[Senate Hearing 111-786]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-786
 
THE OFFICE OF PROFESSIONAL RESPONSIBILITY INVESTIGATION INTO THE OFFICE 
                       OF LEGAL COUNSEL MEMORANDA

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 26, 2010

                               __________

                          Serial No. J-111-75

                               __________

         Printed for the use of the Committee on the Judiciary



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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 GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas........     9
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     7
    prepared statement...........................................    42
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement and attachments..................    44
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................    48
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    68
New York Times:
    February 25, 2010, editorial.................................    71
    February 12, 2010, editorial.................................    73
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     4
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island, prepared statement and attachments.....................    76

                               WITNESSES

Grindler, Gary G., Acting Deputy Attorney General, U.S. 
  Department of Justice, Washington, DC..........................    12

                         QUESTIONS AND ANSWERS

Responses of Gary G. Grindler to questions submitted by Senators 
  Leahy and Whitehouse...........................................    27

                       SUBMISSIONS FOR THE RECORD

Attorney Generals, Department of Justice, Washington, DC, joint 
  letter.........................................................    38
Citizens for Responsibility and Ethics in Washington (CREW), 
  Melanie Sloan, Executive Director, Washington, DC, letter......    40
Frisch, Michael S., Washington, DC, statement....................    51
Government Accountability Project (G.A.P.), Jesselyn A. Radack, 
  Homeland Security Director, and Kathleen McClellan, Homeland 
  Security Counsel, Washington, DC, joint statement and 
  attachment.....................................................    56


THE OFFICE OF PROFESSIONAL RESPONSIBILITY INVESTIGATION INTO THE OFFICE 
                       OF LEGAL COUNSEL MEMORANDA

                              ----------                              


                       FRIDAY, FEBRUARY 26, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:12 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Durbin, Sessions, and Cornyn.

