[House Hearing, 110 Congress] [From the U.S. Government Publishing Office] DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: ADMINISTRATION LAWYERS AND ADMINISTRATION INTERROGATION RULES (PART I) ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS SECOND SESSION __________ MAY 6, 2008 __________ Serial No. 110-97 __________ Printed for the use of the Committee on the Judiciary Available via the World Wide Web: http://judiciary.house.gov ---------- U.S. GOVERNMENT PRINTING OFFICE 42-212 PDF WASHINGTON : 2008 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 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 Sean McLaughlin, Minority Chief of Staff and General Counsel ------ Subcommittee on the Constitution, Civil Rights, and Civil Liberties JERROLD NADLER, New York, Chairman ARTUR DAVIS, Alabama TRENT FRANKS, Arizona DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana KEITH ELLISON, Minnesota DARRELL ISSA, California JOHN CONYERS, Jr., Michigan STEVE KING, Iowa ROBERT C. ``BOBBY'' SCOTT, Virginia JIM JORDAN, Ohio MELVIN L. WATT, North Carolina STEVE COHEN, Tennessee David Lachmann, Chief of Staff Paul B. Taylor, Minority Counsel C O N T E N T S ---------- MAY 6, 2008 Page OPENING STATEMENTS The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Chairman, Subcommittee on the Constitution, Civil Rights, and Civil Liberties................ 1 The Honorable Trent Franks, a Representative in Congress from the State of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties................ 2 The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, Chairman, Committee on the Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties.................................... 4 WITNESSES Mr. David B. Rivkin, Jr., Partner, Baker Hostetler, LLP Oral Testimony................................................. 10 Prepared Statement............................................. 12 Mr. David J. Luban, Professor of Law, Georgetown University Law Center Oral Testimony................................................. 15 Prepared Statement............................................. 16 Ms. Marjorie Cohn, Professor of Law, Thomas Jefferson School of Law, President, National Lawyers Guild Oral Testimony................................................. 64 Prepared Statement............................................. 66 Mr. Philippe Sands, Professor of Law, University College London, Barrister, Matrix Chambers Oral Testimony................................................. 83 Prepared Statement............................................. 85 APPENDIX Material Submitted for the Hearing Record........................ 131 DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: ADMINISTRATION LAWYERS AND ADMINISTRATION INTERROGATION RULES (PART I) ---------- TUESDAY, MAY 6, 2008 House of Representatives, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Committee on the Judiciary, Washington, DC. The Subcommittee met, pursuant to notice, at 9:56 a.m., in Room 2141, Rayburn House Office Building, the Honorable Jerrold Nadler (Chairman of the Subcommittee) presiding. Present: Representatives Conyers, Nadler, Davis, Wasserman Schultz, Ellison, Scott, Watt, Cohen, Franks, Pence, Issa, and King. Mr. Nadler. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. Without objection, the Chair is authorized to declare a recess of the hearing. Today's hearing will begin the Subcommittee's investigation of the role of Administration lawyers in formulating the rules for conducting interrogations. The Subcommittee has been investigating this Administration's interrogation policies and will continue to do so. The Chair now recognizes himself for 5 minutes for an opening statement. Today's hearing begins our inquiry into the role of Administration in the formulation of our interrogation policies. We have a distinguished panel of witnesses. Although shrouded in secret, even from Members of Congress who have the requisite security clearances to review it, and who have the constitutional responsibility to legislate and oversee it, the legal opinions issued by Administration lawyers have brought our Nation into international disrepute. How we got this point, what is the legal basis for these actions, and what are the asserted parameters of these policies, these are the subjects of this first in a series of hearings. The more information that becomes public, often in the press through leaks rather than through the congressional Committees with the constitutional duty to oversee it, the more disturbing it becomes. Yet at a recent hearing and in subsequent meetings, we have been told that we may not be privy even on a classified, non- public basis, to those legal opinions. What possible constitutional excuse there can be for saying that the non- secrecy of legal opinions could jeopardize the national security of the United States is beyond me. This is totally unacceptable. So today we hear from experts in the field who will discuss what is known, or what the private investigations have been able to discern, and what the law says about that information. I do not believe that this Administration or any Administration has some independent authority to craft secret law and apply it. I do not believe that this Administration or any Administration is free of the checks and balances in the Constitution. I believe that we must and will get to the bottom of what has been done in our name, and what is being done. Torture is abhorrent. Whether done by the Taliban or by the Bush Administration, it is alien to our Nation's values, our history and our laws. Secrecy and stonewalling will not change that. I hope a little sunlight will. I welcome our witnesses. I look forward to their testimony. I want to reiterate that this is the first in a series of hearings and that we will in subsequent hearings receive testimony from those individuals who played a central role in the formulation and the implementation of these policies. I yield back the balance of my time. I would now recognize for an opening statement our distinguished Ranking minority Member, the gentleman from Arizona. Mr. Franks. Well, thank you, Mr. Chairman. Mr. Chairman, the subject of detainee treatment was the subject of over 60 hearings, markups and briefings during the last Congress in the House Armed Services Committee alone, of which I am a Member. The subject of this hearing is a memorandum that has long since been withdrawn. That memorandum regarded an interrogation program on which Speaker Pelosi was fully briefed in 2002. And at that briefing, no objections were made by Speaker Pelosi or anyone else. According to the Washington Post, in September 2002, four Members of the Congress met for a first look at a unique CIA program designed to wring 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 the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk. Among the techniques described, said two officials present, was waterboarding. On that day, no objections were raised. Mr. Chairman, let me be clear as I have done so in the past by saying that torture is already, and should be, illegal. I am against torture. Torture is banned by various provisions of the law, including the 2005 Senate Amendment prohibiting the cruel, inhuman or degrading treatment of anyone in U.S. custody. But what of severe interrogations? Mr. Chairman, were we not to engage in severe interrogations which could save thousands or even millions of lives, we would have to ask ourselves if we were facilitating the maiming and torture of innocent Americans by letting terrorist suspects conceal their evil plans. Severe interrogations are rarely used. CIA Director Michael Hayden has confirmed that despite the incessant hysteria by a few, the waterboarding technique, for example, has only been used on three high-level captured terrorists, the very worst of the worst of our terrorist enemies. Director Hayden suspended the practice of waterboarding by CIA agents in 2006. Before the suspension, he confirmed that his agency waterboarded 9/11 mastermind Khalid Shiekh Mohammed, Abu Zabeda and Abd al-Rahim al-Nashiri, and each for approximately 1 minute. But who are these people, Mr. Chairman? When the terrorist Zabeda, a logistics chief of al-Qaida, was captured, he and two other men were caught building a bomb. A soldering gun was used to make the bomb was still hot on the table, along with the building plans for a school. John Kiriaku, a former CIA official involved Zabeda's interrogation, said during a recent interview, ``These guys hate us more than they love life. And so you are not going to convince them that because you are a nice guy and they can trust you, and that they have rapport with you that they are going to confess and give you their operations.'' The interrogation of Zabeda was a great success, and it led to the discovery of information that led to the capture of terrorists, thwarted terrorist plans and saved innocent American lives. When a former colleague of Mr. Kiriaku asked Zabeda what he would do if he was released, he responded, ``I would kill every American and Jew I could get my hands on.'' The results of a total of 3 minutes of severe interrogations of three of the worst of the worst terrorists were of immeasurable benefit to the American people. CIA Director Hayden said that Mohammed and Zabeda provided roughly 25 percent of the information that the CIA had on al-Qaida from all human sources. Now we just need to kind of back up and thought about that. A full 25 percent of the human intelligence we have received on al-Qaida from just 3 minutes worth of a rarely used interrogation tactic. Mr. Chairman, I just want to repeat again, as I previously said, torture is banned under Federal law that prohibits the cruel, inhuman or degrading treatment of anyone in U.S. custody. The non-partisan Congressional Research Service has concluded that ``The types of acts that fall within cruel, inhuman or degrading treatment or punishment contained in the McCain Amendment may change over time and may not always be clear. Courts have recognized that circumstances often determine whether conduct, ``shocks the conscience and violates a person's due process rights.'' Even ultra-liberal Harvard Law School Professor Alan Dershowitz agrees, as he wrote recently in the Wall Street Journal, ``Attorney General Mukasey is absolutely correct that the issue of waterboarding cannot be decided in the abstract. A court must examine the nature of the governmental interest at stake and then decide on a case by case basis. In several cases involving actions at least as severe as waterboarding, the courts have found no violations of due process.'' Much will be made today of a memorandum regarding severe interrogations authored by John Yoo, a former lawyer at the Office of Legal Counsel. But as Mr. Yoo himself said during a recent interview, ``I didn't want the opinion to be vague so that the people who actually have to carry out these things don't have a clear line, because I think that that would be very damaging and unfair to the people who are actually asked to do these things.'' These things, Mr. Chairman, are efforts to save thousands of innocent American lives. Now I expect Mr. Yoo's name will be mentioned many times today, but the name of Senator Charles Schumer probably not so many times. But let us remind ourselves what Senator Schumer of New York said at an extended Judiciary Committee hearing on terror policy on June 8, 2004. And I wonder if they have the--can we start again? [Recording follows:] Mr. Schumer. We ought to be reasonable about this. I think there are probably very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake. Take the hypothetical, if we knew that there was a nuclear bomb hidden in an American city, and we believed that some kind of torture, fairly severe, maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most senators, maybe all, would say do what you have to do. So it is easy to sit back in the armchair and say that torture can never be used. But when you are in the foxhole, it is a very different deal. And I respect, I think we all respect the fact that the President's in the foxhole every day. [Recording ends.] Mr. Franks. Mr. Chairman, I wish so much that this was all just an academic discussion. But unfortunately, we now live in a post-9/11 world with an enemy whose leader, Osama bin-Laden, has said, ``It is our duty to gain nuclear weapons.'' Mr. Chairman, I am afraid that one such tragedy will transform this debate in the worst kind of way. Two airplanes hitting two buildings took 3,000 lives and cost this Nation $2 trillion. If an atomic blast or some other weapon of mass destruction should ever be unleashed on this Nation, it would change our concept of freedom forever. And I just hope that we can transcend the partisanship and maintain our focus on that because there are still hours on the table left when we can prevent such a tragedy, I believe, if we realize that there are ways that we can combine human decency and a vigilant foreign policy an interrogation technique process to protect this country and the concept of freedom for future generations. And I yield back. Mr. Nadler. I thank the gentleman. I now yield for an opening statement to the distinguished Chairman of the full Committee, the gentleman from Michigan. Mr. Conyers. Thank you, Mr. Chairman and Members of the Committee. This is an important investigation and hearing, and these are areas that, to my knowledge, we have not gone into before. And while I appreciate Trent Franks' statements, I will note for the record that I have never heard anyone on the other side quote Alan Dershowitz and Senator Schumer in the same breath. And maybe that is a great sign that we are beginning to work across the aisle. I am going to be looking for somebody on your side to quote, too. And this is a great way to start us off. But what brings us hear today are a couple of considerations. There are some memos--oh, and by the way, I am glad that Speaker Nancy Pelosi was cited also, but I didn't see what she saw, and that is why we are here, to try to make sure that this Committee, the only Committee in the Congress that has oversight over the Constitution and the Department of Justice, presents a true and accurate picture of what has happened. And that is what we are looking for today is the truth. There are three memos. One, August 1, 2002, John Yoo and Jay Bybee at the Office of Legal Counsel to White House Counsel Alberto Gonzales, where we examine what is considered by many to be an extremely narrow definition of torture and an assertion that during the war, the President can take any act that he thinks necessary, reminding me of former President Nixon's admonition that if the President does it, it must be legal. And third, this memo was withdrawn by the Department of Justice in 2004. The second document that I hope will be discussed is dated December 2, 2002, in which Secretary Rumsfeld approved interrogation methods for Guantanamo Bay. Department of Defense Counsel Jim Haynes recommended that he approve it. It included a legal memo or contribution from Diane Beaver, a lawyer at Guantanamo, but was something based perhaps as much on the August 1, 2002 memo that I mentioned as well. The third memo is dated March 14, 2003, again from John Yoo at the Office of Legal Counsel to Jim Haynes at the Department of Defense, and was very similar--well, it was similar, but maybe even more extreme than the original August 2002 document. It was withdrawn by Jack Goldsmith in December. Now the questions that I hope will be discussed, what was the role of senior government lawyers such as David Addington and John Yoo in the creation and approval of these interrogation practices? Second, what do the witnesses think about the legal memos on interrogation that the department has released? These memos have been widely criticized. And by the way, did the lawyers who wrote them violate any of their legal obligations or ethical obligations? And this is quite a bit about lawyers. I was reading this morning from Jack Goldsmith, himself a former head of the Office of Legal Counsel. And he refers constantly to the many lawyers that were involved in developing the laws that we use to regulate ourselves against torture and terrorism. And I want people not to mistake the fact that I still recommend to many of the brightest young people that I meet that if they haven't chosen a course of professional activity, become a lawyer. I don't want them to be dismayed by anything that goes on this morning because I still feel that this is a very noble profession, noting that all of the witnesses are themselves members of various bars, as is almost everybody up here with the Committee. And so I too join warmly in welcoming our witnesses and look forward to an interesting discussion. That you, Chairman Nadler. Mr. Nadler. Thank you. In the interest of proceeding to our witnesses and mindful of our busy schedules, I would ask that other Members submit their statements for the record. Without objection, all Members will have 5 legislative days to submit opening statements for inclusion in the record. Mr. Issa. Mr. Chairman---- Mr. Nadler. [continuing]. Ask questions of our witness, the Chair will recognize Members in the order of their seniority in the Subcommittee, alternating between majority and minority, provided that the Member is present when his or her turn arrives. Members who are not present when their turn begins will be recognized after the other Members have had the opportunity to ask their questions. The Chair reserves the right to accommodate a Member who is unavoidably late or only able to be with us for a short time. Did someone---- Mr. Issa. Mr. Chairman, we would ask that regular order be followed, although I think both of us are willing to abbreviate our opening statements. Mr. Nadler. [OFF MIKE] Mr. Issa. We would ask for regular order of alternation, as you have begun, but would agree to abbreviate in order to get onto the witnesses. In other words, we are disagreeing with the unanimous consent, Mr. Chairman. Mr. Nadler. Well, the objection, first of all, is not timely, since unanimous consent was already approved---- Mr. Issa. No, it was not approved. Mr. Chairman, it was not approved. We sought recognition. Mr. Nadler. [continuing]. Let me just say the following. Oh, is that a vote? No, it can't be. Let me just say the following. We have a panel of witnesses, we have a busy morning before us, and the policy that I follow, or try to follow, is to give the opening statement for the Chairman and the Ranking Member, and if the Chairman and Ranking Members of the full Committee are here, to give them that courtesy and to ask all other Members to submit their statements for the record. If Mr. Smith were here, I would call upon him for an opening statement if he wanted to. But I don't want to start getting into everybody giving opening statements because we will never get to the---- Mr. Issa. I appreciate that, Mr. Chairman. But the rules of the House, once you go beyond your opening statement, provide for alternating to each Member there. And we did object to the unanimous consent I think for good and reasonable cause. I don't think anyone is planning on making this long---- Mr. Nadler. I am not aware of that. I will move that opening statements be dispensed with at this point and that all Members be permitted to insert opening statements into the---- Mr. Issa. Mr. Chairman, I object to that. It is not a parliamentary allowed movement in that you have begun regular order, you have alternated. Mr. Nadler. [continuing]. I over---- Mr. Issa. I am asking for a recorded vote. Mr. Nadler. A recorded vote. Let's think about what we are having a vote on. Mr. Issa. Perhaps you should check with the parliamentarian for the rules of the House. Mr. Nadler. We are getting them. Mr. Issa. There are people in the audience who demand, Mr. Chairman, there are people in the audience that demand the right of the first amendment, free