[Senate Hearing 111-324]
[From the U.S. Government Publishing Office]




                                                       S. Hrg. 111-324

 
``WHAT WENT WRONG: TORTURE AND THE OFFICE OF LEGAL COUNSEL IN THE BUSH 
                            ADMINISTRATION''

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

                                HEARING

                               before the

        SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                              MAY 13, 2009

                               ----------                              

                          Serial No. J-111-22

                               ----------                              

         Printed for the use of the Committee on the Judiciary

``WHAT WENT WRONG: TORTURE AND THE OFFICE OF LEGAL COUNSEL IN THE BUSH 
                            ADMINISTRATION''



                                                        S. Hrg. 111-324

``WHAT WENT WRONG: TORTURE AND THE OFFICE OF LEGAL COUNSEL IN THE BUSH 
                            ADMINISTRATION''

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

                                HEARING

                               before the

        SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 13, 2009

                               __________

                          Serial No. J-111-22

                               __________

         Printed for the use of the Committee on the Judiciary




                  U.S. GOVERNMENT PRINTING OFFICE
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
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          LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
RON WYDEN, Oregon
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel
                                 ------                                

        Subcommittee on Administrative Oversight and the Courts

               SHELDON WHITEHOUSE, Rhode Island Chairman
DIANNE FEINSTEIN, California         JEFF SESSIONS, Alabama
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
BENJAMIN L. CARDIN, Maryland         LINDSEY O. GRAHAM, South Carolina
EDWARD E. KAUFMAN, Delaware
                Sam Goodstein, Democratic Chief Counsel
                  Matt Miner, 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......................................................    10
    preapred statement...........................................   254
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     8
Graham, Hon. Lindsey, a U.S. Senator from the State of South 
  Carolina.......................................................     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     6
    preapred statement...........................................   269
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................     1
    preapred statement...........................................   559
    statement of views...........................................   561

                               WITNESSES

Addicott, Jeffrey F., Professor, Director, Center for Terrorism 
  Law, St. Mary's University School of Law, San Antonio, Texas...    17
Luban, David, Professor of Law, Georgetown University Law Center, 
  Hyattsville, Maryland..........................................    11
Soufan, Ali, Chief Executive, The Soufan Group LLC, New York, New 
  York...........................................................    22
Turner, Robert, Professor, Center for National Security Law, 
  University of Virginia School of Law, Charlottesville, Virginia    19
Zelikow, Philip, White Burkett Miller Professor of History, 
  University of Virginia, Charlottesville, Virginia..............    14

                         QUESTIONS AND ANSWERS

Responses of David Luban to questions submitted by Senator 
  Whitehouse.....................................................    47

                       SUBMISSIONS FOR THE RECORD

Addicott, Jeffrey F., Professor, Director, Center for Terrorism 
  Law, St. Mary's University School of Law, San Antonio, Texas, 
  statement......................................................    51
Alexander, Matthew, statement....................................    66
Berman, Emily, Counsel and Katz Fellow, Brennan Center for 
  Justice, New York, New York, statement.........................    70
Bradbury, Steven, Senior Deputy General Counsel, Department of 
  Justice, Washington, D.C:
    Memorandum for Alberto R. Gonzales, August 1, 2002...........    84
    Memorandum for John A. Rizzo, May 10, 2005...................   134
    Memorandum for John A. Rizzo, May 10, 2005...................   154
    Memorandum for John A. Rizzo, May 30, 2005...................   200
Clark, Kathleen, Law Professor, Washington University, St. Louis, 
  and Congressional and Administrative Law Clinic, Washington, 
  D.C., statement................................................   240
Cooper, Charles J., Cooper & Kirk PLLC, Washington, D.C., 
  statement......................................................   245
Kleinman, Steven M., Colonel, U.S. Air Force, statement..........   255
Levin, Daniel, Acting Assistant Attorney General, Washington, 
  D.C., letter and attachment....................................   271
Luban, David, Professor of Law, Georgetown University Law Center, 
  Hyattsville, Maryland, statement...............................   290
Malinowski, Tom, Director, Washington Advocacy, Human Rights 
  Watch, New York, New York, statement...........................   296
Massimino, Elisa, CEO and Executive Director, Human Rights First, 
  Washington, D.C., statement....................................   304
Paulsen, Michael Stokes, Distinguished University Chair & 
  Professor of Law, University of St. Thomas, Minneapolis, 
  Minnesota, statement & attachment..............................   314
Petraeus, David H., General, U.S. Army, letter...................   403
Powers, Richard C., Assistant Director, Office of Congressional 
  Affairs, Department of Justice, Federal Bureau of 
  Investigation, Washington, D.C., letter and attachment.........   404
Ritz, Mike, former U.S. Army Interrogator, letter................   501
Shane, Peter M., and Jacob E. Davis, II, Chair in Law, Ohio State 
  University, Noritz College of Law, Columbus, Ohio, statement...   506
Soufan, Ali, Chief Executive, The Soufan Group LLC, New York, New 
  York, statement................................................   514
Turner, Robert, Professor, Center for National Security Law, 
  University of Virginia School of Law, Charlottesville, 
  Virginia, statement............................................   527
Yoo, John C., Deputy Assistant Attorney General, Department of 
  Justice, Washington, D.C:
    Letter to Alberto R. Gonzales................................   575
    Memorandum for William J. Haynes II..........................   581
Zelikow, Philip, White Burkett Miller Professor of History, 
  University of Virginia, Charlottesville, Virginia, statement...   662


 WHAT WENT WRONG: TORTURE AND THE OFFICE OF LEGAL COUNSEL IN THE BUSH 
                             ADMINISTRATION

                              ----------                              


                        WEDNESDAY, MAY 13, 2009

                                       U.S. Senate,
   Subcommittee on Administrative Oversight and the Courts,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 10 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Sheldon 
Whitehouse, Chairman of the Subcommittee, presiding.
    Present: Senators Whitehouse, Leahy, Feinstein, Feingold, 
Durbin, Cardin, Kaufman, Graham, and Coburn.

 OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR 
                 FROM THE STATE OF RHODE ISLAND

    Chairman Whitehouse. Good morning. The hearing will come to 
order. I will make some brief opening remarks. The 
distinguished Acting Ranking Member will make some remarks. The 
distinguished Chairman will make some remarks. Chairman 
Feinstein will make some remarks. And if anybody else wishes to 
make some remarks, I would like to try to get opening remarks 
closed before the 10:30 vote begins, and then we will come back 
and go to the witnesses. I thank everyone for being here.
    Winston Churchill said, ``In wartime, truth is so precious 
that she should always be attended by a bodyguard of lies.'' 
The truth of our country's descent into torture is not 
precious. It is noxious; it is sordid. But it has also been 
attended by a bodyguard of lies. This hearing is designed to 
begin a process that will expose some of those lies, that will 
prepare us to struggle with that sordid truth, and that will 
examine the battlements of legal authority erected to defend 
that truth and its bodyguard of lies.
    The lies are legion.
    President Bush told us ``America does not torture'' while 
authorizing conduct that America has prosecuted--both as crime 
and war crime--as torture.
    Vice President Cheney agreed in an interview that 
waterboarding was like ``a dunk in the water,'' when it was 
used as a torture technique by tyrannical regimes from the 
Spanish Inquisition to Cambodia's Killing Fields.
    John Yoo told Esquire Magazine that waterboarding was only 
done ``three times,'' when public reports now indicate that two 
detainees were waterboarded 83 and 183 times. About Khalid 
Sheik Mohammad, reportedly waterboarded 183 times, a former CIA 
official had told ABC News, ``KSM lasted the longest under 
waterboarding, about a minute and a half, but once he broke it 
never had to be used again.'' That, too, was a lie.
    We were told that waterboarding was determined to be legal, 
but were not told how badly the law was ignored, bastardized, 
and manipulated by the Department of Justice's Office of Legal 
Counsel, nor were we told how furiously Government and military 
lawyers rejected the defective OLC opinions--but were ignored.
    We were told we could not second guess the brave CIA 
officers who did this, and now we hear that the program was led 
by private contractors with a profit motive and no real 
interrogation experience.
    Former CIA Director Hayden and former Attorney General 
Mukasey told a particularly meretricious lie: that the Army 
Field Manual restrains abuse by naive young soldiers but is not 
needed by the experienced experts at the CIA.
    The Army Field Manual is a code of honor, as reflected by 
General Petraeus' May 10, 2007, letter to the troops, which I 
ask unanimous consent to have admitted as an exhibit to this 
hearing. Without objection.
    Moreover, military and FBI interrogators such as Matthew 
Alexander, Steve Kleinman, and Ali Soufan are the true 
professionals. We know now that the ``experienced 
interrogators'' referenced by Hayden and Mukasey had little to 
no experience. In fact, the CIA cobbled its program together 
from techniques used by the SERE program, designed to prepare 
captured U.S. military personnel for interrogation by tyrant 
regimes who torture to generate propaganda. To the proud, 
experienced, and successful interrogators of the military and 
the FBI, I believe Judge Mukasey and General Hayden owe an 
apology.
    Finally, we were told that torturing detainees was 
justified by American lives saved--saved as a result of 
actionable intelligence produced on the waterboard. That is far 
from clear. Nothing I have seen convinces me this was the case. 
FBI Director Mueller has said he is unaware of any evidence 
that waterboarding produced actionable information. The example 
of Zubaydah providing critical intelligence on Khalid Sheikh 
Mohammed and Jose Padilla, often given, is false, as the 
information was obtained before waterboarding was even 
authorized.
    And there has been no accounting of wild goose chases our 
national security personnel may have been sent on by false 
statements made by torture victims just to end the agony; no 
accounting of intelligence lost if other sources held back from 
dealing with us after our descent to what Vice President Cheney 
called ``the dark side''; no accounting of the harm to our 
national standing or our international goodwill; no accounting 
of the benefit to our enemies' standing and goodwill--
particularly as measured in militant recruitment or 
fundraising; and no accounting of the impact this program has 
on information sharing with foreign governments, whose laws 
prohibit the type of treatment and detention policies the 
administration had enacted.
    I could relate other lies, a near avalanche of falsehood, 
on the subject of torture and what we have been told about 
interrogation techniques, but I suffer a disability: I am a 
legislator. Legislators have no authority to declassify. Our 
Senate procedure for declassification is so cumbersome that it 
has never been used. All of the ``declassifiers'' in Government 
are executive branch officials. And the Bush administration 
knew this. So they spouted their rhetoric, again much of it 
outright false and much of it misleading; and though many of us 
in Congress knew it to be false, we could not reply. It is 
intensely frustrating.
    We have been told you should not criminalize conduct by 
prosecuting it. You criminalize conduct by making it a crime 
under the law of the land at the time the crime was committed. 
Prosecution does not criminalize anything; prosecution 
vindicates the law in place at the time, based on the facts 
that are admissible as evidence.
    We have been told you should not prosecute people who 
followed lawful orders or relied on proper legal authorities or 
in good faith offered their best legal advice. But those are 
the questions, aren't they, and not the answers?
    This is the first of what I hope will be a series of 
hearings looking into these questions. I hope we will soon be 
provided the Department of Justice Office of Professional 
Responsibility's report on its investigation of the Office of 
Legal Counsel and hold more thorough hearings in the wake of 
that.
    Let me conclude by saying what a very sad day it is for 
America and for the Department of Justice that there should be 
such a thing as an OPR investigation into the United States 
Department of Justice Office of Legal Counsel and how loathsome 
it is what a few men did to bring this upon that office.
    I would like to thank Chairman Leahy for allowing me to 
hold this hearing. No one has worked harder and cares more 
about this issue than he does. I also want to acknowledge the 
tireless work of Senator Feinstein, my Chairman on the 
Intelligence Committee, who is leading its detailed 
investigation into the Bush administration's interrogation and 
detention program. I applaud her for her efforts to get to the 
bottom of this shameful period of our country's history.
    Today, we will hear from a distinguished panel of witnesses 
who will help us shed light on this topic. I thank them for 
their appearance this morning. I remind them all about 
unauthorized disclosure of classified information. I want to 
make a particular note about our last witness, Ali Soufan. Mr. 
Soufan interviewed al Qaeda terrorists and went undercover 
against al Qaeda. Threats against him have been documented. We 
ask the press to respect the security procedures we have in 
place and avoid photographing his face.
    Senator Graham, any statement you would like to give?

STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE STATE 
                       OF SOUTH CAROLINA