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

    Chairman Leahy. Good morning, and I apologize for the 
delay. I understand the local newscast was on this morning 
talking about the major power outages in parts of Northern 
Virginia. When I looked out the window where I live out there, 
I could see the satellite truck broadcasting. Unfortunately, I 
could not watch it because I was part of the power outage, 
which is interesting--well, I have a great deal of sympathy for 
the power companies. The winds are so high. I would not want 
for my convenience or anybody else's convenience that they risk 
their lives going up in their lifts to hook the power up. We 
can go without that for a while.
    Senator Sessions. Well, you missed that good CNN show this 
morning on you and Senator Lugar looking so fabulous and 
getting along in a bipartisan way. What a puff piece.
    [Laughter.]
    Senator Sessions. I mean, goodness, how much did that cost 
you? Was that a paid ad?
    Chairman Leahy. Dick Lugar and I have been best of friends 
for over 30 years.
    Senator Sessions. It was nice.
    Chairman Leahy. We actually filmed it in here, but he and I 
started out as the two most junior members of the Senate 
Agriculture Committee, and this is how things have changed. We 
were sitting at a long table, and we were down way at the end. 
We were almost in the anteroom as though they did not want us 
even in there, he on the Republican side, me on the Democratic 
side. And the Chairman at that time was a man named Herman 
Talmadge from Georgia, and Herman Talmadge and Jim Eastland of 
Mississippi would sit up at the part of the table smoking big 
Cuban cigars. They were very anti-Communist. They were burning 
Castro's crops. But they would be puffing away, and they would 
kind of mutter, an amendment, a legal, technical amendment, 
usually about this thick, and I had the temerity once, when 
Dick and I were trying to figure out what was in the amendment, 
and I raise my hand, and I said, ``Mr. Chairman, could you tell 
me what was in that amendment that we just passed?'' And they 
both looked down there. You could see them muttering, like 
``Who the heck are these guys?'' He takes his gavel, and he 
says, ``We are adjourned.''
    [Laughter.]
    Chairman Leahy. On the way out, Hubert Humphrey mentioned 
to us now we understand what was in the amendment. We are much 
nicer. The Chairmen now just get run over by everybody else on 
the Committee, and it is a different world. But thank you for 
the compliment.
    Senator Sessions. It was a good show.
    Chairman Leahy. As you know, Senator Lugar is one of the 
all-time gentlemen of the Senate, and I like working with you, 
Senator Sessions, Senator Durbin, and others. The nicest thing 
about the Senate is working with all of you.
    It has now been more than a year now, on a more serious 
subject, since I first proposed the establishment of an 
independent, nonpartisan commission to engage in a 
comprehensive inquiry to determine how the U.S. Government came 
to authorize torture. And I had asked for such a nonpartisan 
commission a year ago. I wanted to take it out of politics, 
have been something like the 
9/11 Commission look into it. Without support, we were unable 
to get that, and I think that is unfortunate.
    But since that time, we have seen more and more evidence of 
what went wrong. We have seen the release of more Office of 
Legal Counsel memoranda documenting the authorization of brutal 
practices, an Inspectors General report that calls into 
question the guidance given by the Department of Justice, a CIA 
Inspector General report that reveals even those lax standards 
were violated during interrogations, and last week, finally, 
the release of the results of the Office of Professional 
Responsibility inquiry into the legal advice given by those at 
the Office of Legal Counsel.
    I go down through that chronology because I think all these 
narrower reports point to why we need a comprehensive review. 
None of them can state definitively why these practices veered 
so far from American values.
    The OPR investigation was limited to determining whether or 
not legal profession rules were violated. Well, that is the 
business of bar associations. Let bar associations worry about 
that. In my view, it is the wrong focus. These legal memoranda 
were only a part of the problem. They were intended to provide 
a ``golden shield'' to commit torture and get away with it.
    As is now evident, even though the OPR investigation has 
consumed years, it is not complete. The investigators were 
denied access to key witnesses and documents. Did they 
interview David Addington, the counsel to Vice President 
Cheney? No. But yet, according to Alberto Gonzales and Jack 
Goldsmith, he was a key figure. Mr. Gonzales, former Attorney 
General, called him an ``active player'' in the drafting of 
these memoranda. Did they have the full record of John Yoo's 
communications with the White House? No. There are so many gaps 
in this report that, in fact, my first question to the Justice 
Department witness today is going to be, ``Where are Mr. Yoo's 
e-mails, which, by law''--by law--``are required by law to be 
maintained?''
    The fundamental question here is not whether these were 
shoddy legal memos. They were shoddy legal memos. Everybody 
knows that. The legal work of Yoo and Bybee and Steven 
Bradbury, the acting head of OLC who reaffirmed the CIA 
interrogation program, was flawed. It failed to cite 
significant case law; it twisted the plain meaning of statutes.
    The legal memoranda were designed to achieve an end. That 
is not what the Office of Legal Counsel should do, nor has ever 
done in any other administration, Republican or Democratic. 
These administration lawyers of the last administration, 
frankly, lost their way.
    In my view, President Bush was actually disserved by the 
lawyers who worked for him. These lawyers told the 
administration not what President Bush should have heard, but 
rather what Vice President Cheney wanted to hear. Without 
question, our Government institutions were undermined. The rule 
of law was disrespected. The American people were harmed and I 
think put at far greater security risk. The torture of 
individuals was not just a violation of our laws and treaties; 
it handed al Qaeda a valuable propaganda tool to gain new 
recruits. Instead of making us safer, it made us less safe.
    Focusing on whether these lawyers failed to meet legal 
ethical standards misses the fundamental point. The real 
concern is that lawyers who were supposed to be giving 
independent advice regarding the rule of law and what it 
prohibits were instead focused on excusing what the Bush-Cheney 
administration wanted to do. These lawyers abandoned their 
independent responsibilities to become apologists.
    The role of the White House in the politicization of the 
OLC and in ensuring that these opinions delivered the legal 
immunity they were looking for has yet to be fully explored. My 
sense is that such a review would reveal the same untoward and 
corrupting influence we found when we investigated the purging 
of United States Attorneys for blatant political purposes.
    As disturbing as the findings and evidence from this 
limited investigation are, they are not the final arbiter. I do 
believe we need a true accounting and a comprehensive, 
nonpartisan review. For the country to recover from this era, 
we should know what went wrong so that it will not happen again 
under this administration or the next administration or the 
administration after that.
    Unfortunately, the Obama administration's attempts to 
repair this office and ensure that its lawyers are providing 
the Government with principled advice have been hamstrung by 
those who are continuing to delay appointment of the 
President's nominee to head the OLC.
    Now, I have been conducting oversight of these issues for 
years. I was deeply concerned this country was treating people 
in our custody in a way that went against our laws and our 
values. That is why I did not hesitate to issue subpoenas for 
these memoranda when the last administration refused to 
cooperate, and the release of those memos revealed how they 
were justifying torture. I am going to continue that aggressive 
oversight. I want to make sure that no future administration--I 
do not care whether it is of my party or the other party--makes 
such mistakes.
    Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Mr. Chairman, for the last several years, 
this Committee----
    Chairman Leahy. Excuse me. Could I just mention that 
Senator Feinstein intended to be here, was looking forward to 
being here, in fact, had changed her plans to fly back to 
California to be here. She is not feeling well this morning, 
and that is why she is not here. She has been a very, very 
valuable assistant in this. I apologize.
    Senator Sessions. For the last several years, the Judiciary 
Committee and the Armed Services Committee, of which I have 
been a part, as well as the Intelligence Committee, have spent 
an extraordinary amount of time debating and investigating 
legal and factual policy questions surrounding how we conduct 
the war with al Qaeda and other organizations, and second-
guessing good people who made tough decisions at difficult 
times. So I think we ought to put this in context.
    Today we are discussing memos that were written in 2002, 
not long after the 9/11 attack, when we did not know the extent 
of the infiltration into this country by cells that may have 
been planning further attacks. The memorandums that were then 
written were repealed in 2004, yet here we are in 2010 in large 
part because of the missteps and delays by the Department of 
Justice's Office of Professional Responsibility holding a 
hearing today to go through the issue one more time.
    My big overall concern, Mr. Chairman, as I have expressed 
before and in the Armed Services Committee and on the floor of 
the Senate, is that, yes, there were three instances of 
waterboarding that have received severe criticism. But I would 
say that the nature, extent, and the rhetoric coming out of our 
committees has created an impression worldwide that there has 
been systematic torture of people in prisons in the United 
States, that we violated laws consistently, that the President 
had a policy to violate the law, and these hearings I think 
have made clear that that is really not correct. We do not need 
to, for heaven's sakes, tell the world our actions were worse 
than they are--driven, what, by some political opposition to 
the war? Every time you are in a conflict, the anti-war groups 
always find something to complain about because war is a very 
bitter, tough, dangerous life-and-death matter. People are 
killed. Sometimes innocent people are killed. That is just the 
nature of it, no matter how hard you work against it.
    The people who desire to undermine a policy decided on by 
both parties and both Houses of Congress along with the 
President use these kind of discrete errors and events and 
missteps as a basis to attack the policy, and we have got to be 
aware of that, I think, as we go forward.
    In the aftermath of September 11th, lawyers in the 
Department of Justice and our National security professionals 
have one unifying goal: preventing another attack on this 
country. The President said, ``I am going to use every power I 
have to defend this country.'' He meant that, and the American 
people said, ``Yes, we agree with that.''
    So the question is: What were the reaches of the 
President's power? How much power did he have? Lawyers are in 
deep disagreement about that. So these lawyers' job was 
serious. The pressures were enormous, to determine where the 
legal lines should be drawn and how far could they be pushed. 
Were they crossing the lines of propriety or were they just 
near the lines of propriety? That is what the President asked 
them to do. I think that is what the American people wanted, to 
use all the power that we could use. I do not think the 
American people wanted us to violate the law.
    In his important book ``The Terror Presidency,'' Jack 
Goldsmith, who disagreed with some of these policies, discussed 
openly and honestly what he called the ``national security 
lawyer's dilemma,'' which was borne out the conflicting 
commands and pressures that they have upon them. And this is 
what he said: ``Stay within the confines of the law, even when 
the law is maddeningly vague, or you will be investigated and 
severely punished. But be proactive and aggressive and 
imaginative. Push the law to its limit. Do not be cautious and 
prevent another attack at all costs, or you will be 
investigated and punished.''