speech. We ask no less than the rights within the House, consistent with the right of free speech and equal access to the opinion that will be from the day, in addition to those that will be from the witnesses. Mr. Nadler. Parliamentarian informs us that it is subject to a motion. So the motion is that further opening statements be dispensed with, that Members have the opportunity to submit it for the record. All in favor, say ``aye.'' [A chorus of ayes.] Mr. Nadler. Opposed? Mr. Issa. Hell no! Mr. Nadler. The motion is carried. Mr. Issa. On that I asked for a recorded vote. Mr. Nadler. Recorded vote has been requested, the clerk will call the roll. Do we have a clerk? We will have a clerk call the roll in a moment. The Clerk. Mr. Chairman, Mr. Nadler. Aye. The Clerk. Mr. Chairman votes aye. Mr. Davis. [No response.] The Clerk. Ms. Wasserman Schultz. [No response.] The Clerk. Ms. Ellison Mr. Ellison. Aye. The Clerk. Mr. Ellison votes aye. Mr. Conyers. Mr. Conyers. Aye. The Clerk. Mr. Conyers votes aye. Mr. Scott. Mr. Scott. Aye. The Clerk. Mr. Scott votes aye. Mr. Watt. [No response.] The Clerk. Mr. Cohen. [No response.] The Clerk. Mr. Franks. Mr. Franks? Mr. Franks. No. The Clerk. Mr. Franks votes no. Mr. Pence. [No response.] The Clerk. Mr. Issa. Mr. Issa. No. The Clerk. Mr. Issa votes no. Mr. King. Mr. King. No. The Clerk. Mr. King votes no. Mr. Jordan. [No response.] Okay, Mr. Chairman, I have four voting in the affirmative and three in the negative. Mr. Nadler. The motion is carried. Mr. Issa. Mr. Chairman, a parliamentary inquiry. Is the Chairman of the full Committee a seated Member of this Committee or an ex-officio? Mr. Nadler. He is a voting Member. And the Ranking Member would have been a voting Member had he been here. Mr. Issa. Okay. Mr. Chairman, I would ask only that staff provide us with both of those parliamentary decisions, one that the full Committee Chairman is in fact a voting, seated Member of the Committee---- Mr. Nadler. That is not a parliamentary decision. That is simply the Rules of the Committee, which you have. We will give you a copy if you want. Mr. Issa. I don't interpret them that way. But we will check and get back at a later day, and I am reserving a point of order as to the outcome of the vote relative to I do not believe that the---- Mr. Nadler. The gentleman's reservation is noted. How we will get to our witnesses. I want to welcome our distinguished panel of witnesses today. The first witness is David Rivkin, Jr., who is a partner with the firm Baker Hostetler, where he is a member of the firm's litigation, international and environmental groups. Mr. Rivkin, from 1993 to December 1999 was a member of Hunton & Williams law firm. Prior to returning to private practice in 1993, Mr. Rivkin was associate executive director and counsel of the President's Council on Competitiveness at the White House. While there, he was responsible for the review and analysis of legal issues related to the regulatory review conducted by the council and the development and implementation of the first President Bush's deregulatory initiatives carried out during 1991-1992. He simultaneously served as a special assistant for domestic policy to then Vice President Dan Quayle. Mr. Rivkin was associate general counsel to the U.S. Department of Energy 1990 to 1991. Mr. Rivkin served in the office of then Vice President George Bush as legal advisor to the counsel to the President and as deputy director of the Office of Policy Development, U.S. Department of Justice. Prior to embarking on a legal career, Mr. Rivkin served as a defense and foreign policy analyst, focusing on Soviet affairs, arms control, naval strategy and NATO related issues, and worked as a defense consultant to numerous government agencies and Washington think tanks. He received his J.D. from Columbia University School of Law in 1985, a BSFS from Georgetown University in 1980, and a M.A. in Soviet affairs from Georgetown University in 1984. David Luban joined the faculty of Georgetown University Law Center in 1997, coming from the University of Maryland's Institute for Philosophy and Public Policy and its school of law. He received his B.A. from the University of Chicago and Ph.D. in philosophy from Yale University, and taught philosophy at Yale and Kent State University before moving to Maryland. He has held visiting appointments in law at Harvard, Stanford and Yale law schools and visiting appointments in philosophy at Dartmouth College in the University of Melbourne. In 1982, he was a visiting scholar at the Max Plank Institute in Frankfurt and Hamburg. In addition, Luban has been a fellow of the Woodrow Wilson International Center for Scholars and held a Guggenheim fellowship. He recently published ``Legal Ethics and Human Dignity.'' He writes on legal ethics, legal theory, international criminal law, just war theory and most recently, U.S. torture policy. Marjorie Cohn is a professor of law at Thomas Jefferson School of Law, where she has taught since 1991. She currently serves as the President of the National Lawyers Guild and is the author of the recently published ``Cowboy Republic: Six Ways the Bush Gang Has Defied the Law.'' She has been a criminal defense attorney at the trial and appellate levels for many years and was staff counsel to the California Agricultural Labor Relations Board. Professor Cohn is the U.S. representative to the executive committee of the Association of American Jurists. Professor Cohn received a B.A. from Stanford University and her J.D. from Santa Clara University School of Law. Philippe Sands is a British lawyer. Since January 2001, he has been professor of law at University College London, where he also directs the Center for International Courts and Tribunals. He has also taught in the United States as a visiting professor of law, first at Boston College Law School 1987 to 1991, and then at New York University Law School in 1992 to 1993. He has been a practicing member of the English bar and in 2003 was appointed by the Lord Chancellor as the Queen's Counsel. He regularly appears as counsel before the highest British courts, including the Court of Appeal and the House of Lords. Last month, Vanity Fair magazine published his article ``The Green Light'' on the role of the Administration's most senior lawyers in developing new interrogation techniques for Guantanamo. The article drew on more detailed material from his book ``Torture Team,'' which has just been released this week. Before we begin, it is customary for the Committee to swear in its witnesses. If you would please stand and raise your right hands to take the oath. Do you swear or affirm, under penalty of perjury, that the testimony you are about to give is true and correct to the best of your knowledge, information and belief? Let the record reflect that the witnesses answered in the affirmative. Thank you, and you may be seated. We will now hear from our--and now I will recognize the first witness, Mr. Rivkin, for 5 minutes. TESTIMONY OF DAVID B. RIVKIN, JR., PARTNER, BAKER HOSTETLER, LLP Mr. Rivkin. Thank you very much, Chairman Nadler, Chairman Conyers, Ranking Member Franks, Members of the Committee. It is a pleasure to appear before you and to make some brief remarks. Lynching lawyers or punishing lawyers, while popular in other spheres, including Shakespeare, has never appealed much to the legal profession. But it appears that there are a lot of folks willing to make an exception in this area with regard to the lawyers who advise President Bush and his national security team in the aftermath of 9/11. They have been subject to criticism that, in my view, borders on vilification by a lot of academics, lawyers and pundits. Their legal competence and ethics have been questioned and we even heard some suggestions that they should prosecuted for war crimes. Now I would submit to you, there is no doubt that many legal positions taken by Administration attorneys laying our fundamental legal architecture in this war that the Administration has adopted outrage activists and legal specialists. It should be pointed out briefly that in a series of cases beginning with Hamdi v. Rumsfeld, which is a 2004 Supreme Court case, the Supreme Court has upheld most of the key tenets of this legal architecture, namely that the United States is engaged in a legally recognized armed conflict, that captured enemy combatants are not ordinary criminal suspects. They can be detained without criminal trial during hostilities and if the time comes, they may be punished with a military rather than a civilian justice system. The court has, of course, also required that detainees be given access to an administrative hearing to challenge their classification as enemy combatants and reserve some rights for themselves to be involved in this process, although the precise parameters of that role are still being litigated. Most controversial, of course, have been the Bush Administration's insistence that the Geneva Convention has limited, if any, application to al-Qaida and to--and the Administration's authorization of aggressive interrogation methods, including at least three cases of waterboarding, or simulated drowning. And in several legal memoranda that Chairman Conyers, particularly the 2002 and 2003 opinions mentioned earlier today, written by Mr. Yoo as deputy assistant attorney general for the Office of Legal Counsel, considered whether such methods can lawfully be used. These memoranda, some of which remain classified, probably not for long, explore the outer limits that are imposed on the United States by statute, treaties and customary international law. The goal, clearly, was to find legal means to give United States interrogators the maximum flexibility in interrogations while defining the point at which lawful interrogations ended and lawful torture begins. Now I realize that a number of the Administration's positions have attracted--I am repeating myself--considerable criticisms. The questions that--and this is not surprising--the questions that the Administration's lawyers sought to address, particularly dealing with interrogation, uncomfortable ones that did not sit well by 21st century sensibilities. Many of the legal conclusions reached have struck people as being excessively harsh. Some of those conclusions have been watered down and retracted as a result of internal debate. While I would not defend each and every aspect of the Administration's post September 11 legal policies, I would vigorously defend the merits of the whole exercise of asking difficult legal questions and trying to work through them without frankly not worrying about their reputations or subsequent career. To me, the fact that this exercise was undertaken attests to the vigor and strength of our democracy, of the Administration's commitment to the rule of law in the most difficult circumstances. In this regard, I would point out the--by democratic allies have ever engaged in similar circumstances and that is probing and searching legal exegeses. So I would strongly defend the overarching legal framework chosen by the Administration. I certainly disagree with the proposition that the lawyers can be held accountable, even if they were wrong, with regard to their decisions. I think they acted in good faith. I think the overall legal analysis, while people can disagree with it, does have merits. To me, the effort to go after the lawyers borders, to put it mildly, on madness. These lawyers were not in any chain of command. They had no theoretical or practical ability to direct actions of anyone who engaged in abusive conduct. Moreover, if we go too far down this path, what we are doing, with all due respect, is chilling the ability of any future President to obtain candidly legal advice, which unfortunately is in the post-September 11 environment, is essential. And let's be candid about it. A lot of people claim that the lawyers involved just gleefully and improperly spoke truth to power. I would close by telling you it is a lot safer in a kind political environment and projected political environment to say no to power, to say no to everything because the people who said yes to power have been substantially penalized. A lot of them have not been confirmed. A lot of them are being threatened with prosecutions. Bar associations are investigating. This is not a comfortable position to be in, and that is not what we want to do as far as inculcating the ability, again, on future Presidents and Administrations to get candid legal advice. Thank you. [The prepared statement of Mr. Rivkin follows:] Prepared Statement of David B. Rivkin, Jr. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Nadler. And thank you. I now recognize Mr. Luban for 5 minutes. TESTIMONY OF DAVID J. LUBAN, PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER Mr. Luban. Mr. Chairman, honorable Committee Members, I would like to thank you for inviting me to testimony here today. I am a law professor who specializes in legal ethics, and I expect that that is the reason that I was asked to come and testify. I want to start by recalling for you an episode from Jack Goldsmith's memoirs. Mr. Goldsmith, as you know, headed Justice Department's Office of Legal Counsel in 2003 and 2004. When he joined the office, he reviewed the well-known memos written by Mr. Yoo that Chairman Conyers referred to earlier. In the memoirs, he described the August 1, 2002 memo, which was written for civilian interrogators, in a very striking way. He calls it a ``golden shield.'' And what he meant by ``golden shield'' was that it reassured interrogators that the tactics they were using were legal. And Mr. Goldsmith found himself in the tough position of withdrawing that golden shield memo and the other for military interrogators, the other golden shield memo. He did not withdraw them because he was politically at odds with Mr. Yoo. He was on the same side as Mr. Yoo. He withdrew them because in his words, they had, ``no foundation in prior OLC opinions or in judicial decisions or in any--law.'' The golden shield turned out to be made of thin air. Interrogators were mislead and detainees may have suffered cruel and illegal treatment because of these memos. Now specifically, what was it that was wrong with the golden shield? Well, first, it claimed that inflicting pain isn't illegal unless the pain reaches the level or organ failure or death. It claimed that enforcing laws against authorized interrogators is unconstitutional, and it claimed that you can justify torture as a form of self-defense. It is easy to see that under these standards, practically anything goes. The trouble was that none of this was actually the law. The golden shield ignored Supreme Court precedents, it misrepresented sources, and it pulled the organ failure definition out of a Medicare statute. Mr. Chairman and honorable committee Members, when a government lawyer writes a golden shield, it has to meet the gold standard. We should be confident that the lawyer is describing the law as it really is, not the law according to the lawyer's own pet theories, and not the law as the client would like to be, no matter who the client is. Playing the law straight is the lawyer's basic ethical obligation. I propose two principles for a government lawyer who is writing a legal opinion. First, the opinion should say the same thing that it would even if the lawyer thought that the client wanted just the opposite of what he knows that the client actually wants. That guarantees that you aren't tailoring the opinion to reach some predetermined result. And second, the opinion should be able to stand the light of day. Now obviously, before opinions are publicized, some will have to have sensitive intelligence information about sources or whatever redacted out. But there is absolutely no reason for an opinion interpreting the Constitution or a statute to be a state secret. Now what I am proposing here is nothing novel. Playing the law straight is traditional legal ethics. There is a common misperception that lawyers are always supposed to spin the law in their client's direction. That is simply untrue. It is true that in a courtroom, lawyers are supposed to argue the interpretation of the law that most favors their client. The lawyer on the other side argues the opposite and the judge who hears that strong case put strongly by both sides can reach a better informed decision. But matters are completely different when the lawyer is giving a client advice about what the law means. Now there is nobody arguing the other side and there is no judge to sort it out. That is why legal ethics rules require that a lawyer advise or give an independent and candid opinion of what the law really requires, even if it is not what the client wants to hear. Lawyers sometimes have to say no to clients, and in its prouder days, OLC lawyers have said no to Presidents of the United States. Government lawyers have an awesome responsibility. OLC opinions bind the entire executive branch. No one elected its lawyers to do secret re-writes of the law, and that is the reason why those lawyers, more than others, have to be faithful to the law. Otherwise, the executive branch is governed by secret law written by activist lawyers instead of by Congress, and its governed by a secret constitution, not the Constitution that was written by the Framers. Now I don't want to single out only Mr. Yoo's opinions. In my written testimony, I explained that other government lawyers have written opinions on detainee treatment that also fall far short of the gold standard. I believe this Committee can do a great service by hearing testimony from the lawyers who wrote them and the military and CIA officers who relied on them to sort out the damage that these memos have done. I thank you. [The prepared statement of Mr. Luban follows:] Prepared Statement of David Luban Mr. Chairman and Honorable Committee members, I'd like to thank you for inviting me to testify today. I am not here as an insider with new information to give you. I am a law professor who specializes in legal ethics. I've written textbooks and other books on the subject. As a scholar of legal ethics, I have closely studied the role that government lawyers played in approving harsh interrogations. That is what I am here to testify about. I want to start with a story. Jack Goldsmith headed the Justice Department's Office of Legal Counsel in 2003 and 2004. Last year, he published his memoirs of that period. At one point, he describes an OLC memo on interrogation written before he joined the Office. He calls it a ``golden shield'' for interrogators. What he meant by ``golden shield'' was that interrogators relied on its assurance that the harsh tactics they were using were legal. And Goldsmith found himself in the tough position of withdrawing that Golden Shield as well as a second OLC memo on interrogation. Goldsmith did not withdraw them because he was a political opponent of John Yoo, the lawyer who wrote them. He was on the same side. He withdrew them because, in his words, they had ``no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law.'' \1\ The ``golden shield'' turned out to be made of hot air. Interrogators were misled, and detainees may have suffered cruel and illegal treatment because of these memos. --------------------------------------------------------------------------- \1\ Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration 149 (2007); the reference to the ``golden shield'' is at page 162. --------------------------------------------------------------------------- The Golden Shield found that inflicting physical pain isn't illegal unless the pain reaches the level of organ failure or death; that enforcing laws against authorized interrogators is unconstitutional; and that self-defense can include cruelty to helpless detainees. It's easy to see that under these standards, practically anything goes. The trouble was that none of this is really the law. The memo ignored inconvenient Supreme Court precedents, misrepresented sources, and pulled the ``organ failure or death'' standard out of a Medicare statute on emergency medical conditions. Mr. Chairman and committee members, when a trusted government lawyer writes a ``golden shield,'' it should meet the gold standard. We should be confident that the lawyer has described the law as it really is. Not the law according to the lawyer's pet theories, and not the law as the client would like it to be, no matter who the client is. Lawyers sometimes have to say ``no'' to clients, and in its prouder days OLC lawyers have said no to presidents of the United States. Playing it straight is the lawyer's most basic obligation. I would propose two rules of thumb for a government lawyer writing an opinion on what the law means. First, the opinion should say the same thing it would even if you imagine your client wants the opposite from what you know he wants. That guarantees that you are not tailoring the opinion to reach some predetermined result. Second, the opinion should be able to stand the light of day; otherwise, it's probably wrong. Obviously, before being published, some opinions will have to have sensitive intelligence information redacted out. But there is no reason that an opinion about the meaning of the Constitution or the interpretation of law should be a state secret. There is a common misperception that lawyers are always supposed to spin the law in favor of their clients. That's simply not true. It is true that in a courtroom, lawyers are supposed to argue for the interpretation of law that most favors their client. The lawyer on the other side argues the opposite, and the judge who hears the strongest case from both sides can reach a better decision. But matters are completely different when a lawyer is giving a client advice about what the law means. Now there is nobody arguing the other side, and no judge to sort it out. For that reason, legal ethics rules require the lawyer-advisor to give an independent and candid opinion of what the law really requires.