    Senator Graham. Thank you, Mr. Chairman. Well, I really do 
not know what to say or how to begin other than the difference 
between the nobility of the law and a political stunt may be 
soon evident one way or the other, and I do not know whether 
this is actually pursuing the nobility of the law or a 
political stunt. We will let the American people decide. But I 
do not question the Chairman's motivation. He is a very fine 
man, and I think he is rightly disturbed by some of the 
decisions that were made in the past, and so have I been.
    But I guess if we are going to talk about evil, we need to 
talk about it more than just the last administration's policy 
decisions about trying to protect the Nation or to put in 
context what we are facing and who we are fighting--people who 
really could care less about any law anywhere. And would we 
have this hearing if we were attacked this afternoon? Do you 
want to have a bunch more hearings about what happened in the 
past? If one of our national treasures were attacked tomorrow, 
would we have more hearings? Or would we focus on repairing the 
damage and staying ahead of the enemy?
    If we are going to find out who did what when, we need to 
find out who was told about it and when they were told about 
it. And if we are going to really find out what happened, it 
seems to me we would want to know what worked and what did not. 
So I am calling today for any memos that show information that 
was gathered from any enhanced interrogation technique, that 
that be made available to the Committee so we can look and see 
what worked. That is only fair.
    And you have got to remember we are talking about this now 
many years after 9/11, and the people that we are judging woke 
up one morning, like the rest of America, and said, ``Oh, my 
God. What is coming next? ''
    It is not really fair to sit here in the quiet peace of the 
moment and put ourselves in such a holier-than-thou position, 
because you do not have to make that decision. They did. And I 
have been a criminal lawyer, defense and prosecutor, for most 
of my adult life. I think I know the difference between a 
policy debate where I may disagree with the conclusion and a 
crime. The idea that you would read your political opponents 
into your crime makes no sense. The idea that you would seek 
advice from all corners of the Government in formulating policy 
and to call that a crime is dangerous.
    What happened on September 11, 2001, was unprecedented. It 
was the most vicious attack on our homeland by a foreign entity 
in the history of the Nation. Mr. Chairman, here is what I 
think happened.
    The Nation was rattled. The administration went on the 
offensive, and they looked at some statutes on the book as a 
way I would not have looked at it. They were very aggressive. 
They were going to make sure this did not happen again, and 
they tried to come up with interrogation techniques, evaluating 
the law in a way that I disagree with their evaluation. But 
there is no one iota of doubt in my mind that they were trying 
to protect the Nation.
    But they made mistakes. They saw the law many times as a 
nicety that we could not afford, so they took a very aggressive 
interpretation of what the law would allow, and that came back 
to bite us. It always does. But that is not a crime.
    What we have to understand as a Nation is that the fact 
that we embrace the rule of law is a strength and not a 
weakness. The fact that we will give our enemy a trial and they 
will not makes us better. The fact that our judgments are 
rendered based on evidence reviewed by an independent judiciary 
is a strength. Their kangaroo courts are not the model for the 
world. So I have tried over these many years to speak up in a 
way that I think is best for the Nation.
    As to the Army Field Manual, I think I have a pretty good 
understanding of it. I know why it exists. To say that is the 
only way you can interrogate someone within the law is not 
right. There should be interrogation techniques not on the 
Internet for our national security. And let us bring the CIA 
Director into this hearing. He has already testified if we 
caught a high-value target tomorrow, he would go to the 
President and ask for interrogation techniques not in the Army 
Field Manual to defend this Nation, but they would be lawful. 
Is he a criminal because he would do that? No. I think this 
administration's policy, at least through the CIA Director's 
sworn testimony, is that they would reserve unto themselves the 
ability to brief the Commander-in-Chief about a high-value 
target, and they would suggest techniques to the Commander-in-
Chief that were lawful that are not included in the Army Field 
Manual.
    So this idea that someone said the Army Field Manual is the 
only way you can lawfully interrogate somebody I completely 
disagree with. And to those who suggest it may not be the best 
tool available to the country, I totally agree with.
    Now, I do not know what Nancy Pelosi knew and when she knew 
it, and I really do not think she is a criminal if she was told 
about waterboarding and did nothing. But I think it is 
important to understand that Members of Congress allegedly were 
briefed about these interrogation techniques, and, again, it 
goes back to the idea of what was the administration trying to 
do. If you are trying to commit a crime, it seems to me that 
would be the last thing you would want to do. If you had in 
your mind and your heart that you are going to disregard the 
law and you are going to come up with interrogation techniques 
that you know to be illegal, you would not go around telling 
people on the other side of the aisle about it. You would not 
be getting legal advice. And the point of the matter is that 
they chose to ignore some pretty good legal advice. But is that 
a crime?
    So as we go forward, there is a purpose to everything. 
There is a reason people do what they do, and it will soon 
become evident, I think, over time the reason for these 
hearings. There is a lot going on in this world today, at home 
and abroad. And I wonder where this fits into the average 
American's hierarchy of needs right now.
    I have been on the Armed Services Committee where we did a 
very thorough investigation of these interrogation techniques 
and how they came about. The Levin report is a good one. It is 
there to be read. I will take a back seat to no one about my 
love for the law and the desire for my Nation to be a noble 
Nation. The moral high ground in this war is the high ground. 
It is not a location. The enemy we are fighting, Mr. Chairman, 
does not have a capital to conquer or a Navy to sink or an Air 
Force to shoot down. It is an ideological struggle, and the 
decisions made in the past have had two sides. We did get some 
good information that made us safer, but we also hurt 
ourselves. We damaged our reputation, and we did some things 
that I think were not going to make us safer in the long run if 
we kept doing them.
    So I am ready to go forward. Waterboarding has never been 
an appropriate technique for me, and if there are any military 
members listening out there today, you will be prosecuted if 
you waterboard a detainee in your charge. Under the Uniform 
Code of Military Justice, it would be a violation. As to other 
agencies, please understand that in 2001, 2002, and 2003, the 
Geneva Convention did not apply to the war on terror--only in 
2006. The war crimes statute that existed in 2001 was a joke. 
It codified the Common Article 3 standard which nobody could 
adhere to because it is so vague in terms of the notice it 
would give to someone to comply.
    We have today I think the best war crimes statute on the 
books of any nation in the world that would outlaw a grave 
breach of the Geneva Convention. We passed that in a bipartisan 
fashion. We have policies now, the Detainee Treatment Act, the 
McCain amendment, and other policies that give our people who 
are fighting this war the guidance they need to make sure they 
understand what is in bounds and what is not. And we have a new 
President.
    Now, I would conclude with this: President Obama, in my 
opinion, has made some very sound decisions regarding 
Afghanistan and Iraq. I had a meeting yesterday with the 
administration about what to do with Gitmo detainees, how we 
can deal with these detainees in a way that adheres to our 
values and protects our Nation. I want to be on record as 
saying that I think the administration has taken a very 
responsible view of Afghanistan, Iraq, and Guantanamo Bay. And 
it is my belief that they may ask for another continuance 
regarding military commission trials so that the Congress and 
the administration can sit down and work out what to do with 
these detainees as we move forward. If that request is made, I 
will applaud it.
    I do appreciate what the President is trying to do to 
repair our image and to create rules for the road as we go 
forward. But as we look back--I will conclude with this: As we 
harshly judge those who had to make decisions we do not have to 
make, please remember this: that what we do in looking back may 
determine how we move forward, and let us not unnecessarily 
impede the ability of this country to defend itself against an 
enemy who is, as I speak, thinking and plotting their way back 
into America.
    Chairman Whitehouse. Thank you, Senator Graham.
    Chairman Leahy and then Chairman Feinstein.

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

    Chairman Leahy. Well, thank you, Chairman Whitehouse.
    This is one of the most important hearings the Senate 
Judiciary Committee will hold this year. I have listened to my 
friend from South Carolina. I have listened to each of his 
several conclusions that he made during his opening statement. 
I also heard him speak of the nobility of the law. I would just 
urge Senators not to raise straw men and try to predetermine 
this hearing. Let us listen to the witnesses who are going to 
be testifying rather than raising hypotheses and facts really 
not in the record.
    I applaud Chairman Whitehouse for doing this. His own 
background as Attorney General and as a U.S. Attorney makes him 
eminently suited. I think it is one of the most important 
hearings we will have in the Judiciary Committee because it 
raises the question of how we got to a place where the 
Department of Justice's Office of Legal Counsel, an office that 
basically sets the standards for the whole Federal Government, 
came to write predetermined and premeditated legal opinions 
that allowed President Bush to authorize the torture of those 
in American custody and control--opinions that had to ignore 
our own laws, our own international agreements, and our own 
precedents as a Nation. From General George Washington's 
example during the Revolutionary War through the Civil War, the 
World Wars, Korea, and Vietnam, it was America that provided 
the model of a Nation that would not engage in such practices. 
It was America that led the world in the recognition of human 
dignity and human rights. And I think that the elite legal 
office at the Justice Department responsible for guiding the 
executive branch, and with the power to issue binding 
interpretations of law, so misused its authority is one of the 
fundamental breakdowns in the rule of law that dominated during 
the past 8 years.
    The recent release of four more Office of Legal Counsel 
memos, written by two former heads of the OLC, Jay Bybee and 
Steven Bradbury, demonstrate in excruciating detail the methods 
authorized and used on people in American custody. We will hear 
all about those. Shackling naked people from the ceiling, 
keeping them inside a small box with an insect, beating them 
repeatedly, and waterboarding--these are actions that we have 
rightly protested when they have been used against Americans by 
other countries.
    The purported legal justifications for the policies are 
disturbing. Some of the opinions use an ends-justify-the-means 
type of circular reasoning, saying that even though we would 
object if anybody ever did this to an America, it is OK for 
Americans to do that because we are Americans. It is not 
reasoning that stands up. Some seek to defend the use of these 
techniques by relying on hypertechnical interpretations that 
disregard the prohibitions in our laws. All seem posited on the 
idea that the President is somehow above the law or can 
override the law. Well, the rule of law in the United States 
means that no one is above the law--none of us as Senators, 
nobody in this room, and not the President of the United 
States.
    So Senator Whitehouse deserves applause for having this 
hearing and for own his commitment to the rule of law and to 
getting to the truth. I would like to go forward in a 
nonpartisan commission, as I have said before, but that is 
going to require support from both sides of the aisle, one that 
could get to all the truth of what happened.
    Two weeks ago, I invited Judge Jay Bybee to testify before 
the Senate Judiciary Committee. I did so after reading accounts 
in the Washington Post suggesting that he had expressed regrets 
regarding his work at the OLC. And then, in comments he sent a 
couple days later to the New York Times, he turned around and 
defended the same legal opinions--incidentally, legal opinions 
that have now been withdrawn. I invited him to come forward to 
tell the truth, the complete truth, before the Committee. Which 
Jay Bybee do we rely upon--the one who is in the press 1 day or 
the one who is in the press the next day? I ask, Mr. Chairman, 
if I could include in the record a copy of that letter to him.
    Chairman Whitehouse. Without objection.
    Chairman Leahy. Now, he has declined through his lawyers to 
testify before the Committee, I assume that he has no 
exonerating information to provide. I wish he would testify 
before us to help complete the record, and opining on why he 
refused, it is appropriate in this case because he has not done 
anything but maintain silence about it. He made a number of 
statements that certainly give his side. I would like to hear 
it all. He has talked to friends and employees, he has 
communicated to the press, and he has communicated through his 
lawyers to the Justice Department regarding the Office of 
Professional Responsibility's review of his actions while he 
was a Government employee in the Office of Legal Counsel. 
Apparently, the only people he will not explain his actions to 
are the people who granted him a lifetime appointment to the 
Federal bench--the American people through their elected 
representatives in the Senate.
    So how we approach the mistakes of the past and whether we 
choose to learn from them is going to shape our way forward. 
Accountability can help restore our reputation around the 
world. But we have to restore the trust of the American public 
in our Government. I am a proud American. I think all 
Vermonters are. I am proud of the history of this country. I am 
proud of the times when our country has upheld the rule of law. 
I am also proud of the fact that the United States of America, 
when it has made mistakes, has not been afraid to admit those 
mistakes and learn from them and pledge not to make the same 
mistakes again. That is why we have this hearing, and that is 
why the American people deserve to know what mistakes were made 
and what we intend to do about it.
    So, Senator Whitehouse, I applaud you for holding this 
hearing. I think it is one of the most important hearings the 
Senate Judiciary Committee will hold this year.
    Chairman Whitehouse. Thank you, Chairman.
    The distinguished Chairman of the Senate Intelligence 
Committee and a member of the Judiciary Committee, Senator 
Feinstein.

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

    Senator Feinstein. Thank you very much, Mr. Chairman. I 
would echo the Chairman's words. Thank you for your leadership 
for holding this hearing.
    Last month, the Obama administration released four 
memoranda from the Office of Legal Counsel, and questions have 
circulated ever since.
    Now, it is well within the Judiciary Committee's 
jurisdiction to review these opinions and make findings as to 
whether the Committee does feel they fall within existing law 
as well as international treaties and conventions to which the 
United States is a signatory and, therefore, bound.
    I listened very carefully to what Senator Graham said. I do 
not agree. I agree that the prior administration made the 
judgment that they did not apply, but that judgment was 
repudiated in Supreme Court decisions. And as I read them, the 
finding was that those conventions do, in fact, apply. But as 
was the case with the program for warrantless surveillance, 
access to these legal opinions was severely restricted for 
years.
    It has been publicly reported that the Office of 
Professional Responsibility may soon recommend to the Attorney 
General that the authors of these legal opinions face certain 
sanctions. However, the specifics of the OPR report have not 
been released.
    While the Department of Justice can and should review the 
performance of its employees, the Judiciary Committee does have 
the responsibility of independent oversight of the Department 
of Justice and how it interprets the Constitution and the law, 
just as the Intelligence Committee, which I chair, has the 
oversight jurisdiction of the 16 intelligence agencies.
    As members know, the Intelligence Committee is exercising 
its oversight responsibilities. We are conducting a major 
review of the CIA detention and interrogation program. This 
will include a detailed review of the conditions of detention 
experienced by high-value detainees at black sites, more than 
two dozen; how interrogation techniques were applied, by whom, 
in what combination, over what period of time; what information 
was produced as a result of these interrogations; and whether 
such information could have been obtained through other means; 
an evaluation of whether, in fact, the CIA detention and 
interrogation program complied with or exceeded the OLC 
opinions and other policy guidance; and whether the 
Intelligence Committee was accurately briefed about the 
detention and interrogation program and given a full 
explanation of what was happening at certain sites around the 
world. I believe this particular point is very important 
considering our review responsibilities. All of the facts will 
then be placed before the Committee, and the Committee will 
then work its will.
    Now, to do this right is a major undertaking. It involves 
months of review. It involves going through millions of 
unredacted papers, documents, cables, and e- mails and a 
substantial number of personal interviews. The work will 
necessarily be classified in order to get the full scope of 
what has happened, and the work will be done fairly and 
professionally and in a strong bipartisan manner. And I want to 
stress that.
    Yesterday, I had a brief meeting with Mr. Soufan, who is 
going to shortly be before this Committee. He will be asked at 
the right time when we have the facts to come before the 
Intelligence Committee.
    Now, we have six crossover members that sit on this 
Committee and on Intelligence, including Senators Whitehouse, 
Feingold, Wyden, Hatch, Coburn, and myself. So I am convinced 
that between the Intelligence Committee's review and study and 
the Judiciary Committee's oversight of DOJ and these opinions, 
we will be able to provide a substantial body of knowledge and 
work within which judgments and assessments can be made.
    I very much hope that this will be the case. I think to 
make this an explosive issue without carefully laying out all 
of the facts, conditions, cables, directives, and the whole 
situation will be a big, big mistake.
    So I want to thank you, Mr. Chairman, and I certainly 
welcome your hearing, and the Intelligence Committee will 
welcome whatever evidence it might provide for our 
deliberations as well. So thank you.
    Chairman Whitehouse. Thank you, Madam Chair. And as 
somebody who has seen firsthand your work on the Intelligence 
Committee, I am very proud of it and look forward to supporting 
you in that effort.
    Senator Feinstein. Thank you very much. I appreciate that.
    Chairman Whitehouse. Senator Feingold, do you wish to make 
a brief opening statement?

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

    Senator Feingold. Very brief, Mr. Chairman. We want to get 
on to the hearing. But this hearing is such an important step 
in shedding light on one of the worst abuses of the past 
administration. Let me be clear: This so- called enhanced 
interrogation program was illegal, it was contrary to our 
national values, and it undermined our national security.
    Like Chairman Whitehouse and Chairman Feinstein, I am a 
member of the Intelligence Committee, and I can tell you that 
nothing I have seen, including the two documents to which 
former Vice President Cheney has repeatedly referred, indicates 
that the torture techniques authorized by the last 
administration were necessary or that they were the best way to 
get information out of detainees. So, clearly, the former Vice 
President is misleading the American people when he says 
otherwise.
    Mr. Chairman, I support further declassifications, 
including the rest of the Justice Department memos and letters 
on this program, the Inspector General report, and the work of 
the Intelligence Committee, provided their release would not 
jeopardize national security. And I have also sought the 
declassification of my own correspondence which I sent to then-
CIA Director Hayden detailing my clear opposition to the 
program.
    While the revelations of the past month are uncomfortable 
for some, they are absolutely essential if our country is to 
return to the rule of law. I am pleased that the members of the 
Judiciary Committee and the Intelligence Committee are moving 
forward to determine exactly what happened, and I continue to 
believe that an independent commission of inquiry, as Chairman 
Leahy has proposed, is needed so that we can fully understand 
and come to terms with this dark chapter in our recent history.
    Thank you, Mr. Chairman.
    Chairman Whitehouse. Thank you, Senator Feingold. And just 
to chime in on that point, I think it is clear that I also 
agree that the time will come when it, frankly, becomes 
inevitable that a nonpartisan, authoritative commission should 
take a look at the work of Senator Feinstein's investigations, 
the OPR opinions, what the Judiciary Committee does under the 
leadership of Chairman Leahy, and other factors, and draw it 
all together so that the American people can make the 
appropriate conclusions.
    Our first witness is David Luban. Professor Luban is a 
leading expert on legal ethics. He has written numerous 
articles and books on the subject, including ``Legal Ethics,'' 
a leading textbook on the subject, and ``Legal Ethics and Human 
Dignity,'' which collects selected essays he has written on 
legal ethics during the last 20 years. He is the University 
Professor of Law at Georgetown University Law Center, where he 
has taught since he joined the faculty of Georgetown University 
Law Center in 1997. He has previously taught at the University 
of Maryland and Yale and Kent State universities. He hold a 
Ph.D. from Yale University and a B.A. from the University of 
Chicago.
    Professor Luban's recent research interests have included 
the legal ethics implications of U.S. torture policy and the 
powers granted to the President by the Constitution. As a 
result, he is particularly well suited to evaluate the OLC 
memos and explain the ethical issues that they raise.
    Professor Luban.

