[Senate Hearing 111-200]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 111-200
 
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=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 4, 2009

                               __________

                           Serial No. J-111-8

                               __________

         Printed for the use of the Committee on the Judiciary

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54-049 PDF                       WASHINGTON : 2009 

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
BENJAMIN L. CARDIN, Maryland         LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island     JOHN CORNYN, Texas
RON WYDEN, Oregon                    TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
            Bruce A. Cohen, Chief Counsel and Staff Director
              Nicholas A. Rossi, Republican Chief Counsel



















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     5
prepared statement...............................................    72
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
prepared statement...............................................   122
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3

                               WITNESSES

Farmer, John J., Jr., Partner, Arsenault, Whipple, Farmer, 
  Fassett and Azzarello, LLP, Chatham, New Jersey................    12
Gunn, Leet F., Vice Admiral, U.S. Navy (ret.), and President, The 
  American Security Project, Washington, D.C.....................    10
Pickering, Ambassador Thomas, Vice Chairman, Hills & Company, 
  International Consultants, Washington, D.C.....................     7
Rabkin, Jeremy A., Professor of Law, George Mason, University 
  School of Law, Arlington, Virginia.............................    19
Rivkin, David B., Baker & Hostetler, LLP, Washington, D.C........    16
Schwarz, Frederick A.O., Jr., Chief Counsel, Brennan Center for 
  Justice, New York University School of Law, New York, New York.    14

                       SUBMISSIONS FOR THE RECORD

Atlanta Journal-Constituion, February 13, 2009, article..........    36
AVAAZ.org, 70,000 support the U.S. Senate........................    38
Buffalo News, March, 9, 2009, article............................    50
RussBaker.com, March 11, 2009, article...........................    51
Bush, George, Houston, Texas, letter.............................    53
Capitol News Company, LLC, March, 3, 2009, article...............    54
Commoncause.org, Washington, D.C., statement.....................    57
Constitution Project, Washington, D.C., statement................    62
Davis Group, Austin, Texas, statement............................    64
Farmer, John J., Jr., Partner, Arsenault, Whipple, Farmer, 
  Fassett and Azzarello, LLP, Chatham, New Jersey, statement.....    68
Fidell, Eugene R., President, National Institute of Military 
  Justice, Washington, D.C., statement...........................    74
Fletch, Laurel E., Director, International Human Rights Law 
  Clinic, University of California, and Eric Stover, Faculty 
  Director, Human Rights Center, University of California, 
  Berkeley, California, statement................................    78
Fredrickson, Caroline, Director, American Civil Liberties Union, 
  Washington, D.C., statement....................................    90
Globe and Mail, a division of CTV globemedia Publishing Inc., 
  March 4, 2009, article.........................................    98
Gunn, Leet F., Vice Admiral, U.S. Navy (ret.), and President, The 
  American Security Project, Washington, D.C., statement.........   100
Human Events.com, February 25, 2009, article.....................   106
Human Rights Watch, March 4, 2009, statement.....................   110
Investor's Business Daily, February 11, 2009, article............   115
Killmer, Revern Richard L., Executive Director, National 
  Religious Commpaign Against Torture, statement.................   117
Las Vegas Review-Journal, February 12, 2009, article.............   120
Lucas, Margaret M., Washington, D.C., statement..................   124
Magarrell, Lisa, U.S. Accountabiltly Project Director, 
  International Center or Transition on Justice, New York, New 
  York, statement................................................   125
Massimino, Elisa, Chief Executive Officer and Executive Director 
  of Human Rights First, Washington, D.C., statement.............   130
Miami Herald, February 23, 2009, article.........................   136
National Religious Campaign Against Torture, Washington, DC:
    U.S.-Sponsored Torture: A call for a Commission of Inquiry, 
      joint statement............................................   138
    Religious Leaders call for torture Commission, joint, 
      statement..................................................   140
New York Times, March 4, 2009, article...........................   143
Patten, Wendy, Senior Policy Analyst, Open Society Institute, 
  Washington, D.C., statement....................................   147
Physicians for Human Rights, A. Frank Donaghue, Chief Executive 
  Officer, Washington, D.C., statement...........................   149
Pickering, Ambassador Thomas, Vice Chairman, Hills & Company, 
  International Consultants, Washington, D.C., statement.........   153
Rabkin, Jeremy A., Professor of Law, George Mason, University 
  School of Law, Arlington, Virginia, statement..................   157
Rivkin, David B., Baker & Hostetler, LLP, Washington, D.C., 
  statement......................................................   162
Schwarz, Frederick A.O., Jr., Chief Counsel, Brennan Center for 
  Justice, New York University School of Law, New York, New York, 
  statement......................................................   169
Scripps Howard News Service, February 19, 2009, articles.........   211
Sessions, William S., former Chief of Government Operations 
  Section, Department of Justice, Washington, D.C., statement....   213
U.S. Intelligence Community, R. James Woolsey, Michael Hayden, 
  James Schlesinger, William Webster, and John Deutch, are all 
  former Director of Central Intelligence, Washington, D.C., 
  joint letter...................................................   215
USA Today, February 17, 2009, article............................   217
Walsh, Joan, March 5, 2009, article..............................   219
Washington Post:
    February 17, 2009, article...................................   229
    November 26, 2008, article...................................   232
Washington Times, March 3, 2009, articles........................   234


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                        WEDNESDAY, MARCH 4, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:10 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feingold, Whitehouse, Kaufman, 
Specter, and Cornyn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Thank you all for being here, and a very 
distinguished panel.
    I could not help but think, in the wake of the tragic 
attacks on September 11th, we all came together as Americans. 
Party labels meant nothing. Being Americans meant everything. 
We need to do so again in these difficult economic times. 
Regrettably, too many seem mesmerized by the siren call of talk 
radio personalities and extreme special interest groups. And 
far from grasping the bipartisan hand that President Obama has 
extended, many want to play out the conservative play book to 
``obstruct and delay.''
    This is a time when conservatives, liberals, Republicans, 
and Democrats should be setting aside party labels to come 
together, first and foremost, as Americans.
    We saw nothing more to damage America's place in the world 
than the revelation that our great Nation stretched the law and 
the bounds of executive power to authorize torture and cruel 
treatment. When the last administration chose this course, it 
tried to keep its policies and actions secret. I think they did 
that because they knew they could not withstand the scrutiny of 
an open public airing. How many times did President Bush go 
before the world and say that we did not torture and that we 
acted in accordance with law?
    Now, there are some who resist any effort to look back at 
all; others are fixated only on prosecution, even if it takes 
all of the next 8 years, or more, and divides this country.
    Over the last month, I have suggested a middle ground to 
get to the truth of what went on during the last several years 
in a way that invites cooperation. I believe that that might 
best be accomplished though a nonpartisan commission of 
inquiry. I would like to see this done in a manner that removes 
it from partisan politics. Such a commission of inquiry would 
shed light on what mistakes were made so that we can learn from 
these errors and not repeat them, whether in this 
administration or the next administration.
    Today's hearing is to explore that possibility. I am 
encouraged that many have already embraced this idea, including 
several of the distinguished witnesses who will testify today. 
These are witnesses who speak from experience about the need to 
uncover the truth and shed light on our policies for the good 
of our Nation, to ensure that we have strong national security 
policies and to ensure that we do not make repeat mistakes. I 
look forward to that discussion.
    As Supreme Court Justice Anthony Kennedy said in the recent 
Supreme Court decision restoring the our great writ of habeas 
corpus, the Constitution is not something that any 
administration is able ``to switch on or off at will.'' We 
should not be afraid to look at what we have done or to hold 
ourselves accountable as we do other nations when they make 
mistakes. We have to understand that national security means 
protecting our country by advancing our laws and values and not 
by discarding them.
    This idea for a commission of inquiry is not something to 
be imposed. Its potential is lost if we do not join together. 
Today is another opportunity to come forward to find the facts 
and join, all of us, Republicans and Democrats, in developing a 
process to reach a mutual understanding of what went wrong and 
then to learn from it. If one party remains absent or 
resistant, the opportunity can be lost, and calls for 
accountability through more traditional means will then become 
more insistent and compelling.
    I held early hearings exploring how our detention policies 
and practices, from Guantanamo to Abu Ghraib, have seriously 
eroded fundamental American principles of the rule of law. I 
think that we are less safe as a result of the mistakes of the 
last administration's national security policies. I also 
believe that, in order to restore our moral leadership, we must 
acknowledge what was done in our name. We cannot turn the page 
unless we first read the page. I do not want to see us in a 
case where we are lectured for mistakes we made by countries 
who themselves have some of the worst and oppressive policies.
    President Obama, Attorney General Holder, and others in the 
new administration are already hard at work on detainee and 
interrogation policies to determine the best way to form 
effective and lawful national security policies. I think a 
commission of inquiry would address the rest of the picture. 
With a targeted mandate, it could focus on the issues of 
national security and executive power in the Government's 
counterterrorism efforts, including the issues of cruel 
interrogation, extraordinary rendition, and executive override 
of laws. We have had successful oversight in some areas, but on 
others we have remained too much in the dark.
    People with firsthand knowledge would be invited to come 
forward and share their experiences and insight, not for the 
purposes of criminal indictments but to gather the facts. Such 
a process could involve subpoena powers, and even authority to 
obtain immunity to secure information, in order to get to the 
whole truth. Of course, as in any such inquiry, it would be 
done in consultation with the Justice Department, and no such 
inquiry rules out prosecution for perjury.
    Vice President Dick Cheney and others from the Bush 
administration continue to assert that their tactics, including 
torture, were appropriate and effective. I do not think we 
should let only one side define history on such important 
questions. It is important for an independent body to hear 
these assertions, but also from others, if we are going to make 
an objective and independent judgment about what happened, and 
whether it did make our Nation safer or less safe.
    Just this week, the Department of Justice released more 
alarming documents from the Office of Legal Counsel 
demonstrating the last administration's pinched view of 
constitutionally protected rights. The memos disregarded the 
Fourth and First Amendments, justifying warrantless searches, 
the suppression of free speech, surveillance without warrants, 
and transferring people to countries known to conduct 
interrogations that violate human rights. How can anyone 
suggest that such policies do not deserve a thorough, objective 
review?
    I am encouraged that the Obama administration is moving 
forward. I am encouraged that a number of the issues we have 
been stonewalled on before are now becoming public. But how did 
we get to a point where we were holding a legal U.S. resident 
for more than 5 years in a military brig without ever bringing 
charges against him? How did we get to a point where Abu Ghraib 
happened? How did we get to a point where the U.S. Government 
tried to make Guantanamo Bay a law-free zone in order to try to 
deny accountability for our actions? How did we get to a point 
where our premier intelligence agency, the CIA, destroyed 
nearly 100 videotapes with evidence of how detainees were being 
interrogated? How did we get to a point where the White House 
could say, ``If we tell you to do it, even if it breaks the 
law, it is all right because we are above the law'' ? How do we 
make sure it never happens again?
    Senator Specter?

