[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
APPLICABILITY OF FEDERAL CRIMINAL LAWS TO THE INTERROGATION OF
DETAINEES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
DECEMBER 20, 2007
__________
Serial No. 110-168
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
C O N T E N T S
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DECEMBER 20, 2007
Page
OPENING STATEMENTS
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 3
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Member, Committee on the Judiciary.. 5
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Member, Committee on
the Judiciary.................................................. 6
The Honorable Sheila Jackson Lee, a Representative in Congress
from the State of Texas, and Member, Committee on the Judiciary 7
WITNESSES
Professor Stephen A. Saltzburg, The George Washington University
Law School
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Professor John Radsan, William Mitchell College of Law
Oral Testimony................................................. 14
David B. Rivkin, Jr., Esquire, Baker & Hostetler
Oral Testimony................................................. 16
Prepared Statement............................................. 19
Ms. Elisa Massimino, Washington Director, Human Rights First
Oral Testimony................................................. 21
Prepared Statement............................................. 24
APPENDIX
Material Submitted for the Hearing Record
Letter dated December 17, 2007, from the Honorable John Conyers,
Jr., to the Honorable Michael B. Mukasey, Attorney General of
the United States.............................................. 66
Letter dated December 7, 2007, from the Honorable John Conyers,
Jr., the Honorable Robert C. Scott, the Honorable Jerrold
Nadler, and the Honorable William Delahunt to the Honorable
Michael B. Mukasey, Attorney General of the United States...... 68
Letter dated December 13, 2007, from the Honorable Michael B.
Mukasey to the Honorable John Conyers, Jr., the Honorable
Robert C. Scott, the Honorable Jerrold Nadler, and the
Honorable William Delahunt, with enclosure..................... 70
APPLICABILITY OF FEDERAL CRIMINAL LAWS TO THE INTERROGATION OF
DETAINEES
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THURSDAY, DECEMBER 20, 2007
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:10 a.m., in
room 2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Subcommittee) presiding.
Present: Representatives Conyers, Nadler, Scott, Jackson
Lee, Cohen, and Smith.
Staff Present: Sean McLaughlin, Minority Deputy Chief of
Staff; and Allison Beach, Minority Counsel.
Mr. Conyers. Good morning, the Committee will come to
order. I welcome everyone for coming. The purpose of this
hearing of course derives from the recent revelation of the
destruction of the CIA videotapes, which involve hundreds of
hours of audio and visual and we are concerned about the
decision to destroy them and a number of questions have been
raised that are ripe for congressional oversight.
The enhanced interrogation techniques reportedly depicted
on the tapes implicate various laws governing the proper use of
interrogation techniques as we have come to understand them.
And the destruction of the tapes and the issues surrounding the
investigation of the matter raises obvious questions of
obstruction of justice, as well as the ability of coequal
branches of government to initiate their own inquiries.
So I welcome our witnesses here, and I regret the absence
of a representative from the Department of Justice despite
repeated requests, including my letter of December 17. Attorney
General Mukasey hasn't sent anyone here to testify. We have not
even gotten a letter explaining why, although I am encouraged
by reports in the press this morning that the Department may be
yielding to the demands for a congressional oversight with
reference to the House Intelligence Committee. We will look
forward to a long overdue discussion with the head of the
Department of Justice when we return in January.
Now another reason for this gathering today is that this is
the first public hearing and discussion on the issues connected
with the government's interrogation of detainees since the
incredible news of the CIA's destruction of videotapes. Up
until now, the Senate Intelligence Committee has had a hearing,
but it was secret. The Department of Justice tells us that they
have an inquiry going on. That is secret. And so it is
important that we try to get an understanding, not only between
ourselves and our experts invited here today, but that the
American people be given a little more understandable
information about the very serious matters raised in connection
with this subject matter.
One of the most important responsibilities of the Judiciary
Committee is its oversight capacity. That was demonstrated when
we illustrated the firing of the U.S. attorneys, some nine of
them, and the politicization that was involved in that. And so
oversight is something we, all of the Members, are very zealous
about maintaining.
Now the purpose of this hearing is to explore the who, how,
when, where, why of the destruction of the videotapes and, as
importantly, what might have been shown on them. Now there are
those that say, well, they are gone now, there is nothing that
we can do. Well, I wish I knew that with any particular
certainty. I don't know if there are any copies around. There
are certainly people who do know what went on and are still
around. There are those that seem to know what was on these
tapes and that becomes another very important reason for our
inquiry. And then to separate out all the various laws that
govern such activity.
You start from my point of view with the Geneva Conventions
and the Convention Against Torture ratified in 1941, 1977,
1984. These are international obligations that we urged other
nations to join with us on. We were the leaders in this brave
new examination of how we should treat those with whom we don't
agree. And we urged others to sign and that required our
country as well to prohibit and to criminalize acts of cruel
and inhuman and degrading treatment. We criminalize those kinds
of violations of treaty which of course are law in this
country.
The Administration originally claimed that these
obligations didn't apply to detainees held or connected with
the war on terror, but the United States Supreme Court objected
to that position in the Hamdan case. This is the first time we
have had a chance to hear and discuss the issues that are
involved. We want to have it made clear that the Geneva
Convention applies to the treatment even of people that may be
or are connected in this anti-terrorist activity.
Although the Administration convinced the previous Congress
to enact laws to try to mitigate that decision, we will hear
from experts today that torture is still cruel and inhumane and
degrading, including waterboarding, and may well subject those
interrogators and those above them who approved it to legal
liability. That is an important reason why the destruction of
the tapes may well have been an obstruction of justice.
Like many others, I believe that the idea of appointing a
special counsel to independently investigate and prosecute
violations of Federal criminal laws regarding the interrogation
of detainees and others is a prudent way for a variety of
reasons. First, there is credible evidence, numerous Federal
crimes; second, that the White House itself attempted to shield
government officials from criminal prosecution; third, the
Attorney General Mukasey has still not told us whether
waterboarding and other forms of torture are outright illegal;
and, fourth, the Department of Justice wrote the legal opinions
authorizing torture.
So tomorrow we will be hearing from a Federal court that
has gone into this matter and we will be waiting for their
results. So I congratulate those Members of the Committee that
were able to be with us today. We thank them for their interest
and cooperation. There is no way we can tell when we were going
to get out of here. Things got better and we were able to
officially close the proceedings on the floor yesterday. So I
look forward to the Members of the Committee's inquiry about
these important issues, and I am very grateful that the
witnesses are here today.
I would now like to recognize Lamar Smith, who is the
senior Ranking Member of the minority from Texas who has worked
with me this first year in a way that has surprised and pleased
us all. We are grateful for his cooperation and insight into
the objectives of the Judiciary Committee, and I am pleased to
recognize him at this time.
Mr. Smith. Thank you, Mr. Chairman. Mr. Chairman, you were
complimentary of the Members who are able to be here today.
Unfortunately, that compliment can only apply to me for a very
short period of time because I am trying to get to the airport,
but I appreciate your having the hearing and if I may, I will
make my opening comments even if I have to leave shortly after
that.
Mr. Conyers. Thank you.
Mr. Smith. Mr. Chairman, the Justice Department in
conjunction with the CIA's Office of the Inspector General has
already begun a preliminary inquiry into the circumstances
surrounding the discarding of two videotapes of CIA
interrogations of terrorists. I understand that all records and
documentation that would facilitate the inquiry are in fact
being preserved.
What we do know is that members of both political parties
had been fully briefed on the CIA's interrogation program and
no objections were raised. According to The Washington Post in
September 2002, four Members of Congress met in secret for a
first look at a unique CIA program designed to bring vital
information from reticent terrorism suspects in U.S. custody.
For more than an hour the bipartisan group, which included
current House Speaker Nancy Pelosi, was given a virtual tour of
CIA's overseas detention sites and the harsh techniques
interrogators had devised to try to make prisoners talk. Among
the techniques described, said two officials present, was
waterboarding. On that day, no objections were raised. The
enhanced interrogation program would be treated as one of the
Nation's top secrets for fear of warning al-Qaeda members about
what they might expect.
The Post continued, saying U.S. officials knowledgeable
about the CIA's use of the technique say it was used on three
individuals, the alleged master mind of the September 11, 2001
terrorist attacks, a senior al-Qaeda member and Osama bin Laden
associate captured in Pakistan in March 2002 and a third
detainee who has not been publicly identified.
According to CIA Director Hayden, the videotapes of the
terrorist interrogations were discarded to both protect the
identities of the interrogators and keep them out of the hands
of terrorists who might use the information to develop
effective counter strategies. But while we can't watch the
videotapes, ABC News conducted a very telling interview with
one of the former CIA officials, John Kiriakou, who was
involved in one of the videotaped interrogations of terrorist
Abu Zubaydah.
When the terrorist Zubaydah, a logistics chief of al-Qaeda,
was captured, he and two other men were caught in the act of
building a bomb. A soldering gun that was used to make the bomb
was still hot on the table along with building plans for a
school. Zubaydah refused to offer any actual intelligence until
he was waterboarded for between 30 and 35 seconds. According to
Mr. Kiriakou, from that day on he answered every question. The
threat information that he provided disrupted a number of
attacks, perhaps dozens of attacks.
When a former colleague of Kiriakou asked Zubaydah what he
would do if he was released, he responded, I would kill every
American and Jew I could get my hands on. Near the end of the
ABC interview Mr. Kiriakou was asked what happens if we don't
waterboard a person and we don't get that nugget of information
and there is an attack on a movie theater or shopping mall or
in midtown Manhattan, you know, at rush hour, then what would
we do? I would have trouble forgiving myself.
According to reports, Khalid Sheikh Mohammed, the
mastermind behind the 9/11 attacks that killed 3,000 people,
stayed quiet for months until he was waterboarded for just 90
seconds. After that he revealed information that led to the
capture of many other terrorists, including those who were
plotting to derail trains, to use acetylene torches to bring
down the Brooklyn Bridge, to bomb hotels and nightclubs,
detonate U.S. gas stations, poison American water reservoirs,
trigger radioactive dirty bomb attacks, incinerate residential
high-rises by igniting apartments filled with natural gas and
cultivating anthrax.
There are clear laws governing CIA interrogation.
Specifically, U.S. law prohibits persons in the custody or
control of the U.S. Government, regardless of nationality or
physical location, from being subjected to cruel, inhuman or
degrading treatment or punishment. The Supreme Court has made
it clear that such unconstitutional acts are only those that
shock the conscience.
What shocks the conscience depends entirely on the
circumstances and purpose of the interrogation. For example, if
someone were picked at random on the streets of New York and
waterboarded, that would undoubtedly shock the conscience. But
what if that person was one of the 9/11 terrorists or perhaps a
known terrorist with information that could save hundreds or
thousands of lives? Waterboarding a member of al-Qaeda or a
known terrorist as a last resort to save the lives of thousands
of people would not shock the conscience.
Mr. Chairman, we should be careful not to unjustly
persecute anyone, especially those whose efforts enable us and
our families to sleep better at night.
Thank you, Mr. Chairman, I yield back.
Mr. Conyers. I thank the gentleman. I am glad that he made
his opening statement.
I am now pleased to call upon the Chairman of the
Constitution Committee of the House Judiciary. His name is
Jerry Nadler, senior member of the Judiciary Committee, and we
recognize him now for his opening comments.
Mr. Nadler. I thank you, Mr. Chairman. Mr. Chairman, I want
to commend you for scheduling this timely hearing into some
very disturbing reports. It is important that we investigate
these allegations carefully, because it is true we may be
facing the possibility of a dangerous and criminal abuse of
power at the highest levels of our government.
The matters at stake here are far from trivial. We have
been investigating the abuse of prisoners in U.S. custody, as
well as the practice of turning over individuals to other
countries designated by our government in those countries that
routinely engage in torture. We have also investigated the
practice of holding individuals, many of whom our government
now concedes are innocent of any wrongdoing, for years without
any hearing or due process of any sort. We have also
investigated widespread spying on Americans without any legal
authorization.
We have been told that the surveillance was not a violation
of criminal law, but I know of no possible excuse other than
those absurd ones told by the Administration that could justify
that conclusion. At every turn we have run into concerted
efforts to stonewall the public, the Congress and the courts.
They have refused to testify, they have withheld vital
information, they have flouted subpoenas.
Today we examine perhaps the most disturbing of all
allegations that our government destroyed tapes of
interrogation which employed what it euphemistically called
extreme interrogation techniques and what civilized people call
torture. These tapes clearly spoke to many of the cases in
question that the Congress, the public, and the 9/11 Commission
have debated, including unlawfulness of the interrogation
methods used, evidence for proceedings against those held as
unlawful enemy combatants. The destruction of these tapes may
have occurred in violation of a court order and while it was
known that the matter was under investigation, they were
concealed from the 9/11 Commission, the existence as well as
the destruction of the tapes. They concealed it from the 9/11
Commission, from the Intelligence Committee, and the Congress.
These tapes may very well have been relevant in at least
one criminal prosecution, and their destruction may ultimately
result in the release of a convicted terrorist. These actions
raise some very disturbing questions, the answers to which may
determine whether we remain a Nation of law.
Who ordered the destruction of the tapes and why? Who knew
about the existence of the tapes and their destruction? What
did the President and the Vice President know and when did they
know it? Who in the White House was involved in the decisions
leading up to the destruction of these tapes? What other
evidence, if any, has been concealed or destroyed? Did the
destruction of the tapes constitute a crime? And if so, who in
the Administration is criminally liable? Did the acts recorded
in the tapes constitute a crime or crimes? Were any of the
decisions made by our government and Congress, including the
decision to declare detainees not to be prisoners of war but to
allow the President to define retroactively what constitutes
illegal torture? Were any of these decisions made to protect
people in this Administration from prosecution for criminal
acts? These are very disturbing questions and ones to which we
need answers.
Mr. Chairman, in times of crisis it is always beneficial to
remember the principles upon which this Nation was founded. It
was John Adams who observed that, ``Power always thinks that it
is doing God's service when it is violating all the laws.'' We
are supposed to be a Nation of laws and we are a free and
democratic Nation but, as we are often reminded, freedom isn't
free. Today is the day when we must decide whether we are going
to pursue the difficult questions that are necessary to pursue
in order to protect our freedoms.
I look forward to the testimony of our witness, and I thank
our Chairman again for calling this important and timely
hearing. I yield back the balance of my time.
Mr. Conyers. Thank you very much. I would like to inquire
if the Chair of the Crime Committee would like to make an
opening statement.
Mr. Scott. Just very briefly, Mr. Chairman.
Mr. Conyers. The gentleman from Virginia is recognized for
that purpose.
Mr. Scott. Thank you, Mr. Chairman. I thank you for holding
the hearing because I think it is important for us to know
exactly what the laws are against torture. We have heard an
interesting response from the Administration that goes along
the lines of United States does not torture. If we did it,
therefore that must not have been torture because we don't
torture, and furthermore the torture worked. We need to know
what the laws are and who may have violated the laws.
What was on the tape? Were criminal laws documented? We
have heard we can't tell whether or not a particular technique
is torture until we have some more specifics. If we had it on
tape, people could look at the tape and ascertain whether or
not that was torture, but the tape, the evidence has been
destroyed. Who was responsible for the destruction and what
criminal laws could be implicated by the destruction itself?