    Times have changed. Jack Goldsmith's discussion--what could 
be termed a ``prediction'' now--of retroactive discipline and 
judgments in hindsight have become a reality in the 
investigation undertaken by the Office of Professional 
Responsibility in this matter, and I fear we are now in what 
Mr. Goldsmith called a cycle of timidity. Whatever the reason, 
the Obama administration has taken a dangerous turn away from 
the lessons I think we learned after 9/11. We have discussed 
some of those errors at some length here.
    In 2010, we have an administration that not only repealed 
tough and effective interrogation techniques that are lawful, 
but announced to the terrorists around the world that we have 
done so in favor of a far more limited Army Field Manual.
    We have an administration that gave Miranda warnings and a 
lawyer to a terrorist directly coming to America with an al 
Qaeda bomb to attack this country, who tried to blow up an 
airplane on Christmas Day, rather than questioning him 
aggressively for intelligence purposes so that we could learn 
all that we could as quickly as we could about al Qaeda and its 
new expanded presence in Yemen. We have an administration that 
insists on giving Miranda warnings to terrorists caught during 
wartime on the battlefields in Iraq and Afghanistan. We have an 
administration that has announced that it intends to hold an 
Article III common criminal trial for Khalid Sheikh Mohammed 
and other terrorists that are being held at Guantanamo Bay 
rather than prosecuting them, as the Attorney General has 
admitted is quite legal, through military commissions, which 
are constitutionally appropriate and have a long history in 
this country and in other countries.
    These policy decisions are troubling and, in my view, 
dangerous. They have been made for reasons inexplicable to me, 
perhaps because the administration is trying to assuage the 
pressures from the left and maybe because some of the chief 
critics and anti-war activists who now populate the Department 
of Justice are involved in making current legal policy.
    I am afraid that investigations like the one OPR conducted 
against Jay Bybee and John Yoo have sent a devastating message 
to those who might serve as national security lawyers. In the 
immediate aftermath of September 11th, under pressure so great 
that Attorney General Mukasey and Deputy Attorney General Mark 
Filip noted that they would wish it on ``no American ever and 
certainly no member of the Department of Justice,'' John Yoo 
and Jay Bybee crafted two legal memoranda on the subject of 
enhanced interrogation techniques. One of those memos was later 
leaked to the press, and Members of Congress called for an 
investigation of the circumstances surrounding the drafting of 
this memo.
    After 5\1/2\ years, two drafts and one final report later, 
the Office of Professional Responsibility concluded, apparently 
without sufficient legal or factual basis, that Mr. Bybee and 
Mr. Yoo had violated legal ethics rules and deserved to be 
referred to sanctions by State bar authorities. The D.C. Bar 
Association ethics rules and standards would be imposed on 
people with the job of providing guidance concerning some of 
the most dangerous work this country was engaged in. I think 
there is a danger there.
    There is much that can be discussed about OPR's work in 
this matter, most of it not flattering. They dropped their 
first version of the report on Attorney General Mukasey on 
December 23, 2008, at the end of the Bush administration, and 
with little time for the Attorney General to respond. The first 
report was full of gaping holes, shoddy legal analysis, and 
something even worse--a clear desire to punish, it seems, Mr. 
Yoo and Mr. Bybee, even if the facts did not support it. Later 
versions of that OPR report attempted to change the legal 
standard to an unprecedented heightened standard that OPR 
contended applied only to Mr. Yoo and Mr. Bybee, the unfair 
equivalent of moving the goalposts in the middle of the game. 
And someone, by press accounts, perhaps OPR lawyers themselves, 
repeatedly leaked the draft reports and conclusions to the 
media in what would seem to be a transparent attempt to 
embarrass Mr. Yoo and Mr. Bybee and gain public support for 
their conclusions.
    So I think that is unacceptable, and I am going to want to 
know whether the Department is investigating those leaks to 
determine whether they came from within the Department of 
Justice. Fortunately in this matter, cooler and wiser heads 
have prevailed. The senior career official at the Department, 
David Margolis, who has been held in great respect for many, 
many years, rejected OPR's efforts. Mr. Margolis, who has 
conducted the final review of every discipline matter of this 
sort in the last 17 years in the Department of Justice, drafted 
a 69-page opinion that lays out in great detail the serious 
problems with OPR's analysis. The Washington Post has called 
his opinion ``courageous'' and ``correct.'' And I agree.
    So where do we go from here? How does OPR rebuild its 
reputation and credibility? Can it even do so? And, most 
importantly, how can we undo the damage that misguided 
investigations of this sort have on the willingness of national 
security lawyers to take on tough questions of life and death 
and provide candid legal advice without fear that their 
reputations and even their livelihoods and careers will be 
threatened if they give advice that falls out of political 
favor in years to come?
    So I hope we will be able to talk about this, Mr. Chairman. 
I know it is important to you, and I know a lot of my 
colleagues feel like the Government went too far in some of the 
things that it did. That has all been made clear. It has all 
been made public. But I do think we have got to move past this. 
We are at war today. This matter was confronted, and 
corrections and changes were made during President Bush's 
administration. And I believe that we have a sound legal basis 
to protect our country, but I am troubled, frankly, that the 
President is not using the powers that he clearly has.
    Thank you, Mr. Chairman.
    Chairman Leahy. Of course, we want to make sure that no 
President uses powers that he does not have.
    I will put into the record a statement by Senator Feingold, 
and I would note that Senator Whitehouse, who had been eager to 
have this hearing, had to go home to Rhode Island for the 
funeral of a young marine from Rhode Island who was killed in 
Afghanistan. Each one of us has gone to such funerals and can 
well understand why he must be there.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Chairman Leahy. Senator Durbin, I believe you wanted to say 
something, and Senator Cornyn did. Then whether others come or 
not, after the two of you we are going to go to Mr. Grindler.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you very much, Mr. Chairman, and 
thank you for this hearing.
    It is worth reminding ourselves why we are here today. Mr. 
Bybee and Mr. Yoo authored the infamous torture memo which 
redefined torture as limited only to ``abuse that causes pain 
equivalent to organ failure or death.'' They concluded that the 
President of the United States has the authority to ignore the 
law that makes torture a crime.
    That memo provided legal cover for the Bush administration 
to authorize waterboarding, a torture technique that our 
country has historically repudiated as torture and, in fact, 
prosecuted as a war crime.
    The late historian Arthur Schlesinger, Jr., said this about 
the previous administration's legal defense of torture, and I 
quote: ``No position taken has done more damage to the American 
reputation in the world--ever.''
    The Senate considered this issue. The author of the 
legislation on this issue is the one man in the Senate uniquely 
qualified to speak to it: John McCain, prisoner of war in 
Vietnam, himself a victim of torture. John McCain offered an 
amendment to say that torture is unacceptable and will not be 
part of the American response to the war on terror. The vote on 
that legislation, 90-9. The Senator from Alabama was one of 
those who voted against Senator McCain's torture amendment. He 
clearly has his own views. He is entitled to those views. But 
we are entitled to ask whether or not torture has now become an 
acceptable means of interrogation.
    I believe it is clear from the Senate action, from the 
repudiation of the Bybee memo, and from this new 
administration's clear statements, that torture is not part of 
American policy. Why? Because the young men and women that we 
send into combat, into war, could themselves become prisoners. 
Would we stand idly by and accept it if they were tortured as 
prisoners? Of course not. That is what is behind this policy, 
that the United States stands up for conduct in the world that 
we not only defend but conduct which we would vigorously 
prosecute if used against our own.
    I listened to the statements made by the Senator from 
Alabama, a reference to what he called ``the cycle of 
timidity'' in this administration, and his claim that we have 
forgotten the lessons we should have learned after 9/11. He 
uses as evidence of this the decision to give a Miranda warning 
to an accused terrorist. The suggestion is that this is a new 
Obama administration policy. The fact is it is not.
    Under the Bush administration, policies were adopted for 
the FBI that, I quote, ``Within the United States, Miranda 
warnings are required to be given prior to custodial 
interviews.'' A clear and unequivocal statement of policy from 
the previous administration.
    What has this done? What have Miranda warnings resulted in? 
They have resulted in the prosecution of some of the worst 
terrorists threatening the United States. In this case of 
Abdulmutallab, it is true that after a period of time he was 
given Miranda warnings. But then what happened? His family came 
to the United States and urged him to cooperate and tell more 
to our Government, and he did. Would he have done that if he 
had been a victim of waterboarding and torture? I doubt it. But 
his family knew that he was in our legal system, they clearly 
respected that legal system, and they urged him to cooperate 
within that system.
    And for those who argue that our courts and our criminal 
system cannot handle terrorism, let me tell you how wrong they 
are. They are wrong by a score of 195 to 3. One hundred ninety-
five terrorists have been successfully prosecuted and convicted 
in the courts of America since 9/11. One hundred and ninety-
five. How many have been successfully prosecuted in military 
commissions? Three.
    Some of the most outrageous terrorists engaged in acts that 
threaten our Nation are now serving life sentences in super-max 
prisons because they were brought to the courts of our land. To 
argue now that going through the ordinary constitutional 
process, subjecting them to prosecution and conviction in our 
courts, will not keep us safe runs completely counter to our 
experience and the evidence.
    Let me say a word about this particular hearing. On 
February 5, 2008, more than 2 years ago, Senator Sheldon 
Whitehouse and I asked Attorney General Mukasey to investigate 
whether the Bush administration's use of waterboarding violated 
any laws. He refused. Since then, for the past 2 years, Senator 
Whitehouse and I have pressed for this Office of Professional 
Responsibility report to be completed and made public so the 
American people can judge for themselves. Now it has seen the 
light of day.
    I heard high praise for David Margolis here and his role in 
this. Some claim that he has vindicated Mr. Yoo and Mr. Bybee. 
Far from it. Let me read an exact quote from Mr. Margolis: ``I 
fear that John Yoo's loyalty to his own ideology and 
convictions clouded his view of his obligation to his client 
and led him to author opinions that reflected his own extreme, 
albeit sincerely held, views of executive power while speaking 
for an institutional client. . . . My decision not to adopt 
OPR's misconduct findings should not be misread as an 
endorsement of the subject's efforts.''
    High praise for Mr. Margolis, but candor from him about 
these two individuals.
    In the end, what have we learned? We have learned that even 
when America is fearful and concerned about terrorism, we 
should never, ever forget our basic values. The time will come 
when those who do have to answer for it. If we stand true to 
our values and to our history as a Nation, we will be stronger, 
and we will be respected in the world. I am glad that this 
report has finally seen the light of day, and I yield the 
floor.
    Chairman Leahy. Thank you.
    We will hear from Senator Cornyn, and then we will go to 
Mr. Grindler.