\2\ The ABA emphasizes that ``a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.'' \3\ --------------------------------------------------------------------------- \2\ ABA Model Rules of Professional Conduct, Rule 2.1 (Advisor): ``In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.'' \3\ ABA Model Rules of Professional Conduct, Rule 2.1, cmt. [1]. --------------------------------------------------------------------------- This is common sense. Otherwise, clients might go to their lawyers to say, ``Give me an opinion that says I can do what I want''--and then duck responsibility by saying, ``My lawyer told me it was legal.'' Then we would have a perfect Teflon circle: the lawyer says ``I was just doing what my client instructed'' and the client says ``I was just doing what my lawyer approved.'' Government lawyers have an awesome responsibility. OLC opinions bind the entire executive branch. They have the force of law inside that branch. The idea that unelected lawyers are writing secret legal opinions that spin the law makes a mockery of democratic government. It means the executive branch is governed by a secret constitution--a constitution written by activist lawyers instead of the constitution written by the Framers. Without getting too deeply into technicalities which, quite frankly, only a lawyer could love, let me summarize in a bit more detail just how spun the torture memos were.\4\ First of all, they argue for a near-absolute version of executive power--a version that says the Commander in Chief can override any law in the statute book.\5\ The effect of this argument is that a crime is not a crime if the Commander in Chief orders it. Mr. Yoo paints a picture of an imperial commander in chief beyond the law that would have made the Founding Fathers' jaws drop in astonishment.\6\ In making this argument, Mr. Yoo simply ignored Supreme Court precedents reining in the commander in chief.\7\ In the same way, arguing for a necessity defense to the crime of torture, he ignored an inconvenient Supreme Court case decided just fifteen months earlier--an opinion that cast doubt on whether necessity defenses actually exist in federal law.\8\ And he ignored the Constitution itself: far from granting a ``commander-in-chief override'' of the laws, the Constitution requires the President to ``take care that the laws are faithfully executed.'' --------------------------------------------------------------------------- \4\ Here I am referring to Mr. Yoo's August 1, 2002 memorandum, which went out over Judge Bybee's name, as well as the March 14, 2003 memorandum to Mr. Haynes, which went out over Mr. Yoo's name. The arguments I discuss appear in both memoranda. \5\ The Levin Memorandum did not include this argument, but it also did not withdraw it. And an earlier, published, OLC opinion--presumably still in force--also makes the commander-in-chief override argument. \6\ My own review of the founding era debates reveals deep concern about possible presidential abuse of the standing army. David Luban, On the Commander-in-Chief Power, 60 S. Cal. L. Rev. (forthcoming). Recently, David J. Barron and Martin S. Lederman have exhaustively surveyed historical evidence from the founding of the republic to the present and found no trace of the commander-in-chief override idea until after the Civil War, and very little political or legal precedent for it since then (although the idea won some support within the academy). David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb--Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008); Barron & Lederman, The Commander in Chief at the Lowest Ebb--A Constitutional History, 121 Harv. L. Rev. 941 (2008). Their review of the original understanding appears in the first of these article at pages 772-800. \7\ Thus, his opinions do not mention the leading case Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952)(holding that the President's commander-in-chief power did not permit him to seize steel mills during the Korean War); nor do they mention one of the earliest and clearest cases in which Congress constrained the president's commander-in-chief power and the Supreme Court upheld it: Little v. Barreme, 6 U.S. 170 (1804)(upholding damages against a naval officer who, who during the undeclared ``quasi-war'' against France, had followed President Adams's orders to seize ships sailing from French ports, contrary to Congressional restrictions). \8\ United States v. Oakland Cannabis Buyers' Coop, 532 U.S. 483, 490 (2001)(expressing doubt that a necessity defense exists in federal criminal law absent a statute providing it). --------------------------------------------------------------------------- Second, as I mentioned earlier, he wrenches language from a Medicare statute to explain the legal definition of torture. The Medicare statute lists severe pain as a possible symptom of a medical emergency, and Mr. Yoo flips the statute and uses the language of medical emergency to define severe pain. This was so bizarre that the OLC itself disowned his definition a few months after it became public. It is highly unusual for one OLC opinion to disown an earlier one, and it shows just how far out of the mainstream Mr. Yoo had wandered. This goes beyond the ethical limits for a legal advisor. In fact, even in the courtroom there are limits to spinning the law: ethics rules forbid advocates from making frivolous legal arguments, or failing to disclose adverse legal authority.\9\ --------------------------------------------------------------------------- \9\ See ABA Model Rules of Professional Conduct, Rule 3.1 (``A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.''); Rule 3.3(a)(2) (``A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.'') --------------------------------------------------------------------------- But it would be a mistake to focus only on Mr. Yoo. Mr. Levin's replacement memo also takes liberties with the law. In particular, when the Levin Memo discusses the term ``severe physical suffering'' (which is part of the statutory definition of torture), it states that the suffering must be ``prolonged'' to be severe--and that requirement simply isn't in the statute at all.\10\ Under that definition, of course, waterboarding would not be torture because people break within seconds or minutes. This is a perfect example of a legalistic definition that looks inconspicuous but in reality narrows the definition of torture dramatically. Notice that the quicker a technique breaks the interrogation subject, the less prolonged his suffering will be--so the harsher the tactic, the less likely it is to qualify as ``torture.'' It goes without saying that if Congress had written the statute that way, OLC lawyers would be bound to respect it in their opinion. But it should also go without saying that lawyers ought not to rewrite a statute to include language that is not there. --------------------------------------------------------------------------- \10\ The torture statute does require that severe mental suffering must be prolonged. 18 U.S.C. Sec. 2340(2). But the very fact that Congress included no parallel requirement in the same statute's treatment of physical suffering shows, under ordinary interpretive methods, that it should not be read in. --------------------------------------------------------------------------- Rather than continuing to dissect the arguments of these memos and others, I am attaching one of my publications that does so to this written testimony. It is titled ``The Torture Lawyers of Washington,'' and it is a chapter in my book Legal Ethics and Human Dignity. My main point is that the torture memos take enormous liberties with the law and reach eccentric conclusions. The authors may believe their conclusions represent the law as it should be. But the job of a legal opinion is to advise the client on the law as it is. If that dissuades the client from doing something the client wants to do, so be it. In the words of the ABA, ``Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.'' \11\ The lawyer's job is emphatically not to enable clients to defy law by interpreting it oddly. --------------------------------------------------------------------------- \11\ ABA Model Rules of Professional Conduct, Rule 1.6, cmt. [2]. --------------------------------------------------------------------------- ATTACHMENT [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Nadler. I thank you, and now I recognize Ms. Cohn for 5 minutes. TESTIMONY OF MARJORIE COHN, PROFESSOR OF LAW, THOMAS JEFFERSON SCHOOL OF LAW, PRESIDENT, NATIONAL LAWYERS GUILD Ms. Cohn. Thank you, Mr. Chairman. It is an honor and a privilege to testify on this critical issue. What does torture have in common with genocide, slavery, and wars of aggression? They are all ``jus cogens''; that is Latin for ``higher law,'' or compelling law. This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition. The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions and treaties. When the U.S. ratifies a treaty, it becomes part of American law under the Supremacy Clause of the Constitution. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment says, ``No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency may be invoked as a justification for torture.'' Whether someone is a POW or not, he must always be treated humanely. There are no gaps in the Geneva Convention. The U.S. War Crimes Act and 18 USC Sections 818 and 3231 punish torture, willfully causing great suffering or serious injury to body and health, and inhuman, humiliating or degrading treatment. The torture statute criminalizes the commission, attempt or conspiracy to commit torture outside the United States. The Constitution gives Congress the power to make laws, and the President the duty to enforce them. Yet President Bush, relying on memos by lawyers, including John Yoo, announced the Geneva Conventions did not apply to alleged Taliban and al- Qaida members, but torture and inhumane treatment are never allowed under our laws. Justice Department lawyers wrote memos at the request of Bush officials to insulate them from prosecution for torture. In memos dated August 1, 2002 and March 14, 2003, John Yoo wrote the DOJ would not enforce U.S. laws against torture, assault, maiming and stalking in the detention and interrogation of enemy combatants. What does the maiming statute prohibit? It prohibits someone with the intent to torture, maim or disfigure, to cut, bite or slit the nose, ear or lip, or cut out or disable the tongue or put out or destroy an eye, or cut off or disable a limb, or any member of another person, or throw or pour upon another person any scalding water, corrosive acid, or caustic substance. John Yoo said, ``Just because the statute says, that doesn't mean you have to do it.'' That is a quote. In a debate with Notre Dame Professor Doug Cassel, You said there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person's child. It depends on the President's motive, Yoo said, not withstanding the absolutely prohibition on torture. John Yoo twisted the law and redefined torture much more narrowly than both the torture convention and the U.S. torture statute. Under Yoo's definition, you have to nearly kill the person to constitute torture. Yoo wrote that self-defense or necessity could be defenses to war crimes prosecutions, notwithstanding the torture convention's absolute prohibition on torture in all circumstances. After the August 1, 2002 memo was made public, the DOJ knew it was indefensible. It was withdrawn as of June 1, 2004, and a new opinion, dated December 30, 2004, specifically rejected Yoo's definition of torture and admitted that a defendant's motives to protect national security won't shield him from prosecution. The rescission of the prior memo is an admission by the DOJ that the legal reasoning in it was wrong. But for the 22 months it was in effect, it sanctioned and caused the torture of myriad prisoners. Moreover, as has been stated, the March 14, 2003 memo was later withdrawn by Jack Goldsmith. Yoo and other DOJ lawyers were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable their advice would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have died, many from torture. Yoo admitted recently that he knew interrogators would take action based on what he advised. Dick Cheney, Condolezza Rice, Donald Rumsfeld, Colin Powell, George Tenet and John Ashcroft met in the White House and micromanaged the torture by approving specific torture techniques such as waterboarding, which, contrary to what the Republican Congressman said, I believe it was Mr. Franks, constitutes torture. And that is widely known. It has been a standard torture technique. It has been considered torture since the Spanish Inquisition. Bush admitted he knew and approved of the actions of this Committee, this National Security Council principals committee. They are all liable under the War Crimes Act and the torture statute. Under the doctrine of command responsibility enshrined in our law, commanders all the way up the chain of command to the commander-in-chief are liable for war crimes if they knew or should have known they would be committed by their subordinates and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers. The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression. A select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. The high officials of our government and the lawyers who advise them should be investigated and prosecuted by a special prosecutor independent of the Justice Department for their role in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of our laws. Thank you very much. [The prepared statement of Ms. Cohn follows:] Prepared Statement of Marjorie Cohn What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. Jus cogens is Latin for ``higher law'' or ``compelling law.'' This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition. The United States has always prohibited the use of torture in our Constitution, laws executive statements and judicial decisions. We have ratified three treaties that all outlaw torture and cruel, inhuman or degrading treatment or punishment. When the United States ratifies a treaty, it becomes part of the Supreme Law of the Land under the Supremacy Clause of the Constitution. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, ``No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.'' Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions. He must be protected against torture, mutilation, cruel treatment, and outrages upon personal dignity, particularly humiliating and degrading treatment under, Common Article 3. In Hamdan v. Rumsfeld, the Supreme Court rejected the Bush administration's argument that Common Article 3 doesn't cover the prisoners at Guant namo. Justice Kennedy wrote that violations of Common Article 3 are war crimes. We have federal laws that criminalize torture. The War Crimes Act punishes any grave breach of the Geneva Conventions, as well as any violation of Common Article 3. That includes torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment. The Torture Statute provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States. The U.S. Army Field Manual's provisions governing intelligence interrogations prohibit the ``use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind.'' Brainwashing, mental torture, or any other form of mental coercion, including the use of drugs, are also prohibited. Military personnel who mistreat prisoners can be prosecuted by court-martial under provisions of the Uniform Code of Military Justice. These include conspiracy, cruelty and maltreatment, murder, manslaughter, maiming, sodomy, and assault. In Filartiga v. Pena-Irala, the Second Circuit declared the prohibition against torture is universal, obligatory, specific and definable. Since then, every U.S. circuit court has reaffirmed that torture violates universal and customary international law. In the Paquete Habana, the Supreme Court held that customary international law is part of U.S. law. The Constitution gives Congress the power to make the laws and the President the duty to carry them out. Yet on February 7, 2002, President Bush, relying on memos by lawyers including John Yoo, announced that the Geneva Conventions did not apply to alleged Taliban and Al Qaeda members. Bush said, however, ``As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.'' But torture is never allowed under our laws. Lawyers in the Department of Justice's Office of Legal Counsel wrote memos at the request of high-ranking government officials in order to insulate them from future prosecution for subjecting detainees to torture. In memos dated August 1, 2002 and March 18, 2003, former Deputy Assistant Attorney General John Yoo (Jay Bybee, now a federal judge, signed the 2002 memo), advised the Bush administration that the Department of Justice would not enforce the U.S. criminal laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants. The federal maiming statute makes it a crime for someone ``with the intent to torture, maim, or disfigure'' to ``cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person.'' It further prohibits individuals from ``throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance'' with like intent. Yoo said in an interview in Esquire that ``just because the statute says--that doesn't mean you have to do it.'' In a debate with Notre Dame Professor Doug Cassell, Yoo said there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person's child. In Yoo's view, it depends on the President's motive, notwithstanding the absolute prohibition against torture in all circumstances. The Torture Convention defines torture as the intentional infliction of severe physical or mental pain or suffering. The U.S. attached an ``understanding'' to its ratification of the Torture Convention, which added the requirement that the torturer ``specifically'' intend to inflict the severe physical or