    STATEMENT OF DAVID LUBAN, PROFESSOR OF LAW, GEORGETOWN 
          UNIVERSITY LAW CENTER, HYATTSVILLE, MARYLAND

    Mr. Luban. Thank you, Mr. Chairman.
    Chairman Whitehouse, Ranking Member Senator Graham, 
Chairman Leahy, and distinguished members of the Committee----
    Chairman Whitehouse. Professor Luban, let me say one thing 
quickly, because you are our first witness. I would like to try 
to keep all of the witness statements here--some of them are 
quite lengthy on paper--to 5 minutes. And so at some point 
witnesses are going to start hearing this noise [gavels], which 
is your warning that the 5 minutes has run out and if you could 
please wrap it up. And if you extend too far beyond it, I will 
simply cut you off so that everybody has a fair chance and so 
that the Senators have a chance to engage in dialog, which is 
the most helpful part of a hearing.
    I thank you. Please proceed.
    Mr. Luban. I may go a minute or so over. Thank you for 
inviting me to testify today. You have asked me to talk about 
the legal ethics of the torture and interrogation memos written 
by lawyers in the Office of Legal Counsel. Based on the 
publicly available sources I have studied, I believe that the 
memos are an ethical train wreck.
    When a lawyer advises a client about what the law requires, 
there is one basic ethical obligation: to tell it straight, 
without slanting or skewing. That can be a hard thing to do, if 
the legal answer is not the one the client wants. Very few 
lawyers ever enjoy saying ``no'' to a client who was hoping for 
``yes.'' But the profession's ethical standard is clear: a 
legal adviser must use independent judgment and give candid, 
unvarnished advice. In the words of the American Bar 
Association, ``a lawyer should not be deterred from giving 
candid advice by the prospect that the advice will be 
unpalatable to the client.''
    That is the governing standard for all lawyers, in public 
practice or private. But it is doubly important for lawyers in 
the Office of Legal Counsel. The mission of the OLC is to give 
the President advice to guide him in fulfilling an awesome 
constitutional obligation: to take care that the laws are 
faithfully executed. Faithful execution means interpreting the 
law without stretching it and without looking for loopholes. 
OLC's job is not to rubber-stamp administration policies, and 
it is not to provide legal cover for illegal actions.
    No lawyer's advice should do that. The rules of 
professional ethics forbid lawyers from counseling or assisting 
clients in illegal conduct; they require competence; and they 
demand that lawyers explain enough that the client can make an 
informed decision, which surely means explaining the law as it 
is. These are standards that the entire legal profession 
recognizes.
    Unfortunately, the torture memos fall far short of 
professional standards of candid advice and independent 
judgment. They involve a selective and, in places, deeply 
eccentric reading of the law. The memos cherry-pick sources of 
law that back their conclusions and leave out sources of law 
that do not. They read as if they were reverse engineered to 
reach a predetermined outcome: approval of waterboarding and 
the other CIA techniques.
    Now, my written statement goes through the memos in detail, 
Mr. Chairman. Let me give just one example here of what I am 
talking about. Twenty-six years ago, President Reagan's Justice 
Department prosecuted law enforcement officers for 
waterboarding prisoners to make them confess. The case is 
called United States v. Lee. Four men were convicted and drew 
hefty sentences that the Court of Appeals upheld.
    The Court of Appeals repeatedly referred to the technique 
of waterboarding as ``torture.'' This is perhaps the single 
most relevant case in American law on the legality of 
waterboarding.
    Any lawyer can find the Lee case in a few seconds on a 
computer just by typing the words ``water torture'' into a data 
base. But the authors of the torture memos never mentioned it. 
They had no trouble finding cases where courts didn't call 
harsh interrogation techniques ``torture.'' It is hard to avoid 
the conclusion that Mr. Yoo, Judge Bybee, and Mr. Bradbury 
chose not to mention the Lee cases because it casts doubt on 
their conclusion that waterboarding is legal.
    Without getting further into technicalities that, quite 
frankly, only a lawyer could love--maybe not even a lawyer, 
only a professor could love--I would like to mention briefly 
other ways that the torture memos twisted and distorted the 
law. The first Bybee memo advances a startlingly broad theory 
of executive power, according to which the President as 
commander-in-chief can override criminal laws. This was a 
theory that Jack Goldsmith, who headed the OLC after Judge 
Bybee's departure, described as an ``extreme conclusion'' that 
``has no foundation in prior OLC opinions, or in judicial 
decisions, or in any other source of law.'' It comes very close 
to President Nixon's notorious statement that ``when the 
President does it, that means it is not illegal''--except that 
Mr. Nixon was speaking off the cuff in a high-pressure 
interview, not a written opinion by the Office of Legal 
Counsel.
    The first Bybee memo also wrenches language from a Medicare 
statute to explain the legal definition of torture. The 
Medicare statute lists ``severe pain'' as a symptom that might 
indicate a medical emergency. Mr. Yoo flips the statute and 
announces that only pain equivalent in intensity to ``organ 
failure, impairment of bodily function, or even death'' can be 
``severe.'' This definition was so bizarre that the OLC itself 
disowned it a few months after it became public. It is unusual 
for one OLC opinion to disown an earlier one, and it shows just 
how far out of the mainstream Professor Yoo and Judge Bybee had 
wandered. The memo's authors were obviously looking for a 
standard of torture so high that none of the enhanced 
interrogation techniques would count. But legal ethics does not 
permit lawyers to make frivolous arguments merely because it 
gets them the results they wanted. I should note that on 
January 15th of this year, Mr. Bradbury found it necessary to 
withdraw six additional OLC opinions by Professor Yoo or Judge 
Bybee.
    Mr. Chairman, recent news reports have said that the 
Justice Department's internal ethics watchdog, the Office of 
Professional Responsibility, has completed a 5-year 
investigation of the torture memos. OPR has the power to refer 
lawyers to their State bar disciplinary authorities, and news 
reports say they will do so.
    I have no personal knowledge about what OPR has found. 
Presumably, investigators were looking either for evidence of 
incompetence, evidence that the lawyers knew their memos do not 
accurately reflect the law, or evidence that the process was 
short-circuited.
    This morning, I have called the interrogation memos a 
``legal train wreck.'' I believe it is impossible that lawyers 
of such great talent and intelligence could have written these 
memos in the good-faith belief that they accurately state the 
law. But what I or anyone else believes is irrelevant. Ethics 
violations must be proved by clear and convincing evidence and 
not just asserted. That sets a high bar, and it should be a 
high bar.
    In closing, I would like to emphasize to this Committee 
that when OLC lawyers write opinions, especially secret 
opinions, the stakes are high. Their advice governs the 
executive branch, and officials must be told frankly when they 
are on legal thin ice or crossing over into unlawful conduct. 
They and the American people deserve the highest level of 
professionalism and independent--let me emphasize 
``independent''--judgment, and I am sorry to say that they did 
not get it here.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Luban appears as a 
submission for the record.]
    Chairman Whitehouse. Thank you, Professor Luban.
    One of the perils of Senate hearings is votes that happen, 
and a vote has just happened. And what I will do is recess the 
hearing for 5 minutes to give us a chance to vote. People 
usually take longer than that, but I will be back immediately 
to call the hearing back into session. And if other people need 
to take a bit more time, it will be underway, and we are glad 
to have you come back.
    But, for now, the hearing is temporarily adjourned so that 
we can vote.
    [Recess 10:42 a.m. to 10:55 a.m.]
    Chairman Whitehouse. Thank you all and my apologies again 
for the interruption, but it is one of our obligations around 
here.
    The next witness is Philip Zelikow, who is the White 
Burkett Miller Professor of History at the University of 
Virginia, one of my alma maters. It is very good to have him 
here. He was counselor at the Department of State, a deputy to 
Secretary Condoleezza Rice from 2005 to 2007. From 1998 to 
2005, Mr. Zelikow directed the University of Virginia's Miller 
Center of Public Affairs as well as three bipartisan 
commissions, including the National Commission on Terrorist 
Attacks upon the United States--referred to colloquially as the 
``9/11 Commission''--from 2003 to 2004. Previously, Mr. Zelikow 
served as a career Foreign Service officer at the State 
Department and on the White House National Security Council 
staff. He is currently a member of the board for the Global 
Development Program of the Bill and Melinda Gates Foundation. 
Mr. Zelikow received his baccalaureate degree from the 
University of Redlands, a law degree from the University of 
Houston, and his master's and Ph.D. from the Fletcher School at 
Tufts University.
    Mr. Zelikow, welcome. We await your testimony.

STATEMENT OF PHILIP ZELIKOW, WHITE BURKETT MILLER PROFESSOR OF 
   HISTORY, UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE, VIRGINIA

    Mr. Zelikow. Mr. Chairman, Senator Graham, thank you for 
giving me the opportunity to appear before you today. The 
Committee has my C.V. I will not detail my experience. I will 
just say that I was working on counterterrorism for a number of 
years before 
9/11. I have experience looking at this as both a scholar and 
as a policymaker. I was a member of the President's Foreign 
Intelligence Advisory Board from 2001 to 2003, so I do remember 
what it was like after 9/11 and what some of the issues were at 
the time. And I have had some responsibility in having to make 
tough decisions on these issues from the policy side.
    I submitted to the Committee a lengthy written statement 
that goes into a lot of detail, which I am not going to 
recapitulate in detail. Basically, the statement touches on 
some reasons why I think we chose to get into a program of this 
kind, just trying to step back and analyze it, because I think 
in many ways this was a large collective failure in which a lot 
of Americans--a lot of Americans from both parties--thought 
they needed a program like this in order to protect the 
country.
    I think we can now judge that to have been a mistake, as 
Senator Graham said in his opening statement. Therefore, it is 
important, since this is a collective failure and it was a 
mistake, to learn from that mistake, comprehend why we made it. 
So I have a few things in the statement that go into that.
    Further, I then talk about my work on these issues. As our 
suspicions grew about them in the 9/11 Commission, the 9/11 
Commission included a recommendation that was designed to 
anticipate some of these concerns, a recommendation that the 
administration ignored, which was itself an ominous sign, and 
then my getting involved more directly with these issues when I 
joined the State Department at the beginning of 2005.
    During most of 2005, the main focus in our work to get this 
to change--and by ``our work,'' I mean the work of Secretary 
Rice, Legal Adviser John Bellinger, and I--in a series of 
principals and deputies meetings that had been put in motion by 
President Bush because he clearly wanted his advisers to re-
evaluate all these issues.
    During 2005, we mainly focused hard on getting the 
administration to agree to the standard the 9/11 Commission had 
proposed, which is please accept the CID standard. The CID 
standard is an acronym that stands for ``cruel, inhuman, and 
degrading.'' In other words, please accept that we are going to 
have all our intelligence programs covered by this basic 
provision of the law of armed conflict, which is codified in 
various ways, including in our domestic law, I believe, through 
the Federal war crimes statute.
    By the end of 2005, those efforts had been successful. The 
various battles that went on are detailed in my statement, 
including a couple of documents that reflect the positions that 
I adopted, along with the Deputy Secretary of Defense and 
others, that give you some illustration of the way we were 
making these arguments in June and July of 2005. By December of 
2005, that battle had been won, both because of internal work, 
but also because of the McCain amendment. It was clear that the 
CIA and the Government were going to have to accept a CID 
compliance analysis. Thus, by early 2006, there was no way for 
the administration to avoid the need to re-evaluate the CIA 
program against a CID standard.
    The work of the NSC deputies that I was involved in 
intensified. The OLC had guarded against the contingency of a 
substantive CID review in its May 30, 2005, opinion. OLC had 
held that even if the standard did apply, the full CIA program, 
including waterboarding, complied with it--that is, the full 
CIA program, including waterboarding, did not violate 
proscriptions against cruel, inhuman, and degrading treatment.
    The OLC view also meant, in effect, that the McCain 
amendment was a nullity. It would not prohibit the very program 
and procedures Senator McCain and his supporters thought they 
had targeted.
    So with the battle to apply the standard having been won, 
my colleagues and I at the State Department then had to fight 
another battle over how to define the standard's meaning. That 
meant coming to grips with OLC's substantive analysis.
    OLC contended that these subjective terms, like ``cruel'' 
or ``humane,'' should be interpreted in light of the well-
developed and analogous restrictions found in American 
constitutional law. Therefore, to challenge OLC's 
interpretation, it was necessary to challenge the Justice 
Department's interpretation of U.S. constitutional law. This 
was not easy since OLC is the authoritative interpreter of such 
law for the executive branch of the Government.
    Many years earlier, I had worked in this area of law. It 
seemed to me that the OLC interpretation of U.S. constitutional 
law in this area was strained and indefensible in a whole 
variety of ways. My view was that I could not imagine any 
Federal court in America agreeing that the entire CIA program 
could be conducted and it would not violate the American 
Constitution.
    While OLC's interpretations of other areas of law were well 
known to be controversial, I did not believe my colleagues had 
ever heard arguments challenging the way OLC had analyzed these 
constitutional protections. Further, the OLC position had 
implications way beyond the interpretation of international 
treaties. If the CIA program passed muster under an American 
constitutional compliance analysis, then, at least in 
principle, a program of this kind would pass American 
constitutional muster even if employed anywhere in the United 
States on American citizens. We will reflect on that for a 
moment.
    So I distributed my memo analyzing these legal issues to 
other deputies at one of our meetings in February 2006. I then 
took off to the Middle East on other work. When I came back, I 
heard the memo was not considered appropriate for further 
discussion and that copies of my memo should be collected and 
destroyed. That particular request, passed along informally, 
did not seem proper and I ignored it. This particular memo has 
evidently been located in State's files and is being reviewed 
for declassification.
    The broader arguments over the future of the CIA program 
went on for months, even though the old program had effectively 
been discontinued.
    Internal debate continued into July of 2006 after the 
Hamdan decision, culminating in several decisions by President 
Bush. Accepting positions that Secretary Rice had urged again 
and again, the President set the goal of closing the Guantanamo 
facility, deciding to bring all the high-value detainees out of 
the black sites and move them toward trial, seek legislation 
from the Congress that would address these developments, and 
defend the need for some continuing CIA program but one that 
would comply with relevant law. And President Bush announced 
those decisions on September 6, 2006.
    I left the Government at the end of 2006 and returned to 
the University of Virginia. Secretary Rice and Mr. Bellinger 
remained deeply involved in these issues for the following 2 
years, working for constructive change. But, in sum, the U.S. 
Government over the past 7 years adopted an unprecedented 
program in American history of coolly calculated dehumanizing 
abuse and physical torment to extract information. This was a 
mistake--perhaps a disastrous one. It was a collective failure 
in which a number of officials and Members of Congress and 
staffers of both parties played a part, endorsing a CIA program 
of physical coercion, even after the McCain amendment was 
passed and even after the Hamdan decision.
    Precisely because this was a collective failure, it is all 
the more important to comprehend it and learn from it. For 
several years, our Government has been fighting terrorism 
without using these extreme methods. I can comment on that both 
worldwide and in Iraq. We have been doing this under 
international standards for years.
    Now, we face some serious obstacles in defeating al Qaeda 
and its allies, and we could be hit again, and hit hard. But 
our decision to respect international standards does not appear 
to be a hindrance in this fight. In fact, if the U.S. regains 
higher ground in the wider struggle of ideas, our prospects in 
a long conflict will be better. Others may disagree. They may 
believe that recent history, even since 2005, shows that 
America needs an elaborate program of indefinite secret 
detention and physical coercion in order to protect the Nation. 
The Government and the country needs to decide whether they are 
right. If they are right, our laws must change, and our country 
must change. I think they are wrong.
    [The prepared statement of Mr. Zelikow appears as a 
submission for the record.]
    Chairman Whitehouse. Thank you, Mr. Zelikow.
    Our next witness is Professor Jeffrey Addicott, an 
Associate Professor of Law and the Director of the Center for 
Terrorism Law at St. Mary's University School of Law in San 
Antonio, Texas. In 2000, he retired from the U.S. Army Judge 
Advocate Generals Corps after 20 years of service specializing 
in human rights law and national security law. Professor 
Addicott holds a Doctor of Juridical Science and a Master of 
Laws from the University of Virginia School of Law--we seem to 
be populating the place today--and Juris Doctor from the 
University of Alabama School of Law. The new Ranking Member of 
the Judiciary Committee would be very pleased.
    Professor Addicott.

