellen O'Connell

                                   __________

        Mr. Conyers. Professor Lewis, you are the beginning of
    everyone having the last word.
        Mr. Lewis. I just actually wanted to comment on the
    assertion that international law has clearly determined that
    the boundaries of the battlefield are based on geopolitical
    lines. That has never been how that has been understood in the
    past. In order to make international law, you have to either
    have a clear treaty statement indicating what international law
    says, and there is no clear treaty that indicates what the
    boundaries of the battlefield are or where the law of armed
    conflict applies or does not apply.
        And so what you are left with is customary international
    law. In order to make customary international law, you must
    show not only an agreement of jurists and commentators about
    its content, which I don't believe exists, but even more
    importantly, you have to show some form of state practice that
    supports the recognition that there is a legal obligation to
    perform in that way.
        And I can think of no example at all of state practice in
    which a state has said I will not strike an enemy because they
    have crossed a geopolitical line. And I can think of many
    examples in which the exact opposite is true. One that was
    brought before the Government Oversight Committee earlier this
    year by Professor Glazier, who is generally an opponent of the
    Bush administration policies and these sorts of actions in
    general, was the fact that the United States pursued the
    Vietcong and the North Vietnamese army across the border into
    Laos and Cambodia, and yet that was not a violation of
    international law. Those forces were attempting to escape by
    finding sanctuary across a line. And more importantly, where
    you have non state actors doing the same thing, the FARC
    attempting to find sanctuary in Colombia--not in Colombia,
    sorry, from Colombia in Ecuador, and Colombia crossed the
    border and struck into FARC camps there. That was not deemed to
    be a violation of international law. And perhaps the best
    example is the Hezbollah war in Lebanon.
        According to Professor O'Connell's test, there was no armed
    conflict in Lebanon at the beginning of that war. There were
    sporadic rocket attacks, sporadic cross-border raids by
    Hezbollah, but that was it. And the Israeli response was to use
    the tools of armed conflict and invade Lebanon to go after
    Hezbollah. And the conflict between Hezbollah and Israel was
    understood by everyone to be governed by the laws of armed
    conflict, not to be an improper use of force. Where Israel was
    criticized, and it was heavily, was because they had allegedly
    violated the laws of armed conflict, they hadn't been
    proportional, they hadn't used military necessity, they had
    used banned cluster munitions, et cetera.
        But the whole conversation throughout the whole
    international legal community was: Have they complied with the
    laws of war? The laws the war clearly applied to that conflict.
    And yet Professor O'Connell now is saying if the Taliban can
    cross into Pakistan, they are safe. If they can get to Yemen,
    they are safe. They cannot be struck there. We have to use law
    enforcement and that is the only method of attempting to
    capture them.
        And if there is either an incapable government in Yemen or
    Somalia, or an unfriendly government that is unwilling to
    effect that capture, then they have found a sanctuary. And the
    claim that international law grants terrorists of all people a
    sanctuary in the war on terror, I don't believe is
    international law.
        Mr. Conyers. Professor O'Connell, what say you?
        Ms. O'Connell. Thank you, Mr. Chairman. I really do
    appreciate that. I have just heard such a mixture of unusual
    and confusing comments about the law of armed conflict. I will
    just say very briefly a few things. First the definition of
    armed conflict is well-known, and it has a territorial aspect.
    I just lead a 5-year study, produced a report of 42 pages for
    the International Law Association, the chief scholarly
    organization of international lawyers throughout the world.
        My committee included the 18 most highly qualified experts
    on the law of armed conflict from 15 different countries, every
    region of the world. Our study concluded that, in fact, armed
    conflict takes place within a particular zone. And in internal
    armed conflict of the kind that is occurring in Afghanistan
    right now, a counterinsurgency armed conflict, is taking place
    within Afghanistan. It is the U.S.'s official position to
    respect the border between Pakistan and Afghanistan. And the
    U.S. well knows our lawyers well know that there is no right of
    hot pursuit on land to follow those individuals who may be
    crossing from Pakistan into Afghanistan to join the fight.
        What is America's option? It is, of course, first and
    foremost to work with our ally, Afghanistan. We are in
    Afghanistan at the request of that government. And if they wish
    for us to work with the Pakistani authorities about preventing
    cross-border provocation, that is our obligation under
    international law.