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 
                             TEXAS

    Senator Cornyn. Thank you very much, Mr. Chairman. Welcome, 
Mr. Grindler.
    Mr. Chairman, I feel compelled to attend this hearing 
because I think that the Department's decision in this matter 
should once and for all put to rest any notion that Jay Bybee, 
John Yoo, and their associates deserve anything other than the 
thanks of a grateful Nation for their service. For too long, 
men and women who have dedicated their lives to protecting our 
country in the wake of 9/11 have been slandered, harassed, and 
threatened with professional sanctions and even criminal 
prosecution. Whether we are talking about Justice Department 
attorneys or CIA field agents, these men and women have 
sacrificed more than we can comprehend to keep the American 
people safe from another terrorist attack.
    Of course, last week, after an investigation that spanned 
5\1/2\ years--5\1/2\ years--Judge Bybee and Professor Yoo have 
been cleared of any professional misconduct.
    Regrettably, a criminal investigation ordered by the 
Attorney General is still underway into the CIA interrogators 
who relied in good faith on this legal advice. This criminal 
investigation I believe is likewise unnecessary. It is 
unnecessary because Federal prosecutors in the Eastern District 
of Virginia have already reviewed an exhaustive number of cases 
referred by the CIA's Inspector General and military criminal 
investigators.
    Think about that for a moment. The Attorney General has 
ordered a criminal investigation into interrogations conducted 
within parameters of legal advice provided by the Justice 
Department, legal advice that, regardless of one's policy 
preferences, has been judged by career officials in this 
Justice Department to have been given in good faith. The 
President and the Attorney General should bring the 
investigation of these CIA personnel who relied in good faith 
on this legal advice to a close immediately.
    But we are here, of course, to discuss the Office of Legal 
Counsel memos. Despite the Department's decision holding that 
Judge Bybee and Professor Yoo committed no professional 
misconduct, some on the far left continue to call on the 
Attorney General to prosecute them for rendering good-faith 
legal advice.
    To be sure, the legal advice offered by the OLC attorneys 
addressed difficult and novel and close questions surrounding 
the fine line where aggressive interrogation becomes unlawful 
torture. But in a democracy committed to the rule of law, we 
must resist the temptation to criminalize policy differences 
and good-faith differences on legal matters.
    Prosecuting the former administration's lawyers might be 
popular with some of the President's most left-wing supporters, 
but I am confident that such prosecutions would threaten the 
professional integrity of Government lawyers, the country's 
ability to gather intelligence and fight the war on terrorism, 
and the rule of law itself.
    Let me just provide some context which I think the Margolis 
memo took into account, which I think is important and which we 
have forgotten, I think, too many of us have forgotten these 
many years after September 11, 2001.
    The lawyers who offered their legal advice on the CIA's 
enhanced interrogation techniques were working at an 
extraordinary time in our Nation's history. 9/11 was less than 
a year in the past, and reliable intelligence indicated that al 
Qaeda was planning follow-on attacks. The CIA had several top 
al Qaeda agents in custody, and these terrorists revealed some 
useful information, but many of them had simply stopped 
talking. CIA interrogators were certain that these al Qaeda 
agents had additional information about plans to attack America 
and our interests overseas.
    Of course, I recall the tremendous bipartisan pressure 
there was on our intelligence community to increase its 
counterterrorism efforts to gather actionable intelligence and 
prevent the next terrorist attack. The House and Senate 
Intelligence Committees have concluded that the intelligence 
community did not ``demonstrate sufficient initiative in coming 
to grips with new transnational threats'' in the days before 9/
11. So the CIA wanted to know what it could legally do in order 
to demonstrate sufficient initiative in coming to grips with 
new transnational threats--just what Congress indicated they 
wanted.
    So they wanted to know if they could legally use 
interrogation techniques that our own military uses in 
survival, evasion, resistance, and escape, or SERE training, 
including waterboarding. But the interrogators did not simply 
start using these techniques. Instead, they did the right 
thing, and they asked their superiors, they asked the lawyers 
at the Office of Legal Counsel for advice about the 
advisability and legality of these techniques. So the issue was 
raised and debated by lawyers within the CIA along with those 
in the White House and the Department of Justice's Office of 
Legal Counsel.
    I think you cannot read these memos without seeing that 
there is an attempt to do what every lawyer does when presented 
with a novel and difficult question, and that is to do the 
research to try to offer opinions on both sides, and then 
ultimately you have to reach a conclusion. And I think they 
earnestly wrestled with these difficult legal questions. They 
called the question regarding the legality of waterboarding 
substantial and difficult, and it is no doubt a difficult 
question, one they sought to resolve to the best of their 
ability, as the Department concluded last week.
    Today's hearing comes after the Department's decision that 
has found no grounds for charging these two men with 
professional misconduct. But from listening to some of the 
responses to the conclusion of Mr. Margolis, you might think 
they had been found guilty of professional misconduct, not 
exonerated of professional misconduct.
    Perhaps the OPR investigation itself should be inquired 
about. I hope the witness, Mr. Chairman, can talk to us about 
the Office of Professional Responsibility's failure to follow 
its own standards. I realize the witness was not there then, 
but I would be interested to know what the Department of 
Justice intends to do to correct what Mr. Margolis said was a 
failure of OPR to follow its own standards.
    And Mr. Margolis also pointed to OPR's failure to cite a 
violation of a known standard of conduct, risking the 
likelihood, which apparently occurred here, that there would be 
a subjective standard applied rather than one that lawyers 
could discern and find out and CIA interrogators could follow.
    And then, of course, there was, as I mentioned, OPR's 
failure to take into account the circumstances that existed in 
the aftermath of September the 11th, when these individuals 
charged with protecting the American people were in good faith 
trying to prevent the death of other innocents, such as we saw 
at the Pentagon and we saw at the World Trade Center on 
September the 11th. And then--Senator Sessions mentioned this--
the leaks to the media which have done irreparable damage to 
the reputations of these two men who have now been found not 
guilty of professional misconduct is just shameful, and I hope 
we get to the bottom of it.
    Thank you.
    Chairman Leahy. Our witness this morning, Gary Grindler, 
comes to us from the Department of Justice. He is currently the 
Acting Deputy Attorney General. He previously served in the 
Department in a number of roles, including Principal Associate 
Deputy Attorney General, Counselor to the Attorney General, 
Deputy Assistant Attorney General in the Civil Division, and 
Assistant U.S. Attorney. Most recently, he was partner in King 
and Spalding's Washington, D.C., office, focused on white-
collar criminal defense, internal corporate investigations, and 
complex civil litigation. He is seen by many as a lawyer's 
lawyer.
    Mr. Grindler, did you wish to make some kind of an opening 
statement? Then we are going to ask questions. Is your 
microphone on?

STATEMENT OF GARY G. GRINDLER, ACTING DEPUTY ATTORNEY GENERAL, 
          U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC.