 STATEMENT OF JEFFREY F. ADDICOTT, PROFESSOR, DIRECTOR, CENTER 
  FOR TERRORISM LAW, ST. MARY'S UNIVERSITY SCHOOL OF LAW, SAN 
                         ANTONIO, TEXAS

    Mr. Addicott. Thank you, sir. Just for the record, I am a 
full professor now, but even though I am from Alabama, I am 
going to try to talk fast because I have got 5 minutes.
    The purpose of this testimony is to provide information 
from a legal perspective on the issue of ``enhanced 
interrogation practices'' used on certain al Qaeda operatives 
by CIA interrogators during the Bush administration as approved 
by the subject legal memorandums. In the context of the 
approved interrogation methodologies, the primary concern is 
associated with the CIA's use of ``waterboarding.'' My full 
testimony, of course, is in the record.
    Since the al Qaeda detainees are not entitled to prisoner 
of war status----
    Chairman Whitehouse. Professor, if you intend to read 
rapidly, even that will not work with 16 pages of testimony. I 
think you will have to make some measure to summarize.
    Mr. Addicott. Well, let me just do it off the cuff, then. 
You know, the Torture Convention is the primary international 
document that we are looking at here in the context of how we 
are measuring what these CIA memos refer to. And when the 
United States signed the Torture Convention, we had certain 
reservations in there, and we said that we understood that, in 
order to constitute torture, an act must specifically intend to 
inflict severe physical or mental pain or suffering and that 
mental pain or suffering refers to prolonged mental harm.
    The memorandums looked at the issue of torture, of course, 
and the word ``torture'' rolls off the tongue with great ease; 
but you have to recognize that not every alleged incident of 
interrogation or mistreatment necessarily satisfies the legal 
definition of ``torture.'' It is imperative that one view such 
allegations with a clear understanding of the applicable legal 
standards set out in law and judicial precedent. In this 
manner, allegations or claims of illegal interrogation 
practices--e.g., waterboarding--can be properly measured as 
falling above or below a particular legal threshold. In my 
legal opinion, the so-called enhanced interrogation practices 
detailed in the subject legal memorandums did not constitute 
torture under international law.
    Why do I say that? There are very few international cases 
that really stand on point when you look at this issue. Perhaps 
the leading case, though, in the Anglo-Saxon tradition is the 
European Court of Human Rights Ruling of Ireland v. United 
Kingdom. By an overwhelming majority vote of 16-1, the Ireland 
court found certain interrogation practices--called the ``five 
techniques''--utilized by British authorities to investigate 
suspected terrorism in Northern Ireland to be ``inhumane and 
degrading,'' i.e., ill-treatment, but not torture, by a vote of 
13-4. These five techniques, let me just describe for the 
Committee what some of them were.
    One of them was wall-standing. They forced the detainees to 
stand for periods of hours in a stress position described as 
``spread-eagled against the wall, with their fingers put high 
above their head against the wall, the legs spread apart and 
the feet back, causing them to stand on their toes with the 
weight of the body mainly on the fingers.'' Wall-standing was 
practiced for up to 30 hours with occasional periods for rest.
    The British authorities also engaged in hooding, where they 
placed a dark hood over the head of the detainee, again, for 
prolonged periods of time--days.
    They subjected the detainees to noise in a room where there 
was continuous loud and hissing noise for prolonged periods of 
time.
    They deprived them of sleep for prolonged periods of time.
    They deprived them of food and drink, reducing the food and 
drink to suspects pending interrogations.
    Now, to the reasonable mind, considering the level of 
interrogation standards set out in the Ireland case, the 
conclusion is clear. Even the worst of the CIA techniques 
authorized by the DOJ legal memorandums--waterboarding--would 
not constitute torture; the CIA method of waterboarding appears 
similar to what we have done hundreds and hundreds of times to 
our own military special operations soldiers in military 
training courses on escape and survival.
    I was also in the military for 20 years. I was a senior 
legal adviser for all the Green Berets in the world, so I am 
very familiar with the concept of waterboarding.
    If you look at the Ireland case and use a fortiori logic, 
if you look at what they did in the Ireland case--and that 
court said that is not torture; they said it is ill treatment--
then even the worst of what we have done, that level is going 
to be way below the Ireland standard. So, therefore, my legal 
conclusion based on the Ireland case is that we have not 
engaged in torture.
    Another international case is the Public Committee case 
that comes out of the Supreme Court of Israel, which also 
looked at harsh interrogation tactics.
    In conclusion, those who order, approve, or engage in 
torture must be criminally prosecuted. If we conclude, in fact, 
that we did engage in torture--in other words, that we are 
going to ignore the Ireland precedent and say, yes, our people 
engaged in torture--there is no way out of this. We have to 
prosecute under the Torture Convention those that approved it, 
those that authorized it, and those that carried it out. We 
cannot say on the one hand, yes, we engaged in torture, and not 
do anything. We are violating international law if we do that. 
On the other hand, if we conclude that the techniques did not 
rise to the level of torture, which I argue, then we are under 
no international obligation to prosecute those individuals 
under the Torture Convention.
    Thank you.
    [The prepared statement of Mr. Addicott appears as a 
submission for the record.]
    Chairman Whitehouse. Thank you very much, Professor 
Addicott.
    Our next witness, our penultimate witness, is Professor 
Turner, who is the Associate Director of the University of 
Virginia's Center for National Security Law. I promise we did 
not set this up as a University of Virginia day.
    He is the former Chair of the American Bar Association's 
Standing Committee on Law and National Security, a veteran of 
the Reagan administration, and a former National Security 
Adviser to Senator Robert P. Griffin, a member of the Senate 
Foreign Relations Committee. Professor Turner received his B.A. 
from Indiana University and a J.D. and S.J.D. from the 
University of Virginia. He is the author or editor of more than 
a dozen books and monographs on national security issues, and 
we welcome him to the Committee.
    Professor Turner.

  STATEMENT OF ROBERT TURNER, PROFESSOR, CENTER FOR NATIONAL 
      SECURITY LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, 
                   CHARLOTTESVILLE, VIRGINIA

    Mr. Turner. Good morning, Mr. Chairman, and members of the 
Committee. I am honored to be here. Like most JAG officers I 
have dealt with, Senator Graham got these issues exactly right 
from the beginning. I would like to associate myself with his 
statement. And I am tempted just to stop there because mine is 
probably not going to be as good as his, but I will continue.
    Shortly after the story of abusive treatment of detainees 
first broke, I was going on a short vacation with my 14-year-
old son, driving down Interstate 64, when my cell phone rang. 
It was Voice of America wanting a comment on the story of the 
abusive techniques. And my comment was: ``It appears that some 
good people have made some very bad decisions.''
    I have been a very strong critic of waterboarding and other 
abusive techniques. I co-authored an article in the Washington 
Post entitled ``War Crimes and the White House'' in July of 
2007. I served with pride on the drafting committee for the 
Executive Order barring torture and inhumane treatment. Indeed, 
one of my suggestions was ``torture'' is not the controlling 
international standard. Under international law, we are bound 
by Common Article 3 of all four 1949 Geneva Conventions. That 
standard is that all detainees are entitled to humane 
treatment, so spending a lot of time deciding whether something 
is torture or not misses the point that we have a much higher 
duty in our treatment of detainees.
    Some of the things that have been done since then have made 
me furious, to the point of wanting to kick a wall or 
something. But I continue to believe that the people who made 
these tragic decisions were decent, honorable, and able. They 
were also frightened for their fellow Americans and anxious to 
do everything within their power to prevent the next 9/11 
attack.
    Now, some may think that good people cannot do bad things. 
I would remind those people that on February 19, 1942, 
President Franklin Roosevelt issued Executive Order 9066 that 
ordered the detention and incarceration of more than 100,000 
Americans without probable cause, judicial sanction, or the 
slightest individualized suspicion of wrongdoing. Most of those 
detained were U.S. citizens. Many of them had been born in this 
country and never even visited Japan. Their crime was to have 
Japanese ancestors.
    Today, we see this as one of the most outrageous abuses of 
civil liberties since the end of slavery. And yet it was 
strongly supported at the time, not only by the President but 
by California Attorney General Earl Warren, who later earned a 
reputation as perhaps the most liberal Chief Justice of the 
Supreme Court of the 20th century.
    Another well-known civil libertarian involved in that case 
was Justice Hugo Black, who wrote the Court's majority opinion 
in the Korematsu case that upheld the detention as lawful. How 
could so many good and able people give their support to such a 
horrible policy? Indeed, one of the few people to speak out 
against this was J. Edgar Hoover of the FBI, interestingly. 
They did this because they were frightened, and they 
desperately wanted to prevent another Pearl Harbor. And I would 
submit that the OLC lawyers--I have met one of them two or 
three times at conferences, but I do not know any of them 
well--acted from precisely the same motive: they wanted to save 
the lives of their fellow Americans.
    The title of this hearing is ``What Went Wrong.'' Part of 
the problem, I believe, is a general ignorance of some of the 
fundamental details of national security law, not only at OLC 
but elsewhere in the government and, indeed, throughout the 
legal profession. In my prepared testimony, I give several 
examples where the country has been divided because of 
misunderstandings about very basic principles of international 
law. The Third Geneva Convention provides that prisoners of war 
are to be tried by military courts, not civilian courts, but 
this was not well known, and so people got very unhappy over 
proposals for military tribunals.
    How could bright lawyers fail to understand that Common 
Article 3 applies? Again, it sets the standard of humane 
treatment. I think it is not that hard to understand why. 
Common Article 3 applies to armed conflicts ``of a non-
international character.'' Well, what the OLC people said was, 
well, there are at least 75 countries involved in this war in 
one way or another against al Qaeda. The Authorization for the 
Use of Military Force, approved by Congress in October of 2001, 
clearly authorized the use of force against foreign nations. 
Again, the sugestion of an international armed conflict.
    It is not unreasonable to conclude that this was an 
international conflict, but without a sovereign state on the 
other side, the better view--and the view accepted by the 
Supreme Court in the Hamdan case--is that is not the best 
interpretation; that is to say, common Article 3 does apply.
    Common Article 3 states further that in non-international 
armed conflicts, it applies to conflicts occurring ``in the 
territory of one of the high contracting parties.'' Now, you 
can interpret that to mean that a conflict that occurs in the 
territory of more than one state is not covered by Common 
Article 3. Al Qaeda was global in its scope. It attacked us 
inside the United States, in Saudi Arabia, Yemen, Kenya, 
Tanzania and so forth. So it was not difficult, I think, for 
non-experts to look at this language and say common Article 3 
does not apply. I think they were horribly wrong, but I do not 
think it was an evil decision.
    There seems to be an overwhelming consensus in which I 
share that waterboarding crosses both the humane treatment and 
the torture line. I have a dear colleague who is very outraged 
at all of this, who refers to it as ``torture lite,'' and I 
think that is probably a good description. It is not comparable 
to what was done to our POWs in Vietnam. It is not comparable 
to the maiming and the branding and the dismemberment that has 
gone on through history. But it is wrong. It should not have 
happened. And the most important thing is to make sure it does 
not happen again.
    Let me turn to what we do now about those who made these 
decisions. The Republicans came to power in Washington in 1953. 
They controlled the White House and both Houses of Congress. To 
the best of my knowledge and recollection, no one demanded a 
``truth commission'' to go after the ghost of FDR or Justice 
Hugo Black or Governor Earl Warren. They understood that good 
people, fearful for the safety of their fellow Americans, 
trying to stop the next attack, made some very bad decisions. 
And I think that is what has happened here.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Turner appears as a 
submission for the record.]
    Chairman Whitehouse. Thank you, Professor Turner. It sounds 
as if you would agree with the observation of the old French 
Minister Talleyrand that ``the greatest danger in times of 
crisis comes from the zeal of those who are inexperienced.''
    [Mr. Turner nods affirmatively.]
    Chairman Whitehouse. I will take a moment now to recess 
very briefly so that the necessary security measures for Mr. 
Soufan can be put into place. The witnesses can remain in their 
seats. It will just take a second to clear some of the cameras 
out of the front of the well.
    [Pause.]
    Chairman Whitehouse. Thank you. Ali Soufan is the Chief 
Executive Officer of the Soufan Group LLC, an international 
strategic consultancy firm that advises governments and 
corporations on policy, strategy, security, risk management, 
and training. More significantly for our purposes, he is a 
former FBI supervisory special agent who investigated and 
supervised highly sensitive and complex international terrorism 
cases, including the attack on the USS Cole and the events 
surrounding 9/11.
    Mr. Soufan has received numerous awards and commendations 
for his counterterrorism work. These include the Director of 
the FBI's Award for Excellence in Investigation, the Respect 
for Law Enforcement Award for relentless pursuit of truth and 
bringing terrorist subjects before the bar of justice, and a 
commendation from the U.S. Department of Defense that labeled 
him ``an important weapon in the ongoing war on terrorism.''
    Mr. Soufan is an honors graduate from Mansfield University 
of Pennsylvania where he received undergraduate degrees in 
international studies and political science. He is a magna cum 
laude graduate of Villanova University where he received a 
Master of Arts in international relations and appears to have 
no connection to the University of Virginia.
    [Laughter.]
    Chairman Whitehouse. Mr. Soufan, thank you for being with 
us.