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

    Senator Specter. Thank you, Mr. Chairman.
    I have repeatedly said on the Senate floor that the period 
from 9/11/2001 to the end of the Bush administration has seen 
the greatest expansion of executive power in the history of our 
country. And as Chairman and later Ranking on this Committee 
and on the Senate floor, I have taken very positive steps to 
try to deal with that, for example: pressing for judicial 
review of the Terrorist Surveillance Program; pressing the 
Sixth Circuit and later the Supreme Court of the United States 
to review the decision of the Detroit Federal court declaring 
the Terrorist Surveillance Program unconstitutional; offered 
amendments on the Senate floor for votes to reinstate habeas 
corpus in the wake of action to deny habeas corpus; led the 
fight to eliminate the impact of signing statements to try to 
provide some balance with the need for the fight against 
terrorism, which I supported; managing the PATRIOT Act to try 
to provide some balance.
    When this idea of the so-called truth commission first 
surfaced, I said it was unnecessary because you had a change in 
administration. You could walk in the front door, ask for 
directions to the relevant filing cabinet, go in and open the 
drawer, and find out anything you wanted to know. Well, that 
has been done, and it is being done to a greater extent.
    You have had some rather startling disclosures with the 
publicity in recent days about unusual, to put it mildly, legal 
opinions which were issued to justify executive action; very 
curious use of the doctrine of self-defense. That is a doctrine 
for justifiable homicide. And it is then stretched to say for 
defense against potential terrorist attack, the whole range of 
activities could be undertaken.
    Well, they are all being exposed now. They are, in fact, 
being exposed. According to the New York Times this morning, 
they are going further than just the exposes, but they are 
starting to tread on what may disclose criminal conduct. But 
the Times reports this: ``The Office of Professional 
Responsibility at the Justice Department is examining whether 
certain political appointees in the Department knowingly signed 
off on an unreasonable interpretation of the law to provide 
legal cover for a program sought by...White House officials.''
    Well, if they did that knowingly, there is mens rea. I 
would have to search the criminal code. But it sounds to me 
like it may fall within criminal conduct.
    What we do in our society is we undertake those 
investigations where we lawyers use the word ``predicate''--
that is, some reason to proceed. We do not go off helter-
skelter on a term which has been frequently used--I do not care 
much for the term, but it articulates a ``fishing expedition'' 
as to what we are going to do.
    So it seems to me that we really ought to follow regular 
order here. You have a Department of Justice which is fully 
capable of doing an investigation. They are not going to pull 
any punches on the prior administration.
    I would ask unanimous consent--I do not often insert things 
into the record, and this is my first time inserting an article 
from Politico. But there is one from yesterday's edition which 
is by a former Justice Department official, Hans A. von 
Spakovsky, who raises it and succinctly stated that ``we have 
never seriously indulged in criminalizing our political 
differences''--the point being that the current administration 
will have a successor; all administrations have successors. I 
would ask, Mr. Chairman, also to put in this elegant picture of 
the Chairman, if that can be----
    Chairman Leahy. I could care less about the picture, but, 
of course, the article will be put in the record. And insofar 
as it is full of not only ad hominem attacks but more straw men 
than you would have in a hayloft, I will then put a response to 
it in the record.
    Senator Specter. Well, I have seen a lot of pictures of 
Senator Leahy, few as good as this.
    [Laughter.]
    Senator Specter. Many that I have seen with him, I am in 
the picture, too, obstructing his handsome profile. But the 
substance here is, I think, worth noting. We have had the 
statements by President Obama wanting to look forward and not 
backward. I think that is really the generalization, although I 
would not mind looking backward if there is a reason to do so. 
There is a predicate if we have evidence of torture. Torture is 
a violation of our law. Go after them. If there is reason to 
believe that these Justice Department officials have knowingly 
given the President's cover for things they know not to be 
right and sound, go after them.
    I think it underscores another issue, if I may say this 
parenthetically. The Office of Legal Counsel is a powerful 
office, and some of the opinions that are now disclosed are 
more than startling. They are shocking. When we look back at 
prior Presidents, most of them have not been lawyers. President 
Eisenhower, President Kennedy, President Johnson, President 
Nixon was--although he did questionable legal things. President 
Carter was not. President Ford was. Neither President Bush was, 
and President Clinton was. So you have Presidents taking advice 
from lawyers where they do not have legal training themselves.
    We are considering Office of Legal Counsel today, a very, 
very important position, and I think what we have seen Office 
of Legal Counsel do in the past ought to give us pause to do a 
little better job perhaps in this Committee on whom we confirm.
    I regret that I have other commitments. I am going to have 
to excuse myself, but I hope to return to participate in the 
questioning.
    Thank you, Mr. Chairman.
    Chairman Leahy. I have noticed that Ambassador Pickering 
also has to leave early because of a commitment out of the 
area.
    Senator Feingold is the Chairman of the Constitution 
Subcommittee, which has jurisdiction over this matter, and I 
yield for a brief statement.
    Senator Kaufman, why don't you move on down here with us, 
please?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. I really do 
regret not being able to stay. I am going to see the British 
Prime Minister at a joint meeting. But this is a terribly 
important hearing.
    Mr. Chairman, I commend you for having this hearing and for 
your proposal to establish an independent commission of 
inquiry. Long before the election, it was clear to me that one 
of the most important tasks for the new President was going to 
be restoring the rule of law in this country. I chaired a 
hearing on this topic in September, and nearly 40 law 
professors, historians, advocates, and experts testified or 
submitted testimony, including one of our witnesses today--Mr. 
Schwarz. The record of that hearing is the most detailed 
collection of analysis and recommendations on what needs to be 
done to reverse the most damaging decisions and actions of the 
last administration.
    The Obama administration has already taken several 
enormously important steps in the right direction, among them 
ordering the closing of the Guantanamo Bay detention center in 
a year; requiring adherence to the Army Field Manual's guidance 
on interrogation techniques; reinstating the presumption in 
favor of disclosure under the Freedom of Information Act; 
ending the very possibly illegal detention of Ali al-Marri by 
indicting him in a criminal court; and just last week, 
releasing nine Office of Legal Counsel memos that the Bush 
administration had insisted on withholding from Congress and 
the American people.
    So I am pleased and gratified that President Obama and his 
advisers recognized the need to take these actions and actually 
took them quickly. It gives me great hope for the future.
    A crucial part of restoring the rule of law, in addition, 
is a detailed accounting of exactly what happened in the last 8 
years and how the outgoing administration came to reject or 
ignore so many of the principles on which this Nation was 
founded. I regularly hear from my constituents back home about 
this, and they are absolutely right. There can be no doubt that 
we must fully understand the mistakes of the past in order to 
learn from them, address them, and, of course, prevent them 
from recurring.
    At the same time, there should not be a focus on 
retribution or payback, and such an effort should not be used 
for partisan purposes. That is why your proposal, Mr. Chairman, 
is so important. Your proposal is aimed at finding the truth, 
not settling scores.
    On the question of immunity, I think we should tread 
carefully. There are cases that may require prosecution, and I 
would not want a commission of inquiry to preclude that. Those 
who clearly violated the law and can be prosecuted should be 
prosecuted. On the other hand, the country will really benefit 
from having as complete a telling of this story as possible. So 
the ability of the commission to seek immunity for low-level 
participants certainly needs to be considered. How to do this 
is one of the complex questions that I hope will be explored in 
this hearing.
    I do support the idea of an independent fact-finding 
commission as opposed to relying solely on the regular 
Committee structure. I am on two of the relevant Committees, 
and the Members of Congress who serve on them are very hard-
working. There is much important investigative work that can be 
done in Committee, but there are also significant time, 
staffing, and jurisdictional constraints. I think a truth 
commission, as the Chairman has proposed, is the best way to 
get the comprehensive story out to the American people and the 
world.
    One final point, Mr. Chairman. While a commission of 
inquiry is the best way to get the facts out, Congress, the 
Justice Department, and the public should decide what to do 
with those facts. So I would be reluctant to task the 
commission with coming up with detailed recommendations for 
action. If we focus the commission on gathering the facts, 
there may be less wrangling about who is going to be on it, 
which could move the process forward a lot more quickly. I 
would rather see investigative professionals on this commission 
than policymakers and partisans.
    So I am looking forward to reviewing the testimony later, 
and, again, Mr. Chairman, I thank you so much for your very 
strong and important leadership on this issue, and I thank you 
for the opportunity to make a statement.
    Chairman Leahy. Thank you very much. I know you are one of 
the Judiciary Committee members who also serves on the 
Intelligence Committee, and without going publicly into some of 
the briefings we have all had on that, you understand the need 
for it.
    Our first witness is Ambassador Thomas Pickering, who 
currently serves as Vice Chairman of Hills & Company. 
Ambassador Pickering has a distinguished Foreign Service 
career, including as Under Secretary of State for Political 
Affairs from 1997 to 2000. The Ambassador holds a personal rank 
of Career Ambassador. That is the highest in the United States 
Foreign Service. Prior to becoming Under Secretary, he served 
as an ambassador to numerous countries, as well as Ambassador 
to the United Nations under President George H.W. Bush. He won 
the Distinguished Presidential Award and the Department's 
Distinguished Service Award. He has received honors from 
numerous universities. He is a member of the International 
Institute of Strategic Studies, the Council on Foreign 
Relations; has a Bachelor's degree cum laude from Bowdoin, a 
member of Phi Beta Kappa, a Fulbright Scholarship to the 
University of Melbourne, where he received a second Master's 
degree.
    On a personal basis, I have been briefed in various 
countries and at the U.N. by Ambassador Pickering, and I hold 
that as an example to new Ambassadors. When we come there, we 
actually want to have briefings in depth and in substance. He 
fulfilled that. We would have public briefings, and then 
occasionally briefings when we would go into a secure place, 
one of the bubbles, go into even more depth. In every single 
instance, he answered every question that was asked by both 
Republicans and Democrats. He told us what was going right and 
what was going wrong.
    Ambassador, I just want to state publicly how much I have 
appreciated those briefings over the years. Please, go ahead.

STATEMENT OF THOMAS PICKERING, VICE CHAIRMAN, HILLS & COMPANY, 
          INTERNATIONAL CONSULTANTS, WASHINGTON, D.C.