mental pain or suffering. This is a distinction without a difference for three reasons. First, under well-established principles of criminal law, a person specifically intends to cause a result when he either consciously desires that result or when he knows the result is practically certain to follow. Second, unlike a ``reservation'' to a treaty provision, an ``understanding'' cannot change an international legal obligation. Third, under the Vienna Convention on the Law of Treaties, an ``understanding'' that violates the object and purpose of a treaty is void. The claim that treatment of prisoners which would amount to torture under the Torture Convention does not constitute torture under the U.S. ``understanding'' violates the object and purpose of the Convention, which is to ensure that ``no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.'' The U.S. ``understanding'' that adds the specific intent requirement is embodied in the U.S. Torture Statute. Nevertheless, Yoo twisted the law and redefined torture much more narrowly than the definitions in the Convention Against Torture and the Torture Statute. Under Yoo's definition, the victim must experience intense pain or suffering equivalent to pain associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions will likely result. Yoo wrote that self-defense or necessity could be used as a defense to war crimes prosecutions for torture, notwithstanding the Torture Convention's absolute prohibition against torture in all circumstances. There can be no justification for torture. After the exposure of the atrocities at Abu Ghraib and the publication of the August 1, 2002 memo, the Department of Justice knew the memo could not be legally defended. That memo was withdrawn as of June 1, 2004. A new opinion, authored by Daniel Levin, Acting Assistant Attorney General Office of Legal Counsel, is dated December 30, 2004. It specifically rejects Yoo's definition of torture, and admits that a defendant's motives to protect national security will not shield him from a torture prosecution. The rescission of the August 2002 memo constitutes an admission by the Justice Department that the legal reasoning in that memo was wrong. But for 22 months, the it was in effect, which sanctioned and led to the torture of prisoners in U.S. custody. John Yoo admitted the coercive interrogation ``policies were part of a common, unifying approach to the war on terrorism.'' Yoo and other Department of Justice lawyers, including Jay Bybee , David Addington, William Haynes and Alberto Gonzalez, were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable that the advice they gave would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have died, many from torture. ABC News reported last month that the National Security Council Principals Committee consisting of Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture of terrorism suspects by approving specific torture techniques such as waterboarding. Bush admitted, ``yes, I'm aware our national security team met on this issue. And I approved.'' These top U.S. officials are liable for war crimes under the U.S. War Crimes Act and torture under the Torture Statute. They ordered the torture that was carried out by the interrogators. Under the doctrine of command responsibility, used at Nuremberg and enshrined in the Army Field Manual, commanders, all the way up the chain of command to the commander in chief, can be liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers. But Yoo and the other Justice Department lawyers who wrote the enabling memos are also liable for the same offenses. They were an integral part of a criminal conspiracy to violate our criminal laws. Yoo admitted in an Esquire interview last month that he knew interrogators would take action based on what he advised. The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression. A Select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. The high officials of our government and their lawyers who advised them should be investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their crimes. John Yoo, Jay Byee, and David Addington should be subjected to particular scrutiny because of the seriousness of their roles in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of domestic and international law. ATTACHMENT [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Nadler. Thank you, and now the Chair recognizes Mr. Sands for 5 minutes. TESTIMONY OF PHILIPPE SANDS, PROFESSOR OF LAW, UNIVERSITY COLLEGE LONDON, BARRISTER, MATRIX CHAMBERS Mr. Sands. Mr. Chairman, honorable Members of the Committee, it is my privilege an honor to appear before this Committee to address your questions on the subject of Administration lawyers and interrogation rules. As professor of law at University College of London and as a practicing member of the English bar, it may be said that I appear before you as an outsider. I hope that you will bear in mind that I am from a country that is both a friend and an ally of the United States, and one that shares this country's abiding respect for the rule of law. I am also from a country which was on the front line of terror in the 1970's and the 1980's, a period I personally remember. I have come to know America very well over more than two decades since I was first a visiting scholar at Harvard Law School and then taught over more than 15 years at Boston College Law School and then New York University Law School. I am married to an American, I am deeply proud of the fact that my three children share British and American nationality. Last month I published an article in Vanity Fair magazine, ``The Green Light,'' a copy of which is attached to my statement. It contains material drawn from my new book, ``Torture Team,'' that is published this month by Palgrave Macmillan. The article, and in more detail, the book, tell an unhappy story--the circumstances in which the United States military, not the CIA, was allowed by the hand of Secretary of Defense Donald Rumsfeld to abandon President Lincoln's famous disposition of 1863 that ``military necessity does not admit of cruelty.'' On the 2nd of December 2002, Secretary Rumsfeld authorized the use of new and aggressive techniques of interrogation on detainee 063. It is by now a famous memorandum, the one in which he wrote, ``I stand for 8 to 10 hours a day, why is standing limited for 4 hours?'' Approval was recommended by Mr. Rumsfeld's general counsel, William J. Haynes, II. The memo became public in June 2004 as the Administration argued that the appalling pictures of abuse at Abu Ghraib were unconnected to Administration policy. My book tells the story of that memo, the circumstances in which it came to be written, the circumstances in which is came to be rescinded. To write the book, I journeyed around America. I met with as many of the people who were directly involved as I possibly could. And I met with a very great number. I was treated with respect and with hospitality for which I remain very grateful. Over hundreds of hours I conversed or debated with many of those most deeply involved in that memo's life. They included, for example, the combatants' commander and his lawyer at Guantanamo, Major General Dunleavey and Lieutenant Colonel Beaver; The commander of United States Southern Command in Miami, General Hill; the Chairman of the Joint Chiefs of Staff, General Myers; the Undersecretary of Defense Mr. Feith; the General Counsel of the Navy Mr. Mora; and the Deputy Assistant Attorney General at DOJ Mr. Yoo. And I met twice with Mr. Rumfeld's general counsel at the Department of Defense, Mr. Haynes, who along with Mr. Addington, took a central role on the key issues. From these and many other exchanges, I pieced together what I believe to be a far truer account than which has been presented by the Administration. I met men and women of integrity and decency and professionalism, obviously doing the very best they could in difficult circumstances. Sadly, not everyone I met fell into that category. From these conversations, it became clear to me that the Administration has spun a narrative that is false. It claims that the impetus for the new interrogation techniques came from the bottom up. That is not true. The abuse was a result of pressures and actions driven from the very highest levels of the Administration. The Administration claims that it simply followed the law. My investigation indicated that driven by ideology, the Administration consciously sought legal advice to set aside international constraints on detainee interrogations. The Administration relied on a small number of political appointees, lawyers with no real background in military law, with extreme views on executive power and, frankly, with an abiding contempt for international rules like the Geneva Convention. These are rules that the United States has done more than any country to promote and put in place. As a result of these actions by the Administration, war crimes were committed. I have no doubt than Common Article III of the Geneva Conventions was violated, alongside with various provisions of the 1984 Convention prohibiting torture. The specter of war crimes was raised by the United States Supreme Court by Justice Anthony Kennedy in the 2006 judgment in the case of Hamdan v. Rumsfeld, a case on which I noted Mr. Rivkin was conspicuously silent. That judgment corrected the illegality of President Bush's determination that none of the detainees at Guantanamo had any rights under Geneva. Mr. Chairman, honorable Members of the Committee, the story I uncovered is an unhappy one. It points to the early and direct involvement of those at the highest levels of government, often through their lawyers, the individual on whom I largely focused. In June 2004, after the scandal of Abu Ghraib broke, and the first of August 2002 Bybee/Yoo torture memo became public, Mr. Gonzales and Mr. Haynes appeared before the media to claim that the Bush Administration had not authorized such abuse. Contrary to the impression given by the Administration, repeated by Mr. Haynes when he appeared before the Senate Committee on the Judiciary in July 2006, his involvement and that of Secretary Rumsfeld began well before that stated in the official version. Mr. Haynes had visited Guantanamo together with Mr. Gonzales and Mr. Addington, discussed interrogations, perhaps even viewed an interrogation or more, and then recommended that the U.S. military should abandon its tradition of restraint. My conclusion on the basis of large numbers of interviews and documents is that this is not only a story of crime, it is also a story of cover-up to protect the most senior members of the Administration from the consequences of the illegality that has stained this country's reputation. Mr. Chairman, no country has done more to promote the international rule of law than the United States. Uncovering the truth is a first step in restoring this country's necessary global leadership role, in undoing the damage caused, and in providing a secure and effective basis for responding to the very real threat of international terrorism. I can put it no better, sir, than George Kennan, the great American diplomat. In 1947, he wrote an anonymous telex that issued this warning in relation to a perceived Soviet threat. ``We must have courage and self-confidence to cling to our own methods and conceptions of human society. The greatest danger that can befall us is that we shall allow ourselves to become like those with whom we are coping.'' I thank you, sir, Members of the Committee, for allowing me the opportunity to make this brief introductory statement. [The prepared statement of Mr. Sands follows:] Prepared Statement of Philippe Sands Mr. Chairman, Honourable Members of the Committee, it is my privilege and honour to appear before this Committee to address your questions on the subject of Administration Lawyers and Administration Interrogation Rules. As Professor of Law at the University of London, and as a practising member of the English Bar, it may be said that I appear before you as an outsider. I hope you will bear in mind that I am from a country that is friend and ally, one that shares this country's abiding respect for the rule of law. I have come to know America well over more than two decades, since I was a visiting scholar at Harvard Law School in the early 1980's, and then teaching at Boston College Law School and New York University Law School. I am married to an American. I am proud of the fact that my three children share American and British nationality. Last month I published an article in Vanity Fair, The Green Light, a copy of which is attached. It contains material drawn from my new book--Torture Team--that is published this month by Palgrave Macmillan. The article and--in more detail--the book tell an unhappy story: the circumstances in which the United States military was allowed, by the hand of Secretary of Defense Donald Rumsfeld, to abandon President Lincoln's famous disposition of 1863, that ``military necessity does not admit of cruelty''. On December 2nd, 2002, Secretary Rumsfeld authorised the use of new and aggressive techniques of interrogation on Detainee 063. It is by now a famous memo, the one in which he wrote: ``I stand for 8-10 hours a day. Why is standing limited to 4 hours?'' Approval was recommended by his General Counsel, William J Haynes II. The memo became public in June 2004, as the Administration argued that the horrible pictures of abuse at Abu Ghraib were unconnected to Administration policy. My book tells the story of that memo. The circumstances in which it came to be written, and then rescinded. To write the book I journeyed around America, meeting with as many of the people who were directly involved as possible. I met with a great number, and was treated with a respect and hospitality for which I remain very grateful. Over hundreds of hours I conversed or debated with many of those most deeply involved. They included: the combatant commander and his lawyer at Guantanamo (Major General Dunlavey and Lieutenant Colonel Beaver); the Commander of US Southern Command (General Hill); the Chairman of the Joint Chiefs of Staff (General Myers); the Undersecretary of Defense (Mr Feith); the General Counsel of the Navy (Mr Mora); and the Deputy Assistant Attorney General at DoJ (Mr Yoo). I met twice with Mr Rumsfeld's General Counsel at DoD (Mr Haynes), who along with Mr Addington took a central role on the key decisions. From these and many other exchanges I pieced together what I believe to be a truer account than that which has been presented by the Administration. I met men and women of integrity and decency and professionalism, obviously doing the best they could in difficult circumstances. Not everyone, however, fell into that category. From these conversations it became clear to me that the Administration has spun a narrative that is false, claiming that the impetus for the new interrogation techniques came from the bottom-up. That is not true: the abuse was a result of pressures and actions driven from the highest levels of government. The Administration claims that it simply followed the law. My investigation indicated that-- driven by ideology--the Administration consciously sought legal advice to set aside international constraints on detainee interrogations. The Administration relied on a small number of political appointees, lawyers with no real background in military law, with extreme views on executive power, and with an abiding contempt for international rules like the Geneva Conventions. These are rules that the United States has done more to promote and put in place than maybe any other country. As result, under international law war crimes were committed: I have no doubt that Common Article 3 of the Geneva Conventions was violated, alongside provisions of the 1984 Convention prohibiting Torture. The spectre of war crimes was raised by US Supreme Court Justice Anthony Kennedy, in the 2006 judgment in Hamdan v Rumsfeld. That judgment corrected the illegality of President Bush's determination that none of the detainees at Guantanamo had any rights under Geneva. Mr Chairman, Honourable Members of the Committee, the story I uncovered is an unhappy one. It points to the early and direct involvement of those at the highest levels of government, often through their lawyers, the individuals on whom I largely focused. In June 2004, after the scandal of Abu Ghraib broke, and the August 1, 2002 Bybee Torture Memo became public, Mr Gonzalez and Mr Haynes appeared before the media to claim that the Bush Administration had not authorized such abuse. Contrary to the impression given by the Administration, repeated by Mr Haynes when he appeared before the Senate Judiciary Committee in July 2006, his involvement (and that of Secretary Rumsfeld) began well before that stated in the official version. Mr. Haynes had visited Guantanamo, together with Mr Gonzales and Mr Addington, discussed interrogations, and then recommended that the U.S. military abandon its tradition of restraint. My conclusion, on the basis of interviews and documents, is that this is a story not only of crime but also of cover- up, to protect the most senior members of the Administration from the consequences of the illegality that has stained America's reputation. Mr Chairman, no country has done more to promote the international rule of law than the United States. Uncovering the truth is a first step in restoring this country's necessary, leadership role; in undoing the damage caused; and providing a secure and effective basis for responding to the very real threat of terrorism. I can put it no better than George Kennan, the great American diplomat. In 1947 he wrote a telex that issued this warning in relation to a perceived Soviet threat: ``[W]e must have courage and self-confidence to cling to our own methods and conceptions of human society. [T]he greatest danger that can befall us . . . is that we shall allow ourselves to become like those with whom we are coping.'' I thank you for allowing me the opportunity to make this brief introductory statement. ATTACHMENT [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Nadler. I thank you and I thank the other witnesses. The Chair will now recognize himself for 5 minutes for the purpose of questioning the witnesses. Professor Luban, you have written that the lawyers advising the Bush Administration on the legality of U.S. interrogation policies, including Alberto Gonzales, David Addington, Jay Bybee and John Yoo, showed a ``willingness to bend or break the law to make their client's wishes come true.'' Can you give a couple of concrete examples of ways that the law was bent or broken by their advice? Mr. Luban. Yes. A couple of examples would be this: Mr. Yoo's two memos, the March 14, 2003 and August 1, 2002, both make an extraordinary claim of executive power, which is that the President, acting as Commander-in-Chief, can simply override any statute in the book, including the statute on torture. Now a lawyer is supposed to present adverse legal authority as well as legal authority that supports the view. And here there are leading Supreme Court precedents that just say the opposite, the famous Youngstown case. But there was an 1804 case called Little v. Barreme from the quasi war with France in which Congress had restricted what the navy could do. President Adams ordered a captain to violate that restriction, and the Supreme Court said that the President's order was not a shield against liability. Those cases aren't even mentioned. That is the kind of thing that is a violation of the craft value that lawyers have. Second would be this drawing of the definition of torture from a Medicare statute. The Medicare statute says, quite common sensically, that severe pain can be the symptom of a medical emergency. Mr. Yoo turns this around and says that unless the pain is organ failure or death, or a level associated with organ failure or death, it is not severe. When