 STATEMENT OF ALI SOUFAN, CHIEF EXECUTIVE OFFICER, THE SOUFAN 
                 GROUP LLC, NEW YORK, NEW YORK

    Mr. Soufan. Thank you, sir. Mr. Chairman, Committee 
members, thank you for the opportunity to appear before you 
today. I know that each one of you cares deeply about----
    Chairman Whitehouse. Could you speak up, and clearly, with 
the microphone near you so that everybody can hear? Without the 
ability to see you, it is even more important that you be 
heard.
    Mr. Soufan. Mr. Chairman, Committee members, thank you for 
the opportunity to appear before you today. I know that each 
one of you cares deeply about our Nation's security. It was 
always a comfort to me during the most dangerous of situations 
that I faced, from going undercover as an al Qaeda operative, 
to tracking down the killers of the 17 U.S. sailors murdered on 
the USS Cole, that those of us on the frontline had your 
support and the backing of the American people. So I thank you.
    The issue that I am here to discuss today--interrogation 
methods used to question terrorists--is not, and should not be, 
a partisan matter. We all share a commitment to using the best 
interrogation method possible that serves our national security 
interests and fits within the framework of our Nation's 
principles.
    As an FBI agent, I spent much of my career investigating 
and unraveling terrorist cells around the globe. I have had the 
privilege of learning and working alongside some of the most 
dedicated and talented individuals from the FBI and other law 
enforcement, military, and intelligence agencies.
    I was the Government's main witness in both of the trials 
we have had in Guantanamo Bay so far, and I am currently 
helping the prosecution prepare for future ones.
    From my experience, I strongly believe that it is a mistake 
to use what has become known as enhanced interrogation 
techniques, a position shared by professional operatives, 
including CIA officers who were present at the initial phases 
of the Abu Zubaydah interrogation. These techniques from an 
operational perspective are slow, ineffective, unreliable, and 
harmful to our efforts to defeat al Qaeda.
    An example of a successful interrogation is that of an al 
Qaeda terrorist known as Abu Jandal. In the immediate aftermath 
of 9/11, together with my partner----
    Chairman Whitehouse. Let me interrupt just for one moment 
to ask unanimous consent that the 302s that were developed in 
the investigation of Abu Jandal be made a part of the record. I 
believe this is the first time they have been fully 
declassified.
    Please proceed. Without objection.
    Mr. Soufan. In the immediate aftermath of 9/11, together 
with my partner Special Agent Robert McFadden, a first-class 
agent from the Naval Criminal Investigative Service, we 
obtained a treasure trove of highly significant actionable 
intelligence that proved instrumental in the war effort against 
al Qaeda and Taliban in the fall of 2001. It included extensive 
information on everyone from Osama bin Laden's network and 
modus operandi to details on individual operatives, some of 
them we later apprehended.
    The approach we used was completely by the book, and it can 
be labeled as the ``informed interrogation approach.'' It is 
outlined in the Army Field Manual and is derived from the 
cumulative experiences, wisdom, and successes of the most 
effective operatives from our country's military, intelligence, 
and law enforcement community.
    The approach is based on leveraging our knowledge of the 
detainee's mindset, vulnerabilities, and culture, together with 
using intelligence already known about him. The interrogator 
uses a combination of interpersonal, cognitive, and emotional 
strategies to extract the information needed. If done 
correctly, this approach works quickly and effectively because 
it outsmarts the detainee using a method that he is not trained 
nor able to resist.
    The Army Field Manual is not about being soft. It is about 
outwitting, outsmarting, and manipulating the detainee. The 
approach is in sharp contrast with the enhanced interrogation 
method that instead tries to subjugate the detainee into 
submission through humiliation and cruelty. The idea behind it 
is to force the detainee to see the interrogator as the master 
who controls his pain. It is merely an exercise in trying to 
force compliance rather than elicit cooperation.
    A major problem is that it is ineffective. Al Qaeda 
terrorists are trained to resist torture. As shocking as these 
techniques are to us, their training prepares them for much 
worse--the torture that they would receive if caught by 
dictatorships for example. In a democracy, however, there is a 
glass ceiling the interrogator cannot breach, and eventually 
the detainee will call the interrogator's bluff. That is why, 
as we see from the recently released DOJ memos on 
interrogation, the contractors had to keep requesting 
authorization to use harsher and harsher methods. In the case 
of Abu Zubaydah, that continued for several months, right until 
waterboarding was introduced. And waterboarding itself had to 
be used 83 times, an indication that Abu Zubaydah had already 
called his interrogators bluff. In contrast, when we 
interrogated him using informed interrogation methods, within 
the first hour we gained important actionable intelligence.
    The technique is also unreliable. We do not know whether 
the detainee is being truthful or just speaking to mitigate his 
discomfort. The technique is also slow. Waiting 180 hours as 
part of a sleep deprivation stage is time we cannot afford to 
waste in a ticking bomb scenario.
    Just as importantly, this amateurish technique is harmful 
to our long-term strategy and interests. It plays into the 
enemy's handbook and re-creates a form of the so-called Chinese 
Wall between the CIA and the FBI. It also taints sources, risks 
outcomes, ignores the end game, and diminishes our moral high 
ground.
    My interest in speaking about this issue is not to advocate 
the prosecution of anyone. Examining a past we cannot change is 
only worthwhile when it helps guide us toward claiming a 
future, a better future that is yet within our reach.
    For the last 7 years, it has not been easy objecting to 
these methods when they had powerful backers. I stood up then 
for the same reason I am willing to take on critics now, 
because I took an oath swearing to protect this great nation. I 
could not stand by quietly while our country's safety was 
endangered and our moral standing damaged.
    I know you are motivated by the same considerations, and I 
hope you help ensure that these grave mistakes are never, 
never, made again.
    Thank you.
    [The prepared statement of Mr. Soufan appears as a 
submission for the record.]
    Chairman Whitehouse. Thank you, Mr. Soufan.
    Let me, now that we are in the questioning period, begin 
with questions to you, and let me ask you more specifically 
about the interrogation of Abu Zubaydah, again reminding you 
not to divulge any information that is classified.
    You were present--indeed, you were one of the first, if not 
the first, interrogators present when Abu Zubaydah was brought 
into custody for the first time outside of Pakistan. Correct?
    Mr. Soufan. Yes, sir.
    Chairman Whitehouse. And your testimony indicates that 
within the first hour of your interrogation of him, you had 
gained important actionable intelligence. Is that correct?
    Mr. Soufan. Yes, sir.
    Chairman Whitehouse. At that point, his condition was such 
that you indicated that we had to take him to a hospital or he 
would die. But at the hospital, you continued your questioning, 
and it was during your questioning of him at the hospital that 
you elicited information regarding the previously unknown role 
of Khalid Sheikh Mohammed as the mastermind of the 9/11 
attacks.
    Mr. Soufan. Correct, sir.
    Chairman Whitehouse. One of the more significant pieces of 
intelligence information we have ever obtained in the war on 
terror. Correct?
    Mr. Soufan. It is one of them, yes, sir.
    Chairman Whitehouse. And all of this happened before the 
CIA CTC team and the private contractors arrived. Correct?
    Mr. Soufan. Yes, sir.
    Chairman Whitehouse. And then they arrived, and immediately 
you say on the instructions of the contractor, harsh techniques 
were introduced, which ``did not produce results as Abu 
Zubaydah shut down and stopped talking.'' Correct?
    Mr. Soufan. Correct, sir.
    Chairman Whitehouse. And with that happening, you knew he 
had good information. He had shut down under the harsh 
techniques, and so you again were given control of the 
interrogation. Correct?
    Mr. Soufan. Yes, sir.
    Chairman Whitehouse. And you used the same techniques you 
had originally, which were within the Army Field Manual.
    Mr. Soufan. Yes, sir. It was me, another FBI agent who was 
with me, and a top CIA interrogator. So the interrogation team 
was a combination of FBI and CIA officials, and all of us had 
the same opinion that contradicted with the contractor.
    Chairman Whitehouse. And in this third interview, the one--
or series of interviews, anyway, the one before the hospital, 
one in the hospital, and then one after the first round of 
harsh interrogation when you were brought back, was in the 
second round pursuant to appropriate tactics that Abu Zubaydah 
disclosed the details of Jose Padilla, the so-called dirty 
bomber. Correct?
    Mr. Soufan. Yes, sir.
    Chairman Whitehouse. And then, again, the contractor 
reasserted himself and began reimplementing harsh techniques 
and, again, Abu Zubaydah shut down and stopped producing 
information. Is that correct?
    Mr. Soufan. Yes, sir.
    Chairman Whitehouse. And once again you were brought back 
in to interrogate him. Now it was more difficult because some 
of these harsh techniques had been applied and his resistance 
was increased, but eventually you succeeded and you re-engaged 
again. But at that point, the contractor took over and began 
stepping up the notches of his experiment to the point where 
you protested to your superiors in the FBI that this was 
becoming inappropriate, illegal. I believe you even 
threatened----
    Mr. Soufan. I think my description was----
    Chairman Whitehouse [continuing].--To arrest somebody if 
you were to stay there. Correct?
    Mr. Soufan. Yes, sir. My description was ``borderline 
torture.''
    Chairman Whitehouse. And at that point, your participation 
in his interrogation ended.
    Mr. Soufan. Yes. We were asked by Director Mueller to leave 
the facility.
    Chairman Whitehouse. So when you look at the Office of 
Legal Counsel opinion of May 30, 2005, on page 10, here is what 
the Office of Legal Counsel said was the fact: ``Interrogations 
of Zubaydah, again, once enhanced techniques were employed, 
furnished detailed information regarding al Qaeda's 
organizational structure, key operatives, and modus operandi, 
and identified KSM as the mastermind of the September 11th 
attacks. You have informed us that Zubaydah also provided 
significant information on two operatives, including Jose 
Padilla, who planned to build and detonate a dirty bomb in the 
Washington, D.C., area.''
    From your position at the actual interrogation of Abu 
Zubaydah, you know that statement not to be true.
    Mr. Soufan. Yes, sir.
    Chairman Whitehouse. On September 6, 2006, President Bush 
stated the following: ``Within months of September 11, 2001, we 
captured a man named Abu Zubaydah. We believed that Zubaydah 
was a senior terrorist leader and a trusted associate of Osama 
bin Laden. Zubaydah was severely wounded during the firefight 
that brought him into custody, and he survived only because of 
the medical care arranged by the CIA. After he recovered, 
Zubaydah was defiant and evasive. He declared his hatred of 
America. During questioning, he at first disclosed what he 
thought was nominal information and then stopped all 
cooperation. We knew that Zubaydah had more information that 
could save innocent lives, but he stopped talking. As his 
questioning proceeded, it became clear that Zubaydah had 
received training on how to resist interrogation, and so the 
CIA used an alternative set of procedures.
    Does that statement by the President accurately reflect the 
interrogation of Abu Zubaydah?
    Mr. Soufan. Well, the environment that he is talking about, 
yes, he was injured and he needed medical care, but I think the 
President--my own personal opinion here based on my 
recollection is that he was told probably a half-truth.
    Chairman Whitehouse. And repeated a half-truth, obviously. 
His statement as presented does not conform with what you know 
to be the case from your experience on hand.
    Mr. Soufan. Yes, sir.
    Chairman Whitehouse. I am over my time.
    Senator Graham.
    Senator Graham. Well, since there is just the two of us, if 
you want to keep going.
    Thank you, Mr. Chairman. What we have got is four lawyers 
who are very bright. All have one thing in common: they like 
Virginia. And I counted seven opinions among you. I think two 
of you disagree with yourselves somewhere along the line. And 
the point is that you are very bright. I appreciate you coming. 
And, Mr. Soufan, thank you for serving our country.
    Mr. Soufan. Thank you, sir.
    Senator Graham. And I appreciate your view of how we should 
behave. The point that we are trying to make as we go forward 
is that we get this right, and as we look back in the past, we 
do not want to shade this one way or the other unnecessarily.
    Is it your testimony that enhanced interrogation techniques 
that were employed right after 9/11 yielded no good 
information?
    Mr. Soufan. I can only speak about my own personal 
experience.
    Senator Graham. That is the point, isn't it?
    Mr. Soufan. Yes.
    Senator Graham. And I admire you. I really do. I really 
appreciate what you are doing.
    And, Mr. Chairman, I think there is some information out 
there that shows that enhanced techniques did yield good 
information, and I would like that to be part of this inquiry 
if we are going to have it.
    But having said that, Mr. Soufan, I appreciate what you are 
telling us. Were you involved in the KSM interrogation at all?
    Mr. Soufan. No, sir. After my stand in the Abu Zubaydah----
    Senator Graham. Okay.
    Mr. Soufan. And what I believed is right----
    Senator Graham. No, I don't----
    Mr. Soufan [continuing].--Out of the program.
    Senator Graham. I do not doubt that at all, and I do not 
doubt that you are trying to help the country. I am just saying 
that this idea that no good information was acquired is 
probably not accurate. But that does not justify what we did. 
That is all I am saying.
    Now, as to the Geneva Convention, Mr. Turner--I appreciate 
the compliment, by the way. The Geneva Convention to me has 
always been a warehousing agreement between the signatory 
nations. We catch some of your guys, we are going to treat them 
well, and we expect like reciprocity. We catch a civilian, we 
are going to treat them well until the conflict is over. Is 
that generally the goal of the Geneva Convention?
    Mr. Turner. Senator, that is exactly the term that I use in 
teaching about the Geneva Convention. If you go back through 
history, the original practice was to put captured enemy 
soldiers to the sword. Somebody got smart and said, ``Hey, we 
can turn them into slaves.'' They played around briefly with 
paroling them, which is to say, ``Okay, go back to your flock 
or your farm, do not come back to the battlefield,'' and the 
king or the prince said ``Get your tail back on the 
battlefield.'' And so they finally said, ``Look, let's not kill 
them, let's just warehouse them, treat them humanely, feed 
them, when the war is over we will trade prisoners.'' And that 
has been the practice for several hundred years.
    Senator Graham. And isn't the problem in this war that, No. 
1, al Qaeda is not a signatory to the Convention. The only way 
we are going to stop this enemy from attacking us to find good 
information and hit them before they hit us.
    Mr. Turner. Again, that is right out of my prepared 
testimony.
    Senator Graham. I have never taken your class, by the way, 
but I am liking it so far.
    Mr. Turner. Unlike any war we have ever had, this war is 90 
percent, if not more, intelligence. Usually you need your 
intelligence service to identify the location of the enemy and 
their plans, and then you send your tanks, your armor, your 
aircraft carriers.
    In this battle, a good police department could arrest al 
Qaeda if we can find them and know what they are doing. So 
intelligence is incredibly important.
    Senator Graham. Mr. Addicott, we are the only Nation that I 
know of that considers al Qaeda operatives a military threat. 
Every other nation looks at this through the law enforcement 
prism. Is that true? Does everyone agree with that?
    Mr. Zelikow. No, sir. I do not think that is the case any 
longer.
    Senator Graham. Okay. What nation has adopted the enemy 
combatant theory?
    Mr. Zelikow. We have actually been engaged in international 
conferences on just this point with our key allies for about 
the last 4 years. I helped initiate that.
    Senator Graham. Is there any country that holds a detainee 
under the theory of the law of armed conflict?
    Mr. Zelikow. They do not hold detainees under that theory, 
but partly it is because other countries are holding them under 
that theory.
    Senator Graham. Well, my point is that we do hold people 
under the theory of the law of armed conflict. Have you ever 
been to an interrogation conducted by the Spanish police?
    Mr. Zelikow. I have not had that rare privilege, sir.
    Senator Graham. Well, I have. Have you ever been to an 
interrogation conducted by the Carboneri in Italy?
    Mr. Zelikow. Neither have I.
    Senator Graham. Do you believe, Mr. Turner, that these 
interrogations are Common Article 3 compliant?
    Mr. Turner. No, sir.
    Senator Graham. There is no law enforcement agency in the 
world dealing with terrorism interrogates in a Common Article 3 
manner, because you cannot say ``Hello'' firmly under Common 
Article 3. I just want the world to understand--and my time is 
up--that the reason we have adopted a different theory is very 
important because I think we are at war, and the people we are 
prosecuting did not rob a liquor store. They are an ongoing 
military threat. And the odd thing about this is if you go down 
the military law of armed conflict, in many ways you restrict 
your ability to get information versus the law enforcement 
model. But I think that is the right model to have.
    With that, I will yield to you. It is just the two of us. 