We have heard that four Members of Congress were briefed on
this. Some have publicly contradicted some of the statements by
the Administration. But even if there is no complaint, four
Members of Congress can't change the criminal laws. So insofar
as Administration officials have been publicly implicated, from
writing legal memos justifying both what seems to be torture to
most people and the destruction of the documents, many had
knowledge of the tapes before the destruction, the tapes were
not disclosed when required apparently to the 9/11 Commission,
to Congress, and to the courts.
Mr. Chairman, for those reasons I think it is essential
that we have an independent counsel appointed, because so many
Administration officials from top to bottom from the CIA,
Department of Justice, and the White House have been implicated
in this matter. So I join your call for an independent counsel.
I yield back the balance of my time.
Mr. Conyers. Thank you very much.
I don't think I have to ask Sheila Jackson Lee if she wants
to make a comment because she takes full advantage of the
experience that she brings to the Judiciary Committee, and I'd
be happy to recognize the gentlelady from Texas at this time.
Ms. Jackson Lee. Good morning. Thank you, Mr. Chairman, and
thank you for being the kind of responsive chairperson that is
made aware or is aware, if you will, of some of the important
challenges that this Nation faces. We do know that we live in a
different world after 9/11 and we respect that difference. It
is the obligation of this country to ensure the safety of all
Americans. But I believe that the American people did not want
us to extinguish the Constitution in the backdrop of protecting
our security.
Let me acknowledge the distinguished witnesses that we will
listen to and offer a few thoughts about the importance of this
hearing.
The representation is that the CIA in 2005 destroyed at
least two videotapes documenting the interrogation of two
senior al-Qaeda operatives in the agency's custody. The CIA
reportedly took this step in the midst of congressional and
legal scrutiny pertaining to the CIA's detention program, a
major challenge to the Constitution. It is also important to
note that Congressman Peter Hoekstra, the Intelligence Chairman
from 2004 to 2006, explained that he was never briefed or
advised that the tapes existed or that they were going to be
destroyed. Furthermore, it is also noted that Congresswoman
Jane Harman, the Ranking Member of the Intelligence Committee,
explained that she had told CIA officials several years ago
that destroying any interrogation tapes would be a bad idea.
I too want to protect the operatives and certainly don't
want to put their families in jeopardy, but we cannot have a
government that is out of control. Questions of obstruction of
justice rage throughout this incident, and I believe it is
important for this congressional Committee to chiefly have
oversight as to whether or not the Constitution has been
violated.
It has been alleged, and I say alleged, that several then
White House lawyers, Alberto Gonzales, David S. Addington, Don
Bellinger, III, and Harriet Miers, allegedly had some
involvement in counseling regarding the tapes in question.
The destruction of the tapes has raised questions about
both the possibility that the tapes documented unlawful conduct
and that their destruction in and of itself was unlawful. It is
sad to note that many institutions were forbidden from getting
information regarding the tapes, including Congress, the
Federal courts and the 9/11 Commission. This government has to
be based upon truth and transparency and it certainly must be
based upon security and the protection of America. But the
United States does not make those practices violating the laws,
violating the Constitution, violating the International
Convention on Torture. It must not make that the norm and
acceptable practices. Therefore, we must not draw to the
practices of foreign dictators, but we must stand alone as a
beacon of light, shining around the world, to ensure that the
principles of democracy and freedom and equality and justice
reign strong in this Nation.
And so I am grateful for this hearing and look forward
enthusiastically to the testimony of the witnesses. I join with
my colleagues in calling on an independent prosecutor to ensure
that justice reign strong. I look forward to the testimony, and
I yield back my time and ask that my complete statement be
submitted into the record.
Mr. Conyers. Without objection, so ordered.
We welcome from the Human Rights First, Lisa Massimino. We
welcome Attorney David Rivkin of Baker & Hostetler. We are
delighted to have with us Professor John Radsan, and we begin
our testimony with Professor Steven Saltzburg, Wallace and
Beverly Woodbury University Professor of Law at George
Washington University.
He has had extensive prosecutorial experience. He has been
Associate Independent Counsel in the Iran-Contra investigation,
was later Deputy Assistant Attorney General in the Criminal
Division, and we are pleased that he has prepared a statement.
And his statement, like every one here, will be entered into
the record and you may make your presentation at this point.
Professor, welcome this morning.
TESTIMONY OF PROFESSOR STEPHEN A. SALTZBURG,
THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Saltzburg. Thank you, Mr. Chairman, Members of the
Committee. I don't intend to read my testimony since you
already have it, but I would like to highlight some points.
First, there isn't any dispute about the destruction of the
tapes and that it happened. Second, the rationale for
destroying the tapes to protect the identity of the
interrogators is almost as embarrassing as the destruction
itself. There are four facts that demonstrate this. One, the
tapes could have been modified to make the faces and voices
unrecognizable. Second, one copy of each tape could have been
maintained in a secure place. Third, the CIA keeps a record of
who interrogates in an interrogation. So even with the tape
gone there is a record. And fourth, the interrogators and
others in the CIA know who did the interrogation.
And so the explanation for destruction fails the straight
face test. It is unnecessary to prevent the tapes from
revealing the identities of the interrogators and the
destruction doesn't protect their identities.
And so the question is what does it tell us when an agency
gives an excuse that plainly is frivolous? It says that there
is another reason why these tapes were destroyed. And the only
plausible explanation I believe is that the CIA wanted to
assure that those tapes would never be seen by any judicial
tribunal, not even a military commission, and they would never
be seen by a Committee of Congress or any individuals in
Congress.
Over the last several years, when this House and the Senate
considered the Detainee Treatment Act of 2005 and the Military
Commission Act of 2006, Members have been asked their opinion
about whether waterboarding is torture. They have been asked
whether or not they support restrictions on CIA interrogation.
And one of the problems is that terms like ``waterboarding''
are tossed around as though everybody seems to believe that
they know what they are talking about.
One of the things that we would love to know is whether
what those tapes showed was that the actual implementation of
waterboarding was quite a bit different than people assumed it
would be. In fact it might have been quite a bit different from
what the Members of Congress, the four Members who had a secret
session, were told in an earlier year. I mean, if they showed
nothing more than what was already known to Congress, there
would be no need for them to be destroyed.
The destruction of the tapes means that there will
inevitably be disputes about what actually occurred during the
interrogations. The tapes themselves would have been
indisputable, but with them gone we have the ultimate coverup.
The indisputable evidence no longer exists and memories will
undoubtedly differ about what happened.
Now despite the fact that the tapes have been destroyed the
Department of Justice originally asked Congress to stay its
hand, not to investigate, and I think that would be a major
mistake. The Department seems to have changed its mind at least
to some extent. It is vitally important for this Congress to
recognize that it is part of the interrogation process, that it
regulated to some extent interrogation when it enacted those
two statutes in 2005 and 2006. This Congress decided not to
restrict the CIA, at least not explicitly, and it decided not
to confine the CIA to interrogation techniques that are
contained in the Army Field Manual. And one of the issues that
the Congress may well want to consider is should the CIA be
restricted.
This is not a Republican issue and it is not a Democratic
issue. This is an issue about credibility of the United States.
When United States officers act in a way that is regarded as
torture around the world; when United States officers engage in
practices which, if inflicted upon our own military, we would
regard as reprehensible, we would regard as violations of the
Geneva Conventions, we would regard as war crimes, and we would
regard as things that should be prosecuted; then it is
important for Congress to look and make its own judgment about
whether or not what is going on is something that can be done
in the name of the United States.
There are a number of questions for Congress to ask and
demand answers to. Some of these are: What specific reasons
were actually advanced for the tapes' destruction in 2005 and
are those reasons set forth in writing? If they are, who wrote
those reasons? And were those reasons vetted inside and outside
the agency? If so, what were the responses? Were they vetted by
the Department of Justice? If so, what were its responses?
Two other questions that should be asked are these: Are the
frivolous explanations that are being offered in 2007 the same
explanations that were actually given in 2005? And why was the
destruction of these tapes kept secret for some period of time?
The longer the time, the harder it is to reconstruct what
actually happened. Congress already has a 2-year gap to worry
about and it is important that Congress not wait any longer to
do an investigation.
Another issue for Congress to consider is whether there
should be restrictions on destruction of other forms of
evidence. Whether or not the CIA should be required to maintain
certain records for an extended period of time or perhaps
forever is a debatable question. I don't think the answer is
clear, but I do think it is important that Congress should look
to the practices of the agency and decide whether or not those
practice are acceptable.
Without meaning to be insulting, I think the fact is that
Congress was effectively absent for 4 or 5 years from the
debate about the war on terror after the attacks of 9/11.
Congress watched as Guantanamo unfolded and Congress did
nothing to restrain an Administration committed to creating a
new detention regime and new system of justice if you think
that term can accurately be used to describe Guantanamo.
Congress finally awoke and exercised some oversight
responsibility in 2005 and 2006, but that oversight
responsibility largely rubber stamped everything that the
Administration did. With the destruction of these tapes it is
clear that Congress no longer can afford to be a rubber stamp.
Congress must be a coequal, co-responsible branch of
government, exercising the oversight function the framers of
the Constitution so clearly intended.
Congress can exercise this oversight role without
interfering with or infringing upon the Department of Justice.
The Intelligence Committees have the ability to consider
classified information in very secure situations. This
Committee can hold closed hearings as well as open hearings and
therefore adjust the hearings to deal with the sensitivity of
the information before it.
As the Chairman noted back in the 1980's, I served as
Associate Independent Counsel on Iran-Contra. I also then
represented the Department of Justice in dealing with
classified information in that case. It was important that
Congress get to the bottom of Iran-Contra and it is important
that Congress get to the bottom of the destruction of these
tapes. There is no reason to believe the congressional
investigation would jeopardize any future criminal
prosecutions.
What we learned is Congress has got to be careful about
immunizing testimony, particularly public testimony. That is a
lesson of Iran-Contra. But we also learned that Congress can
proceed full bore if it proceeds carefully with its own
investigation and criminal prosecutions can still ensue.
There are a number of questions that Congress needs to ask,
a number of answers that Congress needs to provide. The most
important thing, I believe, is that Congress needs to exert
itself to demonstrate that it can fulfill and is committed to
fulfilling its constitutional role of oversight over all
branches of the executive.
Thank you.
[The prepared statement of Mr. Saltzburg follows:]
Prepared Statement of Stephen A. Saltzburg
Chairman Conyers, Ranking Member Smith, Members of the Committee,
it is always an honor and a privilege to appear before you. Today, it
is also an opportunity, an opportunity to discuss with you the
importance of Congress investigating without delay the destruction of
interrogation tapes by the Central Intelligence Agency (C.I.A.).
We know very little about the tapes that were admittedly destroyed
in 2005, and even less about the decision-making process that led to
their destruction. News reports indicate that lawyers in the White
House and possibly in other parts of the Administration advised the
C.I.A. not to destroy the tapes, and that despite this advice lawyers
within the C.I.A. signed off on the legality of the destruction before
it was approved by a high agency official.
The only justification offered thus far for destroying the tapes--
i.e., to protect the identity of interrogators--is completely
unpersuasive. Indeed, the explanation is almost as embarrassing as the
destruction. Consider these facts:
1. The tapes could have been modified to make the faces and
voices of the interrogators unrecognizable.
2. One copy of the tapes could have been maintained in a
secure place with limited access.
3. The C.I.A. must keep a record of who interrogated whom for
various reasons, so that even with the tapes destroyed there is
a record of who the interrogators were.
4. The interrogators and others within the C.I.A. know who
conducted the interrogations, and as long as they are alive
there is the possibility that the identity of an interrogator
will be revealed.
In sum, the explanation offered for the destruction of the tapes
does not pass the straight-face test. It is flawed in two fundamental
ways. First, the destruction was unnecessary to prevent the tapes from
revealing the identities of interrogators. Second, the destruction does
not prevent the disclosure of identities.
When an agency's explanation for its actions is plainly frivolous,
one must consider what the real explanation for that action must be and
why the agency is desperate to conceal this explanation. In my
judgment, the only plausible explanation for the destruction of the
tapes is that they were destroyed to assure that they would never be
viewed by any judicial tribunal, not even a military commission, or by
a congressional oversight committee.
Over the last several years, Congress has debated whether certain
forms of interrogation constitute torture. But, the debate has been at
a certain level of abstraction. Both this House and the Senate in
various hearings have asked witnesses whether techniques like
waterboarding constitute torture, but the testimony has assumed that
members of Congress and witnesses share a common understanding of how
techniques were and are actually employed. Videotapes of
interrogations--particularly interrogations of ``high value''
detainees--would provide concrete details and permit members of
Congress to see how techniques are employed against actual human
beings.
It is probable that during military commission trials and perhaps
future proceedings in federal civilian courts, issues will arise as to
whether confessions were coerced and whether they are reliable enough
to be used as evidence. It will not be surprising if conflicting
testimony arises as to what interrogators did, how long they did it,
the frequency of their actions, and the physical and mental hardships
inflicted upon detainees. A videotape of an interrogation of one
detainee might provide circumstantial evidence as to how other
detainees were interrogated, especially if they were interrogated by
the same individuals or individuals trained by the same agency.
Destruction of the videotapes assured that what might have been
incontrovertible evidence of what occurred during interrogation
sessions will never be available to any court, congressional committee,
or government investigator. It is the ultimate cover-up. With the tapes
destroyed, anyone seeking to determine with precision what occurred
during an interrogation will be forced to depend on testimony from
witnesses who have different perspectives and biases and whose
recollections are virtually guaranteed to differ.
Now that the tapes have been destroyed, the Attorney General has
asked Congress not to investigate their destruction for some period of
time and to defer to the Department of Justice's own investigation. I
applaud the Department's immediate reaction to learning that the tapes
were destroyed and its initiation of an investigation. But, I believe
it would not only be a mistake for Congress to do nothing at this
point; it would be an abdication of responsibility.
The Administration persuaded Congress to address the treatment of
detainees and interrogation methods in two major pieces of litigation:
the Detainee Treatment Act of 2005, and the Military Commission Act of
2006. This legislation restricted the interrogation methods that may be
employed by the Department of Defense and its components, but did not
restrict the methods used by the C.I.A. Moreover, Congress has provided
that statements obtained from detainees through coercive methods may be
admitted in military commission trials. Congress therefore has both
declined to impose upon the C.I.A. the same interrogation restrictions
it imposed upon DOD, and Congress has adopted evidence rules for
military commission proceedings based upon its understanding of the
types of interrogation actually conducted by United States officers.
The destruction of the videotapes surely requires Congress to ask
itself what it might have learned had its intelligence committees been
aware of the tapes and been permitted to review them. For several years
now, Congress has debated whether interrogation techniques constitute
torture, how torture should be defined, and how it should be punished.
Congress enacted legislation based upon assumptions. The videotapes
might well have informed the debate by replacing assumptions with
undisputed facts. So, Congress has an obligation to ask what it might
have learned from those tapes, and there is no time to waste and no
reason to wait to decide whether the legislation previously passed
needs reconsideration.