Mr. Levin withdrew that opinion and replaced it with another, he said, quite plausibly, that Medicare statute wasn't trying to define severe pain. And if you took that literally, then you would think that, for example, if a dentist's drill hits a root and you jump out of the chair, well you know that is not organ failure or death, so that is not severe pain. And that simply violates common sense. Mr. Nadler. Thank you. And in your article, ``Liberalism, Torture and the Ticking Time Bomb,'' you say that it would be a dramatic mistake to suppose that the Justice Department has abandoned its views merely because it has disowned the Bybee memo. Can you briefly explain what you mean? I mean, why you think it is clear that the Justice Department has not abandoned its views? Mr. Luban. Yes, for a couple of reasons. After the Bybee memo was withdrawn, then the Levin memo was substituted, the Levin memo says in a footnote that all of the techniques that had been approved under the Bybee memo are still approved. As for the commander-in-chief override argument, the Levin memo doesn't disown it. It says, well, there is no need for us to discuss it. As for the criminal defenses in the Bybee memo, it doesn't reject those criminal defenses, it just says, well, since we don't torture, there is no need to discuss those. And finally, one place that it completely stretches the law is in its definition of what severe physical suffering is. It states that severe physical suffering has to be prolonged. Now if you look at the statute, that isn't in there at all. It was mentioned by Congressman Franks, I believe, that everybody who has been waterboarded broke in less than a minute, and it looks as though that language would say, well, therefore waterboarding can't be severe physical suffering because it wasn't prolonged. Mr. Nadler. Thank you. Mr. Cohn, does the Military Commissions Act give officials of the Bush Administration immunity from prosecution under the War Crimes Act? Ms. Cohn. No. While we would argue that it tends to immunize those complicit in torture from criminal or civil liability is not permitted under the doctrine of jus cogens, the military can be protected---- Mr. Nadler. Under the doctrine of what? Ms. Cohn. Jus cogens, Latin for ``the highest compelling law,'' like slavery, genocide and wars of aggression. But no, the Military Commissions Act does not provide immunity from prosecution. What the provision does is to provide that good faith reliance on the advice of counsel would be a defense to war crimes prosecutions. But it could be proved that they were not acting in good faith reliance on the advice of counsel for several reasons. Number one, the advice was inherently and flagrantly not a good faith interpretation of the law. Number two, they all knew that, and that is why they performed this so-called analysis in secret, avoiding all the normal processes that they usually use to arrive at these decisions. And number three, they lied about the matter, both to the people within the Administration and the public, making numerous false exculpatory statements which can be considered evidence of guilt. So the Administration's effort to avoid accountability under the Military Commissions Act is further evidence of their guilt and can be used as an---- Mr. Nadler. Fine. Now one more question before my time runs out. In the attachment to your testimony, you outline the case for criminal prosecution for the lawyers involved in the formulation of the interrogation policies at issue. From what U.S. laws and precedent do you draw your conclusions? In other words, under American law, how could Administration lawyers face criminal liability for their counsel? Ms. Cohn. We have statutes that prohibit conspiracy. For example, the torture statute, which is a U.S. law, prohibits the conspiracy to commit torture, and it would be, I think, not difficult to show that these lawyers were part of a conspiracy, a common plan. In fact, John Yoo said, we had a common strategy here. They got together on it. So I think that it clearly could come under conspiracy laws that they would be part of a criminal conspiracy to violate U.S. laws against torture. Mr. Nadler. Thank you. Just one further question. How long is the statute of limitations on these crimes? Ms. Cohn. The statute of limitations under jus cogens prohibition is never. There is no statute of limitations at all for violation of a jus cogens norm. Mr. Nadler. Thank you. My time is expired. I will now recognize for 5 minutes the distinguished Ranking Member of the Subcommittee, the gentleman from Arizona. Mr. Franks. Well, thank you, Mr. Chairman. Professor Cohn-- forgive me, Mr. Luban, I was kind of moved by your comments relating to activist lawyers, because I happen to agree with you that lawyers shouldn't spin the law to reach a predetermined conclusion that their definition of a statute should be the same whether or not they were giving this to an opponent or to a client. And I agree with that. In fact, with all due respect here, we have been hoping on the Republican side that we could get our Democrat friends to apply those standards to judges, because we think that is very, very important that the law should stand as it is written, not how interpreted in some way to twist it. So I thought I would throw that out, and I will ask you something a little bit more of a contentious nature. You criticized how the term ``severe pain''----[Laughter.] Mr. Franks. You know how ``severe pain'' was defined in the Federal Anti-Torture Statute. Pretend that we are clients here of yours and that we are asking you for the bottom line here. How would you define that term, ``severe pain,'' as written in the Federal Anti-Torture Statute? Mr. Luban. The main point that I would make is that severe pain is not a technical legal term of art. It is a common sense term. As you might well imagine there is not a huge and rich jurisprudence on the boundaries of torture. Mr. Franks. But you couldn't give us a definition of your own in that regard? Mr. Luban. I think that at least one of the things that I would say is that it is the kind of pain that all of us would recognize as severe. For example, the dentist's drill, a broken bone, pain of that level. The pain--if we are talking about waterboarding, I think we are talking not about pain so much as suffering, the feeling of pint after pint of water pouring down your throat. You can only define these things by example and by appealing to subjective experience. And I would like to say that when Mr. Yoo says I was trying to get specific, I don't see anything more specific and less vague about saying the pain associated with organ failure or death. If you ask me, well, what is that? I would say, well, I actually don't know. Haven't been there. Mr. Franks. Well, that is why we were trying to ask you to define it. Ms. Cohn, just to respond related to waterboarding being torture, first of all, I want to point out that the waterboarding that the three terrorists that were in my testimony was done under very, very controlled circumstances for a very short period of time. But as you know, our soldiers are as a matter of a training, some of our special forces and other soldiers are waterboarded to train them. Now if indeed that is torture, do you not think that we shouldn't be doing that? I mean, to torture our own soldiers. So that is why I make the distinction between waterboarding and torture. The question I have for you is, if you were writing a statute on severe interrogations, or interrogations of any kind that would involve terrorists who may have information that would save innocent American lives and refuse to give that information, what kinds of techniques would you think should be--what would you recommend to the government to use? What kind of techniques, if they were unwilling to voluntarily give information and if the information were critical to saving American lives, what could we do? What is the severest thing that we could do to get that information? Ms. Cohn. Thank you, Mr. Franks, for that question. First of all, no, I don't think we should be torturing our own soldiers, or anyone else for that matter. Torture is illegal when practiced against anyone. What kind of statute would I write? I would write a statute that says that when you are interrogating a prisoner and you want to get information from him, you treat him with kindness, compassion and empathy. You gain his trust, you get him to like and trust you and then he will turn over information to you. Torture does not work. And for example, Khalid Sheikh Mohammed and Abu Zabeda were tortured so severely that they confessed to al-Qaida targeting just about every building in the world. Their information is virtually useless because of the torture. People will say anything to get the torture to stop. And we lost rich sources of intelligence because of that. And contrary to what you said, there are reports that say that Abu Zabeda did not lead the Americans to Khalid Sheikh Mohammed, that someone was responding to a $25 million reward and walked in. And also, do you believe that when the Administration says its waterboarding only lasts---- Mr. Franks. Mr. Chairman, Ms. Cohn, my time is about gone here. Ms. Cohn. I don't believe that. Mr. Franks. I appreciate your comments here. I just have to say that to think that terrorists committed to the destruction of the western world, if you be nice to them, we will respond favorably. I think that is naive and I think al-Qaida would love for you to write that statute. And I say that not disrespectfully toward you. Mr. Rivkin, do you have any closing comments on either of these testimony? Mr. Rivkin. Very briefly. I certainly do not agree with Professor Cohn. I think that it is a moral cop-out to argue that coercive techniques do not work because if they don't work, there will be nothing to debate. Coercive techniques do work. There is plenty of evidence to that effect. It doesn't mean that anything goes, but what we need to have as a society is a serious dialogue along the lines of the question that you just asked, Congressman Franks, what is severe? And let me tell you, I have debated this issue ad nauseum more than I care to. And most of the critics do not want to go down the path of defining what is severe. And let's stipulate that maybe John Yoo's definition is a little narrow, but nobody wants to come up with any, any techniques. And what is particularly appalling to me is, if you at least somebody who wants to abolish all forms of coercion in the public sphere, be it in boot camp for juvenile offender, be it in a police station, there is plenty of psychological coercion going on. Hopefully not physical, but plenty of psychological coercion going on in treatment of our own soldiers. But nobody cares about it. What the critics mostly want is to create only one portion of the public sphere that is coercion free, that is interrogating captured al-Qaida and Taliban detainees. And that to me makes absolutely no moral or legal sense. And by the way, the point that Professor Luban made about the appellation protracted being used with regard to mental suffering and not physical, with all due respect, there are plenty of cases that stand for the proposition that that does not necessarily prevent the executive from construing the statute in a way that has a temporal element with regard to the physical pain and suffering. Does any normal person disagree that there is at least, in some circumstances, a temporal element? That for example, the definition of severe pain and suffering that, for example, a stress position of 10 minutes is not mildly annoying. For 10 hours, it would be very painful. For 24 hours, it would be tortuous. So of course there is that. So the notions it will proudly proclaim in the Congress, put the word ``protracted'' here. Okay, actually, the Latin term for that is expresso unius exclusio alterius. There is plenty of case law that says that doesn't necessarily mean that you cannot construe it this way. Mr. Nadler. Thank you. The gentlemen's time has expired. I will now recognize for 5 minutes the distinguished Committee Chairman, Mr. Conyers. Mr. Conyers. Thank you, Mr. Chairman. I want to commend the witnesses. This is an excellent examination of torture, the documents controlling them, how they were created, and who wrote them. Namely, we now know, lawyers. So this is a good way to begin to get to the truth. And I think that we need to look at a number of other witnesses, some who have already agreed to come to our next hearing, some who will need more prodding through the legislative, coercive process, non-violent, of course. But I didn't think I would ask you a question, Attorney Rivkin, but do you have a definition of pain that you would like to leave with us? Because we are trying to find out. I am going to be working on that, and I would like to keep your admonitions in mind. Mr. Rivkin. Chairman Conyers, I appreciate the question. Actually, I would like to reflect on it and maybe submit something in writing, because these are not easy decisions. And I also would like to point out that hopefully, just because something is legal does not mean that you do it as a matter of policy. One of my problems is people commingle the legal box and the policy box. The legal box can be yay-wide, doesn't mean that the policy box has to follow. Mr. Conyers. Well, let's continue to work on this together. You are a frequent witness anyway. Mr. Rivkin. Thank you. Mr. Conyers. Philippe Sands, we welcome you again here from overseas. What do you make of this, I think, very commendable beginning of the inquiry that has gone on about this. Marjorie Cohn has given us a to-do list for the Committee, which we appreciate. And I think that is a good start. And I would like to ask you and any other of the witnesses, other things that they pursue and means of inquiry that we might engage in. Mr. Sands. Thank you very much for that question. Mr. Nadler. Sir, would you turn on your mic, please? Mr. Sands. Thank you very much for that question, sir. I think the country, if I may say, finds itself at an important moment, because I think it is in everyone's interest that on this issue there is a degree of uniting and moving on, particularly in relation to the military interrogations that have, to the best of my knowledge, come to an end in terms of their abusive characteristics, although there is the issue of the CIA stuff. Nevertheless, looking back to history is important as part of that process of moving on. And the Military Commissions Act of 2006 in that regard is extremely unhelpful, because whatever it purports to do in relation to immunization of lawyers or anyone else involved, it does sort of freeze the process of investigation. It seems to me that to enable the United States to move on, and its allies with it, it would be extremely useful to throw the spotlight onto what actually happened during 2002. I note from the exchange of letters, sir, between you and the Office of the Vice President that Mr. Addington indicates that he may be willing to come to address certain matters. One of the matters that he addresses, or says that he would possibly be willing to come, is to seek material information on ``personal knowledge of key historical facts.'' Those have not yet emerged in a forum such as this. Mr. Addington, in the story I looked at, appears throughout the story. He was deeply involved in the decision to get rid of Geneva. He was deeply involved in the decision to move to aggressive interrogation, including through the DOJ memos. He visited Guantanamo at the end of September 2002 and met with Major General Dunleavey and Lieutenant Colonel Beaver. And the accounts that I received from them on the record, as I describe in the book, is that he was, in effect, the leader of the pack, and he was the person who was driving through the policy. And I think questions and issues that go to that role may be extremely important. He was closely assisted by his friend and confidante, Mr. Haynes. When the request that essentially had been imposed from the top, but then made its way back up to the Pentagon via General Hill in SOUTHCOM, made its way to General Myers, I describe in the book how General Myers' lawyer, Jane Dalton, who I think you might also profitably talk to, described to Alberto Mora how the assessment that they would have liked to have made in Joint Chiefs never happened because Jim Haynes intervened to short-circuit the process. I think it would be useful, sir, to focus on the facts. And with great respect, I don't think there is a great deal of utility to teasing out the issues of what actually constitutes severe mental pain and suffering. There is a huge jurisprudence in American law. I am not expert on that. I do know about the jurisprudence in international law. And one thing that one learns is you treat each case on its own merits. You can't come up with abstract definitions. And that has got to be the right approach. Mr. Conyers. We haven't even hardly touched upon, in conclusion, the whole notion of the hostility toward international law and working as a family of nations at the global level to try to turn back some of the violence that characterizes the 20th and 21st centuries. And so this has been enormously helpful for me and we would invite all of our witnesses to stay in touch with us, feel free to communicate back and forth, so that we can really leave a serious record, not a partisan ranting type thing, but something that can be examined not only in the near future for all time. We are setting some benchmarks here, where which way the most powerful Nation in the world will treat these kinds of violations of human dignity that have created so much unrest, so much desperation, and in the end, so much violence in the world. And I thank you all very much. Mr. Nadler. I thank the gentleman. The Chair now recognizes for 5 minutes the gentleman from Indiana. Mr. Pence. Thank you, Mr. Chairman. And I want to thank all of our witnesses for your testimony. Mr. Rivkin, a quick question for you, and then I wanted to ask Mr. Sands a question. The Wall Street Journal pointed out in a recent editorial the Democrat majority in Congress ``wants the U.S. interrogation policies made public, but the reason to keep them secret is so enemy combatants can't use them as a resistance manual.'' They went on to write, ``If they know what is coming, they can psychologically prepare for it. We know al-Qaida training often involves its own forms of resistance training, and publicly describing the rules offers our enemies a road map for resistance.'' Mr. Rivkin, why would we want to risk offering our enemies a road map for resistance? Can you think of any good reason? Are you concerned about that? Mr. Rivkin. It is of some concern, Congressman Pence. In fact, it is an excellent point. There is a degree of irony here that there may be lesser forms of coercion that if unexpected, particularly psychological coercion may be quite efficacious, sort of vitiating, or at least minimizing the pressure to use the more difficult things. But if you lay it out in advance, of course they are going to train for it. And again, the whole essence of the people we are dealing with is precisely because they are unlawful combatants, they view interrogations as a continuation of the fight, and happy the way it is with lawful combatants and conscript soldiers who are quite happy to be away from combat and sitting in a prisoner of war camp enjoying life. So there is a huge problem. And I think the critics have to acknowledge that we as a society can come up with any result as long as the debate is honest, as long as we don't propagate myths that coercive techniques don't work, or there is no cost to disclosure of sensitive information along the lines. Again, the American people may decide in the end more or less along the lines of what my good friend Professor Sands says, which is zero coercion. But let's decide it in a way that is accountable