Take any time----
    Chairman Whitehouse. Let us go back and forth.
    Senator Graham. Yes.
    Mr. Turner. I agree, Senator, just for the record.
    Senator Graham. I mean, we have got to figure this out as a 
world, not just a nation. Right, Philip?
    Mr. Zelikow. Absolutely. In fact, it is a coalition fight. 
We need coalition standards for the fight. And one reason we 
are having this discussion is let us work on standards that 
will also be interoperable with our allies.
    Senator Graham. Right.
    Chairman Whitehouse. One other question I wanted to pursue 
about the interrogation of Abu Zubaydah. There was obviously 
considerable conflict between one side that was achieving 
significant actionable information, so significant that when 
the Jose Padilla information became available, as I recall, the 
Attorney General of the United States had a press conference in 
Moscow to trumpet it, and the other method which was producing 
a shutdown, if you will, on the part of the detainee. And it 
has been often cast as the difference between the trained 
professionals of the CIA versus the amateurish military 
interrogators, teenagers who need the Army Field Manual sort of 
for their training wheels, and law enforcement investigators 
who are constrained by Miranda and other things and, therefore, 
cannot be serious interrogators.
    It strikes me from your description that two elements of 
that framing of the issue are wrong. First of all, it seems 
very well that military and law enforcement investigators are 
actually the trained professionals. You refer to the other 
group as ``amateurish Hollywood type.'' And the second is that 
the division was not between the CIA and the FBI. You had CIA 
professionals who were with you and wanted to continue. And on 
the other side of the equation was a private contractor who was 
not even a Government employee.
    Could you comment on those observations?
    Mr. Soufan. Yes, sir. It has been reported that it was a 
conflict during the interrogation between the FBI and CIA. I 
totally disagree with this assertion, and that is something 
that I mentioned in my----
    Chairman Whitehouse. At the field level, at least.
    Mr. Soufan. Field level.
    Chairman Whitehouse. At the point of the interrogation, 
yes.
    Mr. Soufan. Yes. And that is why I supported the CIA 
officers in my op-ed in the New York Times on this issue. They 
were 100 percent supportive. Actually, the chief psychologist 
of the CIA, a forensic psychologist, objected to these 
techniques, and he even left the location before I did. Their 
top interrogator was 100 percent, I think, in sync with our 
view, with the FBI view, because he is a professional 
interrogator.
    I think this technique using the harsh methods or using the 
enhanced interrogation methods misunderstands the threat that 
we face from ideological Islamic extremists like al Qaeda. And 
countries around the world, in the Middle East, who actually 
use these techniques as regularly as possible, have now pedaled 
away from these techniques when it comes to the terrorists of 
al Qaeda and Islamic extremists. They are ideologically 
motivated. They are expecting a lot to happen to them when they 
get caught. And the best way to deal with them is to be smart 
and to engage with them. And that is what provided a lot of 
actionable intelligence, before 9/11 and after 9/11. And, you 
know, in a classified session, we can actually talk about a lot 
of the successes versus the failures of these techniques.
    One of the things that has been mentioned about this 
technique, the successes that have been talked about publicly 
are Padilla and Khalid Sheikh Mohammed. Well, waterboarding was 
not approved until August 1, 2002. Padilla, after an 
international manhunt in three countries, was finally arrested 
after he landed from Switzerland to the Chicago airport on May 
8, 2002--almost 3 months before these techniques were imposed. 
We knew about Khalid Sheikh Mohammed in April of 2002. Again, 
waterboarding was not approved until August 1st of 2002.
    So I am basing my opinion here on two things: from my 
recollection of the facts--I do not have any notes. I am just 
having my memory on these facts and what happened.
    Chairman Whitehouse. Understood.
    Mr. Soufan. That is number one.
    No. 2, I am basing on what I have been hearing in the 
public domain what had been classified.
    Chairman Whitehouse. I am going to turn to Senator Durbin. 
I have just a few seconds left. I just want to drop in one 
question to Professor Luban during this round. That is, in your 
review of the OLC memos, was there any mention of the role of 
private contractors?
    Mr. Luban. I do not recall any specific mention of private 
contractors.
    Chairman Whitehouse. I do not recall it either, and it 
would seem that that might raise legal issues. It is 
interesting that that would be a fact in the lengthy, lengthy 
OLC opinions that never appears to have surfaced.
    Mr. Luban. Well, I agree, Senator. And I should add that I 
was also very troubled by the chronology that Mr. Soufan just 
mentioned because when Mr. Bradbury was writing the opinion and 
wrote that the capture of Jose Padilla resulted from enhanced 
interrogation techniques, it was already public information 
that Padilla had been captured in May and the techniques were 
not approved until August. So the legal opinion that he wrote 
stipulates something that was publicly known to be untrue.
    Chairman Whitehouse. Yes, he did not have to have special 
knowledge to know that that assertion in the OLC opinion was 
false. Correct?
    Mr. Luban. That is correct.
    Chairman Whitehouse. Senator Durbin.
    Senator Durbin. Thank you very much, Mr. Chairman, for this 
hearing.
    Mr. Zelikow, you have had fascinating assignments, working 
as counselor for Secretary of State Rice and serving as 
Executive Director of the 9/11 Commission. And I would like to 
ask you if you could amplify a little bit on what has been 
characterized as disclosures to leaders in Congress about 
interrogation techniques. I served on the Intelligence 
Committee of the Senate for 4 years and found myself constantly 
in a frustrating position of being told classified information 
and being warned not to breathe a word of it to the public at 
large for fear that it would endanger the lives of people who 
were helping the United States.
    Chairman Whitehouse. Or, if I might add, Senator Durbin, 
our colleagues, in some cases our staff.
    Senator Durbin. Yes. And so there were times when, frankly, 
I wanted to walk right out of the Senate Intelligence Committee 
room and call a press conference and say, ``If America only 
knew.''
    Now, when I have said that on the floor before, people have 
said to me, ``I don't get it. Aren't you supposed to say what 
you believe is true no matter what?'' Well, I think you know 
better. You know that there are limits to sharing information, 
particularly when it might endanger someone's life.
    So when Members of Congress were briefed of this, was it 
before the fact? Were they being asked to authorize these 
techniques and give their approval?
    Mr. Zelikow. Sir, I think Senator Feinstein mentioned SSCI 
is apparently really trying to break down the chronology. The 
Office of the Director of National Intelligence has been 
publicizing chronologies of briefings, which then need to be 
matched up against when we were actually doing things. And so 
the honest answer is I do not know whether folks were briefed 
before the fact.
    Formally, what is supposed to happen is a memorandum of 
notification is prepared that lets key Members of Congress know 
that a program is being undertaken with the authorization of 
the President pursuant to some prior Presidential finding. And, 
therefore, Members of Congress are being informed that pursuant 
to this finding we are now doing certain things.
    Senator Durbin. After the fact?
    Mr. Zelikow. It could be after the fact. It should be at 
the time the program is initiated and before the program is 
implemented so that it appears that you are taking the 
congressional consultation seriously, which the administration 
should.
    Senator Durbin. And I recall only one instance where a 
Member--in this case, Senator Rockefeller--was briefed on the 
wiretap situation, and in his frustration, maybe desperation, 
hand-wrote a letter to file about protesting this, which did 
not surface until much later. But it was the only way that he 
could create tangible evidence of his displeasure or 
disapproval of what was happening.
    I raise this because I have spoken to Senator Rockefeller, 
and I think now he was duty-bound by the law and by his 
conscience not to make disclosures of classified information, 
and yet felt that there was something here that was worthy of 
at least being on the record, as crude as his method was. I 
raise this because many people seem to be suggesting that if 
Members of Congress at the highest level are informed, that 
they are somehow complicit. And I have not seen that. I have 
seen specific limitations on that information when it is given 
to me in the Senate Intelligence Committee and, by reference, 
from leaders when they are briefed.
    Do you understand the difference here?
    Mr. Zelikow. I think I do, and as I have listened to both 
sides of this argument, I step away from this with some 
concern. I will tell you on the inside, when I was arguing--we 
were having heated arguments about these policies on the inside 
in the White House Situation Room, and the argument would often 
be deployed against me and my colleagues that, well, we briefed 
the following Members of Congress--name, name, name, name, 
name--and they do not have a problem with it.
    So, in other words, these briefings are being used actually 
to deal with arguments on the inside of the administration, yet 
I hear what you are saying and what other Members of Congress 
have said. And so I have to ask myself: Does the Congress think 
that the oversight process that accompanies these programs is 
working to their satisfaction?
    Senator Durbin. Well, the answer from me, after 4 years' 
experience on the Senate Intelligence Committee, it is not even 
close. Not even close. I mean, there were times when, you know, 
you wanted to express your disapproval, and there was no means 
to do it. If you were privy to the most important information, 
there was no means.
    I just have a few seconds left, if I might. I would like to 
ask Mr. Zelikow his opinion on the notion of closing down the 
Guantanamo facility. Do you believe that is a good decision?
    Mr. Zelikow. Yes, sir. In fact, Deputy Secretary of Defense 
Gordon England and I wrote a paper suggesting that the 
President announce his determination to close that facility in 
June 2005.
    Senator Durbin. I am aware of one detainee represented by 
an attorney in Chicago who was advised by e-mail--after 6 years 
of incarceration, he was advised by e-mail there were no 
charges against him--and this was 15 months ago--and that he 
could be released. He is still at Guantanamo. And it is an 
indication to me of a serious miscarriage of justice. And there 
are many now arguing to, I guess, maintain Guantanamo. I cannot 
imagine, after President Bush and President Obama have made 
these statements publicly and reached that same conclusion, 
that that is their position.
    But what do you think would be the consequence if we kept 
Guantanamo open at this point?
    Mr. Zelikow. When I was on the inside, I would make the 
argument sometimes that Guantanamo has now become as much 
symbol as substance. I could ask people here, Has anyone here 
ever heard of the Federal correctional institution at Marion?
    Senator Durbin. I have. It is in my State.
    Mr. Zelikow. But everyone in America has heard of Alcatraz. 
One reason Alcatraz was closed was because it had become a 
symbol as much as a substance of a particular kind of facility. 
Then we basically created super-max facilities that were at 
least maybe just as tough as Alcatraz in some ways that no one 
has really heard of. And it does not become the same focal 
point of controversy in the same way.
    Guantanamo had become in world public opinion a toxic 
problem for the United States of America. And so we needed to 
address that as an issue in our foreign policy.
    Senator Durbin. Do you have any doubt in your mind that if 
the decision is made that any of these prisoners of Guantanamo 
would be transferred to Federal correctional institutions that 
they could be held safely and securely?
    Mr. Zelikow. Sir, we hold people who are far more dangerous 
in such institutions, including quite dangerous terrorists like 
Ramzi Yousef, who is currently residing in a super-max facility 
inside the United States now.
    I will also add that when we--I have had the opportunity on 
behalf of one of the Federal judges who has been working 
through the habeas petitions to be asked to examine classified 
files and provide expert advice on holding these folks. And one 
of the things that strikes me now and struck me then is we have 
a vast amount of experience in how to judge the continued 
incarceration of highly dangerous prisoners since we do this 
with thousands of prisoners every month all over the United 
States, including some really quite dangerous people. We 
routinely make these decisions, and for better or worse, we 
have worked out a lot of ways of deciding how to make those 
calls. And I think that that is a whole body of knowledge that 
actually has not been tapped very well in making judgments 
about how long you can incapacitate a really pretty broad 
spectrum of people at Guantanamo, many of whom do not show 
large signs of future dangerousness.
    Senator Durbin. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Whitehouse. Senator Graham.
    Senator Graham. Mr. Zelikow, what is the recidivism rate 
regarding the people who have been released from Guantanamo 
Bay? Do you know?
    Mr. Zelikow. There are no reliable statistics on the 
recidivism rate. What we do know is that some number of people 
who have been released have been encountered again on the 
battlefield. Numbers range--dozens, perhaps, of people who have 
been released have been encountered again. And so as with--that 
is an important----
    Senator Graham. Would that be a miscarriage of justice?
    Mr. Zelikow. Not necessarily.
    Senator Graham. What if it were your son or daughter that 
was killed by one of these guys? How would you feel about it?
    Mr. Zelikow. I would feel the same way I would if a parole 
board had released someone from a prison and then that person 
committed a crime. That problem happens all over the country, 
and we are pretty familiar with it. And sometimes----
    Senator Graham. Is there a difference between KSM and a guy 
that robbed a liquor store?
    Mr. Zelikow. I beg your pardon?
    Senator Graham. Is there a difference between KSM and a 
domestic criminal?
    Mr. Zelikow. There sure is, sir, and I think----
    Senator Graham. And the only reason I mention it--I 
generally agree with you. The only reason I mention that is we 
have got to understand there are two sides to this story. There 
is very much two sides to this story, and we need to move on 
and get it right. We need a facility somewhere--Senator Durbin 
has left. I do not take by his examination that he is 
volunteering Illinois as the housing site. And I am not going 
to ask my friend from Rhode Island would he take these people, 
because if you are waiting for a Member of Congress to stand up 
and say, ``Bring them to my State,'' you are going to be 
waiting until hell freezes over, because nobody is going to do 
that.
    But I do believe we need to close Guantanamo Bay. I do 
believe we can handle 100 or 250 prisoners and protect our 
national security interests, because we had 450,000 German and 
Japanese prisoners in the United States. So this idea that they 
cannot be housed somewhere safely, I disagree. But the decision 
to put them somewhere is very important. It needs to be well 
thought out. And the idea that you have to let these people go 
or try them, I completely disagree with that.
    Mr. Turner, how do you believe about that?
    Mr. Turner. Well, I was going to suggest a correction for 
the record. Senator Durbin was talking about somebody being 
held for years without being charged. As you well know----
    Senator Graham. That is----
    Mr. Turner [continuing].--The theory of a POW is he is 
being warehoused, he is not considered a wrongdoer. Now, if he 
has committed a war crime or murdered someone as a prison, you 
charge him and try him. But international law does not require 
that military combatants be charged to be detained. Indeed, you 
mentioned the 400,000-plus mostly German POWs we had in more 
than 40 States during World War II. Two or three of them got to 
courts briefly because they claimed American citizenship. They 
were quickly sent back. None of them got a day in court. They 
did not get a lawyer. You know, the theory of POWs is they are 
not wrongdoers; they are enemy soldiers who had the misfortune 
of falling into the hands of their enemy. You warehouse them 
and then you send them home. If they have committed crimes, you 
have the option of charging them and trying them, but you are 
not supposed to keep them in a civilian prison, and you are not 
supposed to try them in a civilian court.
    Senator Graham. That is exactly right. Now, the point that 
we are trying to make, Mr. Turner and myself, is that when a 
member of al Qaeda is captured, all of them are not subject to 
war crime trials simply by their status. But if an independent 
judiciary agrees with the military and the CIA that the person 
is, in fact, the evidence supports the decision that you are a 
member of al Qaeda, an enemy combatant, a military threat, 
there is no requirement under military law to let people go. Do 
you agree with that, Mr. Addicott?
    Mr. Addicott. Yes, I mean, part of the premise here, if we 
are not using the law of war, we have done a lot of illegal 
stuff. If we are operating under the law of war, we are doing 
what we perfectly do in every war. In my opinion, closing down 
Gitmo is a mistake. It is a propaganda victory for our enemies 
because we are saying to the world we have something to 
apologize for, we are hold these people illegally, we are 
torturing them--which has never occurred at Gitmo. And that is 
the exact opposite message that we should be sending. We are in 
a state of war with these people. If you are trying to stop 
them at the airport, you are too late.
    Senator Graham. Right. Well, I agree with that, but I agree 
with Mr. Zelikow that it is an image problem. See, this is why 