    Ambassador Pickering. Thank you, Mr. Chairman, very much 
and thank you for your very kind introduction, and thank you, 
members of the Committee, for having us here and affording the 
opportunity to testify on this extremely important subject. I 
am honored to appear before you today and to join and be a 
member of this very distinguished panel.
    I believe that the question of how we, as Americans, should 
come to grips with our handling of detainees in recent years is 
critically important for our country. It is essential to have a 
full understanding of what happened, why, and the consequences 
of those actions in order to chart the right course for the 
future.
    I come before you today to urge you to support the 
establishment of a commission to examine the detention, 
treatment, and transfer of post-9/11 detainees. In calling on 
the President to create such a commission, I have joined with a 
number of others, including a former U.S. Army general, a 
former FBI Director, the President of the United Church of 
Christ, and an internationally respected lawyer and scholar, 
and others who are experts on commissions of this nature. My 
convinced support for the commission stems from my over 45 
years of service to this country in the military, in diplomacy 
overseas, and as a senior official at the Department of State. 
I believe that a commission on the handling of detainees is 
vital to our country's future--to its security, to its standing 
in the world, and to our collective commitment as a people to 
honor, respect, and remain committed to our founding ideals in 
all that we do. Let me be clear as well that I am not a lawyer 
and am not qualified to address technical legal questions 
involving the advice of trained counsel.
    I would like to speak first very briefly on the purposes of 
the commission and then talk about some of its principal 
features.
    A commission of the kind we are proposing is needed in 
order to arrive at an in-depth, unbiased, and impartial 
understanding of what happened, how it happened, and the 
consequences of those actions. By gathering carefully all of 
the facts, the commission can tell the whole story and not just 
of each individual agency, studied in isolation, but of how all 
parts of the U.S. Government interacted in the handling of 
detainees. Indeed, the sainteragency aspect is crucial, as is 
how the various agencies related to the most senior officials 
in Government. On the basis of this full and comprehensive 
review, the commission can then make recommendations which will 
help guide us in the future. This process is fundamentally 
about understanding where we have been in order to determine 
the best way forward.
    Some might argue that such a commission is not needed. 
After all, President Obama has issued a series of Executive 
orders that chart a new course on detention and interrogation 
policy. As important as these orders are, I believe that 
something more is needed. It is not enough to say that America 
is discontinuing the policies and practices of the recent past. 
We must, as a country, take stock of where we have been and 
determine what was and is not acceptable, what should not have 
been done, and what we will never do again. It is my sincere 
hope that the commission will confront and reject the notion, 
still powerful in our midst, that these policies were and are a 
proper choice and that they could be implemented again in the 
future.
    Such a commission will strengthen our credibility in 
promoting and defending our values and advancing a better and 
safer world. As the 9/11 Commission found, the United States 
must engage in the struggle of ideas around the world in order 
to combat extremism and ultimately to prevail against 
terrorism. To do that effectively, Mr. Chairman, the Commission 
found that the U.S. Government--and I am referring to the 9/11 
Commission--``should offer an example of moral leadership in 
the world, committed to treat people humanely, abide by the 
rule of law, and be generous and caring to our neighbors.''
    It is far better for American foreign policy if we 
acknowledge willingly what went right and what went wrong than 
to address by bits and pieces of the story as they emerge over 
time this particular question. It is far better for our country 
and our standing in the world if we examine critically our own 
record and take account of what happened. To the extent that 
the Guantanamo detention camp, Abu Ghraib, secret detention 
sites, and torture and abuse enhance the efforts of our 
adversaries to recruit others to join their ranks and to make a 
case against us, we simply cannot quietly turn over the page. 
We must engage in a genuine effort to take stock of these 
policies and actions. We ought to acknowledge mistakes that 
were made, but we also ought to commit not to do them again.
    It is a crucial step in neutralizing our adversaries' 
narrative about the U.S. abuse of detainees. Only in doing so 
can we say to ourselves and to the world that we have not just 
turned the page on the past, but we have confronted it, learned 
from it, and strengthened our resolve to remain true to our 
principles. Only great countries, Mr. Chairman, confident in 
themselves, are prepared to look at their most serious 
mistakes, to learn from them, and to lead on forward. The 
United States has been and still is today, I believe, that kind 
of country.
    Let me conclude briefly by just reviewing a few principle 
features of the commission.
    On the question of what a commission should look like, its 
most important attribute is that it should stand above 
politics. It should report to and answer to the American 
people. To achieve this vital purpose, the commission ought to 
be comprised of persons whose duty is to truth and to our 
Nation's founding principles.
    Second, the commission should operate in public to the 
maximum extent possible. Public proceedings and reports should 
be the norm.
    Third, the commission should be a separate and distinct 
process from any investigation or prosecution of unlawful 
conduct. The establishment of a commission would not, in my 
view, in any way preclude the possibility of criminal 
investigation or prosecution, but the purposes of the 
commission would not be prosecution. That is the job of our 
national criminal justice system.
    Fourth, the commission should have the subpoena power in 
order to gather and tell the full story of what transpired. I 
would hope that the President would ensure as well that all 
Government documents are made readily available to such a 
commission.
    Fifth, and finally, there is the difficult issue of whether 
the commission should have the power to grant immunity which 
has engendered and I know will engender a great deal of debate. 
I am not an expert on this technical legal issue, but I would 
hope that policymakers would consider it very carefully. 
Persons who are called upon to testify, I am informed, can 
invoke their Fifth Amendment rights against self-incrimination. 
In my view, the commission should not have the power to grant 
blanket immunity, meaning immunity to all who testify 
truthfully or full immunity--in effect immunity for what may 
have been done rather than just for what is being said in the 
testimony being given. Rather, the commission should grant 
immunity to witnesses only in very limited circumstances.
    Mr. Chairman, I thank you again very much for this 
opportunity to testify regarding a commission, and I look 
forward to your questions.
    [The prepared statement of Ambassador Pickering appears as 
a submission for the record.]
    Chairman Leahy. Thank you very much, Ambassador.
    Our next witness is Retired Vice Admiral Lee Gunn. Admiral 
Gunn is now President of the American Security Project, served 
in the U.S. Navy for 35 years, served as the Inspector General 
of the Department of the Navy for the last 3 years. His awards 
include the Distinguished Service Medal, the Defense Superior 
Service Medal, six Legions of Merit, two Meritorious Service 
Medals, the Navy Commendation Medal, Combat Action Ribbon, and, 
of course, numerous theater and service awards. Admiral Gunn 
holds a Bachelor's degree from the University of California, 
Los Angeles, and a Master of Science degree in Operations 
Research from the Naval Postgraduate School.
    Admiral, it is good to have you here. Please go ahead, sir.

  STATEMENT OF LEE F. GUNN, VICE ADMIRAL, UNITED STATES NAVY 
     (RET.), AND PRESIDENT, THE AMERICAN SECURITY PROJECT, 
                        WASHINGTON, D.C.

    Admiral Gunn. Mr. Chairman, thank you very much. It is a 
pleasure to be a part of this esteemed panel and to have an 
opportunity to talk about this important issue.
    In addition to the other things you mentioned that I am 
involved in, I have been a member for the last 3-plus years of 
a group of 49 retired flag and general officers who have spoken 
extensively on the issue of detainee treatment and its 
importance both to the men and women in the military and for 
the men and women in the execution of their duties. I would 
like to talk a little bit about that and, in doing that, 
elaborate on the written testimony that I have submitted.
    I would like to say at the outset that my views are those 
of a sailor conveying concerns about the serious problems 
created for service men and women by choices made in Washington 
over the last 7 years. So what are those problems?
    Strained alliances comes first in my list, and in this day 
and age, the American military operates by itself almost never 
in the world. And the importance of being able to work with our 
allies and our friends cannot be overstressed.
    Confusion about detainee treatment, number two on my list, 
means to me that we have provided unclear guidance--that is, 
choices made in Washington have resulted in guidance that was 
not clear, that was in many cases ambiguous, and in some cases 
was flat wrong about the requirement to treatment detainees 
humanely and in accordance with international conventions, and 
the Geneva Convention in particular, and also with American 
law.
    Third on my list is exposure to greater risk of abuse if 
those soldiers, sailors, airmen, marines, coast guardsmen are 
captured. No one is going to--we are not kidding ourselves that 
our opponents, our enemy, will be inclined to treat our people 
humanely if they fall into enemy hands. On the other hand, it 
is important that we be able to mobilize international opinion 
in support of people taken by our enemy and the treatment of 
them in a humane way.
    We have, as Ambassador Pickering mentioned, furnished 
extremists with recruiting materials extensively, and that is a 
consequence that we should have envisioned when we made many of 
the choices about how we were going to act and how we were 
going to talk about how we acted.
    And, finally, in the problems list is that we further 
damage the reputations of Americans who are working in this new 
realm of winning hearts and minds and trying to convince people 
that America has ideals and ideas to which they should 
subscribe, and we have disadvantaged our military people who 
have been involved in that. And I would argue that we have 
similarly disadvantaged the other members of the American 
administration, other public servants in that regard as well.
    We are not done, and that is why I think that we need a 
serious inquiry into the way we have behaved for the last 7 
years and the kind of orders we have given and decisions we 
have made. The enemy is still the enemy. The stress on our 
people, in uniform and out, who are charged with dealing with 
this enemy will continue. The pressure on our country and on 
our leaders will remain. And we need to understand the 
circumstances under which choices were made by leaders in the 
past in order that we can anticipate those same circumstances 
or others in the future and avoid making what we consider to be 
mistakes.
    So the question is to me: What has happened to us? What did 
we do wrong? What did we do right? And I would like to mention 
that the military examines itself often and in depth. We do 
that with after-action reviews and hot wash-ups following 
exercises and operations. We do it with in-depth studies when 
those are called for. We conduct Uniform Code of Military 
Justice investigations, as I know you are well aware, Mr. 
Chairman. And we conduct aviation safety investigations and 
examinations as well.
    The last one is kind of an interesting case in which the 
testimony seeking the truth and having lives depend on finding 
the truth in which the testimony is generally firewalled 
completely from legal proceedings that may eventuate from these 
investigations.
    But whatever the appropriate names, the services together 
have to find out what happened and be in a better position in 
the future to provide the kind of clear, unambiguous guidance 
that is necessary on the pressure-filled front line and in the 
detainee treatment arena.
    The outcome is that soldiers, sailors, marines, airmen, 
coast guardsmen deserve and require that kind of guidance and 
those orders. Structure is essential to you when you are under 
pressure, particularly in combat, and also in the elevated 
tension of taking care of detainees.
    American values have to be our test with regard to the 
application of those orders and that guidance. We have failed 
American service men and women over the last 7 years, and we 
have to stop doing that. We need to do better, and we need to 
get on with it.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Admiral Gunn appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Admiral.
    The next witness is John Farmer. He is a partner at 
Arsenault, Whipple, Farmer, Fasset and Azzarello, and former 
Attorney General of New Jersey. He created the Office of 
Inspector General and served as a Federal prosecutor; adjunct 
professor of national security law at Rutgers. He has written 
extensively on terrorism issues. He previously served as 
Special Adviser to General Jones regarding Middle East issues. 
He was senior counsel and team leader for the 9/11 Commission 
and really led the team in investigating the Government's 
response to the 9/11 attacks. That included evaluating the 
response by the various agencies of the executive branch, 
including the offices of the President and Vice President of 
the United States and the Department of Defense. Then he served 
in a variety of other investigatory commissions. Mr. Farmer 
received his law degree from Georgetown University Law Center, 
as did I, and his B.A. from Georgetown University.
    Mr. Farmer, glad to have you here.

STATEMENT OF JOHN J. FARMER, JR., PARTNER, ARSENAULT, WHIPPLE, 
     FARMER, FASSET AND AZZARELLO, LLP, CHATHAM, NEW JERSEY