so we can revisit this decision if unfortunately bad things happen down the road, instead of doing it in a way that is not transparent. Mr. Pence. Professor Sands, I appreciated your testimony very much. Whether I agree with your conclusions or not, I appreciate your yeoman's work. David Rivkin and Lee Casey have written recently, ``Some, of course, have suggested that relationship building interrogation techniques are preferable, and even more reliable I the long run than stress methods. They raise the question, though, what about the hard cases, like Khalid Sheikh Mohammed, who was a mastermind of the September 11 attacks in this country? How would you respond to the observation that Khalid Sheikh Mohammed probably is not susceptible to relationship building methods. And I can tell by your grin, you acknowledge the somewhat absurd thought that you could move people who have masterminded the death of more than 3,000 Americans by Oprah Winfrey methods. But if you could respond to that question, I mean, how would you have solved, how do you think the United States should seek to gain information from a mastermind like Khalid Sheikh Mohammed if he refuses to answer questions voluntarily when additional American lives could be on the line with information that he is refusing to provide? Mr. Sands. Thank you, sir. I very much appreciate that question. That question seems to go to heart of many of the issues that we are discussing. I am not sure how thrilled Oprah Winfrey would be to the characterization of her methods in that particular way. I think I have got to say by way of outset, I come from a country which spent 15 years involved in facing terrorism on the streets. I grew up in a country where my mother wouldn't let me go shopping on Oxford Street because bombs were going off at times on a weekly basis. And that experience has had a very profound effect on how the United Kingdom addresses precisely the question that you have addressed. And the thinking in the British military, and the thinking across the board politically, it is really not a left-right issue. It is a broad consensus in the United Kingdom is that coercion doesn't work. That the experience of the United Kingdom, which moved in the early 1970's to use techniques that were very similar to those that were used on Detainee 063, hooding, stress positions, humiliation, and so on and so forth, didn't work. The view is taken in the United Kingdom that it extended the conflict with the IRA probably by between 15 and 20 years. Because what it did was that it outraged the community that was associated with those who were subject to these particular techniques, and it created a breeding ground, a recruiting ground which made it impossible for the British government, if you like, to persuade those who were associated with the IRA, but had not crossed the line into use of violence, to think another way. And so in answering your question, I am profoundly influenced by that experience. And one of the great regrets that I have is that the Administration never seemed to turn for advice to its closest allies and ask them what was your experience when you faced a similar situation? And the answer they would have got from whatever government it was, Conservative, Labour, is don't go down the route, one, of using coercion, and two, don't call it a war on terror. Why? Because by calling it a war on terror, you transform criminals into warriors, and you create a context in which they are able to recruit in their struggle. And if you noticed, neither Prime Minister Blair nor Prime Minister Brown, nor, indeed, the Conservative leader of the opposition, ever uses the phrase ``war on terror'' because of the experience with the IRA. Now in relation specifically to your question, there are hard cases. I did smile because, frankly, the image that weeks and weeks of rapport building with KSM is somehow going to produce results is counterintuitive. But the reality is, we don't know. And I spoke in my investigation to a lot of interrogators, military, FBI who basically said coercion doesn't work. You get information that they want to give you that they think is going to stop the pain from happening. And I listened just yesterday to a remarkable tape that I recommend to all of the Members of the Committee to listen to of Senator McCain, a man who has first-hand experience of this situation. A brave man describing in a 1997 interview with Dan Rather how he broke and owned up and signed a confession to having personally targeted men and women, children in North Vietnam because he was facing such conditions that he could no longer cope. And that, I think, is the reality. I firmly come to the view that coercion doesn't work, and it has such a negative backlash in terms of the consequences that the better price to pay is not to go down that route at all. Mr. Pence. Mr. Chairman, with your indulgence, could I have Mr. Rivkin respond to that as well? He was trying to cut in. Mr. Rivkin. Thank you. Very briefly. I don't doubt Professor Sands' sincerity, but a couple of points. First of all, I personally spent a fair amount of time with various British colleagues who take a different interpretation of what happened in the past. And just like we have debates about Vietnam, they disagree. A more cynical interpretation is that the British efforts in 1971 and 1972 squeezed out the names of approximately 700 IRA operatives and were used as the body of knowledge to follow up, number one. Number two, an interesting point to point out, and I hope Professor Sands would correct me if I am wrong, none of the British lawyers, to the best of my knowledge, will prosecuted in connection with aggressive interrogation, and let's be frank, their assassination policy by SAS against senior IRA operatives. And the third point, with all due respect, IRA was a serious threat, but IRA is not an existentialist threat like al-Qaida. And the way you adopt coercion in the context of a non-existentialist threat is very different that you do it in the context of an existentialist threat. I don't see us settling down with al-Qaida the way you resolve things with IRA. Mr. Nadler. The gentleman's time has long since expired. The gentleman from Alabama is recognized for 5 minutes. Mr. Davis. Thank you, Mr. Chairman. Mr. Rivkin, let me begin with you. I had a chance to read the op-ed piece that you wrote in the Journal last week, and some of your positions are interesting in that they are extremely provocative. So I want to pose a couple of questions to you. You just mentioned the Vietnam War. Did the United States military apply the Geneva Conventions to captured Vietcong operatives? Mr. Rivkin. It is a complicated question, Congressman Davis. Basically, the position of the United States government was that the Vietcong was not legally entitled to Geneva protections. We extended it as a matter of policy grace, largely, as I understand it, I am too young, of course, to have personal knowledge, but people I talk to, largely because the Vietcong threatened American prisoners who, God knows, were not treated particularly well but could have been treated a lot worse. Mr. Davis. Well, let me take up that particular logic and apply it to another scenario. Let's say that Hezbollah, a known terrorist organization, were to capture an Israeli soldier and to take that individual into custody and to subject that individual to sleep depravation, physical abuse, physical degradation, any number of things that might strike some people, most especially including that Israeli soldier experiencing the pain, as torture. Should that Israeli soldier and his government be able to invoke the Geneva convention against Hezbollah? Mr. Rivkin. There are two answers to that, Congressman Davis. The legal answer is this. If you are a lawful combatant, the fact that the people who have captured you are unlawful combatants and themselves upon capture would not be entitled to the gold standard of the Geneva Convention does not mean that you are not. So this is a non-reciprocity situation. Mr. Davis. Do you think Hezbollah would adopt that interpretation, or do you think al-Qaida would adopt that interpretation. Mr. Rivkin. No, I understand the question. Mr. Davis. [OFF MIKE] Mr. Rivkin. The practical answer is easy. And I don't mean to sound glib, but let me suggest this. Given the absolutely atrocious, medieval level of barbarism that is routinely inflicted by unlawful combatants by Taliban, al-Qaida, Hezbollah, where we are talking about not just torturing people but dismembering people and killing them. There are plenty of examples of them in Iraq. If I were captured and my choice was being accorded the treatment that they generally accord to westerners versus being treated as somebody in Guantanamo, I would settle for Guantanamo in---- Mr. Davis. Well, of course, that wasn't the question I asked you. Let me perhaps come at the question a little bit differently. Does the Israeli government apply the Geneva Convention to captured Hezbollah operatives, or captured Hamas operatives? Mr. Rivkin. Israeli government's position, as I understand it, is fairly complex. They believe that a state of armed conflict exists. They generally apply Geneva Conventions. They signed the Protocol One addition, which we have not signed. But it is fairly---- Mr. Davis. Is torture legal or illegal in Israel? Mr. Rivkin. Excuse me? Mr. Davis. Is torture legal or illegal in Israel? Mr. Rivkin. Torture in Israel is illegal. However, Israelis, in appropriate circumstances, do use stress techniques. Their court has been quite involved on this issue. Mr. Davis. Well, now, let me stop you at this point, because you are doing what witnesses like to do, which is talking fast enough that the questioner can't get a question out if the time runs out. So let me slow you down. Because you have just said some very interesting things. I want to make sure everyone hears them. Israel, a democracy like ours, that is under daily siege from the most vicious murderers, assailants imaginable, which faces an existential threat to its existence, they are very small, 10 miles at the smallest point, makes torture illegal, applies the Geneva Convention, and they apply it to armies or quasi-armies with a history of being willing to kill women and children. It would seem to me that those aren't incidental points to be talked over and talked around. Those are very significant moral propositions. Mr. Sands, would you like to comment on that? Do you see the point that I am making? Mr. Sands. Well, I do, sir, very much see your point, and it is a point that is also made in relation to the United Kingdom. We have had, sadly, terrorist attacks on our territory. One of the bombs in July 7th went away 100 yards from the law school that teach at. And I have followed the Israeli situation very carefully. The Israeli Supreme Court, and I think Mr. Rivkin was about to refer to it, gave a very famous judgment in which it said in relation to torture, firstly, it is the lot of a democracy to fight with one arm tied behind its back, but the democracy is still stronger, because that is who we are. Secondly, it rejected the ticking time bomb theory. This is the theory that everyone raises, and yet ask anyone to find a single example in which the ticking time bomb theory, situation has arisen, and no one can identify one. And with great respect, the way the Supreme Court of Israel dealt with it is the right way. Never means never. If a ticking time bomb scenario comes up, which we say is completely hypothetical, we will deal with it when it arises. Mr. Davis. Mr. Rivkin, if the Chair will indulge me just one last hypothetical to you. Should the President of the United States issue a pardon to members of the executive branch who may be accused in the future of having violated statutes related to torture? Mr. Rivkin. In the current circumstances? Mr. Davis. It is a hypothetical. Should the President of the United States issue a pardon before he leaves office to members of his executive who may be accused in the future of having violated statutes relating to torture? Mr. Rivkin. I have not considered this question carefully, but I would imagine there would be some reasons to do so. I frankly think as useful as the exploration of those issues is, it can go too far and it can certainly handicap our---- Mr. Davis. Mr. Rivkin, would you seriously suggest that a President issue a blanket pardon to members of his Administration? Because this is the standard for a pardon typically. Under precedent, that someone be convicted of a crime or have acknowledged culpability for a crime. Has any member of the Bush Administration been convicted of a crime related to torture? Mr. Rivkin. No, but---- Mr. Davis. Have any of them acknowledged responsibility for this crime? Mr. Rivkin. You asked me a hypothetical question. And all I am saying is I have not studied this question in detail. I said there may be some reasons to consider doing it. Let me remind you that the blanket pardon---- Mr. Davis. I would suggest to you that it would be extraordinary. Mr. Rivkin. [continuing]. Would not be unprecedented. President Carter, for example, issued a blanket pardon to the Vietnam war related, I will say people who got in trouble in relation to the Vietnam war. But I am not advocating for it. You asked me a hypothetical. The easiest answer is to say that I don't answer hypotheticals. I am trying to be forthcoming. I said it is something to consider. I did not say that it is something to do. But my only--10-second point is this. If you look at Israel, they did make a choice in a transparent fashion as accountable democratic body polity. They do use drastic means of interrogation. I don't think that--in certain circumstances. I don't think that--that is at least my sense from talking to a lot of Israelis. But yes, they have made a decision to take high risks, and that certainly is to consider. Mr. Nadler. Time of the gentleman has expired. The Chair now recognizes for 5 minutes the gentleman from California. Mr. Issa. Thank you, Mr. Chairman. And I will try to pick up what I would have put in an opening statement in my questioning. Mr. Rivkin, since you have had time to think about that earlier question and to give it due consideration, since Jane Harmon and Nancy Pelosi were knowing accomplices to this, they were well aware and had virtual tours of the site and were intimately familiar with waterboarding and all the other techniques, would they be appropriate for that blanket pardon? Mr. Rivkin. If---- Mr. Issa. Since they seem to be repentant by now denying that it is their responsibility, but rather the responsibility of the Administration. Mr. Rivkin. I understand, Congressman. It is actually the point you make in your question is a correct one. If we are going to use broad conspiracy counts to bring people in who were not in an operational chain of command, a Member of Congress exercising his oversight power sort of acquiescing and blessing something may have things to be concerned about. But as I said, look, there is a difficult issue here. I don't mean to be glib, it is a serious problem. Investigation, exploration is a good thing. But it can degenerate into a witch hunt. It can degenerate into an effort to smear the reputations of the people involved. And again, I posed the same point I made earlier, which is, how is the future President going to get candid legal advice when everybody who worked for the previous President, or the previous two Presidents having their career ruined, being vilified, portrayed as war criminals, even if prosecutions don't mature, and have a bunch bar associations going after them and have students breaking down their doors when they try to teach. That is not a good thing. It is not a good thing at all. Mr. Issa. I agree, and Ms. Cohn, I will switch to you for a second, because I think we may gain--I may gain some insight in this. You may not be aware of this, but I have actually supported the ban on torture, and I happen to be much more in the McCain camp on this. So don't consider me a friend just because I say that, but I do want to---- Ms. Cohn. You also come from my part of the country as well. Mr. Issa. Yes. I do want to get this right. And although I opened very clearly with the idea that we have got to move on, truly move on from a bipartisan decision that was made that is now public, that in fact is no longer done, to the question of what do we go going forward? And as one Member of Congress on this side of the aisle, probably not, quotable by my friend and colleague, but perhaps, I think we are better than that. I think we can win this fight with one arm tied behind our back, as we have I World War II and other wars. But having said that, I want to go through a line of questioning to see if perhaps I can get yes's on this. Do you think it is fair to lie to prisoners that we take on the battlefield, whether they be illegal combatants or just prisoners? Ms. Cohn. To lie to them? Mr. Issa. To lie to them. To tell them things that would cause them to spill the beans because we have lied to them, we have been disingenuous in what we tell them reality is. For example, the colleague that was taken with you, we have already killed him. Ms. Cohn. Well, I think it would depend because, for example, if you lied to someone and say we are going to kill your wife, even though you don't really intend to, we are going to kill your wife if you don't give us this information, then that is severe psychological coercion, and I would be opposed to that. And I don't think that that line---- Mr. Issa. And I appreciate that. Maybe I will alter it a little bit. Mr. Rivkin, do you watch ``Law and Order,'' any of the 35 different versions? Mr. Rivkin. I confess, I do not--science fiction. Mr. Issa. Okay. Well, for everyone else in the world, do you think that has watched it, do you think that in fact deceiving people, including by saying your partner just got a confession out of the other person taken on the battlefield. Do you think that is okay? Mr. Rivkin. It is okay. There is a small range of deceptive statements relative---- Mr. Issa. And of course, you know that the Supreme Court has held that is okay, even in law cases that we deal with. Mr. Nadler. Would the gentlemen yield for a second? Mr. Issa. Of course, Mr. Chairman. Mr. Nadler. Thank you. I just want to pursue the one question. The Supreme Court has indeed ruled that deceiving a questioner saying your colleague has spilled the beans, you might as well tell us the rest, is okay. But is that the same law as threatening, I am going to kill your wife? Mr. Issa. Well, and I wasn't responding to Ms. Cohn, because I think it is important that we stay to the basic concept that we do get confessions out of prisoners in the United States and in other places by techniques other than physical contact or threat of torture. We do often say, for example, and I will pick you up on this, Mr. Chairman, domestically, and I think the audience of all of us think domestically to say that if you don't cooperate, we are going to take every one in your family and we are going to arrest them, and they are going to serve as accomplices to your crime is in fact something that can be done in this country. The threat of, in fact, widening the net to people beyond that, I think just, for all of you, those kinds of techniques are many of the alternatives, so we do have other tools besides the ones we are concentrating on today. And my time is expiring, so I would appreciate it if I---- Mr. Rivkin. Just 10 seconds. This is actually my favorite hypothetical, because the critics do not want any form of coercion, psychological coercion. My favorite example is what prosecutors of Enron did to Andy Fastow. They threatened him, (a) to prosecute his wife harshly, (b) make sure that he and his wife would serve time concurrently, in which case their child would have to go into foster care. Does anybody think that that is not a horrible psychological