    Mr. Grindler. Yes, Chairman Leahy, if I could just make a 
few brief remarks. Good morning, Chairman Leahy, Ranking Member 
Sessions, and other members of the Committee. I want to thank 
you for the opportunity to appear before you today, and I am 
pleased to respond to your interest in the Department's 
decisions about the Office of Professional Responsibility's 
review of work by former attorneys in the Office of Legal 
Counsel regarding the lawfulness of certain interrogation 
techniques.
    Last week, we provided to the Committee a series of 
documents on this matter in response to the Chairman's request. 
While the nature of the documents we provided was 
extraordinary, we concluded that their disclosure was necessary 
for the Committee----
    Chairman Leahy. Mr. Grindler, I would note that everybody 
who is here is a guest. Holding up----
    Mr. Grindler. I am sorry?
    Chairman Leahy. This has nothing to do with you. I would 
just note that everybody in this room is a guest. Holding up 
signs, whether I agree or disagree with the message, which also 
blocks people who are also guests here from seeing, is not 
acceptable. I have had an ironclad rule on that ever since I 
became Chairman of this Committee. I appreciate everybody's 
opportunity to be here. I appreciate everybody's opportunity to 
make statements that they might want to. But we will not 
interfere with everybody in here having an opportunity to hear 
you.
    I am referring to somebody behind you, Mr. Grindler. Please 
go ahead.
    Mr. Grindler. Thank you.
    While the nature of the documents we provided was 
extraordinary, we concluded that their disclosure was necessary 
for the Committee to fully understand the ultimate decision in 
this matter. The legal complexity of the issues and our 
interest in assuring fairness to all of the individuals 
involved further supported our view that you should receive the 
requested documents that we might not otherwise disclose 
outside of the Department.
    Although some may disagree with the Department's 
conclusions, we are confident that the Department followed an 
appropriate process in reviewing the OPR results and reaching a 
final resolution of this matter.
    The OPR report was completed on July 29, 2009. In keeping 
with our current practice regarding cases of alleged 
professional misconduct, the subjects of the report were given 
the chance to appeal the adverse findings contained in that 
report to Associate Deputy Attorney General David Margolis. Mr. 
Margolis decided this matter without interference from the 
Attorney General, the Deputy Attorney General, or other 
Department officials, and his decision represents the 
Department's final action.
    It has long been the policy of the Justice Department that 
career attorneys in the Office of Professional Responsibility 
should investigate and review allegations of attorney 
misconduct and that a career official should review any appeal 
of OPR findings of professional misconduct with respect to 
former Department employees.
    It is my understanding that no Attorney General or Deputy 
Attorney General has ever overturned the conclusion of the 
career official in such circumstances. As some of you are 
aware--and I think some mention has been made of this already 
this morning--Mr. Margolis has been deciding such matters for 
the Department for many years now. He brings to that task 
almost 45 years of Department experience, first as an Assistant 
United States Attorney, a strike force attorney, chief of the 
Organized Crime Strike Force, and for the last 17 years or so 
Associate Deputy Attorney General, during which time he also 
served as Acting Deputy Attorney General for a 5-week period in 
February and March of 2009. His lengthy service as a career 
attorney who has served administrations of both parties makes 
Mr. Margolis uniquely qualified to decide matters of this 
sensitivity on the merits, without fear or favor.
    My primary role today is to answer questions about the 
process that led to the Department's final adjudication of this 
matter, and I hope you will understand that I am not in a 
position to delve deeply into the substance of the reports. 
Both OPR and Mr. Margolis reached their conclusions 
independently and without political influence. That is how it 
should be. I believe that each of them fulfilled their 
responsibilities in this matter through significant good-faith 
efforts, which I am not prepared to second-guess. The process 
that began with OPR's investigation culminated in Mr. Margolis' 
decision. The Department stands behind that decision, including 
the decision not to refer the matter to the bar associations 
where Mr. Bybee and Mr. Yoo are members. Any effort on my part 
to summarize or paraphrase the reasoning of OPR or Mr. Margolis 
would simply run the risk of misrepresenting a record that 
speaks for itself and is now available for all to review.
    There is one common thread among the documents we provided 
to the Committee. They reflect a shared conclusion that the OLC 
memoranda were flawed. Judges Mukasey and Filip also wrote that 
the memoranda contained multiple, material errors. The 
disagreement among the reviewers is whether the legal work at 
issue here was so flawed as to amount to professional 
misconduct. This is a difficult question, and in the end, Mr. 
Margolis concluded that the authors of the memos exercised poor 
judgment, which in the context of an OPR investigation means 
that they chose a course of action that represents a marked 
contrast to the action that the Department may reasonably 
expect an attorney exercising good judgment to take.
    The Attorney General and I have great faith in Mr. Margolis 
and in the process that led to his decision in this matter. At 
the same time, the Attorney General continues to have 
confidence in OPR's ability to investigate allegations of 
professional misconduct against Department attorneys. Under new 
leadership since last year, OPR is working to resolve cases 
more quickly and has been allocated additional resources to 
meet the demands of a workload that has grown substantially. 
The Department fully supports OPR's mission, and I have 
committed myself during my tenure as acting Deputy Attorney 
General to work with OPR to make improvements in their 
investigative and review process.
    I hope this initial information is helpful, and I am happy 
to respond to your questions.
    [The prepared statement of Mr. Grindler appears as a 
submission for the record.]
    Chairman Leahy. Thank you, and I do have many questions.
    One of the things that bothered me, should bother a lot of 
Americans--and I know it does--is we talk about the reputation 
of John Yoo and Patrick Philbin, for example, but now we find 
that the Department of Justice e-mail records of both Mr. Yoo 
and Mr. Philbin have apparently been destroyed. They were not 
made available to OPR investigators. In just a footnote to the 
report, OPR states that investigators were told that most of 
Mr. Yoo's e-mail records had been deleted and were not 
recoverable, that Mr. Philbin's e-mail records from the crucial 
period July 2002 through August 2002, the time the Bybee memo 
was completed, had also disappeared and are not recoverable.
    Now, it raises very serious concerns about Government 
transparency and whether the Office of Professional 
Responsibility had access to all the information relevant to 
the inquiries. As you know, the U.S. Code is very, very clear 
about these records have to be retained. In fact, it has 
penalties provided by law for the removal or destruction of 
these records.
    Now, as does the Congress, the American people have a right 
to know, but we also have a right to know why these critical 
records were deleted. Why were they kept from the Federal 
investigators? Has the Department opened an investigation into 
the circumstances surrounding the destruction of the e-mails?
    Mr. Grindler. Chairman Leahy, first, the report itself does 
not suggest that there was anything nefarious about----
    Chairman Leahy. That is not my question. The fact is that 
the law requires them to be retained. They were not retained. 
Has there been any investigation into why they were not 
retained?
    Mr. Grindler. I am not aware of any----
    Chairman Leahy. I do not care whether it is nefarious or 
not. I just want to know the facts.
    Mr. Grindler. Chairman Leahy, what I have done is I have 
met with the Assistant Attorney General for Administration for 
the Department of Justice who has oversight of the 
administrative operations of the Department, which include 
information technology systems. And I have directed him to work 
with his experts in information technology to determine what 
exactly was going on in terms of the archiving of these e-
mails.
    Chairman Leahy. Will they make an effort to retrieve them?
    Mr. Grindler. Well, I first have to find out what the facts 
are with respect to the e-mails. If they are retrievable, I 
will direct him to retrieve them. That is the part I do not 
know yet.
    Chairman Leahy. I recall when millions of e-mails 
mysteriously disappeared during the Bush administration, and I 
had publicly said, well, that is--you know, they do not just 
disappear, they must be there. And I recall them sending their 
press secretary, Ms. Perino, out to say, What is he, some kind 
of an IT expert? I mean, that is foolish. They have been 
deleted. They have disappeared. We all know they have 
disappeared. Why would anybody suggest otherwise? And then we 
found the 22 million e-mails that, of course, had disappeared, 
well, they had not, they were there.
    The Federal criminal statutes, 18 U.S.C. Section 641 and 18 
U.S.C. Section 2071 prohibit the destruction of these Federal 
records. And I appreciate what you are saying, you do not what 
the facts are. Have they disappeared? If they have and if they 
have been destroyed, either the Yoo e-mails or the Philbin e-
mails, will the Department make also a determination whether 
the destruction was criminal? Violation of the criminal 
statutes would seem fairly clear.
    Mr. Grindler. Chairman Leahy, what I would like to do, I 
first want to get the information back from the information 
technology experts, including all of the questions of what 
occurred, what the policies are, and what the archive system 
is. And at that point, I will be in a position to evaluate 
whether anything additional needs to be done.
    I would point out in addition, though, that the report does 
include a review of some of Mr. Yoo's e-mails. I understand, 
for example--and it makes reference to them--that e-mails 
within the Department that he sent or may have received would 
then to some extent be contained in other people's e-mail 
boxes. All I am saying is that the report does not have a 
complete lack of his e-mails, that as soon as I learn the facts 
regarding this, I will provide appropriate information back to 
this Committee.
    Chairman Leahy. It is interesting because, you know, during 
the firing of the U.S. Attorneys, something everybody now 
agrees was an egregious mistake, when we looked into it, there 
were a number of e-mails by Mr. Karl Rove and others in the 
White House that were missing. Now, 2 months ago, we finally 
find those e-mails--of course, after the investigation was over 
and after the time when the U.S. Attorneys might have been 
reinstated.
    Now, I hope we do not have to wait that long this time, and 
I would hope that what you find you will report to this 
Committee, report to me and to Senator Sessions what you find.
    We also found that there is a pattern where the political 
operatives were using a second BlackBerry or nongovernmental e-
mails to circumvent the Federal requirements of keeping Federal 
records. Will the Justice Department determine whether Mr. Yoo 
used a second BlackBerry or any other kind of e-mail system, 
nongovernmental e-mails, to communicate with Mr. Addington and 
others from the White House? Will you determine that?
    Mr. Grindler. I will pose that question, Senator Leahy.