    Mr. Farmer. Thank you, Mr. Chairman, and let me echo my 
colleagues in thanking you and the Committee for the invitation 
to appear today. Like my colleagues, I have submitted more 
formal testimony, and my purpose in speaking now is simply to 
summarize in a more abbreviated fashion what is set forth at 
length in my formal testimony.
    The obvious threshold question facing this Committee is 
whether an investigation should be conducted of the practices 
and policies that have been employed concerning detention since 
9/11 in our country's struggle against transnational terrorism.
    I want to emphasize at the outset that I have a lot of 
empathy for those who, like President Obama, have expressed a 
desire to move forward rather than look back. When I was 
Attorney General in New Jersey, I expressed similar sentiments 
when my department was under investigation by our State Senate 
Judiciary Committee. And make no mistake about it. The time 
devoted to preparation for testimony and responding to such an 
investigation can be diverting and for a time can disrupt 
normal operations.
    I have come to see, however, that there are some issues 
that touch so directly upon our identity as a people, that 
touch so directly upon the values we profess, that no amount of 
internal bureaucratic review will suffice to allay public 
concern about the way its Government has been conducting 
itself. In the absence of public fact finding, people will be 
left to believe the worst, and the lack of public trust will 
ultimately undermine any effort to move forward. I have come to 
believe that our Government's handling of detentions since 9/11 
is such an issue. Why? The turning point for me was the 
convening authority's decision recently that Mohammed al-
Qahtani, the alleged 20th hijacker--whom Mohammed Atta had 
driven to meet at the airport in Orlando Florida, on August 4, 
2001, but who was turned away, only to be captured in December 
2001 in Afghanistan--could not be tried because of the way he 
had been treated. She concluded that he had been tortured.
    Think about that for a moment. We have now reached a point 
where the tactics we have adopted in the struggle against 
terrorism have compromised our ability to respond to the 9/11 
conspiracy itself. In my view, that fact calls into question 
exactly what we have done, to whom, why, when, and on what 
basis. There are many other alleged examples, but for me the 
dismissal of charges against al-Qahtani elevates detention to 
one of those issues that touch so directly upon our identity as 
Americans that a public accounting of what occurred is 
necessary.
    Assuming that there is eventual agreement on the need for 
an investigation of detention practices, the next question is 
what form that investigation should take. One obvious option is 
a criminal investigation, either by the Justice Department or 
by a special prosecutor. This option has limited appeal in this 
context, in my opinion, for three reasons:
    First, prosecutions are necessarily narrowly focused on 
proving the elements of crimes in specific cases; whatever 
broader context they provide is incidental to that primary 
purpose.
    Second, in the absence of generally accepted, neutral fact 
finding, criminal prosecutions by a successive administration 
may appear to be politically motivated.
    And, third, it is not clear that criminal prosecutions will 
be efficacious in this context; potential targets may well be 
able to invoke a viable advice-of-counsel defense.
    Another option would be congressional hearings. Certainly, 
Congress is capable of conducting thorough, bipartisan 
investigations as part of its oversight responsibility of the 
executive branch. In my view, however, the highly charged 
politics of congressional hearings on this subject would 
frustrate any fact-finding effort.
    In my view, these considerations argue in favor of 
establishing an independent body to conduct fact finding with 
regard to detentions. Such fact finding need not foreclose 
prosecution in appropriate cases; indeed, it may even serve to 
identify those cases.
    Structuring an investigation into detention policies and 
practices involves, in my view, four interrelated 
considerations: composition, scope, powers, and product.
    With respect to composition, the commission should be 
independent and nonpartisan in composition. Bipartisan 
commissions can reach nonpartisan results; the 9/11 Commission, 
under the leadership of Governor Kean and Congressman Hamilton, 
succeeded in that respect. The enabling statute for a 
commission on detentions should spell out specific professional 
qualifications that will ensure a nonpartisan composition. The 
commission should also have a professional staff, a definite 
timetable for completion of its work, and a budget adequate to 
its mandate.
    Perhaps the most difficult aspect of structuring such an 
investigation is determining its scope. If the mission is 
defined too broadly, it may not be achievable, and the breadth 
of the mission will also drive the potential cost of the 
project. In the context of detentions, I believe a focus 
strictly on Guantanamo Bay would be too narrow, while an open-
ended mandate to investigate all tactics employed in the war on 
terror would be much too broad. One limiting principle the 
Committee might consider would be to link the investigation to 
the facts and circumstances surrounding detentions carried out 
pursuant to Congress' resolution of September 2001 authorizing 
the use of force to respond to the 9/11 attacks.
    The scope of the inquiry, once it is determined, will 
determine what powers the commission will need to employ in 
conducting its work. Essential to any investigation, in my 
view, will be the ability of the commission to compel 
cooperation. Compulsory process is essential; it was vital to 
the success of the 9/11 Commission, and its lack can be a real 
handicap. So at a minimum the commission should be given 
subpoena power.
    A trickier problem is whether the commission should be 
allowed to confer immunity in order to obtain testimony from 
witnesses who might otherwise assert their Fifth Amendment 
privilege against self-incrimination. Given the extremely fact-
sensitive nature of this inquiry, where individual exposure may 
be an issue in every case of alleged abuse, some form of 
limited immunity may be essential. The issue must be handled 
with care, however, as the grant of even limited testimonial 
immunity may jeopardize a current or future prosecution. That 
is a potential tradeoff that must be considered by the 
Committee in forming the commission.
    Finally, with respect to the product, the enabling 
legislation should also set forth the expected end product of 
the investigation. The 9/11 Commission was given a broad charge 
to investigate the facts and circumstances surrounding the 
attacks, but also to formulate recommendations based on those 
findings. In my view, such a broad mandate would be appropriate 
to the detention context we are talking about. I believe that 
the commission should be charged simply with writing a report 
setting forth the facts and circumstances surrounding the 
practices and policies relating to detentions carried out in 
the war on terror. Although the commission would be completely 
separate from any criminal investigation, it should have the 
power to refer appropriate cases, if it finds them, to the 
Justice Department for potential prosecution. To the extent 
possible, the report should be a strictly fact-based narrative, 
and the report should state the evidentiary bases for the 
factual conclusions it reaches to the extent consistent with 
national security interests.
    Once the facts are known, legislators and policymakers can 
debate the broader implications of these facts and move forward 
with a clear understanding of where we have been and what we 
have done.
    I look forward to answering any questions you may have and 
to working with you to address these difficult issues in the 
future. Thank you.
    [The prepared statement of Mr. Farmer appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Mr. Farmer.
    Frederick Schwarz, Professor Schwarz, is Chief Counsel at 
the Brennan Center for Justice at the New York University Law 
School. In his legal career, he has combined a high level of 
private practice at Cravath, Swaine & Moore, with a series of 
critically important public service assignments. Mr. Schwarz 
served as Chief Counsel of the Church Committee. That is about 
the time when I came to the Senate and, I think, when we first 
met. He has also served as Chief Counsel to the Senate Select 
Committee on Intelligence. He chairs the board of the Vera 
Institute of Justice, recently received the Gold Medal Award 
for Distinguished Service in the Law from the New York State 
Bar Association. He received an A.B. magna cum laude from 
Harvard University, his law degree from Harvard Law School, 
where he was editor of the Law Review.
    Professor Schwarz, it is always good to see you here. 
Please go ahead, sir.

   STATEMENT OF FREDERICK A. O. SCHWARZ, JR., CHIEF COUNSEL, 
BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW, 
                       NEW YORK, NEW YORK

    Mr. Schwarz. That was quite a few years ago when we first 
met.
    Chairman Leahy. It was. I actually had hair back then, and 
it was a little bit darker.
    [Laughter.]
    Mr. Schwarz. And I had solid black hair back then, too. 
Thank you for convening this hearing. Thank you for your 
proposal for the commission, which I support.
    How wisely to handle counterterrorism is an ongoing issue 
for our Nation's future. How to handle counterterrorism is too 
important to sweep the past under the rug. The public, and not 
merely insiders, need to understand what has happened. Those 
who do not understand errors of the past are condemned to 
repeat them, and surely will.
    We all want to move forward wisely, but it is not possible 
wisely to move forward unless we fully understand what we have 
done.
    The first step must be to know all the facts. Beyond basic 
facts, we need to know: how were decisions made; who was 
consulted and who was not consulted. We also need to know 
beyond the basic facts what were the consequences of our 
actions. And we need to know beyond the basic facts what are 
the root causes of having gone down a path that was 
inconsistent with our values and seems to have broken the law. 
I would put excessive governmental secrecy and limited 
oversight as among the most important root causes.
    I personally believe and have testified before that our 
descent into tactics like torture abandoned the rule of law and 
undermined American values and that doing so made us less safe. 
That thesis needs to be tested, for if it is true, it is surely 
important to our country and its public, as we consider what to 
do when there is another terrorist attack in this country, as 
there surely will be--hopefully not as horrible as the one 
before. But we surely will get it, and we have to make sure 
that the next time we do not make mistakes of the sort that 
seem to have been made in the prior years.
    Now, the benefits of a nonpartisan commission of inquiry 
which you have proposed go far beyond understanding the facts. 
Such a commission can help bring all Americans together, 
because, after all, issues like belief in the rule of law, 
issues like understanding and appreciating the basic American 
values do not divide the parties in this country. So a 
commission that proceeds fairly and is nonpartisan actually can 
help to bring our country together.
    And, second, a commission that investigates the facts, puts 
forward a report that tells the country and tells the world 
what has happened, admits to mistakes when we have made 
mistakes, praises things that we did well when we did them 
well, that commission and its hearing and its report can help 
restore America's reputation in the world and, thus, increase 
our strength and, thus, make us more safe.
    The bottom line is we owe it to ourselves and to our 
country to learn the facts about our Government's 
counterterrorism policies. We know that abuses may have 
occurred and that the perception of these abuses has undermined 
our standing in the world and our fight for the hearts and 
minds of those who could be persuaded to do us harm. We must 
not flinch from learning the truth. That is the only way to 
stay true to our principles, to correct our course, and to 
restore our moral standing in the eyes of the world. That in 
turn will make us safer and stronger. For as has been true 
throughout our more than 200 years of history, America is at 
its best when we confront our mistakes and resolve not to 
repeat them. If we do not confront our mistakes, we will 
decline. But if we do--as this commission can help us do--our 
future will be worthy of the best of our past.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Schwarz appears as a 
submission for the record.]
    Chairman Leahy. Thank you very, very much, Mr. Schwarz.
    Our next witness is David Rivkin. He is a partner at Baker 
& Hostetler. Mr. Rivkin served in the Department of Justice and 
the White House during the Reagan and George H.W. Bush 
administrations. He has practiced in the area of public and 
international law. He is experienced in international 
arbitration, policy advocacy, and a wide range of issues. He 
has testified before this Committee before. He is a member of 
the Council on Foreign Relations. He has published numerous 
papers and articles on a variety of legal, foreign policy, and 
other issues. He received his law degree from Columbia 
University School of Law, his M.A. in Soviet Affairs from 
Georgetown University. He has written op-ed pieces saying why 
my idea is terrible.
    So, Mr. Rivkin, welcome.
    [Laughter.]

  STATEMENT OF DAVID B. RIVKIN, JR., BAKER & HOSTETLER, LLP, 
                        WASHINGTON, D.C.