threat to make? They meant it, it broke him, and I am not holding a candle for him. I never represented him or anybody from Enron. But this permeates--custodial interrogation frequently is permeated by horrible pressure, and that is okay. If it is okay for Andy Fastow, how it cannot be okay with Abu Zabeda or---- Mr. Issa. And if we just let the others follow up because this is one where we know it has been held constitutional within some of these guidelines we are talking about. I would like to see how they view that for prisoners from the battlefield. Mr. Luban. Mr. Luban. I agree with what the other witnesses have said. Lies that amount to death threats or threats of torture against the person or against their family, those are not permissible. Other kinds of lies are permissible. I think that interrogation is a game in which you are trying to get information from somebody who doesn't want to give it. By definition, it is adversarial. Tricking it out of a person, it may not be something that in everyday life we would think is moral, but in that setting, that is moral. The difference is between tricking it out of them and coercing it out of them. Mr. Issa. Mr. Sands, I guess we will close with you because you haven't answered, and because these are techniques of course widely used in Britain. Mr. Sands. They are, but I think I am right in saying that the U.S. field manual permits this as a technique. And of course the U.S. field manual, which governs military interrogations, is an extremely sensible document. It has broad support across the spectrum politically. It has been followed in many other countries around he world. It does not exclude those types of questioning techniques subject to the limitations in terms of family members and related issues. And it is, of course, the basis for a vote, I believe, in both this House and the other House in relation to new legislation which, very sadly, I have to say, the President vetoed just a month and a half ago. And I think it is important to point out, sir, that decisions that are taken by the President such as vetoing legislation which would prohibit the use of waterboarding is watched around the rest of the world. And it was the subject of intense media attention in the United Kingdom. And I can go further than that. I wear two hats. I am an academic, but I am also a practicing lawyer. The area of work that I do is advising foreign governments. And I have been in a room with a president of a foreign government who, when addressing these issues and discussing them, has whipped out a copy of John Yoo's legal advice and said to me, face to face, look, the United States allows this sort of stuff, so why not do it? I have had a foreign minister say the same thing to me. It has a big consequence. And so I think you have put your finger on it. I think the United States has a terrific leadership role. It can do better than that. It leads the world on these issues, and it needs to find a way to come back to that leadership role. Mr. Issa. Hopefully, as an academic, you suggested that that head of state that he not believe a lawyer. Thank you. Mr. Nadler. The time of the gentleman has expired. The gentleman from Minnesota is recognized for 5 minutes. Mr. Ellison. Professor Sands, does torture work? Mr. Sands. That is a very general question. Mr. Ellsion. Of course it is. Mr. Sands. I have spoken--I have never personally engaged in torture, so I have got no firsthand experience of knowing whether or not it does work. What I have just engaged in is a year and a half of examining the aggressive interrogation of one man at Guantanamo. I obtained professional medical advice, coming back to this question of was he tortured or not, and the conclusion, which is set out in the book, is that if you asked 12 clinical psychiatrists whether this man was tortured, all 12 would say he was because of the severe mental pain and suffering that he suffered over a 54-day period. I know to the best of my abilities to find out that in the case of what happened to that man, who was potentially thought to be the 20th hijacker and therefore a serious individual, it produced nothing meaningful. Mr. Ellison. Here is my question. If you say that--let's just assume for just the briefest moment in time that some things a person who is tortured says, some things they say are true and some things they say are said simply to stop the pain. How do you determine which are true and which are just statements to just--that are false, but just to give the torturer some answer to make him stop? Mr. Sands. You can't. There is no way to do that. And the experience with Khalid Sheikh Mohammed, of course, who has owned up to everything under the sun, establishes the absurdity of going down that route. It is simply impossible to know which of the multitude of things that man has now confessed to having done is or is not true, and there is no way to find it out. And the difficulty, of course, is that the disinformation then leads the interrogator and the state that is supporting the interrogation to perhaps exclude other avenues of investigation to determine the true facts. So it is not an approach for that reason also that is useful. I think it is clear that it doesn't work. The British view is it doesn't work. You must never do it, and never means never. Mr. Ellison. Now Mr. Rivkin, I guess if I asked you that question, you probably would say sometimes it does work, right? And so, sir, again, I guess my question to you is, if we assume for a moment that a person who is subject to physical torture will say some things that are true, and will say some other things that are not true. For example, if the torturer asks him, name everybody who you were with, the person won't just start giving names, particularly if the torturer doesn't like the answer that the victim of the torturer is giving, how do you know which is the right stuff and which is the wrong? Mr. Rivkin. I understand. And again, it is a---- Mr. Ellison. But I guess I know you understand, but I need you to answer my question. How do you determine which is right and which is wrong? Mr. Rivkin. My answer would be this. In most situations, we have an opportunity to go back and cross-examine, if a person being interrogated says the safe house is in this building on this street, and you go and it is not there, you can go back-- -- Mr. Ellison. Cross-examine like a court proceeding? You mean like check it against other facts---- Mr. Rivkin. Well, no, no. You could go back to the same person. Look, there are people who will tell you that you can learn as much from a person lying as a person telling you the truth as long as you understand the context. The worst situation for you an interrogator is, you are not getting anything. No information at all. Mr. Ellison. Now wait a minute. Now Mr. Rivkin, let's just say you get an answer and that answer is false. The torturer believes that you know, and let's just say that the torture victim does not know, but the torture victim gives the torturer an answer because this guy is going to keep shocking me or beating me or drowning me until I tell him something. So you tell him something, so he names the kids who are on his baseball team, or soccer team. Don't you now have to go and use investigative time and resources to either verify or reject that false information? Mr. Rivkin. That is correct. Mr. Ellison. Does that take time? Mr. Rivkin. It does take time. Mr. Ellison. Does it take money? Mr. Rivkin. And as always in life, you can have false leads. But I repeat, from everything I have heard---- Mr. Ellison. Can you give me an example of a true ticking time bomb situation, a specific example in which there was a time and a place and a person who was believed to have information about some explosion or something, where in fact this particular case saved somebody's life even. Can you give us an example of that? Mr. Rivkin. Well, yes. While I am at a disadvantage because I personally do not have--being legalistic--I personally don't have complete proof. But I would point out there is an excellent article in the last issue of the National Journal by Stewart Taylor, who is widely regarded as a very objective and non-partisan commentator. Mr. Ellison. What is the name of the case that you are referring to. Mr. Rivkin. He argues that Khalid Sheikh Mohammed in the circumstances so close post-September 11 was as close as you can get to a ticking time bomb, because here was the man who we believe to have some information---- Mr. Ellison. Wait a minute, Mr. Rivkin. I am not asking close as you can get, I am asking there---- Mr. Rivkin. Well, but he was---- Mr. Ellison. [continuing]. The ticking--I am talking about if you don't--we have to torture you because within 3 hours the bomb is going to go off and we have to torture you to stop that bomb from going off. Do we have a situation like that? I will even give you 4 hours. Mr. Rivkin. Well, with all due respect, that is very generous of you, Congressman--3 or 4 hours does not---- Mr. Ellison. Five. Mr. Rivkin. It is like arguing what severe is. The view of the Administration, as I understand had, was somebody like KSM who has information about impending attacks, could have been matter of days or weeks. It does not make it any less---- Mr. Ellison. Okay, Mr. Rivkin, thank you. Mr. Chairman, I would just ask the other panelists if they know of a ticking time bomb case? Mr. Sands, Ms. Cohn, Mr. Luban, do you know of a ticking time bomb, the real case? Ms. Cohn. I know of one. It is on the show ``24.'' [Laughter.] Mr. Ellison. It is fictional. Ms. Cohn. And that is the only one I know of. Mr. Ellison. Mr. Sands? Mr. Sands. I know of none other. And I have never seen the show ``24,'' so I don't even know of that one. Mr. Ellison. Mr. Luban? Mr. Luban. Yes, I have been trying to chase down true ticking time bomb cases for a couple of years. There have been a couple that have been alleged to be ticking time bomb cases. They turned out not to be true. If I could take a second to describe one, I think the poster child was the bomb maker, al-Qaida bomb maker in the Philippines, his name was Morad, who was captured because the bomb went off. The Philippine police tortured him brutally, and he revealed in the end that there was a plot to blow up American Airliners and to assassinate the Pope. Now that looks like the ticking time bomb case, except for two things. First, the torture was not the thing that broke him. What broke him was the threat that he was going to be turned over to the Israelis, who apparently, according to one journalist, he feared even more than he hated. And secondly, all the information was already on his laptop, which the Philippine police had, except that when you take torture as your ``A'' option, you don't look at the ``B'' options. And so the idea that a ticking time bomb case is one where only torture produces the information, that is crucial. And torture oriented interrogation organizations, police forces begin to gravitate toward torture and they leave aside all the non-torture methods. All of that information was on Morad's computer. Mr. Nadler. The time of the gentleman has expired. The Chair now recognizes for 5 minutes the gentleman from Iowa. Mr. King. Thank you, Mr. Chairman. I would like to thank all the witnesses for your testimony. And there has been a lot of information poured forth from this panel. It has answered some questions and it has created some curiosity on my part. And as I listen, I would lift out of some of the testimony Lieutenant Calley in the My Lai Massacre was raised, and the Abu Ghraib prison issues were raised. And I would draw those two comparisons as the critics of American conduct in Southeast Asia invariably focused on Abu Ghraib. That is the lens through which they would like to have history review the Vietnam conflict. The critics of the military operations that liberated Iraq from Saddam's reign of terror would like to have had us view that experience through the lens of focusing on the Abu Ghraib prison incidents, rather than the broader picture and a broader view. I will submit that the American soldiers and the American military and our American intelligence security personnel have conducted themselves, by and large, extraordinarily honorably throughout history. And I think it is a disservice to focus on the exceptions as narrow as they in fact are in the breadth of the history of this country. And so this question emerges in my mind, and I ask, I think, first from Mr. Sands, who may be more objective about this because of his country of nationality and origin. But is there an example throughout the history of the United States of America, and I will take us back 1776, where the United States has been in a conflict against an enemy, militarily, cultural or just an enemy, where our enemy took a more moral posture toward our soldiers and our combatants and maybe our spies and intelligence people than we have ourselves? The posture of the United States vis-`-vis our enemies, are we viewed--is there is a historical exception where on balance, for the conflict that you might choose, that the enemy has taken a stand superior in moral authority than the United States? Mr. Sands. Sir, I am afraid I am not an expert on military history, and I am therefore not able to answer that question beyond a number of general observations. Firstly, I would agree with your observation that the United States has been a global leader in relation to these issues, both historically and also in relation to more recent conflicts, and also in relation to the vast majority of practice in relation to current conflicts. I have had the opportunity to meet a very large number of serving members of the United States military who have been involved in Afghanistan, who have been involved in Iraq, and who are involved in other parts of the world. And I leave with an enormously positive impression of the role that they have played. The story that I have told is not a story about things going wrong in relation to the military. It is a story in relation to political appointees, and I---- Mr. King. Mr. Sands, in the interest of time, I want to concede your point that you are about to make and acknowledge that the breadth of this is not a broad criticism, it is very narrow. We agree. Mr. Sands. I believe it is narrow, but its narrowness does not diminish its importance because of the recent---- Mr. King. And I will concede that point to you, and I know it is what we are examining here. And I thank you for your response. And I turn to Ms. Cohn, and you are advocating for the gaining the trust of the person who would be questioned and as one who is every day involved in this business of folks gaining my trust, we are very resistant to that tactic here in Congress. Because there are confidences that we must maintain, or our leverage and influence is significantly diminished. And I would ask if you could point out a case where there has been a successful interrogation of enemy personnel by gaining trust that has saved lives in the fashion that has been illustrated in the equivalency of lives and intelligence that might be comparable to that of Ranking Member Trent Franks as he talked about the three incidents of waterboarding. Can you eclipse that in your historical knowledge of gaining trust of the enemy? Ms. Cohn. Thank you for that question, Mr. King. It is my understanding that when Saddam Hussein was in custody after the United States came in and took over that country, that he was treated with kindness and in fact, he provided a very rich source of information for the people who were interrogating him. So that would be example that comes to mind. But I want to say one other thing---- Mr. King. Is that quantified? Ms. Cohn. Pardon me? Mr. King. Is that quantified? I mean, I understand that, too. But have we quantified the intelligence gains from Saddam in a fashion that measures up against the intelligence gains that referenced by Mr. Franks in his opening statement? Ms. Cohn. Well, the problem is that the intelligence gains that were referenced by Mr. Franks in his opening statements are also not verifiable because of top secrecy and, quite frankly, given the number of misrepresentations coming from the high levels of the Bush Administration, I don't have great confidence in the statements that come from that Administration. But I want to say one other thing. And that is that I agree with you that our soldiers have been admirable, our troops in this conflict. And we are not talking about our troops, we are talking about interrogators, many of whom are mercenaries who are following policies that come from the top of the highest levels of this government, and we are not talking just about an isolated case of Abu Ghraib. We are talking about torture and cruel, inhuman or degrading treatment and punishment that has come at Guantanamo, in Iraq, in Afghanistan and in the CIA--this is not just an isolated incident. Mr. King. Thank you, Ms. Cohn. I would like to slip in one question in conclusion here, if I might. And it focuses back on the statement made by Mr. Sands. And as you illustrated, the IRA and the--by the way, I want to say, I agree with you and we shouldn't call it a war on terror. I think that is a misnomer. But you made the statement that the IRA, the Irish Republican Army, that conflict was extended by 15 to 20 years because of the, I believe it was humiliation that was imposed upon some of them that extended it because of the outrage. And now I would make the point to you that wallowing in self-guilt as a Nation and bringing hearings before this Congress and pumping this into the media constantly when we have identified that these are narrow, very narrow exceptional circumstances. And our knowledge on it isn't complete, that it extends the outrage, and this panel and this testimony and those things that supplement it across this media also extend the outrage and may well be extending this global war against these people whom we won't call terrorists, we will call them Islamic Jihadists. Mr. Sands? Mr. Sands. I would very much like to respond to that, sir. I would be very happy to share with the Committee, it is not my area of expertise, but I do have access to some of the information of the views of the British military and the British political circles as to the consequences of using the so-called five techniques on the IRA. And in fact, the situation I can segueway into your question, sir, but---- Mr. King. I want to know if your testimony extends the outrage. Mr. Sands. But Mr. Rivkin said he didn't believe that any of the lawyers involved in the U.K. techniques would ever hold up before a court. But the United Kingdom was, and what enabled the United Kingdom to move on in that relationship and to get closure on that terrible period were judgments of the European Commission on Human Rights and the European Court on Human Rights. And my hope, sir, would be that either this Committee or some other Committee is able to bring closure to this issue by accepting that errors were made and allowing the country to move on. Because the consequence of not going down that route is that there will be investigations and possibly prosecutions abroad after the failure of the United States to have acted. So it is about finding closure and moving on. Mr. King. I would ask unanimous consent to allow Mr. Rivkin to answer that question. Mr. Rivkin. Very briefly--thank you, very briefly. I want the record to show that none of the senior British officials were prosecuted in connection with any of the activities, including assassination, which if the laws of war did not apply would be legal killings of IRA operatives. So there are different--even if you assume the importance of bringing closure to that, there is a right way of bringing closure, there is a wrong way of bringing closure. And criminal investigations are prosecutions for the next two decades ain't the right way to bring closure. And that is what Britain has done. That