    Chairman Leahy. And will you give us the answer?
    Mr. Grindler. Yes, Senator.
    Chairman Leahy. I mean, we all know the famous Shakespeare, 
Hotspur, ``I can call them from the frothy depths,'' the 
response, of course, being, ``Well, so can I, so can anybody.'' 
But will they come when you summon them? I want to know. I 
mean, I am trying to fulfill this Committee's oversight. We 
have made oral requests and written letters. We have held 
hearings. We have subpoenaed documents to get to the bottom of 
what happened. And, in fact, I have submitted for the record a 
number of letters dated from 2002 to 2007 detailing my 
correspondence, my requests to OLC to get this information.
    We were always told that the information was not there, we 
could not get it. We would then eventually get a lot of it in 
the newspapers after it had been leaked by people within the 
administration, within the Bush administration, and to the 
press. For example, on October 16, 2008, I issued a subpoena 
for all documents relating to the Office of Legal Counsel 
starting from September 11, 2001, concerning the 
administration's national security practices and policies 
related to interrogation and detention. I also subpoenaed the 
relevant index. It was not until the end of the last 
administration we were shown a few of the opinions, and then 
they were heavily redacted. Attorney General Holder released 
some of these memoranda on March 2, 2009, more on April 16, 
2009. But after all this time, I still want to know whether we 
have seen all the relevant legal documents.
    So I pressed the Department last year under the new 
administration for a complete index of the memoranda. I 
received a letter last year, June 16th, that they are working 
to produce the index. The President issued an Executive order 
on January 22nd of last year prohibiting the use of any 
interrogation technique not authorized by the Army Field 
Manual. An Executive order, of course, can be overturned.
    So my question is this--and I will certainly give extra 
time to Senator Sessions--has every OLC memorandum that is 
cited in the OPR final report been withdrawn?
    Mr. Grindler. Senator Leahy, first, with reference to the 
Executive order, the President in January of 2009 himself 
directed that none of the OLC opinions post-9/11 that related 
to interrogation techniques should be relied upon. I can 
confirm to you that seven of the eight OLC opinions referenced 
in the OPR report have, in fact, been formally withdrawn. The 
eighth OLC opinion is covered by the Executive order, and there 
has not been an occasion otherwise to formally withdraw it 
because it actually is a memorandum that refutes or modifies 
some of the seven other OLC opinions. But in any event, the 
Executive order makes clear that none of these opinions can be 
relied upon.
    Chairman Leahy. No other outstanding letters or opinions?
    Mr. Grindler. Not that I know of, Senator.
    Chairman Leahy. The DOJ website now makes available to the 
public a number of withdrawn OLC opinions. Is that the full 
set?
    Mr. Grindler. Senator, let me communicate with OLC and get 
you a definitive answer on that.
    Chairman Leahy. And my staff will make sure to fully define 
that question.
    Has the Judiciary Committee been provided access to all OLC 
documents related to the Bush administration's interrogation 
and detention of individuals after September 11th?
    Mr. Grindler. Again, I am going to have to go back and get 
definitive confirmation.
    Chairman Leahy. And if we have not, will you tell us when 
we will have it? I do not want to have to subpoena this again, 
but I will.
    Mr. Grindler. Yes, Senator.
    Chairman Leahy. And that includes the index of all OLC 
opinions. And if it helps you when you go back to ask that, 
assure them I will issue a subpoena for the index if I do not 
have it.
    Mr. Grindler. I know, Senator, that they are working on an 
index, and I will communicate with them about that also.
    Chairman Leahy. Thank you very much.
    Mr. Grindler. You are welcome.
    Chairman Leahy. Senator Sessions, I appreciate your 
courtesy in waiting.
    Senator Sessions. Thank you.
    Mr. Grindler, Senator Durbin continues to repeat a party-
line view that, post-9/11, these unlawful combatants were to be 
tried in civilian court, and then takes cases such as those 
that involve financing of terrorism and things of that nature 
to add them up to a total of 190 cases. I would just remind you 
that President Bush created a courtroom and a procedure to try 
cases in Guantanamo, which Attorney General Holder has said is 
legal, constitutional, and not in violation of our treaties. In 
fact, the only reason the Obama Administration chose not to do 
it was because the Attorney General thought as a policy 
decision it is better to use Federal court, which I steadfastly 
disagree with.
    So those cases were set up to be tried there. The Attorney 
General has issued an opinion that the presumption is that 
people held at Guantanamo will be tried in civilian courts and 
not in those courtrooms set up in Guantanamo, even thourgh 
Congress acted over the last several years to pass legislation 
that responded to Supreme Court criticisms of trying cases in 
military commissions. They refined the military commissions, as 
has the Department of Defense refined the military commissions. 
They now fully, I believe, comply with any treaty, 
Constitution, or legal or court objection. So this is to me a 
pretty clear question.
    The President said explicitly that he did not believe these 
individuals should be given Miranda warnings. He said that 
publicly, I think, in the ``60 Minutes'' interview. And yet 
when you try these cases in Federal court, isn't it true when 
you arrest anybody and make them a prisoner of the United 
States, and you desire to ask them questions and they are in 
custody, that they have to be given their Miranda rights?
    Mr. Grindler. The policy that was referred to earlier, 
which is the FBI policy, does say that when you have someone in 
custody in the United States, you are required to give Miranda 
warnings. There are some exceptions--or at least one exception 
to that policy that I think was utilized in the case of 
Abdulmutallab in Detroit, because when he initially was taken 
off the plane, he was questioned without being provided Miranda 
warnings.
    There is what is called a public safety exception in order 
to immediately determine whether there are other facts that 
need to be known to protect the safety of individuals at that 
point in time.
    Now, it is true later on he was given Miranda warnings. 
There are also in the United States procedures that require 
that individuals in this context be brought before a Federal 
court for an arraignment within a certain period of time, and 
there are also rules relating to how you view interrogations 
that continue after 6 hours of detention. So these are all 
rules that have to be--or decisions that have to be made sort 
of on the split second.
    Senator Sessions. Well, I just would say to you that, yes, 
you can ask them, for instances ``Do you have a gun or anything 
on you?,'' and those interrogations, in most cases that I have 
seen, can extend only a few minutes. But perhaps in this case 
it was so unusual, maybe you could go 50 minutes. But the net 
result is when you appoint them a lawyer and you tell a suspect 
that they have a right to remain silent, that usually, in my 
experience, increases the likelihood that the suspect will quit 
answering questions and will clam up.
    The fact is that you could take them to a military 
commission. The Christmas Day bomber, who flew from an al Qaeda 
center with an al Qaeda bomb to the United States--al Qaeda 
being at war with the United States clearly met those standards 
of a military combatant. And just because you take a suspect 
into military custody does not mean you use enhanced 
techniques. But you do not have to do the kind of warning of 
rights, the right to a speedy trial, the right to discover, and 
the right to have an attorney paid for by the Government, 
because they are unlawful enemy combatants. They do not have 
those rights any more than a German or Japanese prisoner 
captured on the battlefield is entitled to a lawyer, entitled 
to be told he does not have to answer questions if they are 
posed to him. That is just a matter that we have been arguing 
over for some time. I should not have spent so much time on it, 
but it continues to me to be a serious matter.
    With regard to OPR, I am troubled by the leaks that came 
out of that investigation, and that the whole process really 
has done some long-term damage to the credibility of OPR, in my 
opinion. Based on my staff's assessment of the recent annual 
reports of OPR, it seems that a primary focus of their 
attention is on leaks. Throughout the whole Department of 
Justice, if there is an allegation of a leak, OPR will 
investigate it because leaks violate the discipline, order, and 
really the sanctity of justice in America.
    Mr. Grindler, let us say that an improper leak occurred in 
a Justice Department matter. OPR would be the one that would 
investigate that. Is that correct, normally?
    Mr. Grindler. They would be involved in the investigation. 
Sometimes if there is a reason to believe that the leak may 
involve a criminal violation, it may be that a
    U.S. Attorney's Office might be brought into it, or we have 
had circumstances in which----
    Senator Sessions. Well, I understand, but they even have a 
rapid response team to deal with that, which is a healthy 
thing. Now I want to turn to the investigation at issue here. 
My understanding is that OPR's own policies and procedures 
state that OPR's finding their own findings may be publicly 
disclosed only when an investigation is final and after all 
available administrative reviews have been completed. Despite 
this, the investigation into the Bybee and Yoo memos was 
riddled with leaks.
    For example, in February of 2009, Newsweek reported that 
one of their intrepid investigators had obtained a copy of the 
draft non-public OPR report. It ran a story on it which cited 
``two knowledgeable sources who asked not to be identified'' 
discussing sensitive matters, and that was before Mr. Bybee and 
Mr. Yoo were given a chance to even look at the report and 
respond.
    According to Yoo, he got an e-mail from this author of the 
story who asserted that, ``Marshall Jarrett's folks''--in other 
words, the OPR attorneys--who were unhappy with Attorney 
General Mukasey's refusal to endorse their conclusions. Soon 
after, a liberal blogger released previously unreported details 
about the investigations which he called ``important inside 
information of a still classified report.''
    In May of 2009, an Associated Press writer reported about 
``the draft from an internal Justice inquiry,'' and the New 
York Times published an article that described the report.
    Later in May, another blogger wrote about the then-current 
rumors concerning OPR and their report, saying, ``A source in 
the Justice Department would not give me any more details about 
the forthcoming report, but confirmed that what has been 
reported about it in the media so far is accurate.''
    So I think it is clear that somebody was leaking, contrary 
to OPR's own policies and procedures. Would you agree that 
those facts show that improper leaks occurred?
    Mr. Grindler. Senator, it appears from the articles that 
information that should not be public was made public. The 
Attorney General and I both abhor the situation with leaks. It 
is a problem that the Department of Justice has faced, but it 
is a common problem that agencies across the Government have 
had to face. They are difficult cases.
    I can assure you that I take it very seriously, and, again, 
in my tenure as Acting Deputy Attorney General, when there are 
leaks, I will address whether or not further inquiries or 
investigations need to be----
    Senator Sessions. Was there any use of OPR's powers and 