The Department of Justice investigation will focus on whether laws
were broken when the tapes were destroyed, and perhaps that inquiry
will lead to an inquiry into whether the tapes reveal criminal acts
(which might well not be prosecuted as a result of the Military
Commission Act of 2006). The inquiry by Congress ought to focus on
other, equally important issues. These include, but are not limited to,
the following:
Who was alerted to the fact that the C.I.A. was considering
destroying the tapes? When were they alerted? And what advice, if any,
did the knowledgeable individuals give to the C.I.A.? The reason for
asking these questions is to determine how decisions were made, which
agencies were involved, and the quality of advice, both legal and
practical, that was provided. I note that the New York Times reported
last week that the Department of Justice has refused to indicate to
Congress what role it might have played in the destruction of the
tapes. This refusal is all the more reason for Congress to investigate
and to investigate now. It is important for Congress to know which
agencies were consulted before the tapes were destroyed and the nature
and quality of any counsel provided by these agencies.
What specific reasons were advanced for their destruction at the
time the tapes were destroyed? Are those reasons set forth in writing,
and if so, by whom? Were those reasons vetted inside and outside the
agency, and if so, what were the responses? Since it is inconceivable
that anyone could truly believe that the destruction was either
necessary or sufficient to protect identities, the question that
naturally arises is whether the explanation given in 2007 squares with
the reasons set forth in 2005. If it should turn out that a deliberate
decision was made to deny courts and Congress ``evidence,'' Congress
might well decide that new legislation on record preservation is
required.
Why was the destruction kept secret for as long as it was? A delay
between an action and review of that action means that memories will
fade, and reconstruction of events will be more difficult. It will be
hard enough for Congress to obtain accurate, complete answers
concerning events that are now more then two years old, but it becomes
more difficult with the passage of time.
Should the restrictions on interrogation imposed on the Department
of Defense be extended to the C.I.A.? This question has been debated
over several years, but the destruction of the tapes is a reason to
revisit it. I do not mean to suggest that the answer will suddenly be
agreed upon by all. But, destruction of the tapes may suggest that
there are reasons why the C.I.A. did not want them to be seen by a
Congress that has considered imposing interrogation limits.
Should there be prohibitions on destruction of videotaped
interrogation sessions and possibly other evidence gathered in the
``war on terror?'' Perhaps the answer is no, but the question is
important and requires some careful thought--now, not tomorrow, and not
next year. It is possible, despite the adverse public reaction to the
disclosure of the destruction of the tapes, that C.I.A., the Department
of Defense or some other federal agency will destroy additional
material in months to come. Congress needs to know sooner rather than
later the advice that was given to the C.I.A., the true rationale for
its action, and whether destruction of additional evidence is planned
or possible. Only with knowledge can Congress decide whether
legislation is needed to protect and preserve evidence.
Congress was effectively absent after the attacks of 9/11 for years
while it gave almost complete deference to the Executive to detain and
interrogate those deemed ``suspected terrorists.'' Congress watched as
Guantanamo unfolded and did nothing to restrain an Administration
committed to creating a new detention regime and system of justice if
that term may be used to describe Guantanamo.
Congress finally awoke and enacted two major statutes in 2005 and
2006. These statutes ratified rather than restricted much of what the
Administration had put in place. Congress therefore shares
responsibility for the types of interrogation that United States
officers may utilize and for the evidentiary use that may be made of
the results. That responsibility should require Congress to find out
what was lost when the videotapes were destroyed and to consider
whether changes in United States law should be made with respect to
interrogation and use of evidence in military commission proceedings.
Congress also should consider whether, in its oversight of the
Executive it is necessary to prevent destruction of evidence that might
inform the oversight function. Congress might even consider whether new
laws are needed to assure that Executive agencies do not inhibit
congressional inquiry or reduce the reliability of judicial
proceedings.
Congress can exercise its oversight role without interfering with
or damaging the investigation by the Department of Justice. Congress
can utilize its intelligence committees to consider certain sensitive
information in secure settings. It can hold closed hearings on matters
that are less sensitive but cannot be publicly disclosed without risk
of compromising important governmental interests. And Congress can hold
public hearings on broad questions such as whether governmental
agencies should be required to maintain certain types of evidence for
specified periods of time and whether notice to Congress should be
provided before certain types of evidence are destroyed.
Back in the 1980's, I served as Associate Independent Counsel in
the Iran-Contra investigation. Later, I served as Deputy Assistant
Attorney General in the Criminal Division of the Department of Justice
and was responsible for handling classified information on behalf of
the United States as Independent Counsel Lawrence Walsh prosecuted Lt.
Col. Oliver North, Admiral John Poindexter and others. Judge Walsh
asked Congress to delay its inquiry into Iran-Contra while he
investigated, and Congress acceded to his request by postponing for
several months its public inquiry. We learned that Congress can damage
the ability of a prosecutor to prosecute a case successfully if
Congress grants immunity to witnesses and forces their testimony in
public. But we also learned that Congress has a role to play in
boosting public confidence that the rule of law is alive and well in
America through its investigative function.
There is no reason to believe that an investigation into the
destruction of the tapes would require Congress to immunize witnesses
or to conduct all of its proceedings in open session. As I have
indicated, there exist a range of options for Congress to protect
classified and sensitive information while satisfying itself that it is
meeting its responsibilities as a co-equal branch of government.
Assistant Attorney General Kenneth L. Wainstein and John L. Helgerson,
the C.I.A.'s inspector general, have written to Congress and have
claimed that ``[o]ur ability to obtain the most reliable and complete
information would likely be jeopardized if the C.I.A. undertakes the
steps necessary to respond to your requests in a comprehensive fashion
at this time.'' There is reason for concern here. It would be an
unnecessary drain on resources and distraction for the C.I.A. to
respond to overlapping inquiries by this Committee, the House
Intelligence Committee and other committees of the House and Senate.
This is a time for the House and the Senate to exercise leadership and
allocate the oversight responsibility so that the C.I.A. is not
required to repeatedly answer the same questions. It is possible to
have oversight that is tailored, efficient and respectful of national
security concerns. It is that oversight that I encourage Congress to
undertake.
Earlier this year, in an article which I attach entitled A
Different War: Ten Key Questions About the War on Terror, I wrote the
following about the Detainee Treatment Act and the Military Commission
Act: ``As a result, it may well be that the judiciary will find that
its ability to serve as a check on executive power is weakened, and
that Congress has given the President the virtual blank check to act
that he previously did not have. If this is so, the above questions,
which contend are vital, lead me, and may well lead many others, to
wonder whether our cherished system of checks and balances now provides
inadequate checks and too little balance. . . .'' Congress needs to
exert itself to demonstrate that it is an adequate check on executive
excess and arrogance.
Mr. Conyers. Thank you so much.
Might I inquire if Steve Cohen, the gentleman from
Tennessee, had a comment that he'd like to make at this time?
Mr. Cohen. Thank you, Mr. Chairman. The only thing I would
like to say is how proud I am to serve in this Congress and on
this Committee with you as Chair. It is the end of my first
year in Congress and the first year on this Committee, which I
chose as my Committee because of issues such as this. I think
our Constitution and our laws are so important, and being on
this Committee and you having this hearing is the reason why I
am so proud to be a Member of this Congress. And I thank you
for not allowing me to be the Rodney Dangerfield of the
Committee. I thank you.
Mr. Conyers. You are more than welcome. As a matter of
fact, I should give you more time.
But at any rate, moving to Professor John Radsan, we thank
you, Professor Saltzburg, for your opening comments.
Professor John Radsan, Associate Professor of Law at
William Mitchell College of Law. A leading authority on
national security issues with a unique combination of
professional experience in both law enforcement and
intelligence activities. He served as a Federal prosecutor at
the Justice Department and later as Assistant General Counsel
to the CIA from 2002 to 2004. We are very pleased you could
join us today, and we yield the floor to you at this
time.no prepared statement, submitted outline deg.
TESTIMONY OF PROFESSOR JOHN RADSAN,
WILLIAM MITCHELL COLLEGE OF LAW
Mr. Radsan. Thank you very much, Mr. Chairman. Thank you,
Members of Congress. I apologize that I was not able to share
with you my prepared remarks, long remarks. I am even amazed
that I was able to get the one-page outline cleared by the
Publication Review Board at the CIA. So I will even summarize
my outline here.
I am also sorry, Mr. Chairman, that the Committee was not
able to have a representative from the Department of Justice at
this hearing, as you noted. I think it is clear that as a
former prosecutor, I am not speaking for the Department, I am
not speaking for the agency. I think it is also clear that my
stock does not rise with my colleagues from the Justice
Department or the CIA by being here, but I welcome your
invitation to speak to these very important issues.
It is much easier for us as former officials to talk about
the CIA detention and interrogation program since September
6th, 2006. That is an important date because for the first time
the President acknowledged what the American public knew what
Members of Congress knew, that we had a secret detention and
interrogation program. That became clear then the debate was
going to be on the details of the program, the type of
oversight that we would have.
What I would like to do with my few minutes is to make some
general observations about this program and then to go very
specifically to your question about the destruction of the CIA
tapes. I am fortunate that I was out of the agency during much
of this relevant period, so I can comment in a way that
Professor Saltzburg has as an informed observer of these
events, and I share these observations with you all.
I agree with the Committee's work that it will serve the
American people to have more transparency, more openness on
what kind of interrogation techniques the CIA is using, the
Department of Defense is using and our law enforcement people
are using. The Administration to counter says that if we are
too explicit the terrorists, the bad guys, will train in
counter interrogation, they will prepare themselves for
whatever is in store. I am not saying that this is a frivolous
argument but I believe strongly on balance that it makes more
sense for the American public and for support overseas to be a
bit more transparent, and more transparent than we are today
after the Military Commissions Act, after the President's
Executive order part of which is classified.
Congress can be explicit if it doesn't like a technique
such as waterboarding, it can ban it. If it doesn't like seep
depravation, it can ban it. And I commend any work in that
direction to be more open about what is on the table and what
is off the table.
I would also like us to be sympathetic though to the CIA,
and we speak broadly about an agency, that this department
learned the lessons of the Church Committee hearings, it
learned the lessons of Iran-Contra. And there are two broad
lessons, one to do anything that is aggressive or controversial
there must be presidential authorization. And two, even if you
have authorization it is not sufficient because the President
cannot authorize us to break the law.
What many of my colleagues believe is that they accomplish
both those tasks. According to the press, we had a
comprehensive finding by the President soon after 9/11 for very
aggressive actions against al-Qaeda and other terrorists so
that there was a presidential finding. Similarly we have
reportings that there was a lot of lawyering from the Justice
Department to the CIA on the specific techniques or a specific
aspect of the program. You and I may disagree on the quality of
that analysis, but if you are looking at it from the
perspective of a CIA officer, who is not a lawyer, that person
may shrug and say, what else could we have done? We had a
presidential finding, we also had advice from the lawyers, we
are trying to comply with the law. I agree with you that the
destruction of the tapes is different and much more alarming
for the reasons that you identified.
It has become fashionable now for Democrats and Republicans
to talk about a national security court, a FISA type court, to
sort out these interrogation issues, what is allowed, what is
not, to have oversight from an additional branch of government.
I support those ideas. I also plug people from the Midwest that
we had come up with some of these ideas even before it was
fashionable for professors at Georgetown or Harvard. And if you
look at a 2006 National Law Journal article written by yours
truly, you will see that someone was thinking about this as a
way to balance these legitimate interests of oversight and
allowing the CIA to do what is necessary to protect us.
What is the context in 2005? And I close my remarks on why
this was important that the tapes were destroyed then, and I
agree with Professor Saltzburg that we know that the tapes were
destroyed. The question is why and why then? I don't agree with
Professor Saltzburg when he implies that the CIA is a monolith,
it has one brain or one soul. So far from what we can tell it
was a decision by the head of the clandestine service, Jose
Rodriguez, to destroy the tapes in November '05. What was going
on in November of '05. This was after Abu Ghraib and the
revelations that occurred in the spring of '04. That was a
Department of Defense program, abuses related to their program,
but it had an effect on the CIA's program.
In this period we have had legal guidance from the Justice
Department, the so-called torture memo of August 2002 that had
been withdrawn. The Justice Department was starting to withdraw
or back away from some of the more aggressive guidance that had
been given the CIA. It is also very important that another part
of check on the CIA is the media, and this is right around the
time that Dana Priest in The Washington Post broke her story
about secret prisons in Eastern Europe. She knew the countries,
but in the back and forth with the CIA, The Washington Post
chose not to identify the countries. The media reported that
some of these interrogations that were on the tapes might have
been in those secret facilities, so this would have been of
concern to people running that very secret program.
We also know at that time, as I am sure all the Members of
Congress recall, that Senator McCain was gaining support for
the McCain amendment that was going to restrict permissible
interrogation. The McCain amendment was passed in December of
2005, but it was cleared in November that the political lines
were changing and that what would have been permissible early
in our counterterrorism policies was no longer likely----
Mr. Conyers. You can finish your thought, please.
Mr. Radsan. From one other, and I will credit your staff
members on this, another development you mentioned the Hamdan
decision, that did have an effect on the CIA when Common
Article 3 started to affect CIA policies. This is before the
Military Commissions Act. If we go back to that period we will
see that the Hamdan v. Rumsfeld case had been granted cert by
the Supreme Court and that would have been another concern by
Jose Rodriguez and others at the CIA.
Thank you very much, Mr. Chair.
Mr. Conyers. Thank you very much, Professor Radsan. We
appreciate your views. And our next witness is Attorney David
Rivkin, partner at Baker & Hostetler, Visiting Fellow at the
Nixon Center, Contributing Editor at the National Review. Mr.
Rivkin has extensive experience in a wide range of
international and domestic policy issues. He served in a
variety of legal and policy positions in at least two
Administrations in the White House Counsel's Office, the Office
of the Vice President and the Departments of Justice and
Energy. He has also had an earlier career as a defense and
foreign policy analyst focusing on Soviet affairs, arms
control, naval strategy and NATO-related issues.
We are delighted, sir, you can join us, and your statement
will appear fully in the record as we proceed. Welcome.
TESTIMONY OF DAVID B. RIVKIN, ESQUIRE,
BAKER & HOSTETLER
Mr. Rivkin. Thank you very much. Thank you very much,
Chairman Conyers and other distinguished Members of the
Committee, for asking me to testify about this important set of
issues, I am delighted to be here. Whatever circumstances
surrounding the destruction of interrogation videotapes--and
let me just say that there are certain explanations that are
far less sinister than some have proffered and I agree in that
respect with some of the points made by Professor Radsan--it is
the law that governs interrogations that should be our foremost
concern and it is in this area that I will make some remarks
this morning.
There is frequently a misperception that this law bans and
absolutely prohibits all coercive stressful interrogation
techniques. That is not the case.
As you all know, the most direct set of statutory
provisions governing interrogations is contained in the so-
called McCain amendment, and the first provision of the McCain
amendment specifies that no person in the custody or effective
control of the Department of Defense or detained at DOD
facilities shall be subjected to an interrogation treatment or
technique that is not authorized by the United States Army
Field Manual, and let me add that this is a 2005 version of
that manual and waterboarding is not authorized by that manual.
Crucially, however, the McCain amendment does not limit
other U.S. Government agencies with responsibility for
interrogations, particularly the Central Intelligence Agency,
with techniques listed in the manual. As to these other
agencies, the McCain amendment simply provides that no person
in the custody or control of the United States Government,
regardless of their nationality or physical origin, will be
subjected to ``cruel, inhuman or degrading treatment of
punishment.'' And in deciding whether the treatment falls below
the standard the McCain amendment defines as cruel and unusual,
inhuman treatment a punishment to mean those acts prohibited a
by 5th, 8th and 14th amendments of the Constitution. It is
worth noting here--I am sure it does not come as any surprise
to you--that the duality, the distinction between two sets of
procedures governing the military and CIA interrogations that
was adopted by Congress with after some back and forth
supported by the White House came after extensive and informed
debate and reflected in my view a joint belief by the two
political branches that the two agencies, DOD and CIA,
interrogated different sets of combatants with vastly different
policy equities in place.