we need to move on. I mean, the moral high ground, Mr. 
Addicott, is the place to be. The only way we are going to 
persuade people on the fence to come our way is to show a 
difference between us and our enemy.
    Now, I do not want to treat these people with kid gloves, 
but I want to--do you agree with this concept, that once we 
capture an enemy combatant, it becomes about us, not them.
    Mr. Addicott. I think, you know, if we detain that 
individual under the law of war--and that is an issue that we 
have not made----
    Senator Graham. But we will do things that they will not do 
to us, and that is good.
    Mr. Addicott. Oh, absolutely. I mean, we----
    Senator Graham. That is a good thing.
    Mr. Addicott. Absolutely.
    Senator Graham. That we will treat them better than they 
will treat us.
    Mr. Addicott. Exactly. And that is why my testimony is--the 
propaganda here is that we have tortured people is a lie. We 
have tortured no one.
    Senator Graham. See, I--if I may just for a moment here, 
waterboarding at the time of 2002, it was not clear what law it 
violated. The Geneva Convention did not apply until 2006----
    Chairman Whitehouse. That would depend what case you read.
    Senator Graham. Yes, well, here is what I am saying. The 
difference between law enforcement and intelligence gathering 
is a big difference. And what you would do to a military 
member, an MP who abused a detainee, would be a violation of 
the UCMJ. The CIA or the FBI, you are not controlled by the 
UCMJ, are you, Mr. Soufan?
    Mr. Soufan. No.
    Senator Graham. Was your interrogation Common Article 3 
compliant?
    Mr. Soufan. Not after 9/11. We get instructions that we do 
not read people, for example, their Miranda rights; we do not 
follow with a lot of things that we used to do, after 9/11, 
when it comes----
    Senator Graham. I would say that there is no FBI 
interrogation of a high-value target Common Article 3 compliant 
simply because Common Article 3 was written to make sure that 
military forces do not abuse civilians. It was never written to 
restrict the ability of a nation to defend itself. And we have 
made a huge mistake here. We have made two big mistakes. We 
adopted interrogation techniques from the Inquisition that have 
survived time because in some cases they do work, Mr. Soufan, 
but they always come back to bite you.
    So I will turn it over now to the Chairman, and hopefully 
we will find some way to move forward here.
    Mr. Luban. Senator, may I comment on something that the 
other witnesses have said?
    Chairman Whitehouse. Very briefly.
    Mr. Luban. First, I do not agree that everybody in 
Guantanamo is an enemy combatant. We do know that there have 
been a number of people that the CSRTs have already cleared of 
being enemies of the United States.
    Senator Graham. Right. I agree with that.
    Mr. Luban. They are still being held there.
    Second, I do not agree that people have not been tortured 
in Guantanamo. I think that it is very clear that Mohamed al-
Kahtani was. As was made, I think, perfectly clear in the 
Schmidt Report, four of the tactics that were used on al-
Kahtani later surfaced to worldwide consternation----
    Senator Graham. Should President Bush be prosecuted for 
authorizing these techniques?
    Mr. Luban. Sir, I do not have any opinion about who should 
be prosecuted for what was done to al-Kahtani.
    Chairman Whitehouse. Well, I have suggested there are too 
many opinions on that going around. We have prosecutors who 
look at that stuff professionally, and we should let them do 
their jobs.
    Mr. Zelikow, you have described the reaction to your 
report, and Senator Graham serves with great distinction on the 
Armed Services Committee, which has done a report of its own. 
Without objection, I would ask that 119 to 128, those pages of 
the report, be admitted into the record. And, selectively, I 
can report from that that there was a great deal of 
disagreement with the OLC analysis and serious concerns and 
objections over some of the legal conclusion reached by OLC; 
that the Navy General Counsel Alberto Mora called the OLC memo, 
relied on by the working group in 2003, ``profoundly in error 
and a travesty of the applicable law''; that now Rear Admiral 
Dalton likewise said that, ``To the extent that the working 
group report relied on the OLC memo, it did not include what I 
consider to be a fair and complete legal analysis of the issues 
involved.''
    There was a chart that was created based on the OLC 
opinion, and the result of that chart, it had a sort of ``green 
means go'' column for techniques that were authorized. Real 
Admiral Dalton again, ``That green column was absolutely wrong 
legally. It was embarrassing to have it in there. Most, if not 
all, working group members and judge advocates general 
disagreed with significant portions of the OLC opinion but were 
forced to accept it.''
    ``At Mr. Hain's direction,'' the report continues, ``Ms. 
Walker instructed the working group, instructed them to 
consider the OLC memorandum as authoritative and directed that 
it supplant the legal analysis being prepared by the working 
group action officers.''
    You in your testimony, Mr. Zelikow, said that when your 
alternative views, if you will, were made known, you heard that 
the memo was not considered appropriate for further discussion, 
to use your phrase, and that copies of your memo should be 
collected and destroyed.
    What do those behaviors tell you about the environment for 
proper legal debate and discussion about this question at the 
highest levels of the administration?
    Mr. Zelikow. It told me that the lawyers involved in that 
opinion did not welcome peer review of their conclusions and, 
indeed, would shut down challenges from peers even inside the 
Government.
    Chairman Whitehouse. Lawyers love to debate. It is our 
nature to quarrel with each other and to exchange views. Is 
there any suggestion that you would draw that they were less 
than perfectly confident in their views when they were not 
willing to subject them to peer review? That is ordinarily 
viewed as the test of confidence in one's judgments.
    Mr. Zelikow. Well, the arguments I was making were pretty 
profound, because if I was right, their whole interpretation of 
the CID standard was fundamentally unsound and raised really 
quite grave issues about their interpretation of constitutional 
law.
    Now, they have a couple of options there. One option is 
either they or the NSC Legal Adviser or the White House Counsel 
is to say, ``Gee, let's take another look at this. The case law 
you cite has some merit. We will take another look.''
    Or they could say, ``Zelikow, boy, this shows how rusty you 
are in practicing law. We need to set you straight and tell you 
why you have just fundamentally misunderstood this whole area 
of the law.''
    They did not do either of those things. Instead, what they 
preferred to do was, C, ``We do not want to talk about it.''
    Chairman Whitehouse. Thank you very much.
    I am going to ask a question of Professor Luban. Then I am 
going to give the distinguished Ranking Member some time, and 
then I think the hearing is already a bit over time, and I have 
a plane to catch to an important engagement. So I will make a 
closing statement after that.
    My question for you, Professor Luban, has to do with the 
Lee decision, a Texas decision. I note that Professor Addicott 
did not cite it in his opinion, despite the fact that he is 
from Texas and it was a Texas decision. I do not know if we 
have the diagram, but Lee describes waterboarding and describes 
it as ``torture'' over and over again. Here is a picture of the 
actual pages of the Federal Reporter highlighting the U.S. 
Department of Justice prosecution about all the times in which 
the court refers to this technique as ``torture.''
    And what is astonishing to me is that in 93 pages where 
they dig out Medicare reimbursement law as relevant, they do 
not find a case on point or they do not discuss a case on point 
in which one of the highest courts in the land, the United 
States Court of Appeals for the Fifth Circuit, describes 
waterboarding and called it repeatedly--I think it is 12 times 
in the opinion--``torture.''
    I have pressed the Department of Justice on this question 
because I think it is unimaginable. I have discussed this on 
the Senate floor. I have pursued it in hearings. Attorney 
General Mukasey's response was that it was not relevant because 
it was brought under the Civil Rights Act, and a case brought 
under the Civil Rights Act does not relate to a case brought 
under the torture statute or under the Convention Against 
Torture. And at that time, I was out of time, and I did not 
have the chance to follow up. But I would like your legal 
opinion on that, because it strikes me that the Civil Rights 
Act under which Sheriff Lee was prosecuted, convicted, and 
jailed for the crime of waterboarding has no substantive 
elements of its own. It is a vehicle for enforcing 
constitutional requirements and for punishing constitutional 
violations. So that the Civil Rights Act leads directly, with 
no interference from the statutory point of view, directly to 
constitutional standards of torture.
    If you look at the Convention Against Torture and what OLC 
itself said about it, the definition of that treaty obligation 
is also founded, according to OLC itself, directly in the 
constitutional standards of the United States. And to the 
extent that the statute against torture applies, it is 
impossible for Congress by statute to overrule the 
Constitution. And so as a matter of fundamental law, the 
statute criminalizing torture cannot create a definition of 
torture that narrows the constitutional definition.
    So it seems to me that wherever you go with this, all roads 
lead to Rome. Rome is the Constitution, and what it says about 
torture, and that the distinction that is drawn is yet another 
false device thrown out there to confuse and distract from the 
fundamental fact that they either missed the case on point or 
they found it, hated it, and did not bother to put it in the 
memo. And I guess we will find out from the OPR which it was.
    But what are your comments on this, Professor Luban?
    Mr. Luban. Senator, I agree with your diagnosis of it. Now, 
the Lee case was decided in 1983. That was before the 
Convention----
    Chairman Whitehouse. Under President Reagan. This was 
charged by the Department of Justice of President Reagan.
    Mr. Luban. That is correct. It preceded the Convention 
Against Torture and the torture statutes, so it is not 
surprising that it did not mention these because they did not 
exist yet.
    The word ``torture'' was not defined eccentrically or in a 
way to change its meaning in the Torture Convention or the 
torture statutes. It is roughly severe mental or physical pain 
or suffering.
    I took the liberty of looking at dictionary definitions of 
torture from around--the dictionaries that would have been 
available to the court that was writing the Lee opinion, and 
that is more or less the same definition that you find in the 
Oxford English Dictionary edition at that time. So the word had 
not mysteriously changed its meaning.
    The torture statute and the Torture Convention were giving 
the words very, very common-sense, everyday, non-technical 
meanings, and what is striking about the Lee case is that the 
court just used the word again and again and again as if it was 
obvious that this technique of leaning the guy back in the 
chair, putting the towel over his face, pouring the water on 
until he thought he was suffocating and started jerking and 
twitching--they had no problem calling it ``torture.'' The word 
means exactly the same thing in the dictionary definitions of 
1983 as the definition in the treaty and the statutes that 
followed. So there is absolutely no reason in the world that we 
should think that the fact that it was decided as a 
constitutional case rather than a torture statute case would 
have led to a different outcome.
    Chairman Whitehouse. Thank you, Professor Luban.
    Senator Graham.
    Senator Graham. Thank you.
    Professor, would it be torture to put a spider in the jail 
cell of a person who was afraid of spiders?
    Mr. Luban. Conceivably. If that person was afraid----
    Senator Graham. I need a black-and-white, yes-or-no answer.
    Mr. Luban. You know, it depends on whether the person 
believes----
    Senator Graham. We believe the person in the jail cell was 
part of a terrorist organization who had information about an 
impending attack, and we know he is afraid of spiders. Would 
you say that if we put a spider in the jail cell that we would 
torture that person?
    Mr. Luban. I would not. There is one circumstance in which 
the answer would be yes--that is, if he knew or believed--if it 
was known that he believed that spiders are deadly, because 
part of the torture statute says that you can inflict mental 
pain and suffering that is torture by threatening death to 
someone if it causes mental----
    Senator Graham. Isn't the point to it----
    Mr. Luban. To an ordinary person, no.
    Senator Graham. Okay. Well, we are trying to exploit 
phobias here without--Mr. Addicott has a different view of what 
happened here in terms of torture. Do you think he is unethical 
if he arrives at a different view of what happened here?
    Mr. Luban. I think that he--I do not think that he is 
unethical for arriving at a different view. I think he would be 
unethical if he ignored the relevant law and told you that----
    Senator Graham. Have you ever met Mr.----
    Mr. Luban [continuing].--His official legal opinion was----
    Senator Graham. Have you ever met Mr. Bybee?
    Mr. Luban [continuing].--That it was not torture.
    Senator Graham. Have you ever met Mr. Bybee?
    Mr. Luban. I have never met him.
    Senator Graham. Have you met any of these people?
    Mr. Luban. I met----
    Senator Graham. So you are basing----
    Mr. Luban [continuing].--John Yoo once.
    Senator Graham. You are basing your opinion because they 
did not cite a case that you think is dispositive, they are a 
bunch of crooks? I mean, is that what this comes down to, your 
opinion that no reasonable lawyer could write a memo and 
exclude this case without being unethical? Is that what you are 
telling this Committee?
    Mr. Luban. This case is just one example out of many. I 
think that no reasonable lawyer could discuss the commander-in-
chief power----
    Senator Graham. How could Mr. Addicott----
    Mr. Luban [continuing].--And not cite Youngstown.
    Senator Graham. How could Mr. Addicott come to a completely 
different conclusion about the common definition of torture and 
not be unethical?
    Mr. Luban. Well, Senator, I cannot speak for Mr. Addicott, 
but----
    Senator Graham. Well, let him speak for himself.
    Mr. Luban [continuing].--I will--I would be happy to 
mention that the Ireland case that he leaned his opinion on is 
not the only European court case on the meaning of torture----
    Senator Graham. Well, the fact that you did not tell me 
about the Ireland case----
    Mr. Luban [continuing].--There are subsequent cases that 
have called, for example, for hosing somebody down with water--
--
    Senator Graham. Mr. Luban, the fact that----
    Mr. Luban [continuing].--Torture.
    Senator Graham. Please. The fact that you did not tell me 
about the Ireland case, can I assume that you were trying to 
hide something from me?
    Mr. Luban. Sir, I am not writing an opinion that is binding 
on----
    Senator Graham. Why doesn't it work both----
    Mr. Luban [continuing].--The entire executive branch----
    Senator Graham [continuing].--Ways?
    Mr. Luban [continuing].--Of Government.
    Senator Graham. Well, you are telling the Nation what is 
wrong and what is right, and he has told me about a case that I 
did not even know about that suggests that the techniques in 
question have been looked at by an international body, and the 
ones that we used are less severe than the ones that were found 
not to be torture, and you did not tell me about it. Did you 
know about it?
    Mr. Luban. Sir, I am not telling you what is right and 
wrong. I am telling you----
    Senator Graham. Did you know about the case?
    Mr. Luban [continuing].--What is ethical and unethical 
conduct----
    Senator Graham. Did you know about the case?
    Mr. Luban [continuing].--By a lawyer.
    Senator Graham. Did you know about the case, the Ireland 
case?
    Mr. Luban. Of course I did.
    Senator Graham. Well, you know what? I do not think you are 
unethical.
    Mr. Luban. Thank you. I greatly appreciate that, and my----
    Senator Graham. Mr. Addicott.
    Mr. Addicott. I have also got some further bad news for Mr. 
Soufan, who I respect very greatly in his interrogation work. 
If you look at the 2003 Supreme Court case of Chavez v. 
Martinez, you have an identical set of facts here. You had an 
individual that was interrogated while in an emergency room. He 
had been shot five times in the face by a police official, and 
Justice Stevens said that that practice was torture. Now, thank 
goodness he was in the minority----
    Senator Graham. This hearing is bordering on----
    Mr. Soufan. Can I respond to----
    Mr. Addicott. Thank goodness he was in the minority in that 
case, because Justice Clarence Thomas, of course, rendered----
    Chairman Whitehouse. Professor Addicott, wouldn't it depend 
on--you are not suggesting that it is torture to interview 
somebody in a hospital?
    Mr. Addicott. That is what Justice Stevens suggested in 
Chavez v. Martinez in----
    Chairman Whitehouse. So it is your opinion as a law 
professor that Chavez v. Martinez stands for the proposition 
that it is torture for law enforcement to ever question a 
suspect in a hospital?
    Mr. Addicott. My opinion is that Stevens was wrong, but I 
am just saying that is what Stevens' opinion was.
    Chairman Whitehouse. You think it stands for the 
proposition that Stevens would oppose any interrogation of any 
criminal defendant in a hospital?
    Mr. Addicott. That is what he said in his opinion, page 10 
of my testimony.
    Mr. Soufan. Can I respond, please, to some of those 
assertions.
    First, the timeline that was criticized before, the memo 
that----
    Senator Graham. Excuse me. We will let you explain, but I 
have got a few questions, then you can say anything you want, 
because you are a great American.
    Mr. Soufan. Okay. Thank you.
    Senator Graham. Now, about the interrogation of this 
suspect, do you know a gentleman named John K-I-R-I-A-K-O-U?
    Mr. Soufan. Me?
    Senator Graham. Yes.
    Mr. Soufan. No, I do not know him.
    Senator Graham. Okay. He gave an interview--he is a retired 