rapid response team to immediately respond to these leaks and 
find out how they were occurring?
    Mr. Grindler. Senator, I am not aware of what has taken 
place in that regard up until the point--until now when I----
    Senator Sessions. Has any investigation to date been 
undertaken to determine how these egregious leaks against 
policies and procedures of the Department occurred?
    Mr. Grindler. I do not know, and, of course----
    Senator Sessions. Well, I can tell you if it occurred in a 
normal criminal case in a United States Attorney's Office 
anywhere in America in a serious case like this, a direct 
violation of the policies, OPR would investigate that, would 
they not?
    Mr. Grindler. I cannot really respond without knowing the 
exact circumstances, but I would tell you if there is----
    Senator Sessions. Surely you would investigate a serious 
allegation of a leak in Milwaukee or Dallas, Texas.
    Mr. Grindler. If there is a serious allegation of a leak, I 
can assure you that I will take it very seriously, yes.
    Senator Sessions. Well, it should be investigated, and if 
it came from OPR, should it not be investigated or should it be 
investigated?
    Mr. Grindler. It really does not matter what the source was 
if it is an improper leak.
    Senator Sessions. I agree with that. It appears it was not 
investigated, and it appears the leak came from OPR itself.
    Mr. Margolis wrote a memo to Attorney General Holder, I 
remember him as being one of the more respected members of the 
Department of Justice when I was in it, and he came to the 
Department, maybe in the early 1970s, with long hair and all of 
that--you know, there was a discussion about Mr. Margolis. He 
was such an independent thinker. But everybody grew to respect 
him more and more over the years, so I have a lot of respect 
for him, just as so many people who have served in the 
Department do.
    He noted that the OPR report ``made a departure from 
standard practice and without explanation, OPR in its initial 
two drafts analyzed the conduct of the attorneys without 
application of OPR's own standard analytical framework.'' He 
goes on to express concerns saying that the framework has 
``applied virtually without exception'' in the 17 years he had 
been tasked with resolving attorneys' challenges to OPR's 
findings.
    During the course of this investigation, was there any rule 
in place, either in OPR or in DOJ practices and procedures, 
that called for OPR to disregard its own standard analytical 
framework in cases that dealt with attorneys in the Office of 
Legal Counsel?
    Mr. Grindler. I am not aware of any rule such as that, 
Senator.
    Senator Sessions. One of Mr. Margolis' primary objections 
to the final OPR report was that ``it relied on a standard that 
was neither known nor unambiguous.'' In fact, OPR created a 
completely new standard, it seems to me, from different 
sources, several of which did not exist at the time the memos 
in question were written. Do you think it appropriate to judge 
an attorney's actions by a standard created after the action 
was taken?
    Mr. Grindler. Senator, I think that David Margolis' 
commentary with respect to the first two drafts pointed out the 
issue that you are raising, and as a result of further 
discussion, that issue was resolved in terms of how the final 
report was approached.
    Senator Sessions. I think that was an important step. These 
are difficult challenges that you face. OPR is not an entity 
that ought to be second-guessing the very important office of 
the Office of Legal Counsel or the Solicitor General on matters 
dealing with serious constitutional questions. I do not want to 
say they are pedestrian, but they are at a different level of 
legal analysis than these people who are required to do that. 
And the Dawn Johnsen confirmation matter is one that caused a 
great deal of concern because the Office of Legal Counsel 
really is an important office. It requires the ability to 
analytically consider important issues with the highest legal 
skill. So that is one of our concerns and it is always 
important that OLC be filled with the best people. And as you 
can see, when disagreements arise over OLC's opinions, we can 
have quite a stir.
    Thank you.
    Chairman Leahy. Mr. Grindler, we have quite a stir on 
making sure that the United States follows its own high 
standards and laws. The Office of Legal Counsel is one that has 
served very well for both Republican and Democratic 
administrations when the people who are the professionals and 
nonpartisan professionals are allowed to operate. When they 
have indirection or direction of a political nature and respond 
to that, then the Department of Justice is badly damaged. The 
Department of Justice has to make determinations outside of 
politics.
    I recall when I was interviewed as a young law student by 
the then-Attorney General, asking me if I would come to work 
for the Department of Justice, I had asked him, ``How much 
political influence would there be in the Department of Justice 
in criminal matters, civil rights matters, whatever?'' He said, 
``I have told the President personally neither he nor anybody 
on his staff can interfere with what we are doing on 
prosecutions.''
    That Attorney General, incidentally, was Robert Kennedy, 
and he subsequently prosecuted somebody who was vitally 
important to his brother's election as President.
    We found during the last administration, what raised my 
concern, that we had several hundred people in the White House 
who were allowed to get involved in prosecution matters. That 
is not the way this should operate. It should not operate that 
way in any administration. I think of handling terrorists, when 
President Reagan used the FBI to set a trap for a terrorist 
overseas, used their interrogation procedure, brought him back 
and convicted him. We have seen Zazi, who was convicted just in 
the last few days in New York.
    Both the Bush administration and the Obama administration 
have been pretty effective in prosecuting people who we have 
followed their rights, we have gotten a great deal of 
information from them, and we have also been able to 
demonstrate to the rest of the world that we follow the rules.
    That is why when we do not, it is a bad mark. As Senator 
Durbin indicated, we have these rules because we also want to 
be able to tell the rest of the world, if you capture one of 
our people--and we know some will not follow the rules, but we 
want to be able to have the high moral ground. We do not want 
to be in a case where we can be lectured on human rights by 
countries that do not follow it.
    Senator Sessions. Mr. Chairman, I have a very important 
appointment. I am going to ask to leave. Thank you for your 
leadership. I will leave this Washington Post editorial on the 
report by Mr. Margolis, and, Deputy Attorney General, 
congratulations on your service. You have got a tough job, but 
it is an important job. Use good judgment, keep a cool head, 
and do right. And I agree with the Chairman completely that you 
have got to make these decisions based on the law and the 
facts, and we cannot allow politics to infect the Justice 
Department.
    Thank you.
    Mr. Grindler. Thank you, Senator.
    Chairman Leahy. Thank you, Senator Sessions, and we will 
keep the record open until the end of the day for statements by 
Senators or memos. In fact, I would ask that any questions that 
are submitted be answered by this time next week.
    Let me ask you this: The Bybee and Yoo OLC memos argued 
that the commander-in-chief authority is so broad that in a 
time of war, even an undeclared war--or stating that we are at 
war because terrorists want to attack us, and I assume that 
they always will in my lifetime--the President could take any 
action in the name of national security, and that action would 
be lawful. In an interview with OPR, Mr. Yoo answered 
affirmatively when asked if the President could order a village 
of resistance to be massacred. Mr. Yoo said such an order would 
fall within the commander-in-chief's power over tactical 
decisions.
    Can you imagine how we would react if we heard the head of 
another country's government make such an order? There would be 
total outrage expressed by people from the right to the left in 
this country.
    So let me ask you: What is the current OLC interpretation 
of the commander-in-chief authority? Has OLC articulated a 
formal interpretation since the Obama administration took 
office?
    Mr. Grindler. Senator, if you are talking in terms of 
interrogation authority--is that the question?
    Chairman Leahy. No. I am talking about what is the 
commander-in-chief authority. Is it basically, as Mr. Yoo seems 
to indicate, virtually without bounds because we know that we 
will face and probably will always continue to face attacks by 
terrorists against the United States.
    Mr. Grindler. I believe that some of the memoranda prepared 
by Mr. Yoo and Mr. Bybee did, as you pointed out, address what 
the President's power may be in certain circumstances. I am not 
aware of OLC having rendered any opinions since the President 
had indicated that the opinions post-9/11 were no longer to be 
relied upon. But to give you a definitive view, I will go back 
to OLC and provide that information to you. But I am not aware 
that they have issued any opinions since President Obama came 
into office.
    Chairman Leahy. Well, the reason I ask this, in January 
2008, then-Attorney General Michael Mukasey sent a letter to 
this Committee, and he said that waterboarding might be 
reintroduced under the defined process by which any new method 
is proposed for authorization in the CIA's interrogation 
program. It is sort of a complicated way of saying that if the 
CIA or the White House asked again, well, then, the Department 
of Justice might find waterboarding to be legal.
    The Obama administration, as you said, issued an Executive 
order limiting intelligence techniques to the Army Field 
Manual. They did that on January 22nd of last year, which 
basically outlaws waterboarding because the Army Field Manual 
does. But this administration at the most will hold office for 
7 more years, either 3 more years or 7 more years. But some 
prominent Republicans, including candidates for executive 
office, have outright endorsed waterboarding or they refuse to 
condemn it. So that other than that January 22nd Executive 
order, is there any authority in force today to prevent either 
this administration from changing its mind or a subsequent 
administration from approving waterboarding is a legal 
interrogation technique? Notwithstanding the fact that we have 
in the past prosecuted people who abused waterboarding.
    Mr. Grindler. Senator, again, the President of the United 
States has made clear that torture will not be condoned and 
that any interrogation must be consistent with the Army Field 
Manual.
    Again, with respect to OLC, which does have the 
responsibility as delegated to them by the Attorney General to 
provide advice to the President on legal matters, I am not 
aware that they have issued another opinion since this 
President came into office on interrogation or even the broader 
powers of the President in these circumstances. I will confirm 
that, but I think that is about all I could say right now.
    Chairman Leahy. Do you know anything offhand in the law 
that would stop a subsequent President from just saying we are 
no longer following that Executive order?
    Mr. Grindler. Well, I mean, as long as this Executive order 
is in place, that would be in the first instance something that 
would prevent it. Again, with questions of this magnitude, one 
would hope in the future if a President considered any 
modification of that, that they would go back to the Office of 
Legal Counsel and seek an opinion.
    Chairman Leahy. We have talked about the OLC being sort of 
the gold standard. It stays out of politics. People respect 
it--and I know they do not just within the White House, but 