        If Afghanistan feels that it is being attacked by Pakistan,
    then it has the right, under U.N. charter, Article 51, to
    respond in self-defense. Afghanistan has said that it has not
    been a victim of an armed attack from Pakistan. Pakistan is
    well aware and is taking steps to pursue militant and violent
    action on its border. The International Court of Justice has
    told us that it is the obligation of Afghanistan and the U.S.,
    when dealing with provocations that are less than the kind of
    armed attack that would give rise to Afghanistan's right of
    self-defense against Pakistan, that Pakistan's obligation is on
    its side of the border.
        The U.S. can offer to help, but we cannot pretend that
    there is no sovereign boundary there and take the law into our
    own hands. These are very clear precedents. Professor Lewis
    should know all about them, I am very sorry that he has
    presented to you a different story today.
        Mr. Conyers. Professor Lewis, I will allow you a brief
    comment and then I will turn to Attorney Jaffer.
        Mr. Lewis. The only thing I say is there has to be some
    evidence of state practice to back up the idea to say I will
    not strike an enemy because they have crossed the geopolitical
    line and I am not aware of any state practice. Colombia didn't
    do it with the FARC; Israel didn't do it with Hezbollah; and we
    didn't do it with the Vietcong and the North Vietnamese army;
    Turkey doesn't do it with the PKK. I don't believe there is a
    state practice that says we agree that geopolitical lines are
    the end when the enemy is seeking sanctuary.
        Ms. O'Connell. In addition to our report, I would like to
    also refer Professor Lewis to the Congo versus Uganda case in
    2005 in the International Court of Justice, there is plenty of
    authority in that decision by the International Court of
    Justice, and that is where he needs to look for answers to his
    questions.
        Mr. Conyers. Would you submit that additionally to the
    Committee?
        Ms. O'Connell. I would be very happy to. I brought a copy
    of my latest article that also has all the correct citations
    and responds to many of the other specific points that
    Professor Lewis made.
        [The information referred to follows:]

                                   __________
        Mr. Conyers. Attorney Jaffer.
        Mr. Jaffer. Mr. Chairman, thank you for the opportunity to
    appear before you today. You know, I think a lot of issues that
    have been raised here are very important. I would like to
    associate myself with Professor Lewis's remarks with respect to
    the use of--that topic we discussed earlier, obtained from
    coercive methods, whether they are called enhanced
    interrogation techniques or torture, or whatever you want to
    call them. That type of evidence is inadmissible in court, in
    criminal court, it should not be admitted. And that is
    absolutely, without a doubt, one of the core principles of the
    American justice system.
        In fact, the Department of Justice in the Ghailani trial
    stipulated for the purposes of that case, that the information
    obtained with respect to the witness against Mr. Ghailani had
    been obtained through coercive methods. Therefore it was not
    expected to be introduced.
        Mr. Conyers. But of course, we don't have that safeguard in
    military commissions, do we?
        Mr. Jaffer. As I understand it, Mr. Chairman, I think that
    the current Military Commissions Act of 2009, the one passed by
    Congress, does not permit the use of information obtained from
    coercive techniques in the military commissions either.
        Mr. Conyers. No, it doesn't, but the practice, I mean, you
    are an a battlefield. How many people that are drafted into a
    military commission knows about the law that we just passed
    cautioning them to be careful about torture or enhanced
    interrogation techniques?
        Mr. Jaffer. That is an important question, Mr. Chairman. As
    you know, just like in the Federal courts, in the military
    commissions there are judges who make the legal determinations.
    And so one would presume that in the military commissions
    context----
        Mr. Conyers. Yes, they are judges, but they are appointed
    judges. They are not really judges. They are not even lawyers.
        Mr. Jaffer. I believe, and I could be mistaken, but I
    believe that the judges for the military commission are JAG's,
    are military lawyers. I could be mistaken.
        Mr. Conyers. Well, let us clear it up. Are they, or aren't
    they? They are JAG lawyers?
        Mr. Lewis. Yes. The judge must not only be a JAG lawyer,
    the judge must also have gone through judicial training in
    addition to being a JAG lawyer. That is the judge. The members
    could be otherwise.
        Mr. Fein. Your Honor, if I could just interject here. In
    the Federalist Papers the Founding Fathers described the very
    definition of tyranny: combining within the same branch law
    enforcement, and law adjudication and lawmaking. And that is
    what a military commissions is. In the executive branch they
    play judge, jury, prosecutor, and define what a war crime is.