I would say briefly that point was made by Ranking Member
Smith that as far as the relevant constitutional standards in
forming their definition of the term ``cruel, inhuman and
degrading'' are concerned, the Supreme Court and lower courts
have long recognized that these constitutional standards are
inherently contextual. There is a case law, a number of cases
like Sacramento v. Lewis.
By the way, I should admit that none of those cases deal
with interrogations. Those cases deal with far more mundane
matters like high speed chases, denial of a right to counsel in
Betts v. Brady; ex parte aspects of child custody proceedings
in Miller v. The City of Philadelphia. But all of them present
not an absolutely contextual, all facts and circumstances type
analysis of what is it that the 5th, 8th and 14th amendments of
the Constitution provides and what shocks our conscience and
what not.
To me it is really a matter of common sense and is not
particularly surprising.
Let me briefly make a couple of other points. I happen to
think that while the legal parameters that govern our
interrogations are not infinitely elastic, in fact are quite
restrictive, they are not as inflexible as some would have you
believe.
The real questions are policy questions. Put differently,
our legal box in my opinion is wider from the policy box. There
may well be reasons to set interrogation standards tighter than
the law requires, and we should not be debating only about the
law. That to me is a real set of issues for your consideration.
We need to ask ourselves a couple of questions. The first
one is whether coercive interrogation techniques are actually
useful. I heard many critics argue that while building rapport
of captured enemy combatants invariably produces success, by
contrast coercive efforts are inherently unreliable because
they produce lies. I think it is overly simplistic. In fact, I
would hope that our government takes nothing to al-Qaeda
operatives or Taliban operatives or any other terrorist groups
waging combat against the United States at face value, whether
the fruit of milder or more coercive interrogation methods.
Every bit of intelligence must be carefully vetted and cross-
checked regardless of the interrogation method used.
Just as the context is important in deciding what shocks
our conscience, what techniques work better is also inherently
a contextual matter. There cannot be in my opinion any
empirical data as to which are the best under all
circumstances. In many cases, from what we hear, inducing
detainees to speak at all is remarkably difficult. Coercive
methods of some kind may be appropriate in such circumstances.
Other detainees by contrast may speak freely, making coercive
efforts less necessary. In my opinion, the best interrogation
technique is whatever technique within the law produces the
best results upon a specific detainee in a specific factual
context.
My second point is that I find it extremely unfortunate
that so much of our discussion is focused on waterboarding.
This is just one coercive interrogation technique and a very
harsh one and frankly the one that gives me and some people
some pause. But there are many other coercive techniques that
are much milder, still beyond the narrow scope Army Field
Manual. And that scope I want to emphasize is very narrow. I
will give you one example. One of the toughest techniques
authorized by the manual is called Mutt and Jeff, which is
essentially another word for good cop, bad cop routine, but it
is enormously circumscribed here. This is from the 2005 manual,
page 17. The bad cop, in that situation the bad interrogator,
may go as far as ``convey an unfeeling attitude'' while being
``careful not to threaten or coerce the source'' in any way
while the other individual adopts a more friendly tone. Let me
suggest to you that for better or worse a far more aggressive
version of a good cop and bad cop technique are practiced daily
in the police stations in this country in the interrogation of
suspected purse snatchers or bank robbers.
I realize that discussion of coercion as used is difficult,
it jars our 21st century sensibilities, it is a very difficult
task for any democracy. But I personally cannot conceive of any
practical possibility but in the foreseeable future, especially
given the threats we face, we live in a world in which we can
abandon the use of coercion in a public sphere across the
board, over employing training routines of our military forces,
interrogation of criminal suspects or engagement from unlawful
enemy combatants.
Let me be very emphatic, I am even less capable of
envisioning of a moral practical reasons for adopting a legal
regime that would advantage interrogationwise unlawful enemy
combatants as compared with ordinary criminal suspects. Yet
adopting across the board, as you heard a number of people
suggest, including previous witnesses, the Army Field Manual
procedures across the board to CIA interrogations to precisely
accomplish this outcome would be interrogating detainees, high
valued detainees less sternly--it has nothing to do with
waterboarding--than bank robbers or purse snatchers. I think
with all due respect it makes no sense.
I thank you for your patience and look for to your
questions.
[The prepared statement of Mr. Rivkin follows:]
Prepared Statement of David B. Rivkin, Jr.
I want to thank Chairman Conyers, Ranking Member Smith, and the
other Members of the Committee for inviting me to testify at this
important hearing.
Whatever the circumstances regarding the destruction of the
interrogation videotapes, the law governing interrogations must be our
foremost concern. It is on this law that I will focus my remarks this
morning. It is frequently misunderstood to mean that all coercive or
stressful interrogation techniques are unlawful. This is not the case.
The most direct set of statutory proscriptions, governing
interrogations, is contained in the so-called McCain Amendment. The
first provision of the McCain Amendment specifies that no person in the
custody or effective control of the Department of Defense (``DOD'') or
detained in a DOD facility shall be subjected to any interrogation
treatment or technique that is not authorized by and listed in the
United States Army Field Manual on Intelligence Interrogation. P.L.
109-148, Title X, Sec. 1002 (2005); P.L. 109-163, Title XIV, Sec. 1402
(2006). I note that ``waterboarding'' is not authorized by the Manual.
Crucially, however, the McCain Amendment does not limit other U.S.
government entities with responsibility for interrogations, such as the
Central Intelligence Agency (``CIA''), to the techniques listed in the
Field Manual.
As to these, the McCain Amendment simply provides that no person in
the custody or control of the United States government, regardless of
their nationality or physical location, shall be subjected to ``cruel,
inhuman or degrading treatment or punishment.'' 42 U.S.C. Sec. 2200dd.
In deciding whether treatment falls below this standard, the McCain
Amendment defines ``cruel, unusual, and inhuman treatment or
punishment'' to mean those acts prohibited by the Fifth, Eighth, and
Fourteenth Amendments to the Constitution. It is worth noting that this
distinction between the procedures governing military and CIA
interrogations was adopted by Congress, with the White House's support,
after an extensive and informed debate, which reflected a joint belief
by the two political branches that the two agencies interrogated
different types of enemy combatants, with vastly different policy
equities in place.
As far as the relevant constitutional standards informing the
definition of the term ``cruel, unusual and inhuman treatment or
punishment'' are concerned, the Supreme Court and lower courts have
long recognized that these constitutional standards are inherently
contextual. I point the Committee to the case of Sacramento v. Lewis,
523 U.S. 833, 850-51 (1998). As Justice Souter noted, ``[r]ules of due
process are not subject to mechanical application in unfamiliar
territory. . . . [P]reserving the constitutional proportions of
substantive due process demands an exact analysis of circumstances
before any abuse of power is condemned as conscience-shocking.''
Similarly, in Betts v. Brady, 316 U.S. 455, 462 (1942), the Court
explained that ``due process of law'' denotes a right ``more fluid''
than others guaranteed by more specific provisions of the Bill of
Rights. Claims of a denial of due process are, the Court explained,
``to be tested by an appraisal of the totality of facts in a given
case.''
More recently, in Miller v. City of Philadelphia, 174 F.3d 368, 375
(3d Cir. 1999), the Third Circuit explained that ``the exact degree of
wrongfulness necessary to reach the 'conscience-shocking' level depends
upon the circumstances of a particular case.''
Simply put, that which is cruel, inhuman and degrading in one set
of circumstances will not necessarily be so in another. This is common
sense. The ``ticking bomb'' example may be overused, but it is directly
on point here. The law recognizes that, whether an interrogation
technique ``shocks the conscience'' depends, in the final analysis, on
the kind of information that interrogators are trying to elicit and the
circumstances in which they are doing so. The McCain Amendment is, of
course, binding law. At the same time, its language should--and must--
be interpreted in a manner informed by the wisdom of these judicial
pronouncements.
I would like to make two further points.
First, given that the legal parameters within which the United
States government conducts interrogations of terrorist detainees are
relatively flexible, the real question for the Committee is one of
policy. In this regard, we must first ask ourselves whether coercive
interrogation methods are actually useful. Some critics argue that,
while building rapport with captured unlawful enemy combatants
invariably produces success, by contrast, coercive methods are
inherently unreliable, that they produce lies. This is overly
simplistic. I hope our government takes nothing that al-Qaida
operatives say at face value, whether the fruit of milder or more
coercive interrogation methods. Every bit of the intelligence ``take''
must be carefully vetted and cross-checked, regardless of the
interrogation method used.
Which techniques work better is a contextual matter, and there is
not--indeed, there cannot be--any empirical data as to which are the
``best'' under all circumstances. In many cases, inducing detainees to
speak at all is remarkably difficult. Coercive methods may be
appropriate in such situations. Other detainees may speak freely,
making coercive methods less necessary. The ``best'' interrogation
technique is whichever technique, within the law, produces the best
results upon a specific detainee in a specific factual context.
Second, I find it unfortunate that so much of our discussion has
focused on ``waterboarding.'' This is just one coercive interrogation
technique. There are many other ``coercive techniques'' that are much
milder, but still beyond the narrow scope of the Army Field Manual. And
that scope is very narrow, indeed. In fact, the toughest technique
authorized by the Manual is called the ``Mutt and Jeff.'' This is a
good cop/bad cop routine in which one interrogator may go so far as to
``convey an unfeeling attitude'' while being ``careful not to threaten
or coerce the source,'' while the other adopts a more friendly tone.\1\
Let us remember that, for better or worse, more aggressive treatment is
daily meted out in police interrogations of criminal suspects.
---------------------------------------------------------------------------
\1\ Headquarters, Department of the Army, Field Manual 2-223 (FM
34-52), Human Intelligence Collector Operations ch. 8, 17 (2005).
---------------------------------------------------------------------------
I realize that discussion of coercion and its use jar our 21st
Century sensibilities and it is an inherently difficult task for any
idealistic democracy. However, I cannot conceive of any practical
possibility that, in the foreseeable future, we would live in a world
in which we can abandon the use of coercion in the public sphere across
the board, whether employed in the training routines of our military
forces, interrogation of criminal suspects, or engagement with captured
unlawful enemy combatants. Frankly, I am even less capable of
envisioning either moral or practical reasons for adopting a legal
regime, which would advantage, interrogation-wise, unlawful enemy
combatants as compared, for example, with ordinary criminal suspects.
Yet, adopting the Army Field Manual procedures across the board would
accomplish precisely this outcome.
I thank the Committee for its patience and look forward to the
members' questions.
Mr. Conyers. Thank you, David Rivkin. Your testimony raises
a number of questions that compare what we do in the private
sector and what we do among governments.
We now turn to the Washington Director of Human Rights
First, Elisa Massimino, an expert on a range of international
human rights issues, a national authority on U.S. compliance
with human rights laws. Attorney Massimino has taught
international human rights law at the University of Virginia
and teaches human rights advocacy at Georgetown University. As
a litigation associate at Hogan-Hartson, she was pro bono
counsel in a number of human rights cases and joined Human
Rights First as a staff attorney in 1991 and has directed its
Washington office since 1997.
Human Rights First and Physicians For Human Rights recently
released a report entitled ``Leave No Marks, Enhanced
Interrogation Techniques and the Risk of Criminality.'' It
provides the first comprehensive analysis of ten techniques
widely reported to have been authorized for use in the CIA's
secret interrogation program, including sleep depravation,
simulated drowning, stress positions, beating and induced
hypothermia. We are delighted you could join us and we welcome
you at this time.
TESTIMONY OF ELISA MASSIMINO, WASHINGTON DIRECTOR, HUMAN RIGHTS
FIRST
Ms. Massimino. Thank you, Mr. Chairman. And I have a longer
statement as well prepared for the record, which I will try to
summarize as quickly as I can. I want to thank you for your
leadership and for the work of the Committee and its excellent
staff in persistently staying on top of these important issues.
As a human rights advocate based in the United States, it is
very important for my own ability to do my work in pressing
other governments to respect human rights, that my government
do its best to play a leadership role in promoting those
standards. We have heard a lot this week from Attorney General
Mukasey and others about the need to modernize outdated
surveillance laws to reflect 21st century technologies. But
there is one area of our counterterrorism policy that is quite
literally stuck in the dark ages, and that is our interrogation
policy.
When I left private practice to help open the Washington
office of Human Rights First more than 16 years ago, I never
imagined that in 2007, I would find myself in the middle of a
debate with my own government about whether waterboarding, the
21st Century euphemism for a form of torture that dates back to
the time of witch-hunts and the Inquisition is illegal. But
that is where we are today.
On December 6 the CIA director, General Michael Hayden,
acknowledged that the Agency destroyed videotapes of two senior
al-Qaeda members being subjected to interrogation techniques
that reportedly included waterboarding, stress positions,
exposure to extreme cold and other interrogation methods that
leave no marks. The tapes were destroyed in November 2005, 3
years after the interrogations took place. At around that same
time, Congress was scrutinizing the secret CIA detention
program and Vice President Cheney was engaged in an aggressive
lobbying campaign to carve out an exception for the CIA from
the McCain amendment's prohibition on cruel, inhuman and
degrading treatment.
The New York Times reported yesterday that high level White
House and CIA lawyers were involved in the discussion that led
to the tapes' destruction. The CIA's decision to destroy the
interrogation tapes indicates that at least some in the
Administration understood what we know: that the acts depicted
on those tapes were unlawful and would shock the conscience of
any decent American who saw them.
The Administration now appears willing to acknowledge the
legitimate role of Congress in investigating these matters. And
we welcome its decision late yesterday to permit CIA Acting
General Counsel John Rizzo to testify about the decision to
destroy the tapes. He and others have much to answer for, not
only with respect to the destruction of the tapes, but also
about who authorized the acts depicted on those tapes.
Throughout the torture scandal, beginning with the
revelations of abuses at Abu Ghraib, accountability for these
policies has come only at the lowest level. I hope as Congress
begins this investigation, it will break the pattern that it
has held so far; punish the monkey and let the organ grinder
go. I hope my testimony today, which derives heavily from the
report that you mentioned, Mr. Chairman, will help shed some
light on the legal standards governing interrogation which the
Administration has sought for so long to distort, obscure and
evade.
You have asked me to address the applicability of Federal
criminal law to the interrogation of detainees. I start from
the premise that intelligence gathering is a necessary and
perhaps the most important tool in disrupting terrorist
networks. Effective interrogations designed to produce
actionable intelligence are a legitimate part of that effort.
Such interrogations can and must be conducted consistent with
the laws and values of the United States. But that has not been
the case. The Administration's approach to interrogations after
9/11 was to assert broad executive power and seek to redefine
the rules governing treatment of prisons.
During his confirmation hearing, Attorney General Mukasey
was asked whether he felt waterboarding, which creates in its
victims the terrifying fear of imminent death by drowning, is
illegal. He equivocated claiming that the answer would depend
on a complex statutory analysis that he could not undertake
without access to classified information. But a group of
retired generals and admirals who served as the top uniformed
lawyers in the Army, Navy and Marine Corps had a more
straightforward answer to that question.