with obviously other departments. The Department of Commerce, 
the Department of Transportation may ask for an OLC memo, and 
it usually has virtually the power of law where that Department 
comes down. But we find when Mr. Bybee and Mr. Yoo worked at 
the OLC that the White House involvement with what they did was 
extraordinary. The then-White House Counsel, Alberto Gonzales, 
marked up their draft memos. Mr. Gonzales described David 
Addington, then-counsel to Vice President Cheney, as an active 
player in the draft of the first so-called torture memo. Former 
Deputy Attorney General James Comey told OPR there was 
significant pressure on OLC from the White House, particularly 
Vice President Cheney and his staff. He then added--and this 
was rather chilling--''You would have to be an idiot to not 
know what they wanted.'' Former Deputy Attorney General Comey 
said that the Justice Department leadership believed the acting 
head of OLC, Daniel Levin, was forced out because he had not 
delivered on what the White House wanted in interrogation.
    I mentioned my conversation with Robert Kennedy when I was 
a law student. Obviously, as a young law student--I think I was 
23 at the time. It was a few months before I was going to 
graduate from Georgetown. You can imagine how awestruck I was 
just to be in--no matter who was Attorney General, to be in the 
office. But to hear him say so emphatically that he had to be 
independent, when I became a prosecutor, State's Attorney in 
Vermont, I never forgot that. And I would get calls from--in 
fact, once from my predecessor here in the U.S. Senate and 
basically hung up the phone on him because he wanted to talk 
about a friend who had been picked up and what might be done. 
And I told the Governor's office that they could not--that I 
would have to make that decision. If I made a bad legal 
decision, the courts would overturn it.
    Now, you are a career prosecutor. You are a long-time 
employee of the Department. You had been a career prosecutor. 
Is it common in your experience for the White House to be so 
intimately involved in the drafting of an OLC opinion?
    Mr. Grindler. In my experience as a prosecutor, I was a 
line prosecutor so I did not have any contact with the White 
House at that time. However, when the President of the United 
States asks for legal advice, that is one of the 
responsibilities of OLC. I believe, though, that----
    Chairman Leahy. What if he says, ``I want legal advice to 
tell me that I can do such-and-so, no matter what the law is? 
''
    Mr. Grindler. No, I think that the question must be: 
``These are the actions we propose to take. Are they lawful?'' 
And then, yes, you get into play the integrity of the lawyers 
at the Office of Legal Counsel, and there is a long history 
there. And lawyers want to be in that office in part because of 
the independence and integrity that they have demonstrated 
historically. And I do think that that continues based on my 
contact with the Office of Legal Counsel since I have been 
Acting Deputy Attorney General. In fact, I meet with a 
representative of OLC, the head of it, at least once a week if 
I can. But I do think that there are things in place that help 
ensure the integrity of the Office of Legal Counsel.
    For example, they do communicate with White House Counsel, 
but there are regular meetings in which the Attorney General 
and the Deputy Attorney General are also present. So they are 
there because it is as a result of the delegation of authority 
from the Attorney General to the Office of Legal Counsel that 
they are able to fulfill this responsibility.
    Also, what the office does is they have a robust system of 
soliciting views from agencies that are interested parties in 
their legal analysis, and that helps because it brings to bear 
to their analysis the analysis of a variety of parties. And I 
think that process is part of what will help to ensure the 
integrity of those decisions.
    At the end of the day, you have to have people with 
integrity, people that are strong, to be able to render these 
difficult opinions. But I think that that is what is going on 
in the Office of Legal Counsel today.
    Chairman Leahy. But you would agree with me, whether it is 
President Obama or President Clinton or President Bush, no 
matter who is the President, OLC has to be independent or they 
lose--actually, they lose the ability to give the President 
good advice.
    Mr. Grindler. I totally agree they have to be independent, 
but they also have to listen to the views of the interested 
agencies and the President.
    Chairman Leahy. Oh, I understand. Yes, I understand that, 
but not to the point of having somebody dictate a result which 
may be different than their own legal conclusions.
    Mr. Grindler. Absolutely. At the end of the day, they have 
to come to the decision that they think is right.
    Chairman Leahy. In his review of the OPR final report, Mr. 
Margolis describes a group that was reviewing the OLC memos as 
``a limited and sophisticated audience,'' suggesting the 
players involved would have been aware that Mr. Yoo's 
assessment of the commander-in-chief authority represented the 
most aggressive view on the topic.
    I have a hard time buying that, and I will tell you why. 
Even White House Counsels are not experts on every single area 
of the law, which is why you have an Office of Legal Counsel. 
Then-White House Attorney General Gonzales was not an expert in 
every field of the law. This attorney was not an expert in the 
laws of war or the commander-in-chief authority in a case of 
war because they normally are not, and remember these attitudes 
and questions being asked were different after 9/11 than 
before.
    Now, Mr. Addington, who was Vice President Cheney's 
counsel, was well known from his prior work and his writing to 
have views on a very expansive Executive power. They are very 
similar to Mr. Yoo's.
    Now, I feel that as OLC clients, both Mr. Gonzales and Mr. 
Addington would have been better served by being given a 
complete picture of the relevant facts and the law, especially 
as the Yoo memo went beyond anything OLC had previously said.
    I also think the Nation would have been better served if 
there had been an impartial account to the law. It almost comes 
across like something in a political campaign: what do we do to 
win, not what do we do to obey the law.
    Was it poor lawyering, poor action as a lawyer by Mr. Yoo 
that would present a one-sided articulation, what even Mr. 
Margolis called the most aggressive interpretation of the 
commander-in-chief powers?
    Mr. Grindler. Mr. Margolis did conclude that the analysis 
was flawed. He also concluded that it was a close question as 
to Mr. Yoo's intent.
    Chairman Leahy. Well, I worry about some of the things that 
I--I have a great deal of respect for OPR. I have had a great 
deal of respect for it in Republican administrations and 
Democratic administrations, and I have relied a lot of times in 
determining how I might vote on issues--not that I ask them for 
an opinion, but I have looked at some of their opinions on what 
the law is with regards other departments, what it is as 
regards the powers of the Executive, and I have looked at a lot 
of those, but I have made my own decisions as to how I might 
vote on an issue coming up, because I think of them as being 
the facts and the law objectively stated, as it should be. I 
would think any President would want that and would be better 
served.
    Now, the OPR report does not find the former acting head of 
OLC Steven Bradbury to have violated any technical ethic 
standard, but I see his complicity in offering flimsy legal 
advice to justify the White House actions. In May of 2005, Mr. 
Bradbury wrote two memos to reaffirm the use of waterboarding. 
This was after the so-called torture memo had been leaked to 
the public and then withdrawn by the Bush administration. 
Still, Mr. Bradbury disregarded the concerns of senior 
Department officials, like former Deputy Attorney General James 
Comey, who said that one of Bradbury's memos would come back to 
haunt the Department of Justice. Mr. Comey also said that the 
Attorney General, who is now Alberto Gonzales, was under great 
pressure from the Vice President to issue these memos. And Mr. 
Comey was concerned that Mr. Bradbury, who was in an acting 
capacity as head of OLC but was known to want the official job, 
would be susceptible to just that kind of pressure.
    Now, on May 11th of last year, Attorney General Holder 
issued a memorandum from the Department of Justice setting up a 
process for all requests for legal advice from the White House. 
It said the Assistant Attorney General for the Office of Legal 
Counsel should report to the Attorney General and the Deputy 
Attorney General any communications that in his or her view 
constitute improper attempts to influence the Office of Legal 
Counsel's legal opinion.
    I think that is a good start. But I would urge you, if you 
have thoughts on this, to pass them on to me, what further 
steps the Justice Department can make to protect us, because 
the OLC is extremely important to us. It is extremely important 
no matter who is President. It is extremely important to the 
country. Are there further things that we can do to make sure 
its integrity is preserved, whether in this administration or 
future administrations?
    Mr. Grindler. Well, I do think that it starts with the 
leadership of the Department, the Attorney General and the 
Deputy Attorney General making clear not just to the head of 
OLC but the other lawyers working there that their role must be 
an independent role, and what you have already articulated, 
that if they ever perceive or feel like there is any effort to 
improperly influence that decisionmaking, that they need to 
take it to the Deputy Attorney General or the Attorney General. 
And it would be incumbent upon them to interact with the White 
House, or if it is coming from another government agency, 
whatever it may be, to interact with the head of those agencies 
in order to address that problem.
    Chairman Leahy. Thank you. My staff has reminded me I said 
I have great respect for OPR opinions. Obviously, I meant OLC. 
That is what we were discussing at the time.
    Mr. Grindler. Right.
    Chairman Leahy. Well, Mr. Grindler, I thank you for taking 
the time. There probably will be some follow-up questions, and 
I appreciate your being here. This may seem arcane to some, 
this discussion. I just feel very strongly about the integrity 
of the Department of Justice. You have, as you know, some 
amazingly talented and dedicated men and women in the 
Department of Justice. I have known so many I have worked with 
over the years. I have no idea what their politics are. I do 
not really care. They are just extremely good. Just like we see 
in our prosecutors' offices around the country some remarkable 
men and women who at great sacrifice serve this Nation. And 
they serve the Nation because it is a higher calling. This is a 
great Nation. The Department of Justice is a great institution. 
If it had not been for the tugs I felt from my native State of 
Vermont, I would have accepted the invite from Attorney General 
Kennedy. I do not know what life would have been otherwise, but 
I just wanted to get back home to Vermont. But I have never 
forgotten that. I have never forgotten what was driven into me 
by my law school professors, many no longer with us, who said 
about how the Department of Justice has to have integrity, has 
to be independent.
    I see you in that mode, Mr. Grindler, and I mean that as a 
compliment to you, sir. And we have to maintain it. Otherwise, 
how are you going to attract these remarkable men and women who 
serve there day in and day out?
    Mr. Grindler. I agree with you, Senator.
    Chairman Leahy. Thank you.
    Mr. Grindler. Thank you.
    Chairman Leahy. We will stand in recess.
    [Whereupon, at 11:50 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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