        Now putting aside whether they have legal training, they
    know that they report to the Commander in Chief. And the whole
    reason why we have an independent judiciary with life tenures
    is because--and is the crown jewel of the Constitution--because
    that is how you get an unfettered, impartial mind. He is not
    worried about whether his superiors are going to want one thing
    or another. But it was the Founding Fathers who described
    military commissions as the very definition of tyranny.
        Mr. Conyers. Does anybody on the panel take any exception
    or want to qualify what Professor Fein--Attorney Fein has said?
        Laura Murphy.
        Ms. Murphy. I think one of the things that we need to be
    clear about is that even though you may--we believe that you
    have to be a JAG lawyer to be a judge, you don't have to have
    to have ever tried an international terrorism or other complex
    criminal case. And so, you know, I don't think that--as much
    talent as there is in military commissions, it doesn't compare
    to the talent that a Federal district court judge has or that
    the U.S. attorneys have in prosecuting complex criminal
    conspiracy cases, which is essentially what terrorism trials
    are.
        And so, you know, there were some improvements made in the
    Military Commissions Act of 2009, but we don't think that the
    training for the lawyers or the judges is adequate to deliver
    justice.
        Mr. Conyers. Attorney Jaffer seems to nod his approval.
        Mr. Jaffer. Well, I think that I agree to the extent that I
    believe that Federal district court judges have a tremendous
    amount of experience in trying complex criminal cases,
    including in some instances international terrorism cases. Our
    Federal prosecutors at the Department of Justice are phenomenal
    folks. These are career prosecutors in AUSA offices across the
    country and at main Justice. These are the people who would be
    ideal to prosecute these terrorists and to be tried before
    these judges.
        My view is simply that--and I share actually Attorney
    Fein's concerns about the appearance of the folks who capture
    the individuals also trying them and acting as judges.
        Now let me also be clear that these military judges, these
    military lawyers are among the best lawyers that America has to
    offer. They sit up and serve our country. They get immediate
    trial experience. JAG lawyers, their first day on the job is
    going to trial, as I understand it. And so these are not
    lawyers with little experience who are not capable. These are
    terrific Americans, who have chosen to serve their country.
    They have decided to go to law school, become lawyers, admitted
    to the bar. They have engaged in numerous trials.
        So the fact that they haven't necessarily tried complex
    criminal cases, I agree Federal courts are better. There is no
    doubt. And in an ideal world, I think the Federal courts are
    the best option as the ones that make us appear to do justice
    and there----
        Mr. Conyers. Professor Lewis seems to agree with you on
    that point.
        Mr. Jaffer. They simply don't work in the context of
    national security detainees. There is an option out there that
    you could appear to do justice and use Federal sitting judges,
    and AUSAs, and cleared defense counsel with experience in these
    cases. That is important, too, for the protection of the
    individual being tried.
        Mr. Lewis. I do agree that Article III courts are a better
    option. As I mentioned in my opening, though, I think that
    there are a certain subset of cases in which the evidentiary
    hurdles that it presents and the people who are gathering the
    information from overseas are just not a good fit.
        Mr. Conyers. Jeremy Scahill.
        Mr. Scahill. You know, it is pretty clear that when it
    comes to the issue of torture and accountability for it that
    the United States Government holds itself to one standard and
    the rest of the world to a different standard.
        I also wanted to add that when it became clear that the
    Obama administration had authorized the assassination of United
    States citizen Anwar al-Awlaki by either the Central
    Intelligence Agency or the Joint Special Operations Command,
    Representative Dennis Kucinich put forward a very simple piece
    of legislation that said the United States shouldn't
    assassinate its own citizens without due process. I think five
    Members of Congress cosigned or cosponsored that legislation.
        That is a shocking commentary on the state of affairs in
    the Capitol today that only six American politicians,
    legislators would sign on to such a simple piece of legislation
    that said we shouldn't assassinate our own citizens without due
    process.
        What I think what we are seeing unfold around the world
    today is a situation where in Afghanistan we are propping up
    drug dealers, war criminals and mass murderers in the name of
    democracy. We are bombing countries that we are not at war
    with, Yemen, Somalia, Pakistan. We are creating a new
    generation of insurgents that want and have every justification
    or reason to rise up against the United States because they
    actually have grievances now because members of their families
    have been killed.