As they said in a letter to the Senate Judiciary Committee,
``The law has long been clear: waterboarding detainees amounts
to illegal torture in all circumstances. To suggest otherwise
or even to give credence to such a suggestion represents both
an affront to the law and to the core values of our Nation.''
Judge Mukasey seems have to missed the most fundamental
point about U.S. interrogation policy after the Hamdan
decision, a point that he should bear foremost in mind during
his deliberations about the legality of waterboarding and other
enhanced techniques that he is reportedly undertaking now. If
the U.S. Government does not want American citizens or soldiers
to be subjected to these techniques then it may not employ them
itself. The Supreme Court ruled that Common Article 3 of the
Geneva Convention governs U.S. treatment of al-Qaeda detainees,
including all interrogations conducted anywhere by any U.S.
agency.
If the CIA is authorized to use a particular interrogation
method under the executive order that the President issued in
July, it means the United States Government considers that
method to be compliant with Common Article 3. And if it is
compliant with Common Article 3, then U.S. enemies can use it
against captured Americans in any situation governed by Common
Article 3. Some, including Admiral McConnell, Director of
National Intelligence, have implied that the United States
wants detainees to believe that they will be tortured by
American captors. Yet it wants the rest of the world to believe
just the opposite. We cannot have it both ways.
Our biggest problem now is not that the enemy knows what to
expect from us. It is that the rest of the world does not.
Ambiguity about U.S. interrogation practices has not benefited
U.S. security. Quite the opposite. This ambiguity combined with
the Abu Ghraib scandal and the deaths of prisoners in U.S.
custody has severely damaged U.S. efforts to defeat al-Qaeda.
And for what? In the case of Abu Zubaida, tapes of whose
interrogation were among those destroyed by the CIA, the FBI
claims that the use of enhanced techniques rather than
producing reliable intelligence, interrupted and corrupted the
flow of intelligence they were getting from Zubaida. That
assertion comports with mainstream military opinion.
For example, in releasing the new U.S. Army Field Manual on
interrogations last year, Lieutenant General John F. Kimmons,
deputy chief of staff for Army Intelligence said that, ``No
good intelligence is going to come from abusive practices. I
think history tells us that. I think the empirical evidence of
the last 5 years, hard years, tells us that.'' Likewise,
General David Petraeus, commander of U.S. forces in Iraq, wrote
earlier this year in an open letter to U.S. troops serving
there, ``Some may argue that we would be more effective if we
sanctioned torture or other expedient methods to obtain
information from the enemy they would be wrong. Beyond the
basic fact that such actions are illegal, history shows that
they are also frequently neither useful nor necessary.''
Moreover, military officers have said that any suggestion
by the White House that such techniques can be used by the CIA
will undermine the authority of military commanders in the
field where troops face ticking time bombs every day in the
form of improvised explosive devices, but are told by their
commanding officers that such techniques are never acceptable.
Mr. Conyers. Thank you.
[The prepared statement of Ms. Massimino follows:]
Prepared Statement of Elisa Massimino
Mr. Conyers. We are indebted to all of you for your
excellent evaluations and analysis. I am struck, Attorney
Rivkin, by the fact that you refer to this good cop, bad cop
thing, which seems to be common practice. The Chairman of the
Crime Committee, Bobby Scott, has listened to police violence
and brutality down through the years, long before he became
Chairman of this part of Judiciary Committee. And I was
thinking, you suggested that maybe some of these restrictions
on people held at Abu Ghraib and other places may be under more
coercion or may have more rights or less harshly treated than
what happens in police stations in the common course around
here. And that is very interesting to me because we have been
working on that in a number of ways, prosecutorial abuse and
police violence, which, by the way, is up as I recall.
And so I hope we get a chance to go into that some more.
Now, we have the question of whether a special prosecutor makes
a good next step or whether we should create a FISA like court
or whether we should try to engage in effective oversight. And
Professor Saltzburg, do you have a feeling about what direction
we might want to consider moving in when we come back for the
last half of the 110th Congress.
Mr. Saltzburg. I do. Maybe I ought to address that in just
three specifics. I think Professor Radsan's suggestion, and he
does deserve credit for talking early on about the idea of a
new court, which basically might be an expansion of a FISA kind
of court, I think it is certainly worth serious consideration.
But it is a longer-term solution, I believe. Right now, we have
facing you the question of what are we going to do about these
tapes that were destroyed and what kind of an inquiry should
take place. Ordinarily, I think the lessons of special
prosecutors are not happy ones. And ordinarily I would say I
have a strong presumption to let the Department of Justice
investigate.
The problem here, however, is that the Department itself
has refused to answer questions about whether it was asked
about destruction or whether it advised on destruction. And if,
in fact, there is a possibility that it was asked and it did
advise, and if it in fact authorized in any way the destruction
of the tapes, it seems inappropriate to have it investigate
itself. And I think this is a big issue. Now, The Washington
Post yesterday, 2 days ago actually, had a story which
indicated that--and Congressman Scott was talking about this, I
have the article right here--that indicated when Judge Mukasey
was the judge in the Padilla case, or Padilla, he has now said
it both ways, he approved a material witness warrant, and some
of the information that was obtained and used in the warrant
was obtained in the interrogation of Abu Zubaida.
Now, that means that Judge Mukasey himself has had a case
which may, in fact, have been tainted in a way by that
interrogation, or at least affected. ``Tainted'' may be the
wrong word. That raises a question about whether he is the
right person right now to be leading this investigation. One
thing that the Committee is surely going to be aware of is that
there is a movement in this country in major police
departments, the District of Columbia being one, and the
American Bar Association supports this, to require the
videotaping of all interrogations. And the reason is so that we
know exactly what happened. And if there is a challenge to the
lawfulness of what happened we have incontrovertible evidence.
If a police department destroyed a videotape of an
interrogation in the District of Columbia, you can bet a judge
would be saying why, I want to know why, and I am not sure I am
going let a confession in where there is now only testimony and
no tape.
This Committee, I think, needs to exercise its oversight
function to answer the questions that you raise, Mr. Chairman,
and some of us have suggested, into why it was that those tapes
actually were destroyed. Now, Professor Radsan may be right,
there may be a whole lot of things that were going on. But most
of those things end up being things which the CIA seems to have
feared that if tapes ever saw the light of day that people
would see things that they might find profoundly disturbing.
As I said earlier, I don't know exactly what the CIA is
doing in the secret interrogation facilities. I don't know
whether there is one form of waterboarding only or whether or
not the CIA has perfected it and advanced it. I suspect that
videotapes would have told us a lot. I just can't resist the
one comment about what goes on in police stations and what goes
on in secret interrogation facilities. Since 1966, when
somebody is interrogated in custody, he or she is given the
Miranda warnings. They are told they have a right to remain
silent, they are told they have a right to a lawyer. There is
no good cop, bad cop until those people decide they don't want
a lawyer and they are willing to talk, and then we have certain
rules on top of it. We don't give Miranda warnings, and I don't
think we should, to people who are detained for intelligence
interrogations. But to compare the two and say we are tougher
on people who are arrested and charged with crime in the United
States than we are on terrorists is ridiculous. It ignores what
goes on daily in every police station in the United States
where police officers conform to the law.
So basically, I think you make a good case given the
peculiar circumstances that we face now that there should be a
special prosecutor. I think that some consideration given to a
court that has expertise in intelligence matters that would
canvas more than just interrogation, including surveillance and
the like, can make a lot of sense, but that this Committee and
this Congress has an obligation to proceed to investigate and
not wait for a new court.
Mr. Conyers. Thank you. Professor Radsan.
Mr. Radsan. Mr. Chairman, when I was a student, I didn't
like when professors answered my questions with a double
negative, but I am going to do that here. I am not opposed to a
special prosecutor for the reasons that you have highlighted.
The Justice Department was actively involved in giving guidance
on the detention and interrogation program. We are going to
find out whether the Justice Department was involved in any way
in advising about the destruction of the tapes. We know that
there is at least one case, the Padilla case, that may have bee
influenced by something that went on in one of those
interrogations. It is going to cloud some of the existing
criminal cases that the Department of Justice has.
I know that people were concerned about the attorney
general's reticence about waterboarding. If I were in the
Department and you asked me, I think it is a cleaner way to get
to the bottom of what happened with the tapes. To alarm the
Committee a bit more, it is only a few weeks ago that The New
York Times reported that Director of the CIA, Michael Hayden,
had set up an internal unit to inspect the Inspector General.
That we didn't trust our internal affairs, we had another
internal affairs.
The reporting has been that this is a joint investigation
into the tapes between the Justice Department and the inspector
general. That complication, the complication between the
inspector general, the general counsel, the inspector general
and the director may be another reason suggesting that we
should have a special prosecutor on the tapes.
Mr. Conyers. Thank you very much. Attorney Rivkin.
Mr. Rivkin. Thank you, Mr. Chairman. On the question of
special counsel, these are in many respects the kind of
institutional issues that I don't think that the two branches
would ever see eye to eye across the board. But let me just
point out a couple of things. And let me quote The Washington
Post editorial from a couple of days ago. We do have a new
attorney general, a man of exceptional property, I have not
heard anybody challenge that, who has said very clearly that we
have normal investigatory procedures by the career people in
the Department involving career attorneys from both our
national security division and public integrity section.
In some sense, when somebody says that per se this is
inadequate, we are impugning the integrity of people who spend
their lives in the government who are not partisan who are
looking presumably at the facts as they are. If at some point
in time information comes to light that suggests there is real
conflict here, I have no doubt that the attorney general would
reach a decision to appoint a special counsel. Not an
independent counsel. There are no more independent counsels.
But a special counsel in accordance with the Department of
Justice regulations. But the notion that it should just be done
at the outset without going through a normal process, it seems
to me somewhat unfair.
Mr. Conyers. You don't see any existing conflict?
Mr. Rivkin. Not on the facts--let us assume for example,
and I hate to speculate, but these are speculations in the
media--let us assume that, I know it is not an assumption that
everybody in this room would share, that while the destruction
of the tapes may have been foolhardy or their creation may not
have been wise, because with all due respect to my colleague,
the normal procedure in the FBI and the police department right
now is not, repeat, not, to create videotapes.
I think the decision to destroy them would have been
foolhardy. Whatever it is worth, if it was up to me, I wouldn't
have done it. But let us assume it is a policy question. You
have a whole bunch of lawyers, including the White House
counsel's office and the Justice Department who said our advice
to you is not to do it. But because we are modest lawyers, we
are not trying to play a policymaking role here because there
is no legal bar, our advice as a prudential matter, don't do
it, but always it is up to you.
If it is that kind of situation, I don't see any conflict
here. And I think nobody has suggested in any of the stories in
the media so far that the attorney urged or encouraged them to
destroy it. I mean, every single person, including some
individuals who I am sure you would have policy difficulties,
including David Addington and Harriet Miers have urged them
reportedly not to destroy them.
So where is the conflict for the lawyers involved. If it
appears to be a problem I am sure that the attorney general
would do that. But let me take 30 seconds and make the point,
which I think, frankly, is far more important on how this
investigation will proceed. I am not advocating rough
techniques in police stations. All I am saying to you is this.
That the particular parameters for the good cop, bad cop
routine outlined in the Army Field Manual with all due respect
are far more restrained than nonabusive lawful interrogation
techniques. For example, you are not supposed to threaten
somebody.
Let us think about what it means. Then the police
interrogators or investigators are going to interrogate a
fellow by the name of Fastow, who was one of the key players in
Enron, and tell him if he doesn't cooperate they are going to
nail his wife and put her in prison. If it not a threat, if it
is not a coercion, I don't know what coercion is. And that
technique is available to you in the context of a normal
criminal investigation. And yet, under the plain language of a
manual, it doesn't appear to be available to an interrogator
because you cannot use intimidation of any kind. We should hear
at least an honest mature discussion why we cannot have a
baseline across the board in public sphere as to what level of
coercion is appropriate instead of only talking about it in
this context. Because I cannot imagine why we should be
treating Andy Fastow, who I am not holding any candle for, who
undoubtedly is a bad guy and a criminal, why should we be
treating him better than Abu Zubaida. That makes no sense to
me.
Mr. Conyers. We should also notify the producers of
television cop shows that they ought to use a little bit more
legal restraint in the course of their activities, because
people get the idea that it is okay because you see it every
night. Ms. Massimino, help us out here.
Ms. Massimino. I have a couple of points I would like to
make on this. One is Mr. Rivkin referred early on to the
importance of the question of the legality of the underlying
conduct even being more important than the tapes. And I think
that is where the conflict arises, which leads to a requirement
of having a special counsel here. Because we are talking about
questions about whether or not techniques that are depicted on
those videotapes are unlawful. That relates to the question of
whether or not the destruction of the tapes would be the
obstruction of investigation into criminal activity.
So I think that is really for me the strongest argument for
a special counsel. I do need to take issue with one thing that
my friend to my right said. And that is that I wouldn't want
this Committee to get the impression that what we are talking
about here when we are discussing interrogation techniques is
whether or not interrogators can yell at a prisoner or be mean.
The enhanced techniques that we are talking about and that
we outline in our report ``Leave No Marks,'' are serious forms
of torture and cruel inhuman and degrading treatment. Long-time
standing, another euphemism for stress positions that the
United States has prosecuted as a war crime, waterboarding,
forced hypothermia, forced nakedness, the use of dogs, these
are techniques that have been reported to have been used under
this enhanced interrogation program.
We are not talking here about whether or not you can yell
at a prisoner or make them uncomfortable.
Mr. Conyers. Thank you so much. If you want to put your
document into the record we will accept it at this point.
Ms. Massimino. Thank you, sir, very much. I would like to
do that.
Mr. Conyers. I would like to now turn to the Chairman of
the Constitution Subcommittee, Jerry Nadler.
Mr. Nadler. Thank you Mr. Chairman. Let me start with
Professor--well, either Professor Saltzburg or Professor
Radsan. There is--we are talking about the destruction of tapes
that the CIA has admitted being destroyed about the
interrogation of two alleged terrorists, Abu Zubaida and I
forget the name of the second fellow. But there is also
evidence that other tapes were destroyed. A number of the
interrogation tapes of Padilla, Jose Padilla, were released to
his attorneys early this year, but the tapes of a crucial
interrogation had, as one government lawyer explained,
mysteriously disappeared, unquote.
It disappeared even though the Federal judge presiding over
Padilla's criminal case which was initiated by the Federal
Government to avoid Supreme Court review of his prolonged
military confinement, even though the judge in that case had
ordered the government to preserve all interrogation tapes and
tapes of more than a dozen other interrogations were never
turned over, do you believe that the destruction of these tapes
is part of a larger phenomena, not phenomena, of a larger
situation in which the government is destroying evidence.
Mr. Saltzburg. I don't want to believe that.
Mr. Nadler. But does the evidence indicate that?
Mr. Saltzburg. Every time--what we know about the CIA's
destruction is that it was willful, that it was carefully
thought out, that it was done after seeking some advice at
least. We don't know all the advice, that is one of the
questions. The Padilla tape is, in some ways, more disturbing,
equally disturbing I guess, because we have a criminal
prosecution where the government has the highest obligation to
preserve evidence and a missing tape is a big deal.