is not what Israel has done. Mr. Luban. Mr. Chairman, may I add one comment to this? That is that the government of the United Kingdom at that time made a clean breast of the five techniques and publicly acknowledged that it had been using the five techniques. Mr. Sands. Very briefly sir, it is not accurate to say that no individuals faced individual sanction or responsibility. And I will be pleased to provide the Committee with detailed information as to what has happened in the United Kingdom. Mr. King. I yield back. Mr. Nadler. Thank you. The Chair now recognizes for 5 minutes the gentleman from Virginia. Mr. Scott. Thank you, Mr. Chairman. I thank our witnesses for their testimony. Ms. Cohn, you mentioned jus cogens and indicated there is no statute of limitations for prosecution. Ms. Cohn. Correct. Mr. Scott. Is there anywhere in the United States criminal code where we can find a basis for prosecution of that concept generally? Ms. Cohn. Yes. Several Supreme Court decisions have referred to jus cogens and customary international law, and it is part of U.S. law, just the same way as treaties are once we ratify them. Mr. Scott. Thank you. We have all agreed that torture is illegal. Is there any basis for retroactive immunity if you get good, life-saving information? Ms. Cohn. No. There is no justification for torture under the Geneva Conventions, under the Torture Convention and under the International Covenant on Civil and Political Rights, all three of which are treaties the United States has ratified, and therefore part of U.S. law under the supremacy clause of the Constitution. Mr. Scott. And the fact that you got good information does not retroactively immunize you for the torture? Ms. Cohn. No, it doesn't. No exceptional circumstances whatsoever will ever allow torture under those three treaties. Mr. Scott. And one of the problems with this is that you don't even know if you are going to get good information when you decide to torture, that you start torturing and you may or may not--you may find it didn't work or you may find the person didn't even have information. How many people--if we were to allow torture in the cases where you can get good information, how would you know that you are going to get good information when you decide to torture? Ms. Cohn. There is no way or knowing, Mr. Scott. That is the problem. Mr. Scott. Mr. Sands, you have talked about this generally. Could you just specifically say the effect of allowing torture, what effect that would have on United States troops? Mr. Sands. Well, firstly, I think that there is considerable evidence that the use of abusive interrogation techniques has undermined morale. I have even in the past few days from the publication of the article in Vanity Fair and the book coming out received rather amazing e-mails from military, very upper-echelon individuals who are, shall we say, feeling very positive about the way in which steps are going to draw a line under this historical moment. But more significantly, and I think one need only reverse the situation. If President Bush vetoes legislation that this House has passed and that the Senate has passed, which outlaws these techniques of interrogation because he wants to leave them open to possible use in the future, imagine what that does to someone who is holding American troops or American nationals and also wishes to use the same techniques. It simply creates a basis for exposing American nationals or American troops to abusive techniques of interrogation that are not permitted. And so it creates, I think, an additional risk for American troops in the field and for American nationals, business community, NGOs, individuals traveling around the world doing their honest business. And that is the fundamental problem with what has happened. It has created a fundamental risk for the good men and women of the United States, in particular in the military. And that is what makes this so pernicious. Mr. Scott. Thank you. Ms. Cohn, does anybody outside of this Administration think that waterboarding is not torture? Ms. Cohn. This Administration? Well, at Michael Mukasey's confirmation hearing to be attorney general, retired navy Rear Admiral--he is retired--navy Rear Admiral John Hutson testified that aside from the rack and thumbscrews, waterboarding is perhaps the most iconic form of torture going back to the Spanish Inquisition. The United States pushed for an got prosecutions of Japanese leaders after World War II for waterboarding. It is called the water torture, the water cure. There is really no good argument that in fact waterboarding is not torture, and that is why I was so puzzled that Michael Mukasey refused to say that waterboarding was torture. I think the reason for that was two-fold. First of all, he would have been calling his bosses criminals because they admitted engaging in waterboarding. And if waterboarding is torture and torture is a war crime, they could be liable under the War Crimes Act. And secondly, under the Military Commissions Act, evidence obtained by torture is inadmissible, but evidence obtained by coercion is admission if it took place before December 30, 2005. And so Michael Mukasey knew that information presumably was obtained by waterboarding, and if that was torture, then that could not be used in some of these military commissions trials. Those are the only two reasons I can think of that Michael Mukasey would refuse to say what everyone else knows, and that is that waterboarding is torture. Mr. Scott. Well, can this Administration change the law by memo? Ms. Cohn. Can they change the law? It is either torture or it is not torture, and waterboarding, if you were almost drowning, and some people actually do drown, and so then we are talking about homicide, we are talking about murder. I mean, there is torture leading to murder, but if you are pouring water down someone's nose and mouth until they almost drown, there are just no two explanations for that. There is no good argument that that is not torture. And so if the U.S. passed a law saying waterboarding is not torture, it would be like saying the sun doesn't rise in the east and set in the west. It just would not make sense. Mr. Scott. Thank you. Mr. Nadler. I thank the gentleman. I now recognize the gentleman from North Carolina for 5 minutes. Mr. Watt. Thank you, Mr. Chairman. I just have one question, but before I ask the question, I just want to express how proud I feel that this hearing is being held and the manner in which it is being held. And I associate myself with the Chairman's statement that we have a high responsibility here. And I would have to say when I came in, I had this fear that it was going to deteriorate into a partisan tit or tat, and there has been some of that, as there always is in these hearings. But by and large, it has just been a very informative, and I think a very important hearing to start a process that I think is very important. And I want to commend the Chair and the Chair of the full Committee and others who have conducted it at that level. Now, the question and I am going to ask this question to Mr. Rivkin and Professor Luban because I think they are the only two that have not answered it, but I want to express what I think I heard from Professor Sands and Professor Cohn already in response. And if I misheard them, I hope they will correct what I think I heard. I think I heard Professor Cohn say that we ought to be seriously contemplating as a next step pursuing the possibility of a special prosecutor to pursue this and pushing this further in that way. I think I heard Professor Sands say that he thinks that a more productive course would be to document more or less for history and for future purposes what has occurred so that we make sure that we have some rules of the road going forward, but not focus so much on pursuing those who may have engaged in--now I may be misstating that, and I hope you will correct me if I am. Mr. Rivkin, I don't think you have expressed an opinion on this, so what I think is--my question generally is, where do you think this Committee should take this, if anywhere, beyond today? Should we just let bygones by bygones and go on and keep trucking down the road? Or what do you think we should be doing next in this process? Mr. Rivkin. I appreciate the question, Congressman. You are obviously seized of this issue, and you were doing it, how to bring it to a responsible conclusion. I guess it depends on what is your narrative as to what has transpired. My narrative is entirely different. I think that-- -- Mr. Watt. Well, I appreciate you giving me your narrative. I think I know your narrative. But I am more interested in where you think we should go from here rather than a restatement of your narrative. Mr. Rivkin. Well, I guess, I am--forgive me. I guess I am with Professor Sands, which is document the history as fairly and as objectively as you can. I think doing anything beyond that would be a gross disservice. Even if you think the laws were broken, prosecutorial discretion implies exercising law enforcement function wisely. In a time where people in good faith, not for any other reason, on both sides of the aisle---- Mr. Watt. Well, we are not prosecutors, we are a Committee of Congress, so---- Mr. Rivkin. Well, but you can--judgment of you are right-- you have a right to reflect as representatives of the people and your own personal capacity, of course, you have a right to express an opinion. And all I am saying is that to the extent the Congress sometimes recommends prosecutions, sometimes it doesn't. I know technically law enforcement belongs to the executive branch. I think it would be madness to prosecute anybody, given the facts involved. Mr. Watt. I want to come back to you if I have time. But I want to make sure that Professor Sands seemed to be a little discomforted by the way I characterized what he said, and then I want to get Professor Luban's opinion. But I want to give Professor Sands a chance to get a level of comfort if I didn't correctly state what he was saying. Mr. Sands. Sir, not discomforted at all, but if there was an inaccuracy in what I conveyed, then the inaccuracy would be my responsibility and I am sure not yours. My position is as follows. There are facts which need to be explored. And it seems to me, and I say this with great deference, that that is one thing this Committee can usefully do. You are going to have some of these lawyers appear before you. You will have an opportunity to put to them specific factual issues that have not previously been tested and examined. And that is a vitally important function. With regards to other aspects, I think one has to accept the following situation. The Torture Convention and the Geneva Convention were violated. Crimes I think on the basis of the material I have seen, were committed. Under the Torture Convention of 1984, the United States has an obligation to investigate and, if appropriate, to prosecute or to extradite to a country where the individual would be prosecuted. The position as follows is that, and I set out in the book, there are likely to be investigations outside this jurisdiction in relation to what has happened. Foreign countries, friendly allies of the United States, will have prosecutors, and I described two of them in the book that I met with confidentially, who have asked me for all of my materials. I think that the reason they are able to do that, and they told me the reason they are able to do that, is that nothing has happened in the United States. And my point, and I probably did not put it as clearly as I could have, is that it is first and foremost for the United States to investigate these matters. It could do so to begin with within this Committee, whether it is by special prosecutor or other means. That is a matter for others to decide. But if the United States doesn't address it, other countries will. Ms. Cohn. Mr. Watt, may I clarify---- Mr. Watt. Mr. Chairman, the---- Mr. Nadler. Without objection---- Mr. Watt. The one witness we have not heard from on this is Professor Luban. Mr. Nadler. And without objection---- Mr. Watt. I would at least like to get his response. Mr. Nadler. Professor Luban. Mr. Luban. I will put my mike on and then I will be brief. I think that it is much more important for this Committee to find out what happened to publicize the memos that are still secret than--I think prosecutions are much further down the road. I don't think that it would be madness, but I think as somebody who believes strongly that people are innocent until they are proven guilty, that it is really premature to be talking about this. I would like to find out whether there were ethics violations committed, and there is no right against self- incrimination for ethics violations. I think that getting the full story out is the most important job of this Committee. And if I could say one other thing, I don't think that there is any worry about revealing secret interrogation techniques because the interrogation techniques have been known for over 3 years. And al-Qaida reads newspapers. And the idea that this would humiliate the United States and make things worse I think is wrong. It would show that the United States rights its own ship when the ship is listing. Mr. Nadler. Ms. Cohn, you wanted to answer that, too. Ms. Cohn. Yes. I just wanted to follow up on what Professor Sands was saying about other countries prosecuting our leaders, because that may be kind of a foreign concept to people. What I believe Professor Sands is talking about is the concept of universal jurisdiction, which is well established in U.S. law as well as the laws of most other countries. And universal jurisdiction says that if a country such as the United States is unwilling or unable to prosecute its own nationals for these heinous crimes, they are crimes that are so heinous that they are crimes against all of humanity, and any country can prosecute and punish them. And Israel used the doctrine of universal jurisdiction to convict, to try, convict and execute Adolf Eichmann for his crimes during the holocaust, even though they had no direct relationship with Israel. So this is--an there have been investigations. My organization, the National Lawyers Guild, together with other organizations, have talked to prosecutors in other countries to try to encourage them to do these investigations because they are not being done in this country. Mr. Nadler. Thank you. The gentleman's time is now truly expired. Mr. Watt. Thank you, Mr. Chairman. Mr. Nadler. The gentleman from Tennessee is recognized for 5 minutes. Mr. Cohen. Thank you, Mr. Chairman, and Chairman Conyers, for holding this hearing. Professor Sands, you wrote in your book about a gentleman by the name of Spike, aka Marion Bowman. What basis did he have to believe that people at the FBI felt that the interrogation techniques being used by our government were illegal? Mr. Sands. I had, as I describe in the book, two meetings with Mr. Bowman, whose given birth name was Marion. As he explained to me in our first meeting, that was a name that, as a gentleman, has got him into some difficulties, so he changed it unilaterally to Spike. He described to me memoranda that he received and communications that came directly from Guantanamo, for he was not himself at Guantanamo, but I think he was an associate general counsel for the FBI counterterrorism division. He began to receive in late October and early November information from Guantanamo that there was a move toward aggressive interrogation at the push of the Pentagon. It is important to recall down at Guantanamo, you had not only military interrogators, you also had FBI interrogators, and the CIA were also present. And there was a tremendous tension going on down at Guantanamo as to what was right and what was wrong. And it would be very wrong to portray a situation, it was all one side in favor of aggressive interrogation. That is not the case. There were a lot of people who were very strongly opposed to it. They communicated their concerns to Mr. Bowman, and Mr. Bowman then took steps, as I describe in the book, to raise the issue directly with the Office of the General Counsel in the Department of Defense. Now that is one issue that factually this Committee, I think, would profitably use its powers to get to the bottom of. Because one of the things that I was as I describe in the book is that Mr. Bowman spoke to Mr. Haynes, and from Mr. Haynes he got a brush-off about these issues. Now if my account is accurate, and I believe that it is, Mr. Haynes would, by the time he received Mr. Bowman's account and expressions of concern, have already have been deeply involved in this story. And I think that is one area that this Committee would, I respectfully suggest, very carefully look at. What, precisely, was Mr. Haynes' role in the decision on Geneva? When did he first become aware of the fact that Mr. Al-Qahtani was being held down at Guantanamo? What did he do when he got that information, and what conversations did he have with Mr. Rumsfeld about it? What meetings did he have and conversations with Mr. Yoo about the memo of the first of August, 2002? Now this is an absolutely central point, and I apologize for belaboring it. The Administration has stood up and has said time after time the August 1, 2002 memo of Yoo and Bybee had nothing to do with Administration policies and decisions. That is plain wrong. Mr. Haynes went down to Guantanamo at the end of September 2002, he had knowledge of the contents of the opinion written by Mr. Yoo. And to all intents and purposes, the legal advice that he claims to have relied on from the staff judge advocate at Guantanamo was irrelevant because he already knew he had Department of Justice sign-off. And frankly, that is what makes, to my mind, the story that I uncovered the most unhappy story, it is that in the face of sign-off by Department of Justice of the techniques that were used on detainee 063, when Mr. Haynes appeared before the Senate in July 2006, he pointed to Major General Dunleavey and Lieutenant Colonel Beaver essentially as being responsible for what had happened. Those two people have suffered considerable unhappiness as a result of that. They have been prosecuted, they have been singled out. Neither was given any warning that their memoranda were going to be made public. Diane Beaver's legal advice, which of course normally ought to have been kept confidential, as all legal advice usually is, was released without her being given any proper warning. Her name was left on the legal advice. It could have been blacked out. There was no need to reveal publicly that a person who had served honorably in the U.S. military for many years should be outed in this way. And these are the kinds of facts that as you will see I feel rather passionately this Committee can usefully investigate as a way of setting the account straight and ensuring that those who truly took the decisions are responsible, and that honorable individuals associated with the U.S. military are not tarred with the responsibility which they should not have. Mr. Cohen. As my time has expired, further Congressman asketh not. Thank you. I yield back. Mr. Nadler. [continuing]. The responsibility gentleman. All questioning having been concluded, without objection, all Members will have 5 legislative days to submit to the Chair additional written questions for the witnesses, which we will forward and ask the witnesses to respond as promptly at you can so that their answers may be made part of the record. Without objection, all Members will have 5 legislative days to submit any additional materials for inclusion into the record. The Chair wants to take this opportunity particularly to thank the witnesses. And with that, this hearing is adjourned. [Whereupon, at 12:17 p.m., the Subcommittee was adjourned.] A P P E N D I X ---------- Material Submitted for the Hearing Record [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]