        I feel very sad when I think about the future of our
    democracy, because I think that what we are doing right now is
    sending a message to the rest of the world that in many ways
    our foreign policy represents that of the very rogue states
    that we denounce on a regular basis. And I don't say that
    lightly. I say it with a great sense of sobriety because I
    think it is shocking, and when you go to these war zones and
    you meet with the victims that live on the other end of the
    barrel of the gun that is our foreign policy, and they ask
    journalists, well, what can you do for us? The only thing we
    can do is come back to this body and ask that you do something
    about it, or try to give them access it to the lawyers.
        One the ironies of the dark years of the Bush
    administration was that trial lawyers emerged as some the
    strongest freedom fighters we had in this society. But for the
    Center for Constitutional Rights and the ACLU, I think we would
    be in a much darker situation right now.
        So I am very disturbed by a lot of what I have heard today
    and a lot of what is going on in the world. And I think a lot
    of it, when it comes down to Congress, boils down, as I said
    earlier, to the failure to use subpoena power. I think that is
    one of the actions that Congress can take that is a way of
    actually effecting some kind of responsibility or
    accountability when the other branches of government fail. And
    yet we have seen almost none of it with the Democrats in power
    in this Congress, and I hope that if the Democrats do regain
    the Congress, control of the House, that the subpoena power is
    used on these life-and-death issues.
        Mr. Conyers. But can these hearings begin the commencement
    of a potentially more optimistic view on your part in the
    coming Congress?
        Mr. Scahill. Well, I think the empty chair next to you is
    an indication of where things are headed, Mr. Chairman. And I
    think we are going to see the targeting of the great enemy to
    our society ACORN, and, you know, maybe Van Jones will be
    subpoenaed, you know, these great threats to U.S. National
    security. But I think we have to hold our own people
    accountable, and I wish this Committee had used its subpoena
    power more, quite frankly, and the oversight committee as well.
        Yes, it is a sign of optimism, to directly answer your
    question, that you so kindly agreed or initiated this hearing,
    but I think that the work has just begun, and hopefully if you
    are Chair again, we will see some subpoenas flying out of this
    office.
        Mr. Conyers. Professor O'Connell.
        Ms. O'Connell. I am more optimistic than Mr. Scahill. I
    recall the great tradition of the Republican Party in terms of
    fidelity to international law. It was Abraham Lincoln, a
    Republican, who asked to have the first set of Code of Armed
    Conflict for the Law of Land Warfare to be written, and those
    rules are the fundamental rules that should be guiding how the
    United States conducts itself today.
        One of our greatest Secretaries of State, Elihu Root,
    founded the American Society of International Law with its
    object of promoting understanding and international relations
    under the rule of international law.
        I think if Republicans respect their tradition, the
    tradition of this country, where our Founding Fathers were well
    versed in international law, understood what it took to be a
    good citizen in the world, respecting international borders,
    respecting the authorities of international courts and
    tribunals, respecting what the well-versed, well-trained,
    proficient authorities, professors, publicists in international
    law had to say; I think if we see that--and I will do my level
    best from my position at Notre Dame to remind our Republican
    colleagues, our Republican elected Representatives that this is
    their tradition, that is the tradition of this country. And we
    can continue to add the counter example, which Mr. Scahill and
    I absolutely share.
        We tried these expansive lawless approaches, these
    extraordinary arguments that were not based in authority or
    good faith analysis of the law, and where are we today? We have
    so little to show. We have not regained our standing in the
    world. There is only one way to do that, and that is return to
    fidelity of the rule of law for which this country was founded.
    I think if we proceed in goodwill and those of us in a position
    to speak out and write out and continue to teach students, I
    have hope that this country will not further stray from our
    path and from who we are as Americans.
        Mr. Conyers. I appreciate that.
        Ms. O'Connell. If I could just add one brief comment. I am
    married to a combat veteran, who was a United States Army
    interrogator, and I think that his sacrifice and that of all of
    our serving men and women is to be respected. And he fought for
    the rule of law. He fought in the Gulf War, which he knew was
    on behalf of enforcing the United Nation's Charter. He fought
    under orders and respect for the Constitution. But that is what
    we owe all of our serving men and women, respect for law, and
    we should not continue on this path that disregards that.