And the interrogation presumably took place during a time
when Padilla was deemed to be a terrorist suspect. That is why
he was originally detained. There appears to be some effort to
prevent judges, and perhaps Congress, from actually seeing what
goes on in some of these interrogations. That is the disturbing
thing. You asked whether it is a pattern. I think that is one
of the things that this Congress needs to look at. I don't
think you know or have any idea how many interrogation tapes
actually exist.
There are rumors in the intelligence community, there are
rumors that there are videotapes of interrogations conducted by
foreign officials on detainees who were transferred to them by
Americans who were present during the interrogations but
weren't the interrogators. Now, if those tapes exist I would
think that this Congress would want to have a look at them and
want to be sure that they were not destroyed. But we don't know
about what tapes exist, and then we don't know that they have
been destroyed until there has been a disclosure after the
fact, which is what happened both in the CIA situation and in
the Padilla situation. It is surely disturbing.
Mr. Nadler. Let me ask you a follow-up question, if I may.
Your testimony suggests that there are other tapes that may
exist that may indicate all kinds of perhaps misconduct,
perhaps not misconduct in interrogation situations. Congress
certainly has a right to see them. Now, if we were to subpoena,
issue a subpoena for all interrogation tapes, would there be
any legal, I am sure the Administration would find some excuse,
but would there be any legitimate legal reason for the
Administration to say no we refuse to supply them?
Mr. Saltzburg. Let me answer that question in two parts.
First of all, I have absolutely no doubt if you issued a
subpoena it would not be obeyed. And the reason it would not be
obeyed is there would be a claim of national security
privilege. Second, is that claim valid against the United
States Congress. The answer is no. If it were, then any claim
of national security would prevent this Congress from ever
seeing anything the government didn't want to produce.
Mr. Nadler. So a claim of national security privilege is
never valid against a subpoena from Congress?
Mr. Saltzburg. The problem is enforcing it.
Mr. Nadler. As a matter of law, you would say because
Congress has--our rights under the national security law is
never valid.
Mr. Saltzburg. I believe this is one of those issues on
which people who believe in absolute executive power will tell
you the executive has the right to make the final decision on
national security. Those of us who believe that no branch is
absolute, believe that checks and balances require that, in
some fashion now, the executive is responsible to Congress and
that, for example, the Intelligence Committee ought to be able
to review tapes, again in a very secure manner, I am not
suggesting that the subpoena ought to mean that Congress gets
to see it and disclose it, but certainly Congress, in order to
exercise its oversight role, is entitled to be exposed to some
of the most important secrets we have. Otherwise you couldn't
legislate, and actually you couldn't fund the things the
executive wants to do.
Mr. Nadler. We are certainly finding that to be the case
with some of our other things like FISA. Professor Radsan, will
you comment on the same questions?
Mr. Radsan. The second question first. I agree with
Professor Saltzburg. It would be a very interesting
constitutional law question. I agree that the executive would
not easily comply with the subpoena. If you went to the courts,
I don't think the courts would take it. They would avoid the
issue through the political question doctrine. They would leave
it to the two branches to sort out. That is a prediction about
constitutional law. You can ask the constitutional law
professors to speculate. This would be a great hypothetical for
next year's examination. On your first question about the
tapes----
Mr. Nadler. In that case, our only recourse would be the
power of the purse, the CIA gets no money unless they give us
the tapes? Would that be what we should do?
Mr. Radsan. The branches have other ways to put pressure on
each other. And if you go down that road, it will be a very
interesting interaction between the two political branches. If
there is a pattern of destroying tapes as you suggest, and I
have no reason to believe that there is, the pattern may even
be broader than we are talking about. It is not--if your theory
is true it is not just the CIA for this reason. I don't know
that the Padilla tapes were necessarily CIA tapes. They may
have been Department of Defense tapes, Justice Department
tapes. If there was a pattern, if your facts are right, then it
would be a pattern that links up something that went on in that
case and a known destruction in a CIA case. We do have another
set of tapes though, tapes that were referred to in the filing
that the Justice Department made in the Moussaoui case, and
those tapes seem to be different from any other tapes.
And as far as we know from the public record, those tapes
have been intained. I have read that filing. My conclusion, and
I am not confirming anything from the classified record, my
conclusion by that affidavit is those tapes were tapes that
were made by a foreign liaison service during those
interrogations that the Justice Department was aware of. But
you could ask for those tapes. The Intelligence Committee could
ask for those tapes. We could confirm that those tapes still
exist. That is what the reporting has been.
Mr. Nadler. Thank you, Professor. Mr. Rivkin.
Mr. Rivkin. Thank you, Congressman Nadler, let me just say
a couple of things. It is hard to predict how the court would
work here. But the broader the more open-ended your request is
the more difficult, I think, for you to vindicate this, you are
right. The more targeted, the more circumscribed the request
is, the more limited to the Intelligence Committee, the greater
is the chance that it will be both complied with in my opinion.
I would be vindicated if you were prosecuted here. On the
underlying issue, let me give you a slightly different
perspective, and again as a lawyer, I do not like the
destruction of any documents that exist, and if I were asked
about it without the benefit of hindsight even I would have
said no destroyed. But in some respects, these problems reflect
the difficulty we have in applying the full blown criminal
justice oversight paradigm that has developed, been honed in in
decades of remarkable peace and prosperity to very difficult
circumstances. Because to embellish the point made by Professor
Radsan, do you not think, Congressman, that the vivid power of
visual images is such if you think about all the damage done by
Abu Ghraib tapes, and I am not saying that they didn't reveal
bad conduct, is it not possible for the honorable men and women
in the Intelligence Committee to wonder?
Mr. Nadler. Excuse me, we are not talking about Congress
reviewing this, not necessarily the public.
Mr. Rivkin. No, no, I am not talking about that. But they
would have been leaked.
Mr. Nadler. Maybe they would and maybe they wouldn't have.
I have limited time. I want to get in another question. Again
to Professor Saltzburg, we have been asked in this entire
question of the destroyed tapes, we have been asked by the
Justice Department to delay our investigation lest it interfere
with the Justice Department investigation or with the CIA
investigation. Do you think it makes any sense at all for us to
do that, especially in light of the question that perhaps we
can't trust anybody. Certainly we can't trust the Justice
Department. We had to call for a special prosecutor. But should
this Committee, should Congress delay investigations waiting
for the Justice Department?
And if the answer is no, what is the justification or is
there any justification in law for the Justice Department to
simply refuse to supply the documents to Congress on the
grounds that they are investigating it and supplying us with
documents that might inhibit, in some way, their investigation.
Mr. Saltzburg. My answer is no, that you shouldn't wait.
One of the reasons is time is flying. You got more than 2 years
that has already gone by. Memories will fade. People may die
while you wait. Now, what is the justification. I don't think
you should ask the Justice Department to produce its
investigative file, what it is investigating. I think you ought
to ask the Justice Department to produce any advice, copies of
any documents it created with respect to the destruction in
2005. And I think you ought to deal directly with the CIA.
Every case is a little bit different in terms of whether
you can interfere in some way with an investigation. I just
don't see that here. Much of what happened is known. We already
know the tapes were destroyed. That is not going to be new. We
have some of the names of people who were consulted. What you
don't know is exactly what they said. You don't know exactly
what the rationale was. What we know is there is a lot of
lawyering that was going on here. What the advice was we are
not sure about. But I think you have got to get to the bottom
of what happened.
By the way, there are two things here. There is the
criminal investigation whether people get prosecuted. I think
unless you immunize witnesses and put them out for public
testimony, the chances you will disrupt a legitimate
investigation and ability to prosecute are very small. But
there is the other part of this, of finding out what happened,
even if it is just bad policy and not criminal, and figuring
out what you are going to do about that. That is part of the
oversight function. God forbid that this Congress will limit
itself to deciding the only oversight is to look into criminal
activity.
Mr. Nadler. Thank you. One more question for Ms. Massimino,
and this is slightly different. Starting in 2003, the
Administration argued that the Geneva Convention did not apply
to members of al-Qaeda. The Supreme Court decided to review a
case which became known as Hamdan versus Rumsfeld. On November
7, 2005, I think it granted cert. The tapes were destroyed that
same month. What were the potential implications with respect
to the tapes of the Supreme Court rejecting the
Administration's position that the Geneva Convention did not
apply, as indeed the Court ultimately did when it issued its
ruling in Hamdan in June of 2006. In other words, could the
destruction of the tapes be connected with the decision by the
Supreme Court to accept that case?
Ms. Massimino. Yes, I think so. I don't think we have to
speculate too much about that because we know that when the
case was decided it sent shock waves through the CIA and the
enhanced interrogation program was put on hold immediately.
There was already some pullback from it after the passage of
the McCain amendment. But then in July of last year when the
case came down, the reports are that that was a shocking
development for the CIA.
And they started to understand finally that not only was
Congress withdrawing its political support for a program like
this, but that the Administration was wrong in its argument
that the Geneva Conventions did not apply. Remember, early on
in the deliberations inside the White House about whether or
not the Geneva Conventions applied, a key consideration leading
to the conclusion that the Geneva Conventions did not apply was
the fear that, well, if they did, we might find ourselves
subjected to prosecution for war crimes.
Mr. Nadler. Thank you, Professor Radsan. That will be it.
Mr. Conyers. Thank you so much. The gentleman from
Virginia, Bobby Scott.
Mr. Scott. Thank you, Mr. Chairman. I have a series of
questions. Let me just begin with whether or not torture is
illegal? Is there any question that torturing people is
illegal, Professor Radsan?
Mr. Radsan. Torture is clearly illegal.
Mr. Scott. Now, where in the criminal law can we find the
prohibition against torture?
Mr. Radsan. You will find it in other statutes. But we did
not feel it necessary when we incorporated the convention
against torture to pass a torture statute within the United
States. A torture statute applies to anything outside of the
United States. But any conduct that would be torture would be
unconstitutional, would be illegal, I don't think there is any
doubt about that. The doubt is on how we define these studies.
Mr. Scott. Now, is the definition of torture so subjective
that people can't understand what it is?
Mr. Radsan. With respect, I think there are some clear
examples of things that are not torture; providing National
Geographic magazines. There are clear examples of things that
are torture; electroshock, cutting off limbs.
Mr. Scott. Do other countries have problems with the
definition?
Mr. Radsan. I think in the various courts they are going to
have difficulties on what the line is, even if we all agree
that waterboarding is torture.
Mr. Scott. Does anybody outside of this Administration
anywhere in the world think that waterboarding is not torture?
Mr. Radsan. I take your point, and I am not aware of anyone
that defends waterboarding outside of the United States.
Mr. Scott. Outside of this Administration, because other
Administrations have specifically found waterboarding to be
torture.
Mr. Radsan. And I am not here speaking for the Department
or the Agency. I think it is fairly clear waterboarding is
something prohibited by statutes.
Mr. Scott. According to public reports, the Department of
Defense and the CIA have referred 20 cases to the Department of
Justice, including two deaths. There has only been one
indictment. So if the--let me go to another point. If the tapes
clearly depict torture, let us kind of think of who could be
guilty of a criminal offense. Those who are actually doing the
torture, any question that they would have liability under the
criminal statutes?
Mr. Radsan. If we agree that the conduct on those tapes
crossed any line that person that did the conduct is guilty and
anyone that aided and abetted, anyone that ordered would be
drawn into that criminal conduct, that is for sure.
Mr. Scott. What about others who watched while others did
it?
Mr. Radsan. Watching while others did it, that is
difficult. But I think you would make an argument that it is
aiding and abetting, or you would make an argument that it is
part of a conspiracy to commit that criminal conduct.
Mr. Scott. What about those who authorized it?
Mr. Radsan. The same analysis. We would have to pursue the
facts. But if this was part of a pattern and it had the intent
to do something that was illegal and was known to be illegal,
that is a problem, clearly.
Mr. Rivkin. May I make a point, Congressman? It seems, with
all due respect, to be somewhat anomalous to simultaneously
scurry the Department of Justice for providing allegedly legal
opinions that defined these types of techniques is not torture,
and then simultaneously say that individuals are not lawyers
who followed that advice. And let us assume that they stayed
within the parameters of permissible procedures not due to any
criminal conduct. You are certainly entitled to rely on the, in
good faith on the advice proffered by the appropriate lawyers.
Mr. Scott. Let us assume that we have concluded that the
technique involved is clearly torture, can the Department of
Justice by memo immunize everyone doing it?
Mr. Rivkin. That is a difficult question, but your
hypothetical in a way contains the answer. If we determine. Who
are we? It is the province of, in the first instance of
executive, in the second instance of Judiciary, to pronounce
what the law is. If duly constituted officers of the United
States concluded that given conduct construing a given statute
does not amount to violation of a statute that would go to
great length to immunize individuals who rely on that conduct,
which is why I personally don't think we have any evidence that
it was an obstruction of justice.
Mr. Scott. There are a lot of people who think the memo is
absurd on its face to suggest that waterboarding is not torture
and the Department of Justice can't immunize people from doing
what everybody in the world knew was torture. Ms. Massimino.
Ms. Massimino. I think that it is not correct to suggest
that there was no fear of prosecution. There clearly was. That
is why the memo was sought in the first place. And section 2340
of 18 U.S. Code, which is the Federal anti-torture statute, was
never thought to be vague or unclear until there was a desire
to get around it. And a memo was drafted that construed it in
such a way that drained those powerful words of all of their
meaning.
Mr. Saltzburg. Congressman, if I could add a point.
Congress has sort of made this a bigger problem than it
otherwise might have been in the Military Commissions Act when
it put in that provision which essentially said that if you are
charged with torture between 9/11 and 2005 when the Detainee
Treatment Act was passed, you have the right to rely on advice
of counsel as a defense. And I think that was clearly intended
to say that people could be prosecuted, but then they can wave
around that memo and say I relied on it. It doesn't mean they
shouldn't be prosecuted. It just means that Congress has
expanded their possibility of arguing advice of counsel as a
defense.
Mr. Scott. Well, let us talk about the independent counsel.
If the Department of Justice, CIA and White House, if they
define torture in such a way that people could I guess
retroactively rely on it when the memo legally misstated the
law, would that be a reason to have an independent counsel
rather than having the Department of Justice try to defend the
memo subsequently determined to be legally incorrect?
Mr. Saltzburg. I don't believe, my own opinion, standing
alone, that that would be enough with a new attorney general
who was not responsible for the memo. Let us be clear, that
2002 torture memo was probably one of the most embarrassing
poorly written poorly reasoned documents I have ever seen. And
I believe you are right, Congressman, no one with a straight
face could defend that document as stating accurately the law.
And I think that any attorney general who was independent would
repudiate that document. I think this attorney general would
repudiate that document today. But the other circumstances
added to it, I think, do make a case for a special prosecutor.
Mr. Rivkin. As I understand, with all due respect, the
facts are as follows, that opinion was withdrawn long before
this attorney general came in. But if you look carefully at how
it was withdrawn, the language, my reading of it suggests that
the breadth for it, and the reason we are repudiated, not the
bottom line, and again, the speculation in the media is the two
subsequent more narrow opinions written by the Department of
Justice. The parameters have always permitted, Congressman, the
memo change.
If I may just say one thing. The thing I am troubled a bit
is this notion that you can have the entire executive branch of
United States Government, whose duty is execute the law, parse
the law and conclude that they disagree, with all due respect,
to my good friend, Ms. Massimino, and flesh out a statutory
term in a given way. If that happens I don't know who else is
supposed to come in unless the matter is somehow justiciable in
an Article 3 court which is a different conclusion, I don't see
anything in your powers frankly in Article 1 that gives
Congress the right to interpret the law. It is a problem.