CIA officer, and he said Abu Zubaydah--is that the guy's name?
    Mr. Soufan. Yes.
    Senator Graham. Did I say it right? He said that they 
waterboarded the guy and he broke within 35 seconds.
    Mr. Soufan. Is this question for me, sir?
    Senator Graham. Yes.
    Mr. Soufan. Well, last week, he retracted that and he said 
he was misinformed, and actually he was not at the Abu Zubaydah 
location.
    Senator Graham. Okay. So he just----
    Mr. Soufan. He retracted that, yes, sir. That is one of the 
things that was mentioned before.
    Senator Graham. Right, right.
    Mr. Soufan. And now we know it is 83 times, not 35 seconds.
    Senator Graham. Now, do you believe that any good 
information was obtained through harsh interrogation 
techniques? Can you say that there was no good information?
    Mr. Soufan. Well, from what I know on the Abu Zubaydah, I 
would like you to evaluate the information that we got before--
--
    Senator Graham. Well, the Vice President is suggesting that 
there was good information obtained, and I would like the 
Committee to get that information. Let's have both sides of the 
story here.
    One of the reasons these techniques have survived for about 
500 years is apparently they work.
    Mr. Soufan. Because, sir, there are a lot of people who do 
not know how to interrogate, and it is easier to hit somebody 
than outsmart them.
    Senator Graham. I understand that you believe you got it 
right and you know how to do it and these other people do not. 
I understand. I understand that. In many ways, I agree with 
you. But this idea that you are the complete knowledge of what 
happened in terms of interrogation techniques and what was 
gained is not accurate. Your testimony is not a complete 
repository of what happened during these interrogation 
techniques of high-value targets. There are other 
interrogations going on, and there is an allegation made that 
these interrogations yielded information that protected 
Americans. If we are going to talk about it, let's talk about 
it in complete terms.
    Chairman Whitehouse. And to be fair to the witness, 
Senator, I think he has not represented himself----
    Senator Graham. No, and I do not think----
    Chairman Whitehouse.--as anything more than somebody who 
can----
    Mr. Soufan. I mentioned my own personal experience.
    Chairman Whitehouse.--that arose from the----
    Senator Graham. Right, and I have nothing but the----
    Chairman Whitehouse.--interrogation of Abu Zubaydah.
    Senator Graham.--highest regard for this gentleman. I just 
know this is not it. This is not the whole story. And the point 
is, Do we need to keep doing this? I think we have cleaned up 
this mess. We have got it right, generally speaking. And the 
more we get into this, the more we are going to make it 
chilling for the next group of people who are asked to defend 
this Nation, and that leads me to my last question.
    Do you believe it would be wrong for President Obama to 
authorize a technique outside the Army Field Manual if the CIA 
told him they had a high-value target that they believe 
possesses information about an imminent attack?
    Mr. Soufan. I believe that they should ask other 
professional interrogators to evaluate----
    Senator Graham. I am telling you what the----
    Mr. Soufan.--that detainee.
    Senator Graham. Do you believe that the CIA--do you think 
Leon Panetta is qualified for his job?
    Mr. Soufan. Well, I believe he is extremely qualified for 
his job. I did not agree with a lot----
    Senator Graham. Let me tell you, these--I am going to read 
something to you.
    Chairman Whitehouse. If we are going to get into the 
qualifications of Panetta.
    Senator Graham. Yes, this is important, though.
    Mr. Soufan. Right.
    Senator Graham. Ron Wyden asked him, ``If a person has 
critical threat information, urgent information, and you need 
to be able to secure that information,'' he asked Panetta, 
``What would you do? ''
    ``In that particular situation that you mentioned, where 
you have someone who could be a ticking time bomb and it is 
absolutely necessary to find out what information that 
individual has, I think we would have to do everything 
possible, everything possible within the law to get that 
information. If we had a ticking time bomb situation, obviously 
whatever was being used I felt was not sufficient, I would not 
hesitate to go to the President of the United States and 
request whatever additional authority I would need. But 
obviously I will again state that I think this President would 
do nothing that would violate the laws that were in place.''
    Having said----
    Chairman Whitehouse. Wrap it up. I am sorry.
    Senator Graham. Okay. Wrap it up. Would the President of 
the United States, President Obama, be wrong in considering a 
request from the CIA to engage in interrogation techniques 
beyond the Field Manual but that yet were lawful?
    Mr. Soufan. Sir, from the quote that you read, the key word 
in it from Director Panetta, ``within the law.'' Within the 
law, yes, the President can authorize whatever----
    Senator Graham. Right. Is the Army Field Manual the 
complete law on what is----
    Mr. Soufan. No. It is an outline for interrogations.
    Senator Graham. Thank you.
    Chairman Whitehouse. All right. Thank you all very much. I 
appreciate----
    Mr. Soufan. Can I--can I just----
    Chairman Whitehouse. I am sorry. I have to end the hearing. 
I have a plane that I cannot miss, and I just want to wrap up 
by adding the following statements into the record: from Mike 
Ritz, a former U.S. military interrogator; from Peter Shane, a 
professor at Ohio State University, Moritz College of Law; from 
Colonel Steve Kleinman, U.S. Air Force Reserve, a professional 
interrogator; from Matthew Alexander, a professional 
interrogator in the U.S. Air Force Reserve and author of ``How 
to Break a Terrorist''; from Elisa Massimino of Human Rights 
First; the Senate Armed Services Committee report I think I 
already put into the record; and the testimony of Michael 
Stokes Paulson.
    I would like to close with the words of Matthew Alexander 
from his statement. ``As an interrogator in Iraq, I conducted 
more than 300 interrogations and supervised more than 1,000. I 
led the interrogations team that located Abu Musab al-Zarqawi, 
the former leader of al Qaeda in Iraq and one of the most 
notorious mass murderers of our generation. At the time that we 
killed Zarqawi, he was the No. 1 priority for the United States 
military, higher than Osama bin Laden. I strongly oppose the 
use of torture or abuse as interrogation methods for both 
pragmatic and moral reasons.''
    ``There are many pragmatic reasons against torture and 
abuse. The first is the lack of evidence that torture or abuse 
as an interrogation tactic is faster or more efficient than 
other methods. In my experience, when an interrogator uses 
harsh methods that fit the definition of abuse, in every 
instance that method served only to harden the resolve of the 
detainee and made them more resistant to interrogation.''
    ``The second pragmatic argument against torture and abuse 
is the fact that al Qaeda used our policy that authorized and 
encouraged these illegal methods as their No. 1 recruiting tool 
for foreign fighters. While I supervised interrogations in 
Iraq, I listened to a majority of foreign fighters state that 
the reason they had come to Iraq to fight was because of the 
torture and abuse committed at both Abu Ghraib and Guantanamo 
Bay. These foreign fighters made up approximately 90 percent of 
the suicide bombers in Iraq at that time. In addition to 
leading and participating in thousands of attacks against 
coalition and Iraqi forces, it is not an exaggeration to say 
that hundreds, if not thousands, of American soldiers died at 
the hands of these foreign fighters. The policy that authorized 
and encouraged the torture and abuse of prisoners has cost us 
American lives.''
    ``I deployed to the war with four other Air Force special 
agents with experience as criminal investigators. We brought 
with us skills and training that were unique compared to our 
Army counterparts. We learned to interrogate criminal suspects 
using relationship building and non-coercive police 
investigative techniques. I learned quickly that al Qaeda has 
much more in common with criminal organizations than with 
traditional rank-and-file soldiers. I used techniques permitted 
by the Army Manual under the terms psychological ploys, verbal 
trickery, or other non-violent or non-coercive subterfuge to 
great success, and I taught these techniques to other members 
of my interrogation team.''
    ``I also want to address the so-called ticking time bomb 
scenario that is so often used as an excuse for torture and 
abuse. My team lived through this scenario every day in Iraq. 
The men that we captured and interrogated were behind Zarqawi's 
suicide bombing campaign. Most of our prisoners had knowledge 
of future suicide bombing operations that could have been 
prevented with the quick extraction of accurate intelligence 
information. What works best in the ticking time bomb scenario 
is relationship building, which is not a time-consuming effort 
when conducted by a properly trained interrogator and non-
coercive deception.''
    ``Contrary to popular belief, building a relationship with 
a prisoner is not necessarily a time-consuming exercise. I 
conducted point-of-capture interrogations in Iraqi homes, 
streets, and cars, and I discovered that in these time-
constrained environments where an interrogator has 10 or 15 
minutes to assess a detainee and obtain accurate intelligence 
information, relationship building and deception were again the 
most effective interrogation tools. It is about being smarter, 
not being harsher.''
    ``When I took the oath of office as a military officer, I 
swore to uphold and defend the Constitution of the United 
States of America, which specifically prohibits cruelty toward 
any person in the Eighth Amendment. In addition, torture and 
abuse are inconsistent with the basic principles of freedom, 
liberty, and justice upon which our country was founded. George 
Washington during the Revolutionary War specifically prohibited 
his troops from torturing prisoners. Abraham Lincoln prohibited 
Union troops from torturing Confederate prisoners. We have a 
long history of abiding by American principles while conducting 
war.''
    ``I can offer no better words than those of General George 
C. Marshall, the orchestrator of the Allied victory in Europe 
during World War II, who stated, `Once an army is involved in 
war, there is a beast in every fighting man which begins 
tugging at its chains. A good officer must learn early on how 
to keep the beast under control, both in his men and in 
himself.' ''
    ``We are smart enough to effectively interrogate our 
adversaries, and we should not doubt our ability to convince 
our detainees to cooperate. American culture gives us unique 
advantages that we can leverage during interrogations--
tolerance, cultural understanding, intellect, and ingenuity.''
    ``In closing, the same qualities that make us great 
Americans will make us great interrogators.''
    I had planned longer remarks, but given the hour, I think I 
will conclude with those words, which are very helpful, and I 
would add for the record pages from a book called ``Camp 020,'' 
describing the techniques employed by British Military 
Intelligence when the Nazi threat loomed over their country, 
presumably a threat at least equal to the threat of al Qaeda to 
our country, and their findings, among other things, that 
violence in interrogations is inappropriate. For one thing, it 
is the act of a coward; for another, it is unintelligent.
    Senator Graham. Well, thank you, Mr. Chairman. Maybe we 
will end this hearing with some agreement. If we are talking 
about do I agree with what the--was it the lieutenant that you 
read, the statement?
    Chairman Whitehouse. Michael Alexander.
    Senator Graham. Yes. I mean, I generally agree with that. I 
have been a military lawyer all my life. I believe in the 
Geneva Convention. I believe that the moment we capture 
somebody, the obligation falls upon us to abide by the 
Convention. And if you do not want to live by the Convention, 
get out of it.
    Now, there are people who have a different view. There are 
people, quite frankly, Mr. Soufan, that if we called as 
witnesses would probably graphically describe what they did and 
the information they received gave us knowledge about the enemy 
we would not have had otherwise.
    Chairman Whitehouse. I am terribly sorry to have to do 
this.
    Senator Graham. Can I----
    Chairman Whitehouse. Yes.
    Senator Graham. Okay.
    Chairman Whitehouse. What I would like to do is to close 
the hearing at the conclusion of Senator Graham's remarks. 
There is a week to add any testimony that anybody wishes. I 
cannot miss this plane. I apologize very much.
    Senator Graham. You go.
    Chairman Whitehouse. You have the floor, and at the 
conclusion of your remarks, the hearing is over.
    Senator Graham. [Presiding.] Thank you. They will not be 
long. Go to the airport, and you will get screened, but that is 
good.
    Now, the point that I am trying to make is that how you 
come down on this situation does not mean you are unethical and 
it does not make you a criminal. I have always believed that 
when you engage in harsh interrogation techniques like 
waterboarding, eventually it comes back to bite you. And it 
has. It is just not, I think, necessary to win the war.
    But the people who were devising these interrogation 
techniques right after 9/11 were not criminals. They were what 
you said, Mr. Turner. They were Americans who were afraid that 
the next attack is on its way. And if you are going to be 
balanced about this----
    [Protester interrupts.]
    Senator Graham. Have a good day.
    If you are really going to be balanced about this, that 
needs to be told, too. And we need to look forward. And Abraham 
Lincoln suspended habeas corpus, OK? That is part of his 
legacy, is he thought the Nation was coming apart, and he was 
right. And he was trying to keep it together. A hundred 
thousand Japanese Americans were put in jail for being nothing 
other than Japanese. Did we go back and try anybody for that 
abuse?
    All I am saying is that these interrogation techniques were 
shared with Members of Congress who somehow cannot remember 
what they are told. And to me, that is the best evidence that 
we were trying to make policy, not violate the law.
    Now, Mr. Luban, I do not believe these people are 
unethical. I just think they did what Mr. Turner said. They 
made some mistakes out of fear. And we have learned from those 
mistakes. And here is my biggest fear: that if we keep doing 
this, and I bring a CIA agent in that tells the country, ``Let 
me tell you what I got when I waterboarded somebody or what I 
did to this person, let me tell you what I learned,'' we are 
going to tear this country apart.
    I agree with you, but there are other people out there who 
took a different view and understood the law was subject to 
different interpretations, and the British may not have 
tortured people in Northern Ireland, but they turned the people 
in Northern Ireland against them. That is the downside of what 
they were doing. They were legally probably not torturing 
people. I agree with you, Mr. Addicott. But they made a mistake 
when it came to winning over the people of Northern Ireland. 
And that is the point I am trying to make.
    We have made mistakes in this war. We are going to make new 
ones. And I do not want to take off the table for this 
President the ability to do things beyond the Army Field Manual 
to protect this Nation. If we restrict ourselves to the Army 
Field Manual, shame on us. It is the Field Manual, written for 
soldiers to make sure they do not get themselves in trouble, 
not to get intelligence about the next impending attack. Isn't 
that right, Mr. Turner?
    Mr. Turner. I agree.
    Senator Graham. It is a guide to the soldier in the field. 
It was never written to be the end-all and be-all of how you 
protect this Nation. And if we adopt that theory, we have made 
a huge mistake and learned nothing from the past. And if we put 
it online and that is the only way we can interrogate somebody, 
we are stupid.
    So let's don't misunderstand the mistakes of the past to 
the point that we restrict ourselves in the future from being 
good Americans, but understanding that we are at war. We have 
put people in Guantanamo Bay that were not enemy combatants. 
The net was cast too large, and some people have been put there 
that should have never gone. There are some people who have 
been let go that should never have been let go.
    My goal is to have a process, Mr. Zelikow, that would allow 
us as a Nation to hold our head up high and say no one is in 
jail at Guantanamo Bay because Dick Cheney said so. The only 
people that are in jail in Guantanamo Bay are there because the 
evidence presented to an independent judiciary by our military 
passed muster with the judicial system. They are there because 
they are a military threat. And that when you try these people, 
they are tried not because we hate them, but because of what 
they did, and that that decision will go all the way up to the 
Supreme Court for review.
    There is a way to move forward. There is a way to learn 
from the past. But if we look backward and we get the wrong 
message, we are going to make us less safe. The message coming 
from the mistakes of the past are not unilaterally surrender, 
not to treat these people as common criminals, because they are 
certainly not. The message from the past is when you abide by 
American principles, you are stronger than your enemy. When you 
go backward from those principles, it comes back to bite you. 
But the principle that I am advocating is an aggressive, 
forward-leaning, ``hit them before they hit us'' attitude. Find 
out what they are up to. Find out where they are getting their 
money and keep them on their back foot. And we can do that, Mr. 
Soufan, without having to go back to the Inquisition.
    Mr. Soufan. I totally agree with you.
    Senator Graham. And I am so afraid that what we are doing 
here today is going to chill out the legal advice to come in 
the future and that we are putting men and women at risk of 
having their reputations ruined in the prosecution or civil 
lawsuits who did nothing but try their best to defend this 
Nation.
    Thank you all.
    [Whereupon, at 12:35 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record.]

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