    Mr. Rivkin. Mr. Chairman, members of the Committee, thank 
you very much. I would not use the word ``terrible,'' of 
course. I would be much more judicious. But I am pleased to 
appear before you and testify as part of a distinguished panel. 
I do believe, however, that a commission of whatever variety to 
investigate the Bush administration activities and its 
officials is a profoundly bad idea, a dangerous idea, both for 
policy but, even more importantly to me as a lawyer, for legal 
and constitutional reasons.
    Now, there is nothing wrong, of course, with creating 
``blue ribbon'' commissions, provided they exercise 
constitutionally-appropriate responsibilities. And on its face, 
the proposed commission to investigate the Bush administration 
appears advisory and geared toward policy review. In my view, 
however, many of its advocates express much more.
    In this regard, I am somewhat discouraged by the ongoing 
discourse about the intent and purpose of this commission. Far 
from seeking to establish a body to make recommendations on 
policy, as was the case, for example, with the 9/11 Commission, 
most commission supporters clearly want to establish a body 
that would engage in what would in essence be the criminal 
investigation of the former Bush administration. Their desire 
to target a relatively small number of the former Bush 
administration's most senior lawyers and policymakers is not 
concealed. The fact that the subject matter areas which the 
commission would investigate--among them are the interrogation 
and handling of captured enemy combatants and some people all 
suggest the gathering of electronic intelligence--are heavily 
regulated by comprehensive Federal criminal statutes ensures 
that the commission's activities would inevitably involve areas 
that are traditionally the responsibility of the Department of 
Justice. Congress, of course, can also constitutionally 
properly delve into these matters as a part of its oversight 
and legislative activities. The proposed commission, I submit 
to you, cannot.
    Let's recall that the power to investigate and bring 
criminal charges against individuals is the Government's most 
formidable domestic power. As such, it is heavily circumscribed 
by the Constitution and Federal statutes. In my view, any 
effort to outsource any aspects of this power to entities 
operating outside of the structure of Government established by 
our Constitution is extremely troubling and must be strongly 
resisted by all who are concerned with protecting the 
Constitution's fabric.
    The very decision to initiate what amounts to a criminal 
investigation, whether or not it is formally designated as 
such, is too weighty to be outsourced to commissions operating 
outside of the constitutionally prescribed tripartite framework 
of our National Government. In this regard, I would like to 
remind the Committee of the strident criticism which attended 
the alleged loosening, by the FBI during the Bush 
administration, of the threshold determinations that had to be 
made before national security investigations were commenced. I 
also vividly recall the indignation which attended the claims 
that the Bush administration's Justice Department may have been 
seeking to investigate Democrat-leaning groups and elected 
Democrat officials at the Federal and State level for election 
fraud and other alleged election offenses. In all candor, I 
fail to see why having Congress task a group of private 
citizens to investigate former Bush administration officials 
does not implicate exactly the same, if not far greater, civil 
liberty concerns. The fact that a number of people targeted for 
investigation is quite small potentially makes the commission's 
threat to civil liberties all the more acute.
    Let's also reflect briefly on how the proposed commission 
might operate. In order to compel people to testify, such a 
commission would have to possess subpoena power, which it, 
presumably, would have to go to court to enforce in particular 
cases. Given the vague nature of the commission's 
responsibilities, as well as its blending of law enforcement 
and policy investigations, I find it difficult to imagine how 
the Federal judiciary would meaningfully police such subpoena 
requests.
    There is also the question of how to balance the 
constitutionally protected interests of the commission's 
targets, for example, their Fifth Amendment protection against 
self-incrimination, with its desire to get information. I am 
not clear, by the way, how an entity that is neither executive 
nor legislative could grant immunity all on its own such that 
it would be respected in the future by Federal and even State 
law enforcement officials.
    To the extent that grants of immunity, including the 
specific parameters of the immunized testimony, would have to 
be approved by the executive branch, here again I am troubled 
by the difficulty of coming up with a mechanism for meaningful 
review, as distinct from a rubber stamp.
    And then there is the question of how the commission would 
protect the privacy interests of its targets. The commission 
would go about quite publicly what are essentially law 
enforcement investigatory functions, which are typically held 
(despite some inevitable and unfortunate leaks) confidential by 
the Department of Justice, in a non-public manner.
    Now, even setting aside the constitutional concerns--and 
there are several more--raised by charging a commission with 
the discharge of what are really law enforcement 
responsibilities, there is another large problem that looms, in 
my view. It is important to recognize that the commission's 
most deleterious and dangerous impact would be to greatly 
increase the likelihood of former senior U.S. Government 
officials being tried overseas, whether in courts of foreign 
nations or before international tribunals. And the reason for 
it is because the matters to be investigated by the commission 
implicate not only U.S. criminal statutes but also 
international law, and which are arguably subject to claims of 
``universal jurisdiction'' by foreign states. I have no doubt 
that foreign prosecutors would eagerly seize upon a supposedly 
``advisory'' determination that criminal conduct occurred, 
especially if it is the only ``authoritative'' statement on the 
subject by an official U.S. body as a pretext to commence 
investigations and bring charges against former Government 
officials. If they were clever--and most of them are--they 
would argue that the mere fact that the commission was 
established vividly demonstrates that grave crimes must have 
occurred and interpret the U.S.' non-prosecution of the 
individuals concerned through formal prosecutorial channels as 
a mere technicality to be repaired by their own broad 
assertions of jurisdiction.
    Indeed, in my view, all of these circumstances appear to be 
tailor-made to support the invocation of universal jurisdiction 
by foreign judicial bodies as the basis to launch prosecutions 
of Bush administration officials.
    Let me close by pointing out a great and perhaps unintended 
irony. Much of the anger about the Bush administration's war on 
terror policies has been focused on its treatment of captured 
alien enemy combatants and especially its rendition policy. It 
would be rather sad, in my view, that in an effort to 
``investigate'' these matters, the proponents of a commission 
pay no heed to the civil liberties of Americans and are 
perfectly happy to outsource law enforcement functions to 
private entities, and are even willing to practice a soft form 
of rendition, and virtually inviting foreign courts to go after 
American citizens. I would respectfully suggest that this is a 
very bad way to proceed.
    Thank you.
    [The prepared statement of Mr. Rivkin appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Mr. Rivkin.
    Jeremy Rabkin is a professor of law at George Mason 
University School of Law. Prior to that, he was a professor at 
Cornell. He is an international law scholar. He was recently 
confirmed as a member of the Board of Directors for the United 
States Institute of Peace. Professor Rabkin has written 
numerous chapters and book articles in academic journals and 
essays. Professor Rabkin teaches courses on both constitutional 
and international law as a Ph.D. from the Department of 
Government at Harvard. He graduated summa cum laude from 
Cornell University.
    Mr. Rabkin, Professor Rabkin, welcome, and go ahead. Press 
that little red button. There you go.