Mr. Scott. Well, in all due respect, there is not a lot of
interpretation that needs to be done. This Administration has
suggested that waterboarding is not torture. They are having
trouble trying to figure out when it is and when it isn't, and
when you have it on tape the tape is destroyed. I don't know
that you can change the law by legal memo. And you have the
Department of Justice--is the Department of Justice involved in
possibly authorizing some of this torture by virtue of their
memos? Did they authorize the destruction of the tapes? Was the
Department of Justice present--the Department of Justice
investigating itself on who authorized it, who failed to
disclose to the 9/11 Commission and to Congress and to the
courts whether the existence of the tapes--well, let me ask
another question. What is the statute of limitations on all of
these crimes?
Mr. Radsan. Congressman, I am not aware. I don't know that
there is a statute. I will be corrected by my colleagues. But
if I could take a minute to clarify my answer to a prior
question. I think I am agreeing with you, but perhaps not in
the way that you would like. We can look at conduct that
occurred on the tape, and we may all look at that and agree
that it crossed the line. That will be reason to be concerned
and continue the investigation. But then there is a second
step, and this is alluded to by Professor Saltzburg. We will
have to figure out why that interrogator did this. And if that
interrogator reasonably relied on advice, and that advice, as
we can tell, would have been issued in a classified channel,
that interrogator more likely than not was not a lawyer. If
that interrogator reasonably relied on advice, even though it
went past the line, whether it is waterboarding or any other
conduct, that prosecution is going to be very difficult. And
that is a situation that many of these officers find themselves
in. I agree with you.
Mr. Scott. And I agree with you. If you have a legal memo
that says what everybody believes is illegal and you can
proclaim it to be legal and someone reasonably believes the
memo, then you have a mens rea problem in a criminal
prosecution. However, if the memo is just clearly ridiculous
you can't just change the law by memo. I yield back.
Mr. Conyers. The Chair is pleased to recognize the
gentlelady from Texas, Sheila Jackson Lee.
Ms. Jackson Lee. Again, let me thank the witnesses for this
instructive testimony. And if I might, let me lay the
groundwork for my line of questioning with a citation from the
article from The New York Times. And I recognize that any
information exposed in public is questioned--is subject to
questioning. But let me lay this groundwork so that I can
pursue a line of questioning.
Mr. Bennett, who is a lawyer for Mr. Rodriguez insisted
that his client had done nothing wrong and suggested that Mr.
Rodriguez had been authorized to order the destruction of the
tapes. He had a green light to destroy them. To me, that is a
billboard of obstruction of justice. There is a reference or a
suggestion that the destruction came about to protect the
identity of the CIA agents. And might I have a PS and say it is
our obligation to protect our operatives who are around the
world.
And let me pointedly say to the CIA, take that duty
extremely seriously and hold them in high esteem for the role
they play in national security. I don't think that we should
argue with that premise. However, another comment in the
article dated the 19th, I believe, indicates until their
destruction, the tapes were stored in a safe in the CIA station
in the country where the interrogation took place. Current and
former officials said, according to one former senior
intelligence official the tapes were never sent back to the CIA
headquarters, which I would imagine might have an underground,
if you will, secure, safe or other chamber, despite what the
official described as a concern by keeping such highly
classified material overseas, lays the groundwork if you will
whether there is sufficient truth to document that, that there
is question as to how much security the CIA was giving to these
tapes as a basis upon which they use to destroy them.
I would like to also take note of the fact that, if I might
also put into the record, the comments of Senator McCain as he
was trying to make the argument on how torture demeans and
debases those of us who represent a certain degree of values.
And so just if I might just quickly indicate his words when he
was asked, where did the brave men I was privileged to serve
with in Vietnam draw the strength to resist to the best of
their ability the cruelties inflicted on them by our enemies?
They drew their strength from our faith in each other, from our
faith in God and from our faith in our country. Our enemies
didn't adhere to the Geneva Convention.
Many of my comrades were subjected to the very cruel and
very inhuman and degrading treatment and a few of them were
unto their death. The enemies we fight today hold such liberal
notions in contempt as they hold in contempt the international
conventions that enshrine them. But we are better than them and
we are stronger in our faith. Another comment indicates that
one might question the kind of testimony one would get from
someone subjected to torture and whether or not that can
actually or that testimony or that, if you will, information
can truly be counted as, if you will, accurate.
So let me, if I can, both professors raise these questions
on this whole issue of the obstruction of justice which pushes
more urgently forward the need for a special prosecutor, slash,
independent counsel terminology interchange even though the
statute has expired in light of where we are today. As has been
in the press and as stated by the testimony today, the CIA
interrogation tapes were destroyed around the same time that
conspicuous congressional oversight scrutiny was increasing.
The photos from Abu Ghraib were uncovered, the DOJ began to
withdraw memos rationalizing exceptions to the Geneva
Convention and the McCain amendment against torture was gaining
momentum. Some of Mr. McCain's comments were in the public
domain.
Does this not raise very serious issues of obstruction of
justice or of violating or undermining congressional
prerogatives and isn't this the best argument for the need for
an immediate appointment of a special prosecutor that is,
indeed, independent from the White House and the DOJ
investigation. And my question goes to the point of the DOJ
asking the House Intelligence Committee and others to delay
their investigation while they are moving forward. I believe
there is such a fracture in the constitutional protection that
it is urgent that we move forward now. Would you two professors
comment on that?
Mr. Saltzburg. One of the anomalies in the law, is at least
as I understand it, is that it is not obstruction of justice in
the criminal sense for the executive to destroy evidence so
that Congress won't see it. It is obstruction of justice to
interfere with a judicial proceeding under the statute and
destroy evidence with that in mind. It would not surprise me
when all is said and done if lawyers advising Mr. Rodriguez
concluded that there was no judicial proceeding in which a
request was pending for this particular evidence, and
therefore, they could destroy the tapes without being guilty.
He could order them destroyed or approve them destroyed without
committing obstruction of justice. The executive, unfortunately
I think, feels that it is quite free to deny Congress evidence
when Congress requests it.
And even to destroy evidence that Congress might want to
see. And basically, in the noncriminal sense, it is a classic
obstruction of justice. It is obstruction of oversight. It is
infringing upon the legitimate oversight function of Congress.
But there is very little that Congress has done about that in
the past. And that is one of the issues, I think, Congress
probably needs to address.
Ms. Jackson Lee. Can I just pursue that with you. Do we not
have a basic legitimacy in pursuing that because of the
independent branches of government. Are you suggesting we write
law, are you suggesting that we take advantage of our oversight
responsibility? What is the tool that you are suggesting we
use?
Mr. Saltzburg. I think that--all I suggested earlier was
something that needs careful examination and more careful than
I could do in the limited time we had available. And that is
whether Congress should, in fact, legislate to require certain
records to be preserved and maintained--for its inspection over
time.
Ms. Jackson Lee. Professor Radsan.
Mr. Radsan. Ms. Jackson, we thank you very much. I agree
with you that these facts, as they have unfolded, are very
disturbing. I did cases for 6 years. I am going to speak about
how I did cases. But I think many prosecutors pursue it in the
same way, is they are going to gather the facts. They are not
going to try to pigeonhole it necessarily into a particular
statute. There are difficulties in the various obstruction of
justice statutes with those elements.
But if there has been wrongdoing intent, then there are
statutes in the Federal Code that can cover the wrongdoing. One
friend of all Federal prosecutors is 18 U.S.C. 1001, the false
statute that makes it a crime to make a false statement or a
material omission to Congress, to the Judiciary or, and the
case law will bear this out, even intrabranch. So that if there
were false statements made related to these tapes by Mr.
Rodriguez to a lawyer, Mr. Rodriguez to a supervisor, then the
joint investigation or any special investigation should and
will pursue that. And the false statement statute is available.
It is a very broad statute that Federal prosecutors have.
Ms. Jackson Lee. Do you have any--do you care to comment on
the fact that we should be denied our rights to investigate
simply because the Department of Justice is proceeding as well.
Mr. Radsan. It is a difficult issue. But I agree that we
need vigorous oversight. Where I think Professor Saltzburg and
I agreed, and maybe this was whispering, is that it becomes
especially difficult if and when anybody of congress is issuing
immunity. I haven't heard anything. No one has mentioned that
today. We learned that from Iran contra, the complications,
even with very scrupulous prosecutors when you have immunized
testimony. That is the concern that the Department has. But we
are not at that stage yet, so I don't see any reason for
Congress to delay its inquiry. I think we need vigorous
oversight. And I agree that these ideas that you should delay,
as far as I understand, I don't have all their reasoning, that
they seem to be weak to me.
Ms. Jackson Lee. I am sorry, were you--I saw somebody----
Mr. Rivkin. If I may briefly shed a different light on
this. If a delay is finite in time and if you are sure that
given the commencement of internal investigations, all the
documents are being kept, and also very importantly,
individuals involved are not communicating with each other
because that would be viewed as obstruction, I see absolutely
no good reason not to give the Justice Department a certain
amount of time to get to the bottom of it. Because let me just
suggest this: Quite aside from the immunity issue, if you were
to invite to testify one of the people involved and he came, he
or she came and prepared for testimony, and other individuals
involved in this same matter or had an opportunity to listen to
what his or her story is, any prosecutor will tell you that it
is a horrible thing. What you do is you slowly build the case,
you go to the junior people, then you go up the food chain.
Ms. Jackson Lee. Mr. Rivkin, I have a short period of time
and I have another question here, and I appreciate it. I think
your premise is based upon Congress having confidence in the
present Department of Justice and others, and certainly we
don't malign all, but we have had difficulties in documents
being preserved in the past.
Let me just quickly raise this question, and I would like
Ms. Massimino and the others to answer it. I have Mr. Rivkin as
pointedly, but I will get to him last. Based upon--Mr. Rivkin,
you testified that evidence exists, that coercive and severe
interrogation techniques can work. But I ask you, are potential
results, as I mentioned in my comments, a legal justification
with potential or merely ex post facto rationalization and an
excuse for violating Federal laws international conventions and
American values. And moreover, if these severe and coercive
techniques do indeed yield an otherwise unattainable
information regarding imminent threats, then why was Congress
not briefed? Why were these tapes destroyed and why are our
efforts being hampered in the ongoing investigations that we
have?
So I guess, in essence, the question is why would the Bush
administration have something to hide if these techniques work
and are lawful and they can show that they prove results and
there is a basis of constitutionality and complies with the
national conventions. It seems that there is a fracture in the
utilization of these techniques because now we have to
investigate why we were never told about the destruction of
tapes. Why don't I start with you, Ms. Massimino.
Ms. Massimino. Thank you.
Well, this Committee, actually, I think, as recently as
last week, held an excellent hearing on the question of the
efficacy of the use of torture and other cruel, inhumane and
degrading treatment, which I think was quite enlightening for
many people.
There is, as I mentioned in my own testimony, but there is
also a growing body of expertise that calls into serious
question claims that these kinds of enhanced techniques produce
actionable intelligence.
That is not the same thing as saying that they never result
in a detainee divulging true information. This is another point
to which Senator McCain spoke very eloquently about his own
experiences under torture in which he, when asked for the names
of men in his unit, gave the starting line-up of the Green Bay
Packers.
But experienced interrogators have repeatedly said and
military commanders have agreed, from General Petraeus on down,
that these techniques are not only immoral and illegal but
unnecessary and counterproductive.
You know, there is, I suppose, one sense in which the
coercive and abusive techniques used, not just by military but
by the CIA, at Abu Ghraib and elsewhere worked, and that is as
a recruitment tool for al-Qaeda. We have to look at the broader
question here and the cost of a policy of official cruelty,
which undermines not only our moral authority but our security.
This is what I have heard repeatedly from a number of
retired flag and general officers who I have had the privilege
of working with over the last several years. They are emphatic
and uniform on this point, that these are not only rules based
on experience in the Field Manual, decades of experience,
including recent experience--the manual was revised last year--
but they reflect values that all U.S. agencies should comply
with.
Ms. Jackson Lee. Professor Radsan and Saltzburg?
Mr. Radsan. Ms. Jackson Lee, let me take your question as
an opportunity to be critical of the three branches of
Government and the American people on this issue. I am going to
make many friends today.
I think that we need a national dialogue on what sort of
techniques we are comfortable with--it needs to be open--
techniques that go beyond what might be permitted in the
criminal justice system, but techniques below what is defined
reasonably as torture. Even if we resolve the issue of
waterboarding, we have many other issues that we need to
resolve and we have not resolved, even with this Executive
order from the President, after the Military Commissions Act.
For example, sleep deprivation, is this something that is
acceptable or not? Another example, bombarding somebody with
music. I don't care for Nirvana; maybe you like Nirvana. But we
have to figure out, if we play this all day at a loud volume,
does this cross this line? These are very serious issues.
Where I differ with the Administration is I think it makes
more sense for us to be open, as a people, as members of our
Government: This is the line; this is what we are going to do
and what we are not going to do.
Because what happens is, if we have someone in a site, a
secret site, and that person might have had information and we
have an attack, there will be other kinds of recriminations--
recriminations that come out of shows like ``24.'' Why didn't
we send Jack Bauer in there to get the information?
This is a difficult place for elected Members of Congress
and for our elected President to figure out what is the line,
what will we defend and what will we not defend.
Ms. Jackson Lee. Professor Saltzburg?
Mr. Saltzburg. I think I agree with every word that was
said by my two colleagues here. My experience is the same. I
think that when you talk to military leaders, they tell you
that harsh interrogation techniques and torture do not produce
actionable intelligence. They are counterproductive, for the
most part. They are not saying you never get anything.
But, you know, one of the things I just didn't want to
leave unsaid, you might think, from what we have heard today,
that the Army Field Manual was drafted by a Scout troop, you
know, which had no experience fighting wars. The military
drafted that, and they take enormous pride in it. They think
that they are leading the world, that other militaries will
look at that Field Manual and say, ``The United States is proud
that these are our techniques.''
I mean, when we look at Europe and other countries, they
don't look at us and say, ``Why are you soft on the people you
are detaining?'' They look with pride at what we have done. And
we have squandered, we have squandered our image in the world
in so many ways. But, boy, one of the things we have done right
is that Army Field Manual.
And I don't know anybody in the Department of Defense, in
the military side of it who is embarrassed by it. They are
pleased that they did it and proud that they did it. And the
only people who seem to attack it are the civilians who are
supposed to be leading this country and leading the world. And
they got it backwards, and they got it wrong.
Mr. Conyers. Gentlelady's time has expired.
Gentleman from Tennessee, Steve Cohen.
Mr. Cohen. Thank you, Mr. Chairman.
I am not sure who to ask this to, maybe Mr. Rivkin. Why do
you think they made the tapes to start with? I mean, generally
police and law enforcement folks do interrogation; sometimes
they audiotape them. They don't generally videotape them. Why
do they videotape them anyway?
Mr. Rivkin. My total speculation would be, Congressman,
precisely because they felt, especially at the time it took
place, in the post-September 11 atmosphere, we have to get at
the facts. And, quite frankly, in this situation where I think
there is plenty of evidence that the Intelligence Committees
were briefed about this these techniques, they wanted to get as
much intelligence mileage out of it. And I suppose facial
expressions, gestures can yield additional insight into whether
or not somebody--you know, if you look at Bill O'Reilly these
days, he puts on experts almost every day----
Mr. Conyers. Who?
