[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.
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    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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