 STATEMENT OF JEREMY A. RABKIN, PROFESSOR OF LAW, GEORGE MASON 
         UNIVERSITY SCHOOL OF LAW, ARLINGTON, VIRGINIA

    Mr. Rabkin. Thank you. I also will try to avoid simply 
repeating what was in my written statement and take advantage 
of being the last speaker here.
    Chairman Leahy. The whole statement will be made part of 
the record, of course, and also the transcript will stay open 
after the hearing is over, and if you see things you wish to 
add to it, we are not playing ``gotcha'' here. We want to learn 
from this, and it will be kept open for that.
    Mr. Rabkin. Thank you.
    I want to start by talking about the context of this which 
I think nobody has mentioned and it is rather important. Last 
summer, the first time I met Mr. Schwarz, there was a hearing 
of the House Judiciary Committee which was called a ``pre-
impeachment hearing,'' and there were a lot of serious people, 
including some Members of Congress, who said even in the last 
months of the Bush administration, ``even though Bush will be 
leaving office soon anyway, we have to have an impeachment 
because what the Bush administration did was not just 
regrettable, deplorable, mistaken, but high crimes and 
misdemeanors.'' A lot of people are still revved up with 
indignation. Just go on the Internet. We can find this in 
published columns, too. People say the Bush administration was 
``guilty of war crimes,'' they are in the same category as 
``notorious war criminals of foreign countries.''
    Now, I think that is just wildly exaggerated and really 
inappropriate, but a lot of people feel that way. If you say we 
are going to have a truth commission, people immediately think, 
``Oh, yes, that is what is done with war criminals when you 
cannot prosecute them.'' So that is the first point I want to 
get everyone to focus on.
    I do not think it is sufficient for Senator Leahy or 
Senator Feingold to say, ``Well, I view it in a more moderate 
way.'' I think this will be taken as ratifying the backroom 
view that, yes, these were extraordinary crimes----
    Chairman Leahy. Without disagreeing with you, I have had 
something like 65,000 e-mails. I have yet to have one single e-
mail suggest that we are doing this as a war criminal thing. I 
am not suggesting you are putting up a straw man here, but 
please feel free to----
    Mr. Rabkin. Could I just say we seem to have different e-
mail lists? When I said at that hearing last summer, ``Come on 
now, let's not be crazy,'' I got not 60,000 but hundreds of 
people saying, ``I saw you on C-SPAN, and I am not crazy, and 
he is a war criminal and he should be tried.'' A lot of people 
feel very vehemently about this.
    If you say ``truth commission,'' people immediately think 
about these famous--the Truth and Reconciliation Commission in 
South Africa, the Commission on Truth and Reconciliation in 
Chile. We are not in remotely that situation. In those 
countries, they had to have these commissions because they 
could not have prosecutions, and they could not have 
prosecutions because the countries were so deeply divided and 
they had made promises in order to secure a peaceful 
transition. Peace was really in doubt in those countries, so 
they had to back off of prosecution and say, ``Well, we will 
have a truth commission instead.'' We are not in that 
situation. If people think that there should be prosecutions, 
well, then, there can be prosecutions.
    I want also to just focus attention on this. The experience 
of those truth commissions in other countries, they had some 
success--I think they had considerable success in focusing on 
narrow factual questions. One of the really important 
achievements of the Chilean truth commission was just to get an 
accounting. A lot of people had disappeared. What happened to 
them? And they were able to come up with a list. And they were 
also able to establish a number which got to be generally 
accepted, about 2,000 victims of political killings. That was 
very helpful to come up with a number, names, some information 
about them.
    I do not think that is at all what we are talking about 
here. I heard Mr. Schwarz say--and I am talking about Mr. 
Schwarz because I think he is very thoughtful. Mr. Schwarz said 
it is not enough to get the facts. We also have to know the 
root causes, and we also have to test the theory that this has 
made us less safe. We should all think about what that 
involves.
    To say that we have been made less safe is to make an 
assessment which we are going to put out through the country as 
authoritative that, let's say, ``The world reacted to our 
torture and that made us less safe, and that is not offset by 
information which we gained.'' How could a commission determine 
this? And why would people accept that because the 
commissioners said it, it was true? And if you can do it for 
debates about Bush policy in regard to detention, why not for 
every act of every Presidential administration?
    Secretary Clinton is now going to talk to Iranian 
representatives, is what I hear, and she is talking to people 
in the Government of Syria. Is that making us safer or less 
safe? Maybe it is making us less safe because it is implying 
weakness. Why don't we have an independent commission to assess 
that? I do not think that is silly, but I think it is really a 
bad idea, and I think we are going down this road now of saying 
if there is enough controversy and it is sufficiently intense 
controversy, we have an outside commission which purports to 
tell us authoritatively what it all means and what were the 
causes and what were the consequences. And we cannot do that. 
That is not a substitute for people making political arguments 
which can be responded to politically.
    I want to say just briefly in conclusion, I share many of 
the concerns of my colleague and friend here, David Rivkin. If 
we go into this with the notion that this is a substitute for 
criminal trials, you are authorizing this commission to paint 
particular individuals in the Government as if they had somehow 
done something analogous to war crimes, something which 
undermines our values as Americans, something which threatens 
our identity as Americans, as was said.
    This is a pretty serious charge. Do these people get to 
defend themselves? I mean, I am sure they get to show up, but 
none of this would be tested before an ordinary criminal 
process. You will have some people, maybe well-meaning people, 
write a report saying, ``I think what John Yoo did has 
undermined our safety.'' And I just think we should not be 
authorizing people to make categorical judgments like that on 
behalf of the American people where you are naming names and 
shaming people, and they do not get a chance to defend 
themselves before a jury. That is not, I do not think, a 
category that we should bring into our country. That is 
something they had to do in totally traumatized countries which 
could not have criminal process, and we are not in that 
situation.
    Thank you.
    [The prepared statement of Mr. Rabkin appears as a 
submission for the record.]
    Chairman Leahy. Thank you. I appreciate your testimony, but 
I must say, as I have said before--and you will have plenty of 
time to respond--that most haylofts I have been to in Vermont 
could not make the number of straw men that you and Mr. Rivkin 
have brought up. But we will--I know Senator Cornyn wants to 
ask you questions, and what I am going to do is begin, and you 
will be given plenty of time to respond to that. But I hear 
your talking about hearings that apparently you were at, I was 
not at, and they were not the hearings we are holding here.
    Ambassador Pickering is going to have to leave. I wanted to 
ask him first: During your tenure--and I will make absolutely 
sure, Mr. Rabkin, you have plenty of time to respond on that.
    Ambassador Pickering, 45 years as Foreign Service officer, 
all over the world, you have negotiated with other countries. 
You have worked to implement American foreign policy. What 
impact do you think the Bush administration detainee policies 
had on our foreign policy and on our national security?
    Ambassador Pickering. Thank you, Mr. Chairman. I have 
thought a lot about it. As you can see in my prepared 
testimony, I listed a number of results of that. I think it is 
hard to contest the view that public opinion about the United 
States, not just in the Muslim and Islamic world but around the 
world, has fallen to a new low. I do not have the polling data 
in front of me, but I think we are all familiar with the 
polling data. And it is not just one poll; it is numerous 
polls.
    I think the second point to make and drive home is that 
this, in my view, provided a sense of ire, a sense of 
disturbance, a sense of deep concern among many people who 
began by not liking the United States, and so it heightened 
that. Whether that resulted in recruitment of new people to al 
Qaeda, to the Taliban, to other organizations that are in arms 
against the United States is hard for me to tell in a specific 
sense, but I think it is not totally irrelevant to that point; 
that, indeed, individuals who were--and we have seen many 
anecdotal histories of this. Parts of the Abu Ghraib tape and 
pictures were, I think, deeply offensive-offended because of 
the cultural insensitivity, offended because of the use of 
force, offended because of all aspects of the treatment.
    So it is, in my view, a serious and real and major point 
that this certainly contributed to extreme anti-Americanism and 
probably was one of those things that helped recruit people to 
take up arms and to act violently against the United States.
    Chairman Leahy. If the United States is seen as doing an 
open and honest review of what happened, setting up policies if 
we find that we did not follow our own laws and our own 
policies, to make it very clear mistakes would not be made in 
the future, does that help or hurt us around the world?
    Ambassador Pickering. I do not know that we are going to 
convince the most extreme people oriented against us merely 
because we have done this. But I think a lot of people who are 
sitting on the fence who have admired the United States over 
the years, who were deeply disturbed by what they saw the 
United States was doing, which was so seemingly out of 
character with our background, our past leadership, and our 
principles, would certainly be, I think, moved.
    As I said in my statement, great countries do not often go 
into deep introspection about their problems and the 
difficulties and, indeed, then move to cure them. But, in my 
view, that is the essence of rational action, and it is the 
essence, Mr. Chairman, I think, of what Admiral Gunn said about 
how the Navy behaves under difficult circumstances. I spent 
some time in the Navy as well. I admire people who are prepared 
to look carefully at their mistakes and to rectify them, and I 
suspect that that is a widely held belief around the world, and 
I suspect that people expect nothing less of the United States.
    Chairman Leahy. We actually saw something interesting in 
the news this morning about a tragic plane crash out on the 
West Coast of marines and the review that was made of the 
mistakes that occurred there.
    Mr. Farmer, I get the impression from your testimony, when 
you spoke of al-Qahtani, the man who has been referred to as 
``the 20th hijacker'' and the fact that he could not be 
prosecuted because of the national security policies of the 
last administration, I got the impression that that was the 
turning point for you. If so, what do you believe would be the 
benefit of a review such as what I have suggested in this 
inquiry?
    Mr. Farmer. Well, as I said in my testimony, the fact that 
the tactics that we have employed are now making it difficult 
to deal with the 9/11 conspiracy itself to me simply raises the 
question of, you know, how did we get here; what was done 
specifically by whom, to whom, on what justification. And as I 
said, as a former head of a major State department, I 
appreciate the need to move forward and the disruption that 
investigation may cause. But, in my judgment, a serious 
compromise of our ability to deal with the 9/11 conspiracy 
itself elevates the detention issue to the point that an 
independent investigation is warranted.
    Chairman Leahy. Thank you. My time is up. I will come back 
with further questions.
    Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman.
    Mr. Chairman, I would ask unanimous consent to introduce 
several op-eds and letters in opposition into the record. The 
authors are James Woolsey, William Webster, Michael Hayden, 
John Deutsch, James Schlesinger--all former Directors of the 
CIA.
    Chairman Leahy. Thank you, and I will also introduce--
actually, we will keep the record open for this because, of 
course, there are equally impressive people who take an 
opposite view, and those letters will also be placed in the 
record. But both pro and con, the record will stay open for 24 
hours for any such letters.
    Senator Cornyn. Mr. Chairman, I thank you for having this 
hearing. I am on record as saying that the idea of creating an 
independent--and I am not sure how independent it would 
actually be--unaccountable truth commission is a bad idea, with 
all due respect. And the suggestion that this subject can be 
delved into somehow in a nonpartisan fashion to me asks us to 
suspend our power of disbelief, those who have worked here over 
the last 6 years, in my case, and ignore the fact that we have 
already had 150 oversight hearings on these subjects, we have 
logged more than 320 hours of witness testimony in unclassified 
settings, transcribed more than 3,200 pages of witness 
testimony, and printed more than 17,000 pages of unclassified, 
publicly available reports. And to me the idea that this so-
called truth commission would somehow resolve the good-faith 
disagreements that I think many of us have had and that have 
divided the country over this subject is, I think, just asking 
us to believe in the tooth fairy, that somehow this is going to 
settle the score.
    Let me just give you one example. In a statement 
accompanying the Senate Armed Services Committee's release of 
the December 2008 report on terrorist detainee treatment, the 
Levin report, Chairman Levin noted that, ``In the course of its 
more than 18-month-long investigation, the Committee reviewed 
hundreds of thousands of documents and conducted extensive 
interviews with more than 70 individuals.'' The unclassified 
Executive Summary of the Levin report totals 19 pages and 
includes the same number of conclusions.
    I disagree with those conclusions, but I certainly do not 
believe a truth commission is necessary to somehow arbitrate 
the differences between me and the Levin report.
    So I think, with all due respect, again, I think seeking 
this commission is, in fact, an indictment of congressional 
oversight responsibilities--not that I think Congress has 
failed, because we have, as I indicated, extensively inquired 
into these matters. Congress has legislated, with the Detainee 
Act, with the Military Commissions Act, in response to Supreme 
Court opinions and otherwise. And so I am just not willing to 
join in the acknowledgment of failure of Congress performing 
its vigorous oversight responsibilities, which I think creation 
of such a commission would amount to.
    Mr. Schwarz, I recently re-read Jack Goldsmith's book, 
``The Terror Presidency,'' and in there he said that the Church 
and Pike investigations of the 1970s and the Iran-contra 
scandal in the 1980's taught the intelligence community to 
worry about what the 1996 Council on Foreign Relations study 
decried as ``retroactive discipline,'' the idea that no matter 
how much political and legal support an intelligence operative 
gets before engaging in aggressive actions that he or she will 
be punished after the fact by a different set of rules created 
in a different political environment.
    Are you concerned about the possibility of this retroactive 
discipline and the unfairness of changing the rules of the road 
after the fact and its impact on our intelligence officials who 
may be persuaded that maybe more passivity is to be embraced as 
opposed to aggressive gathering of actual intelligence?
    Mr. Schwarz. I do not personally believe that CIA 
operatives ought to be accused or brought before a criminal 
court. I think they acted in good faith because they had legal 
opinions which said what they were doing was OK, and because 
their bosses high up in the Government told them to do what 
they did.
    Now, turning to the actual record of the Church Committee, 
the Director of the CIA said that what we had done by bringing 
the intelligence services into the realm of the law, instead of 
being outside of the realm of the law, helped the intelligence 
services, and the General Counsel of the CIA, the famous 
General Counsel Lawrence Houston, said that the conduct of 
Congress before the Church Committee in turning a blind eye to 
what was going on actually harmed the intelligence services.
    Moreover, the Church Committee in its recommendations way 
back in 1976 said this country should start paying more 
attention to terrorism. Way ahead of its time.
    So the people who said the Senate investigation had 
anything to do with injuring as opposed to strengthening our 
intelligence services were flat wrong.
    Senator Cornyn. Well, you disagree with them.
    Mr. Schwarz. No. They were wrong. I mean, the--I will give 
you one----
    Senator Cornyn. Well, do not--excuse me, Mr. Schwarz. So 
you disagree with Mr. Goldsmith's statement that the Church and 
Pike investigations resulted in what the Council on Foreign 
Relations study in 1996 called ``retroactive discipline.'' You 