Mr. Rivkin. Fox's Bill O'Reilly.
Mr. Cohen. Never heard of him. [Laughter.]
Mr. Rivkin. Well, there are people who make careers out of
interpreting people's gestures. If you tilt your head this way,
you are telling the truth. If you lower your eyes, you are
lying. So there is probably an additional element of
intelligence value that could be squeezed from videotaping----
Mr. Cohen. I think they want you to turn your mike on.
Mr. Rivkin. No, what I was saying is it was probably
entirely innocuous that he wanted to gain additional
intelligence insight, because looking at people's facial
expressions, the ones you are interrogating, their gestures,
would tell you more about the credibility of their statements.
I am saying, in popular culture, there are lots of people
who put in their shows experts who analyze politicians,
depending on how they look on camera, what is the sincerity of
statements. So that would be my interpretation.
Mr. Cohen. Does anybody else have an opinion on this?
Ms. Massimino. Yes. If we can express our opinions, this is
one of the things that hopefully you will find out in your
investigations. But I think the Administration has, for some
years, dismissed the claims, until it was faced with the
photographs of Abu Ghraib, claims of abuse by detainees by
arguing that those complaints are part of al-Qaeda's strategy.
And it very well may be true that complaining about abuse is
part of the al-Qaeda manual of what to do when you get
captured.
One of the ways that the Administration could prove that
point is by videotaping. This is why videotaping has become so
popular, I think, in domestic law enforcement agencies, is to
be able to defend against erroneous claims of abuse by people
who have been interrogated.
One of your colleagues here in the House, Congressman Rush
Holt of New Jersey, has for several years proposed legislation
that we have supported that would have required the videotaping
of interrogations for the purpose of inhibiting abuse and
protecting against erroneous claims of abuse. And perhaps that
is something the Committee ought to examine coming out of this
incident.
Mr. Cohen. Thank you.
Professor?
Mr. Radsan. Thank you, Congressman Cohen.
General Hayden, in his letter to CIA employees, offered an
explanation of why they kept tapes of these two interrogations
that went over many hours. One was to monitor the compliance
with the program by the interrogators, to make sure that they
were following the law. I am not saying whether that is right
or wrong; this is his offered explanation.
The second is the point that Mr. Rivkin made, that they
wanted to have a record, a complete record for intelligence
value to figure out whether the information was good, whether
the person was being deceptive, the person that was being
interrogated.
But I think, as your question suggests, there are benefits
and there are burdens to having a very complete record--and a
video is going to be more graphic than a transcript or an
audio--benefits and burdens that may come back to hurt you.
And maybe I can give the third point by passing a question
to Professor Saltzburg. It is the same issue or a similar issue
of why does the FBI not record its interviews with witnesses?
Why does the FBI not videotape? Because they have determined,
on that balance of burden and benefit, that is better for them
to have the only record. They do it through an FBI 302, a
report of the interview.
There are States that have gone the other way on their law
enforcement and said, ``We want these things videotaped because
we don't necessarily trust the record.'' But I think the FBI,
in its case, says, well, they would rather have FBI agents
testifying about what actually happened, and you could draw the
analogy to the CIA.
Mr. Cohen. And you were going to pass the question to
Professor Saltzburg. And based on your vitae, I think you
probably have a good question.
Mr. Saltzburg. I think the question was, isn't this why the
FBI does what it does, and I think it is.
But there is another reason why they might have videotaped,
very closely related to what was stated to the CIA employees,
and that is you will remember that the FBI was telling the CIA
not to do what it was doing, that these techniques don't work
and that they are harsh and unnecessary. And one of the reasons
for making the tapes is I think the CIA probably wanted to show
that it works. They had a record. Their view is they got a lot
of intelligence, and if anybody doubts it, they can show you
exactly what they did and that it worked, in their view.
The problem is when it came time to show these tapes, they
may have looked back and said, ``Uh-oh, even if it worked, we
don't want people to see what we did.''
Mr. Cohen. Does anybody on the panel believe that the tapes
were destroyed to preserve the anonymity of CIA operatives?
Does anybody buy that at all?
Mr. Rivkin?
Mr. Rivkin. I would only buy it in the context with the
following observation, which I made several times today. It is
not that you, as Congress, would reveal this information, but
in a time where everything leaks--and that is not an
overstatement--having those tapes posted on the Internet, being
leaked the same way the Abu Ghraib tapes were, in a situation
where individuals doing the interrogation were shown--these
individuals are overseas. It would either destroy their careers
or would may well put their lives in jeopardy.
Mr. Cohen. But wasn't it possible to easily block out their
face or their identity and still have the tape but to secure
the anonymity of the CIA operative?
Mr. Rivkin. Well, again, this assumes that one can
guarantee that an unredacted tape would not be leaked or, even
if somehow the identify was obscured, that it could not be
restored. And that is a big assumption, given what else has
happened with the most secret of programs that this Government
has employed in the last several years.
Mr. Cohen. Thank you, sir.
Professor?
Mr. Radsan. With respect, I disagree with Mr. Rivkin. It
doesn't make sense to me that the tapes needed to be destroyed
to protect identities. You have alluded to one possibility of
redacting, but the other basic possibility--there was no
indication that they wanted to share this with anybody. If they
were worried about a leak--and the CIA protects a lot of
classified information--if you had tapes at an overseas
location, then have the tape moved back to headquarters, as Ms.
Jackson Lee said, put it in a safe in the Director's office. If
a tape is not safe in the Central Intelligence Agency, in the
office of the Director of the Central Intelligence Agency, we
are in trouble.
A historical note is you remember with the Bay of Pigs,
there was a very controversial Inspector General investigation
that was done internally. The Director of Central Intelligence
at that time didn't want this leaking and didn't want it well-
known. The Director of Central Intelligence said, ``We will
take back the copies of the report. I will keep one. I will put
it in the safe.'' And it was safe for a long period of time.
Mr. Cohen. From Ranking Member Smith's testimony, assuming
it be entirely accurate--and I have no reason to believe
otherwise--waterboarding apparently is a very successful or
effective tool at ferreting out information.
And is there any other techniques that you all know of that
might be just as effective but within the law?
Mr. Rivkin. I personally have serious problems with
waterboarding. I think it is a very difficult thing to justify.
The thing that concerns me, Congressman--and I think it is
an excellent question--is the critics are painting everything
with a broad brush. If we were to adopt the procedures in the
Army Field Manual, no coercive technique of any kind--including
sleep deprivation, even in modest amounts; temperature
manipulation, even in modest amounts--would be tolerated. That
would take us way beyond.
Look, everybody agrees, I don't know anybody who holds a
candle for torture or even for cruel, inhumane and degrading
treatment. We are talking about things way below that level.
And if we are going to do that, I agree with one fundamental
respect, let's have an honest debate as a society, as a
country, to say we are not going to sully our hands with any
kind of coercive techniques. And let's also explain to the
American people why it is okay to do it to our own personnel in
the course of training, why it is okay to have coercion in
penitentiaries and police stations, different doses, but here
there would be one coercion-free corner in the entire public
sphere for interrogating combatants.
If you can make the case where American people buy into it,
that is fine. What worries me is the case is not being made and
is being done through indirection.
Mr. Cohen. Yes, sir.
Professor?
Mr. Radsan. Congressman, I agree that we should have a
special program for the CIA, that we may need some enhanced
techniques. Where we are going to disagree or where the
discussion goes are what sort of techniques will we allow. And
I am fortunate to be in the middle, I am right down the middle
there with the Chairman.
I think where the discussion will get very interesting for
enhanced techniques that we allow the CIA to use is not on
waterboarding. I think most of us will agree we are going to
take waterboarding off the table. But what about sleep
deprivation? Menachem Begin, who was the leader of Israel, was
tortured himself, and he said that, of all the techniques, the
most defective was depriving him of sleep. He said that the
quest for sleep is far greater than the need for food or water.
And we would figure out--this is something you can't do in
the criminal justice system. You can't keep somebody up for a
day or 2 to try to find out whether they robbed the bank. But
perhaps for this interrogation and detention program that we
allow the CIA, perhaps this is something that is going to be
acceptable.
I haven't made up my mind, but I would like to hear the
debate. And the effects of sleep deprivation we know are
different from the effects of some of these other techniques.
Mr. Cohen. Professor, let me ask you this. You suggested in
your testimony maybe some type of FISA court to determine what
might be proper techniques. Are you satisfied with the FISA
court's jurisdiction and their powers, that they are sufficient
to protect the American public? Because they have a very
limited scope.
Mr. Radsan. They have limited scope, but we don't have any
evidence that any information is leaked from the FISA court,
that it does provide some sort of review. It is close, and we
don't have people advocating on behalf of the person that might
be surveilled. We may need to adjust the statute, I think we
probably would, to set up some FISA-type court for
interrogation.
And where I would go--and I have laid this out in
articles--is I might put an annual cap on how many people can
into the program. I might have an ombudsman in the special
court, not a defense lawyer, to protect the classified
information, but to have some more of a check to figure out
whether this is someone who deserves to be in the program or
not.
And perhaps with a FISA-type court, we could have the court
reviewing what sort of techniques are permissible or not. It is
not full oversight, but it is something better than complete
black sites, which I am opposed to.
Mr. Cohen. And I appreciate what you suggested, because I
have thought we do have to have certain techniques to be able
to ferret out information and protect our people. At the same
time, we have to respect our laws. And one of the major
conflicts is, if we permit something, the other countries may
use it against our own folks. And certainly Senator McCain, who
was a prisoner of war, could have been subjected to, and
probably was, different techniques. We want to protect our
folks.
If we have a court that decides these things--and a FISA
court would be not so publicized and not so public. And I am
not saying that al-Qaeda or Iraq or whoever is going to say,
``Oh, America lets this happen, so we will; if they don't, we
won't.'' How can we say that, if we have these courts, that
some other country won't have a court, and how can we have
faith in their courts to have rules that protect our folks?
Mr. Radsan. Congressman, I recognize that I am trying to
have it both way ways, that I want to have a very limited
program to allow some techniques that are not permitted in the
criminal justice system, that I would not permit to the
Department of Defense. And I would hope, by containing it and
having additional oversight through this special court, that we
could prevent those arguments from being made that you
suggested, that if one of our service people falls into the
hands of the enemy, that we don't want the argument that this
technique, whether it is sleep deprivation or some enhanced
technique, is permissible.
I am trying to cabin this off to say that we may need
aggressive techniques on someone like Khalid Sheikh Mohammed,
the presumed mastermind of 9/11. We may need them on Abu
Zubaydah. But we don't want this to spread to Guantanamo, to
Abu Ghraib. I am trying to carve out an exception and maintain
it within the rule of law. It is difficult, but I don't know of
a better solution.
Mr. Rivkin. You guys forget one point. There is legal
basis----
Mr. Conyers. Could we let Ms. Massimino have the last word,
Mr. Cohen?
Mr. Cohen. Yes, sir.
Ms. Massimino. Thank you, Mr. Chairman.
Mr. Conyers. Before we do that, I didn't want to cut off
Mr. Rivkin.
Mr. Rivkin. Thank you, Mr. Chairman, for your indulgence.
There is a very simple legal basis to have your cake and
eat it too, which is when you deal with lawful enemy combatants
who, upon capture, become POWs, you cannot use any coercive
techniques whatsoever. When you deal with unlawful enemy
combatants, the entitlement is a great deal less, entitled to
humane treatment. You cannot torture them, but you certainly
can use stress techniques that fall below that level.
Ms. Massimino. Thank you. I just want to correct one
impression about sleep deprivation and what Menachem Begin said
about it, and that was that he would have said anything in
order to get an hour of sleep--not that he would have told the
truth, but he would have said anything. And that is the problem
with a lot of these techniques.
I also want to say I am not an interrogations expert, but I
would commend to you, Mr. Cohen, the letter from 35 retired
flag and general officers, including six four-star officers of
each of the four branches of service. And these are not flower
children. They are combat-hardened men, all men who have
overseen troops who have had to face very dangerous enemies.
And they say in their letter, ``The Field Manual is the
product of decades of practical experience and was updated last
year to reflect lessons learned from the current conflict.
Interrogation methods authorized by the Field Manual have
proven effective in eliciting vital intelligence from dangerous
enemy prisoners. Some have argued that the Field Manual rules
are too simplistic for civilian interrogators. We reject that
argument. Interrogation methods authorized in the Field Manual
are sophisticated and flexible. And the principles reflected in
the Field Manual are values that no U.S. agencies should
violate.''
This idea that we can somehow cabin it, a little bit of
torture or something less than torture, only in certain
circumstances, only by certain people, is a fantasy. That is
exactly what the Administration tried to do. I don't believe
that the Administration set out to have Abu Ghraib happen or to
have there be widespread abuse of prisoners: 100 deaths in
custody, 34 homicides, eight people literally tortured to
death. I do not believe that that was the intent of this
Administration. But it happened because there was a simplistic
belief that you could do a little bit here, a little bit there
and not, as Senator McCain pointed out, change who we are as a
Nation.
That is where we are right now. This is not a theoretical
debate that we are having. We are in that hole right now, and
whether we stay there or climb out is largely up to you all.
Thank you.
Mr. Cohen. I would like to thank the panel.
And I would also like to suggest to the Chair and Members
of the Committee--and I respect the Members of the Committee,
and serving with them, just as with the Chairman, has been a
great honor this year. This Committee, particularly on my side
of the aisle, has some outstanding Americans who believe in the
Constitution, and so it is so special to serve here.
I think we have learned a couple of things today. First of
all, sleep deprivation is a very effective tool. And the Senate
should have gone ahead and let the Republicans filibuster.
Maybe they would have said some things that they shouldn't that
we should have heard over the last year. And they should think
about that for next year.
And the second thing is, Mr. Chairman, as I look at the
Department of Justice again having an empty seat, I think back
upon this year when this Committee saw officials from the
Department of Justice, particularly Ms. Miers, not show up
before this panel and not bring information.
And I hope at the beginning of the next year we will bring
our contempt citation to the floor and show this Administration
that this Committee and this Congress is not going to take it
any longer and that we are going to be an independent branch,
in the tradition of John Yarmuth and the freshman, and believe
Article 1 and assert our power, as the American people have
invested in this and as we took an oath to uphold it.
Thank you, Mr. Chairman.
Mr. Conyers. And I think the witnesses and all the Members
and those who have joined us today.
This is an excellent beginning, and we look forward to
examining the record so that we can move forward to continued
hearings.
Thank you very much.
The Committee is adjourned.
[Whereupon, at 12:32 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Letter dated December 17, 2007, from the Honorable John Conyers, Jr.,
to the Honorable Michael B. Mukasey, Attorney General of the United
States
Letter dated December 7, 2007, from the Honorable John Conyers, Jr.,
the Honorable Robert C. Scott, the Honorable Jerrold Nadler, and the
Honorable William Delahunt to the Honorable Michael B. Mukasey,
Attorney General of the United States
Letter dated December 13, 2007, from the Honorable Michael B. Mukasey
to the Honorable John Conyers, Jr., the Honorable Robert C. Scott, the
Honorable Jerrold Nadler, and the Honorable William Delahunt, with
enclosure
Enclosure