        Mr. Conyers. Thank you so very much.
        Mr. Scahill, are you aware if the Chairman of this
    Committee was on H.R. 6010, prohibiting the extraterritorial
    killing of United States citizens?
        Mr. Scahill. Yes.
        Mr. Conyers. Yes, you were aware?
        Mr. Scahill. Yes.
        Mr. Conyers. So that you know that I am a cosponsor.
        Mr. Scahill. Yes.
        Mr. Conyers. All right.
        Mr. Scahill. Oh, yeah, no, and I commend you for that. Yes,
    of course.
        Mr. Conyers. Had you mentioned that before now?
        Mr. Scahill. Oh, well, it is your Committee, Mr. Chairman.
        Mr. Conyers. I should know that I am on the bill.
        Mr. Scahill. I think you were one of the half dozen brave
    Members of Congress that had the audacity to stand up against
    our government assassinating our own citizens without due
    process.
        Mr. Conyers. Well, I don't think it takes that much
    audacity.
        Mr. Scahill. I don't think it does. What I think is
    audacious is that only six of you, I believe I am correct,
    actually cosponsored that legislation. I congratulate you for
    it.
        Mr. Conyers. Attorney Fein.
        Mr. Fein. To add to that, I would compliment you as also
    being a supporter of a bill that I drafted with Walter Jones to
    have the audacious prohibition on a President intentionally and
    knowingly lying to Congress to obtain authorization for war,
    sort of a revolutionary principle. And that, again, had a
    handful of cosponsors.
        But just a couple of final closing points. One, due process
    is not simply a slogan. On Guantanamo Bay, after the Supreme
    Court declared that habeas corpus was available to the
    detainees, the vast majority that had hearings have been
    concluded not to be enemy combatants, and this is even though
    the Administration is able to rely on secret evidence to prove
    enemy combatant status. And these are people that, as words of
    former Secretary of Defense Rumsfeld said, were the worst of
    the worst.
        So due process matters. They don't get it right all of the
    time.
        With regard to the idea of battlefield, what is and is not,
    what to me is rather alarming is that when you declare or find
    yourself at war with a tactic as opposed to a country, there
    are no boundaries; that if you say you are at war with
    international terrorism, the boundary is all of the planet. It
    can go interplanetary, intergalactic, wherever the tactic could
    be conceivably be used. That is what makes so dangerous the
    idea that we have the legal architecture of war in fighting
    international terrorism, because it means you can use military
    force anywhere you think someone is a terrorist, including in
    this very Committee room.
        Lastly at least with regard to waterboarding, if it really
    works so well, I am puzzled as to why those on this panel and
    maybe others who supported it aren't championing that it be
    reinstituted. I don't know anyone saying, we need Congress to
    pass a law saying the Administration shall use waterboarding
    because it is so effective at gathering useful information of
    thwarting terrorist attacks. I think the fact that it was
    abandoned once it came under the sunshine exemplifies that it
    was hardly the necessary tool to prevent future terrorist
    attacks.
        Thank you, Mr. Chairman.
        Mr. Conyers. Thank you.
        I would like to say on behalf of the Committee that there
    is nobody here on this Committee that sanctions waterboarding,
    among the witnesses in this discussion. I think that is
    accurate.
        Ambassador Pickering, you started us off, and I would ask
    you to make any closing comments that you would like to make
    before we adjourn.
        Mr. Pickering. Two or three points, Mr. Chairman. Before I
    begin, there is a tendency in this town and sometimes up here
    on the Hill that while everything has been said, not everybody
    has said it yet. I will try to resile from that.
        I want to thank you for having the hearings. I think they
    brought out a number of very interesting points. It has been
    interesting that while the debate has had something of a
    partisan flavor from time to time, there are enough home truths
    that I think one can draw from this and your very vital and
    interesting cross examination of us all that there is a way
    ahead.
        My own sense is that there is an entire compatibility
    between national security and honoring and observing human and
    civil rights. This is where I began. My sense is that that
    still remains the deep underlying theme of this particular
    hearing. And even though we have had differences in degree
    about how the various pieces of this could come together, I
    think we have no difference across the group here in any way in
    principle.
        Thank you, Mr. Chairman.
        Mr. Conyers. Thank you very much. This hearing stands
    adjourned.
        [Whereupon, at 12:11 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

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