disagree with that.
    Mr. Schwarz. The Pike investigation was not handled as well 
as the Church investigation, and the----
    Senator Cornyn. Well, would you answer my question? Do you 
disagree----
    Mr. Schwarz. Of course, I disagree with that.
    Senator Cornyn. Okay. I appreciate that you disagree, but--
--
    Chairman Leahy. Senator Cornyn----
    Senator Cornyn.--to say that it was flat wrong is a 
statement of your opinion and not necessarily fact.
    Chairman Leahy. Senator Cornyn, I do not mean to cut you 
off, but I kept to the 5 minutes myself. I let you go over 
time. But just simply because we want to finish so Ambassador 
Pickering can leave, and I wanted to have Senator Whitehouse, 
who has been here through the whole hearing, have a chance. 
Certainly I will go back to you if you have further questions.
    Senator Whitehouse. Thank you, Mr. Chairman.
    First of all, let me thank you for your leadership in 
holding this hearing. There are very, very important questions 
that have been raised and discussed here today, and you have 
assembled an extremely distinguished panel of witnesses here to 
help us consider them. I appreciate it very much.
    As the son and grandson of Foreign Service officers, I have 
some idea of what a Career Ambassador is, and so, Ambassador 
Pickering, first let me thank you for your extremely 
distinguished service to our Nation over many years, both in 
the military and in our Foreign Service. I would like to ask 
you first, because I know you have obligations elsewhere--and 
anybody else can chime in if they wish--the following question.
    We do not know yet what was done, and there has been 
considerable sentiment expressed by several of the witnesses 
here that it is in our interest for a whole variety of 
reasons--because it helps define who we are as a Nation, 
because it rebuilds our credibility and our relationships 
abroad, because it is a return to the rule of law, and so 
forth; that it is distinctly in the public interest for this 
information to come out.
    Let me ask you if you think there is a point where the 
conduct in question was so abhorrent to decent and civilized 
people in America and around the world that at that point the 
public interest that you have described reverses itself. And at 
some point if it is awful enough, does it become in our public 
interest as a Nation to try to keep this swept under the rug 
or, to use Mr. Schwarz's phrase that ``we must not flinch,'' 
must we not flinch irrespective of how painful this view will 
be for our country? Ambassador Pickering?
    Ambassador Pickering. Thank you, Senator Whitehouse. Thank 
you for your kind comments, and I had the privilege and honor 
of working with your father.
    My answer to your question is a very simple no. I do not 
believe that any degree of abhorrence, any degree of violation 
of values, principles, trust, laws, should be swept under the 
rug because it is so devastating for the reputation of the 
United States that it must be kept secret. In fact, the laws on 
secrecy do not provide for that in the first place.
    Second, it does not, in my view, hold water to believe that 
anything quite so notorious will ever remain secret in this 
town or in this country or in this world.
    And, third, if indeed it took place and was of such 
character as to put it into that category, then it is the duty 
and, indeed, the requirement of all branches of the U.S. 
Government to do everything in their power to make sure that it 
never happens again, which is the major purpose for the 
commission that I support and the major purpose for my being 
here to try to support that type of commission.
    Senator Whitehouse. Thank you, Ambassador Pickering.
    Attorney General Farmer, you and I were Attorneys General 
together. I am delighted to see you here with us, and I 
appreciate very much your distinguished career of public 
service.
    The issue that a commission is going to face, as a former 
prosecutor--and the Chairman is a former prosecutor, Senator 
Cornyn was Attorney General with all of us also. It is sort of 
a little reunion here today. There are obviously some 
hindrances to a prosecution based on this conduct. Reliance on 
the legal opinions of the OLC is one. Some sort of theory of 
equitable estoppel might be another. What reliance did to 
intent might be another. But in each of those areas, they are 
of limited protection.
    For instance, a mobster cannot paper over a racketeering 
conspiracy with his mob lawyer saying this is a legitimate 
business and make the risk of prosecution go away. The doctrine 
of equitable estoppel is disfavored against the Federal 
Government, almost never applied, ``rigid and sparing'' I think 
is the phrase used about when its application is permitted. And 
intent obviously, as we all know, is a question of fact, which 
is determined by the ultimate fact finder. So immunity is going 
to become a significant question, I think, in this.
    Should we try to build into--assuming that the commission 
should have some immunity--and I think most of the witnesses 
agree, if they think there should be such a one, that it should 
have power to grant immunity. How should the relationship 
between the commission and prosecutors be described in any 
legislation that might establish such a committee? Should they 
be required to coordinate with the Department of Justice? 
Should they be required to obtain the sign-off from the 
Attorney General before they grant immunity?
    You wanted to kind of steer clear of an active prosecution, 
not just on the question of immunity but on the question of not 
trampling the prosecutive strategy of the Department of 
Justice. How would you work that?
    Mr. Farmer. I think the issue of immunity is one that will 
be driven by the previous issue, which is what is the scope of 
the investigation going to be. And I think that is really, I 
think, the toughest issue that the Committee has to address. If 
the mission is drawn too broadly--and I would argue if it is 
drawn so broadly that it captures issues such as did these 
tactics make us less safe, as opposed to simply finding what 
the facts are, I think the commission will lose credibility 
because you will end up having to prove a negative.
    But assuming that the mission and the scope of the mission 
as defined by the Committee does have the commission focusing 
on individual cases, it seems to me that immunity is going to 
be an issue that has to be dealt with, and my suggestion would 
be that some form of coordination with the Justice Department 
would be appropriate. What the specifics of that coordination 
would be would depend, again, on how the scope of the 
commission's job is defined.
    Chairman Leahy. Thank you.
    Ambassador Pickering, I want to keep to our commitment and 
please feel free to leave, sir.
    Ambassador Pickering. Thank you.
    Chairman Leahy. On the immunity, Mr. Schwarz, to follow up 
a little bit on the question you were asked before, you noted 
in your testimony the Church Committee had the authority to 
grant immunity, but uncovered a great deal of illegal activity 
without ever exercising that authority. Am I sort of stating 
your testimony correctly?
    Mr. Schwarz. Yes, you are. We had hundreds of witnesses. 
Many of them admitted to acts that could have led to 
prosecution. Nobody asked for immunity. We had one witness who 
would only testify with a bag over his face because he had been 
an informer and did not want to----
    Chairman Leahy. I remember that one.
    Mr. Schwarz. Yes. But nobody asked for immunity, and I do 
not know quite why. I think high-level people do not want to, 
and low-level people, I think they understand they are not 
going to be prosecuted. And, frankly, I think it might be in 
the public interest for the Justice Department pretty quickly 
to come to a conclusion now about low-level people.
    I personally--again, I want to say what I said to Senator 
Cornyn. I do not think we should think about prosecuting CIA 
agents. I think that is going to turn out to be inappropriate, 
and if it were taken off the table early, that would be a good 
thing, too.
    Chairman Leahy. What I have found in some of the 
investigations that have taken place in the past, boy, we are 
going to get those corporals and sergeants, but we do not go 
above. And I really am always worried that in such an 
investigation there is an effort to go after what are really 
the minor players. And I think the Justice Department--I know 
they are working on just the issue you raise. And I am more 
concerned about those who made the decisions or the policies to 
basically say if the White House gives a directive to break the 
law, you are not breaking the law. From a prosecutor's point of 
view, it is awfully hard to say how you go after the person who 
then broke the law. But I would like to know why we had people 
who felt that somehow a President could be above the law.
    We saw what happened when a former President years ago, 
prior to my being in the Senate, said if the President does it, 
it is not breaking the law, and the reaction of this country by 
both Republicans and Democrats against such a thing, and the 
statement of any of us, including the three of us on the other 
side of this table, know, having been prosecutors, we do not 
have any provisions in our Constitution that puts some people, 
elected or otherwise, above the law. None of us are.
    Admiral Gunn, I discussed the damage to America's laws and 
values and to this country's image abroad. You have expressed 
similar sentiments, but you have a different perspective. You 
are a long-time military officer. You commanded ships. You were 
in the field. You were in combat. You led large numbers of 
military men and women. But you were also the Inspector 
General, so you have kind of seen it from all angles in the 
military.
    Based on your experience and expertise, what do you believe 
has been the effect of the past administration's justification 
of torture and other abusive treatment on this country's 
strategic and national security interests?
    Admiral Gunn. I would have to refrain from spreading my 
experience too broadly in my answer to this, but----
    Chairman Leahy. Well, let's put it this way: on the 
military morale and the safety of our military men and women. 
That stays well within your frame of reference. What about 
there?
    Admiral Gunn. Yes, sir, and I think the effect there has 
been profound. We have depended over the years on important 
alliances, military relationships, for decades. In my personal 
experience, members of the United States military have invested 
their own time and credibility and building relationships 
around the world with the militaries of other countries. I was 
thinking, as you were asking the question, about the 
relationship that I established while I was on active duty as a 
consequence of having certain jobs with the naval attaches who 
represent countries around the world of great importance to the 
United States, allies and friends. And when those attaches 
return to their home countries, there are no more solid 
advocates of American military positions and there are no 
better fans of American values and how those are translated 
into the way we do business than those people are who go back 
to responsible positions in their governments.
    I cannot think of a one with whom I have stayed in contact 
who has not told me over the last 6 or 7 years how difficult it 
is in his or her country to be a friend of America. And that, I 
think, sows the seeds of a serious problem that has to be 
overcome.
    In terms of the effect on the people at the point of 
capture, when detainees are taken, the folks who are charged in 
the high-pressure cauldron of dealing with detainees once they 
are within the custody of the United States, those kinds of 
high-pressure environments in which we ask young Americans to 
do their duty require, in my view--and I think in the view of 
most military officers--that there be this clear, unambiguous 
set of guidelines.
    What is more, young Americans do not join the military with 
the idea that they are going to be asked to violate their own 
principles and the principles of their country. And my personal 
view is that the things they were asked to do or allowed to do, 
whether they were in uniform, whether they were military people 
or who were in the CIA, violated their own principles in a way 
that has added dramatically to their stress and caused them to 
suffer many of the same kinds of consequences personally that 
people who have been involved in street combat have suffered 
under.
    Chairman Leahy. My youngest son is a former marine, and we 
have talked about this at great length. And without putting him 
on the spot, he said exactly the same thing. It was drilled 
into him--a lot of things were drilled into him in his basic 
training, but that was one of the things--and, again, when he 
was preparing to be deployed for Desert Storm.
    Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman.
    Mr. Rivkin, Admiral Gunn suggests that when it comes to the 
product of a truth commission, that such a truth commission, 
its byproduct will actually improve cooperation between us and 
our allies when it comes to gathering and sharing intelligence 
and defeating a common enemy when it comes to Islamic 
extremism. Do you agree that such a commission would improve 
intelligence cooperation among allies? Or do you think it is 
more likely to make our foreign allies more skittish when it 
comes to these matters?
    Mr. Rivkin. I think it is the latter. I do not see how 
going through another self-referential and self-absorbed 
exercise that would not lead to any kind of national consensus 
but basically would dwell at great length on our alleged sins 
would improve our relations with our allies and, by the way, we 
are all entitled to our opinions, but I fundamentally disagree 
with the narrative that has been portrayed here of the Bush 
administration's alleged misdeeds. Yes, mistakes were made. 
Yes, some bad things happened. But compared with the historical 
baseline of past wars, the conduct of the United States in the 
last 8 years, Senator Cornyn, has been exemplary measured by 
any objective indicia of misdeeds, eg abuse of detainees per 
thousand captured, excessive use of force per thousand troops 
in the field, etc. So I do not see that at all.
    But, again, to me--and I am taking the liberty of going 
beyond your question--it does not matter how you assess the 
projected policy benefits of a commission. If we take the 
Constitution seriously, if we take our political culture 
seriously, just like critics argue that there are some things 
you should not do in terms of torturing people, no matter what 
utilitarian benefits it may have, you do not outsource law 
enforcement; you do not warp the constitutional fabric. That is 
not the right thing to do. That is a fundamentally wrong thing 
to do. So to me, even if all sorts of huge policy benefits are 
going to flow from this truth commission, this is just not what 
we are supposed to do as a country.
    Senator Cornyn. Admiral Gunn, to give you a chance to 
respond, since I referred to your testimony, you said it is the 
responsibility of the Commander in Chief and of Congress to 
ensure and demand that the behavior of Americans toward those 
in custody complies with the Geneva Conventions and with the 
highest standards dictated by international conventions on 
detainee treatment. I hope you would agree with me that 
Congress has at least played some role in trying to deal with 
these subjects. For example, I mentioned the Detainee Treatment 
Act, which we passed and was signed by the President in 2005 in 
the wake of the Supreme Court's decision in Hamdan v. Rumsfeld. 
Of course, we also passed the Military Commissions Act to 
create a tribunal where some of these detainees could actually 
be tried.
    I understand that people may agree or disagree with the 
wisdom of those individual pieces of legislation. But wouldn't 
you agree with me that Congress has been very much involved in 
oversight into these issues? And I am just curious why it is 
you believe that it would now be necessary for Congress and the 
executive branch to, in effect, delegate our investigative 
function to an unaccountable so-called truth commission.
    Admiral Gunn. Yes, sir. Well, there are a number of 
questions there, and I certainly agree that Congress has been 
involved and has done things that have helped to ameliorate the 
situation. And in some cases, Congress has tried to do things 
that were--where the efforts were thwarted by the President. 
The 2005 amendment that Senator McCain advocated, and actually 
was the nucleus around which our group of retired flag and 
general officers organized in order to support him in that 
effort, was successful in Congress and not successful at the 
White House.
    Do not get me wrong when I talk about what I think the 
Government as a unit, both executive and the legislative 
branch, owe to the people in the field. The collective effect 
of what is done here must be that the people in the field 
understand their duty and their obligations entirely and do so 
in a context that allows them, when the utmost pressure is 
applied, to perform in ways that we are proud of and they are 
proud of. That has been missing in very important ways 
recently.
    To the issue of whether we should have a commission of a 
particular form or not, I am advocating not a special form 
because I have no informed legal opinion on the various 
approaches that might be used. I am advocating that would get 
to the bottom of things and that at the end of the day we 
establish what went wrong, and what is sort of missing in the 
conversation is that the same inquiry could identify what went 
right. I mean, that is a feature of the kinds of inquiries and 
investigations that I referred to in my testimony and also as I 
spoke before.
    The military works very hard to understand what went well 
so that we can reinforce that, as well as what went wrong and 
how we can remedy that. And I suggest that maybe more emphasis 
on the commission's ability to identify the good things might 
blunt some of the criticism and concern about its solely 
focusing on errors.
    Senator Cornyn. Thank you, Mr. Chairman. My time is up.
    Chairman Leahy. Thank you, Senator.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Mr. Rivkin, you raise a sort of gallery of horribles of the 
things that might go wrong with such a commission. Let me ask 
you just to sort of narrow the point. If you assume that the 
purpose of this commission is advisory and policy only, if you 
assume that criminal law enforcement is properly cabinned then 
the executive branch, as it should be, if you assume that we 
set it up so that its coordination with law enforcement on 
issues like immunity is properly coordinated so that it does 
not intrude into that function, and if it is set up not as you 
suggest as a private entity but, rather, in the proper exercise 
of delegated congressional oversight authority, do you still 
oppose the commission even in the absence of the parade of 
horribles that you suggest?
    Mr. Rivkin. Thank you for your question, Senator 
Whitehouse. With respect, this assumes too much, and let me 
unpack it.
    To me, a law enforcement function has a variety of aspects, 
as you well know. Having a situation where the ultimate 
decision to proceed with an indictment, bringing the case 
before a grand jury, and proceeding with a prosecution, is 
reserved to the Department of Justice, and I am sure that would 
be the case. This is still not a cure for the commission.
    Senator Whitehouse. Nobody is suggesting otherwise.
    Mr. Rivkin. Right, but to me that is not enough. I can give 
you at least several examples where other aspects of law 
enforcement function--namely, deciding as a threshold 
determination--which is why I mentioned the controversy about 
the alleged loosening of threshold determinations--whom to 
investigate, particularly if you are talking about a small 
group of easily----
    Senator Whitehouse. We do that in Congress every moment.
    Mr. Rivkin. But you have the right, with all due respect, 
Senator, to do that in the exercise of your legislative and 
oversight function. The Constitution allows----
    Senator Whitehouse. And we usually have a right to delegate 
it.
    Mr. Rivkin. No, I do not believe you do have this right.
    Senator Whitehouse. You do not believe that the 
congressional oversight function is delegable?
    Mr. Rivkin. I do not believe that the congressional 
oversight function is readily delegable----
    Senator Whitehouse. ``Readily'' is a big hedge. Do you 
believe it is delegable or not?
    Mr. Rivkin. To a private commission, I do not. You 
certainly can organize yourself----
    Senator Whitehouse. Well, now you have used another hedge 
word. You have said ``a private commission.'' That is not a 
word that I used. Assume that it is delegated to a public, 
properly appointed commission that is exercising delegated 
congressional authority.
    Mr. Rivkin. Appointed in accordance with the Appointments 
Clause? That would make a huge difference. Appointed in a sense 
that you and members of the minority choose people and the 
President appoints some people, no.
    If you could configure a commission in a way that makes it 
an extension of an Article I branch, I would not have 
fundamental problems with it. I do not see how that is 
practicable or possible. And you can call it public, but I do 
not see how you can delegate your oversight responsibilities.
    But consider another question. If the real intent--and, 
again, I hate to sound trite, but if it talks like a duck and 
walks like a duck, whether it is called a policy exercise or 
not--even today we have heard several times from my colleagues 
on this panel about the need to come up with criminal 
prosecutions. What this commission does, basically, it comes up 
with a bunch of files, the kind of things that a Public 
Integrity Section, a National Security Section, the U.S. 
Attorney's Office does, on 12 or 14 people and then passes the 
buck to the Department of Justice in the public spotlight.
    I would submit to you that this approval fundamentally 
subverts the most basic constitutional protections, and with 
respect, if this was contemplated in a different political 
context, every law professor I know would be screaming about it 
in terms of what a horrible violation of civil liberties it is. 
Okay?
    Moreover, this commission----
    Senator Whitehouse. Every law professor you know would be 
screaming about this?
    Mr. Rivkin. Yes. If it was done in a context of a 
conservative----
    Senator Whitehouse. Oh, if. OK. I am sorry.
    Mr. Rivkin. No. If it was done in a context of a 
conservative administration----
    Senator Whitehouse. I am trying to get an unhedged phrase 
out of you during the course of this.
    Mr. Rivkin. I will give you an example. My colleague 
Professor Rabkin mentions in his prepared testimony, a 
hypothetical: the Bush administration, in the aftermath of the 
9/11 disaster, suggesting a private commission to investigate 
certain organizations in this country, charitable and 
otherwise, to look at the nefarious influence and the extent to 
which they made this attack possible, with a view toward 
possible prosecutions through appropriate channels. Do you not 
think that most of the law faculties in this country would be 
up in arms about this? The fact that there are Bush 
administration officials here does not make any difference. 
They are Americans. They are entitled to the full panoply of 
constitutional rights. You do not get--and the fundamental 
point that I make about----
    Senator Whitehouse. So organized criticism of past 
administration officials is an offense against their civil 
liberties?
    Mr. Rivkin. Organized criticism in the policy context is 
not.
    Senator Whitehouse. I thought that was another thing that 
you signed up for when you took these jobs.
    Mr. Rivkin. Organized criticism in the context of looking 
at individual criminal culpability----
    Senator Whitehouse. No, no, no. No, no, no. There you go 
again. We just discussed that this would not be looking at 
individual culpability. My assumption at the very beginning of 
our discussion was that we had properly cabinned the criminal 
law enforcement role.
    Mr. Rivkin. And I said, with respect, that that assumes too 
much. There is no way to cabin that.
    Senator Whitehouse. Of course there is.
    Mr. Rivkin. Pray tell how are you going to come up, if you 
are a member of this commission, with an analysis of--and I do 
not want to use names--how two or three members of the Bush 
administration allegedly violated, for example, a statute 
against torture, which is a criminal statute, as you very well 
know. How would you exactly write this up in a way that does 
not come to conclusions about individuals? Because if you say 
Mr. A committed torture--and, by the way, if you say it 
properly, not only in terms of the physical acts but also 
adequate mens rea--that reads like a document that an Assistant 
U.S. Attorney prepares to send to his boss to get a decision 
whether or not to prosecute. How else would you write it up?
    Senator Whitehouse. Well, my time has expired, but I would 
suggest, Mr. Rivkin, that until you know and we all know what 
was actually done under the Bush administration, you not be so 
quick to throw other generations of Americans under the bus and 
assume that they did worse.
    Chairman Leahy. Mr. Rabkin, I spoke to you earlier, and I 
said if you wanted to take a minute or so to add to anything I 
had to say, please feel free to do so. You were invited by the 
other side of the aisle, but they have all left. They have all 
left, and so this side of the aisle will give you a chance to 
say something further, if you want.
    Mr. Rabkin. Just very briefly, I think one difficulty that 
we have had this morning is that we do not have a bill in front 
of us, so we are speaking about a hypothetical commission, and 
we do not have a very clear notion of----
    Chairman Leahy. But isn't that something, one of the 
reasons why you have hearings, before you write a bill?
    Mr. Rabkin. Yes. I am not criticizing anyone.
    Chairman Leahy. At least that in my 36 years here seems to 
be the way we do it.
    Mr. Rabkin. I am not criticizing anyone for this. I am just 
saying it is somewhat difficult to address a proposal that is 
at this point not well defined, and I wanted to just emphasize 
this before we end, which is it is one thing to try to find 
specific facts--What was the worst thing done to someone in 
American custody? I am not sure that is secret, but if that is 
what we are talking about, I think that is a different thing 
from making an assessment of what were the causes of this, what 
were the consequences of this. Then you are really getting into 
a statement about how foreign policy should have been 
differently conducted or how security policy should have been 
differently conducted. And I think that is almost certainly 
asking too much of a commission.
    And putting aside whether there are constitutional 
difficulties or civil liberties difficulties, just ask 
yourself: Is it reasonable to think that any group of experts 
could speak to the country not on the specific findings of fact 
but on how we should assess this? And the country nods and 
says, ``That is right.'' I think we are not that kind of 
country.
    Chairman Leahy. So if somebody--you think that we cannot 
find--if somebody at the highest level--the White House, for 
example--directs people to break the law saying this is an 
exigent situation, whether it is on wiretapping, various search 
and seizure matters, putting people's names into databases, 
secret databases where their jobs are then affected, their 
ability to get on airplanes is affected, and so forth, and that 
is done in violation of specific statutes and the Constitution, 
you do not think we should at least ask that question, who did 
it and why?
    Mr. Rabkin. Oh, absolutely, and if you think that there 
were legal violations, then I think there should be U.S. 
Attorneys asking those questions and possibly filing 
indictments. I am not quarreling with that at all.
    Chairman Leahy. Well, we have asked those questions. Of 
course, a lot of it was stonewalled. We are now getting the 
answers, and we are realizing, especially with the OLC opinion 
that has been released, we are beginning to see why, why we 
were still involved, because some of them, I think by both 
conservative and liberal commentators who have looked at them 
and said that they were completely a misstatement of the law. 
That is all we are asking for. Who said break the law and why? 
And was it broken?
    I mean, the ramifications, especially in the digital age, 
are amazing. We have seen in just some of the things that have 
become more publicized when a year-old child, the parents 
bought their Super Saver fares to take the child with them to 
visit relatives, and the child cannot get on the airplane 
because they are on a--the child, not the parents but the child 
is on a terrorist watch list. They missed their plane. They 
have to get a passport, file for a passport, get a passport to 
prove this year-old child is not some 45-year-old terrorist.
    The longest serving member of this Committee, Senator 
Edward Kennedy, half a dozen or a dozen times was told he could 
not board a flight he has been taking for 40 years because he 
is on a watch list. President Bush even called him to 
apologize. He said he appreciated the apology, but it was not 
the President's fault. He just wanted somebody to get him off 
the list, and they could not.
    I mean, some of these things worry us if from illegal 
wiretaps, for example, your name gets on one of these lists, if 
from an illegal search and seizure your name gets on some of 
these lists, we ought to at least know who came up with the 
bright idea.
    Mr. Rabkin. Could I just respond to this?
    Chairman Leahy. Of course.
    Mr. Rabkin. I think what you have just been talking about 
almost certainly should be reviewed and reconsidered. I am not 
at all questioning the validity of your criticism or concern.
    What I am concerned about is that you take one disputed 
policy or one series of mishaps or even abuses, unlawful acts 
from this area; you take another example from there; you take a 
third example from there. What you just talked about seems to 
me to have nothing at all in common with allegations of----
    Chairman Leahy. Well----
    Mr. Rabkin. Let me just finish--allegations of torture at 
Guantanamo.
    Chairman Leahy. But, Mr. Rabkin, we have not even got into 
the torture part. I am going through a series of things that 
were all----
    Mr. Rabkin. I understand, but if you have----
    Chairman Leahy. Let me finish. Let me finish.
    Mr. Rabkin. Sure.
    Chairman Leahy. If you violate the Constitution in wiretaps 
and specific statutes, if you violate the law in not using the 
FISA Court, something set up after the Church Committee's 
hearings, if you violate the law on torture condoning things 
that we have actually prosecuted other people for doing, if you 
then have people come before the Congress and lie about it, 
they may be all individual things, but they are all part of the 
same mix. And what I want to do--others have said, ``Let's turn 
the page.'' Fine. But read the page before you turn it. And it 
is a concern to me that some want to ignore that.
    Now, I am well aware of hearings and investigations going 
on in other committees, and, of course, we will continue to ask 
questions in this Committee. But what only worries me is I want 
the American people to see something that is outside of the 
political arena, like the 9/11 Commission or others, to find 
out what is going on.
    Mr. Rabkin. If you bundle all of these disparate things 
together and you do, as people used to say in a different 
context, connect the dots, you can draw a very, very disputable 
picture, because you are asking, ``What was the root cause of 
all of these disparate things? '' and the root cause will come 
down to something like ``the general orientation of the Bush 
administration was lawless'' or ``they were obsessed with 
terrorism.'' And when you get to that level of generalization, 
I think it is bound to be extraordinarily controversial. And 
the idea that this will reconcile the country, this will bring 
us all together, this will establish a consensus, the more 
general it is, the more hopeless it is----
    Chairman Leahy. Mr. Rabkin, you stated what the conclusion 
is going to be. You have far more experience than I. I would 
like to ask the questions and see what the conclusion is going 
to be.
    With that, we will--go ahead, Mr. Rivkin.
    Mr. Rivkin. Thank you for your indulgence----
    Chairman Leahy. Another one of the Republican witnesses. I 
am trying to be fair to you even though the Republicans who 
asked you to be here did not want to bother to stay and listen. 
But please go ahead.
    Mr. Rivkin. You are exceptionally fair, and I appreciate 
it. But I just wanted to say briefly that the very examples you 
used to me clearly attest that this commission cannot 
fundamentally escape passing assessments and making judgments 
about criminal liability of a small circle of people. And, with 
respect, that is what the executive branch can do through 
proper channels; that is what you can do operating in the 
Article I oversight. That is not what a commission can do. And 
we can--even if we agreed on the portrayal of the problem, the 
genius of the Constitution is that no matter how pressing and 
compelling the need, you cannot proceed through 
constitutionally improper channels. There has never been a case 
in American history where a commission was set up with this 
heavy of a prosecutorial burden. It would be fundamentally 
illegitimate, no matter how strongly you believe it would have 
a curative effect.
    Chairman Leahy. Was the 9/11 illegitimate? Was the 
Watergate hearing----
    Mr. Rivkin. Of course not. The 9/11 Commission looked at--
the worst thing that would have happened is some agency got 
slammed, their budget got cut, bureaucratic chairs got 
reshuffled. The 9/11 Commission had no mandate or interest in 
going after people. What, you were incompetent in how you 
analyzed intelligence? Would that lead to an indictment?
    The circumstances of how this dialog has been driven 
inescapably make it a criminal process.
    Chairman Leahy. Mr. Rivkin, I am trying to be fair to you. 
As I said, the folks who invited you here did not stay to ask 
you the questions. I have been trying to keep it open for you. 
Frankly, let me--and I will have the last word, one of the 
advantages of being Chairman, and we will keep the record open 
if people want to add to it.
    If criminal conduct occurred, this Senator wants to know 
about it. Now, I began my public career as a prosecutor. I am 
trying to give the ability to find out if criminal conduct 
occurred so it would not occur again. That does not necessarily 
mean there is even going to be prosecution for it. But if 
crimes are committed, I do not think we sweep them under the 
rug.
    We stand in recess.
    [Whereupon, at 12:05 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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